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The US Supreme Court ruled today that non-unanimous jury verdicts on felony charges are unconstitutional. Ramos v. Louisiana, the case prompting the ruling, involved a Louisiana murder defendant convicted on a 10-2 jury verdict in 2014. Louisiana has since ended non-unanimous jury verdicts, leaving Oregon as the only state that still allows them for felonies, excluding certain murder cases.

By a 58 percent majority, Oregon voters passed a constitutional amendment in 1934 allowing non-unanimous jury convictions following public outrage over the outcome of a 1933 trial involving a Portland hotel proprietor charged with murdering a man near Scappoose. Unable to gain unanimous conviction on a murder charge, the jury wound up convicting the hotel owner of manslaughter.

The 6-3 court decision didn’t follow the usual conservative-liberal split on the high court. Justice Neil Gorsuch wrote the majority opinion and was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, Stephen Breyer and Brett Kavanaugh. Justice Clarence Thomas concurred, but cited narrower grounds. Justice Samuel Alito dissented, along with Chief Justice John Roberts and Justice Elena Kagan.

Disagreement among Supreme Court justices centered on a 1972 ruling in Apodaca v. Oregon in which the court on a 5-4 ruling declined to require jury unanimity. Four justices said the Sixth Amendment that requires jury trial didn’t mandate unanimous jury criminal convictions, while four justices argued they were required under equal protection language in the Fourteenth Amendment. Justice Lewis Powell split the difference by saying the Sixth Amendment only required unanimous jury convictions in federal courts, but that it didn’t extend to state courts or state constitutions.

Kavanaugh took on the Apodaca precedent in a separate statement when he said there are times the court should “overrule erroneous precedents” when there is a “special justification or strong grounds,” such as determinations that prior a court ruling was “egregiously wrong.”

Alito, Roberts and Kagan in dissent said Louisiana and Oregon had relied on the 1972 Apodaca and now would face a “a potential tsunami of litigation” seeking to vacate cases decided by non-unanimous jury convictions.

In a friend of the court brief filed last summer, the Oregon Department of Justice fed that argument by predicting “convictions in hundreds if not thousands of cases” would be challenged if non-unanimous jury felony convictions were invalidated by the US Supreme Court. “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.”

Attorney General Ellen Rosenblum told OPB at the time she had mixed feelings about the issue. “If I could’ve not had to write this brief, I’d be very happy, and I would prefer to move forward, and change our law – change our Constitution,” Rosenblum said. Rosenblum has sought legislation to send a constitutional amendment to Oregon voters to end non-unanimous jury convictions.

Lewis and Clark law professor Aliza Kaplan questioned the number of cases in Oregon that would be affected by the Supreme Court ruling. Kaplan said the decision might only result in 50 retrials in Louisiana.

The history of non-unanimous jury convictions is tinged with racial discrimination, according to Kaplan, who called them a “retrograde practice from Oregon’s racist past.” Split juries, Kaplan says, originated in the “Constitution of White Supremacy” that surfaced in the post-Civil War era and reflect the “last remnant of Jim Crow laws”. In the early 1930s, the Ku Klux Klan was a serious political force in Oregon. By effectively silencing two jurors, Kaplan says people of color in a predominantly white state like Oregon can be denied a jury of their peers. “Just by the very nature of [Oregon’s] demographics, we are possibly putting those minority jurors in a position where their voices don’t count at all,” Kaplan told OPB.

Some district attorneys have defended non-unanimous juries on grounds they prevent hung juries, which force costly retrials or result in cases being dropped.