VALE – The state and local criminal justice system will attempt to untangle how many convicted felons may get new trials in the coming weeks in the wake of a landmark decision by the Oregon Supreme Court delivered late last year.
In December, the state’s top court added clarity to a 2020 U.S. Supreme Court decision regarding the constitutionality of a non-unanimous jury decision.
The federal decision – in Ramos v. Louisiana –ruled non-unanimous jury verdicts violated the Sixth Amendment.
Oregon’s high court ruled Dec. 30 those convicted before the 2020 Supreme Court decision can get a new trial if they can prove their rights were violated.
In 1934, Oregon voters approved a law to allow non-unanimous jury verdicts of 10-2 or 11-1 in most criminal cases. In 1972 the law was upheld by the U.S. Supreme Court and the state continued to allow non-unanimous verdicts until the Ramos v. Louisiana decision in 2020.
Now courts across the state face the specter of an array of convictions coming back to court for new trials.
At the local level, though, it is too early to tell the impact of the state’s ruling.
“I think it will definitely increase our load. But I don’t know how much,” said Lung Hung, Malheur County Circuit Court judge.
A new trial for every defendant convicted by a non-unanimous jury before 2020 is not automatic. First, a defendant convicted by a non-unanimous jury must prove the verdict in their case was not unanimous. The first step for a defendant who seeks a new trial is to petition a circuit court for post-conviction relief.
The case then goes before a post-conviction judge. That judge will decide, based on the available evidence, whether rights were violated and a defendant should get a new trial.
Under state law, if a convicted person is imprisoned, they must file their appeal in the county where they are incarcerated. Malheur County is home to the state’s largest prison – Snake River Correctional Institution.
If the convicted individual is not in prison, they file their petition in the county where they were convicted.
If a judge finds a defendant’s rights were violated then the case goes back to the circuit court that handled the original trial.
“That means their case is back at the point right before the trial, whenever that happened. It will be as if the first trial did not happen,” said Dave Goldthorpe, Malheur County district attorney.
In theory, said Goldthorpe, any case from 1934 forward could be eligible for a retrial if a judge determines a defendant’s constitutional rights were violated. Goldthorpe said he would be shocked to see a re-trial case dating before the 1980s.
If a defendant is entitled to a new trial on the old charge, Goldthorpe said his office will then be compelled to reevaluate the case “to see if it is still even possible to prosecute or not. Obviously, there will be certain cases that won’t.”
That’s because, he said, key witnesses in a case may be dead, or have moved away and are difficult to find. Evidence in older cases, he said, can also be hard to collect or been destroyed.
Police officers who investigated an old case may also be retired or be dead.
“There are all kinds of issues that can come into play,” said Goldthorpe.
If, for example, Goldthorpe’s office can’t prosecute a case, the defendant will go free.
Goldthorpe said he isn’t sure how much of an impact the Oregon Supreme Court ruling will have on his office. He also said so far, he isn’t sure how many, if any, cases that originated in the Malheur County Circuit Court will return for a retrial.
“Statewide it will be a big headache but county by county, it will depend,” said Goldthorpe.
Generally speaking, Aaron Knott, legislative director for the Multnomah County District Attorney’s Office said as cases get older, they are harder to try.
Knott noted that he expected some of those cases where a split jury issued a conviction would be overturned, notably some severe cases.
“I need to be straightforward that there are cases that I expect will be dismissed,” Knott said. “Including serious cases where we will be unable to retry them because the evidence does not exist now.”
However, Aliza Kaplan, law professor and director of the Criminal Justice Reform Clinic at Lewis & Clark Law School, said in many of those cases, the convicted person already would have served any sentence.
Knott said that in cases where the evidence no longer exists and detectives have since died, there are still transcripts from the trial where the prosecution and defense scrutinized the evidence that would be admissible in the retrials.
Additionally, Knott said she anticipated that prosecutors would look under “every rock” before the severe cases were simply overturned.
However, Kaplan said Oregon law requiring stringent evidence preservation have only been in place since the early 2000s.
She said each county has its own rules for preserving evidence.
Another complicating factor, Knott said, is that Oregon court files only went digital seven years ago.
He said there are warehouses where case files and transcripts are sitting that legal aides would now be going through to locate documentation that someone’s conviction came from a split jury.
Kaplan said the Criminal Justice Reform Center is taking on pro bono nearly 300 cases and legal teams are going through boxes of transcripts and case files.
Knott said the state court decision also comes without any resources for the victims potentially impacted by a new trial.
Knott said that in last year’s legislative session, the Multnomah District Attorney’s Office worked on Senate Bill 1511, which ultimately failed. Knott said the legislation would have provided about $6 million for additional victims services provided by district attorneys. Those prosecutors would have had funds to hire investigators to locate victims of crimes to let them know that their case was being retried. Knott said that the bill would have also laid out other procedural safeguards for victims. He said he believes the proposal would be taken up in the 2023 session.
Providing new trials could also boost the workload for small district attorney offices such as Goldthorpe’s.
District attorney offices in Oregon are funded primarily by the county they reside in. While Goldthorpe said he feels he and his four deputy prosecutors could handle more work, he said he has concerns about his support staff.
“A lot of it falls on them. That is where I can foresee the need for additional staff,” he said.
Now, said Goldthorpe, he employs a legal assistant and a discovery clerk.
If he needs funds to hire more people, the county would have to cover the cost.
Yet the local circuit court may not see a large number of cases because to get a new trial a defendant must prove their rights were violated in the initial trial. That means they must present evidence that the final verdict was not unanimous.
“It depends on how clear your verdict is. Some cases it will be insanely clear. The judge saying, we took a poll of the jury and it was 11 to 1. Absent evidence like that, you will have to try to pull attorney notes, or ask a judge to order the release of juror notes,” said Goldthorpe.
Goldthorpe said that in most of the cases he’s seen come back across the state the “record was very clear about what the vote of the jury was.”
Knott said the court decision also left open the question of how long someone has seek to have their case retried. Knott said under post-conviction relief mechanism there is a two-year window in which someone can petition for a new trial.
He said it is not clear whether the two years begin under the 2020 U.S. Supreme Court Ramos ruling or from the Dec. 30 state ruling.
“We don’t have direction from the court on (when the statute of limitation begins),” Knott said. “It is not entirely clear to me that (the Dec. 30 ruling) will be the last major court decision in this area.”
The lack of clarity, Knott said, also runs the risk of re-traumatizing victims.
“The more uncertainty we have here for victims, the longer this goes, I think the more potential we have for real re-traumatization,” Knott said.
Goldthorpe said retrials are usually “bad for victims.”
“That finality they had is gone. So, any victims on any of these cases that come back, it takes away any wholeness they thought they had,” said Goldthorpe.
Marcus Oatman and Tamara Scull, Malheur County public defenders, didn’t respond to written questions on the matter.
The Oregon District Attorneys Association in a recent statement acknowledged the difficulty of retrying a case.
“Violent offenders are the greatest beneficiaries of evidence that only degrades over time,” the statement said.
Mae Lee Browning, legislative director of the Oregon Criminal Defense Lawyers Association, said the issues the court did not discuss in the December ruling, such as missing or destroyed evidence, would be litigated. However, she said the legislature can address legal uncertainties in the current session, removing issues that could stand in the way of new trials.
The district attorneys association said it is “committed to working with the Oregon Legislature to develop fair and equitable standards for courts to apply in implementing this retroactivity.”
HOW TO SUBSCRIBE – The Malheur Enterprise delivers quality local journalism – fair and accurate. You can read it any hour, any day with a digital subscription. Read it on your phone, your Tablet, your home computer. Click subscribe – $7.50 a month.