Even When Juries Can't Agree, Convictions Are Still Possible In Oregon

On July 5, in a Multnomah County courtroom, prosecutors told 12 jurors that Olan Williams was guilty of two counts of first-degree sodomy.

After a few days of testimony and four hours of deliberating, a jury found Williams guilty of performing oral sex on a man who had passed out drunk at his apartment nearly two years earlier.

Two jurors disagreed with that verdict, however. In 48 other states, that would be enough for a hung jury. But Williams was sentenced to more than eight years in prison.

“In Oregon you can be convicted of any felony, other than murder, … on a 10-2 verdict,” said Ryan Scott, who took over Williams’ case after his conviction. “In every other state except Louisiana it needs to be unanimous verdict.”

An Oregon judge is set to rule Thursday whether to grant Williams a new trial.

Scott argues that Oregon’s law – the one that allows non-unanimous jury verdicts – violates the equal protection clause of the U.S. Constitution.

Williams is African-American, and so is one of the jurors who voted not to convict.

The Law's History

“The original purpose of Oregon’s non-unanimous rule really has behind it discrimination,” said Aliza Kaplan, a professor at Lewis and Clark Law School in Portland, where she directs the Criminal Justice Reform Clinic.

Oregon’s unique law was passed by voters in a 1934 ballot measure. In doing so, voters made it part of the state’s Constitution.

Kaplan said it was originally meant to prevent European immigrants from having a say on juries.

“Everyone must really understand the times,” she said. “This is the early '30s Depression, so economic troubles. We had just sort of come out of a 10-year period where the Klu Klux Klan was very popular around the state with a lot of power, a lot of political power.”

Louisiana has a similar law that dates back to 1880.

Like the rest of the South, Louisiana’s pre-Civil War economy relied heavily on slavery, said Thomas Aiello, a professor of history and African-American studies at Valdosta State University in Georgia.

Aiello has written a book about non-unanimous juries in Louisiana and Oregon. He said the law made it easier to make African-Americans part of Louisiana’s criminal workforce.

“It was very much a very specific Jim Crow law,” he said. “It was designed to get more black prisoners for the state’s convict lease system.”

Aiello said the law sought to re-enslave African-Americans. In 1898, it became part of the Louisiana Constitution.

"The vast majority of people in Louisiana believe the reason we have non-unanimous criminal jury verdicts is because we have some vestige of the Neapolitan code or because we're that weird French state," Aiello said. "They just don't know because it's been sold to them in a way that kind of disguises some the reasons for it creation."

In 1972, the U.S. Supreme Court upheld Oregon and Louisiana’s non-unanimous jury laws. But Kaplan said the court has since contradicted its own ruling.

Today, she and other critics say Oregon’s law discriminates against people of color.

'What Good Does It Do For Us To Even Bother?'

Cash Singleton, who is also African-American, was one of the dissenting jurors in Olan Williams’ case.

“This case actually showed what’s wrong with it,” Singleton said.

Singleton did not vote to convict Williams because she didn’t believe he committed a crime. But because of Oregon’s jury law, her vote, in essence, didn’t matter.

“A lot of people of color have an overall distrust of the criminal justice system,” Singleton said. “They feel like serving on juries, it doesn’t do any good because it’s really white people running everything. So, what good does it do for us to even bother?”

And research has shown jurors are more likely to convict people of a different race.

“If you are a white juror and you’re looking at a black defendant, you are more likely to convict somebody who is black,” said Mat dos Santos, legal director for the ACLU of Oregon.

The group has filed a brief in support of a new trial for Williams. Dos Santos said his concerns about non-unanimous criminal convictions go beyond race.

“Stop and think about it,” he said. “If there are two people in that room saying I don’t believe it, I think there’s a reasonable doubt. So, not getting to a unanimous jury I think undercuts some of the foundations of what we truly believe is important in criminal justice.”

No agency in Oregon tracks non-unanimous criminal convictions.

A report by the state’s Office of Public Defense Services looked at 662 cases from 2007 and 2008 that reached the verdict stage and were appealed. The report notes the small sample size, but all the same found that non-unanimous juries occurred in 40 percent of those cases.

“Clearly, Oregon juries are frequently utilizing the non-unanimous option,” the report states.

Justice Or Efficiency?

Despite its history, Oregon’s non-unanimous jury amendment has its supporters.

Clatsop County District Attorney Josh Marquis said the state’s system works.

“I’ve been both a defense attorney and a prosecutor,” Marquis said. “It does not raise the number of convictions. What it does is it reduces the number of mistrials for hung juries.”

Marquis said the law also works both ways: It’s just as easy to acquit someone on a 10-2 vote in Oregon as it is to convict them.

But not all prosecutors that work under the law agree with it.

John Hummel, the district attorney for Deschutes County, said a 10-2 verdict means 17 percent of the jury disagrees with the decision.

“That strikes me as a decision that we shouldn’t have confidence in,” he said. “That’s not the confidence level that I think our justice system should deliver.”

Hummel said it’s critical for jurors to consider and wrestle with opinions they don’t agree with and not to dismiss them so quickly.

“We have a more efficient system of justice. But the flip side is you have a more efficient system of justice that might be delivering more verdicts that are unjust,” Hummel said. “The question is: Is your goal justice or efficiency?”

If the judge grants Williams a new trial, the ruling won’t have any bearing on Oregon’s constitutional amendment that allows for non-unanimous verdicts.

But critics of non-unanimous juries think Williams’ case could find a path to the U.S. Supreme Court, where the justices could revisit the issue.