Review all non-unanimous verdicts
The U.S. Supreme Court’s April 20 ruling ending non-unanimous jury verdicts in criminal cases righted an old wrong rooted in racism and bigotry. But the work of erasing that stain on Oregon’s history remains. The state Department of Justice must complete that work thoroughly, not partially.
Until the high court ruled, Oregon was the last state in the country to allow verdicts of 10-2 or 11-1 to determine the guilt of a criminal defendant. Only murder cases required a 12-0 vote by a jury. Louisiana had been the only other state with a similar law, but its voters remedied that in 2018.
Both states’ laws were rooted in bigotry.
Louisiana changed its constitution to permit non-unanimous verdicts in 1898, after the 14th Amendment permitted Black Americans to serve on juries. By allowing non-unanimous verdicts, Louisiana saw to it that one or two Black jurors could be overruled by a majority of white jurors. The amendment was adopted at the Constitutional Convention of the state of Louisiana, which was held, according to the journal of its proceedings, to “establish the supremacy of the white race.”
In Oregon, a Jewish man was accused of killing a Protestant man in Portland in 1934. The jury could not reach a unanimous verdict on second-degree murder and convicted the defendant of manslaughter instead. The public outcry — fueled by editorials in the Morning Oregonian — led the Legislature one month later to propose a constitutional amendment allowing non-unanimous verdicts for everything except first-degree murder. The voters approved.
The Louisiana vote to outlaw non-unanimous jury verdicts applied only to cases after 2018. The case the court decided in April was that of Evangelisto Ramos, a Louisiana man convicted by a 10-2 jury vote in 2016 of killing a woman in New Orleans.
The Ramos v. Louisiana ruling means that every criminal case decided in Oregon by a less-than-unanimous jury verdict was wrongly decided. But Oregon Attorney General Ellen Rosenblum has been reluctant to agree to review all those cases, arguing that it could overwhelm the state courts to review hundreds if not thousands of convictions.
The Justice Department has conceded that convictions in at least 269 cases should be tossed out, but those are only the cases that were already on direct appeal. The total number is likely much larger. In some cases, the defendants are in prison, some are on parole or probation, and still others have served their sentences but may be paying restitution.
The courts are hampered by the pandemic, reduced to essential functions, and this adds to the burden they will face after they resume more normal operations. But the fact remains that all those defendants were wrongly convicted.
Revisiting those cases already on direct appeal while ignoring older cases treats some defendants differently than others. That is as wrong as convicting defendants on less-than-unanimous jury verdicts.
The state should do whatever it takes to review all those cases, no matter how long it takes. Even those defendants who have served their sentences are living with the stigma of felony convictions the nation’s highest court has said were wrongly decided.
That’s not fair, and it’s not justice.