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The Oregon District Attorneys Association is backing away from its earlier promise to lead an effort to repeal non-unanimous jury verdicts in Oregon.
The group of 36 elected district attorneys were in near unanimous agreement on the effort just three weeks ago, but after hearing pushback from other reform advocates, they are abandoning a plan to propose a ballot measure that would require unanimous verdicts.
"At this time, we do not have plans to pursue a ballot measure for 2018 or 2020," ODAA executive director Tim Colahan said in an email responding to questions from WW. "Unfortunately, the potential partners for this effort have declared their unwillingness to support the reform of both issues in a balanced approach. Oregon prosecutors cannot do this alone."
The association landed itself in a tricky position when a website accidentally published three weeks ago announced the group's intent to support an effort to eliminate Oregon's constitutional provision that allows juries to convict with just 10 out of 12 votes for any criminal charge except murder.
Oregon is one of just two states that allow non-unanimous convictions. The other is Louisiana.
But the inadvertent launch of the website came before the association had fully formed its position.
The state's prosecutors were still debating how exactly to go about repealing the law that allows non-unanimous convictions and whether or not to repeal two other policies that were put in place with the same 1934 ballot measure: one which allowed juries to acquit with just 10 votes and a second which gave defendants the right to choose a bench trial in front of a judge over a jury trial without the prosecution's consent.
When the website went live, the association scrambled to clarify its position. WW wrote a story revealing that ODAA was considering repealing a defendant's right to choose a bench trial along with the non-unanimous verdicts. The association issued a statement the next day declaring its opinion that the only fair way to change the jury rules was to repeal all three laws Oregonians had put in place more than 80 years ago.
Though prosecutors have abandoned their intent to bring forward a ballot measure to do that, Colahan says they are still open to discussing the issue.
"We will continue to have conversations with stakeholders and we are hopeful that they will share our desire for a change that is just and fair to all Oregonians, including both victims and those accused of committing crimes," he says.
Others with a stake in the change—law professors, criminal justice reform advocates, and the Oregon Criminal Defense Lawyers Association—opposed coupling the repeal of the bench trial option with any effort to end Oregon's non-unanimous jury verdicts. Their resistance would likely have created a heated battle over any proposal that included a repeal of the bench trial choice.
"If ODAA's true goal from the beginning was to get rid of non-unanimous juries in Oregon–especially because they are based in discrimination as they said a couple weeks back–they would have had no trouble finding plenty of partners to join in the effort," says Lewis & Clark law professor Aliza Kaplan, who popularized the argument that Oregon's non-unanimous jury verdict rules were fueled by anti-Semitic sentiment. "Unfortunately, that was not their true intent."
UPDATE, Jan. 30, 2018, 9:50pm.: Advocates who publicly opposed the ODAA's proposal say the district attorneys would have found more support if they dropped the bench trial issue.
ODAA and several district attorneys, including Multnomah County's Rod Underhill, voiced support for repealing non-unanimous jury verdicts because of their connection to Oregon's history of racism when the associations intent first went public on Jan. 10.
"If we have laws that are based on a foundation of racism, bias and prejudice," Underhill told WW at the time, "we need to look at them closely—whether they need to be changed or whether they need to be repealed."
The association didn't publicly say it would consider changing the bench trial rules until several days later.
"The DA's initial proposal of doing away with non-unanimous juries would have gained widespread support from an array of stakeholders," says Mary Sofia, lobbyist for the Oregon Criminal Defense Lawyers Association. "It's unfortunate that they are abandoning reform in its entirety simply because the process is complicated or they somehow perceive the effort is not worth the reward. This sequence of events really makes me wonder— did they every truly believe in this long needed reform, or was this just a PR move?"
David Rogers, executive director of the American Civil Liberties Union of Oregon, says the rapid shift in ODAA's stance on this issue is jarring, but unsurprising because some prosecutors have opposed changing the law in the past.
"It's nice, though, that in the past month we have them on record saying that the law is bigoted and unjust," he says. "I think we're going to try and hold them to that."