state v. guzek and irrationality and notwithstanding ors 163.150

We are at the point where we have just discovered that the remand statute (for death penalty sentencing proceedings--ORS 138.012) governs the Guzek case. It said that it governs notwithstanding ORS 163.150(1)(a)--the normal procedure for a penalty phase. Yet, even though it governs despite ORS 163.150(1)(a), the statute (ORS 138.012(2)) says that the penalty phase will be governed by ORS 163.150(1), (2), (3), and (5). That is, it seems to prescribe the procedure in a penalty phase that is prohibited in the same statute. And, to deepen the mystery, ORS 138.012 (2)(b) does seem to control penalty phase trials of remanded cases because it gives procedural advice:

"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)).

I will conclude from all this that ORS 138.012 controls the remanded penalty phase, and not ORS 163.150. Therefore, the Oregon Supreme Court was mistaken in its reference to the latter statute when talking about the admissibility of the grandfather's transcript testimony on remand. It is admissible, but because of ORS 138.012.

The Mother's Testimony

But the statute just quoted goes on to say that a live witness (like the mother in this case) can be recalled and may "present additional relevant evidence." Relevance becomes the issue, then. And the statute makes sense. If you want to recall a witness, that person may present old evidence or new evidence or whatever evidence, as long as it is "relevant" evidence. But, the way to determine whether it was "relevant" evidence would have been to let her testify and then, upon objection of counsel, determine whether the objection should be sustained. It is a simple relevance determination. So, the lower court erred in excluding her testimony before she even started to speak.

But, once she started to speak what should guide the relevance determination? Well, here is where it gets a little tricky. If the principle of ORS 163.150(1)(a) were to control, even though as I have argued that the statute doesn't control, then testimony from the mother of her son's innocence would not be admissible. ORS 163.150(1)(a) says that the defendant shall not be able to introduce "repetitive evidence that has been previousuy offered and received during the trial on the issue of guilt." That is, ORS 163.150 suggests that once the issue of guilt has been decided, evidence relative to guilt in the penalty phase would not be relevant.

So, why shouldn't that determination control in the interpretation of ORS 138.012? Because this statute says that transcripts from previous trial and sentencing proceding are admissible in the new sentencing proceeding. The grandfather had testified in the previous guilt phase regarding the grandson's putative innocence. Thus, according to ORS 138.012, the transcript of this would be admissible in the sentencing proceeding. In addition, the mother's transcript evidence would also have been admissible in the remand sentencing proceeding. But her "live" testimony would only be permitted to the extent that it was "additional" and "relevant."

The Statutory Problem

The problem (and irony) of the statute should now be evident for all to see. The statute governing remand proceedings suggests that transcript evidence of anything in previous trials is admissible. This would mean that alibi evidence of a person's innocence, introduced in the guilt phase of the trial, and NOT permitted in the first sentencing phase (according to ORS 163.150(1)(a)), would, ironically, be admissible in remand sentencing proceedings because it is transcript testimony that was, at one time (the guilt phase), properly admitted. The way to assure, then, that alibi evidence of a person's innocence is admitted into court, then, would have been to introduce the transcript. It is slam-dunk in. But if you actually put the real live person on the stand to testify, then that person has to overcome possible relevance objections. Isn't that a potential contradiction? An attorney could then object to the alibi evidence regarding innocence from the perspective of the principle contained in ORS 163.150(1)(a) and perhaps his/her objection would be sustained.

Where the Court Went Wrong

So, rather than just saying that the way to handle the case would have been to accept the grandfather's transcript testimony and say that the mother's oral testimony would have been acceptable only if it is "relevant," the Court went on to try to determine whether a witness has a constitutional right to testify in open court in a remand proceeding about the innocence of the defendant. I suppose the Court wanted to give us some help on what the concept of "relevant" was, but I would assume that if something is relevant in a transcript, the same sentence would be relevant in open court oral testimony. Thus, no separate constitutional analysis of the admissibility of the mother's statement regarding her son's death was necessary. All the court needed to say was two thing: (1) relevance is the standard, according to ORS 138.012(2)(b); and (2) testimony of innocence is presumptively relevant because such testimony is allowed in transcript form. This would have avoided the entire constitutional debacle which now followed. In addition, it would have saved us, and the court, the necessity of doing all that research that led to the most opaque section of the opinion, section C, on "Exclusion of Alibi Evidence." I think it took the Court months of research to screw up that section of the opinion.

Conclusion

We have to remember that underneath all of these issues is the stark reality that people were murdered in this case, people who were loved by their families and communites, people who contributed more to the positive building of the life of a family and town than the defendant ever would do. But, in the cruelest irony of the case, it has taken 18 years now of the best legal minds in the State of Oregon, and now in the United States Supreme Court, to deal with aspects of this case, and we aren't even at the starting blocks, so to speak, of the case. I think it is probably true that Oregon has expended more money on Randy Guzek than on any other person in its history. And, he is probably smiling, even though he moulders away on Death Row, and will continue to do so, for another quarter century.

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