A new Fault Lines film investigates the racist legacy of non-unanimous juries.
Benton, United States – Mollie Peoples long ago learned to temper her expectations when she approaches the Bossier Parish Courthouse in Benton, Louisiana, where her son, Brandon Jackson, was convicted of armed robbery 24 years ago.
“I hope for the best and expect the worst,” said Mollie on the way to yet another hearing on Thursday afternoon. She’s been to so many hearings in her son’s case over the years that she’s lost count.
On October 21, a judge was set to consider Jackson’s petition for a new trial based on his non-unanimous jury verdict.
Jackson was accused of participating in a 1996 armed robbery of a nearby Applebee’s restaurant. The case against him was based primarily on the testimony of one alleged co-conspirator, who gave conflicting accounts to police and Jackson’s defence lawyer in advance of the trial. There was no physical evidence.
Jackson has always maintained he is innocent, and two of the jurors in his case agreed. An investigation by The Lens, in collaboration with Al Jazeera’s Fault Lines, into Jackson’s case confirmed that both of those jurors were Black. At the time, Louisiana prosecutors only needed 10 guilty votes out of 12 to secure a conviction; Oregon was the only other state to allow split verdicts. He was sentenced to life in prison under the state’s habitual offender law because of prior non-violent drug convictions. Later, that sentence was reduced to 40 years.
The state’s split verdict law was repealed three years ago, and the US Supreme Court ruled non-unanimous verdicts were unconstitutional last year. But Jackson’s guilty verdict is still considered valid, as are hundreds of others from across the state.
Mollie is 74 years old, and suffered a recent heart attack. She is hoping to stay alive long enough to welcome Jackson home from prison, where he has been imprisoned for more than 24 years – nearly half his life.
Jackson appeared in court via video feed from David Wade Correctional Center in Homer, Louisiana, where he is currently imprisoned. Mollie watched the hearing from a wheelchair inside the courtroom. It is the only way she has been able to see Jackson since the COVID pandemic disrupted prison visitation back in March 2020.
By the end of the hearing, neither the best nor the worst played out for Jackson.
Judge Mike Nerren did not deny nor grant his application. Instead, he decided to put off making a decision on Jackson’s request for a new trial, saying he wanted to wait until the Louisiana Supreme Court had weighed in on the issue before making a decision.
“So, in other words, nothing has been accomplished today,” Mollie said outside of the courtroom after the hearing, as Jackson’s lawyers explained the current state of his case. “God knows best, and we just keep praying, and keep coming.”
1,500 still in prison on split verdicts
The lack of resolution in Jackson’s case reflects the current reality for the vast majority of the more than 1,500 people who are still in prison on non-unanimous convictions, as they push for relief following the Supreme Court ruling last year.
In that case — Ramos v Louisiana — the court ruled that the law allowing them was part of broader Jim Crow-era efforts to restrict the rights of Black people in the state. Non-unanimous guilty verdicts, which advocates supporting retrials have dubbed Jim Crow jury convictions, were a way to silence the voices of Black jurors in order to convict more Black defendants. More than 80 percent of people in prison on non-unanimous verdicts, including Jackson, are Black.
A successful 2018 ballot initiative in the state had already repealed the state’s split-jury law, but that applied only to cases initiated in 2019 or later. The Supreme Court ruling in Ramos, on the other hand, applied to some cases that were already decided, but not to people, like Jackson, who had exhausted the criminal appeals process.
In a subsequent ruling earlier this year, in Edwards v Vannoy, the Supreme Court declined to mandate the ruling in Ramos be made fully retroactive, meaning states would not be forced to retry those old cases.
Prosecutors opposing Jackson’s post-conviction application on Thursday made the argument that the Edwards ruling meant that Jackson was not entitled to a new trial. But Nerren pointed out that Edwards did not preclude states from providing relief for prisoners convicted on split-jury verdicts, it just did not require it.
“They didn’t say it’s not retroactive,” Nerren said. “They said at the federal level it’s not retroactive and left it up to each individual state to determine if they would afford defendants more relief. Isn’t that correct?”
Jackson’s lawyer, Claude-Michael Comeau with the Promise of Justice Initiative, said that was in fact correct.
Ruling needed from Louisiana state court
But Nerren said that he felt Jackson’s application was “premature” given that the Louisiana Supreme Court, the highest state court, has not yet ruled on retroactivity.
“I’m inclined not to do anything until the state court decides what direction we’re going as an entire state,” Nerren said. “Mr Jackson, I’m not sure what that is.”
According to Jamila Johnson, a lawyer with the Promise of Justice Initiative (PJI), there are approximately 150 cases that are pending before the Louisiana Supreme Court that address the issue of non-unanimous jury convictions. But so far, the court has not agreed to actually hear any of them.
“The issue is there, it just needs ruling,” Nerren said.
He issued a stay, meaning Jackson’s application will remain open, and set a tentative hearing date of February 3, 2022. By that time, he said, he hoped the Louisiana Supreme Court would make a ruling.
“Hopefully, Mr Jackson — myself, every other judge I know, your attorney, yourself … everybody would love to have answers to this question,” Nerren said. “So hopefully we’ll have that by Feb. 3 when you come back up.”
Nerren said another judge would be presiding over Jackson’s case by that time, and it would be for him to determine whether or not to grant his application for a new trial.
‘One step forward, and one step back’
For Mollie, the non-decision was yet another example of how people with the power to provide relief for Jackson have failed to act following the Supreme Court’s ruling in Ramos.
“We take one step forward, and one step back,” she said. “It’s wearing on me. If it’s wearing on me, I can imagine it’s even worse for him.”
In June 2020, after the Ramos decision but prior to the Edwards decision, former state Supreme Court Chief Justice Bernette Johnson argued that the Louisiana Supreme Court court should move ahead of the United States Supreme Court and grant new trials for people like Jackson.
“The original purpose of the non-unanimous jury law, its continued use, and the disproportionate and detrimental impact it has had on African American citizens for 120 years is Louisiana’s history,” she wrote. “It is time that our state courts – not the United States Supreme Court – decided whether we should address the damage done by our longtime use of an invidious law.”
But the other justices did not agree, and the court declined to take up the issue.
Earlier this year, at the Louisiana State Legislature, advocates pushed to have legislation passed that would grant relief to people still in prison on non-unanimous verdicts. But that legislation was voted down in committee by a party-line vote.
Bossier Parish District Attorney, Schuyler Marvin, has said he is opposed to granting Jackson a new trial, and will not be reviewing non-unanimous convictions.
District attorneys reviewing split jury convictions
A few other district attorneys throughout the state, however, have been more willing to take a look at split jury cases.
If Jackson had been convicted in neighbouring Shreveport, where he grew up, he may have stood a better chance of having his case reviewed. Caddo Parish District Attorney James Stewart has said he will look back at some old non-unanimous jury cases and offer plea deals for reduced sentences to some prisoners.
On Thursday morning, the same day as Jackson’s hearing, lawyers with PJI announced that Stewart had agreed to a plea deal for Darek Hayes, a man convicted by a non-unanimous jury of being a felon in possession of a firearm. Hayes had been sentenced to life in prison in 2008 due to prior non-violent convictions, according to a press release by PJI.
Thursday’s plea deal, however, will allow Hayes to walk out of prison a free man. He is the fifth person out of Caddo Parish to be granted relief based on the fact that his conviction was non-unanimous.
Jackson’s lawyer argues that even if the district attorney in Bossier agreed to vacate the habitual offender bill that enhanced his sentence based on drug charges, it would be enough to get Jackson out of prison. But so far, nothing has been done.
Following the hearing on Thursday, Mollie said that like her, Jackson would likely take the news with a mix of frustration and despair.
“He’s probably going to be a little bit perturbed, as I am,” Mollie said. “Because this is so many times, and nothing really is achieved … But I always tell him, ‘Hope for the best, and accept the worst.’ He knows the game. But it’s a game of people’s lives … It’s his mama’s life.”