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Supreme Court strikes down Oregon’s non-unanimous jury verdict law

(Update: More on decision; Hummel saying four Deschutes County cases will need to be retried; Attorney General Rosenblum, ACLU of Oregon comments)

WASHINGTON (AP) — The Supreme Court ruled Monday that juries in state criminal trials must be unanimous to convict a defendant, settling a quirk of constitutional law that had allowed divided votes to result in convictions in Louisiana and Oregon.

Justice Neil Gorsuch wrote for the court that the practice is inconsistent with the Constitution’s right to a jury trial and that it should be discarded as a vestige of Jim Crow laws in Louisiana and racial, ethnic and religious bigotry that led to its adoption in Oregon in the 1930s.

“In fact, no one before us contests any of this; courts in both Louisiana and Oregon have frankly acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules,” Gorsuch wrote.

The justices’ 6-3 vote overturned the conviction of Evangelisto Ramos. He is serving a life sentence in Louisiana for killing a woman after a jury voted 10-2 to convict him in 2016. Oregon is the only other state that allows for non-unanimous convictions for some crimes.

Louisiana voters changed the law for crimes committed beginning in 2019.

Now the same rules will apply in all 50 states and in the federal system: Juries must vote unanimously for conviction.

“We are heartened that the Court has held, once and for all, that the promise of the Sixth Amendment fully applies in Louisiana, rejecting any concept of second-class justice,” Ramos’ lawyer, Ben Cohen, said in a statement. “In light of the COVID-19 crisis, it is essential that prisoners who are wrongfully incarcerated be given the chance for release as soon as possible.”

The outcome will affect defendants who are still appealing their convictions. But for defendants whose cases are final, it will take another round of lawsuits to figure out whether the high court ruling applies to them.

The Supreme Court last took up the issue in 1972, when it ruled that nothing in the Constitution bars states from allowing some convictions by non-unanimous verdicts, even as it said that the Sixth Amendment requires unanimous verdicts in federal criminal cases. The case turned on the vote of Justice Lewis Powell.

The 1972 decision left the jury trial right as one of the few rights guaranteed by the first 10 amendments to the Constitution that does not apply uniformly to the states as well as the federal government. Last year, the court held that the Constitution’s ban on excessive fines applies to the states and the federal government alike.

“There can be no question either that the Sixth Amendment’s unanimity requirement applies to state and federal criminal trials equally,” Gorsuch wrote Monday.

The decision produced an unusual lineup of justices, with liberals Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor and conservatives Brett Kavanaugh, Clarence Thomas and Gorsuch supporting Ramos.

Chief Justice John Roberts and Justice Samuel Alito, two conservatives, were in dissent along with liberal Justice Elena Kagan.

That’s because a key part of the case was whether to jettison the 1972 decision, and overturning precedent is a fraught issue on the current court, principally because the additions of Gorsuch and Kavanaugh have made the court more conservative and, perhaps, more likely to undermine landmark abortion rights rulings.

Gorsuch, Sotomayor, Kavanaugh, Thomas and Alito addressed the issue of precedent in majority, dissenting and concurring opinions. Kavanaugh has said that prior decisions must be not just wrong but egregiously so. The 1972 decision, he wrote Monday, “is egregiously wrong.”

Sotomayor said the old case was wrong both on the Sixth Amendment and in its ignorance of the bigoted roots of allowing non-unanimous verdicts. The case, she wrote, represents a “universe of one — an opinion uniquely irreconcilable with not just one, but two, strands of constitutional precedent well established both before and after the decision.”

Alito, however, noted that some justices in Monday’s majority might find it more difficult to complain about abandoning other precedents. “I assume that those in the majority will apply the same standard in future cases,” he wrote.

Deschutes County District Attorney John Hummel shared this email he sent Monday morning to colleagues in his office:

Today, the United States Supreme Court ruled that jury verdicts in state courts must be unanimous.  As you know, I’ve been advocating for this since I took office. 

The argument between the Justices focused not so much on whether the Federal Constitution requires unanimous verdicts in state courts (because there seemed to be tacit agreement between all of the Justices that it does) but whether ruling that it does would be so disruptive to the operations of state courts in Oregon and Louisiana (the only two states that allowed non-unanimous verdicts) that the Supreme Court should avoid doing so.

Justice Gorsuch writing for the majority, eloquently and powerfully explained why appellate courts should not be in the business of issuing rulings with an eye toward what is most efficient for local governments:

·         In its valiant search for reliance interests, the dissent somehow misses maybe the most important one: the reliance interests of the American people. Taken at its word, the dissent would have us discard a Sixth Amendment right in perpetuity rather than ask two States to retry a slice of their prior criminal cases. Whether that slice turns out to be large or small, it cannot outweigh the interest we all share in the preservation of our constitutionally promised liberties. Indeed, the dissent can cite no case in which the one-time need to retry defendants has ever been sufficient to inter a constitutional right forever.

On what ground would anyone have us leave Mr. Ramos in prison for the rest of his life? Not a single Member of this Court is prepared to say Louisiana secured his conviction constitutionally under the Sixth Amendment. No one before us suggests that the error was harmless. Louisiana does not claim precedent commands an affirmance. In the end, the best anyone can seem to muster against Mr. Ramos is that, if we dared to admit in his case what we all know to be true about the Sixth Amendment, we might have to say the same in some others. But where is the justice in that? Every judge must learn to live with the fact he or she will make some mistakes; it comes with the territory. But it is something else entirely to perpetuate something we all know to be wrong only because we fear the consequences of being right. The judgment of the Court of Appeals is Reversed.

We’re ahead of things in our office.  A few months ago I pulled every case on direct appeal that may have had a non-unanimous verdict and worked with the trial attorneys to assess whether we would re-try it.  You’ll see from the attached worksheet that we’ll probably re-try four cases.   Three are DUIIs and one is a child sex abuse case.  Yes, retrying four cases will be time consuming, and most significantly, painful and stressful for the victims in the sex abuse case.  But, as Justice Gorsuch said, we cannot perpetuate what we know to be wrong because we fear the consequences of being right.  Jury unanimity is one of the bedrocks of our society and is what distinguishes us from most other countries. 

Because Oregonians with racial animus enacted a law many years ago to seek to exclude people of color from having meaningful input in jury deliberations, we have clean-up work to do now.  Together we’ll re-try these cases and we’ll do so in furtherance of the “preservation of our constitutionally promised liberties.”

As always, thank you for what you do for our community,


Statement from Oregon Attorney General Ellen Rosenblum on today’s U.S. Supreme Court Decision:

“As of this morning, the United States Supreme Court, in Ramos v. Louisiana, has reversed its erroneously decided opinion in a 1972 Oregon case (Apodaca v. Oregon), in which it upheld non-unanimous jury verdicts in state criminal cases.

“This is good news! It is an embarrassment to our otherwise progressive state that we are the only state in the country 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 first 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 constitution (that does not occur automatically) and address the many cases that require review as a result of today’s decision.

“We have been expecting this ruling, and we’re well-prepared to address its significant consequences for Oregon’s justice system. We have been working closely for months with our appellate courts and with the leadership of the criminal defense bar to plan our case review and the judicial process that will ensue. We will also need to be in contact with the many crime victims and their families who are impacted by this decision. 

“Thankfully, the collegial and professional bench and bar in Oregon are accustomed to working together to navigate challenges — and this will be no exception.”

News release from the ACLU of Oregon:

PORTLAND, Ore.—The Supreme Court ruled today that the U.S. Constitution requires jury unanimity for state criminal convictions. This ruling invalidates the part of the Oregon constitution that allows for non-unanimous jury convictions. The ACLU filed a friend-of-the-court brief in the case.

Kelly Simon, interim legal director of the ACLU of Oregon, had the following comment:  

“The Supreme Court today struck down Oregon’s racist and shameful law that allowed people to be convicted by a 10-2 jury. Non-unanimous jury verdicts silenced minority voices, amplified implicit bias, and perpetuated racial disparities. The Supreme Court upheld the ‘ancient guarantee’ that when the state brings its power to bear against us, it may not take our freedom unless it fully convinces an impartial jury of our guilt beyond a reasonable doubt.” 

Oregon was the last state in the nation that allowed non-unanimous convictions. Oregon's law, passed via ballot measure in 1934, reflected the anti-Jewish, anti-Catholic, and anti-immigrant sentiment of the time

Louisiana’s law, which was overturned by voters in 2018, was passed during the Jim Crow era to make it easier to send Black men to prison. 

Article Topic Follows: Oregon-Northwest

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