Capital Punishment in Oregon: a Forum on the Death Penalty
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Capital Punishment in Oregon: A Forum on the Death Penalty Cosponsored by the Legal Heritage Interest Group Wednesday, December 21, 2016 10 a.m.–Noon 2 General CLE credits CAPITAL PUNISHMENT IN OREGON: A FORUM ON THE DEATH PENALTY PROGRAM PLANNERS Jamie Dickinson, Attorney at Law, Portland Elizabeth Jessop, Law Offices of Geoff Bernhardt, Portland OREGON STATE BAR LEGAL HERITAGE INTEREST GROUP Jamie Lynne Dickinson, Chair Mary Anne Anderson, Secretary David B. Avison Gabriel Mead Biello Alfred Frank Bowen Bill Y. Chin Ning Fu Michael T. Harvey Susan Hogg Elizabeth Jessop Katerina Kogan Janet D. Kreft Mark Douglas Monson Spencer Q. Parsons Robert S. Raschio Adam Schenker Jacqueline A. Tommas Paul Martinez, Public Member Jay Mullen, Public Member The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright © 2016 OREGON STATE BAR 16037 SW Upper Boones Ferry Road P.O. Box 231935 Tigard, OR 97281-1935 Capital Punishment in Oregon: A Forum on the Death Penalty ii TABLE OF CONTENTS Schedule . v Faculty . vii 1. Sentenced to Death for Life: Oregon’s Costly and Penologically Ineffective Death Penalty Law . 1–i — The Honorable Paul De Muniz, Willamette University College of Law, Salem, Oregon — Lee Gilgan, Attorney at Law, Lafayette, Oregon 2. Report to Governor Kate Brown on Capital Punishment in Oregon. 2–i 3. Death Penalty Op-Ed Articles . 3–i — Joshua Marquis, Clatsop County District Attorney’s Office, Astoria, Oregon Capital Punishment in Oregon: A Forum on the Death Penalty iii Capital Punishment in Oregon: A Forum on the Death Penalty iv SCHEDULE 9:30 Registration 10:00 Overview of the Death Penalty in Oregon The Honorable Paul De Muniz, Willamette University College of Law, Salem 11:15 The Death Penalty in Oregon: The Attorneys’ Perspectives Moderator: The Honorable Paul De Muniz, Willamette University College of Law, Salem Jeffrey Ellis, Oregon Capital Resource Center, Portland Joshua Marquis, Clatsop County District Attorney’s Office, Astoria Noon Adjourn Capital Punishment in Oregon: A Forum on the Death Penalty v Capital Punishment in Oregon: A Forum on the Death Penalty vi FACULTY The Honorable Paul De Muniz, Willamette University College of Law, Salem. Justice De Muniz teaches Oregon Criminal Procedure and Practice and Judicial Opinion Writing. Justice De Muniz was elected to the Oregon Supreme Court in 2000 and served as the court’s Chief Justice and administrative head of the Oregon Judicial Department from January 2006 to May 2012. Between 1990 and 2000, he sat on the Oregon Court of Appeals and served as presiding judge on one of the three panels that comprise that body. Justice De Muniz is an inductee of the National Center for State Courts Warren E. Burger Society, serves on the National Judicial College Board of Trustees, and recently completed a three-year term as a member of the Harvard Kennedy School Executive Session for State Court Leaders in the 21st Century. Justice De Muniz’s work has been recognized with a number of state and national awards, including the National Judicial College 2009 Distinguished Service Award, the National Association of Criminal Defense Lawyers Judicial Recognition Award, and the Oregon Hispanic Bar Association’s Paul J. De Muniz Professionalism Award. Justice De Muniz speaks frequently to both national and international audiences on the importance of maintaining independent state judiciaries, improving state court administration, and the need for adequate state court funding. Jeffrey Ellis, Oregon Capital Resource Center, Portland. Mr. Ellis is the Director of the Oregon Capital Resource Center, providing assistance to capital defense teams in Oregon. He has represented numerous individuals facing or under a death sentence in Oregon, Washington, Texas, and federal court in all stages of a case—trial, appeal, and post-conviction. He also serves as an adjunct professor at Lewis and Clark Law School and previously taught at the University of Texas and Seattle University law schools. Mr. Ellis is a member of the Oregonians for Alternatives to the Death Penalty board. Joshua Marquis, Clatsop County District Attorney’s Office, Astoria. Mr. Marquis was appointed Clatsop County District Attorney in 1994 by Governor Barbara Roberts and elected to the position later that year. He is Oregon’s delegate to the National District Attorneys Association, a member of its board of directors, cochair of its Media and Communications Committee, and the organization’s representative to the International Association of Prosecutors (IAP). He also is a member of the Humane Society of the United States National Law Enforcement Council and former president of the Oregon District Attorneys Association. Mr. Marquis has published op-ed articles in newspapers such as The New York Times, The Daily Astorian, the Wall Street Journal, and the Los Angeles Times. He is a contributing author to Debating the Death Penalty (Oxford Univ. Press, 2005), Media Coverage in Criminal Justice Cases (American Bar Association, 2013), and the 2012 and 2013 editions of the ABA’s State of Criminal Justice. He is a frequent speaker at universities and professional meetings and a regular guest on national and local radio and television programs, discussing the criminal justice system and the nature of the relationship between popular culture, the media, and the law. Capital Punishment in Oregon: A Forum on the Death Penalty vii Capital Punishment in Oregon: A Forum on the Death Penalty viii Chapter 1 Sentenced to Death for Life: Oregon’s Costly and Penologically Ineffective Death Penalty Law THE HONORABLE PAUL DE MUNIZ Willamette University College of Law Salem, Oregon LEE GILGAN Attorney at Law Lafayette, Oregon Contents Introduction . 1–1 A Brief History of Oregon’s Death Penalty . 1–1 A Public Vote for Abolition (1910s and 1920s) . 1–5 Another Push for Abolition (1950s and 1960s) . 1–7 Reinstating Executions (1970s and 1980s) . .1–9 Oregon’s Death Penalty Today . 1–10 Chapter 1—Sentenced to Death for Life: Oregon’s Costly and Penologically Ineffective Death Penalty Law Capital Punishment in Oregon: A Forum on the Death Penalty 1–ii Chapter 1—Sentenced to Death for Life: Oregon’s Costly and Penologically Ineffective Death Penalty Law Sentenced to Death For Life: Oregon’s Costly and Penologically Ineffective Death Penalty Law By Paul J. De Muniz* and Lee N. Gilgan* Introduction “A Brief History of Oregon’s Death Penalty” is the second in a series of essays about the death penalty. The essays are intended to examine the history of the death penalty in the United States; Oregonians’ ambivalent attitude toward the death penalty since statehood; the serious and jeopardous flaws in Oregon’s current death penalty law that renders its application arbitrary and unreliable; and, finally, the potential for repeal of the death penalty, or for changes that should reduce its employment, and meaningfully narrow its application to Oregon’s most culpable murders. A BRIEF HISTORY OF OREGON’S DEATH PENALTY On November 29, 1847 Protestant missionary Marcus Whitman, his wife Narcissa, and 11 others were killed during a Cayuse attack on the Whitman Mission near Walla Walla. Congress created the Oregon Territory in 1848. Article 9, of Congress’ Organic Act of 1848 established the Supreme Court, district courts, probate courts, and justices of the peace. After a series of negotiations initiated by the first territorial Governor, Joseph Lane, the Cayuse turned over to the territorial authorities, five Cayuse men, allegedly responsible for the massacre, and they were transported to Oregon City, the seat of the territorial government. The Cayuse men may have believed that they were traveling to Oregon City to apologize and then would be granted immunity. Instead, they were indicted for murder by a grand jury on May 13, 1850. Judge Orville Pratt appointed Kintzing Pritchette, the territorial secretary as lead defense counsel, to be assisted by two Army officers. Only Pritchette had any legal training. Judge Pratt denied defense motions to dismiss for lack of jurisdiction, change of venue, and for a * Paul J. De Muniz, Distinguished Jurist in Residence, Willamette University College of Law and former Chief Justice of the Oregon Supreme Court. De Muniz has been involved with Oregon’s death penalty for most of his 44 year legal career. As a criminal defense attorney, he successfully fought off the state’s death penalty efforts in each capital case that he defended, and successfully argued two death penalty cases in the Oregon Supreme Court. As an Oregon Supreme Court Justice he authored opinions that affirmed and reversed the imposition of the death penalty. * Lee N. Gilgan, M.A. Criminal Justice, Western Oregon University; J.D., Willamette University College of Law. Gilgan believes that the imposition of the death penalty is constitutional under both the Oregon and Federal Constitutions. However, he opposes the administration of the Oregon death penalty because of its high fiscal costs and the shockingly prolonged incarceration on death row of inmates awaiting execution, negating the retributive and deterrent penological justifications for the death penalty. Capital Punishment in Oregon: A Forum on the Death Penalty 1–1 Chapter 1—Sentenced to Death for Life: Oregon’s Costly and Penologically Ineffective Death Penalty Law continuance seeking more time to prepare the defense case. The trial commenced on May 23rd. On May 24th, after just 75 minutes of deliberation, a jury convicted the men of murdering Marcus Whitman.1 Judge Pratt sentenced the men to death, denied defense motions to appeal, and ordered the execution to be carried out June 3rd.