We recently brought you news that the Supreme Court has yet again turned down the opportunity to revisit conviction of criminal defendants by less than unanimous agreement of jurors. Non-unanimous criminal convictions are currently allowed only in Oregon and Louisiana, and are unfair for a variety of reasons which we discussed previously.
Now we have news of the case of Troy Ellis, a non-violent offender who has been sentenced to life in prison without parole for a petty theft. His co-defendant, who took a plea bargain in exchange for testimony against Ellis, was sentenced to six years and released after serving less than three years in prison. Ellis was convicted on a split 10-2 decision in Louisiana. Now one of his jurors has publicly stated that if he had anticipated the injustice of the sentence that Ellis would receive, he would have voted Not Guilty instead of voting to convict him. A second juror, who remains anonymous, also reportedly expressed remorse over the verdict.
Addicted and desperate, Ellis was booked in a simple burglary in 2010 with an unlikely co-defendant. His alleged partner in crime was Patrick Constantin, a then-25-year-old from a successful Uptown family.
The two men shared a heroin addiction and non-violent rap sheets, according to police reports and court records, but the similarities end there.
Ellis (pictured right) was sent to prison to die behind bars, hit with a life sentence without parole.
Constantin is a free man today after being sentencing to six years for the same crime, then being released on good time after serving less than three.
The disparity in the sentences shocked not only Ellis’ attorney and family, but even some of the jurors who convicted him.
“Clearly this was a situation where the punishment does not fit the crime,” said Randy Waller, one of the jurors who voted to convict Ellis by a 10-2 verdict. “No one got killed. There was no weapon involved.
Based on what was taken, it amounted to a petty theft. I think it’s greatly unfair.”
When contacted about the sentence, one juror said Ellis got what he deserved. But two other jurors said they were appalled. One of them, Waller, agreed to say so publicly.
“Surely he should be punished in some shape, form or fashion,” Waller said. “But life without the possibility of parole is ludicrous to be honest with you. It really is.”
When asked if he would change his verdict, knowing what he knows now, Waller said, “Had I known that this was a potential outcome, it was on the table for him and the sentence, I would have had to have found not guilty.”
From his comments, it sounds like Waller did believe Ellis committed the crime and that he did believe Ellis should be punished but that he would have nullified by voting Not Guilty in this case had he understood that such a severe penalty, so out of step with the co-defendant’s punishment, was on the table. Had Waller voted Not Guilty, his third vote added to the two Not Guilty votes would have resulted in a hung jury.
The penalty in this case, however, is not the only element the defendant’s attorney has identified in calling into question whether or not this was a fair trial. The case was fraught with cronyism, argued defense attorney Jessie Beasley, noting that the district attorney refused to step aside in prosecuting this case even though the victim was a senior prosecutor in his office. He also noted that Constantin, the beneficiary of the plea deal, was a longtime friend of the lead detective in the case. Additionally, the demographic composition of the pool from which jurors were drawn was majority African-American. From this pool, a majority white jury was reportedly assembled, with prosecutors using 10 of 11 of their allotted peremptory challenges to eliminate African-Americans from the jury, said Beasley.
And then there was reportedly some inconsistency between Constantin’s testimony against Ellis before and after a break in the trial:
Once the jury heard the case, there was no direct evidence that Ellis ever entered the victim’s house. And initially, there wasn’t even circumstantial evidence as the key witness, Constantin, began testifying. But after a break in the trial, all that changed.
“He got one of the public defenders that talked to him in the back for about an hour before he came out and changed his testimony to say that Troy Ellis is the one who did everything,” Beasley said.
The question of whether Ellis entered the apartment was critical, potentially the difference between burglary and the lesser charge of attempted burglary, a verdict that Beasley said would have capped Ellis’ sentence at 12 years, even as a multiple offender.
There’s also a significant possibility that the conviction resulted from a vague statement from the judge that may have been inadvertently interpreted by the jury as being directed to convict as charged, rather than on that lesser included charge:
On the verdict form, the jury foreperson initially wrote “Guilty of attempted burglary” on the wrong side of the page. Judge Parker instructed the panel to fix it.
The jury was left confused, Waller recalled.
He said the group didn’t know whether Parker meant to fix the form or the verdict itself. When the jury came back with a second verdict form, the foreperson again wrote “Guilty of attempted burglary,” but crossed that out and wrote guilty as charged. (Pictured below, click to larger image)
“Yes, there was some confusion during that time, no question about it,” Waller recalled. “I certainly remember there was confusion to exactly what the charge we were supposed to write was.”
There are so many possible reasons Ellis is currently in prison for life without parole for a non-violent, petty theft, none of them having anything to do with justice. For example:
-Had he not exercised his right to trial by jury, he might have gotten the sweet deal that Constantin was given and already be out of prison.
-Had he been convicted in any other state than Oregon or Louisiana, the 10-2 verdict would have resulted in a mistrial.
-Had the jurors been aware of the potential penalty on the table, at least one more says he would have voted Not Guilty, effectively hanging the jury.
These and so many other games played by judges and prosecutors in the courtroom are not implemented with the intention of ensuring justice for all, but rather are tactics used to tilt the playing field toward conviction, and beyond that, toward incarceration.
Thanks to the statements made by two jurors, one anonymously and one publicly, after learning of the egregiously disparate results of their verdict, Ellis’ case is now at least under review by the district attorney.
The Orleans Parish District Attorney’s office has officially agreed to review a simple burglary case that ended with one convicted defendant on the street within three years, while his accomplice found himself locked up for life without possibility of parole.
The development was set into motion by a statement from District Attorney Leon Cannizzaro in light of information connected to the sentencing disparity.
The information included the fact that two jurors in the case told Eyewitness News – one anonymously, one publicly – that they were shocked by the life sentence and regret their guilty verdicts.
“In light of recent revelations relative to the disparity of sentences between the two defendants in this case, I am in the process of personally reviewing this entire file,” Cannizzaro stated.
Cannizzaro’s own statements on the case help us to calculate the arithmetic of injustice in this case:
Cannizzaro has declined to comment beyond his written words, which concluded with, “Despite overwhelming evidence against Ellis and his complete refusal to accept responsibility for his actions, the District Attorney’s office offered to allow Mr. Ellis to plead guilty as a second offender in return for a 12-year sentence both prior to trial and even after he was convicted. While I believe that such a sentence would still be appropriate in this case, Mr. Ellis must first take responsibility for his actions.”
By his own words, Cannizzarro explicitly indicates that he believes a just sentence for the offense of which Ellis was convicted is twelve years. By his actions in allowing a plea deal for Constantin that allowed his release in less than three years, however, Cannizzarro shows that he is willing to settle for a LOT less prison time—so long as the defendant were to waive his right to trial by jury. Given the average life expectancy of an African-American male, the 50-year-old Ellis could easily serve more than a quarter century in prison before ultimately dying there over a non-violent theft that involved maybe a couple hundred dollars worth of goods. Ellis is primarily being imprisoned, not for the petty theft of which he was convicted, but for exercising his Constitutionally-guaranteed Sixth Amendment rights. He has maintained his innocence in this case, and it is now in the appeals process. He is challenging his conviction on several counts, arguing violation of his Constitutional rights.