With justice for some

The right to a trial by a jury of one's peers is enshrined in the Constitution to protect the individual against the power of the state. But Oregonians do not enjoy that right to the same degree that residents of nearly all other states do.

Oregon is one of only two states — Louisiana is the other — in which a defendant can be convicted by a less-than-unanimous jury. In most felony trials, a 10-2 vote by a 12-member jury is enough to convict.

The U.S. Supreme Court ruled in 1972 that the Oregon Constitution's provision allowing 10-2 verdicts did not violate the Sixth Amendment to the U.S. Constitution, which guarantees the right to a jury trial.

The high court has, however, ruled that the Sixth Amendment requires unanimous verdicts in federal criminal trials. Federal and state courts operate under different rules, and there is nothing wrong with that. But this difference goes to the very heart of our justice system.

Our adversarial system, with prosecuting attorneys arguing for the state and defense attorneys fighting on behalf of their clients, presumes a level playing field. In practice, the state has something of an edge.

Prosecutors are government employees who work to convict defendants of crimes. They have the benefit of police and sheriff's investigators to help them build their cases.

The prosecution has the burden of proof in criminal cases, which helps to even the odds somewhat, but prosecutors also represent the side of law and order, helping protect the public from criminals by putting them behind bars. That can be a powerful edge with many jurors.

Public defenders, who represent those who cannot afford to hire their own attorney, may earn less than prosecutors, and they must hire their own private investigators if they don't want to rely solely on evidence produced by the police.

They represent clients who may have criminal records and live on the fringes of society, making them less-than-sympathetic figures to juries.

In a state requiring a unanimous guilty verdict, a defense attorney who can convince one juror to have reasonable doubt can win the day. In Oregon, that same attorney has to convince three jurors.

Oregon and Louisiana both require unanimous verdicts to convict in first-degree murder cases because the death penalty could be imposed. The logic seems to be that we should do all we can to avoid a wrongful conviction if the defendant might be executed, but sentencing an innocent person to prison is an acceptable risk.

The fact that Oregon shares this unusual system only with Louisiana does not place our state in particularly exalted company when it comes to upholding justice. But beyond that, it reflects badly on Oregon that we protect the rights of accused persons with less vigor than 48 other states.

No one wants to see criminals go free. But it is better to allow 10 guilty people to escape punishment than to put one innocent defendant behind bars.

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