Published in 2023 Oregon Super Lawyers magazine
By Andrew Engelson on July 20, 2023
When Aliza Kaplan first heard about it, she was shocked. Anna Sortun was embarrassed for her state, while Ryan O’Connor assumed it was unconstitutional. “The fact that it was a widely accepted practice,” says Eugene criminal defense attorney Rosalind Lee, “which people didn’t think was a big deal, was amazing to me.”
For nearly 90 years, the Oregon state constitution allowed for convictions in criminal cases—first-degree murder excepted—without a unanimous verdict. Enacted in 1934, the law was upheld in 1972 by the U.S. Supreme Court in Apodaca v. Oregon, a narrowly divided ruling holding that the Sixth and Fourteenth Amendments didn’t require states to mandate unanimous jury verdicts. Despite the blanket invitation, only two states continued to follow the practice: Louisiana, which did not exempt first-degree murder, and where the law had been on the books since 1898; and Oregon, where as few as 10 of 12 jurors were required to convict.
“It just doesn’t make sense,” Kaplan remembers thinking when she moved here from New York in 2011 and helped found the Criminal Justice Reform Clinic at Lewis & Clark Law School. “If one or two people on a jury think the person is innocent, then prosecutors—the state—didn’t prove their case. That’s reasonable doubt.”
Lee, chair of the Oregon Criminal Defense Lawyers Association’s Amicus Committee, notes that no matter how much Oregon defense attorneys protested over the years, state courts simply threw up their hands. “In every one of those felony trials,” she says, “[defense attorneys] would ask the court for a unanimous verdict instruction, and the court would deny it based on Apodaca.”
All of that changed with two recent U.S. Supreme Court rulings. In 2020, in Ramos v. Louisiana, the Court reversed Apodaca, ruling 6-3 that non-unanimous jury verdicts in criminal cases were a violation of the Sixth Amendment. A year later, in Edwards v. Vannoy, it declared that Ramos would not apply retroactively to non-unanimous federal convictions. But it let Oregon and Louisiana decide for themselves what to do about their own state cases.
As many as 300 people were still incarcerated in Oregon based upon non-unanimous jury verdicts, and Kaplan felt that an argument should be made to void them. “It was common knowledge that lawyers would tell their Black clients: You should just take a plea deal because there’s no way you’re not going to be convicted with non-unanimous juries,” she says.
“Not only did we have the right legal argument,” O’Connor adds, “we also had justice on our side.”
First, some history.
Kaplan’s clinic at Lewis & Clark focuses on issues such as clemency, youth justice, faulty forensic evidence, and criminal justice reform legislation. In 2015, she was surprised to learn that no one had compiled a legal history of non-unanimous verdicts in Oregon, so she and a law student dug into the topic. They found that the law grew out of a toxic mix of racism, sensationalism and xenophobia.
“It’s all right there in the voter pamphlet,” Kaplan says. “It’s right there in the newspapers. It’s right there in the story of the Jacob Silverman trial. It’s pretty straightforward.”
In April 1933, a logger found the bodies of small-time burglar Jimmy Walker, and a woman, Edith McClain, on a mountain road 40 miles west of Portland, and the press quickly attributed the crime to “gangland slayings.” Jacob Silverman, a Jewish hotel proprietor and “occasional criminal” in Portland, was eventually charged with the Walker murder. But during the trial later that year, one of the 12 jurors remained unconvinced of his guilt on the first-degree charge, so Silverman was convicted of manslaughter instead. He was sentenced to three years and a $1,000 fine.
“It was like the O.J. Simpson trial,” Kaplan says. “The newspapers followed it like crazy—every aspect. … There were all these [articles and editorials] that were straight-out discriminatory: that the reason this jury couldn’t make a decision was because the people on the jury weren’t American and weren’t from this country and don’t understand democracy—stuff like that.”
In response, in 1934, Oregon passed a ballot measure amending the state constitution to allow for a guilty ruling with as few as 10 jurors.
In 2017, Kaplan’s paper on Oregon’s non-unanimous juries was published in the Oregon Law Review and became the basis of an amicus brief in support of the effort to get the U.S. Supreme Court to toss out non-unanimous verdicts in Louisiana. “My law clinic started working together with folks in Louisiana who were, one after the next, filing cert petitions to the Supreme Court asking them to take this issue,” she says. After 22 unsuccessful attempts, the Court heard the case of Evangelisto Ramos, an immigrant from Honduras who was convicted of second degree murder in 2016. (After the Ramos ruling, his case was retried and he was found not guilty.)
Kaplan helped write the amicus brief for Oregon Criminal Defense Lawyers Association, which was signed onto by Gov. Kate Brown, every past governor, and every one of the state’s retired Supreme Court and Court of Appeals judges. And she was at the U.S. Supreme Court building in October 2019 for oral arguments. “I think anyone that was working on these issues knew that if the court took this case we would be successful—because of how far the incorporation doctrine has come,” she says. “But to sit there and have it discussed and actually have a lot of focus on the history of both states felt very rewarding.”
But now they needed the right case to test the law—and the right lawyer.
“It takes a certain kind of brain to figure out which cases are really the ones that can be the most impactful, that you want to bring through the appellate courts,” says Sortun, a business litigator at Tonkon Torp. “I think [O’Connor] has always known what he wants to do. And he’s been completely committed to it.”
O’Connor and Sortun knew each other in passing when both attended Capital High School in Olympia, Washington. Sortun’s father was even O’Connor’s football coach. A U.S. history teacher there, Matt Grant, remembers O’Connor showing a natural curiosity for learning. “He cared more about the pursuit for truth and justice than for his grade,” Grant says.
During law school at Notre Dame, O’Connor spent a summer clerking for a federal public defender in Portland. “I admired their dedication to their clients,” he says of his colleagues and mentors. “It felt like they were really committed to helping marginalized people through the legal system.”
Beginning in 2005, he did the same in Salem. In 2012, he and and prosecutor Jason Weber met over beers to talk about the kind of practice they wanted to start. “We’re both committed to public service and really want to make a difference for our clients,” O’Connor says.
Their firm quickly developed a reputation for successful appellate work and was contracted by the state to do complex cases—including death row matters. O’Connor and Kaplan wound up crossing paths with the Oregon Innocence Project, which she co-founded in 2014, then the two collaborated on a wide range of cases and youth justice issues. One notable case overturned the manslaughter conviction of Nicholas McGuffin in 2020 based on faulty DNA testing by law enforcement. Another, in 2021, overturned the conviction of Jesse Johnson, a Black man convicted of aggravated murder and sentenced to death in 2004.
All of this prepared O’Connor and his team for their next role: working with Kaplan and the Oregon Department of Justice to track down the best case that he and Kaplan would use to void more than 300 non-unanimous jury verdicts.
In the end, they chose the case of Jacob Watkins, who had been convicted in 2011 of four sex crimes alleged to have happened at a party. Watkins claimed the interactions were consensual. After the verdict, defense attorneys asked for a jury poll and found that not all the jurors were convinced beyond a reasonable doubt.
O’Connor’s team included his partner Jason Weber, and associate attorneys Lindsey Burrows, Jed Peterson and Meg Huntington. “They’re all just such good lawyers,” Kaplan says. “It’s a very specific ability to see all these legal issues and be creative when you’re on an appeal. And to imagine how the law can be better.”
Their approach was three-pronged: Kaplan and her Ramos Project at the law clinic would write a brief outlining the historic, discriminatory roots of Oregon’s existing system; Lee would write a brief refuting the state’s expected arguments against vacating more than 300 convictions; and O’Connor’s firm would make a fairly technical statutory interpretation of Oregon law that would provide an avenue for the court to rule in favor of retroactivity.
There was no framework for when or how to apply a U.S. Supreme Court ruling retroactively in the state. “So it was an open question,” O’Connor says. “Which made it both exciting and difficult.”
To expedite the process, O’Connor asked the Court of Appeals to certify the case directly to the Supreme Court, where he’d already argued a dozen cases. And when the day came for arguments, it was notable not only for its import, and not only because it was O’Connor’s first in-person appearance before the court since the pandemic, but because of the venue. The courthouse was under renovation, so the court convened in a strip mall in Salem.
“It felt surreal parking in the strip mall entrance and walking into the temporary courtroom,” O’Connor says.
One of his primary arguments hinged on Oregon’s Post-Conviction Hearings Act, which stated that post-conviction relief must be granted when there’s been “a substantial denial in the proceedings resulting in petitioner’s conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States.”
Lee’s amicus brief countered the state’s argument on the burden of vacating hundreds of convictions. “The state made a bunch of arguments: that the victims need closure, the evidence has been lost and it’s a waste of public resources to have to retry these cases,” Lee says. The state also argued that a newly recognized constitutional rule should never be applied retroactively unless federally required. “Any reliance and finality interests asserted by the state,” she wrote, “are outweighed by the public’s interest in a criminal justice system that is fair, equitable, and just.”
Presiding over the case was Justice Thomas Balmer. “In my view, the briefing by all parties was good,” Balmer says. “Both the defendant and the state raised several arguments, but they did not take extreme or indefensible positions, and asserted their legal analyses in a professional and reasonable way.”
Several months earlier, Louisiana’s state Supreme Court ruled that Ramos would not be applied retroactively. “It was not clear that Watkins was going to win,” O’Connor says.
On the day the ruling was scheduled was to be handed down last December, Kaplan waited in front of her computer screen. She was distracting herself with mail from prisoners when a text from O’Connor arrived.
“We won,” it read.
“I called him and we were screaming,” Kaplan says. “I scream a lot, but Ryan doesn’t scream very much. And he was screaming.”
Non-unanimous convictions, Justice Balmer wrote, amounted to “denial of a constitutional right that is both consequential and offensive to our ‘judicial sense’ of what is fundamentally fair in the context of criminal prosecutions.” It was Balmer’s last ruling before retiring from the court.
“What a legacy to leave,” O’Connor says. “He was able to tie the wording of the statute into this history, and the injustice these folks have suffered. To say: This is such a fundamental constitutional violation that it does make void a conviction, and so courts have to apply Ramos even to convictions that occurred two decades or more before the U.S. Supreme Court decision.”
A concurring opinion written by senior judge Richard C. Baldwin addressed the racist and xenophobic history of Oregon’s jury system. “We should also understand that the imposition of the non-unanimous verdict law in Oregon for more than 90 years has undermined the integrity of our judicial system and reduced public confidence in our laws and our system of justice,” Baldwin wrote. “That is so because the wholesale denial of Sixth Amendment rights to the citizens of a state is repugnant to the rule of law.”
In the wake of Watkins, Sortun is leading a team of pro bono attorneys and staff at Tonkon Torp on the difficult task of identifying and assisting some of the more than 300 people whose convictions have now been voided. One client, convicted of drug possession and armed robbery despite two not guilty votes, had already served his time in prison, so Sortun is working on a settlement with the state. “He has mixed emotions,” she says. “He’s angry that he lost five years of his life.”
O’Connor, whose firm is also working to get some post-Watkins cases dismissed or settled, suspects the majority will be settled, though Kaplan has already seen some DAs planning to retry cases. “But this was not about any individual case,” she says. “This was about people’s rights. And it’s messy. That’s what happens when you have a ridiculous, awful, unconstitutional law on the books for almost 90 years.”
“It’s such momentous case,” O’Connor adds, “because of this coming together of justices who are so smart and brave, and all these other people in the legal community who stepped up and gave their time and talents to put forward this really huge systemic effort. … I’m proud to have had the chance to work on it.”
What Other Oregon Laws Need to Be Looked At?
Kaplan: We need to have as many mechanisms as possible so that old and sick [prisoners], people who have fully rehabilitated and contributed to our society, can be released early. And we don’t have any of those. Almost no state does.
O’Connor: 1) Reversing a conviction when a person establishes they are actually innocent of the crime. Under current law, Oregon trial judges do not have to (or perhaps cannot) reverse a conviction even if a person establishes in a post-conviction proceeding that they are actually innocent. 2) Reversing a conviction based on scientific advances that either (a) show that the prosecution used “junk science” in the original trial, or (b) shows exculpatory evidence, such as advances in DNA that permit a defendant to obtain an exculpatory DNA test result that was not possible at the time of the original trial.
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