The Supreme Court outlawed split juries, but hundreds remain in prison anyway

Jill Miller was facing life in prison for second-degree murder, but after hours of deliberation, the jury was deadlocked at 8-4 over whether to convict.

The prosecution's case seemed clear-cut: On July 7, 1998, Miller grabbed a .45-caliber pistol and fatally shot her husband, a local sheriff's deputy named Denver Miller, as he slept in bed at their home in Franklinton, La. Then she lied to police, blaming burglars, all because she wanted to have an affair with another man.

Still, there was uncertainty in the jury box. Yes, she blamed burglars before ultimately confessing to authorities. But Miller says it was because she was ashamed to admit that her husband was regularly violent with her. They were arguing when it happened, and Miller says he pointed a gun and fired first. Then she shot him in self-defense, she testified at trial.

"I can't begin to tell you how hard it is when you love someone — even if people don't understand why you love them — to know that you're responsible for their death. People don't understand that," Miller said in a recent interview, a quiver in her voice. "And there are so many women out there that nobody believes them, and I just ask people to look deep down inside, because nobody really knows what they would do if they were put in certain situations."

Ultimately, the jury split: 10 to convict, two not guilty. In most states, that would have been a mistrial. But in 1999, the year Miller was convicted, Louisiana was one of two states where a person could still be convicted by a non-unanimous jury; Oregon was the other. At 31 years old, the mother of four was sentenced to life in prison without parole.

The U.S. Supreme Court outlawed split-jury verdicts for people accused of serious crimes in the landmark 2020 ruling Ramos v. Louisiana, righting a historical wrong propelled more than a century ago by white supremacy and xenophobic fervor. But the decision only applied to open cases and convictions that were under appeal at the time of the ruling. The justices left it to Oregon and Louisiana to decide whether to apply the decision retroactively and give inmates like Miller a second chance.

Today, the two states are on sharply different paths. In Oregon, the state's Supreme Court recently said these cases must be given a new look, while in Louisiana, only a handful of prosecutors have agreed to revisit past convictions decided by split juries — or what critics call "Jim Crow juries."

It's a divide that has left hundreds of prisoners at the mercy of a two-tier judicial system that has disproportionately affected minorities. Each was convicted under an unconstitutional law that defense attorneys — and even some prosecutors — acknowledge may have sent innocent people to prison. But only some inmates will see their cases reconsidered.

This muddled legal landscape is fueling a deep sense of anxiety on each side of the debate, even as the biggest legal challenges surrounding non-unanimous convictions appear settled. Those who oppose revisiting old cases worry about retraumatizing victims and the added strain on prosecutors at a moment when violent crime rates are on the rise. Reform advocates say failure to act on behalf of people who were unconstitutionally convicted will only further erode faith in the justice system.

"It doesn't go away until you address it," says Hardell Ward, an attorney with the Promise of Justice Initiative, a Louisiana-based nonprofit that has led the push to revisit non-unanimous jury convictions. "This is not something that can be swept under the rug; it's not something you can wait on."

The laws were shaped by hate

The laws that enshrined the split-jury system into the legal fabric of Louisiana and Oregon didn't happen by accident.

After the Supreme Court ruled that Blacks could not be excluded from juries, Louisiana held a constitutional convention in 1898 to, in the words of one attendee, "establish the supremacy of the white race in this State to the extent to which it could be legally and constitutionally done."

To do so, framers of the new constitution drafted a document that required only 9 of 12 jurors to convict. If one, two or three Black residents made it onto a jury, their votes could effectively be canceled out by white jurors. (In 1973, the constitution was amended to require agreement from 10 jurors.)

In Oregon, the split-jury system sprang from a 1933 homicide in which the assailant, Jacob Silverman, was Jewish. The victim was Protestant. At trial, 11 of 12 jurors wanted to convict Silverman of murder, but a lone holdout refused to join the majority. After hours of deliberation, the jury compromised and convicted Silverman on the lesser charge of manslaughter.

The lesser verdict fueled outrage across the state, as local newspapers channeled racist and xenophobic attitudes to blame the outcome on immigrant jurors. One paper, The Morning Oregonian, opined that "Americans have learned, with some pain, that many peoples in the world are unfit for democratic institutions, lacking the traditions of the English-speaking peoples." Other pieces bemoaned "mixed-blood" jurors.

The next year, voters amended the state constitution — only 10 of 12 jurors would be needed to convict.

In each state, the implications for African Americans in particular have been profound. In 2018, an analysis by The Advocate newspaper in Louisiana found that 40 percent of trial convictions in the state came over the objection of at least one holdout. When the defendant was Black, that number rose to 43 percent. It fell to 33 percent for defendants who were white.

The analysis further revealed that Black defendants were regularly judged by juries that are whiter than the communities they live in. That's significant because even though jurors, regardless of their race, vote guilty together in a wide majority of convictions, Black jurors were often more likely to cast a dissenting vote than whites, the analysis found.

In Oregon, research by Aliza Kaplan, a defense attorney, found that since the U.S. Supreme Court ruled non-unanimous verdicts unconstitutional, close to 20 percent of petitions for appeal have come from Black inmates, even though African Americans make up less than 3 percent of the state's population.

"When you look at a rule like non-unanimous juries in both states, what you see is just a constant failing and an intentional assault on people of color," says Kaplan, the director of the Criminal Justice Reform Clinic at Lewis & Clark Law School. "And both of our systems, in very similar and different ways over more than 100 years, have played that out in different ways."

In Louisiana, critics see ‘discretionary justice’

In the face of that history, Louisiana voters decided to take action. Five years ago, they amended the state constitution once again to change the laws around split-jury verdicts.

For criminal justice advocates, it was an important victory, as it meant unanimity would be required for jury verdicts. But there was a catch: The referendum did not apply to cases from before 2019 — an issue that only got more awkward when the Supreme Court ruled split-jury verdicts unconstitutional and said states would have to settle for themselves whether to apply the ruling retroactively.

By last October, Louisiana had its answer: The state's top court struck down retroactivity.

The ruling has meant decisions about individual cases from before 2019 now fall to local prosecutors like Jason Williams, the district attorney for Orleans Parish.

Williams, who was elected in 2020, has vowed to examine every non-unanimous verdict under his jurisdiction — roughly 350 cases, more than any other parish in the state.

"This city, New Orleans, Orleans Parish, as we call it, has really been ground zero for mass incarceration and the mass production of defective convictions which have largely affected mostly Black men, certainly mostly Black people," says Williams.

The work, Williams says, is often misunderstood. "We're not suggesting that [jurors] were racist," he says. "But the fact that the institution at the time discounted two of those voices on that jury meant that the process itself was not a fair process and was a Jim Crow era process."

So far, he says his office has reviewed about half the backlog. Most cases involved someone who did, in fact, commit a crime, he acknowledges, and the majority of those inmates have been resentenced and are still in prison.

However, Williams' office discovered that many sentences did not fit the facts of the case. About 25 percent of the time, prosecutors have chosen to reduce an overly harsh sentence, resulting in less prison time. In another 65 percent of cases reviewed, prosecutors agreed to vacate part of a conviction in exchange for a guilty plea to the next lesser charge. In roughly 10 percent of cases, the office says it either sent it back for a retrial or vacated the sentence and dismissed the case because it became clear the person did not commit the crime.

"You have to go back and reckon with the sins of the past if you want the people of your state and of your city to believe and trust in the system," Williams says.

Unlike Williams, though, most Louisiana prosecutors have resisted calls to revisit cases and pushed back on a proposed legislative solution.

One proposal by state Rep. Randal Gaines would have created a state board to help adjudicate cases for anyone still in prison due to a split-jury verdict, but the measure died last spring after a breakdown in negotiations.

Some of the biggest pushback came from the Louisiana District Attorneys Association, which has fought calls to apply the Ramos ruling retroactively, partly because of the strain it would put on resources.

The Louisiana District Attorneys Association did not return multiple requests for comment, but the group's executive director, Loren Lampert, has previously stressed the importance of reassuring "victims and survivors of the integrity and finality of the crimes against the community."

For now, it's far from clear how much appetite there will be for change. Gaines calls the split-jury system "mired in racism," and he has reintroduced legislation to fix a process he sees as unsustainable. Decisions about individual cases are being left to the discretion of individual prosecutors, he says, "and discretionary justice is not always justice."

Second chances in Oregon

Back in Oregon, Brandon Gillespie is home for the first time in more than 15 years.

In 2007, Gillespie was convicted for trying to rob the Purple Parrot convenience store. It all happened at a time when his life was in shambles. At 21, he was unemployed, living in his father's shed and struggling with alcohol and pain pills.

Over three days at trial, prosecutors presented their case: a bungled robbery; a foot chase with a customer who bolted from the store; a series of errant gunshots. On the most serious charge, attempted aggravated murder, the jury deadlocked 10-2. He was sentenced to 27 years.

"I had no idea that it could be non-unanimous," Gillespie says. "I mean, just from watching movies and shows and all, you know, CSI and whatever, Law and Order, I just figured that everybody had to come to an agreement to convict me."

His release in March, a little more than 11 years ahead of schedule, followed a ruling by the Oregon Supreme Court in December that granted anyone convicted by a split-jury verdict the right to have their case reexamined.

For hundreds of Oregon inmates, the decision means prosecutors must now decide whether to pursue a new trial, cut a plea deal or dismiss charges altogether. In Gillespie's case, he accepted a plea in which prosecutors dropped all but two of the charges, including the attempted aggravated murder charge. Rather than remain in prison until 2034, he was sent home on three years' parole.

Now that he's out, he's determined to make good on his second chance. He's hoping to make a future for himself as an investor, after years of study in prison. But he's also trying to stay mindful of all the people who helped win his release and says he is determined to pay it forward.

"Maybe I could change somebody's life out there," Gillespie says. "[If] I could stop one act of somebody maybe thinking about going and doing a shooting, I could tell them, 'Look, I've been in that circumstance,' and I maybe talk somebody down off of something like that. It would make it all the worthwhile for me."

Worries still abound

While reform advocates have cheered the latest developments in Oregon, many crime victims are feeling dread. In testimony before the state legislature last year, witnesses told lawmakers in sometimes painful detail that allowing prosecutors to revisit convictions would needlessly retraumatize them.

In one exchange, a sexual assault survivor spoke about the 11-1 verdict that sent the man who attacked her and her sisters to prison for 18 years.

"No amount of time served will ever account for the trauma he has inflicted on us," she said.

One of the biggest concerns among victims rights advocates is a lack of funding to meet basic obligations brought on by the Oregon Supreme Court's ruling. For example, finding and contacting victims and their families to notify them once a decision has been made to retry a case, strike a plea deal or vacate a sentence.

"The system is not particularly victim friendly," says Rosemary Brewer, executive director of the Oregon Crime Victims Law Center. "What we're looking at is a system that is going to take a traumatized population and tell them that they have to go through it all over again. And frankly, we don't really have the resources to deal with that level of traumatization."

A new bill now before the legislature would provide the Oregon Justice Department $6 million to help work through the backlog of old cases, including money for victims services.

Aid for victims is not the only concern, though.

Reform advocates like Kaplan from Lewis & Clark say the process has been too slow, "especially for people who are in prison."

Part of the challenge, she says, is that some prosecutors are taking too long to decide whether to retry old cases. At the same time, there are inmates who may not be aware that they were even convicted by a non-unanimous jury and need legal aid to help their cases move forward. But the state is facing a shortage of defense attorneys, which is only adding to the frustration.

The office of Attorney General Ellen Rosenblum declined multiple requests for comment, but in a statement following the Oregon Supreme Court's decision Rosenblum said she was "committed to eradicating inequities and ensuring fairness and impartiality in the delivery of justice in our state."

There's also the issue of what to do about people like Tacuma Jackson — people who have served their time but still have a non-unanimous conviction on their record.

In 2021, Jackson was granted early release by then-Gov. Kate Brown, but his conviction still follows him. He's had to heal relationships with his children strained by his incarceration, and he initially struggled to find work, since background checks would alert potential employers to his past. For a while, he slept in his car.

"I was making so many sacrifices thinking to myself, 'Man, how am I going to survive out in the streets? How am I going to live?" Jackson says.

Two years since his release, he's managed to turn things around and is now deeply involved in his Portland community. He does restorative justice work and serves on the Black Advisory Business Council for his local Chamber of Commerce. He mentors others reentering society after prison, and he recently purchased a scooter rental franchise called Hopp.

But even though his sentence was vacated, he must still report to a parole officer and says he has to check in with him anytime he wants to leave the state.

"I'm still being bound with this ball and chain and these tethers and I'm trying to figure out what is going on," says Jackson. "It's like, Oh you won, but you haven't won yet."

‘What makes us different from people in other states?’

From her prison cell in Louisiana, Miller watched as the Supreme Court ruled split-jury verdicts unconstitutional, only to see Louisiana's top court say the decision would not apply retroactively to cases like hers.

"I still have a hard time understanding how if it's unconstitutional now for a jury to convict somebody ... but now you can't do that, what makes me different than other people?" she says. "What makes us different from people in other states?"

If her case were to be reconsidered, she's optimistic the outcome might be different. In an affidavit submitted five years after Miller's conviction, the jury foreman said that had he and other jurors known about several key pieces of information that failed to come up at trial, they "would not have found Jill Miller guilty of the charge of second degree murder."

The first was the destruction of the couple's mattress, which according to affidavits from two people involved in its removal, contained two bullet holes on the side that was not stained with Denver Miller's blood. At trial, Miller testified that her husband shot his gun twice into their mattress near where she lay before she grabbed another gun and fired back.

The foreman said jurors also did not know about a police report that was changed to remove mention that Denver Miller "seemed to be intoxicated" when officers went to the family home to investigate a burglary about six hours before the shooting. Nor did they know about a psychologist's report concluding that Miller exhibited classic signs of battered woman syndrome.

But there are no guarantees. So for now, Miller keeps on with her daily routine. She wakes at 5:30 each morning, listens to a daily audio reading of the Bible and then heads to the prison library, where she works as a legal adviser for other inmates.

There are times, Miller says, when she gets tired of fighting. But she finds strength in a favorite Bible passage — "I can do all things through Christ, who strengthens me" — the women she works with and the hope she can one day reunite with her children.

"All I really wanted to do was be a mom, and I haven't been able to do that," she says.

Almost 25 years into her sentence, Miller is a grandmother now. She gets to speak with some of her grandchildren by phone from time to time, and when she lets herself dream about a life outside of prison, that's where her mind goes.

"I want to be able to have a small place and an open door for my grandchildren," she says. "There's so many things that I've never done — and I might be a little too old to do now — but I can see it through my grandchildren."

Copyright 2023 NPR. To see more, visit https://www.npr.org.

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