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Rosenblum defends split jury verdicts

The U.S. Supreme Court could force Oregon into doing what every other state already does — require every juror to vote to convict before a person is judged guilty.

The high court is considering the constitutionality of guilty verdicts where there wasn’t a unanimous decision. It’s a practice that today is seen only in Oregon, where 10 of 12 jurors must agree to convict in most cases.

The looming ruling pits some of Oregon’s criminal justice reform champions against each other. Attorney General Ellen Rosenblum recently submitted a brief to the court urging it to not find split decisions unconstitutional. It would send the Oregon court system into disarray, she said.

Rosenblum is against split decisions, but said Oregon has been following previous instruction by the Supreme Court which said unanimity is not required. Her role is “making sure the Supreme Court is aware of the impact on our state justice system,” she said.

For the past 85 years, people in Oregon charged with most felonies can be convicted if at least 10 of the 12 jurors vote guilty.

The case the court is looking at comes from Louisiana, which recently stopped allowing split decisions.

A bill that would have put the question to voters died in the 2019 legislative session. It passed unanimously in the House but failed to get a vote in the Senate.

Rosenblum is worried that overturning a 1972 case called Apodaca v. Oregon, which upheld split decisions, would impact past cases. The U.S. Supreme Court is using a case from Louisiana to determine whether a split decision is constitutional.

Oregon’s court system does not track how the jury votes in convictions. Rosenblum’s spokeswoman, Kristina Edmunson, said Department of Justice lawyers flagged 292 cases where there was a split guilty verdict.

Rosenblum said the actual number could be much higher — potentially in the thousands.

Roughly 97 percent of cases are settled before trial. But of the 2% to 3% that do go to trial, two-thirds are determined by split decision.

If the court rules split decisions are unconstitutional, it would not place the burden on the state to find those cases and vacate the convictions, according to Rosenblum’s staff. But it would provide defense lawyers an appeal opportunity, and the defense bar has been preparing for such an opportunity and has appeals ready to file.

Lewis and Clark Law School professor Aliza Kaplan said retroactivity is something the Supreme Court would look at separately, and she’s puzzled by why Rosenblum is trying to sink what she considers crucial reform for Oregon’s criminal justice system. She said a Supreme Court decision enforcing unanimous verdicts would only affect Oregon cases that were pending at the time of the decision.

Rosenblum doesn’t expect the court to address retroactivity, but said the ruling would open the floodgates to appeals. She would rather Oregon voters change the constitution to require unanimity, rather than have it done by court ruling. That way, the state would have more control in having the change apply only to cases going forward.

Kaplan made her own argument to the supreme court, contending in a legal filing that split decisions are unconstitutional. Her brief was signed by Gov. Kate Brown, former governors John Kitzhaber, Ted Kulongoski and Barbara Roberts, and several former state Supreme Court justices.

In 1934, Oregon voters approved a ballot measure allowing split decisions to convict. At the time, white supremacy was at its height in Oregon, and state newspapers editorialized about the need to silence minorities’ voices on juries by allowing a split decision.

Because of that past, Kaplan finds it especially hard to understand Rosenblum’s position.

“Is her real issue retroactivity, or is it that she’s going to be on the wrong side of history on this issue?” Kaplan said. “To side with racism and our horrible history in a law is completely unfair.”

Rosenblum said she is aware of the history of the policy, but for more than 80 years, the state has followed this practice, and it was upheld by the courts.

A ruling that bars split decisions would have sweeping impacts even if it didn’t specifically state it was retroactive. It would open the door for convicts found guilty by split decision to appeal, likely setting up other battles in high courts.

It would also give some wiggle room for anyone convicted of a felony in Oregon — even with unanimity — where the jury was given the instruction that they did not need to come to a unanimous decision. According to Rosenblum’s brief, that’s nearly every Oregon jury for the past 47 years.

It could even lead to civil lawsuits filed by people wanting to clear the record of a dead family member, Rosenblum said.

Marc Brown, chief deputy defender for Public Defense Services’ appellate division, said normally when a jury deliberates, the first step is a poll. If 10 want to convict but two have doubts, the two might concede the verdict because they’ve already been told by a judge that they don’t all need to agree.

Brown said he provided jury instructions asking for a unanimous verdict to public defenders around the state eight months ago, but judges so far have sided with the state’s objection to using them.

It doesn’t make sense, Brown said, for state leaders to argue split verdicts are unconstitutional while prosecutors continue blocking the use of instructions to turn juries away from such verdicts.

Brown agreed with Kaplan that the U.S. Supreme Court will likely not weigh in on the retroactivity of the ruling, but he said defense lawyers are ready to use a favorable verdict for appeal.