When recent Pulitzer Prize-winning journalist Jim Mustian visited Portland for a story last year, the issue of split-jury convictions wasn’t on most Oregonians’ radar.
Mustian was reporting for Louisiana daily newspaper The Advocate about an unusual distinction Louisiana and Oregon shared at the time: They were the only two states in the country where a person can be convicted of criminal charges without a unanimous jury decision. That isn’t the case anymore in Louisiana, which voted to overturn its split-jury law in the 2018 election. But it in Oregon, it’s still possible to go to prison as the result of a 10-2 jury vote.
Portlanders were shocked when Mustian told them why he was in town.
“I can’t tell you how many Uber drivers or people in bars, I would strike up a conversation with them,” Mustian told the Mercury. “I would tell people the reason I was there, and their jaw would drop.”
Mustian is part of a team of journalists awarded a Pulitzer Prize for local reporting on Monday for a series of articles examining Louisiana’s split-jury law and its disproportionate impact on people of color. Their work is credited with helping to propel the movement to overturn that law—and offers some useful lessons for Oregonians who want to see our own split-jury law overturned.
A current bill in the Oregon Legislature would put the issue to a vote in 2020. A ballot measure may be the best chance at overturning Oregon's policy in the near future, as the Oregon Court of Appeals decided not to review the law just last week. The case that was poised to come before the appeals court hinged on a 10-2 jury conviction against a Black man, and his attorneys argued that the verdict was based on white jurors' racial biases.
The article Mustian wrote after visiting Portland points out the supposed improbability of Oregon and Louisiana sharing a questionable criminal justice policy. From the article:
“It's an unlikely kinship for states that diverge on everything from politics to topography — and an increasingly unwanted distinction in this drizzly corner of the Pacific Northwest.
Louisiana, for all its cultural allure, has a less than endearing national reputation when it comes to criminal justice and incarceration. The associations are not lost on Oregonians.
‘It puts us in the same category as Louisiana, and people don't like that,’ said John Hummel, district attorney of Deschutes County, one of Oregon’s largest.”
But both states’ policies could easily be traced back to racism and xenophobia, as Mustian points out. Louisiana’s was a Jim Crow-era holdover, while Oregon’s stems from anti-immigrant sentiment in the 1930s.
In the course of its series, The Advocate studied almost 1,000 jury trials and found that split-jury decisions impacted Black people much more often than they did white people. There is anecdotal evidence and some data to suggest the same happens in Oregon, though Mustian said more can be done to educate the public here.
“It was really remarkable that this subject was able to garner the type of bipartisan support that it did [in Louisiana],” said Mustian, who now covers federal law enforcement for the Associated Press. “I think the most critical element of this was that The Advocate was able to demonstrate so clearly the prejudicial impact that split-jury verdicts have on minorities. That’s something that had not been done before.”
After the movement to ban split-jury verdicts picked up steam in Louisiana, Mustian said, few public officials spoke out against it. But there was some reluctance among Louisiana’s district attorney’s offices to change the law—namely because, once a state’s law on split-jury verdicts changes, that could open the door for every incarcerated person who was convicted by a non-unanimous jury to ask for a new trial.
“Just the sheer number of people and cases that could be affected by this could lead to some kind of resistance,” Mustian said. “The status quo is easier for cash-strapped prosecutors' offices. And let’s face it—the way the law is set up now, it provides an advantage to prosecutors.”
Oregon has seen some pushback to overturning its split-jury law. Last November, three district attorneys penned an op-ed in the Oregonian titled “We trust Oregonians with non-unanimous juries.” Days later, however, the Oregon District Attorneys Association published its own op-ed in support of changing the laws.
As this debate plays out in Oregon, the US Supreme Court also plans to hear a case on the constitutionality of split-jury verdicts. A Louisiana man who was charged with a crime before the state voted to end split-jury convictions is appealing his own non-unanimous verdict, and the Supreme Court recently indicated that it will consider the case this year.
It will be the first time the court takes up the issue since a 1972 case, Apodaca v. Oregon. The court ruled then that split-jury convictions were constitutional in a 5-4 vote. Mustian said that while he can’t predict what will happen, the court “took it up for a reason” this year.
“I think they’re at least open to overruling Apocada, or clarifying it,” he added.
Sixty-four percent of Louisiana voters voted to end split-jury verdicts in 2018. Mustian said the results could be similar in Oregon in 2020—so long as voters understand the brutal impact split-jury verdicts have on the criminal justice system.
“We published these findings, and there was just no way to spin it,” he said. “There was just no way to say that this was a good thing.”