This article first appeared in The Nation on October 8, 2020.
In 2005, Ricky Davis, a Black Louisianian from New Orleans, was staying at a motel in Baton Rouge after his house was destroyed by Hurricane Katrina. On the night of October 29, according to court records, he got into an altercation with a white man who drove his car at him. Davis shot him, and a jury convicted him of second-degree murder with a life sentence in the infamous Louisiana State Penitentiary known as Angola.
But it was a jury verdict with a difference. It wasn't unanimous. Out of the 12 jurors, only 10 thought that he was guilty. Had Davis been in almost any other state, it would have been a mistrial. Davis is not alone. One thousand one hundred and one inmates currently serving prison terms in the state of Louisiana were convicted by nonunanimous juries and have finished their direct appeals, according to the Promise of Justice Initiative, a legal nonprofit in New Orleans.
Davis's story was complicated. On the night of the crime, according to court records, a woman told Davis and a witness that a man who had raped her was in the motel parking lot. Using Davis's phone, she called 911, while he went down to investigate. The witness testified at trial that as Davis tried to get the man's license plate, he "had to kind of jump out of the way because the truck was headed right toward him." As the man drove towards him, Davis shot in the direction of the truck. The man subsequently died of a gun wound to his chest.
Up until that day, Davis had never been charged with a crime. He had a job working as a disaster relief inspector, helping with the aftermaths of hurricanes, and spent his free time with his family. When he was arrested, Davis was first charged with manslaughter, which was later changed to second-degree murder. He stayed on house arrest for nearly three years awaiting trial. He never violated the terms of his arrest, and called his family every night to make sure they were home safe, according to his daughter-in-law Jeanique Angelain.
During Davis's trial, the defense unsuccessfully argued that he had acted in self-defense, according to court records. The 10 jurors ruled that the police investigation and witness testimony could not prove beyond reasonable doubt that he did not have the "specific intent to kill or inflict great bodily harm." The charge was then changed to second-degree murder. According to Davis's post-conviction relief application, the jury took only one hour and 11 minutes to deliberate. Ricky Davis was sentenced to prison for life at hard labor, without the opportunity for parole, and sent to Angola.
In April, Davis got a burst of hope in his cell at Angola. He heard other inmates talking about a US Supreme Court decision that had ruled nonunanimous verdicts unconstitutional. This meant that future cases would require unanimous juries for conviction, and that inmates on direct appeal would have the right to a new trial.
But none of these changes applied to Davis. Despite the abolition of this Jim Crow–era law, which for over a century has disproportionately affected Black men, the change was not retroactive. He and the other inmates convicted by nonunanimous juries currently serving sentences in Louisiana would not get a second chance.
"When they changed this law and accepted that it was racist, it should have been retroactive automatically," says Davis, adding, "This is what this nonunanimous jury thing is all about, keeping people like us inside." Davis described his situation over multiple phone conversations and letters since March.
Well before the Ramos decision, inmates were campaigning for a change in the law. Anthony Boult, another inmate at Angola, spent years discussing the law with the inmate council, reaching out to family and friends on the outside to advocate the change, and writing articles from prison detailing the need for it. As he followed the legislative debates on TV, he knew that the decision would not be retroactive, and would not apply to his case, but he kept pushing for the change anyway.
"We knew that it wasn't going to apply to us, but we cheered it on either way for the people after us," he says.
Meanwhile, lawyers at the Promise of Justice Initiative had started poring over cases in search of 10-2 or 11-1 jury verdicts. They sent hundreds of letters to incarcerated convicts. Soon, the letters started coming back, and the number of people in need of representation kept increasing.
"There is this group of people who are the folks who everyday still continue to carry the weight of this Jim Crow law," says Jamila Johnson, the managing attorney for the Jim Crow Juries project at the Promise of Justice Initiative. Nonunanimous juries were expressly designed to weaken the vote of Black jurors. According to the Ramos v. Louisiana decision, the law can be traced back to an 1898 constitutional convention that had as its purpose to "establish the supremacy of the white race," and "to ensure that African-American juror service would be meaningless." It concludes that "the State wanted to diminish the influence of Black jurors, who had won the right to serve on juries through the Fourteenth Amendment in 1868 and the Civil Rights Act of 1875."
Louisiana was until recently one of the last two US states that allowed nonunanimous jury convictions. (The other was Oregon.) Two years ago, activists won a statewide amendment on the nonunanimous jury law, with 64 percent of Louisiana voters supporting a measure to strike it down. The Ramos decision expanded the constitutional amendment to anyone on direct appeal at the time of the decision—not just those cases following the amendment's passage.
But Justice Neil Gorsuch, who wrote the court's decision in Ramos, claimed that "a separate non-retroactivity doctrine" would apply. "Under the Court's precedents, new constitutional rules apply on direct review, but generally do not apply retroactively on habeas corpus review," his decision reads. Justice Brett Kavanaugh, who joined the majority, emphasized that the rule should not apply retroactively on the federal level.
The Supreme Court will rule on the question of retroactivity as it affects 1,601 older sentences in a case to be argued in the court's current term.
For decades, the nonunanimous jury law has been effective in taking power away from Black jurors, who tend to be in the minority. According to a study from the Equal Justice Initiative, in 80 percent of criminal cases in Louisiana, only the votes of white jurors are necessary to return a guilty verdict. The study also found that all-white juries tend to spend less time making a decision, make more errors and consider less-diverse perspectives.
"The whole design of the nonunanimous juries system in the first place is to really nullify the Black vote on the juries," says Will Snowden, the director of Vera Institute for Justice's NOLA office and the founder of the Juror Project.
The problem starts as early as the jury selection process, says Snowden. The questions asked during selection are skewed to exclude Black jurors. The selection process will usually disqualify jurors if they have had a negative experience with the police, or have an incarcerated relative, two factors that disproportionately impact Black people, in a state where 52 percent of the jail population is Black.
Extensive research from The Advocate showed that 27 percent of prospective Black jurors have a chance of being disqualified from serving on a jury, compared to 11 percent of white jurors. According to the same study, Black jurors are 2.5 times more likely than white jurors to dissent in split decisions.
Nonunanimous jury verdicts also leave more room for error, because the dissenting minority votes are ignored. "That means that the prosecutors were not meeting their burden of proving their case beyond all reasonable doubts," Snowden says.
The Innocence Project and Amici, nonprofit organizations that help wrongfully convicted inmates argue their case in court, found that 13 of the 56 cases of wrongful conviction in the state of Louisiana were decided by nonunanimous juries. Of these 13 cases, seven took less than a day to be decided.
The case of Curtis Ray Davis II (no relation) is another one. Curtis Davis was convicted of second-degree murder in 1992, and spent 23 years in prison. He devoted his two decades in prison to reading everything he could get his hands on about criminal justice, and nonunanimous jury verdicts. He always maintained his innocence, and finally took a plea deal to a lesser offense to get out of prison. As an ex-convict, he is limited by the 1266 collateral consequences laws that constrain the lives of convicted felons in Louisiana.
Curtis Ray Davis had met Ricky in an Islamic inmates group, and knew him as a quiet man, who stayed out of trouble and mostly kept to himself. One day Ricky approached him asking for help, knowing of Curtis's research into law. He pleaded with Curtis to take a look at his case, and help him appeal. Curtis wrote an article about Ricky's story for the San Francisco Bay View, but didn't have the resources to offer further assistance. Without retroactivity, the chances of Ricky's getting another trial were slim.
"The criminal machine in Louisiana is a weapon against Black people," says Curtis Davis.
In prison, Ricky Davis has been beset by health problems. When he had to have back surgery, instead of being transported back to the prison in a wheelchair-accessible vehicle, he had to lie on his stomach on the front seat of a van. This caused some staples in his back to stretch open. Back at Angola, he was forced to continue cleaning showers, washing pots and pans, and carrying heavy buckets, which caused the pain to increase, according to a class action lawsuit filed in 2015 that Davis was part of.
During the Covid pandemic, several in his dormitory tested positive for the virus. Without access to proper information, he thought that a more healthy diet might help protect him from the virus. He spent the little money his family sent to buy tuna, peanut butter, and other items he considered better than what is served at the prison.
Now, the anguish of spending the rest of his life in this infamous prison has caused Davis's mental health to worsen. He has started to get panic attacks. Most nights, he can't sleep. "Every time I lay down it feels like I can't breathe," he says.
Jeanique Angelain worries about him. "I am happy for the people in the future, but it breaks my heart for Ricky to not have this opportunity," says Angelain, adding, "We have to go back and help people whose rights were taken away."
The last hope for prisoners like Ricky Davis is the upcoming Thedrick Edwards case, which the Supreme Court agreed to hear in May 2020. Edwards was convicted of armed robbery, attempted robbery, aggravated kidnapping, and aggravated rape, and sentenced to life in prison at hard labor, working in the fields of the former plantation of the Angola prison. The verdict came from a nonunanimous jury of 11-1, with the sole Black juror voting to acquit him. His case will be the first to determine the retroactivity of the Ramos decision.
Hillar Moore, the district attorney for East Baton Rouge who prosecuted Davis, has since come out in support of the abolition of the nonunanimous juries law. In an interview with The Advocate, Moore referred to the law's racist roots. "Changing the verdict scheme hopefully will restore some trust and legitimacy in our system and take away some of the criticism of our current jury system," he said. Moore did not respond to a request for comment on whether unanimity should apply retroactively.
Davis is impatiently waiting for the Edwards decision, hoping that he will finally have access to a fair trial. "We will know if Black lives matter in the state of Louisiana when they make a decision on nonunanimous juries and stop a system that has had a negative effect on Black people," he says.