WashCo DA Kevin Barton weighs in on non-unanimous juries
For decades, Oregon was one of only two states in the country that allowed people facing felony charges to be convicted without a unanimous jury verdict.
A U.S. Supreme Court ruling last year, Ramos v. Louisiana, changed that highly controversial part of Oregon's criminal justice system, banning non-unanimous convictions.
The ruling was a landmark win for criminal justice reform advocates and legal scholars who said Oregon's law allowing people to be convicted by the guilty votes of at least 10 of 12 jurors was created as a racist way to ignore jurors who belonged to minority groups.
But another ruling from the court earlier this year, Edwards v. Vannoy, said the unconstitutionality of non-unanimous convictions didn't apply retroactively to old cases.
Hundreds of cases potentially affected
That decision left more than 240 people across Oregon, including at least 37 in Washington County, who were non-unanimously convicted and have exhausted all of their appeals hoping their cases would be reviewed again by the courts. The data come from the Criminal Justice Reform Clinic at the Lewis & Clark Law School.
With Oregon Attorney General Ellen Rosenblum saying state law would need to change for such cases to be retried, lawmakers expect to create legislation at an upcoming session that will allow such cases to be reviewed, and possibly retried.
Washington County District Attorney Kevin Barton, whose office would be charged with prosecuting cases sent back to the Washington County Circuit Court, says he has one message for lawmakers.
"Just give us clarity so we know what the rules are," Barton said about a potential process for reviewing and retrying old cases.
Barton, like Rosenblum, said he wished jury non-unanimity and a process for addressing old non-unanimous convictions could have been sorted out by Oregon voters through a legislative referral process that was expected in the lead-up to the Supreme Court's rulings.
Having a nationwide standard requiring unanimous jury verdicts is best for our system of justice, Barton said.
But he added that "a con would be the significant strain on the system that would result if you were to undo convictions" dating back decades.
Additionally, Barton pointed out that, as a general rule, it is harder for prosecutors to achieve convictions during a retrial.
Witnesses may use different words to describe events or, for many reasons, they may not want to testify again, for example, Barton said, adding that those situations become more likely as time passes.
Revisiting old decisions
In August, a Hillsboro man who was found guilty in 2020 of two charges related to the shooting of his wife the year before was found not guilty during a retrial. The earlier convictions had been non-unanimous.
In September, a Forest Grove man who was convicted in 2017 of multiple charges without unanimity, including attempted murder, was scheduled to be retried.
The trial ended up being canceled after the defendant pleaded guilty to one of the lesser charges.
Prosecutors took a plea deal after being unable to bring back key witnesses, including a victim who no longer lives in the United States, said Stephen Mayer, spokesman for the District Attorney's Office.
Those two cases are examples of defendants whose cases were still in the appellate process, rather than having completed it and remaining convicted by non-unanimous juries.
Barton says the Oregon Department of Justice has told his office that, as of August, there are nearly 100 cases still in the appellate process that were impacted by the Ramos decision. Many of them may come back to the Washington County Circuit Court, he said.
The Oregon Court of Appeals has already reversed and remanded 47 cases back to the court for a new trial at least in part because of the Ramos decision, Barton said, adding that 18 of them have already undergone another trial or are set for another trial soon.
Barton said his office's approach to those cases won't be different than any other case that's back on appeal.
He added that there are still a lot of factors to consider when deciding whether or not to prosecute a case — the evidence's implications for provability, impact on the victim of enduring another trial and impact on community safety are all primary considerations.
Reformists criticize approach
Some attorneys say an influx of cases coming back to courts due to the Ramos decision was in part self-inflicted, however.
District attorneys "knew for a year and a half that the court was deciding Ramos, and they still continued to litigate cases for non-unanimous convictions," said Aliza Kaplan, a lawyer and law professor at Lewis & Clark Law School who has been fighting against non-unanimous juries for years.
Kaplan directs the Criminal Justice Reform Clinic at the school where she and law students created The Ramos Project, which has been tracking down and providing legal assistance to people across the state convicted by non-unanimous juries.
The data show that people who have been convicted by non-unanimous juries are disproportionately people of color.
Among 89 people convicted by non-unanimous juries whose cases were in the appellate process as of April, 20% were Black, while the group makes up only about 2.5% of the county's overall population.
Additionally, among the 37 people in Washington County who have exhausted all of their appeals and are seeking post-conviction relief for a non-unanimous conviction, 35% were Latino — about double the group's proportion of the overall population.
Kaplan says district attorneys, who likely knew the Supreme Court would find non-unanimous convictions unconstitutional, should have started providing only jury instructions that said unanimity is required.
Barton said he and district attorneys across the state evaluated that possibility and came to the conclusion that they didn't have the authority to require unanimity.
"Not a single elected DA in Oregon did that," Barton said. "It comes back to how our system is set up. DA's don't make the law. We have opinions, we express them, but at the end of the day, the courts interpret them and the Legislature passes them, or the people through the initiative process."
Kaplan says she doesn't buy the argument.
"It's disingenuous to say that they couldn't have done anything," she said. "DAs have so much discretionary power and can negotiate pretty much anything, especially something that the defense would support."
Brian Decker, a public defense attorney in Washington County who will face Barton in an upcoming election to be the county's district attorney, agrees that Barton should have prevented more non-unanimous convictions ahead of the Ramos decision.
Decker added that the Washington County District Attorney's Office should be doing more to undo unjust non-unanimous convictions even before the Legislature creates such a process.
"The Legislature should take it up," Decker said. "But that doesn't mean that it's not the purview of the district attorney to review old cases that had unjust outcomes. Particularly, where those unjust outcomes touch upon something so ugly as this racist law, district attorneys ought to be doing what they can to undo the historic racism that this law has its roots in."
Asked whether the District Attorney's Office is reviewing cases with non-unanimous convictions that have completed the appellate process, Mayer said in a statement that the duties of the office's Conviction Integrity Committee include "reviewing any issues regarding an unjust outcome that comes to its attention."
"The U.S. Supreme Court's decision in Ramos was not retroactive and did not hold that all old cases with a non-unanimous conviction were unjust outcomes," the statement continued. "Accordingly, our approach is for our Conviction Integrity Committee to review issues on a case-by-case basis. If there is an issue on a case that we become aware of, we would absolutely review it and determine the appropriate course of action."
Going forward, Kaplan says she hopes the Legislature takes up the issue at an upcoming short session in February, creating the process for people who were convicted by non-unanimous juries and exhausted all of their appeals to have their cases reviewed.
Both Rep. Janelle Bynum, who chairs the House Judiciary Committee, and a legislative aide for Sen. Floyd Prozanski, chair of the Senate Judiciary Committee, confirmed to Pamplin Media Group the committees will take up the issue soon.
"There is urgency in that individuals are currently serving time in state prisons for convictions based on non-unanimous verdicts," Kevin Moore, Prozanski's aide, said.
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