Background photo of the beach at Whale Cove was made by Bryce Buchanan in 2004. (Via WikiMedia Commons, cc/by/SA)
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And so the Oregonian led the charge to “reform the jury system” by making it possible to disregard one or two dissenting votes when necessary.
Now, to be fair, the paper wasn’t overtly advocating for the right to suppress minorities. The case they were making was that many fresh immigrants from countries with more authoritarian political traditions didn’t have the right mindset to fully function as an autonomous person in a democracy, and that it needed to be possible to overrule one or two my-compatriot-right-or-wrong types lest millions of dollars be wasted on multiple jury trials.
They were also mindful of the fact that gangsters sometimes try to get to jurors and, through bribes or threats, get them to vote to acquit (like Alec Baldwin's character did with Demi Moore's in the 1996 movie The Juror).
But, as a practical matter, the change radically altered the distribution of justice for minority defendants in Oregon courts. For instance, if a Chinese person was on trial for a serious felony, and the jury was composed of 10 non-Chinese and two Chinese Oregonians — how much more likely would the defendant be to get convicted if the two Chinese jurors could simply be outvoted by the others? And would that be a bad thing, or a good thing? (People in the 1930s would likely have said it was good, because the Chinese jurors would, they’d claim, vote to acquit no matter what. People today would mostly say it was bad, because people naturally empathize less with people whose ethnic traditions they're unfamiliar with.)
The entire problem, of course, is nicely illustrated — and, in fact, actually celebrated — in Normal Rockwell’s painting — or in the 1957 film “Twelve Angry Men” starring Henry Fonda, in which 11 of 12 jurors are eager to convict and hang a vaguely-ethnic inner-city teen accused of a stabbing and the lone holdout turns out to be right.
GOOD OR BAD, it soon became law. Responding to the pressure, the state Legislature drafted a bill and passed it on for public vote using the Oregon referendum system: Except for capital murder cases, conviction could be secured on a 10-2 vote. The measure passed comfortably.
Over the years since 1933, there have periodically been challenges to the rule from defendants who were convicted by non-unanimous juries. Concerns about the law are especially noticeable in cases where the one or two dissenting votes were the only jurors who shared the ethnicity of the defendant.
Most recently, in early 2018, the state’s prosecuting attorneys proposed ditching the law as part of a deal that would have repealed defendants’ right to opt for a jury trial rather than just a hearing before a judge. From civil-libertarians’ perspective, that looked like a poison pill, and the effort collapsed when it became clear that they would oppose it.
Meanwhile, it remains true that unless you’re on trial for murder or aggravated murder, you’ll have to convince three jurors of your innocence to avoid being convicted, rather than just one. And Oregon remains (or, rather, remained, until the U.S. Supreme Court dragged the state's prosecutors kicking and screaming back into compliance with the U.S. Constitution two years after this article was first published) the only state in the union where that’s the case.*
* For many years Louisiana also had a split-verdict law, designed during the Jim Crow era to make it easier to convict black defendants. Voters in that state repealed the law overwhelmingly at the polls about three weeks after this story was first published, in early November 2018. Oregon, after that, was the lone holdout, and remained so until April 20, 2020, when the Supreme Court of the United States, by a 6-3 vote, found the practice unconstitutional.)