The Oregon District Attorneys Association plans to campaign for a ballot measure that would abolish nonunanimous juries in Oregon, a move that Benton County’s top prosecutor supports.
Local defense attorneys also back the move to repeal the state’s constitutional amendment that allows nonunanimous juries to convict people in Oregon courts.
“The criminal justice system should be a reflection of the public's shared values," said Benton County District Attorney John Haroldson. "The unanimous jury system allows for all voices in the jury to be heard, and that's critical to a just and transparent criminal justice system."
In 1934, Oregon amended its constitution to allow for a defendant to be found guilty or not guilty of a felony by a 10-2 jury vote. The only exceptions are in cases of murder and aggravated murder.
Oregon is one of only two states — the other is Louisiana — that allow for nonunanimous convictions. (Misdemeanor cases in Oregon are tried by a panel of six jurors and must be unanimous.)
Corvallis defense attorney Jennifer Nash said the state law allowing nonunanimous juries was born from racism and xenophobia.
Nash referenced work by Aliza Kaplan, a law professor at Lewis and Clark College in Portland, about the origins of the amendment. Kaplan concluded that the a key goal of the amendment was to hamper the voices of minorities.
Oregon’s law was a reaction to the trial of Jacob Silverman, a Jewish man accused of killing a Protestant in 1933, according to an Oregon Law Review article by Kaplan. A 12-person jury convicted Silverman of manslaughter rather than first-degree murder because a single juror held out.
The article contends that nonunanimous juries continue to allow for the majority to dismiss the views of fellow jurors of a different race or class.
According to the article, research indicates that nonunanimous verdicts are rendered in over 40 percent of all felony jury verdicts in Oregon.
Corvallis defense attorney Mike Flinn said he is thankful that Oregon district attorneys are taking steps to remove possible prejudice from the state’s criminal justice system.
Haroldson asserts there is no evidence that nonunanimous juries negatively affect minorities. But, he said, 48 of 50 states require unanimous juries for felony convictions and Oregon’s policy should align with the rest of the country.
Proponents of the nonunanimous jury system believe it allows for fewer hung juries and increased efficiency in the criminal justice system, Haroldson said.
Corvallis defense attorney John Rich said it is perplexing to him that Oregon has allowed nonunanimous jury verdicts because such verdicts subvert the requirement of proof beyond a reasonable doubt in criminal trials.
Rich said he has argued for unanimous juries in several of his criminal cases.
Nash said that defense attorneys can ask for and the prosecution can agree in any given case that a verdict has to be unanimous. But she said she’s never seen that happen.
Rich said the constitutional amendment allowing nonunanimous juries includes language guaranteeing a defendant’s right in noncapital cases to waive trial by jury and be tried by a judge alone. He supports a change to unanimous juries so long as the defendant’s right to waive jury trial is preserved.
Flinn echoed Rich’s sentiment.
“I’m hopeful that there is not an improper motive behind presenting this proposal,” Flinn said.
Nash said the district attorneys’ decision to work toward repealing nonunanimous juries came as a surprise.
The U.S. Supreme Court last year considered whether to accept a case out of New Orleans that would have tested Oregon’s nonunanimous jury system, but the court decided in October not to hear the case.
Multnomah County District Attorney Rod Underhill told Oregon Public Broadcasting that the measure will likely be targeted for the 2020 ballot. Petition sponsors will need to gather more than 117,000 signatures to get the motion on the ballot.