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Oregon Appeals Court Hears Challenge To Non-Unanimous Convictions


People in Oregon are asking what it really should take to prove someone guilty of a crime. In most states, a jury must unanimously find the defendant guilty beyond a reasonable doubt. In Oregon, the standard is lower. You can be convicted by a jury that is less than unanimous. And that has triggered debate because two times this year, non-unanimous jury verdicts have been overturned. Oregon Public Broadcasting's Conrad Wilson reports.

CONRAD WILSON, BYLINE: The first exoneration happened back in May. The case against Brad Holbrook was dismissed because of prosecutorial misconduct but not before Holbrook served more than six years in prison for a crime he says he didn't commit.

BRAD HOLBROOK: I definitely feel the system's unfair.

WILSON: Holbrook was indicted by a grand jury on sexual abuse of a child and, in 2002, convicted by a non-unanimous jury.

HOLBROOK: You know, it goes back to even the fact that they allowed two jurors to find you not guilty and still be convicted.

WILSON: And while Holbrook's exoneration is unusual, it's not unique. Steve Wax is the legal director of the Oregon Innocence Project. He represented a second man exonerated this year after a non-unanimous conviction and says the state must revisit its jury system.

STEVE WAX: That man would have died in prison without 12 jurors having said you did it. That's wrong.

WILSON: The other state that allows juries to convict some defendants without unanimity is Louisiana. But Oregon could soon be alone. Louisiana will vote this November on a ballot measure that would scrap its non-unanimous jury system.

THOMAS AIELLO: It is the last remaining Jim Crow law in Louisiana.

WILSON: Thomas Aiello is a professor of history and African-American studies at Valdosta State University in Georgia. Aiello says Louisiana lawmakers adopted its system after the Civil War as part of a series of laws that enshrined white supremacy in the state.

AIELLO: Part of that was denying the right to vote, and part of that was segregation laws. And the other part of that was re-enslaving the black population.

WILSON: Aiello says Louisiana did so by making it easier to convict African-American defendants. Those convicts were then leased by the state to do the work that had been done by slaves.

JEE PARK: Right. So the Louisiana law was specifically designed to discriminate against minority voices, to discriminate against African-Americans.

WILSON: Jee Park runs the Innocence Project New Orleans. She says, in Louisiana since 1989, a little more than 40 percent of people exonerated in noncapital cases were convicted by a non-unanimous jury.

PARK: What that number says about non-unanimous juries is that it does not help in reaching an accurate verdict.

WILSON: Oregon adopted non-unanimous juries in 1934 following a decade in which the Ku Klux Klan was powerful in the state and anti-immigrant sentiment was high. Aliza Kaplan is the director of the criminal justice reform clinic at Lewis & Clark Law School in Portland.

ALIZA KAPLAN: Both laws were based on discrimination and are, like, last relics of those times.

WILSON: She wrote a law review article detailing the history of Oregon's split jury system.

KAPLAN: Even putting the history aside, I don't want to be convicted when two people don't believe that the state's made their case.

WILSON: The law has its supporters. Tim Colahan is the executive director of the Oregon District Attorneys Association.

TIM COLAHAN: I can also tell you with absolute certainty that the non-unanimous jury policy reduces the number of hung juries in criminal cases that go to trial.

WILSON: Last November, he testified in support of non-unanimous juries before the state's judiciary committee.

COLAHAHN: In doing so, it clearly saves scarce resources in our criminal justice system.

WILSON: A case headed before the Oregon court of appeals this month argues non-unanimous juries convict people when there's doubt and deny defendants of color a jury of their peers. Cash Spencer sat on the jury for that case in 2016.

CASH SPENCER: I don't know how you would ever get to a jury of peers in the state of Oregon for a non-white person.

WILSON: The defendant was African-American, as is Spencer. She was one of the two jurors that thought the defendant wasn't guilty.

SPENCER: I do believe he was denied a jury of his peers. My voice was kind of silenced because the majority, which was not his peers, felt the other way.

WILSON: The case now before the appeals court could find non-unanimous juries violate the Equal Protection Clause of the U.S. Constitution. But all that could take years. In the meantime, some Oregon lawmakers want a legislative fix or, following Louisiana's lead, want to put the issue before voters.

For NPR News, I'm Conrad Wilson in Portland.

(SOUNDBITE OF TYCHO'S "EPOCH") Transcript provided by NPR, Copyright NPR.

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