Oregon bill may give those convicted by non-unanimous juries a chance to have cases reexamined

Two years ago, the U.S. Supreme Court found that defendants in criminal trials can’t be convicted by non-unanimous juries. Only Louisiana and Oregon had allowed that practice. Then last year, the high court found that the issue of prior convictions — whether the ruling should be applied to cases retroactively — should be left for states to decide. Now Oregon lawmakers are considering a new system that would give people who can prove they were convicted non-unanimously a year to apply for post-conviction relief and get their cases re-examined. Lewis & Clark law professor Aliza Kaplan and Clackamas county District Attorney John Wentworth share their thoughts on the bill.

The following transcript was created by a computer and edited by a volunteer:

Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. In 2020, the U.S. Supreme Court found that defendants in criminal trials cannot be convicted by nonunanimous juries. Last year, the court ruled that the issue of prior convictions, meaning what to do with people who had already been convicted nonunanimously, should be left for states to decide. Now some Oregon lawmakers are proposing a new system. It would give people who can prove they were convicted nonunanimously a year to apply to get their cases re-examined. It would then be up to the local district attorney to decide to retry a case, seek a plea bargain or drop it. In a few minutes, we’re going to talk to a DA who is opposed to this bill. We start with the person who’s probably most responsible for the level of attention that nonunanimous convictions have gotten in Oregon over the last five years. Aliza Kaplan is a law professor at Lewis and Clark Law School and the director of the Criminal Justice Reform Clinic there. Welcome back.

Aliza Kaplan: Hi, Dave.

Miller: Thanks for joining us. Can you remind us what the Supreme Court said in that Ramos case in 2020, when they outlawed nonunanimous convictions?

Kaplan: Sure. In Ramos v. Louisiana, it was pretty simple. The Supreme Court struck down nonunanimous convictions in criminal cases, and along the way, it acknowledged the racist history that went into both Louisiana and Oregon’s laws when they were passed.

Miller: If that was the court’s reasoning, that a jury trial meant convictions had to be unanimous and that there were racist roots and a racial impact, as Justice Kavanaugh noted, then how did a majority of those justices then decide that previous convictions could stand?

Kaplan: Great question. The issue of whether or not nonunanimous jury convictions should be constitutional or not all fall under a constitutional analysis and something called the incorporation doctrine. But, in looking at the issue of retroactivity, it’s a whole different analysis. The courts did this under a federal legal standard and found that, not only this didn’t meet their standard, but there’d be no issue of criminal procedure that could ever meet their standard. That was about a year ago. It’s two completely different analyses and, as you mentioned at the beginning of the show, they did say quite clearly that their ruling did not matter as far as state law goes. So states have a right, in any way they want, to provide retroactivity to folks that had nonunanimous juries and had final cases.

Miller: You helped create The Ramos Project as a part of the Criminal Justice Reform Clinic at Lewis and Clark Law School and you’re pursuing different avenues to vacate sentences or to get post conviction relief for people who have been convicted in this way – by nonunanimous juries. One of those avenues you have pursued is to petition the attorney general, or to invite people who are convicted to petition the attorney general. How many of these petitions have you filed?

Kaplan: It’s not just me. Post-conviction lawyers across the state, since Ramos came out in 2020 in the spring, have been bringing something called post-conviction claims. This is something that all incarcerated folks or people with convictions can bring within a certain amount of time. It brings a constitutional challenge to what happened at the trial level. I’m using statistics, by the way, from our Oregon [Office of] Public Defense Services and our Department of Justice. As of mid-September, there were 244 folks that had filed a claim for post-conviction relief indicating that they had a nonunanimous jury conviction. There are other people that brought other claims such as ineffective assistance of counsel, but those folks are ones who can’t prove that they had a nonunanimous jury conviction. The number as of mid-September [was 244], and we can add a few more because some time has gone by since I’ve gotten updated numbers, so let’s say 300 people have filed and they can prove that they had a nonunanimous jury.

Miller: What’s come from those requests?

Kaplan: People are filing these cases all over the state, because you file where you are incarcerated, where you’re housed. Those cases have been slowly moving – very slowly because of COVID especially – through the system. I understand that there are less than 20 that have been resolved and are about to be at the appeal level. A couple are already at the appeal level. All the other ones have been slowly making their way through our trial courts. Now they’re all on hold because the Oregon Supreme Court recently agreed to address the issue of retroactivity among some other issues in these cases. As you also mentioned earlier, there’s also a legislative effort right now to address some of these cases.

Miller: So three different avenues all at once here and it can get a little bit confusing, but I want to zero in on the legislative effort. Can you give us your version of how the review process would work, as defined in this bill?

Kaplan: I can do my best. The bill, as recently as this morning [Feb. 11, 2022], is still being discussed. For anyone who’s ever been involved in the legislative process, it’s very much a give and take and a negotiation. But the basics are that Senate Bill 1511 covers people who have final judgments meaning Ramos didn’t directly affect them, they are incarcerated and they can prove that they have a nonunanimous jury. It’s most of the approximately 300 people I mentioned before. Even if people haven’t filed yet, they would have one year, and if people have already filed, they would just have to amend their petition and have some time to do that as well.

Miller: Let me just stop you there because there’s an important piece here that was a surprise to me and may be a surprise to listeners and non-lawyers among us, me included, which is, they’d have to prove that they were convicted by a nonunanimous jury. Why is it that that is not just somehow a matter of clear public record?

Kaplan: It would be great if it was a matter of clear public record. In Louisiana, it’s a lot more clear in their cases because they have been polling juries for a really long time and keeping the data. Here in Oregon, there was never a requirement to ask the jury, ‘How did you vote?’ It was always left up to, mostly the defense lawyer, I guess occasionally a judge would ask to poll and people would raise their hands or they’d write it down or something like that, and then it would be on the record, in the file, on the transcript, in someone’s written handwriting, whatever. It would be clear that it happened. These are the only types of cases where people can prove it in Oregon. We’ve had this law on the books for 86 years, and we never had a system of keeping record of this. The truth is, the majority of people who likely had nonunanimous juries don’t know and will never have any way to prove it. That’s partially why the numbers are low.

Miller: One of the points the Oregon District Attorneys Association has brought up that they don’t like about this bill is the standard of proof required to actually prove that somebody was convicted nonunanimously. What would it take?

Kaplan: The standard of proof from the original draft of the bill, the District Attorneys Association, this week, was involved in crafting. It will require some clear and convincing showing of it. We went through a whole bunch of examples: It has to be in the transcript, it has to be on the audio. So there’s different ways, and if there’s any question, we even added a provision for a judge to look ‘in-camera,’ which means on their own, not in the public, at the lawyer’s files. So we’ve actually narrowed that down. The truth is there’s not gonna be a lot of questionable cases because it’s either there or it’s not. That’s partially why the numbers are pretty low. Most folks have no idea because their lawyers never polled the juries.

Miller: How do you imagine a retrial would go? Let’s carry this through: The bill passes, somebody petitions and it’s found that, yes, they were convicted nonunanimously, a DA looks at it and says, ‘I actually want to take this to trial again.’ [Let’s say, for example, it’s] a case for some assault that happened seven years ago. What would another trial be like seven years later?

Kaplan: First of all, I think that the person’s case would get vacated under this new law, if it passes, and then they would get sent back to county. As you said, it will be up to the District Attorney’s Office to decide whether to retry them, to plea them out and I guess, in some cases, to just let them go because they’ve already served a significant amount of time. Every trial or every possibility of a trial will look different. This law, without question, is going to create problems. It’s going to open trauma for victims. It’s going to open trauma for defendants – for being retried, all of it. There’s not an easy way to deal with 86 years of unconstitutionally convicting people. There are gonna be cases that maybe are too difficult to try again. I think the majority of these cases will be pled out because, in our system, the majority of our cases get pled out. So, that’s what I think. But will there be some really hard calls for the district attorneys? Absolutely. And will defendants have to face retrials and victims have to participate in these trials? Yes. This week in fact, with the district attorney’s assistance, we did put in place some provisions where we think it could improve the process with regard to evidence and victims’ testimony. There’s also money for victim support and for retrying these cases now in the bill..

Miller: All of what you’re describing was not in the original bill. You’re saying this has come based on input from DAs?

Kaplan: Exactly. Originally the bill was created with the Department of Justice. We worked with them, and now we’ve had input from the District Attorneys Association. I think those of us who want justice for the folks who have been incarcerated without a fair, constitutional trial understand that this stuff is super complicated. We also know that it’s so important for not just defendants but for victims and for the integrity of our system. We have to do this right. Sometimes when we do things wrong for so long… Never mind that this law was in place because of discrimination, but it disproportionately affected people of color, jurors of color. This is what happens when you create an unconstitutional and racist system. We are now looking at the fallout from that, and it’s going to be uncomfortable for everyone involved. We’re all just going to have to do our best. We have to ensure that people’s constitutional rights are not violated. Considering the number of people that we have no idea whether they had unconstitutional trials or not, the numbers are incredibly low. The majority of them are in the three counties you would expect. I am sure that all of these district attorneys’ offices are going to be handling them with as much care as possible, considering the complicated situations.

Miller: We’re going to go to one of those DA offices right now, actually. Aliza Kaplan, thank you very much for joining us. I appreciate it.

Kaplan: Thanks for having me.

Miller: Aliza Kaplan is a law professor at Lewis and Clark and director of the Criminal Justice Reform Clinic there. For another perspective on this bill, I’m joined now by John Wentworth, the Clackamas County District Attorney. John Wentworth, welcome.

John Wentworth: Thank you. Good afternoon.

Miller: Good afternoon to you. I want to start with the basics. Do you agree with the Ramos decision by the US Supreme Court that convictions by nonunanimous juries should be outlawed?

Wentworth: Well, that’s the law of the land. When the courts say this is the way it should be, then we take that as the rule. So I’m comfortable with that.

Miller: If you’re comfortable with it, how do you justify the fact that there are people in Oregon prisons right now who were convicted by nonunanimous juries?

Wentworth: That’s a great question. Here’s what’s interesting about what we’ll call Ramos and its progeny – there’s already been a case that’s interpreted and Professor Kaplan referred to that. Ramos didn’t decide in and of itself whether the law that they were announcing should be retroactive. They saved that for a subsequent case called Edwards v. Vannoy, which was decided just last May. In Vannoy they said, actually, in Ramos we created a new law, a law that didn’t exist before, a law that couldn’t have been predicted we would change. They pointed to what they call ‘other reasonable jurists’; they said that other judges had relied on their decisions in the past saying that nonunanimous juries were in fact constitutional. They said even six of their own brethren and sistren on the U.S. Supreme Court had decided that nonunanimous juries were constitutional. They said we’re creating a brand new law here and when you create new law, the law says, you don’t make it retroactive. So the court declined to apply Ramos retroactively. Now Oregon has the opportunity, and Oregon’s engaged in that discussion, with Senate Bill 1511, to decide whether we’re going to have a different rule in Oregon than the U.S. Supreme Court announced. We have a real opportunity here to be thoughtful about it and to plan for it and to do it right. I guess that’s one of my concerns about the way this is rolling out in the short sessions. Short sessions are designed to be bills that we can kind of agree on going in because we only have a month. Unfortunately, prosecutors and crime victims were brought to the table just this week. That’s why a lot of progress I think, what I’m hearing, is being made behind closed doors.

Miller: Let’s say this bill were to pass. Obviously just now, five minutes ago, we heard about a number of the changes that have already been put on paper now as amendments to the original bill. So the bill is changing as we speak. But can you give us a sense for how you would approach the cases that came before you? This gives you the power – a lot of power – as a prosecutor, to decide what to do: to seek a plea, to seek a whole new trial, or to say X person has now served eight years for this serious violent crime, and I’m going to say that’s enough. How would you approach these cases?

Wentworth: It’s going to be challenging because there are so many dynamics that will be at play. Keep in mind, this is the first I’ve heard that we’ve narrowed it down to in-custody defendants. The way the bill is currently written, this applied to every person whether they ended up in jail or prison or not. If they were convicted by a nonunanimous jury, their cases would be overturned. Now we’re talking about narrowing it down to cases where someone is incarcerated. So we know where the defendant is. Now we have to go back and make sure we know where the victims are. We have to make sure they have the support they need and that they’re even willing to go forward; remember the defendant still has a constitutional right to confront their accuser. We have to make sure that the evidence is still available. So there are real challenges attendant to deciding what we do next and whether we enter into a plea negotiation or not. Part of the factors that will be considered are: What’s the strength of our case, can we go forward, can we not, will the victim come forward [and] continue to testify against the defendant? All those things weigh into this decision-making, not to mention whether we have the resources available to try this new batch of cases that will be coming in.

Miller: How many of the challenges you’re talking about or how many challenges of similar kinds would be the same for the defense side, in terms of the challenges brought about by time?

Wentworth: That’s a great question. Time can work on either side. The defense won’t have the challenge of, ‘Can you locate the witnesses and the victim that you need?’ Maybe the witnesses but certainly not their client. That would be one initial challenge. I don’t want to sugarcoat it. It’s going to be challenging for both sides, and again, that will factor into whether cases resolve by plea before trial.

Miller: Let’s say a witness had died or couldn’t be found. Could testimony from a previous trial be used in a new one, or is that forbidden? This seems like a ‘Law School 101′ question. But I didn’t go to law school.

Wentworth: It’s not a ‘Law School 101′ question, actually. There are provisions in Oregon law, under certain circumstances, that you can use prior testimony. We can use transcripts. One of the things that I would prefer to see in this bill is to have that explicitly laid out or described in the bill, so that we know that’s not going to be a legal issue going forward. We do not believe that there would be what’s called a Crawford issue, a confrontation issue, if those transcripts are available.  But I would certainly want to see that in the plain language of the statute.

Miller: What have you been hearing from crime victims that you’ve talked to specifically about this bill?

Wentworth: They’re upset. There were a number of victims who testified before the Oregon Legislature. Very afraid: The first fear was, ‘Is my offender getting out of prison?’ The next thing was, ‘Do I have to attach my name to this? … so that they’ll know where I am?’ Then it was, ‘I don’t want to go through this again.’ Those are the kinds of things that we’re hearing from crime victims. I get it. This will be traumatic for them. This is going to take some special work to make sure that they have the support that they need to carry on. I am personally worried about what I call victim fatigue: victims who just get to the point where they say, ‘You know, I trusted the system. It took five trial settings to get my case to trial. Then I finally did it. Now you’re telling me it’s getting reversed and you want me to do it again. I’m done.’ That kind of disbelief in the system is what I am most concerned about.

Miller: As we heard, the Oregon Supreme Court is considering this right now as well. Is it your assumption that, whether by a state Supreme Court ruling or by the Legislature at some point, some version of how to deal with retroactivity, how to deal with these cases, is going to be applied in Oregon?

Wentworth: Yes. Let’s assume that the Oregon Supreme Court says, ‘Yes, we should look at this retroactively.’ What they won’t do is tell us by what process that will happen. One of the good things that is coming out of this is a discussion about what that should look like should that decision come down. Because we’re going to be left in a lurch. All these questions that we’re talking about today will come up, and the Supreme Court will not answer those for us. They’ll just tell us this is the law.

Miller: So what could you live with? What’s a system that you would support? Obviously, you said you wished this weren’t happening in a short session, you want more time. That’s sometimes what people say when they want to just completely put the brakes on something. You’re not exactly saying that, but what would you like to see if you could define or devise a system that really would give a venue of relief for these people who were locked away with 11-1 or 10-2 jury deliberations?

Wentworth: Thank you. What I would like to see… We can’t be cavalier about this. We have to think through what we’re doing. That includes making sure that we have the funding we need to get this work done. As Oregon Public Broadcasting has reported, Oregon public defenders are telling us, ‘We don’t have the money. We don’t have the people. We can’t take more cases.’ And these cases will be brought back into the system. For all those challenges that OPDS has, prosecutors’ offices have those same challenges. We have even more cases. So we want to make sure that we have the funding for the victim advocates, for public defense services, for prosecutors. We want to make sure that we can provide trauma services to crime victims. There are going to be challenges for our jails as well. I can’t speak for all jails, but I know in Clackamas County we’re at a fraction of capacity because of COVID. When you bring the defendants back from the prison system, they come to the jail to be ready for trial. These are all things we have to talk through. I’m excited that there are conversations about things like: How far back do we go? Are we talking about in-custody people or out of custody people? But some of the other considerations that we have to talk about are, what if [on] one count there was a nonunanimous verdict but the other counts were unanimous? Does the whole case come back or just that count? Does the prosecutor, does the DA, get a chance to rebut whatever evidence the defense presents in this process to show that there was a nonunanimous jury? We have to evaluate all that. There are just things that I think we need to spell out more clearly in this bill if it’s going to go forward and, at the end of the day, make sure that we can accomplish what we’re trying to accomplish.

Miller: John Wentworth, thanks for your time today.

Wentworth: Thank you so much.

Miller: John Wentworth is the district attorney of Clackamas County.

Contact “Think Out Loud®”

If you’d like to comment on any of the topics in this show, or suggest a topic of your own, please get in touch with us on Facebook or Twitter, send an email to thinkoutloud@opb.org, or you can leave a voicemail for us at 503-293-1983. The call-in phone number during the noon hour is 888-665-5865.