Post-Ramos: Criminal Justice Reform Clinic Seeks Post-trial Relief for Unjustly Convicted
Ending an Unjust Practice
Sidney Lumet’s gripping 1957 courtroom procedural, Twelve Angry Men, mined the meaning of “reasonable doubt” as actor Henry Fonda, playing the holdout juror opposed to convicting a young man charged with homicide, slowly persuaded his fellow jurors that the state’s case was not as airtight as it seemed.
No one who saw the movie in those days questioned that a guilty verdict had to be unanimous. And yet, curiously, in two states—Oregon and Louisiana—the law actually allowed guilty verdicts in most felony prosecutions even if only 10 of the 12 jurors voted to convict the accused.
By Janay Haas ’83
For decades, the defense bar in the two states demanded to know how their courts could reconcile “guilt beyond a reasonable doubt” with a willingness to convict when only 83 percent of the jurors agreed the accused was guilty.
Lewis & Clark Law School professor Aliza Kaplan, director of the Criminal Justice Reform Clinic (CJRC), was determined to get an answer. Shortly after joining the law school faculty in 2011, she read a history of the split-verdict rule in Louisiana, part of a Jim-Crow revision of that state’s constitution to deprive Black jurors of influence in court cases. “There were two sentences in the book—barely a mention—of Oregon’s nonunanimous jury rule and the influence of the Ku Klux Klan,” she remembers. How could such a scheme be constitutional, she wondered, and why was it the rule in Oregon?
Researching the Origins, Taking Action
In 2016, Kaplan and clinic student Amy Saack ’17 laid out the history of the split-verdict law in an article published by the Oregon Law Review, “Overturning Apodaca Should Be Easy: Nonunanimous Jury Verdicts in Criminal Cases Undermine the Credibility of Our Justice System” (95 Or L Rev 1). The article exposed the Oregon model as one that had been designed to disenfranchise minority jurors. In 1972, a muddy plurality ruling, Apodaca v. Oregon, 406 US 404 (1972), had allowed the split-verdict model to continue. Later, the Court hinted in several cases that Apodaca should be revisited (see McDonald v. Chicago, 516 US 742, 766 n 14 ).
How could such a scheme be constitutional, and why was it the rule in Oregon?
Collaborating with advocates in Louisiana (including former jailhouse lawyer Calvin Duncan ’23) in seeking certiorari by the U.S. Supreme Court, Kaplan and clinic students drafted amicus briefs telling the history of nonunanimous juries in Oregon. “We also got involved in cases in Oregon with nonunanimous jury issues using the history we had discovered,” Kaplan recalls. At the same time, the CJRC worked with district attorneys and legislators to propose a voter referendum (2019 HJR 10)—but the legislators held back when the U.S. Supreme Court accepted certiorari in Ramos v. Louisiana, 590 U.S. ____ (2020). Meanwhile, Louisiana voters had rejected the split verdict in a referendum in November 2018, leaving Oregon as the only state directly affected by the outcome at the Supreme Court.
In April 2020, the U.S. Supreme Court ruled that the Sixth Amendment, which gives criminal defendants the right to a unanimous guilty verdict in federal trials, applies to the states through the Fourteenth Amendment. Writing for the Court, Justice Neil Gorsuch said, “[C]ourts in… Oregon have frankly acknowledged that race was a motivating factor in the adoption of [the]… nonunanimity rules.” The law allowing split-jury conviction was, in the words of the Court, “one pillar of a comprehensive and brutal program of racist measures against African Americans, especially in voting and jury service.” Justice Brett Kavanaugh’s concurring opinion cited Kaplan’s law review article.
For Kaplan and the CJRC, the Ramos decision represented a vindication of the rights of many unjustly convicted Oregonians. But Ramos also raised new questions.
For Kaplan and the CJRC, the Ramos decision represented a vindication of the rights of many unjustly convicted Oregonians. But Ramos also raised new questions. The most immediate was whether the relief granted by the Supreme Court was retroactive—a remedy available on direct appeal only or also to those whose appeal periods had run. In 2021, the Court, in Edwards v. Vannoy, 593 U.S. ____ (2021), said no to retroactivity for those seeking relief in federal collateral review, but that Oregon could determine the scope of the relief under Oregon law. Another question was whether a trial lawyer’s failure to ask for the jury to be polled about how it voted in a given case constituted ineffective assistance of counsel.
The CJRC was an important voice in proposing answers to those questions.
The Ramos decision automatically overturned 423 cases and sent them back for reconsideration. But how many more people with final judgments would file for post-conviction relief based on the ruling?
The day the decision was announced, the CJRC began its Ramos Project to look at remedies and strategies, including more research, litigation, and advocacy for new laws. Funded by the Oregon Public Defense Services, the project was developed by the CJRC with the goals of educating people convicted by nonunanimous jury verdicts about the Ramos ruling and assisting them in filing for state post-conviction relief, and creating all the litigation materials for attorneys working on Ramos-related cases. The CJRC communicated with approximately 500 people as a result of their outreach to prisons, and worked with lawyers all over the state. It also took on some of the cases for post-conviction relief.
“Claims are being brought through post-conviction relief, which is a form of collateral challenge to the conviction based on a constitutional violation,” Kaplan shared.
Professor Aliza Kaplan founded the Criminal Justice Reform Clinic (CJRC) in 2015. The CJRC offers opportunities for students to get hands-on legal experience working directly on cases and projects in the backend of the criminal legal system while examining and framing important issues in the criminal justice arena. Activities centering on criminal justice reform involve collaboration with social scientists and community partners on research and data-driven projects and reports, briefs, and legislative initiatives. The CJRC’s work on the split-verdict issue is an example of that collaborative process.
Volunteer attorneys from Tonkon Torp, Davis Wright Tremaine, Perkins Coie, and Schwabe, Williams & Wyatt assisted the Ramos Project with litigating and representing individuals in their post- conviction cases.
There is no historical record on data on nonunanimous jury verdicts from the more than 85 years during which Oregon permitted split-jury convictions. For this reason, the Ramos Project was also interested in analyzing the data from the direct appeal and post-conviction Ramos cases in order to extrapolate the extent of the impact of nonunanimous juries on the Oregon population. The CJRC compared the known split-verdict cases against state and county population statistics from the U.S. Census Bureau.
This review provided a “snapshot in time,” said Kaplan. “It’s all we have to shed light on the impact of this unjust law.”
The data the clinic compiled spoke loudly about the disproportionate impact of nonunanimous juries on people of color. Although white individuals compose approximately 75.1 percent of Oregon’s population, their rate of nonunanimous convictions was 63 percent; conversely, although individuals of color—including members of the Black, Latinx, and Native American communities—compose only about 17.4 percent of Oregon’s population, their rate of nonunanimous convictions was 32.56 percent.
Using this data and stories from those convicted by nonunanimous juries, Kaplan and students helped draft SB 1511 and presented testimony to the 2022 legislature on the proposal. The bill would have made it possible for those convicted by less-than-unanimous jury verdicts to seek new trials if they did so within a year of the bill’s passage. At committee hearings, victims’ rights groups told legislators that reopening cases long thought final would cause significant trauma for crime victims. The Department of Justice estimated that the proposal, if enacted, would cost upward of $6 million in staffing costs for the Department of Justice, district attorneys, public defenders, and community organizations that provide post-prison support. The bill failed. The Oregon Supreme Court would have the final say.
It is atypical for the Oregon Supreme Court to address amicus briefs directly, but in Flores Ramos it spent a good deal of time doing just that, which is quite a credit to the quality of the amicus [from CJRC].
The following alumni were involved in some aspect of the Ramos work as students, attorneys from the CJRC, or law firms:
Nathan Morales ’14
Stephanie Grant ’15
Megan Reuther ’15
Jessie Schuh ’16
Thomas Payne ’16
Laney Ellisor ’17
Venetia Mayhew ’17
Olivier Jamin LLM ’17, JD ’18
Amy Saack ’17
Michaela Gore ’18
Stacie Damazo ’19
Mieke de Vrind ’19
Jonny Gersten ’19
Holly Martinez ’19
Evans Maxwell ’19
Colin Bradshaw ’21
Mark Cebert ’22
Bijal Patel ’22
Amicus Briefs to the Oregon Supreme Court, Appellate Court
The CJRC also cited resources from the Ramos Project in a number of amicus briefs submitted to the state appellate court. In one case, State v. Flores Ramos (2020), Kaplan and the clinic students submitted an amicus curiae brief on behalf of Flores Ramos. Erik Blumenthal ’07, the appellate public defender who argued the case, said, “It is atypical for the Oregon Supreme Court to address amicus briefs directly in its opening, but in Flores Ramos it spent a good deal of time doing just that, which is quite a credit to the quality of the amicus.” He describes the clinic and Kaplan as “invaluable resources.”
In May 2022, the state supreme court heard oral argument in three consolidated cases on the retroactivity and ineffective assistance issues: Huggett v. Kelly (S068823), Jones v. Brown (S068824), and Watkins v. Ackley (S068825). Once again, the CJRC submitted an amicus brief. The CJRC also worked with the Oregon Criminal Defense Lawyers Association and several BIPOC advocacy groups to craft briefs.
The issues present uphill battles. It’s unclear whether retroactivity will apply—and if so, what test the court will use. And in order to establish ineffective assistance of counsel, a party must establish that the trial attorney did not exercise reasonable professional skill. In pre-Ramos cases, does that mean every trial attorney should have polled the jury?
The Challenges Posed by Retroactivity
Retroactivity presents both practical challenges and policy conflicts. The most obvious victims of injustice are those incarcerated on the basis of tainted jury pools. There are other challenges, too. Are there still witnesses who can establish the elements of the state’s case? Can memories of a long-past event be trusted? What deference should be accorded to crime victims who may be retraumatized by a new trial? How can retroactivity be squared with the need of the justice system and the larger community for certainty and finality? What about the fiscal ramifications of reviewing and reopening hundreds of cases?
As the review of the post-Ramos cases continues, Kaplan looks back on thousands of hours of lawyer and law student time dedicated to bringing justice in the form of unanimous juries to the criminal courtroom. “So much more than I ever could have imagined has happened on this issue—most importantly, we no longer have nonunanimous juries in criminal cases here in Oregon. I feel great about all the advocating my students and I have done over the past seven years on this issue. I know we played a big part in ending an unjust practice that was created in discrimination. Not bad for a small law school clinic,” she says.
For now, everyone awaits the decision of the Oregon Supreme Court. As Kaplan told a reporter last year, “We are hoping the Oregon Supreme Court follows Oregon law and puts this horrible old racist law to rest by allowing everyone with a nonunanimous jury conviction an opportunity for a fair and just trial, or that our legislature steps in to get this unfinished business done.”
I feel great about all the advocating my students and I have done over the last seven years on this issue. I know we played a big part in ending an unjust practice that was created in discrimination. Not bad for a small law school clinic.