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A case appealed to the U.S. Supreme Court could impact Oregon law allowing 10-2 convictions

Oregon's long-time law allowing felony convictions by non-unanimous juries could be tested if the U.S. Supreme Court accepts a case challenging a similar law in Louisiana.

Only in Oregon and Louisiana can a defendant be convicted of a felony with a 10-to-2 jury vote. All other states and the federal government require a unanimous verdict.PMG FILE PHOTO - Oregon and Louisiana are the two states where a defendant can be convicted of a felony with a 10-to-2 jury vote. All other states and the federal government require a unanimous verdict.

Lawyers for defendant Dale Lambert argue that the court should overturn its previous rulings that Louisiana's and Oregon's non-unanimous jury laws are constitutional.

The statutes deprive certain defendants of equal protection under the law and deny them the right to have accusations confirmed by a jury of 12 of their peers, according to Lambert's petition.

"This law essentially eviscerates the idea that you are entitled to a jury of your peers when you are a black person who resides in Oregon, because statistically speaking, you are lucky if you get even one juror who is black, and that juror's voice may just not count at all," said Mat dos Santos, legal director of ACLU of Oregon.

Lambert was convicted of second-degree murder by a 10-to-2 guilty verdict in connection with the fatal shooting of a man in Louisiana's Orleans Parish in March 2013.

His lawyers supported their petition to the Supreme Court with research by Professor Aliza Kaplan and law student Amy Saack of Portland's Lewis & Clark Law School.

Louisiana's majority verdict system was introduced in the 1898 Constitution as part of measures designed to "establish the supremacy of the white race," according to the researchers' February article in the Oregon Law Review.

Likewise, Oregon's law, passed by voters in 1934, was an anti-Semitic reaction to one juror holding out on convicting a Jewish man of first-degree murder in the death of Jimmy Walker, a Protestant white man, in 1933, the researchers assert. Instead, the Jewish man, Jacob Silverman, was convicted of manslaughter and spared a death sentence.

The U.S. Supreme Court upheld Oregon and Louisiana's jury laws in 1972, but since then, the understanding of the detrimental effect of non-unanimous jury verdicts, especially on people of color, has increased, said Kaplan, director of the Criminal Justice Reform Clinic at Lewis & Clark.

"All of the social science points to why unanimous juries work out better and more fair and demonstrate why all voices need to be heard," she said.

Clatsop County District Attorney Josh Marquis, a frequent critic of criminal justice reforms in Oregon, dismissed the researchers' assertion that Oregon's law is based on racism. The law offers benefits that criminal justice reformers overlook, such as fewer hung juries, he said.

And the law can mean a defendant no longer faces subsequent trials if a jury votes 10-to-2 for acquittal.

"In other words, in federal court what would be a hung jury could end up being an acquittal in Oregon," Marquis said.

The law has a protection requiring a unanimous vote for a guilty verdict in the case of aggravated murder, while a defendant charged with the same crime can be acquitted with a vote of 10-to-2, he said.

The Supreme Court is scheduled to consider whether it will take the case Sept. 25.

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