SALEM, Ore. — The Oregon Supreme Court, ruling before the start of a murder case, has upheld that a defendant can be acquitted by a nonunanimous verdict, months after the U.S. Supreme Court ruled that guilty verdicts must be unanimous.
The decision Thursday keeps Oregon as the only state where split jury verdicts with 10 or 11 not guilty votes among a 12-member panel amount to an acquittal, not a hung jury, legal experts said.
Defense lawyers hailed the decision, which erases doubts among trial judges about how the U.S. Supreme Court ruling applies in Oregon.
“Fantastic news out of the Oregon Supreme Court this morning,” Athul Acharya, a Portland lawyer, tweeted on Friday.
The U.S. Supreme Court ruled in April that juries in state criminal trials must be unanimous to convict, settling a quirk of constitutional law that had allowed divided juries to convict defendants in Louisiana and Oregon.
Louisiana voters previously ditched the system, but it remained in place in Oregon until the U.S. Supreme Court ruling. In both states, provisions allowing split jury guilty verdicts were rooted in bigotry.
A judge in Oregon who will preside over the murder trial of a suburban Portland man said the U.S. Supreme Court’s decision should also apply to nonunanimous jury acquittals, even though the high court did not specifically address that issue.
“The only way to ensure a fair and impartial jury trial for all defendants, victims, and jurors is to instruct the jury that the verdict either for guilt or acquittal must be unanimous,” Washington County Circuit Court Judge Andrew Erwin wrote last July.
Still, Erwin agreed to ask the Oregon Supreme Court for a ruling before the trial of Michael Ross begins. Ross has pleaded not guilty to the murder of his mother, Diane Ross, and the attempted murder of his brother, Alexander Ross III.
Louisiana’s situation was a vestige of Jim Crow laws enacted in the late 19th and early 20th centuries to oppress Black citizens. Louisiana voters dumped the non-unanimous verdict system for crimes committed beginning in 2019. But lawyers for a man convicted in 2016 with a 10-2 jury verdict of killing a woman took the case to the U.S. Supreme Court, leading to its decision last year.
The justices’ 6-3 vote overturned the conviction of Evangelisto Ramos and had deep implications for Oregon, which by then was the only state to allow nonunanimous jury verdicts.
Like Louisiana, Oregon’s adoption of split jury verdicts, in the 1930s, was also rooted in bigotry. An editorial in the Morning Oregonian newspaper at the time said “vast immigration into America from southern and eastern Europe, of people untrained in the jury system, have combined to make the jury of twelve increasingly unwieldy and unsatisfactory.”
By allowing split jury guilty verdicts, the votes of the minority could become irrelevant if one or two immigrants or non-whites voted to acquit while the remainder of the jury wanted to convict. Oregon voters passed a ballot measure in 1934 allowing 10-2 and 11-1 verdicts for convictions or acquittals in all crimes. Convictions in first-degree murder cases were exempt from the measure.
U.S. Supreme Court Justice Neil Gorsuch, writing for the high court last April, said the practice of non-unanimous convictions is inconsistent with the Constitution’s right to a jury trial and should be discarded. Oregon consequently dropped nonunanimous jury convictions.
Erwin, however, described a hypothetical situation to make his point that nonunanimous jury acquittals should also be dropped.
“Given current racially charged events, one could easily imagine a situation where a white police officer is brought to trial for unjustly shooting and killing an unarmed Black person, and the jury being made up of 10 white people and two Blacks,” Erwin wrote.
He said the public and the Black victim’s family could accuse the court of racism if both Black jurors vote to convict but the police officer is acquitted based on the not guilty votes of 10 white jurors.
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