Central Oregon lawyers at odds over Supreme Court ruling that allows cases to be retried

Published 5:30 pm Thursday, January 12, 2023

Central Oregon lawyers are at odds over the possible impact of a recent Oregon Supreme Court ruling, which said people convicted by nonunanimous jury verdicts have a right to a new trial, even if the conviction occurred before the top court’s latest ruling.

Inmates in state prisons can now have their cases retried if they were convicted by a split jury of any felony except murder, according to the Dec. 30 opinion. They could also negotiate a resolution with prosecutors. The ruling will impact hundreds of cases statewide, but it’s unclear how many and what types of cases could be retried in Central Oregon, lawyers say.

Defense attorneys have praised the ruling. They note that felony convictions should only stand if there is certainty of a defendant’s guilt across the board.

“It seems fundamentally unfair when you have evidence so weak that you can’t even get 12 people to agree on a verdict,” said Joel Wirtz, executive director of Deschutes Defenders, a public defense nonprofit.

But some prosecutors say they are concerned that the ruling will force crime victims and their families to once again face the grueling process of seeing their case tried in court.

“To have to relive that once again is concerning to me,” said Crook County District Attorney Kari Hathorn. “These are really terrible events that happen to people that they have to testify about.”

For 86 years, Oregon was one of two states nationwide — alongside Louisiana — to allow convictions by juries where the verdicts were not unanimous. The U.S. Supreme Court outlawed split-jury verdicts in April 2020 in Ramos v. Louisiana, which said that nonunanimous jury convictions violate defendants’ Sixth Amendment rights under the U.S. Constitution.

That decision, however, applied only to open cases and convictions being appealed. The Oregon Supreme Court ruling applies to cases that came before its latest ruling.

Top prosecutors in Jefferson and Crook counties expressed doubts that their offices will be capable of retrying old cases. Documents in some cases may have been lost or destroyed. Witnesses who testified at the time may have foggy memories or have died. In some cases, the record might not even show whether a jury was unanimous or not, they said.

Without that evidence or records, Jefferson County District Attorney Steve Leriche said it’s possible that perpetrators could walk free.

“You just don’t know if you’ll have any case left to try,” said Leriche, adding: “If you don’t have the evidence to prove a case, you’re done.”

Prosecutors couldn’t point specifically to what types of cases will be retried, but they noted they are specifically concerned about retrying child abuse cases. Going back to court places survivors of these crimes at risk of being retraumatized, forcing them to remember horrible things that may have occurred years before, they said.

“They’re our most innocent victims,” Leriche said. “They never asked to be put in the situation they’re in.”

Leriche said these cases often rely mainly on the child’s testimony and will sometimes end with split juries because one or two people doubt what the child says.

“In my experience, the word of the child is pretty darn accurate,” he said.

The state’s high court noted in its final opinion that the nonunanimous jury system has its roots in white supremacy, describing it as an effort stemming from the Jim Crow era that intended to silence nonwhite jurors.

In 1934, Oregon voters approved the system after a case where a jury couldn’t agree on a murder conviction for a Jewish man. The jury handed down a relatively light sentence, prompting widespread and racist criticism that blamed immigrant jurors.

“We must understand that the passage of our non-unanimous jury-verdict law has not only caused great harm to people of color,” Justice Pro Tempore Richard Baldwin wrote in the final opinion. “That unchecked bigotry also undermined the fundamental Sixth Amendment rights of all Oregonians for nearly a century.”

Criminal justice reform advocates and some defense attorneys have hailed the top court’s latest ruling as a step toward correcting the state’s troubling history.

“That was always a big concern for us,” said Wirtz. “That you were eliminating minorities, especially in Oregon, where you have a small number of minorities in the state anyways, and they’re not tried by a jury of their peers.”

It’s yet to be seen exactly how the latest ruling will play out in the courts. But both Hathorn and Leriche say their short-staffed offices would be hard-pressed to retry a number of cases in addition to those already on their plates.

“We’re a small office. We’re already short staffed … Our office doesn’t have an investigator,” Hathorn said, adding: “Depending on the numbers (of cases), it could be an incredible challenge to have to retry these cases.”

Prosecutors say they are awaiting guidance from the Oregon Department of Justice about what comes next.