State v. Guzek III
Bill Long 11/18/05
When the Supreme Court isn't Clear
The thesis of this and the next essay is that if the Oregon Supreme Court had read its death penalty statute correctly or sensibly, the case would never have ended up in the US Supreme Court. The Guzek case, which probably will hold the record for the longest death penalty case in Oregon history, would not have been given several more years of life. As it is, the Oregon Supreme Court took too long (26 months) in writing its opinion, and thus gave itself loads more time to screw things up. This and the next essay will examine how the Oregon Supreme Court dealt with the issue that is now before the US Supreme Court. Let's first see how the Oregon Supreme Court handled the issue of alibi evidence.
The Alibi Evidence
As I said in a previous essay, the crucial issue on which the US Supreme Court granted review was whether Guzek should have been able to introduce alibi evidence of innocence of the crime in the third penalty phase of his case. As we know, he had one complete trial so (guilt and penalty phase) and a total of three penalty phase trials. That is, he has had two penalty phase trials as a result of remand.
Ok. Now we are ready to hear Justice Riggs, writing on the issue of alibi evidence.
"At his third penalty-phase proceeding, defendant sought the admission of two items of evidence that tended to show that he could not have been at the Housers' home at that time: (1) the transcript of defendant's grandfather's testimony...and (2) the testimony of defendant's mother."
Defendant sought introduction of his grandfather's transcript because the grandfather had died between 1988 (the first trial) and the third penalty phase trial. What result at the third penalty phase trial? "The trial court excluded that evidence, apparently on relevance grounds." Evidence excluded.
Then the court turned to the question of whether this evidence was improperly excluded. It cited the defendant's argument that the trial court erred in excluding that evidence because it was "mitigating evidence" relevant to the fourth question under ORS 163.150(1)(b), that is "whether the defendant should receive a death sentence." In contrast, the state argued that such evidence was only relevant to sentencing and not guilt.
Deciding on Relevance
The court then decided that the relevance of these two types of evidence was different and took them one at a time. The grandfather's transcript (from the guilt phase of trial one, in 1988) would be admissible, so the court concluded, because it was "previously offered and received" on the question of guilt. These words are from ORS 163.150(1)(a).
Let's read what the statute actually says.
"In the proceeding [penalty phase], evidence may be presented as to any matter that the court deems relevant to sentence including, but not limited to, victim impact evidence....; however, neither the state nor the defendant shall be allowed to introduce repetitive evidence that has previously been offered and received during the trial on the issue of guilt. 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).
Is the statute speaking out of both sides of its mouth? No. It says that in the sentencing phase you would not be able to introduce repetitive evidence (that is, evidence that was offered in the guilt phase) on the issue of guilt. Presumably the trier of fact had already considered this evidence and found it wanting. Hence the person was found guilty of aggravated murder. But then the statute goes on to say that "all evidence previously offered and received" may be considered in the sentencing hearing. How to put the two together? Well in the sentencing phase, evidence of guilt or innocence of the party is the only thing previously offered that is inadmissible. The issue has been decided. Introduce anything else you want, but don't introduce, in the sentencing phase, evidence of guilt or innocence.
But what the Supreme Court doesn't say is that ORS 163.150(1) doesn't apply to a remanded penalty phase death penalty case. Well, I need to explain that one, since the story is pretty convoluted here. The Oregon courts discovered in the 1990s that several death penalty cases were being remanded by the Oregon Supreme Court after sentence of death for a second penalty phase. The original statute dealing with penalty phases might not have been fully relevant for remanded cases, and so the Oregon Legislature passed a statute, now codified at 138.012, which would guide remand proceedings in death penalty cases. Lest we miss the point, let's read the statute.
"(2) Notwithstanding ORS 163.150(1)(a), after automatic and direct review of a conviction and sentence of death the following apply....(b) 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).
A Contradiction in the Statute?
It states clearly that this applies to the "new sentencing proceeding." But what is confusing to me is that the statute, quoted above, says, that the new sentencing proceeding is governed by ORS 163.150(1). Well, that wouldn't be so bad except that 138.012(2) says that the following section applies "notwithstanding" (i.e., despite) ORS 163.150(1)(a). So, subsection (2b) tells us that the remand trial will be conducted based on ORS 163.150(1) but section (2), which contains (2b), says that we except 163.150(1)(a). What gives?
I will only take one more essay on this, and then get out!
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