Advocates Skeptical Of Campaign To Upend Oregon's Jury Law

Oregon Public Brodcasting (OPB) by Ericka Cruz
Guevarra | Jan. 19, 2018 2 p.m. | Portland, Ore.

Oregon’s 36 elected district attorneys are
leading an effort to bring unanimous juries to
Oregon, and people who have wanted to do away
with the state’s decades-old non-unanimous jury
provision say it appears there is a catch.

In a statement, the Oregon District Attorneys
Association says it wants voters to consider
requiring unanimous verdicts in felony criminal
cases. By doing so, Oregon would align with
policies of the federal government and 48 other states.

The catch, unanimous jury advocates say, is that
ODAA is also calling for the right of a state
prosecutor to have a say in whether defendants
get a jury trial or a trial before a judge.
Criminal defense attorneys say that gives
prosecutors more power in messy legal cases.

“They’re basically saying they want to get rid of
non-unanimous juries, but we’re only going to do
that if we also can either get rid of or change
the language with regard to whether a defendant
has the right to waive his or her trial and have
a bench trial instead,” said Aliza Kaplan, a
professor at Lewis and Clark Law School in
Portland, where she directs the Criminal Justice Reform Clinic.

“To me, it’s a power play and just another
opportunity, unfortunately, to get more power
while giving some forward. At the same time, they
would be taking away a crucial right, which is
for defendants to have a right to choose a bench trial,” she said.

In Oregon, juries can convict and acquit
defendants 10-2. Opponents of the 1934 law say it
has roots in the state’s racist past and was
intended to silence European immigrants from
having a say on juries at a time when the Ku Klux
Klan had a lot of political power in the state.

According to the state constitution, defendants
can also choose to waive a trial by jury and
instead agree to be tried by a judge alone. That
right is generally understood as a safeguard from
a wrongful conviction by a jury — especially a non-unanimous one.

Criminal defense attorneys say that right gives
defendants in emotionally charged cases or cases
of intent an ability to go before a judge — as
opposed to a jury of their peers — who’s more
well versed in factually intense cases.

“We go to law school to figure out intent; we
take tests on intent. And [juries] are supposed
to understand it in a day or two days?” Shanon
Gray, a criminal defense attorney in Lake Oswego, said.

“If you have these hard cases that are
emotionally charged like sex cases or rape cases
or sex abuse cases, in essence, you’re guilty until proven innocent,” he said.

In 1999, Oregon voters defeated Measure 70, which
would have allowed state prosecutors to demand a jury trial in criminal cases.

“There’s nothing that I know of to suggest that
Oregonians have changed their mind on that
topic,” said David Rogers, executive director of the ACLU of Oregon.

“I am a little skeptical, yes, of where they’re
coming from. They’re, on the one hand, trying to
acknowledge they support a change to getting rid
of non-unanimous jury verdicts in Oregon, but
this is a law they’ve defended. So it’s hard to
know how they arrived at this newfound enlightenment,” he said.

In November last year, ODAA discussed
non-unanimous juries during an interim hearing
before a joint committee hearing of the House and
Senate judiciary committees. Addressing members
of the committee, Tim Colahan, executive director
of ODAA, said the state’s non-unanimous jury law is “fairly applied.”

“I can speak for every district attorney and
deputy in the state when I say that one of our
greatest fears is a wrongful prosecution,” Colahan said.

“I can also tell you with absolute certainty that
the non-unanimous jury policy reduces the number
of hung juries in criminal cases that go to
trial. In doing so, it clearly saves scarce
resources in our criminal justice system. But
unquestionably one must not put a price on justice,” Colahan said.

“To this end, any criminal justice provision
should never be based on resources alone, but
must first and foremost ensure balance in the
scales of justice. To that end, Oregon’s law is uniquely two-sided.”

Colahan also told the committee that a
defendant’s ability to waive jury trials acts as
a balancing tool that offers a unique protection
under the non-unanimous provision, one that must
also go if the non-unanimous jury provision is repealed.

“Should the Legislature or the citizens of Oregon
seek to change this longstanding law, then the
only course that meets the criminal justice
balancing test is to wholly repeal Measure 302,”
Colahan said. “Repeal the non-unanimous
requirement for conviction. Repeal the
non-unanimous requirement for acquittal. And
allow the state, on behalf of the rights of
citizens, to request cases be tried to a jury.”

Gray said prosecutors are using their campaign to
repeal non-unanimous jury trials as a guise to gain more control over cases.

“Why would they want a unanimous jury?” Gray
said. “If he’s only got to convince 10, why would
he want to have to convince two more?”

The Oregon District Attorneys Association is
expected to finalize the specific language of a
ballot measure that would put the decision over
whether to repeal Oregon’s non-unanimous jury law before voters.

The final language is expected in the coming
weeks, and ODAA says it wants to qualify the measure for the 2020 ballot.

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