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Why the Legislature May Spend the Money on a Unanimity Ballot Measure and Defenders of Non-Unanimous Verdicts Will Vote For It

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by: Ryan Scott • July 4, 2019 • no comments

This month, the Oregon Legislature passed on the opportunity send a ballot measure to voters on the issue of non-unanimous jury verdicts.

Currently, the Oregon Constitution enshrines the right to non-unanimous jury verdicts in all criminal cases except murder or aggravated murder. 10-2 is all that's needed for guilty and 10-2 is all that's needed for not guilty. Oregon is the only state that allows non-unanimous guilty verdicts. The only other state with a history of non-unanimous verdicts -- Louisiana -- got rid of them last year.

Although support for eliminating non-unanimous verdicts is widespread throughout Oregon's political class -- a few disgruntled prosecutors and ex-prosecutors notwithstanding -- the legislature's punt is fiscally understandable. A ballot measure is expensive, and there is the possibility that if Oregon does nothing, the US Supreme Court will eliminate the problem in a case being argued before it on the first Monday in October: Ramos v. Louisiana. Mr. Ramos was convicted of murder on a non-unanimous verdict before the Pelican state did away with the practice. Since a decision is expected by February, 2020 (that is, before any ballot measure could get to the voters), it is possible, if not likely, that non-unanimous guilty verdicts will be declared unconstitutional, and Oregon defendants will have a right to a unanimous jury before they're convicted, even without the passage of a ballot measure.

Money saved, right? Maybe not.

The Oregon legislature likely didn't consider something that may lead them to spend the money on a ballot measure even if Mr. Ramos prevails. The Oregon Constitution mandates 10-2 verdicts for guilty or not guilty. If Ramos v. Louisiana finds non-unanimous guilty verdicts unconstitutional, it likely wouldn't have any impact on non-unanimous not guilty verdicts.

Thus in a world where Ramos prevails, Oregon defendants could only be convicted on a unanimous verdict but they could be acquitted on a 10-2 verdict.

Is this a huge benefit to Defendants? In the real world, maybe not, because if the jury hung. with 10-2 voting not guilty, odds are the prosecutor would decline to re-try the case. But in a few cases, nonunanimous not guilty verdict will be highly beneficial.

Consequently, the Oregon legislature, at the urging of prosecutors throughout the state, may put forward a ballot measure even if Ramos wins, in order to repeal non-unanimous not guilty verdicts. The most passionate supporters of such a ballot measure would be the very prosecutors who currently support non-unanimous guilty verdicts.

Let's hope they appreciate the irony.