Benton County Courthouse

Oregon is now the only state where nonunanimous verdicts in criminal cases are currently allowed.

Even busy legislative sessions like the one that wrapped up last week leave a long list of unfinished business.

One of the surprises in the closing days of the 2019 session was its failure to refer to voters a measure that would have eliminated a quirk in Oregon law allowing for nonunanimous jury verdicts in criminal cases.

It's particularly surprising, because the measure (House Joint Resolution 10) passed without opposition in the House on June 20. But during the session's final weekend, the measure was referred to the Rules Committee, which often is a place where bills go to die, especially in the days before adjournment. 

It was not clear, in the smoke and dust of the final weekend, why the measure failed to pass muster in the Senate. There was speculation that senators wanted to wait for a U.S. Supreme Court ruling in a Louisiana case involving nonunanimous juries; in theory, it's possible that the high court's ruling could render the question moot in Oregon. The Supreme Court has yet to set a date for arguments in the case, so the timeline for a ruling isn't clear. 

It's also possible that the Legislature could return to this issue in its short session scheduled to begin in February 2020; that would still allow time for a proposed constitutional amendment to claim a spot on the November 2020 ballot. Rep. Jennifer Williamson, D-Portland, has made this issue a priority, and she may well take another run at it in next year's session.

Here's hoping she does exactly that — and here's hoping that Oregon voters get a chance in November 2020 to junk this nasty relic of the state's judicial past.

Oregon and Louisiana are the only two states in the nation that allowed nonunanimous juries to convict defendants of most felonies. In Oregon, only 10 of 12 jurors need to agree in order to convict a defendant. (A conviction for murder does require unanimity.)

And Louisiana doesn't allow nonunanimous juries any more; voters there have approved a constitutional amendment that eliminated split-verdict convictions. (The Louisiana case before the Supreme Court involves a man, Evangelisto Ramos, who was convicted in 2016 of second-degree murder in the killing of a woman in New Orleans. Ramos is serving a life sentence with no chance of parole; the change in Louisiana's constitution took effect in January, too late to help Ramos without court action.)

Previous editorials have delved into the history of this practice in Oregon, so we need not examine that in great detail today. Suffice it to say that this practice was born out of prejudice against immigrants and dates back to a Columbia County murder case in 1933 that paved the way for a constitutional amendment allowing juries to decide most felony cases on a 10-2 vote.

Legal scholars (notably, Aliza Kaplan of the Lewis & Clark Law School) have written about the 1933 case, which involved a Jewish suspect, Jake Silverman, on trial for murder. One juror held out against conviction, and the jury eventually reached a compromise guilty verdict on a lesser charge of manslaughter. Silverman got three years in prison.

The backlash was considerable. The Legislature, responding to the outcry, voted to place a constitutional amendment on the May 1934 ballot to allow nonunanimous juries. The measure was approved by 58% of voters. Foes of the split verdicts have argued persuasively that the system was intended to silence the voices of jurors of color and to make it easier to convict minority defendants. Various efforts had been made to amend the constitution on this point — including a recent effort by the Oregon District Attorneys Association — but none had gained much traction until this legislative session.

The Legislature should take up the issue again when it next gathers, with an eye toward removing this taint on the state's judicial system. There's no need to wait for the U.S Supreme Court. (mm)

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