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Oregon and Louisiana grapple with past criminal convictions made with split verdicts

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In any state outside Oregon or Louisiana, the criminal case against Olan Williams would have ended in a mistrial.

In 2016, Williams was found guilty of first-degree oral sodomy in Multnomah County Circuit Court in Oregon—but not unanimously. A quirk in the law meant Williams was convicted on a 10-2 verdict.

As the verdict was delivered, Cash Spencer was seated in the front row of the jury box, feeling a mixture of embarrassment and shame. She was the only Black person on the jury and one of two women who voted to acquit. During voir dire, Spencer remembered that Williams was the only other African American in the courtroom.

“That was the very first thing that struck me,” Spencer says. “How many of these people are his peers?”

In April, the U.S. Supreme Court ruled in Ramos v. Louisiana that split verdicts in state trials for serious criminal offenses violated the Sixth Amendment right to a fair trial, overturning a high court ruling in 1972 that upheld them.

The effect of the court’s ruling in Ramos is that state courts will now vacate cases with split verdicts on direct appeal. Prosecutors will next decide whether to retry them. What is unclear is whether the ruling will apply retroactively.

This term, the Supreme Court will hear oral arguments in Edwards v. Vannoy to decide that question for hundreds of defendants convicted on split verdicts. The case concerns Thedrick Edwards, who was sentenced to life in prison after a split jury found him guilty of aggravated rape, aggravated kidnapping and armed robbery.

Jamila Johnson, managing attorney with the Promise of Justice Initiative’s Unanimous Jury Project, is working with more than 150 lawyers at 40 law firms to represent 1,500 Louisiana prisoners convicted on split verdicts who, even after Ramos, do not know their fates.

The New Orleans-based group has filed a friend-of-the-court brief in Edwards urging the court to apply Ramos retroactively. In the meantime, Johnson says her project educates inmates, families and the public about the court’s ruling and what it means for their cases.

“Imagine what it feels like to hear the Ramos decision come down, and to hear the thing that put you in prison was unconstitutional,” Johnson says. “That night you go to sleep, and there’s no guarantee that you’re going home.”

Born out of the Jim Crow era

The Supreme Court’s ruling this year in Ramos reversed the 2016 conviction of Evangelisto Ramos, who was sentenced to life in prison without parole for murder. Two jurors voted to acquit. In 48 states and the federal courts, that would have led to a hung jury and mistrial.

Justice Neil M. Gorsuch noted in his opinion that Louisiana’s law, which was written into the state constitution in 1898, silenced Black jurors. Aliza Kaplan, a law professor at Lewis & Clark Law School, and then-student Amy Saack wrote in an Oregon Law Review article that the split verdicts rule was created in 1934 to discriminate against Catholics and Jews who had emigrated from Eastern Europe.

Oregon was the last state to permit 10-2 or 11-1 decisions in all felony cases except first-degree murder cases. In Louisiana, split verdicts were allowed in murder trials but not death penalty cases. Voters approved an amendment in 2018 reversing the rule.

As a next step, Johnson says her group wants to make sure that no one is left behind as they seek justice.

“We wanted to give people the dignity and the respect and the help that comes from having a lawyer who says, ‘I hear you. We’re going to fight for you,’” Johnson says.

Although Black people make up 2% of Oregon’s population, they make up 10% of the prison population, the Prison Policy Initiative states. In Louisiana, Black people make up 32% of the population but 66% of the prison population.

In 2018, The Advocate newspaper in Baton Rouge found that split verdicts disproportionately affected Black Americans.

Of the 993 felony trial convictions the paper analyzed, 43% included split decisions when the defendant was Black, but only 33% when the defendant was white.

Jurors silenced

In summer 2016, when deliberations began in a small conference room in the Portland courthouse, Spencer took a seat at the back of the room. The state charged Williams with first-degree oral and anal sodomy; his accuser was an intoxicated man who had passed out on his couch after a day of partying. Spencer says the state’s case was “flimsy at best,” and that Williams’ defense attorney did not seem to grasp the facts of the case. Williams, through his attorneys, declined an interview for this story.

Spencer says the jurors quickly reached a unanimous decision on anal sodomy, finding Williams not guilty. But the jurors could not agree on the count of oral sodomy. At first, there were four holdouts, which shrank to three after lunch. The third holdout switched her vote at the last moment when she realized she would need child care for the next day, according to Spencer.

After the verdict was delivered, Spencer crossed the parking garage toward her car, past Williams’ husband. She opened the driver’s side door, slid into the front seat and burst into tears.

“I was so heartbroken. For it to be that simple. To ruin someone’s life, and then to be able to walk away and not even grasp the magnitude of what your decision has done,” Spencer says.

In Oregon, there are more than 1,000 defendants convicted on split verdicts with cases on direct appeal. After Ramos, the Oregon Supreme Court vacated Williams’ conviction and sentence of a 100-month prison term and 20 years of post-prison supervision. State appeals courts are in the process of reversing and remanding other such cases on direct appeal, says Benjamin Gutman, solicitor general of the Oregon Department of Justice.

Johnson says 100 split verdict convictions in Louisiana are on direct appeal, and as many as 1,600 inmates in state custody could have claims for retroactive relief.

Gutman says the state supports the rule requiring unanimous juries but is concerned how the Supreme Court or state courts will address retroactivity. Gutman says that could include thousands of nonmurder felony cases dating back to 1934.

“Doctrines of constitutional law change over time, but it doesn’t mean that every time a doctrine of constitutional law changes that we go back and wipe the slate of all the previous convictions, and we start over again and retry them,” Gutman says.

Louisiana Solicitor General Liz Murrill wrote in a statement emailed to the ABA Journal that the state would “vigorously defend” against the retroactive application of Ramos. She was concerned that the ruling would apply not just to split verdicts but also plea bargains and some unanimous verdicts.

“All of these cases have victims of crime who deserve justice,” Murrill wrote.

Inequalities in the system

Many defendants accepted plea agreements because of the split verdicts rule, says Timothy O’Toole, a former public defender who filed a brief in Ramos for the National Association of Criminal Defense Lawyers.

“In some of these cases, people were pleading guilty to things that they hadn’t done because they were worried that if they didn’t, they could go to trial and lose,” O’Toole says.

Joshua Marquis, a former prosecutor and criminal defense attorney, was one of the most vocal supporters of split verdicts in Oregon. He notes that the split verdicts rule not only allows jurors to vote to convict but also to acquit. Despite Ramos, the law is still unsettled on that matter, he says.

“The other big question is, what does it mean for the 10-2 verdict for not guilty cases—should that still be available?” Marquis says.

Since the Ramos ruling, thousands of people have taken to the streets to protest racial injustice.

Johnson said in a recent press conference announcing the filing of the brief in Edwards that split verdicts were “systemic racism defined” and perpetuated a “broken criminal justice system, all with the result of imprisoning and brutalizing Black people.

“As people across the country rise up to tear down statues and monuments to white supremacy, we can’t forget the most racist monument of all: the more than 1,500 people imprisoned and separated from their families by Jim Crow juries,” Johnson said.

This story was originally published in the October-November 2020 issue of the ABA Journal under the headline: “Retroactive Justice: After Ramos decision, Oregon and Louisiana grapple with split verdicts”

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