Oregon Attorney General Ellen Rosenblum supported a resolution in the state Legislature that would have asked voters in November 2020 whether to change the state constitution and require unanimous jury verdicts in criminal trials.
Oregon is the only state where a criminal defendant can still be convicted of a felony, except for murder, by 10 of 12 jurors.
The resolution was approved by the state House 56-0 in June, but the Senate failed to act in the scramble at the end of session after a Republican walkout over cap and trade.
While lawmakers may try again next year, the focus has turned to the U.S. Supreme Court, which will soon weigh nonunanimous jury verdicts 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.
Rosenblum disappointed many civil liberties advocates when Oregon filed a brief urging the Supreme Court not find nonunanimous jury verdicts unconstitutional.
The attorney general acknowledged that the law, on the books in Oregon since voters backed a state constitutional amendment in 1934, has an origin linked to racism and anti-Semitism. But she warned about the potential impact of invalidating hundreds if not thousands of criminal convictions.
“If they change it now, that doesn’t mean we go back and completely undo the entire 80 years that we have had in this state,” she said. “There is not a reason to do that, in my opinion, that outweighs the chaos that would ensue from having to retry.
“And, frankly, we can’t retry them. So having to go back and take another look at all of these cases will truly clog up our court system.”
Rosenblum, a former federal prosecutor and state trial and appellate judge, is the first woman to serve as attorney general in Oregon. She was elected in 2012, reelected in 2016 and is running for a third four-year term next year.
The attorney general, who stopped in Astoria this month, discussed in an interview nonunanimous jury verdicts, the controversy around a new death penalty bill, the resignation of the public records advocate and the state’s legal challenges to the Trump administration.
Q: In August, the solicitor general told prosecutors the new definition of aggravated murder in the death penalty bill applies to pending cases. Why didn’t the Department of Justice flag this issue when the bill was before the Legislature, since lawmakers were insisting it would only apply going forward?
A: That isn’t something that we normally would do. That wouldn’t be our role.
Our role is to flag it when we’re handling these cases on a case-by-case basis, and that’s what happened here. That memo was a memo to a small group of prosecutors who had cases that were coming up that were similarly situated.
And so the solicitor was not sending a memo to the Legislature, or to the media. It, of course, was released to the media, which is fine. But it, I think, was kind of misunderstood that that is not typically what we would do.
We were giving advice to our client, right? And that is what our job is.
Q: Oregon is the only state that still allows nonunanimous jury verdicts in criminal trials except for murder. The U.S. Supreme Court is going to review the issue. You have argued that Oregon courts could be overwhelmed by retrials if the Supreme Court rules nonunanimous verdicts are unconstitutional.
But if the verdicts are unconstitutional, why shouldn’t there be retrials?
A: There’s a certain, I think, importance to reliance and to finality, for victims, as well as for the system. And for defendants, frankly, and for their families, to have finality when a case is concluded.
And we have had thousands of cases concluded with nonunanimous jury verdicts. As a judge, I presided over hundreds, if not thousands, of cases over the course of time. And I will tell you that I — and this is just one person speaking, and you can take it for what it’s worth — but I never felt that there was a jury verdict in my courtroom that was not fair, that was based on discrimination, or anything to that effect.
And there were many unanimous verdicts, and there were many nonunanimous verdicts.
So where are we today? There was to be a law change that did not come about, for reasons that are maybe a little bit complicated. But the bottom line is the Senate didn’t take a vote, OK? The House did. The House voted unanimously to change our law, to change our state constitution.
Q: To put it on the ballot.
A: Exactly. They had to refer it to the people because it’s in the constitution.
That law was specifically forward-looking. Nobody was taking the position that it should be retroactive. No one ...
I was supportive. The DA’s were supportive. There was no question about that. And I think, in part, because it just didn’t even occur to us what could happen, now it does because we have the U.S. Supreme Court having granted certiorari in the Ramos case.
We have an opportunity in this state to fix this law going forward. And that is, in my view, the right thing to do.
Q: You have worked to reform Oregon’s public records law to help make government more transparent. What do you make of Ginger McCall’s resignation as the state’s first public records advocate?
A: I’m saddened by it. I don’t know Ginger well, but I’ve gotten to know her a little bit. And she is, absolutely, not only a lovely person, but I was really pleased to have somebody selected for that role of her caliber.
Q: Do you think the Public Records Advisory Council — and not the governor — should be the one to hire the public records advocate?
A: I think that’d be great. I think that would help a lot.
Q: Why would that be?
A: Because it’s not political. Or it’s less political. Or at least it’s less the appearance of politics. And as you can see what happened here, my sense is that that might really help for both appearances and for a smoother advocacy program.
And I think we should call it what it is, which is an ombuds program. It should be an ombuds — I don’t like ombudsman — but an ombuds, as opposed to maybe the advocate role maybe was a little bit unclear what was intended by that.
Q: Oregon is among several states to challenge the Trump administration on issues such as immigrant detention, abortion rights and fuel economy standards. While these are important policy questions, do you worry — since the states are mostly controlled by Democrats — that people will view the disputes as more about politics than the law?
A: I don’t really worry about that. Anytime a case is filed, there’s that potential for it having kind of a policy and a legal aspect to it.
What I do, to make sure, to kind of check in each time there is a potential for bringing a case here on behalf of Oregonians, is I look at how Oregonians are harmed. I look at how people are harmed, especially vulnerable groups, and I look at how our state is harmed, the environment in particular ...
Call that political? I don’t. But if people do, I try to explain what it is that I’m doing on each and every case, and that is evaluating the harm to Oregonians. And I’m comfortable with that.