Even more disturbing, aspects of our deliberations seemed legally questionable. My fellow jurors assumed (accurately, it turns out) that, if convicted, the defendant would become a registered sex offender and be sent to prison for a mandatory minimum of eight years as dictated by Oregon’s voter-approved Measure 11. Even if the defendant were guilty, they reasoned, did a crime they deemed minor (compared to what they considered to be “real rape”) deserve that much punishment? They continued to debate the issue even after I pointed out that the judge had repeatedly ordered us not to. Speaking in general, Chief Deputy District Attorney Norman Frink says such actions are “improper, wrong, and actually against the law—a violation of a juror’s oath.” But just because the rules have been written doesn’t mean jurors follow them behind closed doors.
Oregon has the same low standards of proof as Louisiana, the only other state that requires a mere 10 jurors to agree in felony criminal cases. For verdicts in civil trials, the requirement drops to 9 jurors.
Stepping back from the specifics of this case, there is the wider question of lay juries’ ability to interpret increasingly complex evidence and tricky legal principles. (My jury spent at least two hours just trying to figure out what “physical helplessness” meant.) Many civil lawyers I’ve spoken with since the trial say they often forgo jury trials in favor of a judge’s verdict precisely because they don’t believe laypeople are capable of making sense of complicated financial transactions, technical jargon, and scientific evidence. The United States may pride itself on having a judicial system where the prosecution and defense duke it out before a supposedly neutral jury or judge, but other Western countries—as in, all of Western Europe except the United Kingdom—actually employ what is called the civil law inquisitorial system. Instead of a jury of peers, a judge, panel of judges, or panel of judges and lay assessors is actively involved in determining the facts of a case as well as rendering the verdict.
Some American legal theorists have imagined a similar practice here in the form of paid professional jurors. While other legal professionals argue that this would be a disastrous violation of our democratic principles, consider that our highest court is indeed a panel of paid judges. Imagine selecting 12 random people from a MAX light-rail station and asking them to render sweeping verdicts that would affect the nation’s future. Is it really much more sensible to let them decide an individual’s fate?
Nevertheless, 223 years of beloved jurisprudence is unlikely to just disappear with the rap of a gavel. And so the worst-case scenario can still occur: when a confused or biased jury convicts someone who is innocent, resulting in that person’s unjust imprisonment or death. As Whitney Boise, a top-ranked criminal defense attorney with Hoevet, Boise & Olson, PC, puts it, “If you have people [on the jury] who are predisposed against you, there’s no way you can win, despite the evidence.” The only safeguard against such bias is how high the bar of proof is set. And on that count, Oregon has the same low standards as Louisiana, the only other state that requires a mere 10 jurors to agree in felony criminal cases (except for homicide). For verdicts in civil trials, the requirement drops to 9 jurors. In every other state, two to three dissenters means more deliberations or a hung jury. “But in Oregon, it’s close enough,” Wollam says. “‘Close enough for government work’—isn’t that an awful thing to say?”
SO HOW CAN OUR SYSTEM, as it stands, be improved?
To start, we can better equip our juries for their job. A simple improvement would be to standardize what many Multnomah County judges already do: give the jurors written copies of their instructions and allow them to take notes. Judge Wittmayer points to Arizona, where the courts are among the leaders in American jury innovation. Currently the state is testing practices like making short opening statements to the jury pool to better ferret out bias; providing preliminary instructions on the law; allowing interim closing arguments to help jurors better understand significant pieces of evidence; and even allowing jurors to ask questions of witnesses during the trial.
But the dark cloud hanging over Oregon courtrooms remains the failure to mandate unanimous verdicts. “It allows for less-than-complete deliberation and less moral clarity,” says Kanter. “I think it’s unconstitutional.” However, just last October, the US Supreme Court declined an appeal of a 10–2 guilty verdict in an Oregon rape trial, thus refusing to reopen the matter. So, for the foreseeable future, our only recourse would be a ballot initiative. Barring that, the burden of conscience remains on us, as jurors, to put aside the urge to get back to work or make the tip-off of the Blazers game, and, instead, to give each of our peers a voice, to think critically, and to exhaustively discuss the facts.
Most importantly, we need to do our duty. According to Multnomah County Circuit Court administrator Doug Bray, approximately 70 percent of those summoned to serve on a jury respond, but after disqualification, excusals, and deferments, only about 20 percent actually serve. An oft-quoted joke is that juries are filled with people who are too stupid to get out of serving on them. But if our juries are truly meant to uphold community standards, we need them to represent all citizens—all ages, genders, races, and walks of life. As Oregon Attorney General John Kroger put it, “At the end of the day, the jurors are the ones who must decide a just outcome, and that’s a pretty serious responsibility.”
ADMITTEDLY, I’m not a professional judge. But even after hearing out the numerous local legal professionals who defend our jury system, my verdict remains: I am no longer a believer. Should I end up in a trial, as plaintiff or defendant, I’ll take the judge over a jury of random people. That said, I understand that real trials aren’t tidy episodes of Law & Order. So the next time I’m called for jury duty, I’ll rally my enthusiasm—or at least my sense of duty. If I were on trial, I’d want to look into that jury box and see someone just like me.