US Supreme Court Ruling Ends Oregon's Non-unanimous Jury Convictions

By Conrad Wilson (OPB)
Portland, Ore. April 20, 2020 3:15 p.m.

The U.S. Supreme Court ruled 6-3 Monday that the U.S. Constitution requires unanimous jury verdicts to convict defendants in state criminal courts. The ruling in Ramos v. Louisiana not only overturns a previous Supreme Court ruling, but also ends Oregon's history of using non-unanimous juries to find people guilty of crimes other than murder. In Oregon and Louisiana, the ruling could affect hundreds, if not thousands of defendants who are appealing their cases.


Specifically, the U.S. Supreme Court ruled the 14th Amendment incorporates a person’s Sixth Amendment right to jury unanimity.

Oregon was the last state in the country that utilized a non-unanimous jury law, allowing convictions in many types of cases with an 11–1 or 10–2 decision.

In 1972, the justices ruled in Apodaca v. Oregon that non-unanimous juries in state criminal courts are permitted under the U.S. Constitution.

Writing for the majority, Justice Neil Gorsuch said the then justices got it wrong.

“Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory,” Gorsuch wrote. “But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right.”

The case was decided outside the traditional liberal-conservative fault lines. Gorsuch was joined by Justices Stephen Breyer and Ruth Bader Ginsburg. Justices Clarence Thomas, Brett Kavanaugh and Sonia Sotomayor concurred, at least in part, in separate opinions.

Samuel Alito dissented, largely over concerns about the court overturning itself. He argued the court was “lowering the bar for overruling our precedents.” Alito was joined by Chief Justice John Roberts and Justice Elena Kagan.

"We've had a system that allowed people to be convicted in a way that today the Supreme Court ruled is unconstitutional," said Marc Brown, Oregon’s chief deputy public defender for appeals. "For most of these individuals, they’ll never get justice. Many of them are no longer with us. Many of them, their convictions are decades old. How do you revisit that?”

Monday's Supreme Court case was out of Louisiana, though that state had previously ended the practice of non-unanimous juries through a measure approved by voters.

The case stemmed from a 2014 crime, when a New Orleans city code enforcement officer found the body of Trinece Fedison stuffed in a trash can in a wooded area behind a blighted property. After a two-day trial in 2016, a jury convicted Evangelisto Ramos of second-degree murder by a verdict of 10-2, meaning two jurors thought Ramos was not guilty. Ramos remains in prison but is expected to receive a new trial as a result of the ruling.

The ruling will affect hundreds of others in Louisiana who have been convicted by non-unanimous juries.


“There’s some 1,700 people we’ve identified in custody who are on non-unanimous convictions,” said Ben Cohen, with the Promise of Justice Initiative in New Orleans and Ramos’s attorney. “It will be an open question whether those people get new trials or not.”

The Oregon Judicial Department said the state's supreme court is holding 74 petitions for review in criminal appeal cases that could be affected by the court's rulingMore are expected. There are also more than 2,900 criminal appeals pending in the state's court of appeals, but it's less clear how many are affected by the ruling.

“It changes 85 years of history in how we convict people of crimes,” said Aliza Kaplan, professor at Lewis and Clark Law School in Portland, who has worked to change Oregon’s jury system. “Any case that started today where a jury has not ruled, and any case that is on appeal currently that does not have a final ruling will be directly affected by this ruling.”

The Oregon District Attorneys Association said it was still looking into what the ruling would mean for cases in the state, but noted they have supported changing the state’s jury system since 2018. The group also acknowledged the ruling could make it more difficult for prosecutors to win convictions.

“However, it is a hallmark of our justice system that it should be difficult to take someone’s liberty,” ODAA said in a statement. “This is evidenced by the fact that in criminal cases a defendant is presumed innocent and the state prosecutor must prove guilt beyond a reasonable doubt. Adding the requirement of unanimity is another important safeguard.”

Non-unanimous juries have been part of Oregon’s Constitution since 1934, when voters adopted the practice. Legal scholars argue non-unanimous juries are rooted in discrimination, and that Oregon’s law was originally intended to silence the voices of Catholic and Jewish immigrants in the state.

In Louisiana, the law was directly tied to Jim Crow laws and aimed to make it easier to convict black defendants so white landowners could maintain a cheap post-slavery labor force. In November 2018, Louisiana voters scrubbed non-unanimous juries from their state’s Constitution. But that didn’t prevent the Supreme Court from agreeing to hear a case that directly dealt with the issue of non-unanimous juries.

In recent years in Oregon, there's been a growing recognition about the state's racist and discriminatory past, as well as an understanding among many state lawmakers and elected officials that there should be no doubt among jurors when convicting a defendant of a crime.

The question now turns to how the ruling will be applied and what it means for criminal defendants.

“It’ll be up to the Oregon courts to address how this ruling affects people who have final convictions based on non-unanimous juries,” Kaplan said.

Before the Supreme Court heard arguments last fall, the Oregon Department of Justice filed a brief warning the court against overturning the 1972 Apodaca case.

"If this Court were to overrule Apodaca, it would invalidate convictions in hundreds if not thousands of cases," Attorney General Ellen Rosenblum, and other state lawyers wrote. "The state's trial, appellate, and post conviction courts would be flooded with non-unanimity claims to resolve and overwhelmed by the staggering number of cases that would have to retried."

Rosenblum opposes split verdicts and has favored doing away with non-unanimous juries, but wanted the voters to approve the change though a ballot measure to limit the change to future cases. She's running for a third term this fall and is unopposed in May's Democratic primary.

In a statement Monday, Rosenblum called the court's ruling "good news" and the non-unanimous provision in Oregon's constitution "an embarrassment."

“We have been expecting this ruling, and we’re well-prepared to address its significant consequences for Oregon’s justice system," Rosenblum said. "We have been working closely for months with our appellate courts and with the leadership of the criminal defense bar to plan our case review and the judicial process that will ensue. We will also need to be in contact with the many crime victims and their families who are impacted by this decision."

The justices did not address whether the ruling is retroactive. The ruling also only affects convictions. It does not say anything about non-unanimous acquittals, which are also permitted under Oregon’s Constitution.