Supreme Court of Oregon Finds Jury Instructions Allowing for Nonunanimous Verdicts Are (Harmless) Error

In Ramos v. Louisiana, the Supreme Court held that “if the Sixth Amendment’s right to a jury trial requires a unanimous verdict to support a conviction in federal court, it requires no less in state court.” In State v. Ulery, 464 P.3d 1123 (Oregon 2020), the Supreme Court of Oregon subsequently held that the receipt of a nonunanimous guilty verdict always entitles a defendant to reversal, meaning that defendants convicted on 11-1 or 10-2 jury verdicts are always entitled to new trials.

On Christmas Eve, in its opinion in State v. Ramos, 2020 WL 7654196 (Oregon 2020), the Supreme Court of Oregon added that “the Sixth Amendment [i]s violated when the jury was instructed that it could return a nonunanimous guilty verdict,” but that such errors are subject to harmless error review. So what does that mean?

In Ramos, the jury at Isidro Ramos ‘s trial was told it could could vote to convict the defendant by a vote of ten to two. The jury later returned unanimous guilty verdicts on 4 counts and a 10-2 guilty verdict on the count of first-degree rape. Pursuant to Ulery, the court reversed that rape conviction. But what about the other 4 convictions?

With regard to those, the defense claimed that the instruction alone could have altered deliberations. The defense claimed that, for instance, if only two jurors were holdouts, they might have joined with the other jurors in a unanimous guilty verdict when otherwise they would have voted not guilty.

The court turned aside this argument, citing the opinion of the United States Supreme Court in Johnson v. Louisiana, 406 U.S. 356 (1972), which dealt with a Louisiana statute allowing for a conviction based upon a 9-3 jury vote for guilt. The Johnson Court upheld the statute, finding that the majority jurors would still deliberate conscientiously under the statute:

Appellant, in effect, asks us to assume that, when minority jurors express sincere doubts about guilt, their fellow jurors will nevertheless ignore them and vote to convict even if deliberation has not been exhausted and minority jurors have grounds for acquittal which, if pursued, might persuade members of the majority to acquit. But the mere fact that three jurors voted to acquit does not in itself demonstrate that, had the nine jurors of the majority attended further to reason and the evidence, all or one of them would have developed a reasonable doubt about guilt. We have no grounds for believing that majority jurors, aware of their responsibility and power over the liberty of the defendant, would simply refuse to listen to arguments presented to them in favor of acquittal, terminate discussion, and render a verdict. On the contrary it is far more likely that a juror presenting reasoned argument in favor of acquittal would either have his arguments answered or would carry enough other jurors with him to prevent conviction. A majority will cease discussion and outvote a minority only after reasoned discussion has ceased to have persuasive effect or to serve any other purpose—when a minority, that is, continues to insist upon acquittal without having persuasive reasons in support of its position. At that juncture there is no basis for denigrating the vote of so large a majority of the jury or for refusing to accept their decision as being, at least in their minds, beyond a reasonable doubt. * * * Appellant offers no evidence that majority jurors simply ignore the reasonable doubts of their colleagues or otherwise act irresponsibly in casting their votes in favor of conviction, and before we alter our own longstanding perceptions about jury behavior and overturn a considered legislative judgment that unanimity is not essential to reasoned jury verdicts, we must have some basis for doing so other than unsupported assumptions.

The Ramos court then held that this same logic applied to potential holdout jurors under Oregon’s old rule allowing for nonunanimous verdicts.

I’m not sure that I agree with this logic, but I’m not sure I disagree with the result.

I do generally agree with the logic of Johnson. Finding someone guilty of a crime is a serious thing. As such, I have no doubt that the majority jurors under thee old Louisiana law took their job of finding guilt beyond a reasonable doubt no less seriously than jurors in jurisdictions requiring unanimity. That’s, of course, separate from the question of whether we should allow nonunanimous verdicts, which was answered in Ramos v. Louisiana.

But does the same apply to holdout jurors? Imagine a juror who has reasonable doubt but also knows she’s the only juror who has reasonable doubt. I could pretty easily see that juror fighting a futile fight to convince at least 2 other jurors to change their votes and ultimately voting guilty. I could also pretty easily see that juror telling the other jurors that she knows she won’t convince them to change their votes but that she’s going to vote not guilty. But you know what else I could also see: A shy, passive juror hearing all of the other jurors say at the start of deliberations that the defendant is clearly guilty…and that jurors not speaking up and simply going with the flow and voting guilty because she knows that her 1 vote of not guilty (and the agita that might come with it) won’t change anything because the defendant will still be found guilty.

Now, given that there was one 10-2 vote in Ramos’s case, I think this is unlikely. And, in any event, I don’t know that we should be granting new trials to every Oregonian convicted by a unanimous vote simply because a nonunanimous vote with an option. But I’ll be interested to see if there will be any upcoming cases in which “shy jurors” come forward to say that they would have voted not guilty if a unanimous verdict were a requirement.

-CM