A ‘Jim Crow jury’ prisoner fights for freedom

Brandon Jackson is one of more than 1,500 people imprisoned in Louisiana on non-unanimous verdicts, which the United States Supreme Court ruled unconstitutional last year. Will he get a chance at freedom?

Jim Crow jury verdicts 1 [Holli Glasson/Al Jazeera]
In 1997, Brandon Jackson was convicted of participating in an armed robbery by a split jury - two jurors voted not guilty while 10 voted guilty [Holli Glasson/Al Jazeera]

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New Orleans, Louisiana — The Bossier Parish Courthouse is located in the town of Benton in northwest Louisiana, about a 30-minute drive across and then up the east bank of the Red River from Mollie Peoples’s home in Shreveport, the former Confederate capital of the state.

It is where her son, Brandon Jackson, was convicted of participating in an armed robbery and sentenced to life in prison nearly 25 years ago. Now, each trip to the squat, beige building, flanked by gas stations and fast-food restaurants, has come to represent her enduring commitment to him and his struggle for freedom. In that quarter of a century, she hasn’t missed a court date.

“I want him to know that he’s worthy,” she explained recently. “No matter how long he’s going to be in prison, or whatever is going to happen — he would never be forgotten. His momma will never, ever forget him.”

Sometimes, a hearing gets delayed. Mollie will drive home, wait for another hearing, then drive back again to the courtroom. In the past, she was able to see her son face-to-face when she went there. Now, because of COVID-19, she wears a mask, and he appears on a screen from the David Wade Correctional Center, a state prison more than an hour away.

In July, she made the trip again, rattling off the directions she knows so well to a reporter in the driver’s seat. Another hearing was scheduled.

Brandon says he is innocent of robbing a restaurant at gunpoint, along with an accomplice, and taking more than $6,000 in cash. At his trial, two of the 12 jurors who heard the evidence against him agreed. After deliberation, they voted not guilty.

It didn’t matter. In Louisiana at the time, only 10 out of 12 jurors were required to agree on a verdict in order to convict or acquit someone of a crime. It was one of only two states in the country — along with Oregon — where non-unanimous verdicts were allowed. That has changed, and if Brandon were brought up on the same charges today, the split jury vote would mean a mistrial.

But in 1997, it meant a conviction.

Brandon, who had prior drug convictions, was sentenced to life in prison under the state’s habitual offender law. The sentence was later reduced to 40 years.

Mollie is in her 70s now, and her health has made these frequent courthouse trips more challenging. In January, not long after Brandon learned he had been denied parole, she suffered an aortic aneurysm, requiring serious surgery. She now uses a walker to get around and is prescribed a wide range of medications she takes daily. She keeps up with the regimen in the hope that she will still be around when, someday, her son walks out of prison a free man.

Jim Crow jury verdicts 3 [Holli Glasson/Al Jazeera]
At the time of Brandon’s sentencing, just two states, Louisiana and Oregon, allowed non-unanimous jury verdicts. The law has since changed, and a split jury vote today would mean a mistrial [Holli Glasson/Al Jazeera]

Ruled unconstitutional

Over the past few years, Mollie has had reason to hope that day may come sooner rather than later, as the state of Louisiana, and the country as a whole, have taken a critical look at the history and practice of non-unanimous jury verdicts.

In May 2018, following a Pulitzer Prize-winning investigation into split jury verdicts by The Advocate and The Times-Picayune, the Louisiana legislature moved to put the issue on the ballot: a constitutional amendment that would require unanimous verdicts going forward. That November, Louisiana voters overwhelmingly approved the change.

But it would only apply to cases initiated on or after January 1, 2019, more than twenty years after Brandon, now 49, was arrested.

Then last year, in a case called Ramos v. Louisiana, the United States Supreme Court held that the law allowing split jury conviction was “one pillar of a comprehensive and brutal program of racist Jim Crow measures against African Americans, especially in voting and jury service,” and was unconstitutional.

That ruling, however, only applied to people who still were in the appeals process. Brandon had exhausted his appeals before the Ramos decision, so he — along with at least 1,500 people in Louisiana who were convicted on split-jury verdicts — remains in prison.

Earlier this year, the Supreme Court issued a new ruling on non-unanimous verdicts. It was another Louisiana case: Edwards v. Vannoy. This time, the majority found that despite finding that the practice was unconstitutional a year before, the court would not force states to give new trials to people like Brandon.

To Brandon, there was dissonance in the two rulings. How could the court rule that the practise was unconstitutional, but not require states to revisit those cases that were impacted by it?

“You have a law that you rule and that, you know, that’s [ruled] unconstitutional,” Brandon said in a recent interview. “But, from my understanding, we are all under the same Constitution. So you are saying that the Constitution only applies to this part, but not this part.”

Lawyers are still fighting in the state court system and in the Louisiana legislature to get new trials for people like Brandon. They say that by lowering the bar for a conviction, non-unanimous verdicts were more likely to result in innocent people being sent to prison. They also point to the racist origins of the law, which they say was intended to silence the voices of Black jurors, and convict Black defendants.

Brandon’s case, his lawyers say, is a prime example. At his trial, nearly 100 years after the law allowing split verdicts was first written into Louisiana’s constitution, the two jurors who voted not guilty were Black. And like 80 percent of people still imprisoned on non-unanimous verdicts, Brandon Jackson is Black.

While the newer Supreme Court ruling in the Edwards case dampened his hopes for relief, there was still a chance that Bossier Parish District Attorney Schuyler Marvin could decide to vacate his conviction based on the Supreme Court’s ruling in Ramos. Alternatively, the district judge could decide that because Brandon had a non-unanimous conviction, he was entitled to a new trial.

Following the Supreme Court’s decision in Ramos, Brandon, along with hundreds of other people still in prison on split-jury verdicts, rushed to file petitions for new trials.

That request was what the judge would be considering when Mollie prepared to make yet another trip to the Bossier Parish Courthouse in July.

She stepped into the car, placed her purse and the shoes she would change into when she got there on the floor in front of her, and said a quick prayer.

“Amen,” she concluded. “Let’s roll.”

Jim Crow jury verdicts 2 [Holli Glasson/Al Jazeera]
The Jim Crow era law that allowed for split jury verdicts silenced Black jurors and convicted more Black people, according to those advocating for people jailed under such verdicts [Holli Glasson/Al Jazeera]

Jim Crow verdicts

In 1898, delegates in Louisiana convened at a state constitutional convention with an explicit goal, written in the official journal of the proceedings: to “reestablish the supremacy of the white race”.

When the convention delegates met that year, Black men had recently been given the rights of citizenship: the right to vote, the right to hold public office and the right to be judged by a jury of their peers — including their Black peers.

A backlash to racial advancement during post-Civil War Reconstruction, the convention produced laws that became staples of the Jim Crow era South, including poll taxes and literacy tests for voting.

The convention also made a specific change to the way criminal trials were conducted in the state, allowing for split jury verdicts in felony trials, where a defendant could be convicted with nine of 12 jurors. A later convention, in 1974, changed the law to require 10 jurors to agree.

“It’s impossible to separate Jim Crow jury convictions from their history,” said Jamila Johnson, managing attorney for the Jim Crow Juries Project with the Promise of Justice Initiative (PJI). “Their intent was to convict more Black people and to silence the voices of Black jurors. In practice, they convicted more Black people and have disproportionately silenced Black jurors.”

Brandon’s petition for a new trial is one of more than a thousand being handled by PJI, a New Orleans-based nonprofit that has been among the state’s most visible advocacy organisations for people still in prison on split-jury verdicts — both in the courts and at the state legislature.

At the centre of their case for demanding new trials for people still in prison on non-unanimous convictions is the history of the law that allowed for split-jury verdicts. The organisation has dubbed such guilty verdicts “Jim Crow jury convictions”.

The limited available data on the issues bears out Johnson’s conclusion about the effects of the law. The Pulitzer Prize-winning series by The Advocate in 2018 analysing hundreds of non-unanimous verdicts between 2011 and 2016 showed that Black defendants were more likely to be convicted by a non-unanimous jury than white defendants, and that Black jurors were more than twice as likely to disagree with the majority verdict than white jurors.

If Brandon Jackson wasn’t given a new trial, his lawyers with PJI argued in his petition, it “would express acquiescence in structural racism”.

The state could not prohibit Black jurors from serving altogether without running afoul of the US Constitution. It could, however, allow for the appointment of local jury commissioners who would limit their number by making determinations on who was “qualified”. And for those who still made it to service, split jury laws could make their votes irrelevant.

The delegates of the 1898 convention did not explicitly state any racist intent when agreeing on the non-unanimous jury law, but legal scholars have argued that was to deter federal intervention, and that the purpose could be clearly deduced given their broader political goals of disenfranchising Black people.

Supreme Court Justice Neil Gorsuch agreed with that analysis, writing in the majority opinion in Ramos that “with a careful eye on racial demographics, the convention delegates sculpted a ‘facially race-neutral’ rule permitting 10-to-2 verdicts in order ‘to ensure that African-American juror service would be meaningless.’”

While the 1898 Louisiana constitutional convention enshrined the non-unanimous jury law into the state’s constitution, split juries had been part of statutory law since 1880. Historians have also argued that by lowering the bar to prove someone’s guilt, split-jury verdicts acted as a means of providing more labour for the brutal convict leasing system that existed in the final decades of the nineteenth century.

It is impossible to say how many people were convicted by split juries in Louisiana because courts did not consistently maintain records of how jurors voted.

“There was no requirement that juries be polled unless defence counsel or the prosecution asked for polling,” Johnson with PJI said. “So in many cases, that never happened, and we’ll never know.”

Jim Crow jury verdicts 4 [Holli Glasson/Al Jazeera]
Split jury verdicts have likely led to inaccurate convictions and the imprisonment of innocent women and men, according to lawyers [Holli Glasson/Al Jazeera]

‘There are serious doubts as to guilt’

The crime that Brandon was convicted for occurred on July 17, 1996, at approximately 2:15am local time. Two masked men with guns entered the back door of the Applebee’s restaurant in Bossier Parish, located between Mollie’s house and the courthouse in Benton. They tied up the manager and two employees and robbed the store of more than $6,000 in cash and $2,500 in gift cards. Nobody was injured.

“What sticks out with Brandon’s case as what sticks out with so many of the men and women’s cases that we have with non-unanimous jury verdicts … it’s that there are serious doubts as to guilt. The accuracy of these convictions are really in doubt,” Johnson said.

There was no physical evidence that tied Brandon Jackson to the crime he was convicted of. The prosecutor’s argument during trial rested primarily on the testimony of an alleged co-conspirator. Another witness, who was not alleged to have taken part in the robbery, said he overheard a discussion Brandon had been involved in about the robbery weeks before it took place.

One of the employees at the Applebee’s that night was Joseph Young, who was dating Brandon’s sister at the time. Initially, when interviewed by police, Young claimed that he was unable to identify either of the perpetrators due to their masks. But later into the investigation, he changed his story, telling law enforcement that he had in fact been a co-conspirator in the crime, letting the perpetrators in the back door.

Young led police to his mother’s house, where he showed them the guns that were allegedly used in the crime, along with more than $500 in cash he said he got for facilitating the robbery.

He also told them Brandon Jackson had been one of the men who had carried it out.

It was one of several times Young would change his story. Al Jazeera and The Lens obtained a videotaped recording of Young that was taken in August 1996, prior to Brandon’s trial, but after Young had implicated him in the crime. In the video, Young tells Brandon’s lawyer that neither of the men who robbed the Applebee’s matched Brandon’s build and that he didn’t know who they were. The tape, however, was withheld from the jury because the judge ruled that it would violate attorney-client privilege — despite the fact that Brandon’s lawyer never represented Young in the case.

Young also had an incentive to testify against Brandon. In exchange for cooperating with the prosecution, Young served just three months in jail and was placed on probation.

The testimony of Ken Fuller, who told police he overheard the conversation between Brandon, Brandon’s brother, and Young, regarding the robbery before it took place, also had some issues.

Fuller had been smoking weed with Brandon’s brother that day, and when asked by prosecutors at trial what role Brandon played in the conversation, he said: “It was so much going on I just couldn’t really tell.” Brandon’s brother told police that there had been talk about how easy it would be to rob the Applebee’s, but he said it grew out of a conversation between the friends about the 1995 movie “Dead Presidents”, about a Vietnam War veteran who returns home and turns to crime.

The evidence, it seems, was not enough for the two jurors who voted not to convict Brandon.

Watch Fault Lines – The Jim Crow Convictions:

The jurors

Al Jazeera and The Lens were able to track down one of those Black jurors and spoke with her on the condition of anonymity. She said that her vote that day was based on lack of evidence.

“When they presented the case, and when we deliberated, I was not convinced that it was proven that he was guilty,” she said. “No one was able to say that they knew it was Brandon, they recognised him, that they knew his mannerisms — no one was able to say enough to convince me that they were sure that it was him that committed the robbery.”

She said that when she made her doubt about Brandon’s guilt known to the rest of the jurors, it was “blown down”.

“I mean, they dismissed it,” she said.

Her decision to remain anonymous, she said, was because it could have a “negative effect” on her employment.

“I wouldn’t want it to get back to my bosses,” she said. “Because they think a lot like the people on the jury did: ‘He’s a criminal, let’s get him off the street. Let’s lock him up … Or maybe, even, he’s a Black man, let’s lock him up.’”

Juror Stacey Marks, who is white, said the witness testimony was only part of what prompted her vote to convict — a decision that she still has no doubts about. One reason, she told Al Jazeera and The Lens in an interview, had to do with the way Brandon handled himself during the trial.

She said that she felt Brandon was “overconfident”.

“Something about his demeanour, like he was trying to win us over to his side with his smile,” she said. “He made a lot of eye contact.”

Brandon, however, said that he had just been doing what his lawyer, Dan Keele, instructed him to do.

“He said always give the jury eye contact,” Brandon said. “So if she based her decision on the way that I look, what does that say about the type of world that we live in?”

Marks also said that the fact that the two jurors who voted not guilty were Black did not make her question the verdict in Brandon’s case, because it was possible that they were only dissenting because Brandon was Black himself.

“It does not make me think differently, because did they vote for him not to be guilty because he was Black or did they vote for him not to be guilty because of the facts?” she said. “And we don’t know. I don’t know.”

However, the Black juror who spoke with The Lens and Al Jazeera denied that she had dissented because of Brandon’s race.

Brandon is due to turn 50 this year, and in the nearly 25 years he has been in jail, his mother Mollie has never missed a court date [Photo courtesy of Mollie Peoples]

‘You can’t eliminate the racial element’

When the US Supreme Court ruled in the Edwards case that people like Brandon were not entitled to a new trial, it was not entirely unexpected, and advocates had already been thinking of a backup plan. In addition to filing individual petitions for new trials in courts across the state, they were also pushing a bill at the Louisiana state legislature in Baton Rouge that would change procedural timelines so that anyone with a split jury conviction would get a new trial. That bill got a hearing in the House Committee on the Judiciary in May of 2021.

The main opposition to the bill stemmed from the Louisiana District Attorneys Association, which represents the elected prosecutors throughout the state. If the bill passed, they argued, it would place an undue burden on local district attorneys (DAs) who would need to review the cases and decide whether they would retry them. They also said they were concerned about the potentially painful effect of reopening cases with 10-2 verdicts on the victims and their families in those cases, along with the logistical difficulties involved with retrying them.

But at the committee hearing on May 27, no one from the DA’s association, nor anyone else, showed up to express those concerns. Instead, there was more than an hour of emotional testimony on the racist history of non-unanimous jury verdicts and their unreliability in determining guilt.

Brandon, as he had with the Supreme Court ruling in Edwards, waited to learn of the outcomes from inside David Wade Correctional Center in Claiborne Parish. And as with the Edwards ruling, he would be disappointed.

While none of the Republican legislators expressed their reasoning at the hearing, one by one they voted to kill the bill, which failed on party lines. The majority of the Democratic legislators who voted for it were Black. All of the Republicans who voted against were white.

When asked why he voted against the bill, Representative Nicky Muscarello, Republican of Hammond, Louisiana, pointed to the Supreme Court ruling in Edwards.

“I feel pretty confident in my vote because the Supreme Court said that the way we did it was correct,” Muscarello said. “That we can make it prospective — so that’s been to the Supreme Court and they said they’ve agreed with the way we did it.”

Despite the law’s origin, he said that his decision didn’t have anything to do with race.

“I don’t look at it from a racial lens,” he said. “What we did was not about race. It was about doing what was right.”

But other legislators who watched the bill’s demise disagreed with Muscarello that the decision could be divorced from the issue of race.

“There are no Black Republicans here, right?” said Ted James, a Baton Rouge Democrat who was instrumental in passing the 2018 bill that sent the decision on unanimity in future criminal cases to the voters. “So when they know that the people that this would benefit don’t look like them, likely didn’t grow up in their neighbourhoods, likely don’t know anyone that could contact them, they don’t care about it.”

That, James said, was why white Republicans in the legislature didn’t believe it was necessary to expand the unanimity requirement to old cases like Brandon’s.

“So you can’t eliminate the racial element, because I would guarantee you if 80 percent of the folks that we were talking about were white, the bill would have passed. Period.”

Despite the inaction from the United States Supreme Court and the state legislature, one local district attorney has promised to look back at all non-unanimous convictions out of his district. In New Orleans, shortly after taking office this year, Jason Williams vacated 22 convictions of people in prison on split-jury verdicts, and ended up striking plea deals with many defendants that allowed them to get out of prison.

But so far, other prosecutors in the state have not followed Williams’ lead. That includes the Bossier Parish DA’s office, which prosecuted Brandon’s case.

Brandon and Mollie haven’t seen one another in person since February 16, 2019, when this picture was taken. In January, after finding out Brandon was denied parole, Mollie suffered an aortic aneurysm. She hopes to live long enough to see him as a free man [Photo courtesy of Mollie Peoples]

‘At this rate, I’m not going to make it’

After some technical difficulties were taken care of by court staff, Brandon appeared on a video conference screen in the Bossier Parish courtroom where Mollie Peoples had been waiting for more than an hour for the judge to make a decision on his petition for a retrial. But instead, after some discussions with the lawyers, he put the decision off until a future date, giving prosecutors more time to respond.

“It’s like we’re in a holding pattern,” Mollie said outside of the courthouse. “They just don’t want to turn him loose.”

Weeks later, after suggesting to Al Jazeera and The Lens that he would look into the case, Bossier Parish district attorney Schuyler Marvin sent a letter in August stating that he would not support a new trial for Brandon as there was “ample evidence to support the conviction”.

“It is impossible to speculate with any degree of certainty whether or not Mr. Jackson’s verdict would have been any different if the jury had been charged with unanimity,” Marvin wrote. “My office will not vacate and retry convictions solely because of a non-unanimous verdict.”

Since then, prosecutors have filed a formal objection to Brandon’s petition. Brandon’s attorneys are working to set another hearing in October.

For Mollie, however, every delay increases her doubt that she will ever be able to see her son again as a free man.

“I don’t have long,” she said. “I asked God to allow me to live long enough to see him go free. But at this rate, I’m not going to make it.”

This story was produced in partnership with The Lens.

Source: Al Jazeera