Oregon State Bar Bulletin — JUNE 2012





No matter where they stand on capital punishment, Oregon State Bar members who have spent much of their careers grappling with the subject concur that the state has been fickle about the death penalty.

First enacted by statute in 1864, the death penalty was repealed by Oregon voters in 1914 and then restored by them in 1920, both by constitutional amendment; outlawed again by voters in 1964; re-enacted by initiative in 1978; deemed unconstitutional by the Oregon Supreme Court in 1981; and reinstated by initiative in 1984, the last time the issue came up for a vote.

Execution has been carried out in Oregon only twice in the past 50 years, in 1996 and again in 1997, the most recent year the death penalty was a major news topic in the state.

That changed last November. Gov. John Kitzhaber announced that he was granting a temporary reprieve to convict Gary Haugen, who had been issued a death warrant, ceased further appeals and faced imminent execution. The governor stated that he would not allow any further executions as long as he remained in office.

“The death penalty as practiced in Oregon is neither fair nor just, and it is not swift or certain. It is not applied equally to all. It is a perversion of justice that the single best indicator of who will and will not be executed has nothing to do with the circumstances of a crime or the findings of a jury,” he said. “The hard truth is that in the 27 years since Oregonians reinstated the death penalty, it has only been carried out on two volunteers who waived their rights to appeal.”

Kitzhaber called for the 2013 Legislature to come up with potential reforms and encouraged Oregonians “to engage in the long overdue debate that this important issue deserves.” He labeled Oregon’s system “broken,” and said it is “expensive and unworkable and “fails to meet basic standards of justice.”

Here, to help launch the debate, four Oregon lawyers with years of experience in the field express their diverse opinions about a subject that everyone agrees is complex, difficult and worthy of OSB members’ attention.

Joshua K. Marquis
For years, Josh Marquis has written, lectured and debated prolifically about the death penalty, been interviewed on TV and radio shows concerning the subject, authored a chapter of the 2004 book Debating the Death Penalty, and received a national legal organization’s award for “outstanding capital advocacy.”

At the same time, he is active in the Democratic Party, and his early background did not foreshadow much about his future positions.

Growing up in a liberal, upper-middle class family in Eugene, Marquis already was politically aware enough at the age of 11 to tack a bumper sticker on the family car reading “Abolish the Death Penalty.”

His father, a political science professor, and his mother, an artist, firmly opposed capital punishment for moral reasons. In an intellectually minded household, television was forbidden for Marquis until he turned 16. Moreover, he gained exposure to other cultures when his family lived abroad: Marquis spent two years attending English public schools and three years in an Italian school.

He admired the Atticus Finch character in To Kill a Mockingbird. “I was a very outspoken 12-year-old and would write letters to the editor about the civil rights movement,” says Marquis, who also became active in the antiwar movement once he was at the University of Oregon, and wrote for the student-run newspaper. “My life was untouched by poverty or crime,” he says.

But during college, he worked for the Lane County district attorney’s office, starting as a law clerk. In that post, he began to see things from the police’s side. “I started to change my mind about how to help the poor and the defenseless,” Marquis says. “The way to do that was to be a prosecutor,” to aid the victims of crime. “I became exposed to people who were really bad people.” He decided to go to law school, at the University of Oregon. “The only reason I went to law school was to be a prosecutor. I knew what I wanted to do.” He also was promised a job with the Lane County DA’s office, where he had been working, and he went on to become deputy district attorney there.

However, until he turned 30, Marquis remained opposed to the death penalty. He wrote national articles and columns on criminal law and worked briefly as a special assistant and speech writer for California’s attorney general. He then returned to Oregon to work in the Lincoln County DA’s office, where he tried several homicide cases, including one against Wyoming attorney Gerry Spence, the only time Spence ever lost a murder trial, according to Marquis.

He next went into private practice for a law firm in Eugene for what he remembers as a “very profoundly unhappy” 18 months, where he practiced civil and criminal law, including successfully defending three capital murder cases. For the next four years, Marquis served as chief deputy to the Deschutes County district attorney, and it was there that he tried his first case in which he asked for the death penalty: Oregon v. Guzek.

Since 1994, Marquis has been the DA of Clatsop County. Despite his national reputation as a proponent of capital punishment, he has personally asked a jury for the death penalty in only four instances, three of them involving the same defendant. He says the ultimate penalty is “rarely asked for and relatively rarely given,” and that is as it should be: reserved for the worst of the worst.

Marquis says reasonable people can differ over the morality and efficacy of capital punishment. “Any thinking person, particularly someone like me who is actually involved in making these decisions,” ought to have ambivalent feelings, he says.

But he is convinced that statistics prove capital punishment is a successful deterrent, and he takes issue with the main arguments used by opponents of capital punishment, who sometimes call themselves “abolitionists,” a use of the term that Marquis disparages because of its suggestion that the movement resembles the 19th century one against slavery. He says they’ve adopted this stance because public opinion polls in Oregon and nationally show majority support for retaining the death penalty.

He disputes the contention that innocent people are at high risk of sentencing to death row; that capital punishment is flawed because it is inherently racist; and that indigents charged with capital murder get inferior and poorly funded representation.

“The problem for foes of Oregon’s death penalty is that none of the three scenarios applies in our state,” he says. Nearly all death-row inmates have been white, and “no one on death row has raised a credible claim of actual innocence. And Oregon spends more on indigent capital defense than almost any other state in the country.”

He says the media and popular culture have helped create a perception that many innocent people have been put to death, whereas in reality nearly all those sentenced to death are guilty. He adds that defendants have far more rights than are accorded their victims and, in Oregon, “receive a millionaire’s-level defense.”

“No one knows the names of the victims — [they’re] the forgotten people in all this,” he says.

More fundamentally, Marquis views as specious abolitionists’ charges that the system is broken and unfair. Despite the arguments they employ to end capital punishment, he says, their true reason for opposition is that they believe it is morally wrong. 

Jeffrey E. Ellis
Jeff Ellis has spent most of his career so far practicing and teaching capital defense. As director of the Oregon Capital Resource Center in Portland, he provides assistance to attorneys involved in the defense of capital cases in Oregon.

He also serves as an adjunct professor at Lewis & Clark Law School, teaching a capital punishment course that primarily focuses on the Eighth Amendment’s regulation of the death penalty. He has been invited to speak on capital punishment at about 40 CLE presentations, as well.

Ellis was the primary author of a 12-page petition request that helped persuade Kitzhaber to issue a reprieve of Haugen’s execution. “We are asking that you declare a de facto moratorium on executions in Oregon pending a comprehensive study of our death penalty system,” Ellis and three co-signers wrote.

Ellis thinks states are realizing more and more that capital punishment isn’t producing the outcome intended, is unfairly administered and is grossly expensive. Five states in the past five years have abolished the death penalty, repeal proposals are pending in others, and an initiative to that effect is expected to go before California voters in November. “As growing costs and stark unfairness become harder to justify, more states will follow that path,” he predicted in the letter to the governor.

Born in Everett, Wash., Ellis came from a family of teachers. A high school guidance counselor suggested that law might make a good occupation for him. When Ellis was in middle school, an incident had an even greater effect on him than that later advice: He was dressed down by the principal for 90 minutes to try to force a confession after Ellis was mistakenly accused of dumping the contents of a garbage can on a fellow student.

That incident “left its mark on me,” says Ellis, who contemplated at the time how tough defending himself would be had the accusation been of a more serious nature. After graduating from Pacific Lutheran University in Tacoma and the University of Oregon School of Law, Ellis spent 15 years working for The Defender Association in Seattle, mostly in the felony division, where he tried more than 100 cases.

During and since that tenure, he has at various times taught capital punishment seminars at the University of Texas Law School and Seattle University School of Law, as well as worked in private practice in a three-person firm where he was a name partner.

Ellis prefers defending capital cases because “the stakes are higher,” he says. “When you get appointed to a capital case, all others fall away. It gives you the ability to focus exclusively on a case. I like the breadth of inquiry; you look at the defendant’s entire life history and how that relates to the crime he is accused of.”

He disputes the notion that Oregon overcompensates defense attorneys in capital cases. “I do know that the amount of money we pay people to defend cases is far below average,” Ellis says. “Oregon pays $50 to $90 an hour for people who do this; $175 is the federal standard. We’re nowhere even close to that. There’s no way we’re the most well-funded, well-paid staff.”

Oregon’s statutes are modeled on those that Texas uses. That state has been successful in carrying out death penalties because its system is “severely underfunded, so the quality of the defense is much lower,” he says. “The big problem is, they’re executing innocent people.” If Oregon were to follow Texas’ path and rush through perfunctory reviews, “we would get the execution of innocent people.”

Oregon’s system suffers from arbitrariness in capital sentencing, in his view. Ours is one of the few states without any safeguards in place to review cases for proportionality, Ellis says. Proportionality means allowing comparative review by the Court of Appeals, to weigh how a case compares with others. It is the best way to protect against arbitrariness in capital sentencing, because it ensures that only the worst of the worst are sentenced to death, he contends. Right now, Oregon has a county-by-county approach in determining what constitutes death penalty cases.

In addition, capital punishment is far more expensive than life without parole, Ellis says. “Money spent on the death penalty would be much better spent on more police officers, drug, alcohol and mental health treatment, as well as on victim’s services,” he says. “For nearly 30 years we have been funding a death penalty that has not resulted in a single execution after full appellate court review.”

Third, Oregon’s death penalty is “over-broad,” he charges. Oregon currently has 37 people under death sentences. Washington, with double the number of murders, has only eight. Oregon usually has 30 to 40 death penalty cases pending trial; Washington usually has fewer than five. In the number of executions, the two states are similar. “Oregon could save millions of dollars every year simply by narrowing the scope of our death penalty.”

In 1976, when the United States Supreme Court permitted capital punishment to go forward, many legal scholars warned that creating an objectively fair system for deciding which criminals should die and which could live was impossible, Ellis says.

“Those predictions appear to have come true,” he says. Many people who favored the death penalty in the abstract have come to view its practice very differently. “They have reached the conclusion that if society’s ultimate punishment cannot be applied fairly, it should not be applied at all.” 

Byron Chatfield
When Byron Chatfield, who has been a prosecutor in Oregon for more than 38 years, selected juries for capital cases, he often observed examples of his long-held belief that talking about the death penalty is easy, whereas when you’re actually involved in making that decision, it is anything but easy.

“Certain jurors would say they were not opposed to the death penalty as a potential punishment, but they could not be involved in making that decision for life or death,” he recounts. “They would not sit on the jury because they couldn’t participate in the process.”

It’s a reason why Chatfield, who has prosecuted nine death penalty trials — believed to be the most of anyone in Oregon — understands why Kitzhaber called for an examination and discussion of capital punishment. “I have the utmost respect for where he’s coming from. I think it’s important to have that conversation continually,” says Chatfield, who since 2005 has been an assistant United States attorney assigned to the Medford branch office.

Chatfield emphasizes that all of the views he expressed for this article are his own, and do not reflect the positions of the U.S. Department of Justice or the U.S. attorney’s office.

Chatfield was born and raised in Portland. His father and an uncle each served as deputy sheriffs in Multnomah County, so “there was this law enforcement connection,” he says. He graduated from Benson High School and Portland State University, and in his final year at Lewis & Clark Law School, made a decision from which he has never wavered: to become a prosecutor.

His first job was as assistant district attorney for Malheur County, where his mentor was the DA, Francisco J. Yraguen, now a retired circuit court judge. Within two months of starting his job there, Chatfield was second chair in a murder case. He went on to prosecute several murder cases in the county, and spent a total of seven years in Vale, the final four as district attorney.

He then moved to Salem, where he served as an assistant attorney general in the criminal justice division of the Oregon Department of Justice from 1980 to 2005, under a total of five different Oregon attorneys general.

In various posts he held in the division during those 25 years, Chatfield worked on a number of major crime teams and task forces, including the Rajneeshpuram investigation and resulting state prosecutions. He also prosecuted a case involving one of the two convicted murderers who was executed in Oregon during the 1990s, Douglas Franklin Wright in Wasco County.

“I think the death penalty can be an appropriate penalty, but under very limited circumstances,” says Chatfield.

In his duties and in selecting jurors, he has observed extremes on both ends: people who think the death penalty should be applied in all aggravated murder cases, and people who think it should never be employed, even for “the most terrible crimes or circumstances.”

Chatfield says the responsibilities of a prosecutor are not necessarily to follow what victims’ families want, but to weigh all the evidence, learn everything one can about the defendant’s entire life history, and then make a decision that is in the public’s best interest as to whether or not to recommend to jurors that the death penalty be imposed.

“I don’t believe that hate, anger or revenge should have any part in the death penalty decision,” he says. “What we’re talking about is accountability. When you make such a serious decision, it shouldn’t be based on emotions. You evaluate the evidence and make decisions based on that. That’s part of the responsibilities we have as prosecutors. It’s extremely important for us to be professional in the job that we do.”

Chatfield does not accept the description that capital punishment is “unworkable.” “I don’t believe that it’s an unworkable system,” he says. However, he adds, “I don’t think people who voted for (legalizing) the death penalty anticipated that appeals would last for 20 years, either.”

In addition, those who advocate that life without parole be substituted in all cases for the death penalty need to think through the consequences if it were removed, he says. “Life without parole is somewhat of a simple answer to a difficult issue. It creates other issues.”

One example he uses is: What are we to do with prisoners who present an extreme danger to others, even in prison? “Other inmates and corrections officers have the right to be protected from prisoners who are dangerous and a continuing threat to people,” he says, citing instances where those who were sentenced to life kill fellow inmates or guards.

In addition, if the threat of a death penalty were removed, prosecutors may have trouble getting the defendant to plead guilty in exchange for life without parole, and thus would lose that ability to avoid the considerable cost and lengthy trials and appeals associated with capital punishment, he says.

Third, merely saying, “You are sentenced to life in prison without the possibility of parole” does not guarantee that the prisoner will serve for life, Chatfield explains. Oregon’s history of changing its mind about the legality of capital punishment adds to that concern, he says. “Society can change; laws can change.” Numerous examples exist of prisoners who have been paroled for good behavior after serving long sentences that were supposed to be for life, but then who have gone on to kill again.

For these reasons and others, Chatfield says, “I think that people need to understand: It’s an area that is not subject to simple solutions.”

Dennis N. Balske
Portland attorney Dennis Balske, who began defending capital cases in the 1970s, doesn’t buy the argument that those who oppose capital punishment ignore the victims. On the contrary, he says, the identity of murder victims is one of the principal reasons why the death penalty is unfair.

“The victim is the big factor,” says Balske, who honed his skills working in Alabama for nearly nine years at the Southern Poverty Law Center.

He says studies have shown that if the victim is white, there is a seven times greater likelihood that the defendant will receive a death sentence. This research bolsters his belief that “the life of a white victim is valued much more highly.” The connection between capital punishment and the race of the victim is well-established, he says.

Balske, a native of Cleveland, majored in marketing at Bowling Green State University in Ohio, and was named the outstanding student in that major. While clerking for a litigation firm that handled criminal and civil cases, he first got interested in criminal defense.

Shortly after passing the Ohio bar, he received a call from a law school friend who had a civil practice and who had a client whose son had been arrested for aggravated murder. Balske, the friend and another lawyer with little criminal defense experience agreed to represent the defendant. Balske says the prosecutor in that case was overconfident because he perceived he was facing inadequate defense counsel, but the jury found their client not guilty. The case proved such a heady start that it set Balske on his path, which became a combination of teaching and practicing capital defense law.

“My interest in capital defense started purely as a trial lawyer,” he says. “I was drawn to it just because I thought it was exciting, and I got to be creative and work with good lawyers.” But the more he practiced in the field, the more “it started to shape my views. It made me feel more strongly about it after I saw the human side of it.”

After being invited to try a case for the Southern Poverty Law Center in Montgomery, Ala., Balske was offered and accepted a post there as a staff litigator and later legal director. The center is well known in legal circles, a public interest firm that specializes in capital punishment and class action, civil rights litigation. Most of the center’s clients were black, and its lawyers were “viewed as outsiders” wherever they went throughout the South to try a case.

“People hated you at first, but came to respect you” over time, he says. Not all did, however: “The [Ku Klux] Klan burned our building.”

Nevertheless, Balske calls that period “the most exciting part of my career.” In addition to defending capital cases, he also took on cases such as a successful class action lawsuit representing black Alabama state troopers for discrimination in hiring and promotion. He says founder and chief legal attorney Morris Dees and the other lawyers were good at what they did, and everyone got to do creative work. “It made me a better lawyer,” Balske says. “It was a good experience in difficult circumstances.”

But those years also impressed upon him what he considers the inequities of capital punishment. “It doesn’t pick the worst of the worst,” he contends. Too often the sentence got imposed depending on factors such as whether the prosecutor was using the case to run for an office such as state attorney general; whether the victim was black, gay or otherwise “unpopular”; or whether the defense lawyer in a case was competent, he says.

He has often been retained to be an expert witness in capital cases where the question was whether or not representation met the standard. “That’s the main issue in any post-conviction case: Was the lawyer effective?”

With these and other variables, capital punishment “doesn’t make sense,” says Balske. “You need to devise a system that really does get the worst of the worst. No matter how hard you try, I don’t think it can be done.”

“We’re all human and not perfect. I don’t think you can devise a foolproof system. If you’re talking about taking peoples’ lives, it’d better be fair,” he says.

As an example of how the worst of the worst don’t always receive a death sentence while others with lesser offenses do, he points to much-publicized cases where a serial killer who works out a plea agreement doesn’t even have to stand trial and receives a life sentence, compared to when a guy who goes into a convenience store and shoots someone receives the death sentence.

“I’ve represented a whole lot of people who murdered people. I have to say I don’t know that I’ve met one yet who doesn’t have some good quality, or that I don’t like as a person,” Balske relates. “The reason is, I don’t think people are born as monsters.” Instead, most have been abandoned, abused, are mentally impaired or otherwise have endured “unbelievably bad lives,” and one stage led to another, such as substance abuse, he says. “From a capital lawyer’s perspective, we feel we need to explain why the person did these things.”

Effective defense lawyers are able to “teach that” to a jury, he says: why their client ended up the way he or she did, how it all fits together, and why the client shouldn’t die for the crime committed.

 

ABOUT THE AUTHOR
Cliff Collins is a Portland-area freelance writer and since 1991 has been a frequent contributor to the Bulletin.

© 2012 Cliff Collins


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