In One State, a Holdout Juror Can’t Block a Conviction. That May Not Last.
PENDLETON, Ore. — For three days, the jury was deadlocked. Nine jurors wanted to convict James Worley, a church pastor accused of sexually abusing a young relative. Three others said they could not find him guilty.
“It was awful being in that room,” Carlos Cardoso, who was among the jurors who did not want to convict, recalled of the 2018 trial. “It was very tough.” Finally, one of the three holdouts switched sides, leaving the vote split 10-2 and ending deliberations.
In any other state across the nation, the outcome would have meant a hung jury, since nearly all felony criminal convictions require unanimous verdicts. But in Oregon, the only state that still permits convictions in many felony cases where one or two jurors disagree with the rest of a jury, it meant that Mr. Worley was found guilty. He was sent to prison for 12 and a half years.
The Supreme Court is weighing the constitutionality of nonunanimous verdicts, and is expected to hand down a decision as early as this month. The justices are considering a case involving a murder conviction from Louisiana, which permitted split verdicts until two years ago, when voters overturned the law. The court’s decision also is expected to decide the future of split juries in Oregon, and perhaps the fate of people already convicted with divided juries like Mr. Worley.
There is widespread agreement among defense lawyers and prosecutors in Oregon that the law is deeply flawed, and may have sent innocent people to prison. Both the Oregon District Attorneys Association and the Oregon Criminal Defense Lawyers Association oppose the law, as do Republican and Democratic lawmakers in the State Legislature. But with a state law that has been in place for decades and with potentially thousands of convictions at stake, at least one official — Ellen Rosenblum, the Oregon attorney general — says she fears that swiftly ending nonunanimous jury verdicts could lead to legal chaos.
“Reinterpreting federal constitutional requirements after 40-plus years would call into question thousands of settled criminal cases, and could require new trials in hundreds, if not thousands, of cases,” Ms. Rosenblum, a Democrat, wrote in an amicus brief to the Supreme Court supporting the continued acceptance of nonunanimous verdicts. “Those new trials would re-traumatize crime victims and survivors and overwhelm our state’s criminal justice system.”
Even John Hummel, the district attorney in Deschutes County, where Mr. Worley, the pastor, was convicted, said that convictions by split juries were unfair, and had almost certainly resulted in people being sent to prison for crimes they did not commit.
But he said he had no choice but to adhere to the law. He said he believes Mr. Worley is guilty, though he said he does not think a 10-2 verdict should have been sufficient for conviction.
“The truth is that Oregon has an unconstitutional law, and when it causes tumult in our criminal justice system, we have no one else to blame but ourselves,” Mr. Hummel said. “And there are consequences to having unconstitutional laws — one of them is that you are more likely to convict the innocent.”
Oregon voters approved the law in 1934, when the Ku Klux Klan was a powerful influence in the state and anti-immigrant sentiment was high. The measure applies only to felonies that are not first-degree murder cases.
Legal experts say that allowing nonunanimous convictions raises the risk that jurors from racial, ethnic or religious minorities will be ignored by a majority that knows it can return a verdict without them — thereby denying the jurors a fair hearing and the defendants a fair trial. Oregon’s population is about 85 percent white, and most people convicted by nonunanimous juries there are white as well. But Aliza B. Kaplan, director of the Criminal Justice Reform Clinic Oregon at Lewis & Clark Law School in Portland, who has studied the history of nonunanimous juries, said the impact of the law in an overwhelmingly white state is that racial minorities rarely have juries of their peers.
If the Supreme Court rules that divided jury verdicts violate the Sixth Amendment guarantee of a fair trial, Oregon might be forced to rethink large parts of its criminal justice system, including jury instructions, lawyers’ tactics when picking jurors — as well as potentially thousands of previous convictions by divided juries.
Victims’ rights groups in Oregon say they also have concerns that ending nonunanimous jury convictions would lead to far more hung juries and mistrials, forcing victims to testify multiple times.
Erin Greenwald, president of the Oregon Crime Victims Law Center, said some people worry that prosecutors — faced with a more difficult path to winning convictions — might simply elect not to pursue certain cases.
“We already have very low rates of prosecutions for sex crimes, and I can see in prosecutors’ minds why it might be too difficult to get a conviction, so they decide not to prosecute a case,” said Ms. Greenwald, who is herself a former prosecutor. “For crime victims, this is going to be more challenging and difficult.”
Other legal experts, though, said rescinding the law would hardly upend Oregon’s legal system. About 300 cases are currently making their way through the Oregon Supreme Court and the Oregon Court of Appeals challenging nonunanimous verdicts, including a challenge by Mr. Worley.
In Louisiana, which until 2018 was the only other state to allow criminal convictions with nonunanimous verdicts, the attorney general — Jeffrey Martin Landry, a Republican — has declined to re-examine convictions handed up before the law changed. And local prosecutors, including Leon A. Cannizzaro Jr., the Democratic district attorney of Orleans Parish, have continued to pursue convictions through nonunanimous verdicts for people arrested before January 2019, when the revocation took effect.
In Ramos v Louisiana, the case now before the Supreme Court, Evangelisto Ramos was convicted in 2016 of second-degree murder on a 10-2 jury vote. He is serving a life sentence in prison with no chance of parole.
His conviction, and thousands of others in Louisiana and Oregon, are based on a 1972 Supreme Court decision, Apodaca v. Oregon, which said the Constitution required federal juries to render unanimous verdicts, but allowed divided juries in state courts.
Liz Murrill, Louisiana’s solicitor general — who argued the Ramos case before the Supreme Court — said that some 32,000 inmates in her state might be eligible to appeal convictions if the Supreme Court were to bar split verdicts.
“Although these claims may not ultimately be successful, the appeals would overwhelm our system,” Ms. Murrill said.
In Oregon, Ryan Scott, Mr. Worley’s appellate lawyer, said it is often the most heinous crimes, including sexual assaults of children, that make up a significant percentage of people convicted by nonunanimous juries.
“The biggest problem with nonunanimous verdicts occurs precisely when the accusations are horrible and unpleasant, and jurors want to convict the moment they hear what the charges are,” he said. In the Worley case, he said, “two jurors overcame their disgust, and their fear, and voted not guilty because it was the right thing to do. That is hard, it takes character, it takes fortitude. And in Oregon, it doesn’t matter.”
Mr. Worley was convicted in March 2018 of seven counts of sexually abusing a relative who was a young girl at the time of the assaults.
At two separate trials of Mr. Worley that took place in two counties, the relative testified that the memories of sexual abuse had returned to her in nightmares, years after the abuse occurred. After one sexual assault, she testified, “I thought I was going to die.”
Mr. Worley has maintained his innocence, saying in an interview: “I did not do these things. What more can I say than I didn’t?”
Of the state’s unusual split-verdict system, he said, “I don’t think it’s too much to ask to do what 49 other states are doing — getting a fair trial.”
Jurors in his first trial, in Tillamook County in 2016, acquitted Mr. Worley on five counts and deadlocked — with a margin that was closer than 10-2 — on 17 other charges for acts that were said to have been committed in that county. The Tillamook district attorney then dropped the 17 deadlocked charges.
Two years later, Mr. Worley was tried for similar crimes committed in Deschutes County, and convicted on the 10-2 split verdict.