The Oregon Court of Appeals is set to hear arguments Thursday in Salem involving the case of an African-American man who was convicted by a non-unanimous jury in 2016.
The case has been closely watched because the court could find non-unanimous juries violate the equal protection clause of the U.S. Constitution.
"The equal (protection) provision requires that everyone be treated equally," said Marc Brown, Olan Williams' attorney and the chief deputy defender with the state's Office of Public Defense Services. "In this situation, someone who is a minority, who has a jury trial in Oregon is not treated equally as would be a white defendant."
The defendant in the case is Olan Williams. In July 2016, he was convicted of sodomy in the first degree and sentenced to more than eight years in jail. Williams was convicted by a jury of 10-2, meaning two jurors disagreed. Like Williams, one of those dissenting jurors was African-American.
"It does have the effect of disempowering minorities because of Portland's population of being mostly white," Brown said. "It's going to be rare to have more than two minorities on any given jury, which means the minorities on the jury can be completely ignored."
Oregon and Louisiana are the only two states that allow for split juries to convict defendants in criminal cases.
Critics argue there's a fundamental problem with convicting people when there are jurors who have doubt. But in this case, the argument is constitutional.
If the appeals court grants Williams a new trial, Brown said it effectively means the state would have to abandon non-unanimous juries.
Split juries are baked into both Oregon and Louisiana's Constitutions. In Louisiana, it's considered the last Jim Crow law on the books. The law was designed to incarcerate African-Americans after the Civil War.
In Oregon, legal scholars have found its history is similar, though its goal was to largely discriminate against Jewish and Catholic immigrants moving to the state at the time.
In the Williams case, Oregon argues the court of appeals can't review the case because Williams' attorneys haven't met the bar for a new trial.
"The claim of error that defendant raised by his motion for new trial was not based either on newly discovered evidence or on an allegation of juror misconduct," Senior Assistant Attorney General Timothy Sylwester wrote in court filings.
Still, Brown said the effect of Oregon's split jury system means Williams was denied a jury of his peers.
"If you're African-American, you get a jury that may have one or two African-Americans. But because we have the 10-2 jury system, those African-Americans can be essentially ignored, which is what happened here," Brown said. "In 48 other states, Mr. Williams would've been acquitted of his offense; in Oregon he has a 100-month mandatory sentence."
Some Oregon lawmakers and legal scholars say they're working on legislation to address non-unanimous juries as part of a suite of criminal justice reforms aimed at the 2019 legislative session.