Two Jurors Voted to Acquit. He Was Convicted of Murder Anyway.

I.

When Mi Wha Morrison sat on the jury of a murder trial, in February 2011, the testimony that mattered most came from the prosecution’s single eyewitness, Emma Bourgoyne. The jurors listened to Bourgoyne say she was sitting in the passenger seat of a car her husband was driving, on a November day nearly seven years earlier, when the couple stopped at a red light near a highway exit in New Orleans. Bourgoyne noticed three men chatting by a curb outside an Exxon Station, their motorcycles parked nearby. All of a sudden, a fourth man came up behind them, Bourgoyne said. He raised his hand and fired a gun. “The man in the middle fell over,” she told the jury.

In the courtroom, the prosecutor asked Bourgoyne if she saw the shooter, who ran off after the killing. “He’s the gentleman sitting in the white-and-black plaid shirt over at that table,” she said, shaking with emotion and pointing to the defendant, Michael Shannon. Bourgoyne said she picked Shannon’s photo out of a lineup nearly six months after the murder. She was “a hundred percent sure” she had the right man.

But Morrison, who worked as a teacher, was surprised to hear Bourgoyne, who was in her 60s, say she’d seen the shooter for only 15 to 20 seconds — and to hear that she told a prosecutor after the murder that she hadn’t been wearing her glasses. Morrison thought about whether she’d be able to identify a person she’d seen briefly, from inside a car, six months after the fact. She was 34 and had perfect vision. It seemed like a stretch.

On cross-examination, Bourgoyne admitted that she told the police the shooter was about six feet tall and stocky, with a neck like a football player. When Shannon stood up, Morrison saw that he was at least six inches shorter, at 5 foot 6, and slight of build. It mattered to her too that Shannon was black and Bourgoyne was white. (Research shows that it’s harder for witnesses to identify people of a different race.)

Morrison wanted to hear from other eyewitnesses to the killing. Earlier in the trial, the homicide detective who investigated the shooting testified that he’d interviewed the two men standing next to the victim, a 46-year-old named Ralph Cole, and four additional people who were nearby when the shooting took place. But when Bourgoyne finished testifying, the prosecution rested. Shannon’s lawyer called no witnesses. The trial ended after only about five hours.

Mi Wha Morrison, one of the two dissenting jurors, with Shannon.

On her way to deliberate with the other jurors, Morrison thought they would easily agree: There wasn’t enough proof to send Michael Shannon to prison. But in the room, Morrison says, the foreman, who was white, took charge and argued strongly for a guilty verdict. As Morrison remembers it, the conversation veered from the facts of the case to the spike in crime in New Orleans after Hurricane Katrina. The storm hit the city in August 2005, nine months after Cole’s murder, and its only bearing on the trial was the yearslong delay the storm caused. But as the jurors ­talked about Ralph Cole’s killing — his mother had described him working three jobs and raising a 6-year-old son with his wife — they began bringing up other crime victims they knew, as if they were somehow relevant to the guilt or innocence of Michael Shannon. (Other jurors couldn’t remember specific details or couldn’t be reached.)

When Morrison expressed her doubts about Bourgoyne’s identification of Shannon, an African-American woman on the jury agreed that the evidence was not strong enough, according to Morrison. But a second black woman was “adamant about Shannon’s guilt,” Morrison told me, remembering her saying, “If the prosecutor said he should be off the streets, then we needed to put him away.’’ Morrison continued, ‘‘I felt like they were bringing in these outside frustrations without looking much at the facts of this particular case.”

After about half an hour of deliberation, Morrison recalled, the foreman went around the table. Ten members of the jury agreed to find Shannon guilty of second-degree murder. Morrison and her ally stood their ground. In almost any other state, the jurors would have continued to deliberate. If they truly couldn’t agree, the case would have ended in a mistrial, because only a unanimous jury would have the power to convict. But in Louisiana in 2011, a vote of 10 to 2 (or 11 to 1) was enough.

When the judge praised the two prosecutors for “one of the quickest homicide cases I’ve had,” Morrison felt a surge of anger. Afterward, whenever she drove by the corner where Ralph Cole was killed, she was haunted by the photographs she’d seen of his body lying on the ground. From time to time, she also thought about how thwarted she felt in the jury room.

Last October, the Supreme Court heard arguments about whether split verdicts like the one in Shannon’s case violate the Constitution, and its decision is expected in the coming weeks or months. If the justices end the practice, they will finally close a chapter in American jurisprudence, in which two states — because of laws based in discrimination — have for decades been allowed to disregard a fundamental premise of our legal system. A result, for some defendants like Shannon, has been years behind bars for crimes they didn’t commit. And for jurors like Morrison, forced to stand by as convictions take place over their serious objections, a result has been a feeling of powerlessness — as if justice had been denied not merely to the defendants but, in a sense, to them too.

II.

In England, the birthplace of the modern jury, the need for unanimous verdicts was established in 1367, when a court refused to accept an 11-to-1 guilty vote, after one juror said he’d rather die in prison than consent to convict. The practice spread to the American colonies along with many other elements of British common law. The Constitution provided for the right to trial by jury in the Sixth Amendment. The text uses the word “impartial,” not “unanimous,” but judges of the founding era commonly issued instructions saying that unanimity was part of the jury right, and commentators agreed. “It is the unanimity of the jury that preserves the rights of mankind,” John Adams, the future president, wrote in 1786. In a line of cases from 1898 to 1948, the Supreme Court said that the Sixth Amendment required unanimous verdicts.

In many countries, judges, not juries, decide a defendant’s guilt. Others — France, Italy and Japan, for example — rely on a mixed group of laypeople and judges to deliver a verdict, without requiring consensus. But these are countries in which prosecutors play a more neutral fact-finding role. In the United States and Canada, the unanimous jury, like the high bar of proof beyond a reasonable doubt, remains a bulwark against state power and the risk of convicting the innocent. It also helps ensure that the jury represents a cross-section of the community: If every vote counts, then the majority can’t ignore the minority.

Louisiana and Oregon are the only states (along with Puerto Rico) that have deviated from unanimous jury convictions. In Louisiana, black people began to serve on juries during Reconstruction, when they won the right to vote. The first introduction of split verdicts in the state was in 1880, after Reconstruction ended, as part of a movement of white Southerners to re-establish their supremacy. A trial of a black person with ‘‘Negro jurors would be a farce,” a Louisiana newspaper called The Weekly Messenger editorialized in 1893. “Must we permit our women and even female children to live in constant peril of outrage?”

In 1898, Louisiana held a state constitutional convention. The delegates asked for a racial breakdown of the voting rolls and learned that about 15 percent of eligible voters, and thus jurors, were black. The delegates then voted to allow convictions in 12-juror trials even if three jurors dissented — permitting the majority to override the opinion of a likely number of black jurors at any trial. (In 1973, at another state constitutional convention, Louisiana increased, from nine to 10, the number of jurors required for conviction for crimes that carry a penalty of hard labor and imprisonment.)

In Oregon, nonunanimous juries stemmed from another prejudice: anti-Semitism, along with xenophobia. In 1933, a Jewish hotel owner was charged with the murder of two white Protestants in a gangland-style execution. In a sensationalized trial, the jury returned a verdict of manslaughter rather than second-degree murder. The Morning Oregonian published editorials calling for nonunanimous juries in order to cope with “vast immigration into America from Southern and Eastern Europe” — the latter region was where many Jewish newcomers originated — “of people untrained in the jury system.” In a special election in May 1934, on a state constitutional amendment, voters approved a 10-out-of-12 rule for jury convictions for all crimes except first-degree murder.

In keeping with their origins, laws permitting nonunanimous juries tend to disadvantage minority jurors and defendants most. Prosecutors strike black people from juries at more than twice the rate that they strike white people, according to a 2018 Pulitzer Prize-winning investigation by The Advocate, Louisiana’s largest newspaper. In one of its reports, the newspaper reviewed 46 cases, and it found that when black jurors were seated, they were nearly three times as likely to vote not guilty as white jurors if the verdict was not unanimous. And in a set of nearly 1,000 cases, a greater share of black defendants (more than four out of 10) were convicted by split juries than white defendants (more than three out of 10).

The quality of a jury’s deliberation also suffers. Studies show that on racially mixed juries, white as well as black jurors describe the facts of the case more accurately and are more systematic about going through the evidence. The benefit may be lost, however, when the majority on a jury can simply bypass the minority. Research shows that requiring juries to be unanimous tends to ensure more reliable decisions. Reaching consensus is a burden, but it also offers “opportunities for jurors to correct memory errors and mistaken interpretations,” Valerie Hans, a Cornell law professor who studies juries, wrote in a 2007 review of the research in The Chicago-Kent Law Review. “The group discussion helps jurors individually and collectively to clarify their positions and conclusions and increases their certainty that they are reaching the right verdict.”

The lower threshold for a jury conviction affects cases in other ways. In Louisiana, as in most states, more than 95 percent of prison sentences result from plea deals, not jury trials. Prosecutors know that they can afford to lose the votes of two jurors and still win. That changes the calculus for assessing the quality of the police work they bring to trial — and, by extension, how tough prosecutors can be in striking plea bargains. Prosecutors have more leverage to insist on murder charges rather than manslaughter, for example, jacking up prison sentences.

Louisiana’s lower standard for jury convictions operates alongside other relatively weak protections for the innocent. Some district attorney’s offices, including the one in New Orleans, have a history of failing to disclose exonerating evidence, including in death-penalty cases. The Louisiana Supreme Court warned in 1993 of “widely disparate, nonuniform and totally inadequate funding” for defense lawyers for people who couldn’t afford to pay for them. After Katrina, a public defender’s office opened in New Orleans, but caseloads have been far above the national recommended standard.

All told, Louisiana’s system has produced the highest incarceration rate in the country and one of the highest rates of life sentences. Life is the automatic punishment for second-degree murder (a charge that applies to accomplices who did not pull the trigger) and an available punishment for kidnapping or rape. Defendants can also be sentenced to virtual life — 50 years or more — for armed robbery, even if it’s a first offense.

Six thousand people in Louisiana are serving sentences of either life or 50 years or more, a higher number than in Texas, Arkansas, Mississippi, Alabama and Tennessee combined, The Advocate pointed out in its 2018 investigation. There’s no mercy on the back end: The Louisiana Legislature abolished parole for all life sentences in 1979.

And over the last generation, Louisiana has been among the top five states for one more alarming indicator: the rate of wrongful convictions. A total of 43 people in the state have been exonerated since 2000, according to the Innocence Project New Orleans — and split juries are one reason.

III.

Calvin Duncan began to see a connection between split juries and bad verdicts not long after becoming an inmate at Louisiana’s Angola prison. In 1985, when he was 24, he was convicted of murder and sentenced to life. At Angola, Duncan trained to be a jailhouse lawyer, or “inmate counsel substitute,” as the state job, which paid 20 cents an hour, was called. In a small booth in the prison’s law library, where he worked until midnight on behalf of fellow inmates who were trying to appeal their convictions, Duncan found that juries often voted 10 to 2 or 11 to 1 when he had reason to think, based on evidence the jury might not have seen, that the guilty verdict was mistaken. “I’d see there were one or two jurors who had it right in cases when there was a great possibility that someone was innocent,” he said when we talked on the phone in December.

Duncan did some research to determine whether the constitutionality of a state’s split-jury law had ever been disputed. He found a Supreme Court case from 1972, Apodaca v. Oregon, in which a defendant challenged his 10-to-2 guilty verdict. The justices divided in a distinctive way. Four of them said the Sixth Amendment right to trial by jury did not require unanimous verdicts. Five justices said it did, sticking with the previous Supreme Court statements to that effect. But one of the five, Lewis Powell, said that the Sixth Amendment did not apply to proceedings in state court. Powell’s fifth vote allowed nonunanimous jury laws to remain in force. It also created an exception to the general rule of applying the Bill of Rights to the states as well as the federal government.

Duncan knew that because of Apodaca, lower courts were bound to reject future challenges to split verdicts. Still, he started including such claims at the end of the appeals he helped file, in case something changed.

In 2000, something did. In the case Apprendi v. New Jersey, the Supreme Court implicitly rejected Justice Powell’s logic in Apodaca. The justices ruled that juries, not judges, have to determine any fact that increases the penalty for a crime beyond the maximum prescribed by statute. And they said that defendants had this right in state court as well as federal because the Sixth Amendment right to trial by jury applied to the states via the Fourteenth Amendment’s right to due process.

When Duncan met a lawyer named Ben Cohen, who represents people on Louisiana’s death row, they started talking about the weakness of split-jury verdicts and revisiting the Supreme Court’s 1972 ruling in Apodaca. “Calvin made me understand this as a civil rights issue affecting many, many people,” Cohen told me. “I said, any case you bring me, I’ll take it to the Supreme Court.” He started filing petitions in 2004 asking the court to decide anew whether nonunanimous juries were constitutional. But without explaining why, the Supreme Court rejected case after case.

In 2011, Duncan — who always maintained his innocence — was released on a plea deal negotiated by the Innocence Project New Orleans. In the library at the Louisiana Supreme Court, studying for an undergraduate degree at Tulane in preparation for law school, he read an article about the racist 19th-century origins of Louisiana’s nonunanimous juries. He started traveling the state to talk about changing the jury law wherever he could: at community gatherings, at law schools, at meetings of the Louisiana bar.

Soon Duncan was working with Cohen at the Promise of Justice Initiative, a nonprofit organization focused on criminal-justice reform. With the civil rights group VOTE, led by formerly incarcerated people, they started a coalition to change Louisiana’s jury law. Americans for Prosperity, the political advocacy group funded by the Koch brothers, signed on in 2018 in support of a November ballot measure to amend the state constitution to eliminate split juries. At first judges and some prosecutors defended the law in the interest of ‘‘efficiency,’’ as a check on mistrials. But then the Louisiana District Attorneys Association dropped its opposition to the measure, and the ballot initiative passed with 64 percent of the vote.

The law went into effect in January 2019. But it applies only to defendants who are charged with crimes going forward. Thousands of people remain in prison, convicted in nonunanimous verdicts of the past. Estimates suggest that about 2,400 of them are serving life in Louisiana.

Duncan and Cohen continued to petition the Supreme Court to open the door to new trials for past nonunanimous verdicts. Last March, the court agreed to hear the 24th petition Cohen brought, in the case Ramos v. Louisiana, in which a man was convicted by a 10-to-2 jury of killing a woman in New Orleans in 2014, even though there was no eyewitness testimony or direct physical evidence tying him to the crime.

The court’s decision to grant review followed the arrival of two new justices, Neil M. Gorsuch and Brett Kavanaugh, who have shown an interest in applying the Bill of Rights uniformly to the states — a cause on the right since 2010, when a conservative majority on the court ruled that states are bound by the right to bear arms in the Second Amendment. Last term, the court said unanimously that states must comply with the Eighth Amendment’s protection against excessive fees and fines, and noted that Louisiana and Oregon’s anomalous jury rules were now the sole exceptions to incorporating the Bill of Rights into state law.

During argument in the Ramos case in October, the court’s liberal-moderate justices pointed out the problems with split-jury verdicts. Gorsuch asked whether the court should “forever ensconce an incorrect view of the United States Constitution for perpetuity, for all states and all people, denying them a right that we believe was originally given to them” for the sake of Louisiana’s criminal convictions — in other words, whether the court should misread the Sixth Amendment to spare a state from revisiting its past verdicts. “Can I pick up on Justice Gorsuch’s question?” Kavanaugh continued. “There are defendants who have been convicted and sentenced to life, 10 to 2 or 11 to 1, who otherwise would have not been convicted. So that seems like a serious issue for us to think about.”

Kavanaugh also brought up the origins of Louisiana’s split-jury law. “The rule in question here is rooted in a — in racism, you know,” Kavanaugh said, “rooted in a desire, apparently, to diminish the voices of black jurors in the late 1890s.” In Ramos, only about a few dozen convictions are directly at stake, because the appeals process is over in all the other cases of past split-jury verdicts. The court could find nonunanimous juries unconstitutional and leave for another day the broader scope of its ruling, and the prospects of a new trial for thousands of prisoners in Louisiana.

IV.

Michael Shannon was 47 when he was sentenced to life in April 2011; he arrived at Angola prison three months after Duncan left. As the deadline for challenging his conviction bore down on him — he had only months to file his first appeal — he began attending a Saturday prison law class. His teachers were jailhouse lawyers whom Duncan helped train before his release. They took note of Shannon’s split-jury verdict — “The guys in the law class were pushing real hard to change the 10-to-2 rule,” he remembered — and they helped him identify the flaws that riddled his trial.

In a police report in his case file, Shannon found notes on interviews with six eyewitnesses to Ralph Cole’s murder who said either that Shannon was not the shooter or that they could not identify anyone. All six were black. Shannon’s family say they paid thousands of dollars to a series of lawyers; none of them contacted any of the witnesses.

As Shannon worked on his own appeal with the jailhouse lawyers, he wrote to lawyers all over the country, anyone he could think of who might take a case like his. He heard back from Paul Casteleiro, legal director of Centurion Ministries in New Jersey, which investigates wrongful convictions. Casteleiro hired an investigator, who tracked down five of the six African-American eyewitnesses. (The remaining witness had died.) Casteleiro flew to New Orleans to talk to them, and they said that the man they saw shoot Ralph Cole was about six feet tall, and as far as they could tell, not Shannon.

In December 2016, the eyewitnesses testified at a hearing ordered by the Louisiana Supreme Court. Asked why he hadn’t contacted them before the trial, Shannon’s lawyer at the time, Paul Fleming, answered, “I’ve been racking my brain trying to remember.” The judge threw out Shannon’s conviction in July 2017, and he came home to his sister and the rest of his family. He had to pay about $300 a month for an ankle monitor while the New Orleans district attorney’s office appealed and decided whether to retry him; the D.A. finally dismissed the murder charge in February 2018.

Last fall, I started looking for the two jurors who tried to stop Michael Shannon’s wrongful conviction. When I found Mi Wha Morrison, she told me she’d sometimes wondered about Shannon; she didn’t know he’d been exonerated. Shannon said he wanted to talk to her, and Morrison was willing. We set up a meeting in November at the New Orleans courthouse where Shannon’s trial took place.

Shannon and Morrison sat down on a courtroom bench, and they went over the day of the trial — Bourgoyne’s testimony, the prosecutor’s claims, the defense lawyer’s errors — like two survivors of a shipwreck, piecing together what went wrong. Shannon is still slender, with close-cropped hair and glasses. As he talked, his teeth flashed gold, repaired after being knocked out by a guard after his arrest. Morrison listened, her hands clasped on her lap, and asked Shannon about his family. He told her about missing his daughter’s graduation from high school and about his mother’s death. “When my mama passed in 2014, that was the hardest part of just being locked up, period,” he said. He was allowed to go to the funeral, but he had to wear handcuffs and chains. ‘‘You in front of everybody shackled up on a murder that you don’t having nothing to do with.’’

He told Morrison that his daughter had just become a registered nurse. He also had a grandson who had gone to college and called Shannon Paw Paw, though they met for the first time when his grandson was 21. Shannon had a job as a prep cook, and he received $25,000 a year from the state in compensation. He’d married a former guard he met in prison. “Found love in Angola,” he marveled as they laughed together. “Ain’t that something?”

The afternoon sun was dimming in the courtroom. Shannon, his head bent close to Morrison’s, said, “I had to live through the jungle to come through right here to have this conversation.” Morrison told him that she was sorry. But Shannon had already made it clear he didn’t find her at fault.

“You’re the one that saved me,” he said in the moment they greeted each other.

“I tried to,” she told him. “I wanted to.”