A wood-framed portrait of Ernest Benjamin Kruttschnitt, who led the fight “to perpetuate the supremacy of the Anglo-Saxon race in Louisiana,” hangs prominently outside the entrance to the courtroom of the Louisiana Supreme Court. Kruttschnitt presided over Louisiana’s second Constitutional Convention in 1898 that stole the vote from African Americans and adopted non-unanimous jury verdicts to eliminate any power that one or two blacks who made it onto juries might exercise.
After participating in a temporarily successful effort to overthrow the Republican government in New Orleans and establish a white power government in its place, Kruttschnitt presided over the Constitutional Convention, which he described as “little more than a family meeting of the Democratic party of the State of Louisiana.” The Democrats opposed Reconstruction. Kruttschnitt reminded his fellow delegates: “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.” He vowed to “protect the purity of the ballot box and to perpetuate the supremacy of the Anglo-Saxon race in Louisiana.”
Kruttschnitt’s portrait is a reminder that the distance between the 1898 Louisiana Constitution Convention and the present day administration of justice in the state is not as great as it should be. More than a century after the Convention, black citizens in Louisiana still seek to overcome this discrimination by design in the Louisiana Supreme Court and elsewhere.
Discriminatory Jury Selection
The Louisiana Supreme Court heard argument last May in State v. Dustin Dressner, a death penalty case where the prosecution used 80% of its discretionary challenges to remove African American citizens from the jury. African Americans represent more than a quarter of Jefferson Parish; yet, only one person of color served on Dustin Dressner’s jury. In Batson v. Kentucky, the United States Supreme Court held that lawyers are not permitted to use peremptory challenges to strike jurors on the basis of race. This has been a notoriously difficult rule to police, and by all accounts, race-motivated strikes are alive and well. Tulane University Sociology Professor Joel Devine worked with the Louisiana Capital Assistance Center to analyze the strike patterns of Jefferson Parish Prosecutors across more than 12,000 jurors. The results, published in a study titled “Blackstrikes,” documents a highly significant correlation between race and the State’s use of peremptory challenges.
The Louisiana Supreme Court rejects Batson challenges unless the racial motivation behind the strike is downright obvious. While denying Batson claims in case after case, the Court has reversed in cases of blatant and undeniable discrimination. For example, the Court rejected the State’s assertion that race was not a basis for striking a black juror because he served as a “captain with the fire department in Bossier City, [where he] filed a lawsuit against the city alleging institutional discrimination. … There is a black defendant in this case. There are white victims” State v. Robert Coleman, 970 So. 2d 511 (La. 2007). The Court also found a Batson violation in a capital case from Jefferson Parish, State v. Edward Harris, 820 So. 2d 471 (La. 2002), where the prosecutor confessed that he struck a juror because he was “the only single black male on the panel with no children.”
In 2007, the United States Supreme Court reversed the Louisiana Supreme Court’s affirmation of Allen Snyder’s conviction and death sentence in Snyder v. Louisiana, 28 S. Ct. 1203 (2008). There, the prosecutor used his peremptory strikes against blacks to get an all-white jury and then pleaded with jurors at the penalty phase, after Snyder had been convicted of capital murder, not to let Snyder “get away with it” like O.J. did. Briefing in Snyder described the exclusion of black from jury service in Jefferson Parish, where, in 2002, prosecutors wore ties with nooses on them to the capital trial of Lawrence Jacobs, an African-American murder suspect who was sixteen years old at the time the crime was committed. KKK leader David Duke carried Jefferson Parish in runs for governor and senator and was elected to the state legislature from a district in the Parish. Its sheriff ordered his deputies to stop and question all black people driving “rinky-dink cars” in white neighborhoods. After Hurricane Katrina, armed guards blocked Orleans Parish residents desperately trying to escape the floods from crossing the bridge into Jefferson Parish.
The 1898 Constitution introduced non-unanimous jury verdicts into Louisiana law. Judge John Minor Wisdom recounted the purpose of the 1898 convention, as interpreted through the words of Judge Thomas Semmes, who served as its Chairman of Judiciary Committee: “We (meet) here to establish the supremacy of the white race, and the white race constitutes the Democratic party of this State. The mission was simple: “disfranchise as many Negroes and as few whites as possible.” Non-unanimous continue to serve that mission brilliantly. As the Louisiana Supreme Court explained in State v. Collier, 553 So. 2d 815 (1989), “[b]ecause only ten votes were needed to convict defendant of armed robbery, the prosecutor could have assumed, contrary to Batson’s admonition that it was unacceptable to do so, that all black jurors would vote on the basis of racial bias and then purposefully discriminated by limiting the number of blacks on the jury to two.” United States Supreme Court Justice Potter Stewart put it more directly: “[Ten] jurors can simply ignore the views of their fellow panel members of a different race or class.”Johnson v. Louisiana, 406 U.S. 356 (1972) (Potter, J., dissenting).
This is just what occurred in the case of Corey Miller, who was found guilty of second-degree murder. When the judge asked each juror to confirm his or her vote, nine jurors voted for conviction, two for acquittal, and one for a conviction “under duress.” The judge refused to declare a mistrial, sending the jury back for further deliberation. Three hours later, and after thirteen total hours of deliberation, the jury returned with a 10-2 guilty verdict.
Two weeks later, Mary Jacobs, the juror who switched her vote to guilty, told the Times Picayune that she did not believe the State proved its case, but voted guilty nonetheless under “brutal” pressure from other jurors directed at the dissenting jurors, and one young juror in particular. Jacobs admitted: “They [the other jurors] literally made this 20-year-old girl so violently ill . . . She was shaking so bad. She ran into the bathroom. She was throwing her guts up. She couldn’t function anymore. That’s when I decided, the judge don’t want to listen to me, doesn’t want to listen to us? I told them, ‘You want him to be guilty? He’s guilty, now let’s get the hell out of here.’”
The public reaction to the news centered on the non-unanimous decision rule itself. The New Orleans Time-Picayune ran articles with titles such as, “How [10-2]verdict policy hurts black defendants” and “10-2 jury close enough for Louisiana.” Forty-eight states and the federal system require criminal juries to render unanimous jury verdicts. Louisiana is one of only two jurisdictions in the country that allow less-than-unanimous verdicts in criminal cases. These juries function today exactly how Kruttschnitt would have wished. Three black jurors served on Corey’s jury – two voted to acquit him.
The legacy E.B. Kruttschnitt
The exclusion of blacks from jury service and the dilution of their votes as jurors is the fearsome legacy E.B. Kruttschnitt. Kruttschnitt recognized that the Fifteenth Amendment interfered with his desire for “universal white manhood suffrage and the exclusion from the suffrage of every man with a trace of African blood in his veins.” But not even he could have imagined the level to which he continues to succeed more than a century later.
Racial discrimination in Louisiana is more than the unintended consequence of old-fashion policy. In 2006, white high school students in Louisiana placed a noose in the middle of the schoolyard where black student would find it. Racial tensions at the high school already were high. After white students allegedly hurled racial epithets at black students, a fight broke out, and a white student was kicked and punched by a group of six black students. These black students – a group that included honors students and star athletes – were prosecuted for attempted murder. No charges were pressed against the white students who placed the noose in the yard. The nationwide uprising that ensued in the wake of the perceived inequity led to a 20,000 strong rally in Jena – one of the biggest civil rights movement in years.
The local United States Attorney and the Civil Rights Division of the United States Department of Justice recently secured indictments against seven former New Orleans police officers, alleging that they shot and killed two unarmed black men (and injured four others) on the Danzinger Bridge in the wake of Hurricane Katrina. Last year, a Lieutenant in the New Orleans Police Department pleaded guilty to obstruction of justice charges and admitted to encouraging the police officers that shot the unarmed citizens to fabricate cover stories. These are but two stories in what seems to be a consistent flow of 21st century race discrimination in Louisiana. Racial equality will be achieved in Louisiana only by eliminating non-unanimous jury verdicts and crafting effective mechanisms to eliminate race-motivated jury selection.
Closing the 1898 Constitutional Convention, Kruttschnitt provided solace for those terrified of what the Reconstruction Amendments meant for the supremacy of the white race in Louisiana:
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 that 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.
The question that Kruttschnitt asked more than a century ago is relevant today. Who will take the responsibility of striking down the system?