Failure to Keep Jury Decisions Records - Due Process Violation?

Jury Unanimity: A Constitutional Requirement 

        In Ramos v. Louisiana, the Supreme Court held that defendants in criminal trials cannot be convicted by non-unanimous juries. These practices were permitted in Louisiana and Oregon, and the Supreme Court ruled that these laws are unconstitutional. The Court sided with Ramos in finding that the Sixth Amendment's unanimous jury requirement was fully incorporated against the states. Despite this finding, last year, in Edwards v. Vannoy, the Court decided that the Ramos ruling created a new law and reserved the issue of retroactivity for the states. After this ruling, Oregon lawmakers have been contemplating ways to address this issue and are in the midst of discussing SB 1511. However, the Ramos decision highlighted a significant problem within our system - the failure to record juror decisions in some jurisdictions. At Lewis and Clark Law School, Professor Kaplan notes that while Louisiana has been polling juries for a long time and keeping the data for eighty-six years, Oregon has had no system to keep a record of this. Suppose unanimity is a constitutional requirement inherently granted to all defendants as held by the Supreme Court. How do some jurisdictions lack the foundation to implement or maintain a system that keeps a record of jury decisions?  

A Due Process Violation

        SB 1511 proposes that those who have final judgments and are incarcerated can file a petition for post-conviction relief indicating that they had a unanimous jury conviction. However, it's not as easy as it seems because the individual is responsible for proving that they were convicted by a unanimous jury. As Professor Kaplan notes, "the truth is, the majority of people who likely had unanimous juries don't know and will never have any way to prove it." This is chilling for multiple reasons, but more specifically has a significant chilling effect on a defendant's Due Process rights.

        John Wentworth, the Clackamas County DA, recognizes that while the Oregon Supreme Court may hold that the law must apply retroactively, they will not outline a particular procedure or process as to how to implement this effectively. Lawmakers are essentially left blindly creating a solution for a problem that they definitively cannot solve simply because they did not keep records. We have constitutional safeguards in place for defendants to ensure a fair and impartial process. Still, the failure to record jury decision-making directly encroaches on those safeguards. This inherently delegitimizes the trial by jury system and only furthers distrust of the criminal justice system, especially by marginalized communities (who are more adversely impacted.)