State v. Ross

                                      560

   Submitted on the briefs January 4, peremptory writ of mandamus to issue
                              February 25, 2021


                    STATE OF OREGON,
                    Plaintiff-Adverse Party,
                               v.
                  MICHAEL STUART ROSS,
                      Defendant-Relator.
           (CC 18CR32198; 19CR45558) (SC S067936)
                                  

    In relator’s criminal case, the trial court held that, in light of Ramos v.
Louisiana, 

, 

, 

 (2020), the jury should be
instructed that unanimity is necessary for either a guilty or a not-guilty verdict.
Relator filed a mandamus petition in the Supreme Court, arguing that Ramos
did not affect the constitutionality of Oregon laws permitting nonunanimous
acquittals. Held: (1) Mandamus is an appropriate remedy for an instruction that
misstates the requirements for acquittal and (2) Ramos did not invalidate the
provisions of Oregon law permitting nonunanimous acquittals.
    Peremptory writ of mandamus to issue.



    En Banc
    Original proceeding in mandamus.*
    Laura Graser, Portland, filed the briefs for relator.
    No appearance contra.
    NAKAMOTO, J.
    Peremptory writ of mandamus to issue.




______________
   * On petition for alternative writ of mandamus from an order of Washington
County Circuit Court, Andrew R. Erwin, Judge.
Cite as 

 (2021)                                561

        NAKAMOTO, J.
         This mandamus proceeding arises out of a criminal case in which both relator and the state asked the trial
court to instruct the jury that it could acquit defendant by a
vote of 10-to-2. The trial court concluded that, in the wake
of Ramos v. Louisiana, 

, 

, 

 (2020), any verdict on serious criminal charges—
whether to convict or to acquit—must be unanimous, and
the court informed the parties that it would instruct the jury
accordingly. Relator contends that, although the Supreme
Court’s holding in Ramos would render a nonunanimous
guilty verdict in his trial unconstitutional under the Sixth
Amendment, that holding did not affect the viability of
Oregon law—specifically, Article I, section 11, of the Oregon
Constitution and ORS 136.450—authorizing a nonunanimous not-guilty verdict. We agree with relator and issue a
peremptory writ of mandamus ordering the trial court to
instruct the jury that Oregon law requires a unanimous
guilty verdict for all charges and permits a not-guilty verdict by a vote of 11 to one or 10 to two.
                      BACKGROUND
        The limited facts are procedural. In 2018 and 2019,
relator was charged with murder and several other crimes
in two consolidated cases.
         On April 20, 2020, before defendant’s trial, the
United States Supreme Court issued its decision in Ramos.
In a discussion in chambers in July 2020, the trial court
indicated that, in light of Ramos, it intended to instruct the
jury that it needed to be unanimous to convict or acquit relator of any of the charged crimes. In a pretrial hearing two
days later, the parties further discussed that issue with the
trial court. The trial court began by restating its position
that a jury instruction requiring unanimity for both convictions and acquittals was required by Ramos. The trial court
explained that it read Ramos as having “relegated to the
dustbin of history,” Ramos, 590 US at ___, 

(Sotomayor, J., concurring), the provisions of Oregon law
permitting nonunanimous verdicts, insofar as those provisions had their origins in racial animus. The trial judge
562                                                 State v. Ross

stated that he had been conferring with many judges about
the issue, some of whom agreed with his position.
         Relator disagreed with the trial court’s interpretation of Ramos. Relator argued that the discussion in
Ramos of the racist history of laws permitting convictions
by nonunanimous juries had not been the basis for the
Supreme Court’s holding that unanimity was required for
guilty verdicts; rather, that history had been relevant only
to the Supreme Court’s decision to overrule prior precedent upholding nonunanimous convictions. Relator further
argued that, under Oregon law, the jury was permitted to
return a nonunanimous acquittal and that Ramos did not
call into question the constitutionality of that provision.
Relator therefore asked the trial court to instruct the jury
that it needed to be unanimous to convict but that it could
acquit by a vote of 10 to two.
         The state agreed with relator. Although the prosecutor indicated that he was personally sympathetic to the
trial court’s interpretation of Ramos, he informed the court
that the state was requesting the same jury instruction
sought by relator, to avoid generating an appealable issue.
         After argument by the parties, the trial court
decided that, consistently with its original inclination, it
would instruct the jury that it needed to be unanimous either
to convict or to acquit defendant. The trial court encouraged
defendant to petition this court for a writ of mandamus to
obtain a definitive answer to the question, and it postponed
the trial, in part to facilitate that process.
        The trial court then entered an order containing its
reasoning as well as its ruling on the jury instruction issue.
The trial court explained:
   “Despite the US Supreme Court’s emphatic denouncement
   of Oregon’s non-unanimity rule as systemically racist, this
   Court is yet asked to continue to partially apply the rule
   for verdicts of acquittal. I am asked to focus only on Part 1
   of the Ramos decision—holding that the Sixth Amendment
   only requires unanimity for a guilty verdict. This argument seems to suggest that the Court should uphold a systemically racist law so long as it is only used to discriminate against jurors of color when they vote to convict. But
Cite as 

 (2021)                                 563

   it cannot be used to discriminate against jurors of color
   whose votes are acquittal.”
The court also discussed the concurring opinions of Justices
Kavanaugh and Sotomayor in Ramos, which it understood
to support its view that nonunanimous acquittals can no
longer be permitted in Oregon. The trial court reasoned
that “[a]llowing a systemically racist law to silence jurors
of color who vote to find a defendant guilty is just as odious
to victim’s rights as is allowing it to silence jurors of color
who vote to acquit.” The court also stated that, “[f]ollowing
the Ramos decision, this acquittal jury instruction issue has
arisen numerous times in this County and the bench and
bar would greatly benefit from the Oregon Supreme Court’s
guidance on this issue before the trial is held.”
         Relator filed a petition for writ of mandamus in this
court. Relator reprised his arguments to the trial court and
emphasized that, in Ramos, the Supreme Court’s discussion of the history of the nonunanimous jury provisions in
Oregon and Louisiana had been relevant only to the discussion of stare decisis, rather than an independent basis for
holding those laws unconstitutional.
        This court issued an alternative writ of mandamus,
requiring the trial court either to vacate its order or to show
cause why it had not. The trial court chose not to vacate
its order. After relator filed his opening brief, the state
waived its appearance, and the case was submitted without
argument.
                         ANALYSIS
         An initial question in this case is whether issuance
of a writ of mandamus is appropriate. As noted, the trial
court invited relator to pursue a writ of mandamus in this
court because it thought that a quick resolution of the issue
by this court would benefit the bench and the bar. Relator
likewise contends that mandamus is appropriate, and the
state, in waiving its appearance, has not disagreed. We
agree with the trial court that, in light of the significant
number of pending criminal cases that could be affected
by this issue and the apparent uncertainty among some
trial court judges about how to proceed, it is better for us to
answer this question sooner rather than later.
564                                                            State v. Ross

        Still, a writ of mandamus “shall not be issued in any
case where there is a plain, speedy and adequate remedy in
the ordinary course of the law.” ORS 34.110. We agree that
that requirement is met, although, because of the absence of
disagreement about the appropriateness of mandamus, we
address that subject only briefly.
         A jury instruction that misstates the requirements
for acquittal presents a potential for harm that may not
be remediable on appeal. If a jury instructed in that manner convicts the defendant, the defendant can appeal, but
the error ultimately may be found harmless, which would
preclude relief. The greater potential of harm to defendants would come in cases when the jury is instructed on
a requirement of unanimity for acquittal but only 10 or 11
jurors vote in favor of acquittal. If defendant is correct, that
would be a verdict of acquittal under Oregon law. But under
the trial court’s proposed instruction, the nonunanimous
vote would result in a mistrial, thereby allowing a retrial. A
defendant could not appeal from that nonverdict and would
potentially face two additional difficulties in obtaining relief
though a writ of mandamus at that point. The first would be
showing how jurors had voted, because parties are entitled
to a poll of the jury when a verdict is received, see ORCP
59 G(3) (“[w]hen the verdict is given, … the jury may be
polled”), but the basis for a defendant to ascertain votes by
the jurors is less clear when a mistrial is declared.1 The second is that it is not clear what relief would be available on
appeal, given the uncertain propriety of barring another
prosecution based on a potential verdict of acquittal that
was never returned. It may be that those hurdles are surmountable, but, at this juncture, we cannot conclude that
relator has any plain alternative remedy. See State ex rel
     1
       Although ORCP 59 G(3) is a rule of civil procedure, it and certain other
civil procedure rules “apply to and regulate the conduct of the trial of criminal actions.” ORS 136.330(1). Among those are ORCP 59 F(1)(a), which does not
mandate polling of jurors who are unable to reach a verdict. Rather, that rule
provides that a jury may be discharged without reaching a verdict if “it satisfactorily appears that there is no probability of an agreement.” And rules protective
of jurors’ privacy may interfere with more informal attempts to learn the votes
of jurors. See UTCR 3.120(1) (providing that, “[e]xcept as necessary during trial,
and except as provided in subsection (2), parties, witnesses or court employees
must not initiate contact with any juror concerning any case which that juror was
sworn to try”).
Cite as 

 (2021)                                 565

Dewberry v. Kulongoski, 

, 

 (2009)
(“[A] ‘plain’ remedy is one that is obvious, clear, and without
uncertainty.”). We therefore conclude that, in the unusual
circumstances of this case, and considering the unique risks
created by an instruction misstating the legal requirements
for an acquittal, mandamus is a proper remedy. Accordingly,
we decide the merits of defendant’s argument that, notwithstanding the Ramos decision, Oregon law requires the trial
court to instruct the jury that it may return a verdict of
acquittal based on a 10-2 or 11-1 vote.
         Two provisions of Oregon law, Article I, section 11,
and ORS 136.450, authorize nonunanimous verdicts. Article I,
section 11, provides that, in criminal cases, “ten members of
the jury may render a verdict of guilty or not guilty, save
and except a verdict of guilty of first degree murder, which
shall be found only by a unanimous verdict, and not otherwise[.]” In addition to that constitutional authority, ORS
136.450 provides for nonunanimous jury verdicts, when the
jury consists of 12 jurors: “The verdict of a trial jury in a
criminal action shall be by concurrence of at least 10 of 12
jurors.” Those provisions authorize the receipt of nonunanimous not-guilty verdicts as well as—except in certain murder cases—guilty verdicts.
         Those provisions govern this case, except insofar
as they must give way to a conflicting requirement of federal law. The trial court declined to apply the provisions of
Oregon law permitting nonunanimous acquittals because
it concluded that, giving consideration to the Supreme
Court’s decision in Ramos, those provisions were unconstitutional under the Sixth Amendment to the United States
Constitution. The Sixth Amendment provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right to
a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed[.]” The Court in Ramos held that the Sixth Amendment’s
jury trial right requires a unanimous verdict to convict an
accused defendant; thus, it “leaves no doubt that our state’s
acceptance of nonunanimous guilty verdicts must change.”
State v. Ulery, 

, 

 (2020). The
trial court recognized that Ramos prohibits nonunanimous guilty verdicts and then, based on Ramos, went a
566                                                           State v. Ross

step further, leading to the issue presented: whether the
Supreme Court’s decision also precludes Oregon courts from
continuing to accept nonunanimous verdicts of acquittal.
         To resolve that issue, we review in detail what the
Supreme Court held in Ramos and why it reached the conclusions that it did. To provide context for that examination,
we first discuss a prior Supreme Court decision, Apodaca v.
Oregon, 

, 

, 

 (1972),
abrogated by Ramos v. Louisiana, 

, 

, 

 (2020). In Apodaca, three Oregon
defendants who had been convicted based on nonunanimous guilty verdicts argued that “conviction of crime by a
less-than-unanimous jury violates the right to trial by jury
in criminal cases specified by the Sixth Amendment and
made applicable to the States by the Fourteenth.” Id. at 406.
A majority of the Supreme Court affirmed the convictions,
but the justices in the majority did not agree on the rationale
for the holding. In Ramos, the Supreme Court described the
breakdown of the votes on Oregon’s practice of permitting
nonunanimous convictions, a practice shared by Louisiana:2
   “Four dissenting Justices would not have hesitated to
   strike down the States’ laws, recognizing that the Sixth
   Amendment requires unanimity and that this guarantee
   is fully applicable against the States under the Fourteenth
   Amendment. But a four-Justice plurality took a very different view of the Sixth Amendment. These Justices declared
   that the real question before them was whether unanimity serves an important ‘function’ in ‘contemporary society.’
   Then, having reframed the question, the plurality wasted
   few words before concluding that unanimity’s costs outweigh
   its benefits in the modern era, so the Sixth Amendment
   should not stand in the way of Louisiana or Oregon.
        “The ninth Member of the Court adopted a position
   that was neither here nor there. On the one hand, Justice
   Powell agreed that, as a matter of ‘history and precedent,
   . . . the Sixth Amendment requires a unanimous jury verdict to convict.’ But, on the other hand, he argued that the
   Fourteenth Amendment does not render this guarantee

    2
      The same day that it issued Apodaca, the Court addressed a separate challenge to Louisiana law in a companion case, Johnson v. Louisiana, 

, 

, 

 (1972), abrogated by Ramos, 

, 

.
Cite as 

 (2021)                                     567

   against the federal government fully applicable against the
   States.”
Ramos, 590 US at ___, 

 (footnotes omitted; deletion in original).
        After Apodaca, for close to half a century, the
Supreme Court did not return to the question whether the
federal constitution required unanimity for jurors to convict in state courts—until Ramos. In Ramos, the Court
addressed and resolved three issues.
         The first issue was whether the Sixth Amendment
right to a jury trial included a requirement that the jury be
unanimous to convict. The Supreme Court held that it did:
   “Wherever we might look to determine what the term ‘trial
   by an impartial jury trial’ meant at the time of the Sixth
   Amendment’s adoption—whether it’s the common law,
   state practices in the founding era, or opinions and treatises written soon afterward—the answer is unmistakable.
   A jury must reach a unanimous verdict in order to convict.”
Ramos, 590 US at ___, 

 (emphasis added).
In reaching that conclusion, the Court rejected an argument, advanced by Louisiana, similar to that embraced
by the Apodaca plurality: that unanimity was not a sufficiently important feature of the common-law jury trial right
to be included within the Sixth Amendment’s guarantee.
Eschewing that approach, the Court criticized Apodaca’s
“breezy cost-benefit analysis,” 

 at ___, 

,
and ultimately emphasized that its
   “real objection here isn’t that the Apodaca plurality’s cost-benefit analysis was too skimpy. The deeper problem is that
   the plurality subjected the ancient guarantee of a unanimous jury verdict to its own functionalist assessment in
   the first place.”

 at ___, 

.
         The Supreme Court then turned to whether that
right applied to jury trials in state courts. The Court
explained that, under its incorporation precedents, “[t]here
can be no question either that the Sixth Amendment’s unanimity requirement applies to state and federal criminal
trials equally.” 

 at ___, 

.
568                                                  State v. Ross

         Third, the Supreme Court examined whether
Apodaca should be overruled. A majority of the Court concluded that, even if Apodaca were a binding precedent, it
would be appropriate to overrule it. The Court explained
that Apodaca’s plurality opinion was poorly reasoned and
that both the plurality opinion and Justice Powell’s separate
concurrence were in tension with Supreme Court decisions
before and since. 

 at ___, 

. A plurality
of the Court further concluded that the reliance interests of
Oregon and Louisiana in criminal judgments that would be
affected by overruling Apodaca were insufficient to support
the application of stare decisis. 

 at ___, 

(opinion of Gorsuch, J.). Justice Kavanaugh, who joined the
majority opinion but not the plurality’s discussion of reliance interests, authored a separate concurrence on the stare
decisis analysis, as did Justice Sotomayor. See 

 at ___, 

 (Sotomayor, J., concurring in part); 

 at ___,

 (Kavanaugh, J., concurring in part).
         At three points in the majority opinion, the Court
discussed the history of the nonunanimous jury laws in
Louisiana and Oregon. The Court first raised that subject in
the introduction to the opinion, which served only to provide
historical context:
   “Adopted in the 1930s, Oregon’s rule permitting nonunanimous verdicts can be similarly traced to the rise of the
   Ku Klux Klan and efforts to dilute the influence of racial,
   ethnic, and religious minorities on Oregon juries. In fact, no
   one before us contests any of this; courts in both Louisiana
   and Oregon have frankly acknowledged that race was a
   motivating factor in the adoption of their States’ respective
   nonunanimity rules.”

 at ___, 

 (footnotes and internal quotation
marks omitted).
        Later in the opinion, the Court returned to the discriminatory motivation for having nonunanimous juries in
Oregon and Louisiana, as part of its substantive analysis.
To explain its rejection of Louisiana’s argument that the
Apodaca plurality’s understanding of the Sixth Amendment
should prevail, the Court provided the following critique of
Apodaca:
Cite as 

 (2021)                                     569

   “Who can profess confidence in a breezy cost-benefit
   analysis like [the Apodaca plurality’s]? Lost in the accounting are the racially discriminatory reasons that Louisiana
   and Oregon adopted their peculiar rules in the first place.
   What’s more, the plurality never explained why the promised benefit of abandoning unanimity—reducing the rate
   of hung juries—always scores as a credit, not a cost. But
   who can say whether any particular hung jury is a waste,
   rather than an example of a jury doing exactly what the
   plurality said it should—deliberating carefully and safeguarding against overzealous prosecutions? And what
   about the fact, too, that some studies suggest that the
   elimination of unanimity has only a small effect on the
   rate of hung juries? Or the fact that others profess to have
   found that requiring unanimity may provide other possible
   benefits, including more open-minded and more thorough
   deliberations?”

Ramos, 590 US at ___, 

 (emphasis added;
footnotes omitted). As the Court elaborated in a footnote,
“if the Sixth Amendment calls on judges to assess the functional benefits of jury rules, as the Apodaca plurality suggested, how can that analysis proceed to ignore the very
functions those rules were adopted to serve?” 

 at ___
n 44, 

 n 44. But the Court’s point was not
that the Apodaca plurality should have conducted a more
comprehensive functionalist analysis, such as one that
took racial discrimination into account. Rather, the Court
observed, the motive behind the adoption of the nonunanimous verdict law was irrelevant to the proper analysis: “a
jurisdiction adopting a nonunanimous jury rule even for
benign reasons would still violate the Sixth Amendment.”

        The Court mentioned the history of Oregon’s non-unanimous jury provision one more time, in its stare decisis
analysis. There, in explaining that Apodaca’s plurality had
been “gravely mistaken,” the Court referred back to its prior
discussion of the plurality’s errors:
   “Without repeating what we’ve already explained in detail,
   it’s just an implacable fact that the plurality spent almost
   no time grappling with the historical meaning of the Sixth
   Amendment’s jury trial right, this Court’s long-repeated
570                                                   State v. Ross

   statements that it demands unanimity, or the racist origins of Louisiana’s and Oregon’s laws.”
Ramos, 590 US at ___, 

.
         With that review of the Court’s opinion in mind, we
turn to the trial court’s interpretation of Ramos. The trial
court understood Ramos to require it to reject any application of Oregon’s nonunanimous jury provisions, either for
guilty or not-guilty verdicts. The court reasoned:
   “I am asked to focus only on Part 1 of the Ramos decision—
   holding that the Sixth Amendment only requires unanimity for a guilty verdict. This argument seems to suggest
   that the Court should uphold a systemically racist law so
   long as it is only used to discriminate against jurors of color
   when they vote to convict. But it cannot be used to discriminate against jurors of color whose votes are acquittal.”
The trial court thus suggested that nonunanimous acquittals based on Oregon law could silence jurors of color who
vote to find a defendant guilty, which would be “as odious
to victim’s rights” as nonunanimous guilty verdicts that
“silence jurors of color who vote to acquit.” The court illustrated its point with an example of a case in which one or
two white jurors might acquit a defendant when Black jurors
had voted to convict:
   “Given current racially charged events, one could easily
   imagine a situation where a white police officer is brought
   to trial for unjustly shooting and killing an unarmed black
   person, and the jury being made up of ten white people and
   two blacks. … This illustrates the ultimate danger in
   partially upholding such systemic racism.”
         But the Court in Ramos rejected Oregon’s practice
of accepting nonunanimous guilty verdicts, not because
Oregon had adopted the law for an improper reason, or
because of the Court’s concerns about racism, but because
the text of the Sixth Amendment codified the longstanding
legal requirement that “[a] jury must reach a unanimous
verdict in order to convict.” Ramos, 590 US at ___, 

. The trial court went astray by treating one of the
Supreme Court’s criticisms of Apodaca as though it were
a ground for the Court’s constitutional holding concerning
the Sixth Amendment. As noted earlier, the Court faulted
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 (2021)                                                  571

the Apodaca plurality’s functionalist reasoning as deficient
even taken on its own terms. But the Court did not hold
that the acceptance of nonunanimous guilty verdicts was
impermissible because of the history of those provisions;
instead, while rejecting the Apodaca plurality’s functionalist approach, the Court expressly stated that the reasons for
the practice were irrelevant to whether it violated the Sixth
Amendment. 590 US at ___ n 44, 

 n 44 (even
if “benign reasons” motivated the practice, it “would still
violate the Sixth Amendment”).3 The Court’s criticisms of
Apodaca, and of nonunanimous jury provisions in Louisiana
and Oregon, do not have a constitutional stature, and they
do not point to a conclusion that Oregon’s nonunanimous
acquittal provisions cannot constitutionally be applied.
         The trial court also found support for its position
in the concurrences of Justices Kavanaugh and Sotomayor.
The court stated that Justice Kavanaugh’s concurrence
“further explored the impact a non-unanimous jury practice can have on not just cases involving black defendants,
but also in cases involving black victims, and black jurors.”
Though Justice Kavanaugh touched on that subject, he did
not contend that those public policy considerations made the
use of nonunanimous juries unconstitutional.
         Specifically, Justice Kavanaugh explained that, in
his view, one of the factors that should be considered when
deciding whether to overturn precedent is whether “the
prior decision caused significant negative jurisprudential or
real-world consequences[.]” Ramos, 590 US at ___, 

 (Kavanaugh, J., concurring). Justice Kavanaugh
explained that, “[i]n light of the racist origins of the non-unanimous jury, it is no surprise that non-unanimous juries
can make a difference in practice, especially in cases involving black defendants, victims, or jurors.” 

 at ___, 

. He concluded that “the Jim Crow origins and

    3
      That reasoning is consistent with the Supreme Court’s prior holding in
Holland v. Illinois, 

, 

, 

 (1990), that
the Sixth Amendment does not prohibit a prosecutor from using a peremptory
challenge to strike a juror based on race. While other constitutional provisions,
including the Equal Protection Clause of the Fourteenth Amendment, forbid such
conduct, Holland makes clear that a racially discriminatory purpose does not
suffice to establish a Sixth Amendment violation.
572                                                  State v. Ross

racially discriminatory effects (and the perception thereof)
of non-unanimous juries in Louisiana and Oregon should
matter and should count heavily in favor of overruling”
Apodaca. 

 at ___, 

. But that reasoning
pertained only to whether Apodaca should be overruled,
not the preliminary issue of whether nonunanimous convictions violated the Sixth Amendment. On that issue, Justice
Kavanaugh joined the majority opinion. For those reasons,
Justice Kavanaugh’s concurrence does not support a conclusion that acceptance of a nonunanimous acquittal violates
the Sixth Amendment.
        Justice Sotomayor’s concurrence also discussed the
history of the nonunanimous jury laws in Louisiana and
Oregon, and that concurrence likewise fails to support a
conclusion that Ramos invalidated nonunanimous acquittals in Oregon. Justice Sotomayor responded to a suggestion by the dissent that the early history of the adoption
of nonunanimous verdicts in Louisiana and Oregon had
become irrelevant. See Ramos, 590 US at ___, 

 (Alito, J., dissenting) (“[W]hatever the reasons why
Louisiana and Oregon originally adopted their rules many
years ago, both States readopted their rules under different
circumstances in later years.”). In her concurrence, Justice
Sotomayor argued that the “legacy of racism that generated
Louisiana’s and Oregon’s laws” was still worth the Court’s
attention “because the States’ legislatures never truly grappled with the laws’ sordid history in reenacting them.”

 at ___, 

 (Sotomayor, J., concurring).
Justice Sotomayor concluded her concurrence with the following statement:
      “Today, Louisiana’s and Oregon’s laws are fully—and
      rightly—relegated to the dustbin of history. And so, too,
      is Apodaca. While overruling precedent must be rare, this
      Court should not shy away from correcting its errors where
      the right to avoid imprisonment pursuant to unconstitutional procedures hangs in the balance.”

         The trial court read that statement, and particularly
the word “fully,” as endorsing the conclusion that the provisions of Oregon law permitting nonunanimous acquittals
Cite as 

 (2021)                                                  573

had been entirely invalidated by the decision in Ramos. As
the trial court put it, “if a law has been fully relegated to
the dustbin, how do I dust off part of it” and “make it work?”
But we think that the trial court read too much into imprecise language. Justice Sotomayor, like Justice Kavanaugh,
was explaining why it was appropriate to overrule Apodaca.
Neither concurrence supplied a separate, or broader, basis
for holding Oregon’s use of nonunanimous juries unconstitutional, and neither said anything about nonunanimous
acquittals.4
         In conclusion, Ramos does not imply that the Sixth
Amendment prohibits acquittals based on nonunanimous
verdicts or that any other constitutional provision bars
Oregon courts from accepting such acquittals. The Supreme
Court in Ramos, and the concurring justices, alluded to
broader critiques of Oregon’s laws in explaining why stare
decisis should not apply, yet the Court was careful to keep
its constitutional reasoning distinct from its more pragmatic
evaluation of whether Apodaca should be overruled.
The trial court erred in its determination that, in light of
Ramos, the provisions of Oregon law permitting nonunanimous acquittals could not be applied. Thus, the trial court’s
decision to give a jury instruction that, contrary to Oregon
law, requires unanimity for acquittals was error.
           Peremptory writ of mandamus to issue.




    4
      The trial court appears to have concluded that nonunanimous acquittals
would violate the Sixth Amendment, but even if the court had understood Justice
Sotomayor’s concurrence as endorsing a separate Equal Protection Clause challenge to Oregon’s nonunanimous verdict laws, such as one that might be brought
to vindicate the “victim’s rights” that the court mentioned, that understanding
would have been incorrect. Justice Sotomayor’s brief discussion of the history of
those laws began with an acknowledgment that an Equal Protection Clause issue
was not before the Court. Ramos, 590 US at ___, 

 (Sotomayor, J.,
concurring). And, like the majority opinion, Justice Sotomayor’s concurrence did
not contain any analysis of whether Oregon’s laws impinge on any person’s Equal
Protection Clause rights.