oregon v. guzek and residual doubt and evidence in mitigation and united states supreme court and december 7, 2005

The previous essay described the "timeline" of the Guzek case and a few basic facts that have kept this remarkably supple litigation alive for 17 years thus far. This essay presents the issue that will be at the heart of the Supreme Court's consideration. Though it is an issue arising in an Oregon case, it has implications for capital cases across the country. In legalese, the issue is, as presented in the State of Oregon's petition for certiorari:

"Does a capital defendant have a right under the Eighth and Fourteenth Amendments to the United States Constitution to offer evidence and argument in support of a residual-doubt claim - that is, that the jury in a penalty-phase proceeding should consider doubt about the defendant's guilt in deciding whether to impose the death penalty?"

Let's try to unpack this question by attention to the case facts.

Witnesses and Alibi Witnesses

Guzek was convicted, along with Wilson and Cathey, of killing Rod and Lois Houser in September 1987. Both Wilson and Cathey turned state's evidence in the case, describing the events of the evening/early morning that led to the double homicide. They agreed in characterizing Guzek as the mastermind of the plan who killed one of the couple. As a result they were sentenced to life imprisonment while their testimony helped convince the jury to sentence Guzek to death. At his third penalty-phase trial Guzek tried to introduce testimony or statements from two family members, a grandfather and his mother, regarding his whereabouts on the evening/early morning of the crime.*

[*The next two essays will consider the types of evidence considered in the case of the grandfather's and mother's testimony.]

His grandfather testified at trial that Guzek was with him from about 9:00 p.m. until 2:00 a.m. (the killings were supposed to have happened in the late evening/early morning hours). His mother testified that he was at her home from about 2:20 a.m. and was still there sleeping on the couch when she arose shortly after 4:00 a.m. The judge, however, didn't allow either into evidence in the third penalty phase.

Honing in on the Legal Question

Thus, at his third penalty phase trial, Guzek's lawyers sought to introduce the testimony of grandfather and mother as a form of "mitigation" evidence for the jury to consider. That is, after he was found guilty by the jury in the "guilt phase" of the trial, the defense sought to introduce evidence as to why he was innocent of the crime in a later penalty phase of the trial. Can he do that? On review, the Oregon Supreme Court said that both statements were improperly excluded from the third penalty-phase trial. It was this holding that was questioned by the State of Oregon in asking for certiorari.*

[*The Oregon Supreme Court's long and convoluted discussion establishes the following: (a) the grandfather's testimony should have been admissible because it was admitted in previous phases of the same case; (b) the mother's testimony was admissible not because it was given earlier but because it was Constitutionally required under the 8th Amendment. The question before the Court will be whether the Oregon Supreme Court's analysis of the US Supreme Court precedents on this matter, specifically in Lockett and Bell and Green would allow Guzek to bring his mother's alibi evidence of innocence in a penalty-phase trial.]

I could do what the briefs to the US Supreme Court and the opinions of the Oregon Supreme Court do at this juncture: quote language from a series of US Supreme Court precedents about whether evidence like this is admissible in a penalty phase. But, as the State of Oregon says in its petition, even in the case seemingly most on point (Penry v. Lynaugh from 1989):

"The plurality did not reach the broader question - whether there is a constitutional right to offer evidence and argument in support of a lesser sentence mitigated by lingering doubts the jury may have about the defendant's guilt."

Thus, the remainder of this essay will go to what lawyers call the "policy" question--what factors should be weighed in answering the question posed, rather than which specific language of which particular case might be useful. The policy issue is how broad is the mitigating evidence a defendant might introduce in his penalty phase trial. Unlike in the case of the one-handed economist, the two approaches can be stated as follows:

1) The defendant has the privilege of introducing anything he wants, as long as it has the color of relevance, that would allow a jury to consider a lesser sentence. This approach is supported by lots of language in lots of cases that the purpose of mitigation is to allow a person to put on his case as he sees it, letting the jury decide the weight to give to any piece of evidence. If he tries to say he went bowling two weeks later, this evidence can be excluded because it has no relevance to what he was doing at the time of the crime. But he should be given broad latitude to try to win the sympathy of the jury. His very life is at stake. I wonder, however, what would be the result under my theory if he tried to introduce evidence that he was on Mars on the night of the crime. Can the judge disallow it for relevance grounds, or may it actually be relevant (the jury could decide he wasn't "all there" and could mitigate; the jury could decide he is an ultimate con artist and lose patience with him). The jury is capable, in this perspective, of sorting out the most important issues. Let them decide.

2) The defendant cannot introduce anything in the penalty phase that would negate the truth of what the jury has determined in the guilt phase. In other words, in order for our system of justice to function with integrity, it has to believe the results of its own deliberations. When the jury found Guzek guilty of aggravated murder, it was stating, quite unequivocally, that Guzek was not only at the scene of the crime, but that he directed the crime and committed in his person one of the murders. To allow him to state that he wasn't even there makes a sort of mockery of a process that took years to develop.

Conclusion--My Approach

I favor the former approach and, as I argue in the next two essays, so does the Oregon death penalty statute. Mitigation should give the defendant the opportunity to do anything in his power to persuade the jury not to give him the sentence of death. Some of the evidence put on by the defendant may backfire on him, to be sure. Perhaps his dogged maintaining that he was innocent of any crime because not present will so repulse the jury that he will simply have a harder road to go to convince them not to impose the death penalty. Actually, I think that this is the way it will work. Thus, ironically, if the Court sides with the State, I think Guzek has a greater chance of getting a lesser penalty. But in the crazy world of Randy Guzek's case, this would be par for the course.

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