Dennis Sturgell was convicted of sexually abusing a young woman during an alcohol-and-cocaine fueled binge that played out in August 2015 at a Warrenton bar, a field at a wooded property in Naselle, Washington, and an Astoria hotel room.
The Hammond fisherman was sentenced in January to more than 13 years in prison for sodomy, unlawful sexual penetration, sex abuse and bribing and tampering with a witness. While the jury was unanimous on bribery and tampering, the verdicts on the sex crimes were split, most at 11-1, with one of the sodomy counts at 10-2.
Had Sturgell’s trial been held across the Columbia River in Washington state, instead of Astoria, it could have ended in a hung jury on the sex crimes.
Oregon is the only state that does not require a unanimous jury to convict a criminal defendant of a felony, except for murder.
The distinction is traced to Oregon’s history of racial and ethnic discrimination. Many legal scholars view the 1934 ballot measure to amend the state constitution and allow 10 of 12 jurors to convict as a way to dilute minority voices on juries, tilting the criminal justice system against African Americans and other minorities.
But in places like Clatsop County, where criminal defendants and jurors are predominantly white, the issue is less about race, and more about whether split verdicts undermine the legal standard of guilt beyond a reasonable doubt.
The U.S. Supreme Court is expected to decide by next June whether the right to a unanimous verdict in federal criminal trials applies to states. Oregon voters could also be asked in November 2020 to change the state constitution and require unanimous verdicts.
“This is one that I think the voters should weigh in on,” said Judge Paula Brownhill, the presiding judge of Clatsop County Circuit Court, “because it makes a difference to the prosecutors, to the defendants. It’s really an integral part of criminal prosecution in Oregon, so it’s something I think the voters should decide, as opposed to legislators.”
Jury trials are rare
Under the Sixth Amendment to the U.S. Constitution, criminal defendants have the right to a trial by an impartial jury, an important check on government power.
But jury trials are rare.
In Clatsop County, the trial court administrator tracked more than 375 felony cases in 2018, but there were only nine felony jury trials. Last year was not an anomaly. In 2017, there were four felony jury trials. In 2016, there were three.
Most felony criminal cases are resolved by plea bargains. Defendants often choose the certainty of a plea bargain over the risk of a jury trial, where a conviction can often bring a longer prison sentence.
State courts do not routinely monitor nonunanimous jury verdicts. One study, prepared in 2009 for the Oregon Public Defense Services Commission, estimated the number at more than 40%.
District Attorney Ron Brown said requiring unanimous verdicts would likely result in longer jury deliberations. While some prosecutors warn of more hung juries and mistrials, Brown predicts most juries would still reach verdicts.
“I don’t think it’s going to change much,” he said.
The Oregon District Attorneys Association acknowledged last year that unanimous verdicts could make getting criminal convictions more difficult. But the association supports a constitutional amendment to change the law and align Oregon with the rest of the country.
Brown has no objection to a vote. “I’m good with whatever we vote on,” he said.
Josh Marquis, Clatsop County’s longtime district attorney, who retired in January, was among the few top prosecutors willing to enthusiastically defend nonunanimous verdicts. He places the 1934 ballot measure in the context of Oregon’s populist reform movement, not racism or bigotry, and points out that it covers both guilty and not guilty verdicts.
The 1934 vote also gave criminal defendants the option to waive a trial by jury and have their cases heard by a judge. “If it’s on the ballot, so should the part where ONLY defendants can waive juries,” Marquis said in an email.
Oregon became the lone state to allow nonunanimous verdicts after voters in Louisiana last year ended the practice. Unlike in Oregon, there was no dispute the Louisiana law was among the Jim Crow-era rules intended to preserve white supremacy.
The legal history at the Supreme Court is tied to the two states.
The court, in Apodaca v. Oregon in 1972, held that the Sixth Amendment does not require the jury’s vote be unanimous in state criminal trials. The 5-4 ruling found the essential purpose that a jury reflect the common-sense judgment of a cross section of the community can be achieved without unanimity.
Justices have agreed to reconsider the question next term in Ramos v. Louisiana, the case of a man convicted of second-degree murder by a 10-2 verdict in New Orleans in 2016 and sentenced to life in prison.
The Supreme Court has fully incorporated most of the legal protections in the Bill of Rights to the states through the due-process clause of the 14th Amendment. In a footnote to a decision earlier this year in a case involving excessive fines, the court referred to the Apodaca ruling on the Sixth Amendment as an exception caused by “an unusual division among the justices.”
Voters in Oregon may also get the chance to reconsider.
State House Majority Leader Jennifer Williamson, D-Portland, who sponsored a resolution to put the question on the ballot in 2020, said Oregon is an outlier.
The resolution was approved by the House 56-0 in June, but did not advance in the Senate last weekend during the end-of-session rush after a Republican walkout. Williamson believes it can pass in the short session next year and make it on the ballot.
“The people of Louisiana realized that they needed to right this wrong by a vote last year. And it’s time that Oregonians have the ability to correct this in the constitution, as well,” she said.
“The history of why we have nonunanimous juries is a stain on our criminal justice system, and I think it’s time that we change that.”
‘Oregon stands alone’
Defense attorneys in Oregon have been raising nonunanimous jury verdicts as an issue at trial.
“In light of the fact that a U.S. Supreme Court ruling is (relatively speaking) imminent, even the most modestly competent defense attorneys in Oregon will object to that instruction and ask that only a unanimous verdict can be the basis for guilt,” Ryan Scott, a Portland attorney, wrote in an April blog post for the Oregon Criminal Defense Lawyers Association.
Scott, in an email, said while his experience is limited to a small sample size, within that sample, “I’d say a majority of attorneys preserved the issue.”
Scott predicts a change to the law would not lead to many more hung juries, but would produce more compromise verdicts. Jurors who are split, he believes, might agree to convict a defendant unanimously on a lesser charge.
Before Sturgell, the Hammond fisherman, was convicted last November, Jason Thompson, his Salem-based attorney, requested a unanimous verdict jury instruction. Judge Brownhill, consistent with Oregon law, denied the request.
The issue is being raised by Sturgell on appeal.
“Oregon stands alone in this country as the only state that will allow somebody to be convicted on less than a unanimous verdict,” said Frank Stoller, a Dundee attorney representing the fisherman.