Oregon's less than unanimous jury verdicts in criminal cases to be reviewed by SCOTUS

The U.S. Supreme Court is scheduled hear arguments on Oct. 7 in Ramos v. Louisiana and determine whether it should overrule Apodaca v. Oregon and hold that the sixth amendment of the constitution guarantees a state criminal defendant the right to a unanimous jury verdict, reported the Salem Statesman Journal.

Apodaca v. Oregon refers to Robert Apodaca and two other Oregon men convicted of felonies whose cases went before the U.S. Supreme Court in 1972. 

Apodaca, then 23, of Salem, was convicted by a split Marion County jury in 1968 of assault with a dangerous weapon and sentenced to five years in prison. According to newspaper archives, Apodaca cut a man's neck with a knife during a fight on State Street earlier that year. 

It took the jury less than 10 minutes to convict Apodaca. 

Apodaca and two other Oregon men appealed their convictions. After the Oregon Court of Appeals affirmed their convictions and the Oregon Supreme Court denied review, the men took their cases to the U.S. Supreme Court, claiming the non-unanimous juries that convicted them violated their constitutional rights.

The court reviewed whether a conviction stemming from a less-than-unanimous jury decision violated the men's right to a fair trial by jury as protected by the Sixth and Fourteenth Amendments.

The Sixth Amendment guarantees a right to a fair trial and impartial jury; the Fourteenth Amendment ensures due process of the law and equal protection of law. Neither explicitly states unanimous jury verdicts are required for conviction. 

In 1972, in a 5-4 decision, the U.S. Supreme Court held that the constitutional right to a trial by jury was not violated by a non-unanimous verdict in state court. 

Apodaca's and the two other men's convictions were upheld. 

Justice Thurgood Marshall, who dissented along with three others, said the ruling "cut the heart out" of the Sixth Amendment of the Constitution.

Since the ruling, Oregon has continued to allow non-unanimous jury convictions in manslaughter, sex abuse, attempted murder and rape cases.  

Louisiana voters ended the practice in 2018, leaving Oregon as the lone holdout for non-unanimous verdicts in the United States.

A widespread push emerged during the 2019 Oregon Legislative Session to take the issue of non-unanimous juries to voters.

Opponents of the system said it leads to racism, wrongful convictions and serious miscarriages of justice. Even sides who typically opposed each other — prosecutors, defense attorneys and activists — were united against the non-unanimous jury system. 

Aliza Kaplan, director of the Criminal Justice Reform Clinic at the Lewis & Clark Law School, said Oregon's decision to allow non-unanimous verdict in the 1930s was the result of racism and xenophobia.

A Jewish defendant was acquitted of murder and instead convicted of manslaughter because of a hung jury in 1933, a public outcry ensued. Many blamed the hung jury on immigrant and non-white jurors. 

The next year, Oregon voters approved an amendment to the state constitution to allow non-unanimous jury verdicts.

This choice, Kaplan said, effectively silenced minority juror voices and abandoned the Sixth Amendment of the Constitution. 

Even Oregon's district attorneys joined in urging legislators to repeal the system on the ballot. 

The resolution to bring the issue to voters passed unanimously and with no opposition in the House, but the resolution died in committee and never went to the Senate for a vote.

Some speculated that the U.S. Supreme Court's decision to hear Ramos v. Louisiana may have contributed to the resolution losing momentum.

“Some felt that we should let the case on the issue pending before the United States Supreme Court, Ramos v. Louisiana, play out before advancing a constitutional amendment to voters,” Rep. Jennifer Williamson, D-Portland, said in a statement after the session ended. “This issue remains a top priority for me, and I will continue to fight to ensure that non-unanimous juries become a relic of Oregon’s past.”

She vowed to work during next year's short legislative session to bring it to voters in 2020.

DOJ lawyers made it clear in the first page of the brief filed with the U.S. Supreme Court that they were not aiming to address whether Apodaca was correctly decided.

"Nor does this brief contend that a non-unanimous jury rule is preferable to a unanimous jury rule," the brief reads. "In fact, there is widespread agreement among the stakeholders in Oregon's criminal justice system that the state's constitution should be amended to require jury unanimity prospectively."

Rather, the brief was filed to outline the impact of ruling that the Sixth Amendment requires unanimity on state prosecutions. 

"I filed the amicus brief in Ramos ... to explain the dire situation the Oregon justice system would find itself in if Apodaca were to be overturned," Attorney General Ellen Rosenblum said in a statement. 

As Oregon's attorney general, she favors unanimous jury verdicts for cases going forward.

But, Rosenblum clarified, for 47 years, Oregon judges have relied on the Apodaca ruling upholding the constitutionality of non-unanimous verdicts. 

"If that decision were to be reversed now, hundreds, if not thousands, of past Oregon felony convictions since 1972 could be overturned," Rosenblum said. "Already criminal defense lawyers have set over 250 cases currently on direct appeal in motion."

Oregon Justice Resource Center Executive Director Bobbin Singh said this was an unfortunate position for Rosenblum to take, accusing her of being "afraid of too much justice."

Everyone acknowledges and admits that the non-unanimous jury system is rooted in racism and xenophobia, Singh said. 

"It undermines the integrity of convictions," he said. "I think this is all well-understood and accepted by pretty much everyone at this point. If we accept that, then we should accept it in its entirety."

He likened the current dilemma with the case McCleskey v. Kemp — "one of the most horrific decisions to emerge from the Supreme Court as it relates to racial disparities and discrimination and the death penalty."

In the 1987 decision, Singh said, the U.S. Supreme Court acknowledged racial disparities existed when it came to death sentences, but said it would be "too disruptive" to fully acknowledge the problem. 

"We can't accept these truths and these realities in piecemeal or in ways that are just convenient for us," Singh said. 

DOJ attorneys said Oregon has a legitimate reliance in maintaining convictions made since Apodaca, saying the brief was submitted to alert the Supreme Court that overruling the 1972 decision would cause widespread disruption in the criminal system, including to the victims and witnesses in each felony case tried to conviction and affirmed in the past eight decades in Oregon.

"The extent to which Oregon has relied on Apodaca cannot be overstated," the brief said. "Oregon courts have given a non-unanimous jury instruction in almost every single felony jury-trial case for the past 47 years."

Tens of thousands of jurors have followed these instructions. The DOJ outlined a future if Apodaca was overturned:

Trial, appellate and post-conviction courts would be flooded with non-unanimity claims.

The criminal justice system would be overwhelmed by the "staggering" number of cases to be re-tried.

Many cases could not be re-tried due to loss of evidence and witnesses from the passage of time. 

In Ramos' reply brief, his attorneys said Apodaca was a splintered decision.

"So even from the very beginning, convictions obtained by non-unanimous verdicts rested on unsteady— indeed, defective — legal footing," attorneys said in the brief. "Louisiana and Oregon relied on Apodaca at their own risk."

They also contended that there is no good reason to believe ruling in Ramos' favor would severely burden the court system. 

Rosenblum said a better outcome would stem from voters, not the courts, eliminating Oregon's non-unanimous system.

"In my view, legislators should refer this important issue to the ballot so Oregonians can vote, and hopefully end the long-standing practice in Oregon of non-unanimous jury verdicts," Rosenblum said. "If we move forward with a referral to the people, I believe the Supreme Court will be less likely to outright reverse Apodaca, and we will be in a much better position to make a compelling argument to the Court to that effect."

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