Oregon's 36 elected district attorneys are leading an effort to bring unanimous juries to Oregon, and people who have wanted to do away with the state's decades-old non-unanimous jury provision say it appears there is a catch.
Related: Even When Juries Can't Agree, Convictions Are Still Possible In Oregon
In a statement, the Oregon District Attorneys Association says it wants voters to consider requiring unanimous verdicts in felony criminal cases. By doing so, Oregon would align with policies of the federal government and 48 other states.
The catch, unanimous jury advocates say, is that ODAA is also calling for the right of a state prosecutor to have a say in whether defendants get a jury trial or a trial before a judge. Criminal defense attorneys say that gives prosecutors more power in messy legal cases.
"They're basically saying they want to get rid of non-unanimous juries, but we're only going to do that if we also can either get rid of or change the language with regard to whether a defendant has the right to waive his or her trial and have a bench trial instead," said Aliza Kaplan, a professor at Lewis and Clark Law School in Portland, where she directs the Criminal Justice Reform Clinic.
"To me, it's a power play and just another opportunity, unfortunately, to get more power while giving some forward. At the same time, they would be taking away a crucial right, which is for defendants to have a right to choose a bench trial," she said.
In Oregon, juries can convict and acquit defendants 10-2. Opponents of the 1934 law say it has roots in the state's racist past and was intended to silence European immigrants from having a say on juries at a time when the Ku Klux Klan had a lot of political power in the state, though the law does require unanimous convictions in murder cases.
According to the state constitution, defendants can also choose to waive a trial by jury and instead agree to be tried by a judge alone. That right is generally understood as a safeguard from a wrongful conviction by a jury — especially a non-unanimous one.
Criminal defense attorneys say that right gives defendants in emotionally charged cases or cases of intent an ability to go before a judge — as opposed to a jury of their peers — who's more well versed in factually intense cases.
Related: Oregon DAs To Back Campaign Against Non-Unanimous Juries
"We go to law school to figure out intent; we take tests on intent. And [juries] are supposed to understand it in a day or two days?" Shanon Gray, a criminal defense attorney in Lake Oswego, said.
"If you have these hard cases that are emotionally charged like sex cases or rape cases or sex abuse cases, in essence, you're guilty until proven innocent," he said.
In 1999, Oregon voters defeated Measure 70, which would have allowed state prosecutors to demand a jury trial in criminal cases.
"There's nothing that I know of to suggest that Oregonians have changed their mind on that topic," said David Rogers, executive director of the ACLU of Oregon.
"I am a little skeptical, yes, of where they're coming from. They're, on the one hand, trying to acknowledge they support a change to getting rid of non-unanimous jury verdicts in Oregon, but this is a law they've defended. So it's hard to know how they arrived at this newfound enlightenment," he said.
In November last year, ODAA discussed non-unanimous juries during an interim hearing before a joint committee hearing of the House and Senate judiciary committees. Addressing members of the committee, Tim Colahan, executive director of ODAA, said the state's non-unanimous jury law is "fairly applied."
"I can speak for every district attorney and deputy in the state when I say that one of our greatest fears is a wrongful prosecution," Colahan said.
"I can also tell you with absolute certainty that the non-unanimous jury policy reduces the number of hung juries in criminal cases that go to trial. In doing so, it clearly saves scarce resources in our criminal justice system. But unquestionably one must not put a price on justice," Colahan said.
"To this end, any criminal justice provision should never be based on resources alone, but must first and foremost ensure balance in the scales of justice. To that end, Oregon’s law is uniquely two-sided."
Colahan also told the committee that a defendant's ability to waive jury trials acts as a balancing tool that offers a unique protection under the non-unanimous provision, one that must also go if the non-unanimous jury provision is repealed.
"Should the Legislature or the citizens of Oregon seek to change this longstanding law, then the only course that meets the criminal justice balancing test is to wholly repeal Measure 302," Colahan said. "Repeal the non-unanimous requirement for conviction. Repeal the non-unanimous requirement for acquittal. And allow the state, on behalf of the rights of citizens, to request cases be tried to a jury."
Gray said prosecutors are using their campaign to repeal non-unanimous jury trials as a guise to gain more control over cases.
"Why would they want a unanimous jury?" Gray said. "If he's only got to convince 10, why would he want to have to convince two more?"
The Oregon District Attorneys Association is expected to finalize the specific language of a ballot measure that would put the decision over whether to repeal Oregon's non-unanimous jury law before voters.
The final language is expected in the coming weeks, and ODAA says it wants to qualify the measure for the 2020 ballot.