All Gary Duncan wanted to do was prevent a fight between some Black and white kids. But when the 19-year old African-American lightly touched the arm of a 14-year-old white boy named Herman Landry in what he felt was a paternal, conciliatory gesture, Landry’s response was, “My people can put you in jail for that.”
This was in October 1966, in Plaquemines Parish, Louisiana, at the height of the civil rights era. Plaquemines was, thanks to the oil and fishing industries, one of the wealthiest rural counties in the country. But it was ruled by Leander Perez, a Democratic political boss and one of the shrewdest, most virulent segregationists in the history of American apartheid. Which is one reason why Duncan, despite his innocent gesture, was arrested on the charge of “Cruelty to Juveniles,” and why his case eventually culminated in Duncan v. Louisiana, a Supreme Court ruling that guaranteed the right to a jury trial for any and all serious crimes.
“The significance of Duncan v. Louisiana is less about the immediate impact of the Court's ruling than about the foundation that ruling laid,” says Matthew Van Meter, author of Deep Delta Justice, a new book about the Duncan case and the Plaquemines milieu in which it originated. “Duncan v. Louisiana is the basis of five decades of jurisprudence that protects juries from racial discrimination, ensures that they come to fair decisions, and forces the prosecution to prove every relevant fact to them. These cases are still coming down: just this spring, in Ramos v. Louisiana, the Court overturned the non-unanimous jury systems in Louisiana and Oregon—citing Duncan v. Louisiana as its basis.”
Duncan’s case would never have gotten as far as it did if the Plaquemines authorities hadn’t belatedly realized that “Cruelty to Juveniles” only applied to adults with some sort of authority over the alleged victim, usually parents. So they changed the charge to “Simple Battery” which, although classified as a misdemeanor, meant a person could serve two years in prison and did not entitle Duncan to a jury trial under Louisiana law. In fact, all cases other than those in which the maximum penalty was hard labor or death were to be tried by a judge without a jury, and only death penalty cases mandated a 12-person, unanimous jury.
Enter Richard Sobol, a New York lawyer who was staff attorney for the New Orleans branch of the Lawyers Constitutional Defense Committee (LCDC), founded to defend civil rights activists. Sobol agreed to defend Duncan, knowing that his demand for a jury trial would be rejected, and realizing his ultimate audience was the U.S. Supreme Court.
In the meantime Perez, who was not only a racist but virulent anti-Semite (Sobol was Jewish), spent his time skimming money from lucrative oil and mineral leases (after his death his sons were sued and forced to return $12 million to the parish), plotting ways to undermine SCOTUS’ decision to integrate the public schools, and engaging in vindictive behavior targeting Sobol, whom he arrested for practicing law in Louisiana without a license (Sobol sued, and won in federal court).
“To me, Perez was not only vindictive, he had all this power in the Louisiana legislature,” says Van Meter. “By the time the events in the book happen, he had been in office for 45 years. The thing about Perez also, segregation and Jim Crow were always about innovation, you had to stay one step ahead of SCOTUS, come up with new and novel ways of maintaining segregation. He was part of this team of lawyers working on ways to keep people apart. And he was pitted against people like Sobol who were trying to out-innovate him.”
Perez, who at one time built a prison camp for “racial agitators,” was heavily involved in moving segregationist legislation through the state legislature, and in voter suppression efforts. He managed to establish segregated “academies” in the parish with tuition funded by public money and was so successful in his voting campaigns that from 1955 to 1960, only five African-Americans managed to register to vote in the parish.
Perez also doubled down on his nastiness after SCOTUS ruled 7-2 in Duncan’s favor, and Justice Byron White’s majority opinion stated that “a right to jury trial is granted to criminal defendants in order to prevent oppression by the Government.” But SCOTUS left open the option for a non-jury trial for “petty offenses.” So, after the decision, the Louisiana legislature reduced the penalty for simple battery to six months, which White had defined as a reasonable dividing line between serious and petty crimes. Incensed by SCOTUS’ decision, Perez then had Duncan re-arrested for what remained a non-jury offense. Sobol sued, claiming this was pure harassment, and won again. Charges against Duncan were finally dropped, nearly four years after the initial incident.
Duncan v. Louisiana was part of what Van Meter refers to as a “criminal procedure revolution” that included Miranda v. Arizona (Miranda warnings) and Gideon v. Wainright (the right to a public defender). But although the ramifications of those two decisions are still alive and well, the Duncan case has been severely undercut by plea bargaining, which now accounts for over 90 percent of all criminal cases.
“As more and more laws have been passed, it’s entirely up to the prosecutor what to charge you with, and what sentence to ask for,” says Van Meter, whose book is being turned into A Crime on the Bayou, a documentary in development at HBO. “What they come to you with is the most serious charge and say if you want to go to trial and take your chances, or right now we can plead you down to whatever. What reasonable person will take their chances on a jury trial? This is an unbelievably important case that just doesn’t apply anymore.”
Still, Van Meter believes that the Duncan case, and its place within the civil rights movement of the ’60s, has a lot in common with today’s Black Lives Matter protests. “The whole thing about BLM is that it does not have charismatic leadership, and that’s a positive resolution. Because Martin Luther King was mostly absent from Louisiana, the movement was local, and highly dangerous. In Plaquemines they were using demonstrations to draw out a response, and then hiring lawyers to take cases to federal court. They were working to orchestrate highly targeted events, and I think that is going on now.
“It’s this one-two punch using demonstrations in a targeted way to draw out the oppression of the government, and then using lawyers to take this to court. I think there’s a way to learn how these movements sustained themselves for years under incredibly harsh conditions. I think there’s a lot to be learned how local groups managed to win these big victories over many years despite conditions that are harsher than what we see today.”