By Aubrey Wieber

The Bulletin

Oregon has a long history of racism and xenophobia dating back to its pre-statehood practice of excluding black residents from settling here. It later became the only state admitted to the union with an exclusionary clause in its constitution.

Some argue that contempt for minorities persists today in the form of jury verdicts that do not require unanimous approval — a practice Oregon voters approved in 1934. Advocates for jury reform, citing U.S. Census Bureau data, say the unorthodox practice silences minorities and can lead to race-based criminal convictions of innocent people.

But the use of nonunanimous verdicts could receive its most significant scrutiny in 46 years if the U.S. Supreme Court decides next week to review a case that challenges the practice.

On Sept. 25, the high court will decide whether it will take on a case in the only other state that allows nonunanimous verdicts — Louisiana.

It would be the first time it has looked at the issue since 1972, when it could not render a decision and thus upheld a lower court’s ruling that nonunanimous verdicts were constitutional. The high court has never ruled definitively on the constitutionality of nonunanimous juries. If it rules the practice unconstitutional, it will be banned throughout the country.

Both Oregon and Louisiana allow 10-2 verdicts to convict or acquit a defendant, rather than 12.

For murder or aggravated murder, 11 votes are required. For all other felonies, a 10-2 vote will suffice. Misdemeanors in Oregon require a unanimous vote but only require six-person juries. To sentence someone to death, which would happen during a second phase of a trial after someone is convicted of aggravated murder, a unanimous vote is required.

The high court’s decision has the potential for serious impact in Oregon.

Census data from 2016 show Oregon is 87.4 percent white, meaning a representative jury would likely have one or two people of color. Because of ­Oregon’s standard for conviction or acquittal, those votes and viewpoints could hypothetically be rendered moot in every trial.

“What we are saying to these jurors, to the defendant, to the whole system, is that there can be doubt,” said Aliza Kaplan, director of the Criminal Justice Reform Clinic at Lewis & Clark Law School.

A racist past

Oregon adopted the practice amid a climate of blatant racism. The law was passed during the height of the Ku Klux Klan’s influence in the state and less than a month after a jury was unable to unanimously agree to convict a Jewish man of first-degree murder. Rather, Jacob Silverman was sentenced for manslaughter, generating anti-immigrant headlines in The Oregonian.

More egregious examples of the Oregon media’s onetime disdain for minority jurors are found in coverage of the infamous “Massie Case.” Thalia Fortescue Massie, who was white, reported in 1931 that she had been assaulted and raped by five Hawaiian men while leaving a nightclub in Hawaii. A recent judicial opinion issued by Multnomah County Circuit Judge Bronson James specifically states the Massie case motivated Oregon’s move to nonunanimous juries.

A descendant of Alexander Graham Bell, Massie was the daughter of a wealthy and politically powerful couple.

The five men were arrested, but after a three-week trial, the jury was deadlocked. An investigation paid for by ­Hawaii government officials later found all to be innocent and suggested Massie had fabricated the altercation.

To get revenge, Massie’s mother arranged the kidnapping of two of the men. One ended up being shot and killed. Massie’s mother and husband, along with two ­naval officers, were pulled over, and a police officer found the body of the man in their car. They were all arrested, but at trial, a jury found them guilty of manslaughter, not murder.

The nation was in uproar over any conviction at all, and blamed the racial makeup of the jury.

“We certainly do not wish the white people to sink to the native views on crime and punishment, but the natives must be aroused by some means to a realization of what jury duty means,” The Oregonian stated in 1932 following the verdict.

Old wounds refusing to heal

James, the Multnomah County judge, issued his opinion in response to a motion for a new trial in the state’s case against Olan Williams. He argues the current system is inherently discriminatory.

Williams was convicted of first-degree sodomy after a three-day trial on a 10-2 vote. During sentencing, a black woman spoke, saying she was the only black person on the jury and one of two who voted to acquit. She said his conviction was unfair.

James ultimately denied the motion for a retrial. He would not declare the Oregon Constitution to be in violation with the U.S. Constitution without “robust” evidence and a clear remedy. But, he described in detail his issues with nonunanimous juries, starting off by stating the law was created to disenfranchise minorities.

James also pointed out two jurors make up 16.6 percent of a 12-person jury, meaning a jury with an average cross section of Oregon would have 10 white people and two nonwhite people.

“If one wanted to craft a system to silence the average number of non-white jurors on an Oregon jury, one could not create a more efficient system than 10-2,” he stated in the opinion.

Deschutes County District Attorney John Hummel said a unanimous jury pool that is representative of the racial, gender and age makeup of the county forces other jurors to consider different perspectives. Hummel said there are nonunanimous convictions and acquittals in Deschutes County.

“When you give a juror an out to just say, ‘I can disregard one person or two people’s views,’ it compromises the integrity of the result,” Hummel said.

The natural question is how often do juries in Oregon produce a nonunanimous verdict?

Data are limited, but a report for the Oregon Public Defense Services Commission used data from 2007 and 2008, which found 1,421 trials reached the jury stage in those years. Of those, 662 were appealed and handled by the public defense system.

Those cases were reviewed to see how many had nonunanimous verdicts. Jury polling occurred in only 63 percent of those verdicts, but of those a nonunanimous verdict was reached in 65.5 percent of the cases.

It’s a small sample size, but after extrapolating the data, the study concluded that even if unanimous verdicts were reached in all cases where the jury wasn’t polled, over 40 percent of felony verdicts in Oregon are not unanimous.

Hummel said the 40 percent could be used for an efficiency argument, claiming the state would have to conduct retrials for all of those verdicts. He said that’s a weak argument.

“I don’t think so; I think they would work harder.”

Language on the initial ballot measure in 1934 suggested nonunanimous verdicts would be more efficient because they would stop a jury from being hung based on one irrational person. Hummel said he could buy that occasionally one person could slow down the process, but it’s more important to get the right outcome than be efficient. Further, he doesn’t think it’s likely two such people would end up on the same jury.

“That’s a doubt that’s reasonable,” he said.

— Reporter: 541-383-0376,