Hundreds serving time in Oregon prisons eligible for new trial, state Supreme Court says

The Oregon Supreme Court has ruled that people convicted by nonunanimous juries have the right to a new trial. Before the U.S. Supreme Court overturned the practice of convicting defendants with less than a unanimous jury, Oregon and Louisiana were the only states that allowed it. The justices left it to those states to decide whether or not the ruling applied retroactively to those already convicted. OPB reporter Conrad Wilson covers criminal justice and legal affairs and joins us to tell us more about the ruling and what happens next.

Note: This transcript was computer generated and edited by a volunteer.

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. The Oregon Supreme Court ruled just before the new year that people convicted by nonunanimous juries have the right to new trials. It was a response to a set of earlier rulings from the highest court in the land which overturned nonunanimous convictions going forward, but left it up to states to decide what to do with people who had already been convicted. OPB reporter Conrad Wilson covers criminal justice and legal affairs. He joins us to talk about this new ruling and what happens next. Conrad, welcome back.

Conrad Wilson: Hi Dave.

Miller: So for a long time, Oregon was one of just two states to allow convictions by nonunanimous juries. The other one was Louisiana. Can you start just by reminding us how this actually worked? What could happen in trials in these states, that couldn’t happen in the other 48 states?

Wilson: Sure. So in a criminal jury trial in state court, there are 12 jurors who sit through the trial, they hear all the evidence, and then they decide whether or not the defendant is guilty or not guilty. And for decades, in Oregon and Louisiana, defendants could be sent to prison if just 11 or even 10 of the jurors voted to convict.

Miller: Why did the US Supreme Court overturn this practice in the Ramos case two years ago?

Wilson: I think it’s actually worth noting too though what as you said, what couldn’t happen in the 48 other states. Basically, unlike the rest of the country, for decades people in Oregon and Louisiana were convicted of serious felonies when there was still doubt amongst jurors. There was an exception in Oregon under the nonunanimous jury system for murder that still required unanimity, but many of the serious crimes took just 10 of 12 jurors to convict.

And it’s worth noting that it was a system rooted in discrimination and racism. In Louisiana, it was a Jim Crow law that passed after the Civil War. The nonunanimous jury system made it easier to convict people, which disproportionately affected African American defendants. I talked to one researcher who told me that it was really a way for white landowners to re-enslave the state’s Black population. The state’s prison system would lease convicted people out for work for these white landowners.

And in the history in Oregon, it’s different, but it is also based on discrimination. Voters passed it in 1934, as part of the reaction to a case where a jury couldn’t agree on a murder conviction for a Jewish man. It was during a time in the state’s history when the Ku Klux Klan was very powerful, and anti-immigrant sentiment was really high.

I’ve often asked myself how did this go on for so long? And the law did have supporters who argued it created a more efficient system that led to fewer hung juries.

Miller: Ramos was the first US Supreme Court case about this, saying you cannot have convictions if there is not unanimity among the jurors. But then in a related ruling, the court decided to not make this retroactive. What did that mean?

Wilson: So last year, in a separate case, the US Supreme Court took up the question about what to do for those who were convicted by a nonunanimous jury long ago. There are people in prison now serving sentences for crimes based on convictions that the nation’s highest court said are unconstitutional moving forward. The US Supreme Court said it was basically up to states to decide how to handle it.

Miller: Democrats in the Oregon legislature decided they would take that on last year to address these convictions. What happened?

Wilson: There was a bill, Senate bill 1511. It would have vacated sentences on nonunanimous jury convictions for people in prison. It would have applied only to those whose victims were not minors. Despite the discriminatory past, and Democrats calling this legislation a priority, electoral politics got in the way. Last year was an election year, and there was just a lot of concern, if you recall, among Democrats about looking soft on crime, looking like criminal justice reformers. And this legislation, they felt, may fall into that. And so the legislation never made it out of the legislature.

Miller: So this brings us to the recent Oregon Supreme Court case. What did the highest court in the state say?

Wilson: They took the US Supreme Court’s direction, basically saying when the US Supreme Court ruled that nonunanimous juries were unconstitutional, that was a decision that was applying to future cases. Then there was another decision that the US Supreme Court leaving it up to states to decide what about past cases. With the legislature not acting, yes, it brought us to the Oregon Supreme Court. They basically said last Friday that Ramos is retroactive, or put another way, that anyone convicted by a nonunanimous jury should get a new trial. Anyone, period. Regardless of when.

Miller: How many people are we talking about?

Wilson: It’s estimated about 300 people or so. Those are people that have come forward. Before the Senate Bill 1511 was introduced, there was a project at Lewis & Clark Law School called the Ramos project. It did its best to find how many people there are who could be convicted by a nonunanimous jury. It’s actually kind of hard to know in some cases, there isn’t great documentation. Being able to prove whether or not a conviction was not unanimous, especially older cases, has been really challenging for trying to get a solid number. So there’s 300 people or so who have come forward or can have some sort of documentation that can prove it. The District Attorney’s Association says it could be hundreds or thousands of cases even. If you think about it, we’re talking about more than 80 years of cases here. Some of these people have died, others are just not going to apply. But it’s a bulk of the state’s history that was gonna be revisited in these cases.

Miller: You noted that there is a carve out for murder, that in Oregon you could not be convicted without a unanimous jury if the charge was murder. But what about other crimes? What kinds of crimes have people in Oregon been convicted of through nonunanimous juries?

Wilson: Yes, as you said, murder does require unanimity. But there’s a lot of other very serious crimes where just 11 or or even 10 of the 12 jurors could convict the defendant. We’re talking about a wide range of crimes. Some of the most challenging cases involve sexual abuse and rape, and often these are difficult crimes to prosecute period, and it comes down to the credibility of the defendant and the victim. I think those are some of the more challenging cases that are just being reviewed. But really, it’s a wide range of felony non-murder cases that this really applies to.

Miller: So what does it mean that these people who are currently in prison, now that they have a right to a new trial?

Wilson: Well, it means that their conviction is wiped out, and prosecutors need to decide whether or not to bring charges and to retry the case. In some cases, there are defendants who were convicted of multiple charges. So you could envision a case where some of the charges were unanimous and others were non unanimous. And in those cases, it might not change the length of a person’s prison sentence.

You also have cases where people have completed most of their sentence, or all of their sentence, that were convicted by a nonunanimous jury. And in those situations, it seems very unlikely that prosecutors would retry those cases after somebody has basically served the penalty for a crime.

Miller: But let’s assume that there’s some case that there was some kind of serious violent crime, short of murder, and somebody is still behind bars, convicted nonunanimously for that charge. How would prosecutors be able to bring a case all over again? What if, for example, witnesses have died?

Wilson: A couple of a couple of things to think about. Right after the Ramos decision came down, there were about 400 cases on direct appeal, much more recent cases. All of those convictions got scrapped, and basically, prosecutors had to decide “are we gonna retry? How are we gonna retry these cases?” And in many of those cases did get retried or they resolved through plea deals.

Those are more recent cases. What we’re talking about with these are much older cases. And you’re right, there could be witnesses who have died, maybe the evidence isn’t available anymore. And even in some of these cases, defendants would have served the bulk of their sentence already. So we’re talking about older cases where defendants have exhausted their appeals, really quite old cases at this point,

Miller: What would whole new trials mean for victims?

Wilson: As you can imagine, this whole process of reexamining nonunanimous juries in Oregon has been challenging for victims. The case that they thought was closed is no longer anymore. And that’s very destabilizing in a public safety system. And it’s kind of balanced against this idea that there are people who are convicted by a system that the US Supreme Court says violates the constitution. So it’s challenging for victims and for defendants. Under the bill lawmakers failed to pass last session, there would have been about $6 million dollars to support victims. That of course did not pass. And there’s no money attached to an Oregon Supreme Court ruling that would support victims.

Miller: So what are the next steps here right now?

Wilson: There’s these 300 folks who are known, and it seems those convictions will be vacated. Other people could come forward, we’re talking as I’ve said about old cases, and you have to prove that you were convicted by a nonunanimous jury. How do you prove that? Do you have a jury form? A transcript from the hearing? It’s not as easy as maybe it sounds to prove. But we could have more people coming forward looking at whether their conviction would be vacated as well.

Miller: Oregon’s Attorney General Ellen Rosenblum, a Democrat, calls herself a progressive, and has argued that she has been prioritizing equality under the law. But her usual allies have not been happy about her approach to nonunanimous convictions over the last two years, three years. Can you give us a sense for what she’s done, how she has approached this issue?

Wilson: Sure. So she says “I’ve had to uphold state law, and this is state law. Voters in 1934 passed nonunanimous juries, and it’s something that as the attorney general, my job is to uphold the state law.” She told me in an interview a couple of years ago when this case was going before the US Supreme Court, she said “I wish I didn’t have to do this. This isn’t something I want to do. It’s not my belief system. I think that they’re wrong. But it is state law. And my job is to uphold state law.”

Miller: So how did her office respond to this ruling last week from the state Supreme Court?

Wilson: Well, as you pointed out, they have had to defend the state’s practice of using nonunanimous juries over and over again. And they said that it’s been a long and winding road to get here. But the attorney general said in a statement that she’s committed to eradicating inequities and ensuring fairness and impartiality and the delivery of justice in our state.

Miller: Before we say goodbye, Governor Kate Brown now has less than a week in office. I’m curious what you think she is going to be most remembered for in terms of criminal justice issues?

Wilson: I think there’s two things. One of the biggest is commutations. She’s commuted the sentences of hundreds of people. The bulk of those were during the pandemic for people in prison as the state tried to create more capacity in the prison system to create more room. But that has been a widely criticized practice, and something that she has also said is important to her in trying to create equity in a system that is inequitable.

The other big issue is the death penalty. She’s made big steps in terms of trying to make it very difficult to execute people moving forward. She’s upheld a moratorium from her predecessor, she ordered the Oregon Department of Corrections to close down what had been a physical facility of death row, and most recently she vacated the death sentences for people still on death row. There are some things that the Oregon Supreme Court and the Legislature have done to really narrow the definition of a death sentence. But vacating those sentences, people will remain in prison for the rest of their lives that had a death sentence, to her, she said, this is a moral moral issue, the state should not be in the business of executing people. So between commutations and the death penalty, I think these are big things that will at least be part of her legacy.

Miller: I should note that just about two weeks ago we got reaction on the governor’s executive actions on the death penalty from a former state penitentiary superintendent who now opposes the death penalty. And a victim’s rights lawyer who was unhappy with the way the governor, in her words, “failed to consult with victims and their families before making those orders.”

Conrad Wilson, thanks very much.

Wilson: You’re welcome, Dave.

Miller: Conrad Wilson is an OPB reporter who covers criminal justice and legal affairs.

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