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Oregon Democrats agree to nonunanimous jury bill changes after crime victims testify

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Kristyna Wentz-Graff
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OPB
According to Sen. Floyd Prozanski, D-Eugene, pictured here in 2021, the state “should have never allowed for nonunanimous verdicts on criminal cases. This is an opportunity for us … to actually heed what they said and give as much relief as we can.”

Oregon Democrats under pressure from Republicans and district attorneys have agreed to significant carve outs on a bill that would vacate convictions for people who can prove they were convicted by a nonunanimous jury.

Democrats had sought to give many people convicted by 10-2 or 11-1 juries a chance to seek new trials after a 2020 ruling by the U.S. Supreme Court found the practice unconstitutional. Oregon was the last state in the nation to allow nonunanimous juries.

Last year, in a separate but related case, the nation’s high court ruled its 2020 decision was not retroactive, but that states could determine whether to apply the ruling to older cases. The court’s ruling last year led to Oregon Senate Bill 1511, which drew heavy criticism from district attorneys, who said it would harm crime victims.

An amended version of Senate Bill 1511, which narrows who would be eligible to petition for a new trial to people currently in custody and whose victims were over 18 years old, passed out of the Senate Judiciary Committee on Feb. 14 along party lines. The tweaked bill now also offers millions of dollars for prosecutors and community organizations across the state to support victims whose cases could be revisited.

“Oregon was wrong,” Sen. Floyd Prozanski, D-Eugene, said as he summarized the court’s ruling at the Senate Judiciary Committee hearing. The state “should have never allowed for nonunanimous verdicts on criminal cases. This is an opportunity for us … to actually heed what they said and give as much relief as we can.”

Both Republicans who voted against the bill and Democrats who supported it signaled they had not made up their minds about how they might vote should it reach the Senate floor.

“This bill is much improved with the amendments,” Sen. Kim Thatcher, R-Keizer, said during the hearing. “This whole exercise is not required by the Supreme Court. What was required is we had to get rid of the nonunanimous juries and there was not a requirement to go back and retry them. So this is completely optional.”

As amended, the bill only applies to people physically in custody and serving a sentence from a nonunamious conviction they can prove. It would not apply to people on parole, probation or who have completed their sentences.

In a sign there could be some future Republican support for the bill, the Judiciary Committee also adopted an amendment offered by Senate Minority Leader Tim Knopp, R-Bend. Under that amendment, retroactivity wouldn’t apply to defendants whose victims were under 18 at the time of the offense.

Oregon state Sen. Tim Knopp, R-Bend, speaks on the floor of the Senate on Monday, Jan. 14, 2019, at the Oregon Capitol in Salem, Ore.
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Senate Minority Leader Tim Knopp, R-Bend, pictured here in 2019, offered an amendment to the bill stating retroactivity wouldn’t apply to defendants whose victims were under 18 at the time of the offense.

The bill also would increase the standard for proving a defendant was convicted by a nonunanimous jury, which Oregon courts sporadically document. For example, a split-jury decision might show up in a court transcript if a defense attorney or prosecutor asked a judge to poll the jury about their verdict, or if it was written down on a jury’s verdict form. Anyone seeking to overturn their conviction would be required to show a court record to prove the conviction was not unanimous.

The amended version of the bill also grants $6 million to the Oregon Department of Justice for victim services that district attorneys and community groups could tap if nonunanimous jury cases get returned to local counties for reconsideration.

It’s unknown how many people could see their convictions vacated. So far, there are roughly 250 people convicted by nonunanimous juries who have petitioned for post-conviction relief, but many of those are out of custody and would not be eligible under the amended bill.

“By limiting this to just those adults in custody, we have significantly reduced the numbers that would be eligible, as well as the number of individuals that would be potentially retried,” Prozanski said.

Like other post-conviction relief cases, prosecutors could retry cases overturned by SB 1511 in hopes of getting a unanimous jury conviction, work out a plea deal with the defendant, or dismiss the case.

At the beginning of the 35-day legislative session that began this month, lawmakers heard testimony from supports of the bill, as well as emotional pleas from victims who opposed it. Lawmakers said the amended legislation attempts to balance victims’ trauma, while also acknowledging some people in prison today were convicted by juries the U.S. Supreme Court now finds unlawful.

“I, too, question at times what the parameters should be as to where a constitutional right has been violated,” Prozanski said of the retroactivity proposal, “but I also understand and realize that there has got to be some parts of balance. It’s not a purist perspective.”

Nonunamious juries have a documented history based in racist efforts to imprison and subjugate Black Americans and other marginalized groups.

In Oregon, of the 250 people who have so far said they can prove they were convicted by a nonunanimous jury, 18% are Black, despite the state’s population being only 2.2% Black, according to Lewis and Clark Law Professor Aliza Kaplan, who has championed SB 1511.

Latinos and Native Americans are also overrepresented among people convicted by nonunanimous juries, she testified this month before the committee.

Oregon Supreme Court in Salem, Ore., May 19, 2021.
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Oregon Supreme Court in Salem, Ore., May 19, 2021.

“I think it is important to keep in mind that the U.S. Supreme Court found nonunanimous jury convictions unconstitutional and this bill only provides an opportunity to those in custody with nonunanimous jury convictions to have their cases retried, leaving others behind,” Kaplan said. “While I am pleased that some folks will get their constitutional day in court under SB 1511 and that victims will be cared for in the process, it is a shame that all Oregonians convicted unconstitutionally will not get the justice they deserve.”

Despite the changes and securing money for victim services, the Oregon District Attorneys Association remains opposed to the bill. Michael Wu, ODAA’s executive director, said there’s not a finite list of concerns, but added that the amendments have improved the bill.

“When we’re going to make a policy decision that is going to affect so many crime victims potentially,” Wu said, “we really have an opportunity, and really a duty, to make sure that it’s fair and that impact is mitigated.”

Regardless of what lawmakers do, the Oregon Supreme Court is set to hear arguments in May that could potentially make the U.S. Supreme Court’s ruling retroactive in ways much broader than the amended version of SB 1511.

Lawmakers on the Joint Committee on Ways and Means will next consider whether to fund the legislation.

Copyright 2022 Oregon Public Broadcasting. To see more, visit Oregon Public Broadcasting.

Conrad Wilson is a reporter and producer covering criminal justice and legal affairs for OPB.