PORTLAND, Ore. (KOIN) — Trial by error … or an error in our trial system? Oregon’s controversial history involving non-unanimous jury decisions continues to be a topic of debate as lawmakers grapple with whether to give hundreds of Oregonians convicted of crimes new trials.

The debate comes after the Supreme Court ruled non-unanimous jury convictions to be unconstitutional under Ramos v. Louisiana in 2020, forcing Oregon — the last state to allow divided jury decisions — to update its laws.

However, the decision did not apply retroactively, meaning hundreds of cases with split-jury convictions prior to the Ramos ruling (many of them with defendants still behind bars ) would not be granted relief. With the fate of those cases back in the hands of the state, the jury is still out on how to address them.

KOIN 6 News spoke with one of the hundreds of Oregonians fighting for second chance in their case, including Terrence Hayes.

In 2004, Terrence Hayes was convicted and sentenced to serve 13 years in prison on a 10-2 vote. “Ten out of twelve are good numbers that don’t historically work out for minorities,” explained Hayes. “So, you’re talking about sitting in jail for 13 years knowing you didn’t technically get a fair trial.”

“Guilty beyond a reasonable doubt! That’s how our justice system is supposed to work,” Hayes said. “How can you say there wasn’t any doubt in my case when two jurors didn’t even think I was guilty?”

Following the Supreme Court’s Ramos ruling, in spring of 2021 the Oregon legislature wrote non-unanimous juries out of state law in Senate Bill 139A. The legislation, which currently awaits the governor’s signature did not address retroactivity. Now, some lawmakers argue simply aligning our laws does not go far enough.

While discussing SB 193A on the House floor, Representative Janelle Bynum stated, “This section doesn’t really do anything unless we address the 300 or 400 or so Oregonians who have been convicted under non-unanimous juries and are awaiting a second opportunity to discuss their case.”

Aliza Kaplan, professor at Lewis and Clark Law School and Director of their Criminal Justice Reform Clinic cites the racist history surrounding Oregon’s law as just one of many reasons to consider retroactivity. “The law was based in xenophobia and anti-Semitism but primarily played out over the last 90 years against mostly Black people,” Kaplan explained. “When you know a law is on the books that was based in discrimination and has played out in a discriminatory way of almost 90 years… and then it was found unconstitutional – I just think it’s really important that we go back and fix those mistakes.”

Approximately 420 cases actively in direct appeals at the time of the Ramos ruling were vacated and granted a second chance in their trials. Kaplan went on to highlight the primary difference between those cases the ones like Haye’s which have received no relief is simply timing. “It’s this crazy thing in the law that says ‘Oh we don’t really care that you were convicted under an unconstitutional law, or that it’s totally racist. It doesn’t matter ‘cause the timing wasn’t right,’” exclaimed Kaplan. “And it just feels –and is– so unjust and unfair. All folks want is a second chance, a redo.”

Hayes told KOIN 6 News that the controversy and contradictions surrounding Oregon’s non-unanimous jury law should challenge Oregonians to ask the question: “Why, if we’ve recognized this as racist, aren’t our leaders immediately smacking it in the mouth and dealing with it?”

At the time of Hayes’ conviction, Oregon’s Attorney General Ellen Rosenblum was the presiding judge. Ironically, she now has the opportunity to change Hayes’ life again for what he hopes may be the better.

“The attorney general has a choice,” said Kaplan. “Does her office fight retroactivity? Does she just let them go? Or even better, does she stipulate to retroactivity? … And in every single case that’s been filed, her office has fought the petitioner and said no retroactivity.”

In addition to actively blocking retroactivity, Rosenblum filed a brief to the Supreme Court in 2019 asking them not to change the non-unanimous jury law despite publicly calling it “an embarrassment to our otherwise progressive state.” After their decision, Rosenblum filed a second brief in 2020 urging the courts not to make the decision retroactive, citing concerns that the courts would become ‘overwhelmed’ with appeals. And she’s not alone in her concerns.

“It would be absolutely chaotic! We’d be talking about thousands, maybe tens of thousands of convictions being reversed.” described retired Clatsop County DA Joshua Marquis.

Marquis told KOIN 6 News that beyond tying up the courts, granting retroactivity would result in more hung juries, force victims to relive trauma, and make it increasingly difficult for prosecutors to convict in cases of sexual assault.

“I’ve been trying these cases for nearly 40 years and there’s a great deal of skepticism still when women, and girls, and children come forward,” Marquis pointed out. “And almost every verdict I’ve obtained has been 11-1 or 10-2 for guilty.”

Under the new unanimity law, those votes would not be enough to garner a conviction. “On the service it sounds very simple, -‘now we’re just like the rest of the country, justice has been done so let’s just go back and redo all those cases’ – but that won’t be what happens!” explained Marquis.

And while retroactivity would undoubtedly be a logistical nightmare for the court system, Hayes argues lawmakers have a responsibility to rectify the situation for him and others like him who have been victimized by the now-unconstitutional law.

“The courts is a thing. I am a human being, I’m a person!” cried Hayes. “My life matters! The time in my life matters -this moment of time that I have with my family and my friends matters and I don’t get that back! So when people sit there in their comfort zones letting that nonsense spew out of their mouths they are absolutely valuing a thing — a concept — over a human being that thing and concept was supposed to protect.”

For Hayes and others like him, retroactivity — if granted — would not be a ‘get out of jail free card.’ Defendants would have the burden to prove their case was the result of a non-unanimous jury decision in order to restart the trial process at the county level. A feat not so easily achieved, since most courts did not keep records on which verdicts were the result of non-unanimous jury verdicts.

Currently, approximately 250 cases (not protected under Ramos) have filed appeals.

And with the Oregon Attorney General and the legislature unable to pass a bill addressing retroactivity before the end of the session, Oregon’s law isn’t the only thing that appears to be non-unanimous.