Constitutional Law Criminal Law

Power of Persistence: “Jailhouse Lawyer” Takes Case to SCOTUS

Only two States in the country, Louisiana and Oregon, allow for non-unanimous verdicts in criminal cases. One man – Calvin Duncan – has been fighting it in his home State of Louisiana for over 20 years. Duncan does not have a law degree. In fact he only had a 10th grade education when he was serving a life sentence for murder in notorious Angola prison when he began his career as a “jailhouse lawyer.” He got so good at helping fellow inmates with legal issues, including winning the freedom for some by writing their appeals for them, that the prison decided to make that his job, paying him a whopping 20 cents per hour to act as a legal consultant (not lawyer) to inmates.

One issue kept gnawing at him – non-unanimous verdicts in criminal cases. He took on more than 20 cases with this claim, getting rejected time and again by the Supreme Court. In 2011, he had his release secured by the Innocence Project New Orleans and continued his education, getting a BA from Tulane and hoping now to move on to law school. But all the while he has consulted and worked on the issue with lawyers, challenging the law which allows 10-2 verdicts in non-capital cases.

One such case has finally been agreed to be reviewed by SCOTUS: Ramos v. Louisiana which will be heard on October 7, 2019, the first day of argument for the 2019-2020 SCOTUS court session. While the Louisiana legislature last year changed the law to require unanimity going forward, hundreds of folks convicted in 10-2 verdicts who are still serving time in Louisiana will be effected by the SCOTUS decision.

Just a quick aside on why non-unanimous verdicts exists: racism. In 1898 SCOTUS ruled that states could not exclude black people from serving on juries. Louisiana quickly responded by holding a Constitutional convention whose purpose, as the judiciary committee stated, was “to establish the supremacy of the white race in this state to the extent to which it could be legally and constitutionally done.” Give them credit for at least being upfront about it. By then instituting 10-2 verdicts, the state could guarantee that if one or two black people somehow managed to make their way onto a jury, the other 10 would still be able to control the verdict. In Oregon, the provision was passed by voters in 1934, a time when racism and bigotry was prevalent in the state and entrenched in Oregon’s law.

So Calvin Duncan always saw this as an issue that SCOTUS needed to address, even though he was convicted by a unanimous jury. He became such an expert at it, and in law in general, that law professors and attorneys consulted him on this and other issues, some of them even visiting him in Angola for advice.

What will this group do with the issue?

Calvin Duncan’s 20-year pursuit for justice in this area is a testament to the value of education in prison. An innocent man put in jail for murder who did what he could to educate himself and learn the law. Others have followed suit, Marty Tankleff and Jeffrey Deskovic come to mind, as two exonerees who have now graduated law school. Jabbar Collins and Emel McDowell are two other exonerees who I have worked with and who are some of the best legal writers and legal researchers I have come across . . . and I have taught at law school for over 10 years. These men and countless nameless others show the power and value of education in our prison system. Giving the incarcerated a path to educate themselves is smart public policy as every study ever done shows that education in prison leads to a reduction in recidivism.

Of course, Mr. Duncan’s life is also a testament to persistence and fortitude. Nothing comes easy post-conviction. Overturning unjust convictions and changing legal vestiges of the Jim Crow Era don’t happen overnight. There are always losses and frustration along the way. It took Calvin Duncan over 20 years to finally have this issue before the Supreme Court. I hope the justices keep that in mind when they hear argument and decide Ramos v. Louisiana. And I hope they finally and fatally put this issue to rest. Even if it is not unanimous.

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