By Zach Walsh
Attorney, McKean Smith, LLC
After voters decided to eliminate non-unanimous jury verdicts in Louisiana, another discussion regarding the efficacy and overhaul of Oregon’s non-unanimous jury verdict system has begun. The potential overhaul of the jury verdict system could be the state’s most significant criminal justice reform in decades.
Oregon’s majority leader, Jennifer Williamson, announced Democrats will pursue scrapping the state’s highly unusual jury system during the next legislative session.
In 2019, the Democratic caucus plans to introduce two bills to topple Oregon’s non-unanimous jury verdict system. The first bill fixes the law that allows convictions based on non-unanimous jury verdicts in most felony cases. The second bill sends the issue to voters, who can decide whether to rescind the amendment in the state constitution allowing non-unanimous jury verdicts.
Currently, the federal government and every state, except Oregon, require a 12-0 verdict in most felony cases. Oregon only needs a unanimous jury verdict to find defendants guilty of murder.
How did non-unanimous jury verdicts start in Oregon?
Like Oregon’s jury verdict system, Louisiana enacted their former jury verdict system in 1898 to diminish the influence of minority jurors, mainly African Americans. Until it was overturned, Louisiana’s jury verdict system was a pillar of the Jim Crow South.
In 1934, Oregon’s non-unanimous jury verdict system was enacted by voters after a widely covered murder trial resulted in a sole juror refusing to find a Jewish defendant, Jake Silverman, guilty of murder and instead manslaughter. As a result, he received a significantly lighter sentence of three years in prison.
Silverman’s acquittal on the murder charge brought with it disdain and racist attacks on ethnic jurors and unanimous jury verdicts from the now-defunct Oregon newspaper publication, The Morning Oregonian.
Oregonian reporter, Shane Dixon Kavanaugh, writes “The Morning Oregonian, which railed against the juror in an editorial tinged with racist undertones and nativist fervor. ‘This newspaper’s opinion is that the increased urbanization of American life … and the vast immigration into America from southern and eastern Europe, of people untrained in the jury system, have combined to make the jury of twelve increasingly unwieldy and unsatisfactory,” it wrote on Nov. 25, 1933.’”
According to Kavanaugh’s article, this wasn’t the first time the newspaper criticized ethnic jurors. Kavanaugh writes, in prior editorials, the newspaper referred to ethnic jurors as “mixed blood” and “lamented the role that some immigrants played on juries, questioning their ‘sense of responsibility’ and ‘views on crime and punishment.’”
What do prosecutors have to say about it?
This year, the Oregon District Attorney Association or “ODAA,” the powerful professional organization for state prosecutors, considered leading a ballot initiative to repeal the state’s jury verdict system. However, ODAA abandoned the effort.
However, several powerful organizations and politicians remain vocally supportive of ending non-unanimous jury verdicts, including Oregon Attorney General Ellen Rosenblum, Multnomah County District Attorney Rod Underhill, Benton County District Attorney John Haroldson, Deschutes County District Attorney John Hummel, the Office of Public Defense Services, and the Oregon Criminal Defense Lawyers Association.
Opposition to repeal is still strong amongst Oregon prosecutors, including Clatsop County District Attorney Josh Marquis, Tillamook County District Attorney William Porter, and Jefferson County District Attorney Steve Leriche. Writing in a co-authored November 17th Oregonian op-ed, the three district attorneys criticize Hummel for calling non-unanimous jury verdicts racist. The prosecutors write, “if he thinks our current law is racist, has he ordered his prosecutors to insist upon unanimous jury trials in all cases?”
Oregon’s prosecutors supporting non-unanimous jury verdicts raise an interesting point. Why haven’t they?
Oregon’s current jury system disadvantages thousands of Oregonians. According to a study conducted by the Oregon Office of Public Defense Services Appellate Division, 65.5% of felony jury verdicts were non-unanimous on at least one count. Arrests, convictions, and even the appearance of criminal history have a devastating impact on job seekers, college or university applicants, housing applicants, renters, persons seeking state and federal benefits, and undocumented immigrants and their families seeking pathways to citizenship.
Former Multnomah County Circuit Court Judge and current Oregon Court of Appeals Judge Bronson James wrote in his State v. Williams trial court decision, “Oregon’s non-unanimous jury provision says that ‘ten members may render a verdict of guilty or not guilty.’ It is permissive, not mandatory. Parties can mutually consent to try a criminal case to unanimity.”
In October, the Oregon Court of Appeals heard oral argument on this matter, and it is currently under advisement.
While thousands of defendants, including Oregonians, non-Oregonians, and undocumented immigrants, charged with felonies await trials on cases where they could be convicted by non-unanimous jury verdicts, it is unclear when and how a decision on the abolishment of non-unanimous jury verdicts will occur.