It's Unanimous?Almost

• Author: Lorelei Laird
• Pages: 16-17

The Docket

EDITED BY KEVIN DAVIS / KEVIN.DAVIS@AMERICANBAR.ORG

It’s Unanimous—Almost

When an Oregon jury went into delib -

erations to consider sex-related charges

against Olan Jerma ine Williams, they

quickly decided he wasn’t guilt y of one of

the two counts again st him. The second

was more complicated.

Williams, who is A frican-American and a m arried gay

man, was acc used of performing nonconsensual oral sex

on a man who’d passed out from drinki ng at a party in

2014. The man had been left to sleep in Wi lliams’ apart-

ment while the party conti nued, but the man awoke that

night to fi nd someone in his pants without permis sion.

He later identifi ed Williams as his a ssailant.

Initially, the jury voted 9 -3 to convict Williams of

sodomy, with the jury’s lone Afric an-American joining

two others in voting to ac quit. During the four hours of

deliberations that followed, all t hree stood by their opin-

ions. But after it became clea r that deliberations could

extend into the next day, one holdout changed her vote,

saying she didn’t want to come back.

In 49 U.S. states and the federal c ourt system, a 10-2

vote would not have been enough to convict. But thi s

debate took place in Oregon, which i s currently the only

state that permit s convictions (for felonies other than

murder) on a 10-2 or 11-1 vote of the jury. That practice

has come under criticism in re cent years by people who

say it was enacted for rac ist reasons; it denies minority

viewpoints on the jur y a voice and removes an important

safeguard aga inst wrongful convictions.

“If there’s one or two [holdouts] on a jury … it’s basi-

cally showing that t he state didn’t do its job to prove the

case,” says professor Aliz a Kaplan of Lewis & Clark Law

School. “And that’s how our system works, and that’s

how it should work.”

The Oregon legislature is consider ing a constitutional

amendment that would require a unan imous jury for a

conviction. But the voters would also need to approve the

change via referendum, and it ha s opposition. In partic-

ular, certain elec ted district attorneys oppose it , argu-

ing that its main e ect would be to incre ase hung juries,

requiring the stat e to mount more retrials and crime vic-

tims to relive their trau mas a second time.

Rep. Jennifer Williamson, a D emocrat from Portland

and a co-sponsor of the measure, says it c an be a tough

conversation to have with voters. The mov ie “12 Angry

Men is what people thin k of, so the idea that you have

something less than that i s ba ing,” says Williamson,

the majority leader of the Oregon House. “ They’re pretty

shocked that we have a lesser standa rd.”

A QUESTION OF RACE

If Oregon abandons nonunanimous juries , it will fol-

low Louisiana, which a bolished them via referendum

last fall. The Loui siana campaign focused heavily on

Oregon may fi nally join 49 other states that require

unanimous jury decisions in criminal cases By Lorelei Laird

PHOTO ILLUSTRATION BY SARA WADFORD/SHUTTERSTOCK

National

Pulse

16 || ABA JOURNAL MAY 2019