In a somewhat counter-intuitive move, Oregon Attorney General Ellen Rosenblum today asked the U.S. Supreme Court to leave in place a 1972 ruling that allows for non-unanimous jury verdicts.
After Louisiana ended its practice of allowing non-unanimous jury verdicts earlier this year, Oregon was left as the only state in which a person can be convicted of a serious felony by a non-unanimous verdict.
Criminal justice reformers despise non-unanimous verdicts, which they say have historically fostered inequitable outcomes. Lawmakers considered a bill this year that would have ended the practice but it died toward the end of session.
So, in the current political climate in Oregon, it might be logical to assume that if Rosenblum took a position on the 1972 case, Apodaca v. Oregon, which upheld the constitutionality of non-unanimous verdicts, that she would urge the justices to overturn that decision and end the practice. (Disclosure: Rosenblum is married to Richard Meeker, the co-owner of WW's parent company.)
Here's the brief she filed today.
In a statement, however, Rosenblum explained that she fears that over-turning that case could invalidate decades worth of convictions under existing Oregon law.
Here's her statement explaining her position:
I want it to be understood that I fully support repealing Oregon's non-unanimous jury rule, the origin of which has been linked to racism and anti-semitism.
Requiring unanimous juries would ensure fair representation, promote systemic accountability and legitimacy, and bring Oregon in line with all 49 of our sister states. That is why I support referring an Oregon constitutional amendment to voters that would change Oregon's law going forward.
But it is important that the U.S. Supreme Court understand the practical consequences should it reverse its decades-old determination that the United States Constitution allows non-unanimous verdicts. Reinterpreting federal constitutional requirements after 40-plus years would call into question thousands of settled criminal cases, and could require new trials in hundreds, if not thousands, of cases.
Rosenblum's concern about invalidating previous convictions is similar to the concern her agency recently expressed about Senate Bill 1013, which redefined the crime of aggravated murder and effectively gutted Oregon's death penalty bill.
Lawmakers, the DOJ and Gov. Kate Brown are all now trying to figure out how to fix that bill, which the DOJ says could reduce the sentences handed down to murderers in recent decades.