Oregon's greased wheels of (in)justice
Carla Axtman
My beloved State of Oregon is a place to admire in many ways. Our generally temperate climate, our diverse and gorgeous landscapes, an overall relative (to other places) progressive feel.....
...so how come it's just us and Louisiana that don't require juries to reach unanimous verdicts in criminal cases?
In July, Adam Liptak at the New York Times profiled our greased judicial wheels:
In a pair of decisions in 1972, the Supreme Court said that was all right, that the Constitution does not require states to insist on unanimity.But the decisions, one each from Oregon and Louisiana, were badly fractured and internally inconsistent. They concededly ignored the historical record and made assumptions about jury behavior that have been called into question by more recent research.
Interestingly, blogger Jacob Grier commented on the New York Times piece, noting that the reasons articulated by Clatsop County DA Josh Marquis for retaining the 10-2 conviction system may miss at least some of the point of why we bother with jury trials at all:
Obviously the situation isn’t really so symmetric: In the case of a hung jury the defendant doesn’t go to prison and the prosecution may not bother to retry him. Hung juries are a useful signal that reasonable doubt exists. Nor do we necessarily want symmetry. Various rules of criminal justice (the burden of proof, non-reviewable acquittals) are intentionally biased against the prosecution to protect against false convictions. This will be an interesting case to watch if the Court takes it up.
I'd left a comment at the time on Jacob's blog, noting that Marquis would likely be by at some point to ask why Jacob is "soft on crime".
Marquis finally got around to commenting on Jacob's post.
Weirdly, Marquis seems more offended that I dare to criticize someone who is "devoted to supporting Democratic candidates at local, stated, and national elections". As if I'm somehow going to cut him some slack on basic issues of civil rights because he writes checks to Dems. Not so much, Mr. DA.
But the second part of the comment is interesting too:
A prosecutor’s job is to do justice, not merely seek convictions, as corny as that may sound. What is interesting is that there has never been a groundwsell from DEFENSE attorneys in Oregon to repeal the popularly-enacted less than 12 rule for no-murder criminal trials (even there a defendant can be acquitted by a 1o to 2 vote). The reason is that non-unanimous juries benefit the defense as often as it does prosecution.
Not a "groundswell from DEFENSE attorneys in Oregon"? Maybe, maybe not. But there's certainly a significant number of attorneys that seem pretty uncomfortable with what's going on.
With backing from the American Bar Association, Salem public defender Bronson James is mounting a challenge in the U.S. Supreme Court that could require Oregon courts to listen to all 12 jurors.“Oregon law says it is OK to label two of these individuals crackpots,” James says. “No matter how well-reasoned and heartfelt the opinions of those two jurors, they never have to be listened to.”
James represents Scott David Bowen, convicted in 2005 by a Multnomah County jury of eight counts of sexual abuse, sodomy and rape. The only evidence against him was the word of Bowen’s 15-year-old runaway stepdaughter, who reported the abuse when the state tried to return her to Bowen’s home.
Prosecutors said at trial there were issues surrounding her credibility, and the jury split 10-2 on all counts. If Bowen had been tried in any other state, except Louisiana, the result would have been a mistrial. Instead, he was convicted and sentenced to more than 17 years in prison.
Unfortunately, the Oregon AG's office isn't up for a change, according to the WWeek story. According to Deputy AG Mary Williams, Kroger's office plans to vigorously fight challenges to our 10-2 system.
Another WW factoid: About 67 percent of Oregon’s felony trials result in non-unanimous convictions, but the American Bar Association says only 5.6 percent of juries hang in states where unanimous verdicts are required. That’s because those juries deliberate longer and make a greater effort to reach agreement, the ABA says.
The "efficiency" and cost to the taxpayers excuses don't seem especially compelling to me. What should the price tag be on an individual's freedom..and for that matter, on justice? Is our justice system supposed to save the taxpayer's money or is it supposed to ensure that the guilty are convicted and the not-guilty set free?
And yes, there is exclusivity here, at least in some cases.
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Aug 16, '09
A unanimous jury consent requirement is a leftover from our moribund republic. I'm surpised you support it. What do you think about jury nullification?
Aug 16, '09
Having served on 5 juries in my life, I can say that I have no problem w/ a 10-2 system. Having served on one 6 person jury that hung 5-1 b/c one juror couldn't follow the rules, I wouldn't support a 5-1 rule, but for 12 person juries, justice should be served.
Aug 16, '09
Carla,
Not sure where most folks stand on this issue, but it seems difficult to get 10 or 12 people together in a room to agree on anything, ever. There are pretty good defense lawyers out there who will always be able to throw some doubt into the mind of at least one juror, even when the evidence is overwhelming.
I take exception to your argument that we are doing it all wrong just because a majority of other states do it differently. Do we continue to follow the lead of the majority of states and not allow gay marriage, etc etc..?
If unanimous juries are the standard we are to accept, it will surely come with some negative consequences for Oregon victims.
Aug 16, '09
Marquis said: "The reason is that non-unanimous juries benefit the defense as often as it does prosecution."
I'm confused as to how non-unanimous juries benefit the defense. We don't have a requirement that to be found not-guilty there has to be a unanimous (or 10-2 split) do we? So how can this rule benfit the defense at all, let alone as often as it does the defense.
Aug 16, '09
Oops. I mean, as often as it does the prosecution.
Aug 16, '09
So... in arguing for health care reform, it's continually pounded into any opposition that the US is one of the only civilized countries in the world that doesn't have universal health coverage. But on an issue where the US (in most jurisdictions) is also one of the last nations in the world to require unanimous jury verdicts in criminal trials... well - it's completely fine for us to go our own way and be out-of-step there.
I'm just sayin...
Aug 16, '09
It's appalling. How do we go about changing it?
Aug 16, '09
I've served on a death case jury. We were not looking at the death penalty so perhaps that made it less difficult. However, after over 9 hours of deliberations we easily had a unanimous decision - guilty.
I fail to see where the potential problem lies here. Unless Carla wishes to take a child abuse/rape case and build a straw house from it to assail the rest of the current system in Oregon.
Aug 16, '09
Carla, Where are you from? Were you born in Oregon? Did you grow up here? Just wondering. Robert
11:13 p.m.
Aug 16, '09
Considering the manipulation and selective information that jurors are subject to from both the defense and prosecution teams, I'm surprised most people support having juries at all.
11:13 p.m.
Aug 16, '09
A unanimous jury consent requirement is a leftover from our moribund republic.
So we should end unanimous verdicts because you think the republic is dying...?
11:20 p.m.
Aug 16, '09
If unanimous juries are the standard we are to accept, it will surely come with some negative consequences for Oregon victims.
Our system is supposed to ensure that nobody loses their freedom unless a unanimous jury convicts the person. That's a basic protection and helps ensure our civil liberties as a society.
Are we only to consider "negative consequences" for victims..but ignore those for those accused? Or is an accusation now enough to allow an erosion of these civil rights?
I find the notion that "victims rights" trump those of the accused to be appalling and antithetical to what we're supposed to stand for. Certainly our founders went out of their way to NOT do it that way.
Our system of jurisprudence isn't supposed to be efficient or easy. It should be difficult to lock people up, by design. The fact that we've allowed it to be easier is lousy.
And the argument that it saves taxpayer dollars to just grease the wheels of the court system to get convictions is disgusting.
Aug 17, '09
Say what you want about Josh Marquis he has always been a loyal Democrat and backed and help recuit Democratic candidates at all levels- I have known him since his long haired days in the granola capitol of the world Blue Jeans, UOregon.
All in all I'd probably agree with the ABA on this issue but remember above all it seems that the ABA relishes uniformity amoung the states. I don't think many cases actually would be effected by changing this rule.
In Oregon there are many more fundamental issues that effect criminal defendants across the board starting with the inadequate funding of indigent defense and the resulting desparities in representation, the unfair advantage to the state's attorneys in plea bargaining with mandatory minimum sentences and the lack of resources spent on treatment and services proven to reduce recidivism.
Frequently I do disagree with Josh but I tell you I heard a Panel on Animal Cruelty and Abuse on which he appeared and it would make any liberals heart go pitter patter- I guess to be fair many prosecutors believe that identifying animal abusers at an early age and intervention at that point could reduce violence against children and others as the disturbed person moves higher up the chain.
Aug 17, '09
It's always worth looking at other states to figure out if we're ahead of or behind the curve. In this case, we seem to be ahead of the curve but heading in the wrong direction. I think the most compelling argument against Oregon's current system is that unanimity requires more careful deliberation. The fact that only 5.6% of juries hang in states that require unanimity indicates that it's not a huge barrier to seeing justice done.
For those arguing that victims will be hurt by this, do you believe that victims are being hurt in the other 48 states that require unanimity? Given our exploding prison population, that is a difficult empirical argument to make.
Regarding Kroger's defense of the system, there's a difference between arguing in favor of current law, which is the AG's job, and "vigorously defending" the provision. Kroger's free to do the latter, but I'd love to see some other politicos (say, the Governor) file an amicus brief on the other side, if the case gets heard.
Aug 17, '09
Oh, and I love the fact that Marquis is complaining about his pay again, like he did after the County commission cut his salary top-off because he refused to submit performance measures for his office.
Guess what, Josh, pay for Oregon public officials is lousy. Unlike teachers and caseworkers, though, you have the option to join private practice if you want to get rich. It's unbecoming to have a public servant with your income potential whine about how the taxpayers aren't coughing up enough. DAs aren't indispensable, and there's someone else waiting to do the job if you don't want it.
Aug 17, '09
Carla says, "So we should end unanimous verdicts because you think the republic is dying...?"
Not at all. My point is that you shouldn't have a problem with majority rule in the court system since you welcome it in every other public arena. But hey, if you're having second thoughts, then cool.
11:56 a.m.
Aug 17, '09
My point is that you shouldn't have a problem with majority rule in the court system since you welcome it in every other public arena. But hey, if you're having second thoughts, then cool.
Which other "public arenas" do you refer? The legislature..which is set up as a majority rule entity by design? Elections...where the person who gets the most votes is actually supposed to win? That majority?
The courts are a completely different animal ON PURPOSE from legislatures, executives and other, similar bodies.
Civics 101.
Aug 17, '09
Oh shit, sorry. Duh. My brain sometimes turns to mush after 10 hours behind the bar.
Aug 17, '09
Since "reasonable" people can disagree given the same information it makes sense that Oregon acknowledges a standard that recognizes that if 10 out of 12 person believe a person guilty/not-guilty that is sufficient for proof/no-proof "beyond" a reasonable doubt.
Aug 17, '09
Carla, I have no problem with majority rule in elections, with a few exceptions such as the electoral college or US Senators (I'd repeal the 17th amendment). Its rather what they do once assuming power that I oppose. A republic is ruled by law, in order to protect the rights of the minority.
We don't have that anymore and haven't for many many years. What we have is a democracy that has degenerated into an oligarchy and is fast approaching the dictatorship to which all democracies are destined to ultimately become.
Civics 101 :)
Aug 17, '09
Carla, are you trying to be the OCDLA counterbalance in the Democratic Party to Marquis? You seem agenda oriented on criminal justice issues and I am trying to understand where this comes from. I know Chip worked with released inmates and probably feels some kind of bond to them. Marquis has to deal with crime victims all the time so I can understand where his viewpoint comes from. Just curious.
2:04 p.m.
Aug 17, '09
Its rather what they do once assuming power that I oppose. A republic is ruled by law, in order to protect the rights of the minority.
Agreed. But I think it's the Executive that is the issue, not the legislature. At least in terms of the depth and breadth of that problem. Since I've never been in favor of usurping the legal rights of the minority, your original comment doesn't make much sense....
Carla, are you trying to be the OCDLA counterbalance in the Democratic Party to Marquis? You seem agenda oriented on criminal justice issues and I am trying to understand where this comes from.
I'm not trying to be anybody's counterbalance. And yeah, I do have an agenda: a civil rights one. I'm into protecting and preserving them.
Aug 17, '09
Carla thanks for your candid answer it is as deep as Marquis saying he cares about victim rights with no further explanation.
2:44 p.m.
Aug 17, '09
Jel-N:
What more do you want to know? I'm not interested in counterbalancing anything. You asked, I answered. Yes, I have an agenda: I believe that basic civil rights for all individuals, especially those accused of crimes, must be protected and preserved.
If you have something specific you want to know, then ask. I can't be expected to answer a question you haven't asked.
Aug 17, '09
Reasonable people can agree to disagree on the death penalty, mandatory sentencing or search and seizure rules, but this topic (10-12) is one that nobody really has had a problem with for over 35 years and it seems more about supporting the criminal defense attorney argument du jour than a deep committment to the accused getting a fair shot at a trial. I am just curious if this passion for the accused comes from personal experience or someplacelse? Not trying to get you on the defensive, just trying to figure out where you are coming from.
4:30 p.m.
Aug 17, '09
Reasonable people can agree to disagree on the death penalty, mandatory sentencing or search and seizure rules, but this topic (10-12) is one that nobody really has had a problem with for over 35 years
No one has had a problem with it for over 35 years? I find that highly specious. Perhaps nobody has been able to find a case suitable for challenging it, but that's a legal strategy issue.
and it seems more about supporting the criminal defense attorney argument du jour than a deep committment to the accused getting a fair shot at a trial.
That may be the case for others, but for me it is about the accused getting a fair shot not only at trial, but with the jury.
I am just curious if this passion for the accused comes from personal experience or someplacelse? Not trying to get you on the defensive, just trying to figure out where you are coming from.
I apologize if I came across defensive. I've been on a work trip for most of last week and I'm very tired. My ardor on this issue comes from a passion for what our nation was founded upon. Our system of jurisprudence is fundamental to it.
Aug 17, '09
Carla, I'd be willing to bet that you've never set foot in a Courthouse to hear a criminal case. Your naivete bleeds through on this issue.
I've served for the County Circuit Grand Jury as well in a state murder case. I've spent too many afternoons down at CASA. The rights of the minority are more than guarded and protected throughout the process in Oregon. You're looking for a solution to a non-problem.
Aug 17, '09
Fair enough. Thx
5:27 p.m.
Aug 17, '09
Carla, I'd be willing to bet that you've never set foot in a Courthouse to hear a criminal case. Your naivete bleeds through on this issue.
Apparently it bleeds through for 48 other states as well. Go figure.
Aug 17, '09
"Unfortunately, the Oregon AG's office isn't up for a change, according to the WWeek story. According to Deputy AG Mary Williams, Kroger's office plans to vigorously fight challenges to our 10-2 system."
Big surprise there.
Aug 18, '09
Tell you what Carla, you support doing away with the Mandatory Full Employment Act for Fuel Attendants and I'll pony up for a full jury sentance 12-0; 6-0.
Unless it is "OK" for Oregon to be a renegade and go against 48 other states when it comes to common sense at the pumps.
2:42 p.m.
Aug 18, '09
Tell you what Carla, you support doing away with the Mandatory Full Employment Act for Fuel Attendants and I'll pony up for a full jury sentance 12-0; 6-0.
Deal.
Aug 18, '09
Here's a little something from Oregon as well that managed to catch my interest. http://www.pressdisplay.com/pressdisplay/showlink.aspx?bookmarkid=6LLE1UDY4TG7&preview=article&linkid=37436630-a1f3-4bda-8e3d-ca6b9d4c31fa&pdaffid=ZVFwBG5jk4Kvl9OaBJc5%2bg%3d%3d
Best regards, MediaMentions
Aug 18, '09
Great! I'll join in your process, just let me know what to do. Later, if anyone ever gets the backbone to repeal the "no self-serve" fuel laws here I'll let you know.