The Odd Couple

Oregon and Louisiana share a jury quirk that's being challenged in the Supreme Court.

It turns out Oregon and Louisiana have more in common than an appreciation for jambalaya and Joey Harrington, the Portland-born backup quarterback for the New Orleans Saints.

Our Northwest home and the former slave state in the Deep South are also the only two places in the U.S. where a unanimous jury vote isn't required to convict a defendant of a felony. Instead, a 10-2 or 11-1 vote is sufficient in Oregon and Louisiana.

Defense lawyers argue such non-unanimous verdicts silence racial and sexual minorities on juries. They also put us at odds with centuries of English common-law tradition, the other 48 states and every federal court—all of which require unanimous verdicts.

With backing from the American Bar Association, Salem public defender Bronson James is mounting a challenge in the U.S. Supreme Court that could require Oregon courts to listen to all 12 jurors.

"Oregon law says it is OK to label two of these individuals crackpots," James says. "No matter how well-reasoned and heartfelt the opinions of those two jurors, they never have to be listened to."

James represents Scott David Bowen, convicted in 2005 by a Multnomah County jury of eight counts of sexual abuse, sodomy and rape. The only evidence against him was the word of Bowen's 15-year-old runaway stepdaughter, who reported the abuse when the state tried to return her to Bowen's home.

Prosecutors said at trial there were issues surrounding her credibility, and the jury split 10-2 on all counts. If Bowen had been tried in any other state, except Louisiana, the result would have been a mistrial. Instead, he was convicted and sentenced to more than 17 years in prison.

The Oregon Court of Appeals upheld that conviction, and the state Supreme Court declined to hear the case. The high courts in both Oregon and Louisiana have repeatedly refused to address the jury issue, saying it's up to the U.S. Supreme Court to decide.

Oregon's rule results from a 1933 ballot initiative pushed by the state's district attorneys. A cartoon in The Oregonian that year showed a gun-toting mobster making a getaway in a speeding car, with a sign on the door that read, "Hung Juries."

A divided U.S. Supreme Court upheld non-unanimous verdicts in 1972. But James says the court's rulings since then favor a different interpretation of the Sixth Amendment, which lays out rights for defendants in criminal trials. Justices will decide in September whether to take the case—among the first decisions by the court with newly confirmed Justice Sonia Sotomayor.

In a sign that gives James hope the case will be heard, the Supreme Court sought a response from Attorney General John Kroger's office last spring. Kroger, a former federal prosecutor, sided with Oregon's district attorneys in arguing there's no need for the court to revisit the issue.

Hundreds of convictions may need review if the law changes.

"We certainly don't want to see that overturned without giving it a good fight," says Deputy Attorney General Mary Williams, Kroger's point-woman on the case.

Prosecutors say the only result of changing the law would be more hung juries at greater cost to taxpayers. They reject the theory that non-unanimous verdicts silence minorities because they're more likely to have opposing views.

"I will admit that Oregon is not a terribly racially diverse state," says Clatsop County District Attorney Josh Marquis. "But I think you've got to give jurors more credit than that. I don't win all my cases, but I think most of the time the jury gets it right."

But the Bowen case has an influential friend—the American Bar Association, which represents 413,000 prosecutors, defense attorneys and others. In a brief urging the Supreme Court to hear the case, the ABA says Oregon's system "reduces the reliability of jury determinations, silences minority viewpoints, erodes confidence in the criminal justice system" and does not significantly reduce the number of hung juries.

Then there's our unfortunate association with the Pelican State.

"It's absurd," says Walter Todd, a prosecutor turned defense lawyer from Salem, "that we are in a group of two with Louisiana."

FACT:

About 67 percent of Oregon's felony trials result in non-unanimous convictions, but the American Bar Association says only 5.6 percent of juries hang in states where unanimous verdicts are required. That's because those juries deliberate longer and make a greater effort to reach agreement, the ABA says.

WWeek 2015

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