Oregon lawmakers are considering a proposal that could vacate convictions for several hundred people found guilty by nonunanimous juries, a system the U.S. Supreme Court has found unconstitutional.
Under Senate Bill 1511, defendants who can prove they were convicted by a nonunanimous jury would have one year to file for post-conviction relief. If granted, their case would be returned to its county of origin, where local district attorneys would decide whether to retry the case or drop the charges.
Just days into Oregon’s 35-day legislative session, emotions surrounding the bill have run high, with prosecutors and crime victims largely testifying against the legislation.
Oregon State Capitol building, May 18, 2021. The capitol was completed in 1938 and is topped with a gilded bronze statue of the Oregon Pioneer.
Kristyna Wentz-Graff / OPB
“It is indisputable that a retrial of a criminal case is a difficult, and painful and traumatic process for crime victims,” Marion County Deputy District Attorney Katie Suver told lawmakers during a hearing Wednesday.
The bill’s supporters argue re-examining nonunanimous jury cases is an issue of equity, and if lawmakers don’t take action they’ll be leaving convictions in place that today aren’t lawful.
“There are people in prison now sentenced unconstitutionally,” Mae Lee Browning, legislative director of the Oregon Criminal Defense Lawyers Association, testified during a bill hearing Thursday.
In 2020, the U.S. Supreme Court struck down nonunanimous juries in state criminal cases. The justices’ 6-3 ruling in Ramos v. Louisiana ended the practice in Oregon, which at the time was the last state in the country, after Louisiana, to allow criminal convictions without juror unanimity.
After Ramos, more than 400 cases in Oregon on direct appeal were sent back to the trial courts where district attorneys were tasked with deciding whether or not to retry the cases. In a separate ruling last year, the U.S. Supreme Court said its Ramos decision didn’t apply to old cases, but the court also ruled Oregon and Louisiana could make it retroactive if they chose. SB 1511 aims to do that in Oregon.
Several victims who testified this week before state lawmakers spoke of the pain the Ramos ruling caused because it overturned convictions they thought were in the past.
Lynae Wever was a little girl when she and her sisters were molested by Wesley Covington, she stated in written testimony to the Senate Judiciary Committee.
“It’s been so hard for me to forget about that instance of my life, part of that is due to me still having to deal with this case,” she testified. “I’m still so traumatized by his actions.”
In 2013, a judge sentenced Covington to 18 years in prison. His conviction was overturned in 2020 after the U.S. Supreme Court’s ruling because a jury convicted him 11-1.
“That is what brought this case back up to the surface,” Wever wrote. “That 1 undecided vote has kept him from his full sentencing, and is now keeping my sisters and I scared and worried that our abuser will get off with a slap on the wrist.”
Rather than retry the case, the Clackamas County District Attorney’s Office and Covington’s defense attorney reached a plea deal. In June 2021, he pleaded guily to three counts of sexual abuse and got credit for time he previously served. His earliest released date from the Department of Correction is June 2023.
“There isn’t a word that begins to describe how enraged, disgusted, hurt, and anxious the Ramos appeal had on me,” Wever wrote.
For more than 80 years, Oregon allowed juries to convict criminal defendants of felonies without all 12 jurors agreeing. With the exception of murder, which required unanimity, juries could reach verdicts of 10-2 or 11-1.
Marion County Courthouse in Salem, Ore., May 19, 2021.
Kristyna Wentz-Graff / OPB
Proponents argued it created a more efficient justice system with fewer hung juries. Opponents argued nonunanimous juries allowed for convictions where there was doubt, and also created disparities. In Louisiana, nonunanimous juries were considered a Jim Crow law designed to make it easier to convict Black defendants so white landowners could lease them as prison labor.
In Oregon, voters passed the measure at a time when the Ku Klux Klan was popular in the state and anti-immigrant sentiment was high. The tipping point followed the acquittal of a Jewish man tried for murder who all but one juror wanted to convict, according to research by Lewis and Clark Law Professor Aliza Kaplan, one of the backers of SB 1511.
“Oregon’s nonunanimous jury rule was rooted in racism and xenophobia,” Kaplan told state lawmakers during a hearing Wednesday. “Before it was deemed unconstitutional, Oregon’s nonunanimous jury rule worked as intended, disproportionately impacting Black and brown Oregonians.”
So far, there are roughly 250 people convicted by non-unanimous juries who have petitioned for post-conviction relief, but before courts take action on their cases they need the bill to pass. Of those, 18% are Black, despite the state’s population being only 2.2% Black, Kaplan noted. Latino, Hispanic and Native Americans are also overrepresented among people convicted by nonunanimous juries, she said.
Keoni Young, 26, told lawmakers in a letter that he was currently finishing his final month of a 70-month sentence for an assault charge against his ex-girlfriend, who he said was abusive and had thrown him down the stairs.
“She was 13 years older than me, 50 pounds heavier and she was violent,” he wrote. “She had attacked me before.”
Young said the two got into a fight. He claimed he acted in self defense, but he was convicted by a jury of 10-2.
Juan Romero Jr., 76, wrote in testimony to lawmakers that he was acquitted of sex abuse, but convicted of two counts of rape and two counts of sodomy by a nonunanimous jury in May 1999.
“It is therefore indisputable that I have served 21 years in prison on account of exclusively unconstitutional non-unanimous jury convictions for crimes I did not commit,” wrote Romero, who is Apache.
Romero said when he heard about the Ramos ruling, he thought it would be a chance to clear his name.
“It seemed obvious that the Supreme Court was saying convictions like mine were unconstitutional, but apparently I may never get a chance to clear my name unless this Legislature intervenes,” he wrote. “I am not able to move to Nebraska to live with my daughter, I am not able to spend time with my grandchildren or great grandchildren until they turn 18, and I will still have these crimes associated with me until someone acknowledges that my convictions were wrong.”
For months, some lawmakers have considered legislation to make the Ramos ruling retroactive, including a hearing on a draft concept in November. Since then, the Oregon Department of Justice and proponents, like Kaplan, have worked on the draft of the bill.
The Oregon District Attorneys Association, meanwhile, had remained quiet about any opposition to SB 1511 until Monday, the day before the legislative session began. In a six-page memo, ODAA stated its opposition to the legislation, stating “there are too many technical concerns to address them all here.”
Among its concerns, ODAA said there wasn’t funding for victim services. Prosecutors noted the numbers of people affected by reversing non-unanimous jury convictions is unknown and could number in the hundreds or thousands. ODAA also stated that the standard for proving a nonunanimous jury conviction was “very broad and potentially unverifiable.”
“Unfortunately, the timeline available in this 35-day session will not allow SB 1511 the careful examination it needs from these important stakeholders to provide critical input on such an important issue,” ODAA’s memo stated.
The Oregon Supreme Court will hear a case this spring that could also make the Ramos ruling retroactive without the Legislature acting, but any ruling might not come until next year.
