state v. guzek and united states supreme court and december 7, 2005 and residual doubt and certiorari wrongly granted

The tortured case of Oregon v. Guzek will be heard by the United States Supreme Court on Wednesday, December 7, 2005. The purpose of this essay is to state clearly why it is a legal mistake for the US Supreme Court to hear the case.

It is not as if the question on which the Court granted review has already been answered by the Court or might not provide guidance for some cases which are pending elsewhere around the country. But, frankly, the Guzek case is the wrong vehicle to answer the question. The question? Whether a death-penalty defendant has a right under the US Constitution to present evidence of "residual doubt" (i.e., his innocence of any crime) during the sentencing phase of his trial. Some might say that he does--that anything in mitigation of a punishment of death is relevant to present. Others might say that he doesn't--that once guilt has been determined by a jury, that issue is "off the table" during the sentencing-phase trial. It is a good and decent question. You can't get there, however, through the Guzek case.*

[*My several essays on the case, which are here, give some of the background facts.]

Or, let's put it this way. You can only get to that question through the Guzek case if you follow the mistaken reasoning of the Oregon Supreme Court. They took 26 months to get it wrong in this case, and they did it by reading and applying the wrong statute to Guzek's case. This essay shows how they got things wrong, and why no federal constitutional question is at issue in the case.

Alibi Evidence

At his trial in 1988 for the murders of Lois and Rod Houser, Guzek's attorneys put two alibi witnesses on the stand. Guzek's grandfather and his mother said that the defendant was with them at different times of the night/morning when the homicides took place. The jury disregarded this testimony, convicted Guzek of aggravated murder and sentenced him to death. At his third penalty phase trial (after two remands from the state Supreme Court), Guzek's attorneys tried to enter into evidence the transcript from the grandfather's testimony (he had died in the intervening years) and tried to put his mother on the stand to testify again for him. The state objected and the trial court sustained their objections. On appeal the Oregon Supreme Court said that the grandfather's transcript testimony should be allowed because of ORS 163.150(1)(a) but the mother's testimony should be allowed only because of a federal constitutional right (the 8th Amendment). The dissenters disagreed, believing that both alibi witnesses shouldn't be allowed to testify through their transcript or living voice. The question the Court was to resolve is whether there is a federal constitutional right to present alibi evidence of innocence in the penalty phase of a capital trial.

The Oregon Supreme Court's Mistake

In analyzing why the alibi evidence should come in, the Oregon Supreme Court looked at ORS 163.150(1)(a). It held that the following quotation required the grandfather's transcript testimony to be let in as evidence:

"The court shall instruct the jury that all evidence previously offered and received may be considered for purposes of the sentencing hearing" ORS 163.150(1)(a).

Yet it held that the same statute wouldn't help with the mother's testimony. It then went on a several page nearly impenetrable analysis of whether her oral testimony would have been "mitigating evidence" under ORS 163.150(1)(a) and the federal constitution.

My contention is that the Oregon Supreme Court looked at the wrong statute in doing its analysis. The correct statute is ORS 138.012. The difference between the statutes (and they look very similar to one not familiar with the Oregon death penalty) is that ORS 163.150(1)(a) speaks of procedure for penalty phase trials in aggravated murder cases while ORS 138.012 speaks of penalty phase trials of aggravated murder cases which have been remanded for a subsequent penalty phase trial by the Oregon Supreme Court. In other words, for Guzek, ORS 138.012 applies. For example, ORS 138.012(1) talks about the procedure if prejudical error took place in the sentencing proceeding, and 138.012(2) speks of "the new sentencing proceeding." Thus, since this was Guzek's third penalty phase trial, ORS 138.012(2) would answer the question about how to proceed.

What Does ORS 138.012(2) Say?

ORS 138.012(2) says two things that relate to this case. Let me quote the relevant statutory text to see how relatively easy this case is:

"The new sentencing proceeding is governed by the provisions of ORS 163.150 (1), (2), (3) and (5). A transcript of all testimony and all exhibits and other evidence properly admitted in the prior trial and sentencing proceeding are admissible in the new sentencing proceeding. Either party may recall any witness who testified at the prior trial or sentencing proceeding and may present additional relevant evidence" (ORS 138.012(2)(b)).

This statute appears to direct us back to ORS 163.150(1)(a) for the sentencing procedure, except that ORS 138.012(2) says that the entire law that follows, including (2)(b), is "notwithstanding ORS 163.150(1)(a)." This means that when the it says that the new proceeding is governed by ORS 163.150(1), it must mean (1)(b)-(f) and not (1)(a). Further proof of this is that the rest of the section just quoted gives a procedure that looks similar to that of ORS 163.150(1)(a) and is therefore to be understood as the remand penalty phase procedure.

What does it provide? That transcript evidence is admissible. So, grandfather's transcript is in. The mother may be recalled as a witness, but is confined in her testimony to providing "additional relevant evidence." But, since her transcript also could have been entered in as evidence in third penalty phase trial, what she said there, if repeated, must be allowable. The only standard is that the additional (i.e., new) evidence she presents must be "relevant," a common evidentiary standard. She, therefore, could present her alibi evidence. By not allowing her to testify at all, the lower court was in error. The proper thing for the Oregon Supreme Court to have done would have been to remand the case with instructions to allow her to testify consistently with her transcript testimony, but that any additional information she presented would be subject to a relevance objection.

Conclusion

Thus, in the present posture of the case, she must be allowed to testify and the grandfather's transcript comes in. There may eventually be a challenge to the constitutionality of the Oregon statute if the Supremes decide there is no federal constitutional right to provide alibi testimony of innocence in the remanded penalty phase of the trial, but that is not the issue at this point. Because the Oregon Supreme Court decided the issue on the wrong statute, the case should not be heard by the US Supreme Court. It is a simple state law case, focusing on the procedure of a remanded penalty phase trial. The US Supreme Court therefore has no jurisdiction in the case, since they don't interpret state laws, except for federal constitutional infirmity. And that issue isn't before them.

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