oregon supreme court and oregon v. guzek and residual doubt and december 7, 2005

On Wednesday, December 7 the United States Supreme Court will hear their second Oregon case in the October '05 term. Both of them relate to death, but in completely different ways. The first, in October, concerned the legitimacy of the Attorney General's declaration that Oregon's assisted suicide statute didn't constitute "legitimate medical practice" under regulations issued under the federal Controlled Substances Act. But on December 7, in the case of Oregon v. Guzek, the Court will consider a federal issue in connection with a long-standing and rather hopelessly convoluted Oregon death penalty case. This essay will speak of the chronology of the Oregon case briefly and the reason why there is a federal issue; the next essay will address that federal issue. Essays 3 and 4, written after discussing this opinion with a reporter, Cindy Powers, of the Bend Bulletin try to show in very precise form how the State Supreme Court screwed up this case mightily. I will also argue that the statute the court interpreted was not a model of clarity.

The Guzek Case: Setting a Record for Longevity

Under Oregon law a person convicted of aggravated murder and sentenced to death has 10 proceedings or trials open to him before the state may legally put him to death. As of today, no inmate has worked through all 10 steps provided for by Oregon's 1984 death penalty statue and been executed. Two "volunteers," men who gave up their appeals as soon as was legally possible, were executed in 1996 and 1997, but the remaining 25 or so men on death row are now in some stage of their state or federal proceedings. I have estimated that for some of the most complex cases, it will take about 35 years between the time of commission of the crime and execution, if the defendant doesn't die of old age before his time for execution arises (William R. Long, A Tortured History: The Story of Capital Punishment in Oregon, 2001). Now, with the Randy Guzek case, I believe we finally have a "40 year case," if not longer, in the state of Oregon.

Explaining the Chronology of the Guzek Case

Let me just give the chronology of his case. Recall that with every step of a case a voluminous record is compiled. Randy Lee Guzek, along with two co-defendants, murdered a couple in the rural enclave of Terrebonne, Oregon (near Redmond) in June 1987. Guzek was sentenced to death in 1988 and his accomplices received life imprisonment.*

[*Oregon didn't have the third penalty possibility, life imprisonment without the possibility of parole, until 1989].

Because of complications with respect to the three statutory questions that penalty-phase jurors had to consider at the time (1988), Guzek's case was remanded in 1990 for a second penalty phase trial. He was resentenced to death, and the case returned to the Oregon Supreme Court in 1995. The case was remanded again because the jury had impermissibly considered victim impact evidence in the sentencing of Guzek. A third Deschutes County jury was empaneled in 1997 and sentenced him to death a third time. The case then returned to the Oregon Supreme Court, but because the court had a backlog of cases at the time, it didn't get to hearing his case again until 2002. It was a foregone conclusion at the time that Guzek's case would be remanded for yet a fourth penalty phase trial because his penalty phase jury in 1997 was only given two options to consider in sentencing him rather than three, after the Oregon Supreme Court had considered that presenting three options was not an impermissible ex post facto constitutional violation.

Getting to the Issue

Thus, ever since about 1999 I knew that Guzek's case would be remanded again. But, as I said, the Oregon Supreme Court didn't actually hear his case until 2002 and then, because the case presents loads of other complex issues, didn't hand down the opinion remanding the case until 2004. One of the issues in which the court disagreed with the State had to do with the issue of "residual doubt," that is whether Guzek would be entitled to present in penalty phase testimony, in mitigation of a sentence of death, alibi evidence that he was actually innocent of the crime for which he was convicted. The State realized that since this issue was a federal constitutional issue (the Eight Amendment), it had to appeal the Oregon Supreme Court's ruling on the issue (Guzek would be able to present this testimony at his sentencing trial) immediately to the US Supreme Court or else lose the possibility of ever having the question considered.

Appealing to the US Supreme Court

Thus, after the Oregon Supreme Court denied reconsideration of its decision in Sept. 2004, the State of Oregon appealed their "residual doubt" question to the US Supreme Court. Lo and behold, the Court granted cert on the issue in April 2005. Oral argument will happen in December, with a decision to be rendered sometime in Spring 2006. Regardless of how the Court rules, the case then will return to Deschutes County, Oregon, for a fourth penalty phase trial, which will probably happen sometime around 2008. The case will then return to the Oregon Supreme Court for deliberation and decision probably by 2011. Thus, by the time the case has been "live" for 25 years, if there are no further complications, we ought to be able to have a sentence of death that actually holds up before the Oregon Supreme Court.

But, what most people don't really know is that when the Oregon Supreme Court finally affirms his sentence of death, it will be the completion of the first of ten steps open to Guzek. Now, to be clear, the other nine steps don't take as long as the first one, or else he would finally be put to death 225 years from now. They will, most likely, take between 15 and 20 more years, so that a likely execution date will be sometime near the end of the 2020s. The state will have spent more money on Randy Guzek by that time than perhaps it has ever spent on any one individual in its history, and the result will be that we may be able to execute an old man.

The next essay explains the nature of the issue that caused the US Supreme Court to take the case while it is still being considered in Oregon.

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