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Leaders fail to step up on jury verdicts

Oregon’s leaders can’t seem to decide how badly they want to end the stain of being the only remaining state to allow non-unanimous jury verdicts in criminal trials.

First, in July, Senate President Peter Courtney effectively killed a bill that would have asked voters to amend the state constitution after the measure had passed the House unanimously. The reasoning was that the U.S. Supreme Court has agreed to decide whether the U.S. Constitution allows non-unanimous criminal verdicts in state trials, and it might be difficult to get Oregonians excited about a constitutional amendment that might be moot.

Then, Attorney General Ellen Rosenblum filed a friend-of-the-court brief arguing that striking down the practice could paralyze the state’s court system because thousands of cases might have to be retried.

Those are hardly convincing arguments for not moving to end a practice rooted in racism and anti-Semitism, especially considering that Louisiana voters already changed that state’s laws to eliminate non-unanimous verdicts, leaving Oregon standing alone.

A unanimous jury verdict has been presumed to be the standard for criminal conviction since before the U.S. Constitution was written. The Sixth Amendment guarantees the right to a trial by jury, although it does not mention a unanimous verdict.

But the Supreme Court has held that a unanimous verdict is included in that guarantee — in federal trials. State trials, the court has held, are a different matter, and the court has so far declined to impose that constitutional requirement on the states based on the equal protection clause of the 14th Amendment, although it has done so for other rights guaranteed in the U.S. Constitution, including the Second Amendment right to keep and bear arms.

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.

Beyond the fact that the state’s law was rooted in bigotry, non-unanimous verdicts give Oregon prosecutors the unfair advantage of not having to convince all 12 jurors of a defendant’s guilt beyond a reasonable doubt: 11 or even 10 will do. A jury that polls 10-2 in favor of conviction isn’t going to bother taking the time to deliberate further and convince the one or two holdouts, who may have very good reason to doubt the state’s case.

Now — in 2019 — Oregon’s leaders are afraid the state’s voters won’t get behind a measure to remove this stain from the state constitution if they think the U.S. Supreme Court might do it for them. “The worst thing,” Senate Rules Chair Ginny Burdick said, “would be to put it on the ballot and have it fail.”

No, the worst thing would be to sit on the sidelines and let the Supreme Court decide this matter for Oregon voters, who are more than capable of righting this old wrong.

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