Split Jury System Rooted in Oregon Nativism

Oregon is the last state in the country to allow convictions by non-unanimous juries, also known as split verdicts. As of November 2018, 49 states and the federal government require unanimous verdicts. In Oregon, a split verdict of 10-2 or 11-1 can convict someone on any felony charge with the exception of murder and aggravated murder, which require at least 11 jurors for a conviction.

House Joint Resolution 10 (HJR10) would have scheduled a vote to overturn the part of Oregon’s constitution which allows this practice, but it was pushed aside amid the chaos at the end of the legislative session in June, despite bipartisan support from legislators, legal professionals, and the Oregon State Bar Association. Senior Oregon Democrats said they are waiting for a decision from the U.S. Supreme Court in a case about jury rights, scheduled for this fall.

Racism, Nativism, Jim Crow
Louisiana passed a constitutional amendment in 2018 requiring unanimous jury convictions, becoming the 49th state to outlaw split verdicts. Critics of split verdicts argue the practice has its roots in nativism, racism, and the Jim Crow era.

In Louisiana, the practice was established in 1898 when the state held a constitutional convention to rewrite the foundational aspects of their state’s government in the wake of the Civil War. According to a number of historians and legal scholars, records of this convention show a clear picture of the delegates’ intentions.

Said Andrea Armstrong, a law professor at Loyola University in New Orleans, quoting from the convention itself, “It put into place a number of measures in order ‘to maintain the supremacy of the white race.’” 

In Oregon, the constitutional amendment allowing split verdicts was passed by voters in 1934 with 58 percent of the vote. The campaign behind it arose after the 1933 trial of Jacob Silverman, a Portland man implicated in the “gangland” shooting deaths of two people. A hung jury led to Silverman being convicted of manslaughter rather than murder.

The response from the public, recorded in editorial pages around Oregon, blamed “the vast immigration into America from southern and eastern Europe,” and a “lack of responsibility shown by native and mixed-blood people in freeing [Silverman].” The campaign in favor of the constitutional amendment concluded that these people were “untrained in the jury system,” and  that “the jury of twelve [is] increasingly unwieldy and unsatisfactory.”

Reports about this case note that during the early 1930s, the Ku Klux Klan was particularly powerful in Oregon, which was founded a few decades earlier as a whites-only state. News reports from that time made no secret of the fact that Silverman was Jewish.

“Both laws were based on discrimination and are… last relics of those times,” said Aliza Kaplan, Director of the Criminal Justice Reform Clinic at Lewis & Clark Law School in Portland.

A Question of Rights
In April 2019, headlines ran claiming that the Oregon Court of Appeals upheld the state’s constitution’s non-unanimous jury clause. However, it would be more accurate to say they refused the validity of the challenge and never actually heard the case.

Olan Williams, convicted of sodomy by a 10-2 jury in 2017, argued that he was denied a jury of his peers as guaranteed by the Sixth Amendment, and that the entire clause allowing split verdicts was a violation of the equal protection under the law guaranteed by the 14th Amendment.

However, the court ruled that Williams did not have a valid constitutional challenge, since they were only allowed to hear a challenge if “the motion is based upon juror misconduct or newly discovered evidence,” deciding that Williams’ case demonstrated neither. Williams’ lawyer told reporters they intend to continue to appeal the case.

Lawmakers in Oregon seemingly had a clear path toward passing HJR10 in the first half of 2019, which would have scheduled a statewide ballot measure in November 2020 to let voters decide whether or not to overturn non-unanimous juries.

It garnered broad organizational support, including the Oregon State Bar, Oregon District Attorneys Association, the Oregon Department of Justice, the ACLU of Oregon and the Oregon Criminal Defense Lawyers Association, many of whom testified in favor of the measure.

“I believe this is a stain on the criminal justice system in our state,” said House Democratic Majority Leader Jennifer Williamson (D-Portland) on the floor during debate over HJR10.

But on June 30, the last day of the session as the legislature was hurriedly passing dozens of bills in the waning hours after a nine-day Republican walkout, Senate President Peter Courtney (D-Salem) slipped HJR 10 into the Rules Committee, a move intended to quietly but effectively kill the measure.

Waiting For The Perfect Time
In March, the U.S. Supreme Court formally announced its interest in Ramos v. Louisiana, a state case involving a man convicted of second-degree murder by a 10-2 jury. Ramos’ case was rejected in state appeals court and denied review by the Louisiana Supreme Court, on the basis of a 1972 case, Apodaca v. Oregon.

However, the interest of the U.S. Supreme Court earlier this year came after Louisiana passed the constitutional amendment which left Oregon as the last remaining state to allow non-unanimous juries. Now that there is overwhelming uniformity in requiring jury verdicts to be unanimous, some legal experts suggest the Court may be stepping in to cement this practice in constitutional law.

The case is set to be heard on Monday, October 7, 2019, one of the first cases on the Supreme Court’s 2019-20 schedule.

After Oregon’s HJR10 was quietly swept aside in June, questions arose about why such a broadly popular measure would be shelved. House Majority Leader Jennifer Williamson (D-Portland), who carried the bill in the House, eventually told reporters that some in the caucus believed they should wait on a decision in Ramos before proceeding.

“A constitutional amendment campaign is always a difficult campaign,” Williamson said. “The concerns are about whether or not we even need one.”

Senate Majority Leader Ginny Burdick (D-Tigard), chair of the Rules Committee, told reporters Democrats are waiting for the perfect moment. “We have to do it at a time and circumstance that it will be successful,” Burdick said. “The worst thing would be to put it on the ballot and have it fail.”

Law professors and legal professionals who testified in favor of passing HJR10, like Oregon Criminal Defense Lawyers Association’s Legislative Director Mary Sofia, told reporters they were disappointed in the legislature’s decision, “…because I think it is imperative that Oregon change its constitution,” Sofia said. “Given the legislature’s decision to wait, my fingers are crossed that the Supreme Court comes down the right way so that Oregonians begin getting a fair trial sooner than November 2020.”

Professor Kaplan pointed out that a decision by the Supreme Court doesn’t automatically amend the Oregon Constitution.

“If the courts strike it down, it’s still in our Constitution,” Kaplan said. “Because [this split verdict law] went on for all these years, [aiming] to shut people’s voices down and, due to our demographics, to affect minorities, we should all want to go to the polls and get rid of it. It’s a stain on our state and our constitution.”

By Ian MacRonald