Monday, October 2, 2017

History Matters

In 1934, Oregonians passed Measure 302 which made several changes to felony trials : (1) It allowed a defendant to not have a jury trial; (2) It allowed a jury in most (but not all) felony trials to render a verdict of either guilty or not guilty with the concurrence of only 10 out of 12 jurors; and (3) a unanimous verdict remained a requirement for conviction, but a not guilty verdict could be reached with the concurrence of only 10 of 12 jurors.

In the last year, some "activists" have spread the claim that 1934's Measure 302 was a "racist and unfair" law mainly because Louisiana had similar laws. But Louisiana's law differed in an important way: Guilty verdicts for Murder are allowed on jury's 10-2 vote.

Several lazy journalists have simply been taking dictation from the activists. They've written articles claiming that the US Supreme Court (SCOTUS) was set in this year's session to hear a case from Louisiana that would "change Oregon law." Except it would not have, because the case was about a man who had been convicted of murder on a 10-2 verdict which, as noted above, is not and never has been allowed in Oregon.

SCOTUS validated Oregon's Measure 302 most recently in 1972, and many times since has declined to consider cases challenging the 10-2 not guilty verdicts. Including today. The Supremes did not include the Louisiana case on its list for their new term beginning today.

What follows is my response to an article published in the University of Oregon Law Review, which simply shrugged off my many criticisms about the author's historical deceptions about Oregon in the 1930s.

History Matters: A Response to Prof. Aliza Kaplan
Joshua Marquis
November 27, 2016

In an article prepared for the Oregon Law Review, Professor Aliza Kaplan paints a picture of Oregon, from its beginnings to the later years of the 20th century, as a cesspool of racism and bigotry, a society and government of the 1920s and 1930s dominated by a powerful Ku Klux Klan, anti-immigrant, overwhelmingly white, Protestant, and religiously bigoted, Thus Professor Kaplan sets the stage for another in a long line of heretofore unsuccessful attacks on non-unanimous jury verdicts in Oregon criminal cases.
            Also being used to provide some academic veneer for a motion in a pending case of Prof. Kaplan’s, the article repeats cliches about how non-unanimous verdicts deny critical due process rights to defendants and are particularly susceptible to unfairly targeting racial and ethnic minorities. Conveniently enough, Louisiana is the only other state to allow non-unanimous verdicts, and so Prof. Kaplan smears Oregon prosecutions with the chronicle of racism and injustices in Louisiana’s genuinely dark history.
            In 1972, in Apodaca vs. Oregon, the US Supreme Court affirmed the right of the states to allow non-unanimous verdicts. Oregon’s rule was the result of a process of progressive reform over a couple of decades, leading to its adoption by popular initiative in 1934. But this history eludes any comment by Prof. Kaplan. Then again, the professor chooses throughout her article not to cite the findings of the majority of the court, instead choosing to cite those dissenters who agree with her position, along with a highly dubious series of inside websites run by the same Criminal Defense Bar of which Ms. Kaplan is such an outspoken member. (In a serious law review article that would be like me quoting other articles I had written as proof of an underlying fact in a footnote.)
            Professor Kaplan's obvious lack of knowledge about the history of Oregon populism and progressive reform at the beginning of the 20th century can only be the result either of poor scholarship or of an attempt to deliberately mislead the reader. This gets even worse as the article progresses, where Kaplan grossly misstates a number of voter-driven criminal justice reforms, once again citing her own organization, the Oregon Innocence Project, as the authoritative source.
            Prof. Kaplan recounts a little-known case involving Jacob Silverman, a Portland man who was charged in April of 1933 with first-degree murder for the deaths of a man and a woman. One “hold-out” kept the jurors from unanimously agreeing on either first-degree or second-degree murder, so the jurors agreed on the lesser charge of Manslaughter, for which Silverman received a three-year prison sentence.
            Prof. Kaplan then claims that a vile, anti-Semitic mob, also known as the Oregon electorate, was so outraged that the one "hold out juror unwittingly became the poster child for Oregon Ballot No. 302-03.”
            Much is missing in Prof. Kaplan’s argument. The measure, which passed on a 58-42% margin, allowed Oregon criminal jurors either to convict or to acquit on a 10-2 vote, in all but murder cases. It cannot be much of a leap to assume Prof. Kaplan would be okay with a 10-2 verdict of acquittal.
            Missing also is the most obvious fact: Silverman’s case would have resulted in the same verdict of manslaughter whether he had been tried before or after Measure 302-03.  At the time of Silverman’s trial, all criminal verdicts required a unanimous vote to convict. The manslaughter conviction was clearly a compromise to which the one hold-out juror was willing to agree.
            The irony is that Kaplan is claiming that the racist and anti-Semitic mob mentality of 1933 Oregon was so outraged that the verdict in the Silverman case lit the spark that gave rise to Measure 302-03.  Ballot measure 302-03 specifically excluded murder, which, as it does to this day, requires a unanimous vote by the jury to convict.
            And what’s more, the measure also expanded criminal defendants’ rights by allowing trial by judge -- avoiding “the mob” of a jury -- with the judge’s consent.
            As bad as the legal "scholarship" is here, what is worse is either the deliberate ignorance or the deliberate omission of the facts of political life in Oregon in the first third of the 20th century. That racism existed in Oregon in 1910, 1938, 1985, 2017 is undeniable. The question is whether it was as pervasive and perverting as Kaplan claims.
            Readers might be interested to learn that the Governor of Oregon during the relevant time period, 1931-1935, was the only person ever to be elected as an Independent: Julius Meier, a Jewish man whose family, along with that of the Frank family, founded the iconic Meier & Frank department stores. (Frank's descendant, Gerry Frank, continues to write about Oregon life and politics in the Oregonian and other venues.)
            Like many Oregon politicians of the early 20th century, including earlier Governor Oswald West (1911-15), Meier was considered to be a progressive and a reformer. Meier organized the Oregon State Police, drawing on the advice of noted Marine General, two-time Medal of Honor winner turned political radical Smedley Darlington Butler, turning it from a rag-time bunch of game wardens into the statewide professional organization it remains almost 100 years later. Meier also advocated for removing partisan politics from the judicial system
            There’s no question that there was a political resurgence of the Ku Klux Klan in the 1920s across northern states, lasting essentially until the Great Depression. The Klan had advocated boycotting the Meier & Frank stores, and the Oregonian could be a vile newspaper, stirring up racist and anti-Semitic passions; in fact, the editors opposed Meier’s election.
            But if Oregon was such a viciously anti-Semitic place as Kaplan asserts, how on earth did a reformer like Meier get elected?
            And Meier was not an outlier. His predecessor as Governor was Albin Norblad. Sr., of Astoria, Oregon, considered “too progressive” by his fellow Republicans. Norblad formed a Pardons Board and personally interviewed inmates seeking relief.  Norblad was preceded by Gov. I.J. “Ike” Patterson, who directed the state prison system to house adult and juvenile criminals separately.
            In fact, a discussion of the “Progressive” era of American politics must include William U’Ren, a now little-known reformer who served a single term in 1898 as a state representative from Clackamas County. U’Ren invented the direct referendum, the recall, and the direct popular election of U.S. Senators.
            This minutiae may seem irrelevant to Prof. Kaplan, intent on creating a very different Oregon, perhaps cut from the same cloth as D. W. Griffith’s notorious 1915 silent movie Birth of a Nation, which glorified the KKK and slavery, and was originally titled after its source book, The Clansman.
            Context and history matter, so when Kaplan starts speculating about a spate of voter-driven reforms that were passed by voters in the 1980s and 1990s, she mischaracterizes most of those changes as well.
            Kaplan runs the Oregon Innocence Project – the second of such projects after the initial 2005 iteration at the University of Oregon Law School failed -- not for lack of volunteers, willing professors, or earnest law students. It failed because it lacked a critical ingredient: innocent convicts. When the group’s determined effort failed to turn up even one “innocent” over the course of a few years, the group quietly shuttered. The new effort is better funded, and is advertised by advocacy groups as trying to roll back the very “truth in sentencing” and victims’ rights enacted by Oregonians, measures that Kaplan thinks of as mob rule. Some call it democracy.
            As Kaplan describes the very small number of cases in the United States in which DNA advances have freed people who truly did not commit the crime (14 men from death row, 9 of whom had already been released off death row or out of prison entirely; about 340 overall for all crimes), she fails to mention the history of DNA in Oregon and elsewhere. It was prosecutors who fought, courtroom by courtroom through this nation, to get this new and remarkable technology accepted -- over the fevered objection of defense lawyers. In Oregon, a Clatsop County murder case, State vs. Futch , 324 Or. 297 (1996) finally established that DNA evidence met the state’s Daubert-like “Brown/O’Key” scientific standard for admissibility.
            Prof. Kaplan makes short work of a series of voter-passed and Oregon Supreme Court-approved criminal reform measures. She refers to Measure 11 as ”restricting the legislature’s ability to reduce voter approved sentences.” But Measure 11, which requires sentences ranging from 70 to 300 months, depending on the crime, has had the net effect of reducing racial disparities in sentencing by prohibiting judges from considering whether a defendant is from a “good family.” And in 2000, an attempt to repeal Measure 11 was rejected by a 3 to 1 margin, dwarfing the original passage rate of merely 2 to 1.
            Kaplan entirely brushes off  Measure 69, which ensconced voter-passed statutory victims’ rights into the Oregon Constitution as Article 1, Section 43.  She refers to Measure 71, which requires judges to consider both a defendant’s likelihood of appearing in court and the risk they pose to the community as “limiting a judge’s discretion in pretrial release decisions.”
            Perhaps most egregiously, she refers to Measure 57, a complicated sentencing measure jointly sponsored by the state’s Democratic legislative leadership and the state’s district attorneys to head off a mandatory minimum measure as a law that “appeared to be disguised as an anti-drug trafficking bill, [but] established mandatory minimum sentences for repeat property, identity, and mail theft offenders.”
            Kaplan is either being lazy or deceptive, or both. Measure 57 did not impose a single new mandatory minimum sentence, save one the Democratic leadership insisted on including involving the delivery of huge amounts of methamphetamine, designed to make the measure look “tougher” than a competing measure offered by Kevin Mannix, a former legislator who had authored many crime laws and sought to be seen as “tougher on crime” than others.
            In conclusion, Kaplan deliberately leaves out one important fact: Oregon is likely the only jurisdiction in the nation allowing a not guilty verdict to be reached by only 10 of 12 jurors. The effect of Measure 302-03, passed in 1934, has not increased guilty verdicts. It has simply reduced the number of hung juries.
            As the saying goes “god and the devil are in the details.” 
            So is the truth.

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