The U.S. Supreme Court last week said it will consider overturning a criminal conviction by a 10-2 jury vote in Louisiana — potentially a big step toward eliminating the use of nonunanimous verdicts in criminal cases in the only state where they’re currently allowed.
That state would be Oregon. Not even Louisiana allows them anymore; the state’s voters last year approved a constitutional amendment that eliminated split-verdict convictions. (The Louisiana case involves a man, Evangelisto Ramos, who was convicted in 2016 of second-degree murder in the killing of a woman in New Orleans. Ramos is serving a life sentence with no chance of parole; the change in Louisiana’s constitution took effect in January, too late to help Ramos without court action.)
The court will hear Ramos’ case as part of its fall term, with a ruling presumably coming late this year or early next year.
It’s possible that the court’s ruling in the case could render moot any efforts by this session of the Oregon Legislature to eliminate nonunanimous verdicts. It’s also possible that the Legislature could act first, and a couple of bills to that end are pending before the House Judiciary Committee.
But regardless of the path we use — either through legislative action, a vote of the people on a constitutional amendment or via a Supreme Court decision — it’s well past time for Oregon to set aside this shameful relic of its past.
Oregon’s nonunanimous jury practice was born out of prejudice against immigrants and dates back to a Columbia County murder case in 1933 that paved the way for a constitutional amendment allowing juries to decide most felony cases on 10-2 votes. (A conviction for murder or aggravated murder still requires a unanimous verdict.)
Legal scholars (notably, Aliza Kaplan of the Lewis & Clark Law School) have written about the 1933 case, which involved a Jewish suspect, Jake Silverman, on trial for murder. One juror held out against conviction, and the jury eventually reached a compromise guilty verdict on a lesser charge of manslaughter. Silverman got three years in prison.
The backlash was considerable. The Morning Oregonian, for example, railed against the verdict on its editorial pages, in language that was — well, not even borderline racist, but you can be the judge. Consider this excerpt from a November 1933 editorial: “This newspaper’s opinion is that the increased urbanization of American life ... and the vast immigration into America from southern and eastern Europe, of people untrained in the jury system, have combined to make the jury of twelve increasingly unwieldy and unsatisfactory.” (To be fair, The Oregonian recently recanted this 1933 editorial position.)
The Legislature, responding to the outcry, voted to place a constitutional amendment on the May 1934 ballot to allow nonunanimous juries. The measure was approved by 58 percent of voters.
Since then, a number of attempts have been made to amend the constitution on this point — including a recent effort by the Oregon District Attorneys Association — but none has gained much traction.
Since the effort requires amending the constitution, it would require a public vote. Rep. Jennifer Williamson, D-Portland, has introduced one measure, House Joint Resolution 10, which would refer to voters in 2020 a constitutional amendment to do away with nonunanimous verdicts. She’s also introduced another measure, House Bill 2615, to repeal the statutory authority for nonunanimous verdicts in criminal trials; it’s essentially a holding measure for the 2020 election.
It could be that the Supreme Court will beat Oregon voters to the punch by declaring these nonunanimous verdicts unconstitutional. That would be fine. Even though Oregon residents love to brag about the state’s independence, here’s a case where that independent streak has become not just an embarrassment, but an affront to justice.