by Richard A. Webster, Verite News

This article was produced for ProPublica’s Local Reporting Network in partnership with Verite News. Sign up for Dispatches to get our stories in your inbox every week.

When Lloyd Gray stood trial for rape in 1980, two jurors didn’t believe he was guilty and voted to acquit. Today, a split-jury verdict would mean a mistrial and possibly Gray’s freedom. But back then, in Louisiana, it resulted in a life sentence for the 19-year-old from Tunica, a rural community nestled on the banks of the Mississippi River.

Gray, who has always maintained his innocence, spent the next four decades in the Louisiana State Penitentiary at Angola. During that time he lost everything, he said. From behind bars, he learned that his mother, who for a time was a guard at the prison where he was being held, had dementia and died in 2020. Prison officials refused to allow him to attend her funeral.

That same year the U.S. Supreme Court ruled that nonunanimous jury verdicts, legal in only Louisiana and Oregon, were unconstitutional and based on an inherently racist law designed to uphold white supremacy.

Going forward, there would be no more Lloyd Grays.

But in fact, there are more than 1,000 people in Louisiana like Gray, convicted by split juries and still imprisoned, according to the Promise of Justice Initiative, a New Orleans-based nonprofit focused on criminal justice reform. Although the Supreme Court says cases like theirs are unconstitutional going forward, it left the decision about what to do with those convicted long ago to the states. And Louisiana alone says they should stay behind bars.

Two years after the U.S. Supreme Court decision, the Louisiana State Supreme Court declined to grant new trials for those prisoners, acquiescing to local prosecutors who feared that retrying hundreds of decades-old cases would tie up state courts. The conservative state Legislature, meanwhile, has repeatedly rejected bills that would have required a reexamination of their cases.

That left one very narrow path for Gray and others like him, mostly Black men, to have their cases revisited. If they could credibly argue that their convictions were secured illegally — if there was race-based discrimination in the case, for example — they could strike a plea deal with a prosecutor, securing their release. But a new state law, passed last year at the urging of Republican Gov. Jeff Landry, limited local prosecutors’ ability to broker such deals, cutting off the last remaining avenue of relief for those imprisoned by nonunanimous juries.

The key problem, legal experts say, is that the Supreme Court did not make its 2020 ruling retroactive as it did in Montgomery v. Louisiana, a 2016 case in which the justices found that life sentences without parole for juveniles should be banned going forward as well as for those already convicted.

What’s more, in a separate decision in 2021, the court ruled that its 2020 opinion did not apply to older cases, like Gray’s, that had already gone through the regular state appeals process. However, Justice Brett Kavanaugh wrote for the court’s majority, Oregon and Louisiana were still free to offer retroactive relief on their own.

In contrast to Louisiana, Oregon’s Supreme Court vacated every split-jury conviction in the state, after which prosecutors offered plea deals with reduced sentences to the majority of those prisoners convicted by nonunanimous juries. Verite News and ProPublica estimated about 760 prisoners were convicted by nonunanimous juries based on a 2018 list provided by the Oregon Department of Justice of people who had filed lawsuits claiming their convictions were unconstitutional.

“There are a lot of injustices in our legal system we can’t fix. And yet, here is this issue that is so clear and obvious that it’s on all of us to do the right thing,” said Aliza Kaplan, a professor at Lewis & Clark Law School in Portland, Oregon, who fought for years to end the state’s split-jury system.

“When I look at Louisiana, it’s really heartbreaking.”

The Landry administration did not respond to requests for comment.

Zach Daniels, executive director of the Louisiana District Attorneys Association, said the group, which backed Landry’s law, has attempted to reach a compromise with criminal justice reformers who want all past split-jury verdicts overturned. This included an alternative that would give those convicted by nonunanimous juries the opportunity to apply for parole instead of having their cases either vacated or reexamined. But some lawmakers and criminal justice reform advocates rejected that option because they did not view the opportunity to be heard by a special parole committee appointed by Landry, as the plan called for, a compromise for people imprisoned unconstitutionally.

Gray’s case for freedom is particularly strong, his attorneys said, because there is good evidence that racial animus led to his conviction. They discovered last year that the two jurors who had voted to acquit were Black — a fact that doesn’t appear in the court records. And that someone had drawn a swastika on the upper right hand corner of the original district attorney’s case file.

In addition, the lone surviving family member of the victim told the district attorney’s office he is “fully supportive” of Gray’s release. He could not be reached for comment.

The New Orleans District Attorney’s Office had been in discussions with Gray’s legal team about a potential deal to secure his release before Landry’s 2023 election. But the governor’s new law constraining prosecutors from making such deals could ensure that Gray spends the remainder of his days in Angola. His current case before the court will next be considered Tuesday at Orleans Parish Criminal District Court, where a judge will decide whether Landry’s law applies in........

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