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THE ASTORIAN • TUESDAY, APRIL 21, 2020
Supreme Court ends nonunanimous jury verdicts
A quirk of Oregon law
By CONRAD WILSON
Oregon Public Broadcasting
The U.S. Supreme Court ruled 6-3 on
Monday that the Constitution requires unan-
imous jury verdicts to convict defendants in
state criminal courts.
The ruling in Ramos v. Louisiana not only
overturns a previous Supreme Court deci-
sion , but also ends Oregon’s history of using
non unanimous juries to fi nd people guilty of
crimes other than murder.
T he U.S. Supreme Court ruled the 14th
Amendment incorporates a person’s Sixth
Amendment right to jury unanimity.
Oregon was the last state in the country
that utilized a non unanimous jury law, allow-
ing convictions in many types of cases with
an 11–1 or 10–2 decision.
In 1972, the justices ruled in Apodaca v.
Oregon that non unanimous juries in state
criminal courts are permitted under the
Constitution.
Writing for the majority, Justice Neil Gor-
such said the court got it wrong.
“Every judge must learn to live with the
fact he or she will make some mistakes; it
comes with the territory,” Gorsuch wrote.
“But it is something else entirely to perpetu-
ate something we all know to be wrong only
because we fear the consequences of being
right.”
The case was decided outside the tradi-
tional liberal-conservative fault lines. Gor-
such was joined by Justices Stephen Breyer
and Ruth Bader Ginsburg. Justices Clarence
Thomas, Brett Kavanaugh and Sonia Soto-
mayor concurred, at least in part, in separate
opinions.
Justice Samuel Alito dissented, largely
over concerns about the court overturning
itself. He argued the court was “lowering the
bar for overruling our precedents.” Alito was
joined by Chief Justice John Roberts and Jus-
tice Elena Kagan.
Monday’s Supreme Court case was out of
Louisiana, though that state had previously
ended the practice of non unanimous juries
through a measure approved by voters.
The case stemmed from a 2014 crime,
when a New Orleans city code enforce-
ment offi cer found the body of Trinece Fed-
ison stuffed in a trash can in a wooded area
behind a blighted property. After a two-day
trial in 2016, a jury convicted Evangelisto
Ramos of second-degree murder by a verdict
of 10-2, meaning two jurors thought Ramos
was not guilty. Ramos remains in prison but
is expected to receive a new trial as a result
of the ruling.
The ruling will affect hundreds of others
in Louisiana who have been convicted by
Patrick Semansky/AP Photo
The U.S. Supreme Court, shown here last year, held that nonunanimous jury verdicts in state
criminal trials are unconstitutional.
non unanimous juries.
“There’s some 1,700 people we’ve iden-
tifi ed in custody who are on non unanimous
convictions,” said Ben Cohen, with the Prom-
ise of Justice Initiative in New Orleans and
Ramos’s attorney. “It will be an open question
whether those people get new trials or not.”
In Oregon, several hundred cases that are
on appeal, as well as any pretrial defendants,
will likely be affected.
“It changes 85 years of history in how we
convict people of crimes,” said Aliza Kaplan,
a professor at Lewis & Clark Law School in
Portland, who has worked to change Oregon’s
jury system. “Any case that started today
where a jury has not ruled, and any case that is
on appeal currently that does not have a fi nal
ruling will be directly affected by this ruling.”
The Oregon District Attorneys Association
said it was still looking into what the ruling
would mean for cases in the state, but noted
they have supported changing the state’s jury
system since 2018. The group also acknowl-
edged the ruling could make it more diffi cult
for prosecutors to win convictions.
“However, it is a hallmark of our justice
system that it should be diffi cult to take some-
one’s liberty,” the association said in a state-
ment. “This is evidenced by the fact that in
criminal cases a defendant is presumed inno-
cent and the state prosecutor must prove
guilt beyond a reasonable doubt. Adding the
requirement of unanimity is another import-
ant safeguard.”
Clatsop County District Attorney Ron
Brown said, “Our offi ce is always ready
and willing to abide by all changes in laws
or court rulings and look forward to moving
ahead with unanimous verdicts.”
Judge Dawn McIntosh, the presiding judge
of the Clatsop County Circuit Court, said the
court’s decision was not unexpected.
She is waiting for the exact numbers on
how many cases the county will have com-
ing back, but she does not anticipate it will be
overwhelming.
She said the decision clearly applies to
cases pending trial or on direct appeal.
“Defense attorneys in Oregon have been
arguing that nonunanimous verdicts were
unconstitutional for many years,” McIn-
tosh said in an email. “What to do about
those cases where a defendant’s trials and
appeals were all completed prior to the U.S.
Supreme Court clearly saying, with this opin-
ion, that they were correct will be the next big
question.”
Non unanimous juries have been part of
Oregon’s Constitution since 1934, when vot-
ers adopted the practice. Legal scholars argue
non unanimous juries are rooted in discrimi-
nation, and that Oregon’s law was originally
intended to silence the voices of Catholic and
Jewish immigrants in the state.
In Louisiana, the law was directly tied to
Jim Crow-era laws and aimed to make it eas-
ier to convict black defendants so white land-
owners could maintain a cheap post-slavery
labor force. In November 2018, Louisiana
voters scrubbed non unanimous juries from
their state’s Constitution. But that didn’t pre-
vent the Supreme Court from agreeing to hear
a case that directly dealt with the issue of
non unanimous juries.
“Today, Louisiana’s and Oregon’s laws are
fully — and rightly — relegated to the dust-
bin of history. And so, too, is Apodaca,” Soto-
mayor wrote. “While overruling precedent
must be rare, this court should not shy away
from correcting its errors where the right to
avoid imprisonment pursuant to unconstitu-
tional procedures hangs in the balance.”
In recent years in Oregon, there’s been a
growing recognition about the state’s racist
and discriminatory past, as well as an under-
standing among many state lawmakers and
elected offi cials that there should be no doubt
among jurors when convicting a defendant of
a crime.
In Oregon, the question now turns to how
the ruling will be applied and what it means
for criminal defendants.
“It’ll be up to the Oregon courts to address
how this ruling affects people who have fi nal
convictions based on non unanimous juries,”
Kaplan said.
The justices did not address whether the
ruling is retroactive. The ruling also only
affects convictions. It does not say anything
about non unanimous acquittals, which are
also permitted under Oregon’s Constitution.
Oregon Attorney General Ellen Rosen-
blum had urged the Supreme Court not to
overturn the 1972 ruling, warning that the
state’s courts could be overwhelmed. She
favored a ballot initiative to address the issue.
Rosenblum said in a statement that it was
“an embarrassment to our otherwise progres-
sive state that we are the only state in the coun-
try with a law in our constitution that allows
criminal convictions without juror unanimity.
“Oregon, through its legislative referral
process, was in the process of changing our
law when the Supreme Court announced last
year that it would take up the Louisiana case
it decided today. The timing was such that
our Legislature dropped its plan to refer the
question of jury unanimity to Oregon voters.
Instead, the Supreme Court has put Oregon in
the spotlight for a law we never should have
been adopted in the fi rst place, but which has
been followed here for 85 years.
“While I had urged the Legislature —
through the referral process — to take this
matter into our own hands before the Supreme
Court did it for us, we can now move forward
to remove the law from our state constitu-
tion (that does not occur automatically) and
address the many cases that require review as
a result of today’s decision.”
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