Two Oregon men have been exonerated of crimes this year that they say they never committed. In both cases, the men were convicted by non-unanimous juries.

Oregon is one of two states that allows people to be convicted of most felonies without all 12 jurors agreeing. Defense attorneys and some prosecutors say the recent exonerations highlight a problem with Oregon’s criminal justice system.

False Convictions Vacated

Last year, the Oregon Court of Appeals vacated Brad Holbrook’s conviction. In May, the Yamhill County district attorney dismissed the case against Holbrook because of misconduct by the prosecutor, effectively ending a 19-year long legal battle. But Holbrook still served more than six years in prison for a crime he says he didn’t commit.

“It’s highly unfair,” Holbrook told OPB this month.

In July 1999, Holbrook was indicted by a grand jury on sexual abuse of a child. At the time, he was an attorney in California.

His first trial ended in a mistrial. In March 2002, he was convicted by a non-unanimous jury — meaning there was one juror who was not convinced of Holbrook’s guilt.

“I don’t think a person should be locked up and given the label of criminal if there’s one or two people that firmly believe, after hearing all the evidence, the person’s not guilty,” he said.

The false conviction altered Holbrook’s life. After prison, he moved in with one of the jurors from his first trial who offered help to get him back on his feet.

“I’m not really angry,” Holbrook said. “The word that I always try and use now that I’ve thought about this for the last 20 years is really frustrated. I think it’s really frustrating.”

While Holbrook’s exoneration is unusual, it’s not unique.

In early September, there was a second exoneration after the Deschutes County district attorney dismissed the case against Josh Horner.

In March 2017, a jury convicted Horner of rape and sexual assault involving a minor. He was sentenced to 50 years in prison, but his conviction was overturned after it became clear to the defense and prosecutors that the alleged victim lied about key facts during the trial.

Brittney Plesser, a staff attorney at the Oregon Innocence Project, which represented Horner, said this case illustrates an issue with non-unanimous juries.

“In this case, there was certainly a mixed verdict,” Plesser said. “You can’t get inside a jury’s heads and know why they’re making certain decisions, but I think (Oregon’s non-unanimous system) allows for a jury to disagree in a way that to me is not beyond a reasonable doubt.”

‘Our Greatest Fears Is A Wrongful Conviction’

Allowing juries to convict defendants without unanimity in most felony criminal cases is enshrined in Oregon’s constitution. The exception is for murder or aggravated murder cases, which in Oregon still require all jurors to agree.

“I can speak for every district attorney and deputy in the state when I say that one of our greatest fears is a wrongful conviction,” said Tim Colahan, executive director of the Oregon District Attorneys Association, last November before the state’s judiciary committee during a panel about non-unanimous juries.

“I can also tell you with absolute certainty that the non-unanimous jury policy reduces the number of hung juries in criminal cases that go to trial,” he said. “In doing so, it clearly saves scarce resources in our criminal justice system.”

Earlier this year, the DA’s association tried to launch a campaign to require unanimous juries. But that plan fizzled after it became known that DAs wanted to remove a defendant’s right to choose a jury or judge trial as a trade-off for giving up non-unanimous juries.

Since 1991, there have been 19 exonerations in Oregon, according to the National Registry of Exonerations. But according to the registry, Horner and Holbrook’s cases are the only two in recent years that involve non-unanimous juries.

By comparison, since 1989 there have been 48 exonerations in Washington state courts, according to the registry. There have been 191 in California.

Deliberating Change

Portland criminal defense attorney Matthew McHenry was Holbrook’s post-conviction attorney.

“The name of the game is not speed and efficiency. It’s deliberation,” he said. “The point of the deliberative process is to be exhausting. And to make sure everyone’s view is covered. And to make sure if you are sending someone to prison, that’s not based on a whim, that’s not based on fancy. That’s based on a serious look from all perspectives.”

Deschutes County District Attorney John Hummel worked with the Oregon Innocence Project to investigate Horner’s appeal and eventually dropped the charges.

“Put me down for a vote to require jury unanimity,” Hummel said. He said he’d like to see state lawmakers put the issue before voters.

“Let’s get out of the dark ages. Let’s have the vote,” Hummel said. “We can all debate it. I’d like to see the campaign … that says it’s great to convict people when there’s doubt.”

Steve Wax, the Oregon Innocence Project’s legal director, agrees the state needs to revisit its jury system.

“If as a society we’re going to incarcerate people and, as in Mr. Horner’s case, incarcerate them for ungodly periods of time — a 50-year sentence — that man would’ve died in prison without 12 jurors having said, ‘You did it,’” Wax said. “That’s wrong.”

Wax argues that unanimous verdicts are a core piece of American law.

“It’s better than 10 people go free than that one innocent person suffer,” he said.

Louisiana is the only other state in the country that allows for non-unanimous juries in criminal cases. This fall, voters there will decide whether to keep that jury system.

Should Louisiana voters decide to amend their constitution, Oregon would be the lone state with this kind of controversial jury system.