STEVE INSKEEP, HOST:
People in Oregon are asking what it really should take to prove someone guilty of a crime. In most states, a jury must unanimously find the defendant guilty beyond a reasonable doubt. In Oregon, the standard is lower. You can be convicted by a jury that is less than unanimous. And that has triggered debate because two times this year, non-unanimous jury verdicts have been overturned. Oregon Public Broadcasting's Conrad Wilson reports.
CONRAD WILSON, BYLINE: The first exoneration happened back in May. The case against Brad Holbrook was dismissed because of prosecutorial misconduct but not before Holbrook served more than six years in prison for a crime he says he didn't commit.
BRAD HOLBROOK: I definitely feel the system's unfair.
WILSON: Holbrook was indicted by a grand jury on sexual abuse of a child and, in 2002, convicted by a non-unanimous jury.
HOLBROOK: You know, it goes back to even the fact that they allowed two jurors to find you not guilty and still be convicted.
WILSON: And while Holbrook's exoneration is unusual, it's not unique. Steve Wax is the legal director of the Oregon Innocence Project. He represented a second man exonerated this year after a non-unanimous conviction and says the state must revisit its jury system.
STEVE WAX: That man would have died in prison without 12 jurors having said you did it. That's wrong.
WILSON: The other state that allows juries to convict some defendants without unanimity is Louisiana. But Oregon could soon be alone. Louisiana will vote this November on a ballot measure that would scrap its non-unanimous jury system.
THOMAS AIELLO: It is the last remaining Jim Crow law in Louisiana.
WILSON: Thomas Aiello is a professor of history and African-American studies at Valdosta State University in Georgia. Aiello says Louisiana lawmakers adopted its system after the Civil War as part of a series of laws that enshrined white supremacy in the state.
AIELLO: Part of that was denying the right to vote, and part of that was segregation laws. And the other part of that was re-enslaving the black population.
WILSON: Aiello says Louisiana did so by making it easier to convict African-American defendants. Those convicts were then leased by the state to do the work that had been done by slaves.
JEE PARK: Right. So the Louisiana law was specifically designed to discriminate against minority voices, to discriminate against African-Americans.
WILSON: Jee Park runs the Innocence Project New Orleans. She says, in Louisiana since 1989, a little more than 40 percent of people exonerated in noncapital cases were convicted by a non-unanimous jury.
PARK: What that number says about non-unanimous juries is that it does not help in reaching an accurate verdict.
WILSON: Oregon adopted non-unanimous juries in 1934 following a decade in which the Ku Klux Klan was powerful in the state and anti-immigrant sentiment was high. Aliza Kaplan is the director of the criminal justice reform clinic at Lewis & Clark Law School in Portland.
ALIZA KAPLAN: Both laws were based on discrimination and are, like, last relics of those times.
WILSON: She wrote a law review article detailing the history of Oregon's split jury system.
KAPLAN: Even putting the history aside, I don't want to be convicted when two people don't believe that the state's made their case.
WILSON: The law has its supporters. Tim Colahan is the executive director of the Oregon District Attorneys Association.
TIM COLAHAN: I can also tell you with absolute certainty that the non-unanimous jury policy reduces the number of hung juries in criminal cases that go to trial.
WILSON: Last November, he testified in support of non-unanimous juries before the state's judiciary committee.
COLAHAHN: In doing so, it clearly saves scarce resources in our criminal justice system.
WILSON: A case headed before the Oregon court of appeals this month argues non-unanimous juries convict people when there's doubt and deny defendants of color a jury of their peers. Cash Spencer sat on the jury for that case in 2016.
CASH SPENCER: I don't know how you would ever get to a jury of peers in the state of Oregon for a non-white person.
WILSON: The defendant was African-American, as is Spencer. She was one of the two jurors that thought the defendant wasn't guilty.
SPENCER: I do believe he was denied a jury of his peers. My voice was kind of silenced because the majority, which was not his peers, felt the other way.
WILSON: The case now before the appeals court could find non-unanimous juries violate the Equal Protection Clause of the U.S. Constitution. But all that could take years. In the meantime, some Oregon lawmakers want a legislative fix or, following Louisiana's lead, want to put the issue before voters.
For NPR News, I'm Conrad Wilson in Portland.
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