6A • COTTAGE GROVE SENTINEL • OCTOBER 3, 2018
Off beat Oregon History No. 515:
Thanks to notorious murder case, jury verdicras need not be unanimous
By Finn J.D. John
For The Sentinel
I
t’s ironic that Norman
Rockwell’s famous painting
“Th e Holdout” appeared
on the front cover of the Sat-
urday Evening Post on, of all
days, Feb. 14, 1959. Th at date
was Oregon’s centennial —
the 100th anniversary of the
founding of our state — and
“Th e Holdout” depicts a scene
that can’t happen here.
Th at’s because in Oregon,
unlike every other state except
Louisiana, a unanimous ver-
dict is not necessary in jury tri-
als. It’s been like that since the
law was changed, back in 1933.
(An exception was made for
fi rst-degree murder charges,
but not for less serious forms of
homicide.)
And Oregon’s law was
changed specifi cally to prevent
the exact scene shown in “Th e
Holdout” — although in the
case that inspired it, instead
of the lone woman on the jury
holding out against a “guilty”
verdict, it was the lone Jew.
Th e law was changed in the
aft ermath of the 1933 trial of
a local small-time gangster
named Jake Silverman, who
happened to be Jewish.
Silverman’s crime was the
topic of an Offb eat Oregon
History column back in Octo-
ber 2013. Here’s the story in a
nutshell: A fresh-from-the-pen
crook named Jimmy Walk-
er had blown into small-time
gang leader Shy Frank Kodat’s
boardinghouse-speakeasy and
moved in on Shy Frank’s girl-
friend, Edith McClain.
One thing led to another,
and angry words had been ex-
changed, and Shy Frank had
turned his back on him and
left the room, and then Jimmy’s
gun had gone off and the bullet
had gone through the wall and
hit Shy Frank in the back. It was
an accident, and it wasn’t fatal
to Shy Frank; but Shy Frank in-
tended that it should be fatal to
Jimmy, and Jake Silverman was
tasked with the job of “taking
Jimmy for a ride” and making
it so.
So Jake borrowed his wife’s
maroon 1929 Studebaker Pres-
ident limousine and, posing as
a getaway driver who would
take Jimmy out of town so he
could go into hiding, picked
up Jimmy at the cheap hotel
where he was hiding out. Edith
accompanied Jimmy on what
they both thought would be a
ride into exile.
Th ey learned diff erent when
Jake stopped the car in the
middle of nowhere near Scap-
poose, marched them out of
the car at gunpoint, made them
stand over the ditch so that
they would fall into it, and gave
each of them two in the back of
the head with Shy Frank’s .38.
Th at, at least, was the story
on which Jake Silverman was
convicted.
But he was not convicted of
murder. One of the jurors was
not convinced — or claimed
not to be.
Th e evidence had been co-
pious, but circumstantial.
Most damning was the car,
which several neighbors had
seen driving out toward Scap-
poose and parking by the road
just before the gunshots were
heard. Very few people could
aff ord maroon Studebaker lim-
ousines in 1933, so the chances
that it wasn’t Silverman were
very slim.
Th en, too, a rogues’ gallery
of seedy underworld charac-
ters worthy of a Silver Age Bat-
man comic had been dragged
into the trial to testify for and
against him, and the overall
impression was that he’d almost
certainly done the job and that
if he hadn’t, it wasn’t because
he wouldn’t have jumped at the
chance to.
And Silverman’s gallingly
insouciant behavior in court
made it even worse.
But this one juror just didn’t
fi nd it convincing enough to
send Jake to the gallows for it.
Or even to send him up for a
life sentence on a second-de-
gree murder rap. So, fi nally, a
compromise was reached: Jake
would be found guilty of man-
slaughter instead.
Manslaughter was good for a
three-year sentence, which was
something at least.
Th e public, when it heard the
verdict, howled with outrage,
led by the Portland Morning
Oregonian.
“Obviously, Silverman was
not guilty of manslaughter,”
the newspaper opined. “Either
he murdered Walker or he was
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not involved.”
Unspoken, but understood
by most, was the assumption
that the lone holdout had been
a fellow Jew, and he or she had
held out not based on the evi-
dence, but based on tribal loy-
alties.
And so the Oregonian led
the charge to “reform the jury
system” by making it possible
to disregard one or two dis-
senting votes when necessary.
Now, to be fair, the paper
wasn’t overtly advocating for
the right to suppress minori-
ties. Th e case they were mak-
ing was that many fresh im-
migrants from countries with
authoritarian traditions didn’t
have the right mindset to ful-
ly function as an autonomous
person in a democracy, and
that it needed to be possible to
overrule one or two my-com-
patriot-right-or-wrong types
lest millions of dollars be wast-
ed on multiple jury trials.
Th ey were also mindful of
the fact that gangsters some-
times try to get to jurors and,
through bribes or threats, get
them to vote to acquit.
But, as a practical matter,
the change radically altered
the distribution of justice for
minority defendants in Ore-
gon courts. For instance, if a
Chinese person was on trial for
a serious felony, and the jury
was composed of 10 non-Chi-
nese and two Chinese Orego-
nians — how much more likely
would the defendant be to get
convicted if the two Chinese
jurors could simply be outvot-
ed by the others?
And would that be a bad
thing, or a good thing? (People
in the 1930s would likely have
said it was good, because the
Chinese jurors would, they’d
claim, vote to acquit no mat-
ter what. People today would
mostly say it was bad, because
people naturally empathize
more with people who look
like themselves.)
Th e entire problem, of
course, is nicely illustrated in
Normal Rockwell’s painting —
or in the 1957 fi lm “Twelve An-
gry Men” starring Henry Fon-
da, in which 11 of 12 jurors are
eager to convict a vaguely-eth-
nic inner-city teen accused of a
stabbing and the lone holdout
turns out to be right.
Good or bad, it soon became
law. Responding to the pres-
sure, the state Legislature draft -
ed a bill and passed it on for
public vote using the Oregon
referendum system: Except for
capital murder cases, convic-
tion could be secured on a 10-2
vote. Th e measure passed com-
fortably.
Over the years since 1933,
there have periodically been
challenges to the rule from
defendants who were convict-
ed by non-unanimous juries.
Concerns about the law are
especially noticeable in cases
where the one or two dissent-
ing votes were the only jurors
who shared the ethnicity of the
defendant.
Most recently, in early 2018,
the state’s prosecuting attor-
neys proposed ditching the
law as part of a deal that would
have repealed defendants’ right
to opt for a jury trial rather
than just a hearing before a
judge. From civil-libertarians’
perspective, that looked like a
poison pill, and the eff ort col-
lapsed when it became clear
that they would oppose it.
Meanwhile, it remains true
that unless you’re on trial for
murder or aggravated murder,
you’ll have to convince three
jurors of your innocence to
avoid being convicted, rath-
er than just one. And Oregon
remains the only state in the
union, other than Louisiana,
where that’s the case.
(Sources: Kaplan, Aliza.
“Non-Unanimous Jury Law
in Oregon,” oregonencyclope-
dia.org, 17 Mar 2018; Wilson,
Conrad. “Oregon Prosecutors
Back Off Plan to Do Away with
Non-Unanimous Juries,” opb.
org (Oregon Public Broadcast-
ing), 30 Jan 2018; Kavanaugh,
Shane D. “’Dirty Secret’ of Ore-
gon Jury System Could Go Be-
fore U.S. Supreme Court,” Port-
land Oregonian, 21 Sep 2017)
Finn J.D. John teaches at
Oregon State University and
writes about odd tidbits of
Oregon history. For details, see
http://fi nnjohn.com. To contact
him or suggest a topic: fi nn2@
offb eatoregon.com or 541-357-
2222.
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