During the six years I spent in prison and the five years I spent on the sex offender registry, one of the many things that played on my mind was that if my case had been heard just a few miles along the road in Idaho, I wouldn’t have been in prison at all.
I was wrongfully convicted by a nonunanimous jury, despite being innocent of any crime. Only 10 of the 12 jurors believed the story the prosecution told, but that was enough. Unlike every other state in the union, aside from Louisiana, at the time of my conviction in 2009 Oregon allowed me and others to be convicted of felonies if only 10 or 11 jurors voted “guilty.”
Elsewhere, all 12 jurors had to be convinced to support a guilty verdict. If I had been tried in Idaho, a few minutes’ drive from where I lived in Malheur County, the split-jury verdict in my case would not have been enough to convict me.
My experience has convinced me that justice demands that verdicts be unanimous. I am not alone in thinking that. Earlier this year, the U.S. Supreme Court settled the question of whether Oregon and Louisiana’s nonunanimous jury systems are fair by ruling that verdicts must be unanimous. The justices ruled that jurors in any new cases that come to trial in Oregon must reach a complete agreement to convict.
The court found that nonunanimous verdicts violate the Constitution and that they are a relic of the past that was designed to silence minority voices on juries. Justice Neil Gorsuch wrote that the practice of allowing split-jury verdicts is inconsistent with the Constitution’s right to a jury trial and must end. He traced the right to a unanimous jury all the way back to medieval Europe, explaining that it “emerged as a vital common law right in 14th century England, appeared in the early American state constitutions, and provided the backdrop against which the Sixth Amendment was drafted and ratified.”
Oregon and Louisiana have been very much outliers in allowing nonunanimous verdicts for so long.
This is good decision, but the Supreme Court left open a question: What happens to those people who have already been convicted nonunanimously and are still in prison, or otherwise suffering the burden of an unjust felony conviction in their past?
Following the Supreme Court’s ruling, the Oregon Department of Justice, which is responsible for handling the prosecution side of appeals of criminal cases, announced it would concede all cases that were decided nonunanimously and were still on direct appeal. That means a group of convictions is being overturned, but there are still many more cases that had already reached later stages of the appeals process when the DOJ announced its concessions. An arbitrary cutoff point does not change reality: People who have been wronged by nonunanimous verdicts still need help.
If it were not for the pardon I received from Gov. Kate Brown, with the help of the Oregon Innocence Project, I would be one of the people still waiting for relief, since my direct appeal was dismissed in 2009.
Even for people no longer in prison, the effects of a nonunanimous conviction can last for a lifetime. There’s no asterisk on a felony conviction to tell potential employers that your conviction would not stand under current law. Landlords can’t tell that your criminal history is based on a law the Supreme Court now calls “gravely mistaken.” Before my pardon, I still had to submit to the humiliation of being under supervision as a sex offender, including having to regularly take lie detector tests about my sexual thoughts and activity, even though I was convicted nonunanimously.
Attorney General Ellen Rosenblum and the Department of Justice must do more. Rosenblum should consent to new trials for all Oregonians convicted by nonunanimous juries, regardless of when their appeals were heard. I know from bitter experience that the system can get it wrong. Why would we risk other people enduring wrongful conviction as I have?
A wrong is a wrong, and it should be righted, whether it occurred a short time ago or decades past, especially when it impacts the lives of so many people convicted unfairly by a process rejected by 48 other states.
Earl Bain was wrongfully convicted in Malheur County in 2009. He spent six years in prison. After the complaining witness in his case recanted her story, with the help of the Oregon Innocence Project he was pardoned on the grounds of innocence by Gov. Kate Brown in August this year.