Measure Fails that Could Have Aligned Oregon with the Rest of the Country

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By: Kaitlyn Chomin
Member, American Journal of Trial Advocacy

In January 2019, a change to the Louisiana Constitution went into effect after Louisiana residents voted to amend the Constitution to no longer allow nonunanimous juries.[1] This action left Oregon as the only state that allows such verdicts.[2] However, in June of this year, the Oregon House of Representatives took measures that could overturn state precedent and join the rest of the country by requiring a unanimous jury verdict in all criminal cases.[3]

The resolution, which proposed an amendment to the Oregon Constitution, was passed with a unanimous vote by the House.[4] Opposition to the resolution has been scarce.[5] Rather, the measure has been backed by groups like the Oregon District Attorney’s Office, the State’s Defense Bar, the Oregon Department of Justice, the American Civil Liberties Union of Oregon, and the Oregon State Bar.[6] The Oregon District Attorneys Association favors the measure because they feel that adding the requirement of unanimity is an important safeguard against not only wrongful convictions but wrongful acquittals as well.[7] The Innocence Project in New Orleans provided evidence to support this conclusion.[8] According to the Innocence Project, 13 of the 57 Louisiana residents who have been exonerated were convicted by nonunanimous juries.[9] Similarly, the one person exonerated by the Innocence Project in Oregon was also convicted by a nonunanimous jury.[10] Furthermore, a study in 2009 conducted by Oregon’s Office of Public Defender’s Services found that more than forty percent of the 662 convictions from 2007-2008 were by nonunanimous juries.[11] Despite an outpouring of support for the bill, the bill failed to pass in the Oregon State Senate.[12] Although the measure failed this time around, Oregon voters may still see the measure in their ballots in 2020 if the bill is reintroduced during next year’s short session.[13]

Moreover, a ruling from the U.S. Supreme Court could change the allowance of nonunanimous juries in the Oregon Constitution.[14] The U.S. Supreme Court has previously addressed Sixth Amendment arguments in cases from both Oregon and Louisiana.[15] In both cases, the Court ruled that although nonunanimous juries are unconstitutional in a federal court, this provision of the Bill of Rights has not been incorporated to the states, thus making the amendments in these states constitutional.[16] This issue will be readdressed by the Supreme Court in Ramos v. Louisiana.[17] In March, the Court agreed to hear the case to revisit the constitutionality of nonunanmous juries.[18] Ramos was convicted of second-degree murder by a nonunanimous jury.[19] A ruling in Ramos favor would directly nullify Oregon’s nonunanimous jury amendment.[20]

Unanimity is important because holdout amongst the jurors is evidence that the state did not prove its case.[21] In a criminal case, the state has the burden of proving, beyond a reasonable doubt, that the defendant is guilty. Without meeting this burden, the state has failed to do its job and justice must prevail. However, in the interest of efficiency, this is not always the case.[22] When an Oregon jury began deliberating in the case against Olan Jermaine Williams, an African-American gay man, three members of the jury including the only African-American jury member voted to acquit the defendant.[23] When it became clear that deliberations would continue on to the next day, two of the holdouts decided to change their vote because they did not want to return the next day.[24] This left the verdict at 11-1, making it enough to pass the amendment in the Oregon constitution.[25]

Many law makers argue that the nonunanimous jury system is deeply flawed and highly racist.[26] With Oregon’s African-American residents comprising approximately two percent, nonunanimous juries marginalize minority viewpoints.[27] This is evidenced by the verdict in the Williams case.[28] The viewpoint of the only African-American juror failed to affect the outcome.[29] This nonunanimous jury system provides a way to silence minorities without actually excluding them.[30] Many lawmakers argue that this exclusion results in an equal protection issue as it denies a voice to the minority juror.[31]

One of the bill’s chief sponsors, House Majority Leader Jennifer Williamson, has referred to the requirement as “a stain on the criminal justice system,” and has opined that, “[w]hen a defendant’s freedom is on the line, [his] guilt or innocence should not be subject to majority rule.”[32] Moreover, many reform advocates and legal scholars have stated that the system is rooted in discrimination and is a remnant of the state’s less tolerant past.[33]

Although today Oregon tends to be one of the more progressive states, this has not always been the case. The Oregon amendment which allows conviction in cases, except those for first degree murder, by a jury voting 10-2 dates back to 1934 after the murder trial of Jacob Silverman.[34] Jacob Silverman was on trial for murder of a small town cook.[35] A twelve person jury voted 11-1 to convict Silverman of murder.[36] Unable to come to an agreement, the jury settled on convicting Silverman of a lesser manslaughter charge, and he was sentenced to three years in prison.[37] This decision was significant because the conviction of Silverman, a Jewish man, was made by a nonunanimous jury during a time when anti-minority sentiments were prevalent in Oregon.[38] The 1930’s were a time when the United States was changing both economically and socially as a large number of both Catholic and Jewish immigrants arrived in the states.[39] In response to this wave of immigration, the Klu Klux Klan began to resurface in Oregon, aligning themselves with Governor Walter Pierce and gaining his appointment to several state office positions in return.[40] A newspaper which covered the Silverman trial contained a quote which stated, “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.”[41]

While many lawmakers have shown their support for the bill, it has faced opposition as well.[42] One former district attorney believes that the requirement for a unanimous jury will result in an increase in hung juries.[43]

Although the measure has died this summer in the Senate, voters may still see the measure on their ballots in 2020 if lawmakers vote to have it reheard during the mini session.[44] Moreover, if the Supreme Court decides that nonunanimous juries are unconstitutional in state courts, appeals in cases such as Williams’s case will be rendered moot.[45] A favorable ruling by the Supreme Court will also ensure that Oregonians are given a fair trial sooner than November 2020 when the proposed amendment could be turned over to voters.[46] However, even if the Supreme Court overturns this provision, a vote by Oregonians to remove the text of the amendment from the Oregon Constitution would not be lost because it would remove an arguably historic racist provision from the state constitution.[47]

[1] Supreme Court to Consider Louisiana’s Non-Unanimous Juries, Associated Press News (Mar. 18, 2019), https://www.apnews.com/b78825d8ed8a4fc1858e889656d02da3.

[2] Id.

[3] Shane Dixon Kavanaugh, Oregon House Unanimously Moves to Scrap State’s Nonunanimous Jury System, The Oregonian (June 20, 2019), https://www.oregonlive.com/politics/2019/06/oregon-house-moves-to-scrap-states-nonunanimous-jury-system.html.

[4] Id.

[5] Id.

[6] Id.

[7] Supreme Court to Consider Louisiana’s Non-Unanimous Juries, supra note 1.

[8] Lorelei Laird, Oregon May Finally Join 49 Other States that Require Unanimous Jury Decisions in Criminal Cases, ABA J. (May 1, 2019, 2:30 AM), http://www.abajournal.com/magazine/article/oregon-unanimous-jury-criminal-cases.

[9] Id.

[10] Id.

[11] Kavanaugh, supra note 3.

[12] Conrad Wilson, Bill to Put Non-Unanimous Juries Before Voters Fails to Make it Out of Oregon Legislature, OPB, https://www.opb.org/news/article/non-unanimous-juries-oregon-bill-legislature-2019/ (last updated July 2, 2019, 11:31 AM).

[13] Id.

[14] Id.

[15] Laird, supra note 8.

[16] Id.

[17] Id.

[18] Wilson, supra note 12.

[19] Andrew Selsky, A Push Grows for Oregon to Drop Nonunanimous Jury Verdicts, Associated Press News (May 8, 2019), https://apnews.com/23b77e3a80c2408b9eb796302f19147e.

[20] Id.

[21] Laird, supra note 8.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Kavanaugh, supra note 3.

[27] Laird, supra note 8.

[28] Id.

[29] Id.

[30] Id.

[31] Id.