Aiello applied the “Page 99 Test” to his new book, Jim Crow's Last Stand: Nonunanimous Criminal Jury Verdicts in Louisiana, and reported the following:
Page 99 of Jim Crow’s Last Stand is a reproduction of Justice Lewis Powell’s concurring opinion in the Supreme Court’s 1972 Johnson v. Louisiana decision. I didn’t even write it. That said, however, it is a perfect reflection of what the book actually discusses.Learn more about Jim Crow's Last Stand at the LSU Press website.Petitioners contend that less-than-unanimous jury verdict provisions undercut that right [of a fair and impartial jury trial] by implicitly permitting in the jury room that which is prohibited in the jury venire selection process—the exclusion of minority group viewpoints. They argue that unless unanimity is required even of a properly drawn jury, the result—whether conviction or acquittal—may be the unjust product of racism, bigotry, or an emotionally inflamed trial.It is my great hope that the other pages aren’t quite as dry and clinical, but as far as argumentative thrust is concerned, this is actually on point. Beginning in 1880, Louisiana allowed criminal defendants to be convicted by nine of twelve jurors. Today it allows them to be convicted by ten. It was a law designed to increase convictions to feed the state’s burgeoning convict lease system and remained in the first half of the segregationist twentieth century even after convict lease had run its course. As rights advocates of the 1950s and 1960s successfully challenged the ingrained racism of southern laws first conceived in the crucible of turn of the century reactionary politics, it left nonunanimous criminal jury verdicts alone. It is, among southern states, unique to Louisiana. Many never realized the law existed. Those who did were unaware of the law’s genesis, its original purpose, or its modern consequences. And so it remained. It still remains. It is the last active law of racist Redeemer politics in Louisiana.
This book makes the case, like the petitioners crying out from page 99, that such is an almost inconceivable injustice. The Law & Order thinking that has been ingrained into everyone, that creating a reasonable doubt in the mind of one juror can save a defendant, does not hold in Louisiana (or, for that matter, in Oregon). In Louisiana, it actually benefits a potential assailant to commit a hate crime rather than one for, say, purely financial reasons, because the federal standard (under which a hate crime would fall) is jury unanimity.
Thus the petitioners on page 99 argued that they were being denied “a fair and impartial jury trial.” They lost that case. But a full understanding of the law’s genesis was still hidden in 1972. Jim Crow’s Last Stand uncovers it, so maybe the petitioners on future page 99s will win.