SALEM, Ore. — Oregon's criminal justice system would be "overwhelmed" if the U.S. Supreme Court rules in an upcoming case that nonunanimous jury verdicts are unconstitutional, the state's attorney general has told the court.

Attorney General Ellen Rosenblum said in an amicus brief on Friday that if the U.S. Supreme Court finds nonunanimous juries unconstitutional, it could invalidate hundreds or even thousands of convictions in Oregon.

Oregon is the only state in America allowing 11-1 or 10-2 jury verdicts in criminal trials, except first-degree murder convictions.

Critics say Rosenblum is defending a system that should be abandoned, as voters in Louisiana, the only other state that permitted nonunanimous verdicts, did in 2018.

"The state's brief presents a parade of horribles that may or may not come to pass. However, that is not a reason to continue a practice rooted in racial and ethnic discrimination," said Marc Brown, a public defender in Oregon whose clients include ones appealing nonunanimous guilty verdicts.

Marc Brown, a public defender in Oregon whose clients include ones appealing nonunanimous guilty verdicts.
FILE - In this photo taken April 12, 2019 photo, Marc Brown, a lawyer with Oregon's Office of Public Defense Services-Criminal Appeals Section, poses in Salem, Ore.
AP

The decision by Louisiana voters was not retroactive, and took effect on Jan. 1. The U.S. Supreme Court this fall will hear a case of Evangelisto Ramos, a Louisiana man convicted by a nonunanimous jury in 2016 of second-degree murder of a woman in New Orleans. Ramos is serving a life sentence with no chance of parole.

Michael Kron, special counsel to Oregon's attorney general, said that if the Supreme Court rules in favor of Ramos, it would be reversing its 1972 ruling that the U.S. Constitution does not bar states from allowing non-unanimous verdicts.

Rosenblum told the Supreme Court that if it overturns that ruling and decides that nonunanimous juries are unconstitutional, Oregon's criminal justice system will be glutted.

"Such a ruling would automatically require retrial in many hundreds, if not thousands, of cases on direct review," Rosenblum told the court.

Even convictions that were unanimous could be called into question, because a judge instructing jurors that they could reach a nonunanimous decision could be grounds for an appeal.

"In many cases, particularly the older cases, retrial will likely be impossible because of the impact that the passage of time will have on the prosecution's case as witnesses disappear, memories fade, and evidence is lost," the attorney general wrote.

Several Oregon lawmakers recently sponsored a resolution calling for a ballot measure to repeal an amendment to the state constitution allowing nonunanimous verdicts. The resolution unanimously passed the House, but died in Senate as it dealt with a walkout by Republican members in the final days of the legislative session.

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The decision by Oregon voters in 1934 to allow split-jury verdicts was fueled by white supremacy and anti-minority sentiment. One newspaper said immigrants from southern and eastern Europe had made the requirement for unanimous verdicts "unwieldy and unsatisfactory."

Rosenblum said she supports a repeal, noting the jury rule's links to racism and anti-Semitism. But she said such a change should be for cases "going forward," not retroactively.

Aliza Kaplan, a professor at Portland's Lewis & Clark Law School who has campaigned to eliminate nonunanimous jury verdicts, said only dozens -- not hundreds -- of cases would be affected by a Supreme Court ruling in favor of Ramos.

"The attorney general has an opportunity to be on the correct side of history and champion getting rid of nonunanimous juries," Kaplan said in a telephone interview. "Instead, she chooses to support a policy that we all know, and that she acknowledges, comes from our racist history."

Brown, the public defender, said he doubts a Supreme Court ruling would create a crisis for the state's judicial system. Oregon's appeals courts would determine its retroactive application "by applying well known legal standards." 

"Our courts are certainly up to that task," he said.

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