FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #49

FROM: CLERK OF SUPREME COURT OF LOUISIANA 

The Opinion(s) handed down on the 19th day of November, 2019, are as follows: 

BY WEIMER, J.: 

2019-KA-00568 

c/w 

2019-KA-00569

STATE OF LOUISIANA VS. VALENTINO ROMAN HODGE (Parish of Sabine) 

This case is before the court on direct appeal from a district court ruling declaring 

unconstitutional the jury verdict regime found in La. Const. art. I, § 17 and La. 

C.Cr.P. art. 782, which allow for verdicts on a vote of ten of twelve jurors for

felonies committed before January 1, 2019. The district court committed the

following two interrelated errors: (i) creating, on that court’s own initiative (sua

sponte), a constitutional challenge to statutory law and to provisions of the

Louisiana Constitution and (ii) striking down the jury verdict regime as

unconstitutional on the basis of an earlier, nonbinding district court holding. Based

on these errors, this court vacates the district court’s ruling and remands for further

proceedings.

VACATED AND REMANDED.

Chief Judge Susan M. Chehardy of the Court of Appeal, Fifth Circuit, appointed as 

Justice pro tempore, sitting for the vacancy in the First District.

Retired Judge James Boddie appointed Justice ad hoc, sitting for Clark, J. 

Johnson, C.J., dissents and assigns reasons.
11/19/2019

SUPREME COURT OF LOUISIANA

NO. 2019-KA-0568 c/w 2019-KA-0569

STATE OF LOUISIANA

VERSUS

VALENTINO RAMON HODGE

ON APPEAL FROM THE 11TH JUDICIAL DISTRICT COURT,

PARISH OF SABINE

WEIMER, Justice.1

This case is before the court on direct appeal from a district court ruling

declaring unconstitutional the jury verdict regime found in La. Const. art. I, § 17 and

La. C.Cr.P. art. 782, which allow for verdicts on a vote of ten of twelve jurors for

felonies committed before January 1, 2019. The district court committed the

following two interrelated errors: (i) creating, on that court’s own initiative (sua

sponte), a constitutional challenge to statutory law and to provisions of the Louisiana

Constitution and (ii) striking down the jury verdict regime as unconstitutional on the

basis of an earlier, nonbinding district court holding. Based on these errors, this court

vacates the district court’s ruling and remands for further proceedings.

BACKGROUND AND PROCEDURAL HISTORY

1 Chief Judge Susan M. Chehardy of the Court of Appeal, Fifth Circuit, assigned as Justice pro

tempore, sitting for the vacancy in the First District; Retired Judge James Boddie Jr., appointed

Justice ad hoc, sitting for Justice Clark.
By separate bills of information, the defendant was charged with one count of

domestic abuse battery by strangulation in the presence of a minor in violation of La.

R.S. 14:35.3(B)(7),(I) and with one count of possession of a firearm by a convicted

felon in violation of La. R.S. 14:95.1. These alleged felony crimes both occurred on

December 5, 2016.

The defendant pleaded not guilty, and the charges were slated for a jury trial.

2

Owing in large measure to the defendant’s vacillation between being represented by

appointed counsel and seeking retained counsel, the trial date was continued several

times.

On January 24, 2019, the state filed a motion in limine seeking to have the

district court declare that the defendant would be tried by a jury composed of twelve

jurors, ten of whom must concur to render a verdict. The next day, without a hearing,

the district court signed an order denying the state’s motion in limine and declaring

that the defendant is entitled to a unanimous jury verdict pursuant to the district

court’s own earlier ruling in State v. Melvin Cartez Maxie, 11

th

Judicial District

Court, No. 13-CR-72522, rendered on October 11, 2018.

In Maxie, decided by the same judge, the district court ruled that the

nonunanimous jury regime ran afoul of the federal constitution’s Equal Protection

Clause. The state appealed, but before the record was lodged in this court, the state

dismissed the appeal, apparently to once again vest the district court with jurisdiction,

based on Mr. Maxie’s intent to submit a guilty plea.3

2 The charges were given separate, consecutive docket numbers in the district court. Although

apparentlynot formallyconsolidated, the cases proceeded simultaneouslywith pleadings and rulings

bearing both docket numbers. Similarly, the cases have been given separate docket numbers in this

court; but for grammatical simplicity, this opinion will refer to these two matters as a single case,

and this court’s analysis and determination apply to both district court cases.

3 Notably, any continued efficacy of the holding of unconstitutionality in Maxie would create its

own challenges because that ruling was appealed, but the defendant subsequently entered into a plea

2
The state appealed the instant case, urging that this court has jurisdiction over

the district court’s declaration of a statute’s unconstitutionality. See La. Const. art.

V, § 5(D), quoted infra.

DISCUSSION

As a preliminary matter, this court is called on to evaluate the very nature of

the district court’s ruling because the state and the defendant differ on its purported

effect. The state argues the ruling is a declaration of unconstitutionality, which in

straightforward fashion renders the ruling susceptible of a direct appeal to this court. 

The defendant argues the ruling is confined to denying the state’s motion in limine

and indicating the defendant is entitled to a unanimous jury verdict for adjudicating

his potential guilt. The after effect of the defendant’s argument is that a direct appeal

to this court is unavailable; any appeal by the state must be taken to the intermediate

court of appeal. The defendant acknowledges, however, that even if a direct appeal

to this court is disallowed, this court has discretion to convert the state’s appeal to a

review under this court’s supervisory jurisdiction.

The position of the state is correct. The district court’s ruling places its prior

decision in Maxie as the ultimate authority on the number of jurors required for a

guilty verdict,

4

notwithstanding that La. Const. art. I, § 17

5

and La. C.Cr.P. art.

bargain. One could reasonably question whether the defendant’s plea vitiated any claim of

unconstitutionality of the nonunanimous jury regime. However, given the ruling in this matter,

which largely turns on this court’s constitutional authority to serve as the final authority on

declarations of unconstitutionality, it is unnecessary to unravel the Gordian knot of procedural

complexity in Maxie.

4 The district court’s ruling recites that “the Defendant is entitled to a unanimous jury verdict

pursuant to this Court’s judgment in State v. Melvin Cartez Maxie, Docket No. 13-CR-72522,

decided and filed on October 11, 2018.”

5

 In pertinent part, La. Const. art. I, § 17(A) provides:

A criminal case in which the punishment may be capital shall be tried before

a jury of twelve persons, all of whom must concur to render a verdict. A case for an

offense committed prior to January 1, 2019, in which the punishment is necessarily

3
782(A)6

explicitly allow for guilty verdicts on a vote of ten of twelve jurors for

felonies committed before January 1, 2019. By subordinating constitutional and

statutory provisions to the district court’s own ruling in Maxie, the district court

essentially ruled Louisiana’s constitutional and statutory provisions are

unconstitutional in reference to the federal constitution. Dispelling any doubt, the

order of appeal notably recites that the district court rendered a “decision that Article

1, § 17 of the Louisiana Constitution of 1974 and Article 782 is facially

unconstitutional,” and “the State’s Motion for Appeal to the Louisiana Supreme Court

is GRANTED.” Thus, the state’s direct appeal to this court is proper. See La. Const.

art. V, § 5(D), quoted infra.

Having determined the district court indeed declared that La. Const. of 1974

art. I, § 17 and La. C.Cr.P. art. 782 are unconstitutional, the next step in the analysis

is guided bya considerable history of Louisiana jurisprudence prohibiting courtsfrom

sua sponte striking down constitutional and statutory law. In State v. Board of

Supervisors, La. State Univ. & Agr. & Mechanical College, 228 La. 951, 84 So.2d

597, 600 (1955), this court held that “all Acts of the Legislature are constitutional

until declared otherwise in proceedings brought contradictorily between interested

persons.” More recently, this court found the principles prohibiting a court from sua

sponte striking down statutory law also prohibit any sua sponte striking down

confinement at hard labor shall be tried before a jury of twelve persons, ten of whom

must concur to render a verdict.

6

 In pertinent part, La. C.Cr.P. art. 782(A) provides:

A case in which punishment may be capital shall be tried by a jury of twelve

jurors, all of whom must concur to render a verdict. A case for an offense committed

prior to January 1, 2019, in which punishment is necessarily confinement at hard

labor shall be tried by a jury composed of twelve jurors, ten of whom must concur

to render a verdict.

4
provisions of the state constitution, inasmuch as “[a] constitutional provision is a

more basic, fundamental provision than a statutory enactment.” State v. Bazile,

11-2201, p. 6 (La. 1/24/12), 85 So.3d 1, 4. In Bazile, this court explained the

prohibition against a court raising a constitutional challenge sua sponte is rooted in

the fact that “judges were charged by their judicial oaths to enforce” the laws as

written. Id., 11-2201 at 5, 85 So.2d at 4 (citing Greater New Orleans Expressway

Com’n v. Olivier, 04-2147, p. 10 (La. 1/19/05), 892 So.2d 570, 577).

Inherent in the defendant’s position, noted earlier, that the district court did not

issue a declaration of unconstitutionality, is that the district court did not do so sua

sponte. This court disagrees with the defendant as to the substance of the district

court’s ruling and further review of the procedural origins of that determination

compels the conclusion that the district court’s ruling was rendered sua sponte. 

While it is true that “there is no single procedure for attacking the constitutionality

of a statute,” this court has identified a typical three-step analysis for a challenger to

carry his burden to prove unconstitutionality. State v. Hatton, 07-2377, p. 14 (La.

7/1/08), 985 So.2d 709, 719. “First, a party must raise the unconstitutionality in the

trial court;second, the unconstitutionality of a statute must be specially pleaded; and

third, the grounds outlining the basis of unconstitutionality must be particularized.” 

Id. Here, it was not the defendant, but the state that raised a question about the

number of jurors necessary to render a guilty verdict. The state sought recognition

of the nonunanimous verdict requirement via a motion in limine, which, consistent

with the state’s present position, did not urge that the nonunanimous verdict

provisions were unconstitutional.

In a more usual case, a determination that the district court erred in creating a

constitutional issue where none was presented might end the analysis of the district

5
court’s ruling. See, e.g., Bazile, supra; Hatton, supra. This is not a usual case. The

substantive reason the district court gave within the ruling itself

7

for finding the

nonunanimous verdict provision unconstitutional was the district court’s earlier

holding in Maxie. For his part, the defendant argues “[t]he district court was entitled

and bound to rule in accordance with its own prior, undisturbed judgment in Maxie.” 

This court disagrees.

Maxie, as noted above, was a district court ruling that the nonunanimous jury

verdict was unconstitutional, pursuant to the federal constitution. The chief obstacle

to applying the holding in Maxie to other cases is the same provision presently

empowering this court to review the declaration of unconstitutionality in this case,

i.e., La. Const. art. V, § 5(D) (“a case shall be appealable to the supreme court if ...

a law or ordinance has been declared unconstitutional.”). Stated simply, if the district

court’s Maxie ruling prevents the district court from reviewing the constitutionality

of nonunanimous verdicts,this court will likewise be prevented fromappellate review

of any evidence and argument on constitutionality.

8 Such a situation would defeat the

authority accorded to this court to serve as the final, statewide authority as to what

laws pass constitutional muster.

7 The district court’s reference to the basis for its ruling of unconstitutionality within the ruling itself

distinguishes this case from Greater New Orleans Expressway Com’n v. Olivier, 02-2795, pp.

3-4 (La. 11/18/03), 860 So.2d 22, 24. In Olivier, this court found it lacked direct appellate

jurisdiction under La. Const. art. V, § 5(D) because only the district court’s reasons for judgment,

not the judgment itself, indicated that the statute at issue was unconstitutional. Id. The distinction

here of the judgment itself declaring laws unconstitutional negates a restrictive observation made in

Olivier that “[a]ppeals are taken from the judgment, not the written reasons for judgment.” Id. at

3, at 24. Formal distinctions aside, it would be nonsensical for this court’s observation in Olivier

to thwart the full exploration of the very basis of this court’s jurisdiction, which is constitutionally

conferred in the present case.

8

In the present case, there was no evidence or argument adduced on the constitutionality of La.

Const. art. I, § 17 and La. C.Cr.P. art. 782.

6
In an analogous criminal case, City of Shreveport v. Baylock, 236 La. 133,

107 So.2d 419 (1958), this court considered whether a district court judge was bound

by a prior declaration of unconstitutionality by another district court judge. Just as

here, the prior declaration of unconstitutionality had not been evaluated on appeal. 

The defendant argued the declaration of unconstitutionality barred his prosecution

under an ordinance that had been declared to be unconstitutional. This court held that

the prior declaration of unconstitutionality by the district court did not bar the

defendant’s prosecution under that ordinance. Id., 107 So.2d at 422.

In Baylock, this court surveyed the jurisprudence of other jurisdictions and

noted a consensus of “holdings ... that a definitive judgment of a tribunal that is not

a court of last resort is conclusive only for the particular case decided and is not

binding in future cases.” Id. at 421. Importantly, this court also reasoned that if the

prior district court judgment of unconstitutionality was binding in a later case, that

would bar “this court on a review of the judgment . . . from later determining the same

constitutional issue.” Id. at 422. Although Baylock was decided under a previous

state constitution, these rationales remain applicable today because the

constitutionally-mandated jurisdictional principlesthen and now are substantially the

same. Compare La. Const. of 1921 art. VII, § 10(2) (1958) (“Cases in which . . . a

law of this state has been declared unconstitutional” are among those that “shall be

appealable to the Supreme Court.”), with La. Const. of 1974 art. V, § 5(D) (“a case

shall be appealable to the supreme court if ... a law or ordinance has been declared

unconstitutional.”).

At this concluding juncture, a longstanding rule–reflecting the primary role of

legislation in the justice system–bearsrepeating: “Statutes are generally presumed to

be constitutional and the party challenging the validity of the statute bearsthe burden

7
of proving it is unconstitutional.” Hatton, 07-2377 at 13, 985 So.2d at 719 (citing

State v. Fleury, 01-0871, p. 5 (La. 10/16/01), 799 So.2d 468, 472; State v. Brenner,

486 So.2d 101, 103 (La. 1986); and State v. Rones, 223 La. 839, 67 So.2d 99, 105

(1953)). Likewise, “[a] constitutional provision begins as a legislative enactment and,

therefore, also requires enforcement by the district court.” Bazile, 11-2201 at 6, 85

So.3d at 4 (citing La. Const. art. XIII, § 1(A) and (C)). Measured by these principles,

the district court’s declaration of unconstitutionality in this case represents two

simultaneous errors: (i) creating, sua sponte, a constitutional challenge to statutory

and constitutional provisions and (ii) striking down those laws as unconstitutional on

the basis of an earlier, nonbinding district court ruling.

DECREE

For the foregoing reasons, the ruling of the district court is hereby vacated and

this matter is remanded to the district court for further proceedings consistent with

this opinion.

VACATED AND REMANDED.

8
1 

11/19/2019

SUPREME COURT OF LOUISIANA

No. 2019-KA-00568

STATE OF LOUISIANA

VS.

VALENTINO RAMON HODGE

ON APPEAL FROM THE 11TH JUDICIAL DISTRICT COURT, 

PARISH OF SABINE

JOHNSON, C.J., dissents and assigns reasons. 

I disagree that the district court created a constitutional issue where none was 

presented. Sua sponte means “without prompting or suggestion; on its own motion.” 

Black’s Law Dictionary (11th ed. 2019). In this case, it was the state—not the court—who 

essentially forced the issue when it filed the motion in limine seeking an answer as to the 

number of jurors necessary to render a guilty verdict. As a result, the district court ruled 

that defendant was entitled to a unanimous jury verdict, effectively taking judicial notice 

of the court’s previous ruling on the constitutionality issue in State v. Maxie, 13-CR-72522, 

11th Judicial District Court, Sabine Parish (October 11, 2018). It is undeniable that the 

adoption of Louisiana’s nonunanimous jury system, currently set forth in La. Const. art. I, 

§ 17 and La. C.Cr. P. art. 782, was motivated by racial bias. In my view, the district court’s

rulings in Maxie and this case, finding Louisiana’s nonunanimous jury scheme violates the 

Equal Protection Clause of the Fourteenth Amendment, are correct. Therefore, I must 

respectfully dissent.

Louisiana is one of only two states, with Oregon being the other, which allows split 

jury verdicts in felony cases. The nonunanimous jury system has undergone constitutional 

challenges as a violation of the Sixth Amendment. In 1972, the United States Supreme 

Court in Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed. 2d 184 (1972), 

effectively ruled in a split decision that the Sixth Amendment requires unanimous verdicts 

in federal courts—but the 14th Amendment does not require unanimous verdicts in state 

courts. This court has relied on Apodaca to continue to uphold the constitutionality of 
2

Louisiana’s system. See State v. Bertrand, 08-2215 (La. 3/17/09), 6 So. 3d 738. Notably, a 

renewed Sixth Amendment challenge to our law is currently pending before the United 

States Supreme Court in Ramos v. Louisiana, 18-5924, 139 S.Ct. 1318, 203 L.Ed. 2d 563 

(2019), wherein the Court is considering whether the Fourteenth Amendment fully 

incorporates the Sixth Amendment guarantee of a unanimous jury verdict in criminal cases.

The issue of nonunanimous juries has gained scholarly attention and discourse because of 

increased public awareness regarding the racist roots of the Louisiana system. Last year 

Louisiana voters approved a constitutional amendment requiring unanimous jury verdicts 

in felony cases. The amendment applies to felony offenses committed on or after January 

1, 2019. See La. Const. art. I, § 17. Thus, the fate of defendants such as Mr. Hodge is still 

in the hands of divided juries as part of a system with racist origins and discriminatory 

effect. In my view, it is time to hold this Jim Crow era law unconstitutional. 

It is unfortunate that this court has chosen not to rule on the merits of the 

constitutional issue due to the majority’s finding of procedural errors. The evidence 

underlying the district court’s ruling demonstrates the law is unconstitutional as a violation 

of the Equal Protection Clause. In determining whether a law violates the Equal Protection 

Clause, the Supreme Court has held there must be proof of racially discriminatory intent 

or purpose in addition to a racially disproportionate impact. See Arlington Heights v. 

Metropolitan Housing Dev. Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 50 L.Ed. 2d 450 

(1977). The documented materials from Louisiana’s 1898 Constitutional Convention leave 

no doubt that the nonunanimous jury verdict system in Louisiana was created for the 

invidious discriminatory purpose of minimizing or canceling out the voting power of black 

jurors and to deny African-Americans meaningful participation in the institution of jury 

service.

The provision permitting nonunanimous felony convictions was adopted during the 

1898 Constitutional Convention and codified as Article 116:

The General Assembly shall provide for the selection of competent and 

intelligent jurors. All cases in which the punishment may not be at hard labor 

shall, until otherwise provided by law, which shall not be prior to 1904, be 

tried by the judge without a jury. Cases in which the punishment may be at 

hard labor shall be tried by a jury of five, all of whom must concur to render 
3

a verdict; cases in which the punishment is necessarily at hard labor, by 

a jury of twelve, nine of whom concurring may render a verdict; cases in 

which the punishment may be capital, by a jury of twelve, all of whom must 

concur to render a verdict.

La. Const. art. 116 (1898) (emphasis added). This provision was approved during a 

convention which celebrated white supremacy. Hon. E.B. Kruttschnitt, President of the 

Convention, opened with the following relevant remarks:

In the first place, my fellow-citizens, we are all aware that this convention 

has been called by the people of the State of Louisiana principally to deal 

with one question, and we know that but for the existence of that one question 

this assemblage would not be sitting here today. We know that this 

convention has been called together by the people of the State to eliminate 

from the electorate the mass of corrupt and illiterate voters who have during 

the last quarter of a century degraded our politics.

***

I believe that our Northern fellow-citizens begin to feel the race sympathy 

stilling within their breasts. They know that the question which we are trying 

to solve here is one which imperils not only the integrity of the future 

government of the State of Louisiana and those of eight or ten other Southern 

States, but that we sitting here as a deliberate assembly, and the assemblies 

of the other Southern States, are to decide whether the presidential office is 

to be put up for barter and sale on account of the irresponsible character of 

the constituency in these Southern States. And of the venality and corruption 

of the delegations which they send to certain national conventions.

Only a few years back, it might have been considered impolite to say what I 

am now saying, but there are men standing high today in the councils of the 

nation, who have seen the doors of the White House barred to them by the 

ignorant and corrupt delegations of Southern negroes, and we know that they 

cannot but feel a sympathy with us in our aspirations and efforts.

Official Journal of the Proceedings of the Constitutional Convention of the State of 

Louisiana (1898), 9-10. The purpose of the convention was further confirmed in closing 

remarks by Judge Thomas J. Seemes, Chairman of the Committee on the Judiciary: 

We met here to establish the supremacy of the white race, and the white race 

constitutes the Democratic party of this State. There is, therefore, in my 

judgment, no separation whatever, between the interests of the State and 

those of the Democratic party, and if we are to be subjected to criticism

because our ordinances may have been colored with the view, in some 

instances, of promoting the interests of the Democratic party, as those 

interests are not separated from the State, I feel no hesitancy in saying that 

we have done no injury to the State.

***

Now then, what have we done? is the question. Our mission was, in the first 

place, to establish the supremacy of the white race in this State to the extent 

to which it could be legally and constitutionally done and what has our 

ordinance on suffrage, the constitutional means by which we propose to 

maintain that ascendency, done? We have established throughout the State 

white manhood suffrage. 
4

Id. at 374-75. Judge Seemes went on to explain the convention delegates established a poll 

tax, an educational test for voters, and the requirement that voters should own property. 

However, the new constitution also provided an exception for white men who were 

“grandfathered,” and they would not be required to satisfy these new voter requirements as 

long as they registered to vote by a particular deadline. Id. at 375.

Moreover, Mr. Kruttschnitt again addressed the convention in closing, making clear 

they would have gone even further in denying and suppressing the rights of AfricanAmericans but were limited by the United States Constitution and federal courts: 

But I say to you, as George D. Tillman said to the South Carolina convention, 

when the labors of that convention were criticized: We have not been free; 

we have not drafted the exact Constitution that we should like to have 

drafted; otherwise we should have inscribed in it, if I know the popular

sentiment of this State, universal white manhood suffrage and the exclusion 

from the suffrage of every man with a trace of African blood in his veins. We 

could not do that, on account of the Fifteenth Amendment to the Constitution 

of the United States and, therefore, we did what has been so well expressed 

by the Supreme Court of Mississippi ...within the field of permissible action, 

under the limitations imposed by the Federal Constitution, the convention 

swept the field of expedients to obstruct the exercise of suffrage by the negro 

race.

***

The first and foremost, and most important, problem which confronted us 

was that of the suffrage.

***

We have placed it within the power of the people of this State to have 

elections as fair and as pure as those in the State of Massachusetts herself; 

and I say to you that we can appeal to the conscience of the nation, both 

judicial and legislative and I don’t believe that they will take the 

responsibility of striking down the system which we have reared in order to 

protect the purity of the ballot box, and to perpetuate the supremacy of the 

Anglo-Saxon race in Louisiana. If they do, theirs be the responsibility for 

bringing back the methods which have prevailed in the past- not ours. We 

have laid them aside. We have reared a perfectly clean structure, and we 

intend to have a clean electorate, if the rest of the nation will allow it, and 

believe that they will.

Our mission was, in the first place, to establish the supremacy of the white 

race in this State.

Id. at 379-81.

This shocking landscape is plainly outlined in the official records of the 1898 

Convention, and has been thoroughly explained and put into context by scholarly experts. 

Such expert testimony is part of the evidence underlying the district court’s declaration of 

unconstitutionality. A review of this underlying evidence is critical to fully explain the 
5

underpinnings of the establishment of the nonunanimous jury system in Louisiana. The 

district court’s ruling was based on its own prior ruling in State v. Maxie, supra. In Maxie, 

the court conducted a full evidentiary hearing on Maxie’s constitutional challenge to the 

nonunanimous jury scheme and issued written reasons for finding a unanimous jury verdict 

is constitutionally required for conviction.1 The parties in Maxie stipulated to certain 

documents to be submitted into evidence, including a certified transcript of a Motions 

Hearing in the matter of State v. Lee, No. 500-034 & 498-666, Criminal District Court, 

Parish of Orleans, 2/3/17, which included testimony from expert witnesses called in that 

matter, namely Professor Emeritus of History Lawrence Powell of Tulane University and 

Professor Kim Taylor-Thompson of New York University. Additionally, the defense called 

three live witnesses: John Simerman of The Advocate newspaper, Professor Thomas Aiello, 

and Professor Thomas Frampton. Mr. Simerman worked with two other individuals to 

develop the investigative series, “Tilting the Scales,” regarding the history of Louisiana’s 

nonunanimous jury verdict system and its pernicious effects on the criminal justice system. 

Mr. Simerman was called to testify as to the methodology of the study and to verify and 

authenticate the data and conclusions as detailed in the published series. Mr. Simerman 

provided a detailed analysis as to the collection methods for the dataset used to calculate 

the impact of a non-unanimous jury verdict scheme on the Louisiana criminal justice 

system.

Professor Thomas Aiello, an associate professor of history and African-American 

studies at Valdosta State University, authored Jim Crow’s Last Stand, a comprehensive

book on the history and context of Louisiana’s majority verdict system. Thomas Aiello, 

Jim Crow’s Last Stand–Nonunanimous Jury Verdicts in Louisiana (Louisiana State 

University Press 2015). Professor Aiello was accepted by the court as an expert historian. 

Professor Aiello’s testimony made clear that following Reconstruction, many in Louisiana 

became increasingly concerned about the ability of African-Americans to exercise 

 

1 Although the Maxie court’s reasons for judgment were not made part of the record in this case, 

that document is included in the Joint Appendix submitted in the United States Supreme Court by 

the parties in Ramos v. Louisiana, No. 18-5924, Joint Appendix, p. 25-83; 

https://www.supremecourt.gov/DocketPDF/18/18-5924/102616/20190611121914120_18-

5924%20Joint%20Appendix%20-%20Final.pdf; 2018 WL 8545357, *24-71.
6

“political and legal power.” One of the key areas where African-Americans were 

participating, outside of voting, was in jury service because the United States Supreme 

Court had held in Strauder v. West Virginia, 100 U.S. 303 (1879), that the Fourteenth 

Amendment prohibited excluding residents from jury duty on the basis of race. 2018 WL 

8545357, at *39. However, the white South pushed back against this and attempted to 

exclude minority members in every conceivable manner. 2018 WL 8545357, at *39.

Professor Aiello testified the general consensus was that African-Americans did not 

deserve to serve on juries in Louisiana, explaining that “[w]hile the end of the Civil War 

did make the slaves free, it did not make them the peers of white people in Southern white 

minds. And if you were supposed to get a fair trial by a jury of your peers, there are a very 

scant few white Southerners in the Gilded Age who saw black jurors as their peers; and it 

was an affront to justice for white people to put black jurors in front of them to decide their 

fate.” 2018 WL 8545357, at *40. Professor Aiello further testified the purpose of the 

Constitutional Convention of 1898 was clear and unequivocal, “to eliminate black political 

power.” 2018 WL 8545357, at *44-45. The Maxie court stated:

Professor Aiello testified as to the historical context surrounding the 

constitutional conventions of both 1898 and 1973. He provided a detailed 

analysis of the prevailing sentiments and feelings of the delegates at the 

conventions and the general societal beliefs during these periods of time. His 

testimony persuasively demonstrated that race was a motivating factor 

behind the adoption of the 1898 constitution, especially with respect to 

disenfranchisement of minority voters and stripping the ability of minorities 

to influence the judicial system. His testimony also persuasively showed that 

the 1973 convention was not free from racial consideration and that the 

delegates at the convention were keenly aware of the racial tensions when 

drafting the new constitution. His testimony provides the historical basis for 

this Court’s determination that the non-unanimous jury verdict scheme in 

Louisiana was motivated by invidious racial discrimination.

2018 WL 8545357, at *37-38.

Professor Thomas Frampton, lecturer at Harvard University on staff as a Climenko 

Fellow, with a B.A. and M.A. from Yale University, summa cum laude, and a J.D., with 

highest honors, from Berkeley School of Law, was proffered and accepted by the court as 

an expert lawyer, with a specialty in legal history, race, and the law. Professor Frampton 

endorsed Professor Aiello’s testimony and concurred with his conclusions and analysis.

2018 WL 8545357, at *48-49. Professor Frampton was retained as an expert to perform 
7

an independent empirical analysis of the data collected by Mr. Simerman for The Advocate

series. He performed his own data analysis to verify the results as presented were accurate. 

He also performed empirical analysis of the data according to Supreme Court precedent 

with respect to disparate impact and proving unconstitutional racial discrimination. 2018 

WL 8545357, at *49. Based on his empirical analyses of the data, it was his expert opinion 

that “the non-unanimous jury verdict system operated today just as it was intended in 1898: 

to silence African-Americans on juries and to render their jury service meaningless.” 2018 

WL 8545357, at *52. Professor Frampton explained that he performed his analysis in the 

context of the literature pioneered by Dr. Kim Taylor-Thompson on “empty votes.” Dr. 

Taylor-Thompson defined “empty votes” as “those cast by the minority in a super-majority 

regime. These votes are essentially meaningless because a majority can come to the 

conclusion without discussion or inclusion of the minority point of view.” 2018 WL 

8545357, at *50 n. 1. Dr. Frampton’s data analysis revealed that “only 43 percent of empty 

votes are cast by white jurors. This represents a 21 percent absolute disparity, or 21 percent 

less than what would be expected if there were nothing else operating on the outcome. 

African-American votes represented 31.3 percent of overall votes cast, but represented 51.2 

percent of the empty votes cast. This is an absolute disparity of 20 percent.” 2018 WL 

8545357, at *51. Further, given the data provided by The Advocate, Dr. Frampton 

concluded that these disparities cannot be explained from random variation in the data and 

that these findings are statistically significant under Supreme Court precedent in the racediscrimination context. 2018 WL 8545357, at *51-52. 

Professor Frampton also examined the data with respect to the impact on defendant 

as opposed to juror representation. The data revealed that “African-American defendants 

are convicted by non-unanimous juries 43 percent of the time and that white defendants 

are convicted by non-unanimous juries 33 percent of the time. Comparing these rates of 

conviction by non-unanimous verdicts, Professor Frampton found a disparity of 

approximately 30 percent. That is, African-Americans are 30 percent more likely to be 

convicted by non-unanimous juries than white defendants. These results were statistically 

significant and indicated racial discrimination against African-American defendants.”
8

2018 WL 8545357, at *52-53. Professor Frampton further opined that “jury deliberations 

tend to be less robust and shorter when non-unanimous verdict rules are in place. That is, 

once the minimum number of votes are achieved, deliberations end, regardless of the desire 

of the minority to continue deliberating.” 2018 WL 8545357, at *53.

The evidence and expert testimony proves that the motivating factor behind the 

Constitutional Convention of 1898 was to establish white supremacy throughout the State 

of Louisiana. As noted by the Maxie court, “the leaders of the convention openly and on 

the record endorsed racial discrimination and white supremacy as the goal and the outcome 

of the Convention.” 2018 WL 8545357, at *58. The evidence submitted in Maxie further 

proves that the current law is also unconstitutional as applied. Although the law has 

minimally changed since the 1898 Constitution, and now requires ten jurors to agree, rather 

than the original nine juror requirement, this change did not eliminate the discriminatory

impact of non-unanimous jury verdicts. The current law is still traceable to the original 

system and still has discriminatory effects. See United States v. Fordice, 505 U.S. 717, 734, 

112 S. Ct. 2727, 120 L.Ed. 2d 575 (1992). As found by the Maxie court, “the 1974 provision 

is rooted in and fairly traceable to the provisions of the 1898, 1913, and 1921 constitutions 

allowing for non-unanimous verdicts. It has already been conclusively established that the 

1898 provision is unconstitutional under the Arlington Heights...jurisprudence. It is also 

the undisputed expert testimony of Professor Aiello that the provisions in 1913 and 1921 

were reenacted without debate or comment.” 2018 WL 8545357, at *62. The court further 

cited Professor Aiello’s testimony that the final outcome of the 1973 Constitutional 

Convention was to compromise and keep the unanimity requirement only as to capital cases 

and to increase the rule to 10-to-2. The 1973 Convention wanted to decrease, but not 

eliminate, the discriminatory impact of non-unanimous jury verdicts. Both Mr. Simerman 

and Professor Frampton testified regarding the disparate impact on African-Americans that 

stem from the current non-unanimous verdict rule, and both indicated that the empirical 

analyses they conducted showed statistically significant results that demonstrate disparate 

impacts. 2018 WL 8545357, at *63.
9

In written reasons for judgment, the Maxie court detailed the unopposed and 

unchallenged evidence produced at the hearing and concluded: 

The evidence, unopposed and unchallenged by the State establishes the 

following: 1) The original 1898 enactment was motivated by invidious racial 

discrimination; 2) The enactment of 1973 perpetuates the disparate impact of 

the 1898 provision; 3) The delegates at the Convention of 1973 did not 

cleanse the racial motivation from 1898; 4) The delegates at the Convention 

of 1973 at the very least tacitly acknowledged the discriminatory impact of 

the 1898 provision and merely attempted to ameliorate, but not cure, this 

disparate impact; 5) The current provision perpetuates invidious racial 

discrimination; and 6) The current non-unanimous jury verdict scheme 

disparately affects African-American jurors by negating their jury service 

and disparately affecting African-American defendants by overwhelmingly 

convicting them by non-unanimous juries.

2018 WL 8545357, at *71. This evidence compels a finding that Louisiana’s nonunanimous jury scheme violates the Equal Protection Clause of the Fourteenth

Amendment.

Although the majority of this court does not decide the constitutional issue today, 

we should not ignore the shameful history surrounding our system, nor shy away from 

forcing its end. “The history of nonunanimous criminal jury verdicts acts as its own 

advocate for ending the practice.” Aiello, supra, at p. xi.