Oregon State Bar Bulletin APRIL 2002

A Time to Kill?
Reflections on the Oregon death penalty
By William R. Long

No one could have imagined that when a hunter stumbled upon the partly decomposed body of a young woman on a steep hillside overlooking the Molalla River in August 1987, his discovery would lead to the most dramatic serial murder case in Oregon's history. Within five days of the discovery another six female bodies were found, all within 100 yards of the first body. As the gruesome details about the manner of the victims' death gradually became evident, shock turned to horror. One body was too skeletalized to discern the precise nature of her death, but at least four of the others had had their feet sawn off and one of the victims was disemboweled. The sense of horror was prolonged and intensified as fresh details of the tortures, the victims' identities, or the signature manner of the killer were reported in the press in the following months. Oregon seemed to have its own 'Green River killer,' dubbed by the press the 'Molalla Forest killer,' in its midst.

By Sept. 17, 1987, a suspect was identified: Dayton Leroy Rogers, a 33-year-old male with a lengthy criminal record who lived in Canby and operated a small engine repair shop in Woodburn. A Clackamas County jury, ironically consisting of 12 women, found Rogers guilty of 13 counts of aggravated murder in the deaths of the six women, and the judge sentenced him to death on June 9, 1989.

According to the Death Penalty Information Center, when a person is sentenced to death in America, that person is normally executed within 12 or 13 years of sentencing if there are no complications with subsequent appeals. In Oregon, inmates condemned to death may pursue 10 legal proceedings after sentencing, the first of which is a mandatory appeal before the Oregon Supreme Court, before the state can legally put that person to death.

If Oregon were in line with national trends, therefore, Dayton Leroy Rogers would probably be scheduled for execution sometime in 2001 or 2002. It may come as a surprise to learn that as of April 2002, Dayton Leroy Rogers still has all 10 of his legal proceedings remaining and, in fact, is legally further from execution than he was when the Clackamas County jury voted to give him the death penalty in 1989. Because of this, the earliest conceivable day that we might be able to execute Rogers is around 2020, if he has not died of old age (he was born in 1953) or illness before that time and if no more delays in his appeals result. The story of why this is the case cannot be understood without an awareness of Oregon's flawed death penalty statute, a whimsical judiciary, an electorate that thought it was getting tough on crime but ended up delaying the process of putting people to death and, ultimately, a legal system that is highly ambivalent about putting people to death in Oregon.

OREGON'S MODERN DEATH PENALTY LAW
Though Oregon abolished the death penalty by initiative petition in 1964, by the mid-1970s a move to restore the death penalty was afoot. Fueled by the ever-growing realization that dangerous people were released into the community far earlier than was wise, the movement achieved the restoration of the death penalty through initiative petition in 1978. However, the petition was poorly worded, and the Oregon Supreme Court struck it down in January 1981. Proponents vowed to bring a better initiative to the voters. After the birth of the victims' rights movement in 1982, additional legislative temporizing in 1983 and a few more grisly deaths in Oregon, an initiative petition to restore the death penalty passed by the astonishing margin of 75.1 percent to 24.9 percent in November 1984.

Two features of the modern Oregon death penalty law should be emphasized. First, it is a Texas-style statute. Death penalty experts speak of two versions of capital statutes: a Model Penal Code version and a Texas version. The former emphasizes the weighing of mitigating and aggravating factors by a jury, while the latter requires a 'future dangerousness' finding by the jury. Oregon was the only state other than Texas to adopt a Texas-style statute in the 1980s.
Second, proponents of the restoration of the death penalty stressed how much cheaper it would be for the state to execute people rather than to keep them in prison for life. This claim assumed that executions would be carried out fairly quickly after the time of the death sentence. Indeed, the 1978 version of the law approved by Oregonians provided that death penalty cases 'shall have priority over all other cases' and were to be 'subject to review' within 60 days of the certification of the lower court transcript. Efficiency and cost control were the order of the day.

THE DEATH PENALTY IN PRACTICE
Yet, things have not worked out that way. The new death penalty law went into effect Dec. 6, 1984. It was not until 1986 that the first Oregon jury sentenced two men to death under the 1984 statute. In 1987 three men were sentenced to death. Then in 1988 and 1989 the floodgates opened: Oregon juries sentenced 18 men to death between January 1988 and June 1989.

But then, on June 26, 1989, everything changed for Oregon. The U.S. Supreme Court handed down a decision in the Texas case of Penry v. Lynaugh, which held that a jury must be able to take into consideration and give a 'reasoned moral response' to all evidence that the defendant might bring in mitigation of a sentence of death. The Court held that the Texas statute did not provide that opportunity and so the case was remanded to the Texas Supreme Court.

The case sent shock waves back to Oregon. The Oregon Supreme Court had to do something with the 23 men who had been sentenced to death under a statute that the U.S. Supreme Court had said was inadequate. Its options were three. It could vacate the sentence of death and remand each of the 23 cases to the circuit courts for new sentencing hearings to see if they would be resentenced to death. Or it could vacate the sentence of death and order a new trial for all 23 defendants. Or the court could recognize that Oregon's law was inadequate and sentence the 23 men to life imprisonment. The court chose the first alternative.
From 1990 to 1992, the Oregon Supreme Court vacated the death sentences of each of the 23 men, one by one, so that the circuit courts could decide again on the death sentence. A few of the 23 also faced new trials. Most of these remanded cases settled for something less than a sentence of death. Dayton Leroy Rogers' case did not.

Because the sentence of death was originally handed down to Rogers a mere two weeks before the Penry decision, Rogers' transcript and briefs were not all submitted to the Oregon Supreme Court until 1991 and the court did not get around to remanding his case to Clackamas County until 1992. A new sentencing jury was empaneled, a sentencing trial was held, testimony was presented and the sentence of death was reimposed May 17, 1994.

The case then returned to the supreme court on automatic appeal. Under normal circumstances it would take about three years for the transcript of the penalty phase trial to be settled, briefs of both sides to be filed, oral arguments to be scheduled and heard, and a decision to be rendered. Even though the 60-day period envisioned in the 1978 law was a chimera from the beginning, one could still expect a decision within a few years from the time that the circuit court sentenced a defendant to death. Thus one should have expected that his death sentence would be affirmed by the Oregon Supreme Court sometime in 1996. But the Rogers case then hit another snafu that affected all the death penalty cases in this period. The snafu was created by the poor wording of a victims' rights initiative, Ballot Measure 40, that went to the voters in November 1996.

Measure 40 created a series of lengthened sentences for many serious crimes. But the measure was silent on whether and how the victims' rights initiative would apply to pending cases. So, in December 1996, the supreme court decided to put all death penalty cases 'in abeyance' until it could hear arguments and decide how the initiative affected pending cases. As their schedule would have it, the court did not reach a decision on the issue until June 1998. The case in which the court reached its decision, Armatta v. Kitzhaber, is now at the center of a raging debate over how to amend the Oregon Constitution in order not to violate the single-subject and separate-vote requirements of the constitution.

All this had an effect on Rogers' case. His case was not resubmitted by the court until June 1998. Oral arguments were not held until early in 1999. It was not until May 4, 2000 that the Oregon Supreme Court handed down its second decision in the Rogers case. The result? Another remand for a third penalty or sentencing phase trial.

Although the first remand was driven by the finding of the U.S. Supreme Court that the Oregon statute was inadequate, and the delay from 1996-1998 was occasioned by sloppy wording of the victims' rights advocates, the reason for the 2000 remand must be placed squarely at the door of the supreme court. Simply put, it changed the rules on how many sentencing options a jury had to consider in a remand situation for a pre-Penry defendant on Oregon's Death Row.

TWO OR THREE SENTENCING OPTIONS ON REMAND?
That last statement requires some explanation. If a person was convicted of aggravated murder in Oregon from December 1984 until July 1989, the sentencing jury had two possible penalties it could impose: death or life imprisonment with a possibility of parole in 30 years. In July 1989 the legislature passed the 'true life,' or life without the possibility of parole option, for capital cases, the implication of which was that the sentencing jury could now choose one of three punishments for a person found guilty of aggravated murder: death, life without the possibility of parole, or a life sentence with a possibility of parole in 30 years.

The passage of the 1989 true life law created a dilemma for the courts in the early 1990s. If the aggravated murder was committed after July 1989, it was clear that the jury would be instructed in the three options. But what would be the result in a remand situation for a jury after 1989 when the original crime was committed before the effective date of the true life option? Would the jury be instructed to consider only the two options in effect at the time of his crime, or would the jury be instructed on all three options because the remand hearing was taking place after the effective date of the true life option?

The question is easy to pose but difficult to answer. The legislature spoke to the issue both in 1989 and 1991, and appeared to say that in a death-penalty remand situation, the jury would be instructed in all three options. But from 1991-94, the supreme court ignored these statutes and required the instruction in the two 1984 options.1 Rogers' remand jury was instructed in two options in May 1994. Then, when his case returned to the Oregon Supreme Court in 1999, the court changed its mind. It said now that three options must be presented to the remand jury. Because Rogers' jury only had the two options, his case must be remanded once again. This second remand penalty phase trial is scheduled for June 2002.

If he is resentenced to death this summer by his third penalty-phase jury, Rogers' case will then return to the Oregon Supreme Court to be affirmed around 2007. It will take so long to return this time because, while the court was deciding whether two or three options should be given to remand juries, another dozen or so men have been sentenced to death. Rogers must 'get in line' behind them before his case can be heard again by the Oregon Supreme Court. Thus, it will conceivably be 20 years from the date of commission of his crime until his sentence of death is affirmed by the Oregon Supreme Court. And, as we now shall see, affirmation of one's conviction by the Oregon Supreme Court is only the first of ten steps open to a condemned inmate in Oregon.

OTHER STEPS
Rogers' first step, direct appeal to the Oregon Supreme Court, will take probably 20 years from the time of Rogers' crime. The nine remaining steps will probably take about 12-15 years. The following nine steps open to Rogers after his conviction is affirmed by the Oregon Supreme Court, and the probable length of these steps, are as follows:

1. Direct appeal to the United States Supreme Court. A defendant has 90 days from the entry of the appellate judgment by the Oregon Supreme Court to file a petition for certiorari with the U.S. Supreme Court. This appeal is almost always swiftly rejected, but it may take the Court six months to get to his petition. Therefore, this step may take between six and nine months.

2. Filing of a petition for post-conviction relief in Marion County Circuit Court. This phase of the appeals, called state post-conviction relief, is also referred to as a 'collateral' relief because it principally relates to whether the defendant's trial and appellate counsel were constitutionally ineffective in representing the defendant. It is filed in Marion County because that is where the defendants live - at the Oregon State Penitentiary. When the 'Post-Conviction Relief Act' was first applied in a death penalty case in 1963, the petition was dismissed in two months. Now, it takes between 2.5 and 6.5 years to deal with the petition. The reason for the increasing length of time is that post-conviction relief has become the arena through which the trial and appeal are almost re-enacted.

3. Appeal of the dismissal of the post-conviction petition to the Oregon Court of Appeals. This is provided by statute and, in the four cases that have come this far in the history of the statute, none has yet been decided. It looks like it will take an average of 2 to 3 years.

4. Appeal of the affirmation of the dismissal by the Court of Appeals to the Oregon Supreme Court. Review of these cases by the Oregon Supreme Court is discretionary. Because no cases have yet reached this stage, it is uncertain whether the court will accept review of death penalty cases on collateral appeal or not.

5. Appeal of the Oregon Supreme Court's action to the United States Supreme Court. This also will probably be dismissed routinely, but it may buy the defendant another nine months.

6. Filing of petition for federal habeas corpus relief in the U. S.District Court of Oregon. Although a new federal law designed to hasten the pace of a defendant's federal death penalty trial was put in place in 1996, Oregon will probably not try to 'opt in' to the 'benefits' of the act and so will not force defendants to pursue expedited procedures for their federal appeals. One can assume that a minimum period of 2-3 years for the filing of the petition, a hearing and a decision will be required.

7. Appeal of the decision of the federal district court to the Ninth Circuit Court of Appeals. The Ninth Circuit does not deal with its criminal docket very expeditiously; one can anticipate another two to three years before a decision is reached.8. Appeal of the decision of the Ninth Circuit to the U.S. Supreme Court. This is usually the step where the Supreme Court handles its death penalty cases. The Supreme Court hears about two to four death penalty cases per year.

9. Appeal for clemency to the governor of Oregon. This procedure is statutorily laid out and may take anywhere from four to eight months (or more) to complete.

CONCLUDING REFLECTIONS
In calculating when Oregon might plausibly be able to put Rogers to death, it would be unwise to simply 'add up' the minimum projected dates for each of the 10 steps. Just as no one could have imagined in 1984 that it would take nearly 20 years for any particular defendant to successfully complete 'step 1' of his appeals, no one today can accurately predict how long the other stages will take or, in fact, whether some other unforeseen delay will enter the system.

Nevertheless, if we were to try to 'add up' the years for Rogers, we would get something like this. Crimes were committed in 1987. The Clackamas County jury sentenced him to death in 1989. The Oregon Supreme Court remanded the case for a new sentencing hearing in 1992. A second Clackamas County jury again sentenced him to death in 1994. Measure 40 hit. The Oregon Supreme Court finally in 2000 remanded the case once again for a new sentencing hearing. That new hearing will take place in 2002. If he is sentenced to death again, it will return to the Oregon Supreme Court for affirmation probably in 2006 or 2007. The U.S. Supreme Court will deny certiorari in 2007. His petition in Marion County Circuit Court will probably be dismissed around 2011. The Oregon Court of Appeals might affirm that dismissal by 2013. The remaining years are anybody's guess, but the remaining five steps should probably take another seven years.

Though the process has worked slowly for Rogers, it has been quicker for many post-Penry defendants. At least half a dozen of men who were sentenced to death after 1990 have already had their convictions affirmed by the Oregon Supreme Court. Four men have already had their post-conviction petitions dismissed. Though one of the four has run into some procedural hitches at the state Court of Appeals, two of the four may have finished their post-conviction appeals by 2003. Thus, the final irony in Oregon's delay, or inability, in putting Dayton Leroy Rogers to death, is that a number of 'lesser' aggravated murderers might die first. One would think that the value of the death penalty statute would be related to its ability to be effective against the most heinous aggravated murderer. If Oregon cannot execute its worst serial killer, what justification does it have to execute the others? In the final analysis, when Oregon executes Clinton Cunningham or Jesse Pratt or Jeffrey Williams or Mark Pinnell, the four men who now have cases before the Oregon Court of Appeals, not only should they, but also the entire state of Oregon ought to ask, 'And where is Dayton Leroy Rogers?'


ABOUT THE AUTHOR
William R. Long, is an attorney in the trial practice group at Stoel Rives LLP in Portland. He is the author of the recently published book, A Tortured History: The Story of Capital Punishment in Oregon (Oregon Criminal Defense Lawyers Association, 2001). He may be contacted at wrlong@stoel.com.

ENDNOTE
1. A more detailed consideration of this point and the development of the issue appears in the author's paper, 'How Langley Bested Carson and Got Ten More Years of Life for Himself and Three of His Death-Row Colleagues' and is available on request from him.

For additional story, see 'An Additional Note'.

For information on 'First-Ever Book on the History of Oregon Death Penalty Published'.

2002 William R. Long

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