When Louisiana voters struck down a law on Tuesday that allowed juries to convict someone without a unanimous verdict, Oregon became the last state in the nation to permit the practice in criminal cases.
Oregon’s constitution provides that a defendant can be convicted or acquitted by a vote of at least 10 jurors. Opponents of the law, which applies to most serious felonies, say it is a racist holdover from Jim Crow that unfairly denies due process. There’s now an effort in the Beaver State that would do away with it, and it includes Deschutes County’s outspoken district attorney, John Hummel, who Friday has an editorial in The Oregonian calling for repeal.
“Oregon is no longer in a notorious club with Louisiana. Voters there had the good sense to back out,” Hummel writes. “Now, Oregon has assumed the mantle of the sole state defending non-unanimous jury verdicts. It is long past time to give up that fight. I encourage the legislature to give Oregonians the opportunity to do the right thing.”
Hummel estimated an average of 20 percent of verdicts in Deschutes County Circuit Court were rendered with fewer than 12 jurors, though his office doesn’t keep numbers.
Oregon’s jury law dates to 1933 and the case of Jacob Silverman, a Jewish man accused of murder. Eleven of 12 jurors in his case wanted to convict for second-degree murder, but a holdout didn’t agree. Silverman was eventually convicted of manslaughter and sentenced to three years in prison, prompting public uproar over a supposedly light sentence.
The next year, Oregon amended its constitution.
This episode was the subject of hearings last year before the Oregon Senate Judiciary Committee. Lewis & Clark Law School professor Aliza Kaplan traced Oregon’s jury law to exclusionary provisions in the state constitution and said it was founded to erase minority viewpoints. She and other critics say the law denies racial minorities the chance to be judged by a jury of their peers and eliminates the critical burden of the prosecution to prove guilt beyond a reasonable doubt.
Kaplan’s testimony in Salem piqued the interest of legislators, according to Mary Sofia, legislative director for the Oregon Criminal Defense Lawyers Association. “Most of them had never heard about this,” she said.
The lawyers association has tried for years to overturn Oregon’s jury law — at the high court, the Legislature and the ballot box. Sofia said the group is optimistic next year will finally be the year. Two lawmakers, Sen. James Manning and Rep. Jennifer Williamson, have agreed to carry two pieces of legislation that would overturn the law. One would alter the state constitution and the other would put the question to voters.
The focus appears to have staying power. Williamson recently was interviewed on the subject by prominent civil rights activist DeRay Mckesson on his podcast.
The matter of nonunanimous jury verdicts was highlighted this year with two high-profile exonerations. One involved Joshua Gene Horner, a Redmond man convicted in 2017 of rape and sexual assault of a minor. Hummel said the Oregon Innocence Project had provided evidence that Horner’s accuser had lied. A judge reversed Horner’s conviction in July, and Hummel announced he would not re-try the case.
Clatsop County District Attorney Josh Marquis agreed the political winds are shifting, and Oregon may soon abandon its unique jury rule.
It was Marquis who last year provided a response to Kaplan’s testimony to the Judiciary Committee, disputing her account of the law’s racist origins.
“I’m opposed to overturning the Oregon law. I think the way it works now is fair,” Marquis said. “If anything, it protects the rights of minorities, because often, a juror doesn’t want to believe that a nice, clean-cut 22-year-old white kid in a suit could possibly commit a heinous act.”
He said the law does what it was intended to do: reduce the number of juries that are unable to reach a verdict.
“As a prosecutor and a defense attorney for the last 38 years, I can tell you we don’t get more guilty verdicts because of it,” he said. “You just get fewer hung juries.” He said the law is as likely to yield not guilty verdicts as guilty verdicts.
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