Will non-unanimous verdicts remain in Oregon?

Despite recent decisions by the U.S. Supreme Court, local defense attorneys say it's only a matter of time before Oregon will be forced to end non-unanimous jury convictions. (Correction: Attribution in this story has been clarified.)

Oregon and Louisiana are the only two states that permit jurors to convict a defendant with one or two dissenting jurors. A ruling on a Louisiana case last week upheld that as constitutional.

Defense attorneys, however, vow they will continue knocking on the Supreme Court's doors, asking the justices to reverse a decision made almost 40 years ago that allows the non-unanimous convictions.

"This is what '12 Angry Men' is all about," said Michael Bertholf, attorney for the Medford-based Southern Oregon Public Defenders office, referring to the 1957 movie starring Henry Fonda. "One person sees things a little bit differently, and he is allowed to discuss his reasoning and maybe get people thinking about it."

The Supreme Court has held that the Sixth Amendment requires unanimous verdicts in federal criminal cases. But the court has since consistently ruled that nothing in the U.S. Constitution bars states from allowing some convictions by non-unanimous verdicts. However, even in these two states, first-degree murder, which could bring the death penalty, requires a unanimous verdict.

In the 1972 case of Apodaca v. Oregon, a companion case to Johnson v. Louisiana, Justice Lewis Powell wrote the majority opinion as the court upheld Oregon's Constitution, which allows a defendant to be convicted on a 10-2 vote for most felony charges.

The court's ruling has faced numerous challenges. On Feb. 22, the court declined to hear the appeal of a Louisiana man, Troy Barbour, convicted of attempted murder on a 10-2 vote.

More than 80 defendants have been convicted in the past five years, including at least two dozen in the past 16 months, by nonunanimous juries in the two states, the National Association of Criminal Defense Lawyers said in a brief it filed in support of Barbour's case.

In Josephine County, an Illinois Valley miner, Ronald Eugene Spears, was recently convicted of first-degree assault and unlawful use of a weapon in the April 2009 shooting of Gregory Glen Graybill.

After three days of testimony, 11 of the 12 jurors took only a few hours of deliberation to return guilty verdicts. Ten verdicts of guilty were needed to convict. Jurors were asked to vote "guilty" or "not guilty" on each of the crimes, and they were asked to vote "yes" or "not" on whether they believed Spears had used his shotgun to commit the crimes.

One elderly female juror voted that Spears was "not guilty" of the Measure 11 assault charge. The woman then refused to vote on other aspects of that crime or the lesser charge. "I abstained," she told the court.

Judge Lindi Baker called the juror's actions "unusual" and asked both the prosecutor, Matt Corey, and Spears' defense attorney, Daniel Simcoe, whether they accepted the verdict. Simcoe accepted the jury's verdict, but he said he would not waive possible appeals.

Jackson County District Attorney Mark Huddleston said if the Supreme Court ultimately decides to hear a case from Oregon or Louisiana, and if that case convinces them to overturn their earlier ruling, that would be the end of non-unanimous verdicts in both states.

"The ruling would clearly be binding in all states," Huddleston said.

Bertholf said the day may be coming. In January the U.S. Supreme Court declined to hear the case of an Oregon man, Scott David Bowen, convicted of child sexual abuse. However, the court asked Oregon's Department of Justice to file a response as to whether they should hear the case, Bertholf said. The fact that they requested Oregon to file a response means "at least one justice was interested in the issue," he said.

The state successfully argued that there was no mandate for a unanimous verdict in all cases.

"History does not support overruling the interpretation of the Sixth Amendment that this Court adopted in Apodaca," the state said in its response. "As the Court recognized in that decision, the common law at the time of the Founding required a jury verdict to be unanimous. But it does not follow from that historical fact that a unanimous jury became a constitutional guarantee."

Bertholf said the more people become aware that they or someone they love could be convicted of a crime even if some members of the jury found them not guilty, the sooner the law is likely to be overturned.

"It's just a matter of time," Bertholf said. "I will continue to request unanimous jury verdicts."

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