Oregon Justice Department Warns Supreme Court About Scrapping Unanimous Juries

By Conrad Wilson (OPB)
Portland, Ore. Aug. 23, 2019 11:47 p.m.
Oregon Department of Justice officials said Friday that “convictions in hundreds if not thousands of cases” would be invalidated if the U.S. Supreme Court overturned the state’s unique non-unanimous jury law.
In a friend of the court brief, state lawyers didn’t directly defend the state’s controversial non-unanimous jury system, but they did issue a warning about the potential disruption the nation’s highest court could have should it decide to overturn a 47-year-old ruling.
In October, the U.S. Supreme Court will hear Ramos v. Louisiana, which stems from a 2014 murder in New Orleans. Whatever the court rules, the outcome will almost certainly be widely felt in Oregon, the lone state in the country where criminal felony cases are still decided by non-unanimous juries.
Bill To Put Non-Unanimous Juries Before Voters Fails To Make It Out Of Oregon Legislature
Last year, Oregon became the last state in the country that allows jurors to reach non-unanimous verdicts in criminal felony cases, after voters in Louisiana changed their state’s constitution and scrap split jury verdicts.
Oregon’s legal position before the court comes down on the side of asking the justices to uphold the conviction of a Louisiana man who was found guilty by a 10-2 verdict before voters there ended non-unanimous juries.
In Ramos, justices will decide whether to overturn a 1972 Supreme Court ruling, Apodaca v. Oregon that found non-unanimous juries in state criminal courts are permitted under the U.S. Constitution.
The case asks whether the “Sixth Amendment, as incorporated through the Fourteenth Amendment, guarantees State criminal defendants the right to a unanimous jury verdict.” The court could use its sweeping powers to abolish non-unanimous juries, uphold them or find some middle ground.
The Justice Department’s amicus brief comes as Oregon’s political leaders as well as much of the state’s legal community are largely unified in their desire to abolish non-unanimous juries in future trials. Earlier this year, Oregon lawmakers tabled a bill to put the issue before voters, in part because they wanted to see how the U.S. Supreme Court would rule and possibly negating the need for a costly ballot measure campaign.
Attorney General Ellen Rosenblum acknowledges her own mixed feelings about the high court reviewing Oregon's law, and the potential consequences of its decision. 
“If I could’ve not had to write this brief, I’d be very happy, and I would prefer to move forward, and change our law – change our Constitution,” Rosenblum told OPB. 
The state’s friend of court brief has raised questions for some about Rosenblum, who has expressed support for ending non-unanimous juries, but now seems to be warning against their demise.
“If this Court were to overrule Apodaca, it would invalidate convictions in hundreds if not thousands of cases,” Rosenblum, Solicitor General Benjamin Gutman and other state lawyers wrote. “The state’s trial, appellate, and post conviction courts would be flooded with non-unamity claims to resolve and overwhelmed by the staggering number of cases that would have to retried.”
The authors note that their 43-page brief is not a discussion about whether Apodaca was correctly decided. “Nor does the brief contend that a non-unanimous jury rule is preferable to a unanimous jury rule,” they write. But the majority of the document discusses the state’s concerns and potential consequences should the Supreme Court overturn Apodaca.
While the federal government and 49 other states require all jurors to agree on a verdict, in Oregon it only takes 10 of 12 jurors to convict. The only exceptions are murder and aggravated murder cases, which require unanimous verdicts.
Earlier this year, Rosenblum’s staff told lawmakers that the state’s jury system was “out of step with criminal justice in the rest of the country.” Her office urged the Legislature to pass the bill putting non-unanimous juries before voters.
On May 6, Aaron Knott, the Justice Department’s legislative director, submitted written testimony to the House Rules Committee in support of the bill. In his testimony, Knott lamented Oregon’s unique situation.
“This status is all the more troublesome because the practice of allowing a conviction with less than a full unanimous vote has been linked with the historical exclusion of diverse viewpoints,” Knott wrote. “Requiring unanimous juries ensures fair representation, promotes systemic accountability and legitimacy, and brings Oregon in line with all 49 of our sister states.”
In a statement Friday, Rosenblum reiterated her support for repealing non-unanimous juries.
“That is why I support referring an Oregon constitutional amendment to voters that would change Oregon’s law going forward,” Rosenblum said. “But it is important that the U.S. Supreme Court understand the practical consequences should it reverse its decades-old determination that the United States Constitution allows non-unanimous verdicts."
“Reinterpreting federal constitutional requirements after 40-plus years would call into question thousands of settled criminal cases, and could require new trials in hundreds, if not thousands, of cases.”
Rosenblum said her Supreme Court filing doesn’t argue that non-unanimous juries are sound policy.
“The brief in no way undercuts my view that Oregon should require juror unanimity in criminal cases going forward,” she said.
"I fully support repealing our non-unanimous jury rule, but just not in this way," she told OPB Friday.  
Lewis and Clark Law professor Aliza Kaplan, who tracked the racist history of Oregon’s law in a law review article, said she takes issue with the number of cases the Justice Department estimate would need to be retried.
“If Ramos is successful it would lead to approximately 50 cases in Louisiana needing to be retried,” Kaplan said. “So it’s hard for me to imagine that Oregon has hundreds or thousands of cases at issue as the attorney general says in her brief.”
While the Justice Department’s filing reflects the state’s official legal opinion, it’s not the only brief from Oregon regarding the case.
In June, a group of former state Supreme Court justices, Court of Appeals judges, law school deans and governors signed onto an amicus brief urging the court to overturn Apodaca and rule that non-unanimous juries are not constitutional.
Oregon Gov. Kate Brown also urged the court to end non-unanimous verdicts.
“The governor regrets that Oregon is the only state left in the country that will permit somebody to be convicted of a crime and deprive someone of their liberty, on a vote of a non-unanimous jury,” said Misha Isaak, general counsel for Brown. “Governor Brown’s position is that it should not be that way and she is interested in seeing a policy change whether that happens in the legislature and the ballot box, or it happens through a court decision.”
“Unlike Gov. Brown and the attorneys general from a number of states that wrote in support of ending non-unanimous juries in this case, the Oregon attorney general decided to hide behind fear mongering and a retrograde practice born from Oregon's racist past, a practice her own office has said ‘exacerbates racial disparities,’" Kaplan said.
In Louisiana, split juries date back to the post-Civil War era. They were unveiled in what’s known as the “Constitution of White Supremacy” and have long served as a final remnant of Jim Crow laws. The amendment allowing non-unanimous verdicts was designed to make it easier to convict black defendants so the state’s white landowners had access to cheap prison labor.
In Oregon, voters created the non-unanimous verdict policy in 1934, at a time when anti-immigrant sentiment was high and the Ku Klux Klan was powerful in the state. It too sought to silence the voices of select jurors, and make it easier to convict.
Critics of non-unanimous verdicts argue they allow for convictions when there’s doubt and stop the deliberative process on juries. They also say they silence two jurors, sometimes people of color. The concern, Kaplan said, is that Oregon’s system can deny defendants of color a jury of their peers.
“Just by the very nature of our demographics we are possibly putting those minority jurors of being in a position where their voices don’t count at all,” Kaplan said.
Supporters of non-unanimous juries – which until recently included the Oregon District Attorneys Association – have pushed back on Kaplan’s analysis. They argue non-unanimous verdicts prevent hung juries and ultimately lead to a more efficient criminal justice system.
Oral arguments before the U.S. Supreme Court are set for Oct. 7.