On Sept. 17, a front-page story about jury verdicts elicited critical emails from a handful of readers, most prominently Clatsop County District Attorney Josh Marquis. The story, written by Bulletin reporter Aubrey Wieber, discussed a U.S. Supreme Court challenge involving Louisiana, where juries may convict defendants with only 10 of 12 votes. The case is relevant in Oregon, where felony convictions also may be obtained with the agreement of 10 jurors.

The sentence that sent some readers to their keyboards discussed a higher jury standard applied by law to the most serious felonies: “For murder or aggravated murder, 11 votes are required.”

Steve Doell, president of Crime Victims United, wrote via email: “Since when does Oregon have nonunanimous jury verdicts to convict on murder and aggravated murder cases? Try to get your facts straight.”

Likewise, Marquis wrote that “Oregon ... requires unanimous guilty verdicts for murder ...”

Given that Marquis, a longtime prosecutor, is an authority on the issue, you might think the matter would be settled. Write a correction and move on. Problem is, the source of the claim to which Marquis and others objected is another authority, Deschutes County District Attorney John Hummel.

What gives? As they say, it’s complicated.

On one hand, there’s the Oregon Constitution, which requires that “a verdict of guilty of first degree murder... shall be found only by a unanimous verdict.”

And on the other, there’s state statute, which says: “... a verdict of guilty for murder or aggravated murder shall be by concurrence of at least 11 of 12 jurors.”

If statute and the Constitution were to arm-wrestle, the Constitution would always win. However, says Hummel, “Oregon does not currently have a crime of first degree murder,” which is the crime that requires a unanimous verdict. Instead, we have murder and aggravated murder. The question, he says, “is whether an 11-1 verdict in a murder or aggravated murder prosecution would be valid or whether it would violate the Constitution.”

In his view, this area of the law is unsettled and will remain so until the state’s appellate courts rule on it.

Marquis does not believe the law is unsettled, arguing that it is impossible in Oregon to secure a murder conviction with an 11-1 jury vote. When judges rule, he says, the constitutional rights of defendants (in this case the requirement for a unanimous conviction for first-degree murder) always trump the statutory rights of crime victims (in this case, a lower standard for murder and aggravated murder convictions). In the face of this tension between the law and the Constitution, in other words, no judge is likely to shrug and say, in effect, “11 ‘guilty’ votes is close enough for me.”

That was certainly true in February 2016, when a Douglas County judge declared a mistrial in a murder case involving a man named William Aguayo. According to The (Roseburg) News-Review newspaper, Aguayo was arrested in connection with the death of a 57-year-old man in 2013. A Douglas County jury convicted Aguayo of first degree burglary and second degree robbery in 2016, but deadlocked on a charge of aggravated murder when only 11 of 12 jurors voted to convict.

Douglas County Deputy District Attorney Steve Hoddle asked Judge Randy Garrison to accept the 11-1 vote as a conviction, pointing to the requirements laid out in state law. Garrison didn’t buy it, telling Hoddle, “You’re dead on arrival.” Garrison later declared a mistrial on the murder charge.

Closer to home, in Deschutes County Circuit Court, Hoddle’s question would receive a similar response from Presiding Judge Alta Brady. She says she’d require a unanimous jury verdict for murder and for aggravated murder.

“The question,” she explains via email, “isn’t whether the statute names the crime in the same manner as the Constitution (i.e. murder v. murder in the first degree). The question is whether the common law definition of murder in the time the Constitution was adopted is the same as what was subsequently codified as murder” in statute. And Brady’s conclusion “is that the statutory definition of the crime of murder is identical to the common law (and constitutional) definition of murder in the first degree.”

And if a unanimous-jury requirement makes sense for murder, Brady writes, then it also makes sense for aggravated murder, as “the potential sentence … is even greater than a sentence for murder.” This is so, she says, even though “the crime of aggravated murder is a statutory creation, not previously recognized in common law.”

As for Hummel, he believes that an appellate court would require a unanimous jury verdict for aggravated murder while upholding the statutory 11-1 provision for regular murder prosecutions.

Whew. So, where does this leave us? As a practical matter, Marquis and Doell seem to be right: You’re not going to convict someone in Oregon of murder or aggravated murder with only 11 out of 12 votes. But the 11-1 provision does exist in law, creating, as Hummel notes, uncertainty — and disagreement — about what appellate courts would have to say if given the opportunity.

— Erik Lukens is editor of The Bulletin.

18325381