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Oregon courts began vacating the first few non-unanimous jury cases in Oregon this week—but it will take years of legal work to determine just how wide-reaching a recent United States Supreme Court decision will be for past criminal convictions in the state.

In April, the Supreme Court ruled that non-unanimous jury verdicts for felonies are unconstitutional in Ramos v. Louisiana. That means that a criminal defendant can no longer be found guilty by a jury that has a 10-2 or 11-1 split; rather, all valid jury decisions must be 12-0. At the time, Oregon was the only state left in the US that still relied on this standard.

For Aliza Kaplan, a Lewis & Clark professor who had been working to end non-unanimous jury convictions for five years, the Court’s ruling in Ramos was cause for celebration.

“I was thrilled,” Kaplan told the Mercury. “And within hours, I had to start working on a project for people interested in filing claims.”

Weeks after the Court issued that ruling, the Oregon Department of Justice provided Oregon’s appellate courts with a list of 269 cases on active appeal that would be affected by the Ramos decision. The Oregon Supreme Court and Court of Appeals began sending those cases back to trial courts this week, and are expected to continue doing so. The charges in those cases include meth possession, child sexual abuse, theft, and forgery—all crimes that carry years-long sentences in Oregon.

It will now be up to individual district attorneys to decide whether to retry the cases in hopes of getting a unanimous verdict, or drop them.

Those 269 cases on appeal are the most obvious examples of cases where the Ramos ruling applies. But for Kaplan and Oregon public defense lawyers, they’re just the tip of the iceberg in regards to cases that could be affected by the ruling.

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“We have 85 years of possibly unconstitutional convictions,” said Marc Brown, an attorney with the Oregon Office of Public Defense Services’ (OPDS) appellate division.

Other cases where the Ramos ruling might apply fall into two main categories: Cases that are on direct appeal but have less obvious connections to Ramos; and cases which are not on direct appeal, meaning the judgement is final. It will be a matter of months or years before a legal precedent is established for these cases.

Structural errors

Brown is currently working on cases that are on appeal, but don’t fall as neatly under the new non-unanimous jury standards.

These include cases in which the jury was not polled, so it’s not known whether the verdict was unanimous or not. In Oregon, a jury poll is optional, and it’s considered the responsibility of an attorney to request it. Brown is expecting he and his colleagues will have to actively argue that these cases ought to be remanded as well.

“The state will argue that, ‘In those situations, it was the defense attorney’s responsibility to… poll the jury, and if they didn’t do it, well, too bad,’” Brown said. “Our position will be, ‘No, the state has the burden of proving that was a valid verdict.’”

Even more complicated are appealed cases in which the jury did return a unanimous verdict—but because the jury instructions allowed for the possibility of a split-jury verdict, Brown argues, the case still denied defendants their constitutional rights, and deserves a second look.

“We don’t know what goes on behind the doors of a jury room,” Brown said. “You may have had two jurors who were holding out, but they said, ‘It doesn’t matter, because I’m going to be overruled anyway’… It could have cut off deliberations, because there was no reason to deliberate because they had 10 votes, so everyone just joined along.”

Brown said lawyers at OPDS are currently in the process of identifying cases that can represent this issue particularly clearly, and can set a precedent for cases that follow.

Brown said he expects to begin arguing on behalf of these cases before the appellate courts in September, though the COVID-19 pandemic adds an element of uncertainty to the timeline.

Post-conviction relief

Kaplan, of Lewis & Clark, believes that Ramos’ reach shouldn’t stop at cases still on active appeal. Instead, she argues that the ruling should apply to all felony cases with non-unanimous jury convictions, dating back to when Oregon voters approved the practice for xenophobic reasons in 1934.

“This is something Oregon did for over 85 years,” Kaplan said. “We know the law is based in discrimination, and we continued to carry it out over and over again until a month ago.”

Kaplan is focusing on cases in which the judgement is final, meaning they are not on direct appeal. But it’s not immediately clear whether Ramos is retroactive, so the issue will need to be litigated through the state’s court system.

In order to establish whether Ramos is retroactive, and in which cases it applies, Kaplan needs to litigate some cases to set precedent. So she is helping convicted Oregonians file petitions for post-conviction relief—an option available to defendants with final judgements if new evidence or information arises that would have affected the outcome of their case.

“As far as I’m concerned, anyone who had a non-unanimous jury verdict, or anyone who had a jury instruction offering that—their case should be vacated,” Kaplan said.

Through a program called the Ramos Project, Kaplan and private appellate law firm O’Connor Weber LLC are sending informational packets to people in prisons explaining how they can file a petition for post-conviction relief. They are also holding informational sessions with prison law librarians via Zoom, walking them through how a person can file a petition related to the Ramos ruling.

Like Brown, Kaplan and her colleagues will select lead cases from the many post-conviction relief petitions filed. The Ramos Project packets sent to Oregon prisons warn that “this process will take time.”

“It will take a few years to learn whether or not this opinion will apply to any group of people that have final judgements on post-conviction,” Kaplan said. “These are issues that have never been fully addressed in Oregon, so a lot of new litigation will be necessary.”

In addition to representing people who had non-unanimous verdicts Kaplan also wants to see the Ramos ruling applied to people who took plea deals out of fear that a non-unanimous jury would convict them.

“Do you know how many hundreds of people—especially people of color—took a plea deal because their lawyer told them they’d never win with a non-unanimous jury?” she said. “It was common practice to tell clients that.”

Depending on how successful the Ramos Project is in litigating the different retroactivity questions, it could open the door for hundreds or thousands more cases to be reexamined in Oregon courts.

Oregon Attorney General Ellen Rosenblum warned the Supreme Court of this very outcome when it was considering Ramos. While Rosenblum said she supported getting rid of split-jury convictions in general, she wanted the state to have more control over the process, so that it could prevent the decision from being retroactive. Last year, she filed a legal brief with the Supreme Court arguing that declaring split-jury convictions unconstitutional would “require new trials in hundreds, if not thousands, of cases,” thus clogging Oregon courts.

For Kaplan, the possibility of overwhelming the courts isn’t a primary concern.

“We’ve wronged so many people [with non-unanimous juries],” she said. “I say that whether they’re innocent or guilty—it’s unjust what we’ve done.”