A promising effort to repeal non-unanimous jury verdicts in Oregon has lost much of its steam: The Oregon District Attorneys Association, which earlier announced its intention to lead a ballot measure to eliminate those verdicts, has backed away from that plan.
But the prosecutors' association isn't the only entity that could lead an effort to strike this racist relic of Oregon's past from the state constitution: The Legislature could begin work to refer this matter to voters. Or another group could take up the cause.
No matter how it happens, the provision in the constitution allowing a jury to convict with just 10 votes from 12 jurors for any crime save murder needs to be removed.
A recent story in Willamette Week reported that the district attorneys were backing away from plans to launch a ballot issue over the matter. To be fair, the news that the prosecutors' association was considering such a ballot issue was released prematurely, after a website with the information went live before it should have. So the word was out before association members had a chance to nail down the details.
And, even though the district attorneys seemed relatively united on the issue of targeting non-unanimous juries, it appears that other issues gummed up the works.
For example, at least some of the district attorneys were interested in targeting a pair of related provisions that were added to the constitution in the same 1934 ballot measure that allowed non-unanimous juries. One of those measures allows juries to acquit defendants with 10 votes. The other measure (and the one that likely triggered controversy) allows defendants, without the consent of a prosecutor, to opt for a bench trial before a judge instead of a jury trial.
Word that the prosecutors might be targeting the bench trial provision attracted the ire of criminal defense attorneys and diluted what appeared at first to be widespread support for eliminating the non-unanimous verdict clause.
Which is a shame: It's long past time Oregon eliminated that provision, which voters inserted into the state constitution after a sensational Columbia County murder case in the 1930s. That case involved a Jewish suspect, Jake Silverman, on trial for murder. One juror held out against conviction on the murder charge.
The backlash was considerable, and much of it (including newspaper editorials) featured a not particularly subtle racial undertone: The general idea was that certain people, certain immigrants, should not be serving on juries.
Here, for example, is part of an 1933 editorial from The Morning Oregonian: "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."
To its credit, The Oregonian's editorial page last year recanted that editorial opinion.
Legal scholars have argued over the years that part of the reason why Oregon adopted non-unanimous verdicts in the first place was to squelch the voices of minority jurors. Certainly, the historic record suggests that was the intent, although prosecutors disagree to whether that's how matters have played out in Oregon jury rooms.
Regardless, this is still a relic of Oregon's past that we should dump. So it seems a shame that the Oregon District Attorneys Association isn't planning to lead the charge against non-unanimous juries, at least not soon.
But the association has helped to raise the profile of the issue (as have various Oregon legal scholars who have researched the matter). So this would be an ideal time for another entity to take up the cause. Legislators, who are just beginning their 35-day session in Salem, could start to lay the groundwork — or another group could begin working on an initiative campaign. Regardless, the time has come to erase this embarrassing blotch on the state's constitution. (mm)