In a ruling Wednesday, the Oregon Court of Appeals upheld the state’s unique nonunanimous jury law.
The case stemmed from the 2017 conviction of Olan Williams, an African American man. Williams was convicted of sodomy by a jury in Multnomah County. The verdict was split, with 10 jurors voting to convict and two dissenting. One of the dissenting jurors was an African American woman.
Effectively, Williams argued he was denied a jury of his peers. In his appeal, he said the nonunanimous provision of the Oregon Constitution violated the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.
The appeals court ruled it couldn’t review the case.
“We may only review the denial of a motion for a new trial if ‘the motion is based upon juror misconduct or newly discovered evidence,’” Judge Darleen Ortega wrote in the five-page opinion. “Therefore, defendant’s constitutional challenge to the nonunanimous jury provision as applied to his criminal case is not reviewable on appeal.”
Williams wanted the court to grant him a new trial, but require the jury to reach a unanimous verdict, effectively overturning the state’s nonunanimous jury law.
Marc Brown is Williams’ attorney and the chief deputy defender with the state’s Office of Public Defense Services.
“For the law, it doesn’t mean much in that it did not really blaze new ground,” Brown said. “For Mr. Williams, it means we’ll continue our appeal at the Oregon Supreme Court and potentially for certiorari at the U.S. Supreme Court.”
In 1972, the nation’s highest court ruled 5-4, in a case out of Oregon, that the right to a jury trial doesn’t require unanimous verdicts. In March, the Supreme Court agreed to hear a case out of Louisiana, signaling that the court may be looking to change course.
Under the Sixth Amendment, unanimous verdicts are required in federal criminal cases. In fact, 49 states and the federal government all require unanimous verdicts.
Oregon is the last state in the country that allows juries in criminal cases to reach verdicts without all 12 jurors agreeing. Last fall, voters in Louisiana voted to change its constitution, scrapping split juries there.
Critics point out that not only do nonunanimous juries allow for convictions when there’s doubt, but they argue they discriminate against defendants of color.
In Louisiana, nonunanimous juries were enshrined in the constitution after slavery to make it easier to convict African American defendants and provide the state with a convict workforce. Oregon adopted nonunanimous juries in 1934. At the time, the Ku Klux Klan was powerful in the state and the anti-immigrant sentiment was high.
“Both laws were based on discrimination and are, like, last relics of those times,” said Aliza Kaplan, director of the criminal justice reform clinic at Lewis & Clark Law School in Portland, during an interview last year.
Proponents argue they allow for a more efficient criminal justice system and fewer hung juries.
“The only thing nonunanimous juries do is reduce hung juries. And the only thing unanimous juries do is increase hung juries. Each is true regardless of race. So the only question is do we want more hung juries or not?” Josh Marquis, the former Clatsop County district attorney, wrote with Tillamook County District Attorney William B. Porter and Jefferson County District Attorney Steve Leriche in an opinion column in The Oregonian last November.
The Oregon Legislature is working on a bill that would ask voters to reconsider nonunanimous juries in a ballot measure.