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Pressure Grows On Oregon To End Non-Unanimous Verdicts

By RJ Vogt | November 18, 2018, 8:02 PM EST

Olan Williams stood before a 12-person jury, pleading innocent to felony allegations he committed sex acts with a heavily intoxicated man after a party. Ten jurors said he was guilty of orally sodomizing the man; two did not.

In almost every federal and state courthouse across America, such a verdict would be considered a hung jury. But in Oregon courts, like the one where Williams was tried in July 2016, the 10-2 verdict was enough to convict him under a clause in the state's constitution that allows non-unanimous jury verdicts.

Earlier this month, voters in Louisiana — the only other state in the country that had allowed split juries to send defendants to prison— amended their constitution to start requiring unanimous verdicts.

Now Oregon stands alone. Changing the law has gained widespread support in recent years, but ironing out how to do it has been a big hurdle. Louisiana's vote, said Jennifer Williamson, majority leader of the Oregon House of Representatives, gives new momentum to Oregonians calling for their own referendum on a practice rooted in early 20th-century anti-Semitism.

"We need to do everything in our power to correct the fact that Oregon is the only state in the nation that still has this unjust and deeply flawed provision in place," Williamson, a Democrat, told Law360.

Some in Oregon, such as public defender Marc Brown, are already fighting to change the state's use of non-unanimous juries. As Williams' attorney, Brown has appealed his client's conviction with an equal protection argument. One of the dissenting jurors in the case was African-American, like Williams, and Brown said the split-verdict rule is effectively disenfranchising minorities.

"The effect of the non-unanimous provision means that minorities will always be able to be ignored on juries because Oregon has such a low percentage of minorities in the population," Brown said. "Statistically you'll never have more than two [minorities] on a jury anyway."

The Oregon Court of Appeals heard Williams' appeal in October, but Brown said relief from the courts could take years. In the meantime, he said he's hoping the Oregon Legislature brings the issue to the voters during the next session.

Like Louisiana's law, Oregon's is rooted in racism — and constitutionally enshrined. It dates back to 1934, when the state passed an amendment following a notorious trial that involved a Jewish man accused of murder. Against the backdrop of simmering anti-Semitism and a robust Klu Klux Klan presence, defendant Jacob Silverman was accused of killing a Protestant man named Jimmy Walker.

Local newspapers followed every development in the case closely. During deliberation, 11 of 12 jurors wanted to convict Silverman on second-degree murder, but one juror wanted to acquit. After nearly 17 hours of discussion the jurors compromised with a conviction for manslaughter — and instead of life behind bars, Silverman was sentenced to three years in prison and a $1,000 fine.

In a 2016 Oregon Law Review article, Aliza Kaplan, co-founder of the Oregon Innocence Project and a professor at Lewis and Clark Law School, wrote that the Oregon Legislature proposed allowing non-unanimous verdicts within a month of Silverman's sentencing. The Morning Oregonian published editorials stating that "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."

The amendment passed with 62 percent of the vote. Seventy-five years later, the Oregon Office of Public Defense Services found that two-thirds of the state's convictions ended with at least one split verdict. In the past year, two such convictions were vacated in exonerations that reformers say demonstrate the need to end the practice.

Kaplan said a referendum is the surest way to eliminate the provision — but she also said "there's a very strong argument that the Legislature can act on this."

That's exactly what Williamson said she plans to do, using a two-pronged approach to "remove this racist relic from the Oregon Constitution once and for all."

"We need to send a referral to voters," Williamson said. "In the meantime, some legal scholars believe that ... statutorily we could require felony convictions only happen with a unanimous verdict. While this would almost certainly end up in the courts, I am pursuing both paths."

But prosecutors contend that that the only way to eliminate the practice is via referendum.

In January, the Oregon District Attorneys Association announced it would lead a ballot initiative to repeal the system. But when it was revealed that the ODAA aimed to simultaneously repeal defendants' right to choose between a jury or judge-only trial, defense attorneys and reform advocates publicly opposed the measure, and the district attorneys ultimately ditched the proposal.

Following the Louisiana vote, Matt Shirtcliff, ODAA president, said his organization still supports the concept of changing the law. Nevertheless, he maintained the only way to do so would be via a referendum.

"We support it, but we still think — just by rule of law, by constitutional law — it's got to go to the voters," Shirtcliff said. "We don't oppose the concept; our position would be that it still has to go to the voters."

He added that any unanimity requirement should go both ways, for convictions and acquittals. Williamson agrees, and said her legislation would apply to both guilty and not guilty verdicts.

For Kaplan, the vote in Louisiana is a model of how to change the practice and bring Oregon into line with the rest of the nation. The key in the Bayou State, she said, was the way both ends of the political spectrum came together.

"With this change in Louisiana, progressives and conservatives really kind of worked together to get rid of this relic of racism. ... I feel like we need more of that these days," she said. "I really hope that when it comes in Oregon, rather through legislation or a vote, that we can have the same kind of widespread support."

--Editing by Brian Baresch.

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