GateHouse: Supreme Court has second chance to end nonunanimous verdicts

Matthew T. Mangino

GateHouse Media

February 28, 2020

The United States Supreme Court may soon stamp-out the last bastion of state sanctioned racial inequality in the criminal justice system. The high court is weighing the constitutionality of nonunanimous verdicts in criminal trials, and is expected to hand down a decision very soon.

Oregon is the last state to permit less than a unanimous jury to convict a criminal defendant. Louisiana was the only other state to allow criminal convictions with nonunanimous verdicts, until the legislature changed the law in 2018.

Louisiana’s law grew out of the racist post-Reconstruction era and was an early example of the Jim Crow laws that attempted to keep newly freed slaves under the thumb of powerful southern landowners and sympathetic state and local leaders.

In 1880, Louisiana enacted a law permitting only nine of 12 jurors to convict. In 1898, the law became part of Louisiana’s Constitution - during a convention convened “to establish the supremacy of the white race in the state.”

Less than unanimous criminal convictions raise the risk that jurors from racial, ethnic or religious minorities will be ignored by a majority that knows it can return a verdict without their consent or agreement.

Ironically, the case before the court that could end Oregon’s racist law is out of the state of Louisiana. Evangelisto Ramos was convicted in 2016 - before the state changed the law - of second-degree murder on a 10-2 jury vote. He is serving a life sentence without the possibility of parole.

Oregon established itself as a less than unanimous verdict state more than 50 years after Louisiana, but Oregon’s motives were equally sinister. In the 1920s, Oregon had the largest Ku Klux Klan organization west of the Mississippi River. Laws often associated with the Jim Crow South were thriving in the great northwest. In 1922, Walter Pierce, a member of the Ku Klux Klan, was elected governor of Oregon. He went on to serve five terms in the U.S. House of Representatives.

In 1933, a Jewish man, Jake Silverman, was implicated in the murder of a white man in Columbia County, Oregon. At Silverman’s trial, 11 of 12 jurors wanted to convict him of second-degree murder. However, a sole juror refused to support the majority view. After hours of deliberation, the jury came back with a compromise conviction of manslaughter.

The Klan dominated state was whipped into an Anti-immigrant and anti-Semitic frenzy.

The local paper blamed the verdict on “the vast immigration into America from southern and eastern Europe, of people untrained in the jury system.”

The following year, Oregon proposed a ballot initiative to allow felony convictions based on a less than unanimous verdict. The measure was coupled with providing defendant’s the right to waive a jury trial. The language contained in the ballot measure provided, “that in the circuit court 10 members of the jury may render a verdict of guilty or not guilty.” The initiative passed overwhelmingly with 58% of the vote.

From that point forward, Oregon has had the dubious distinction of being a state that authorized the influence of racism in its criminal justice system. In 1972, the United States Supreme Court had an opportunity to correct the error of Oregon’s way. However, the Court ruled that while the Constitution required federal juries to render unanimous verdicts, there was nothing in the Constitution to prevent states from permitting split decisions.

As the state braces for the Supreme Court’s ruling, there is agreement among the Oregon Criminal Defense Lawyer’s Association and Oregon District Attorney’s Association that the law is a remnant of a dark and embarrassing past, and according to the Washington Post, “may have sent innocent people to prison.“
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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