Oregon State Bar Bulletin NOVEMBER 2012
One year ago, Gov. John Kitzhaber placed a moratorium on capital punishment for the duration of his time in office. He asked that the 2013 Legislature examine Oregon’s current death penalty and try to find a way to fix what he termed a broken system that is expensive, unworkable and fails to meet the basic standards of justice.
The governor also called for Oregonians “to engage in the long overdue debate that this important issue deserves.” In response to his appeal, earlier this year the Oregon State Bar Bulletin asked four OSB members who have spent much of their careers dealing with the complicated issues surrounding this controversial topic to weigh in on how they see capital punishment, and whether or how Oregon should change the way it deals with serious criminal offenses. Summaries of their views appeared in the June edition.
This month, we resume that discussion, inviting the opinions of five additional OSB members who have years of experience in confronting the subject.
Timothy P. Alexander
Tim Alexander, a senior judge since 2007 and former Washington County Circuit Court judge for 17 years, was used to handling high-profile cases. He had been involved with death penalty cases for more than 40 years, acting at various times as a prosecutor, defense attorney, appellate lawyer and trial judge.
This past summer, he received his most recent prominent case: The Oregon Supreme Court assigned Alexander to rule on the declaratory judgment action filed by convicted murderer Gary Haugen against Kitzhaber to reject the governor’s attempt to block Haugen’s death sentence. Alexander’s Aug. 3 ruling garnered headlines: He determined that the inmate had the right to reject the governor’s reprieve, and “that absent (Haugen’s) acceptance, a reprieve is ineffective.” The Oregon Supreme Court has since agreed to hear an appeal from the governor and has scheduled oral arguments for March 14, 2013.
Citing part of Alexander’s ruling in which he stated that he agreed with many of the concerns Kitzhaber expressed, and shared his hope that the Legislature will modify and improve laws regarding sentencing for aggravated murder, an editorial in The Oregonian concluded that the judge is “no fan” of capital punishment.
But Alexander told the Bulletin that such an assessment was too simplistic and superficial. He contacted the magazine immediately after the June article appeared, saying he would like to share his perspective on the topic, because he said he didn’t think anyone else in Oregon had served in as many different roles in relation to the subject as he had.
Alexander added that after four decades of dealing with death penalty litigation, his views had changed markedly. He wanted to communicate to the bar, the Legislature and the citizens of the state that he believed Oregon should abolish the death penalty.
A little more than three weeks after speaking with the Bulletin, Alexander, 65, passed away unexpectedly on Sept. 9. (His obituary appeared in the October 2012 issue of the Bulletin and can be found online at www.osbar.org/publications/bulletin/12oct/barpeople.html#obits.) Because he had been so adamant about wanting to voice his position on this topic, the Bulletin felt that allowing him to express his opinions posthumously would be what he would want. His family agreed.
Alexander was born and raised in Houston. He received his bachelor’s degree from Vanderbilt University and law degree from the School of Law at the University of Texas at Austin.
“I’d been involved in debate in school, and I wanted to be a trial lawyer,” he explained. He quickly gained lots of trial experience working in the Harris County district attorney’s office in Houston. In his four years there, he prosecuted four egregious capital cases. “I think I didn’t have an opinion when I started” practicing law concerning his position on the death penalty, he said. “I saw the need for it there in the DA’s office, with such terrible cases.”
Alexander and his wife didn’t want to raise a family in Texas, so they chose to move to Oregon in 1975. Then-District Attorney Harl Haas in Multnomah County hired him and, because of Alexander’s experience with major trials, assigned him to work on difficult cases, including many murder cases, at a time when Oregon did not allow capital punishment. Alexander said not having the death penalty option “certainly reduces your plea bargaining, but made trials less complicated or difficult.”
After eight years as a prosecutor, he entered private practice. Alexander had been the only private attorney who became part of an informal committee of legislators, prosecutors and private citizens with an interest in reinstating the death penalty. The group formed in 1984 in response to some serious crimes that had been committed in Oregon, and members drafted what would become a successful initiative that passed that year and, although altered several times since, represents Oregon’s current death penalty statute.
He said his influence is one reason Oregon’s statute follows Texas’ model: The U.S. Supreme Court had affirmed Texas’ law, and the Oregon committee wanted to “pass something that would stay in place,” he noted.
“I was one of a limited number of attorneys qualified under the new system of indigent defense to be appointed to defend death penalty cases,” Alexander said. Over the next 11 years, he defended more than a dozen people facing the death penalty. About half of those cases went to trial. Only one client received a death sentence, and that was later set aside on appeal. “I worked as hard to defend on these cases as I did as a prosecutor, with a similar success ratio.”
He handled a direct appeal to the Oregon Supreme Court of a death sentence from Marion County, and after being appointed to the circuit court in 1990, he continued to be involved in death penalty cases, presiding over jury trials and resolving cases by plea agreement. He worked on a wide variety of other homicide cases, including Oregon’s first murder-by-abuse case.
Alexander observed that he “had the dubious honor of fulfilling every role that an attorney can perform in this type of case, and I have some strong opinions on this subject. I think, looking back 25 years and more, the system is not effective here. We don’t have the death penalty. We spend huge amounts of money (and get) the negative effect of these trials. In Texas and Florida, they do it. We don’t.”
The reason, he said, is “primarily the inability of the courts to come to a conclusion, and the appeals allowed.” In Texas, the Court of Criminal Appeals is the last resort at the state level. “The attitude by the (Oregon) courts is different. We could do it if we wanted to, but we don’t, obviously.”
Because he didn’t see that changing, Alexander’s stance at the time of his death was that serving in prison for life is a “significant enough penalty that we do not need to go through these steps.” If a jury imposed life without parole, it would simplify things for everyone, would save “extraordinary sums of tax dollars that could be better used for other purposes,” and would be an “effective way to handle even the most serious murder cases,” he contended.
Alexander noted that the statute has been changed repeatedly by the Legislature. “If you look at the very last section of the statute, you can see the number of times the law has been modified,” he said. “Part of the problem now is the complexity of the law and the difficulty of following it for less-experienced attorneys and judges. A fairly simple concept has become a micromanaged procedure.”
However, if the state keeps the death penalty statute intact, Alexander added, “We need (to have) — some place in the process — proportionality review.” Without that, we have different standards being applied from one county to another, which can result in the death penalty in some cases and not others, for the same offense.
“The Oregon Supreme Court has refused to take on that role,” he said. “Somebody needs to make that call, needs to have the last call.”
Janet McLennan was a key player in the successful 1964 referendum that abolished the death penalty in Oregon. At the time, the statute allowing capital punishment had been in place for 44 years. The ’64 ban would remain intact for 14 years afterward.
McLennan, who served as executive secretary of the Oregon Council to Abolish the Death Penalty, was an interested, politically active citizen, not a lawyer, in 1964. She went on to pass the bar in 1972 after graduating from what is now called Lewis & Clark Law School.
A native of Tacoma, Wash., she earned a degree in English with honors from the University of Oregon. McLennan became active in civic life and in the Democratic Party, while raising a growing family. She and her husband, Portland lawyer Bill McLennan, began to socialize with a group of attorneys, many of whom were active in the American Civil Liberties Union. In 1962, this group of “young Turks,” as she describes it, coalesced to oppose a statewide initiative to apportion the state Senate based on geography rather than population. She served as executive secretary of the opposition campaign, which won at the polls. “That whetted my appetite,” she says. The next year, state Sen. Don Willner, D-Portland, and Rep. Bob Packwood, R-Portland, co-sponsored a constitutional amendment to ban the death penalty in Oregon. After the Legislature referred it to the voters, McLennan headed the campaign, leading fundraising and strategy.
“There was strong support for abolition at that time,” she explains. “It was a different world. There was a sense of unanimity.” The extent this was so is unimaginable today: Substantially all officeholders from both parties were heavily in support, all but one daily newspaper in Oregon was in favor, lawyers across the state contributed money, and only one district attorney was willing to debate publicly against the issue, according to McLennan.
An earlier referendum to ban the death penalty, in 1958, had lost narrowly, and her group determined that the campaign for it had “not been hard-hitting enough,” she says. A professor at Reed College performed a poll that helped the 1964 campaign.
“It identified the ambivalence many people have about the death penalty,” McLennan says. “Many people seem to feel it’s acceptable if someone else is the judge, jury and executioner, but they are uncomfortable with the reality that they as a member of society are responsible.”
With that in mind, the campaign bought billboards and bus fronts in bold black, white and red, reading, “YOU are the executioner!”
The abolition campaign won by a 60 percent vote, but she modestly attributes this less to brilliant strategy than to “the temper of the times. There was no organized opposition.”
Following that victory, and after graduating from law school and passing the bar, McLennan served briefly as deputy state treasurer and then worked for the Legislature as counsel to two environmental committees. She served as natural resources assistant to Gov. Bob Straub and then spent a decade in legal and other posts at the Bonneville Power Administration. In 2007, she was inducted into the World Forestry Center’s Leadership Hall of Fame, both for her work on forest policy as chair of the Oregon Board of Forestry and for spearheading building of the Tillamook Forest Center.
McLennan had been opposed to capital punishment before 1964, although she can’t recall exactly when she first reached her position on it. “I didn’t feel myself on any kind of a mission. My feelings were more focused on governance and what are appropriate ways for the body politic to behave,” she says.
“I oppose the death penalty because I think that it is a barbaric way for our society to inflict punishment. In addition, given the appropriate appellate opportunities, it is inordinately costly, and further has been and may in the future be applied to innocent defendants, and unfairly be applied to minorities and uniquely disadvantaged defendants as compared with the majority population.
“In thinking about the death penalty over the years, and having experienced that campaign, my sense is that there are about 25 percent who are unalterably opposed to the death penalty, and about the same number unalterably for it; and that in the middle there is a group that can be influenced and is somewhat ambivalent. And that gives rise to Oregon’s history of moving back and forth, and America’s, as well, more than other countries.”
McLennan takes issue with some of the arguments proponents advance. For one, the term used for capital punishment as “the ultimate penalty — I’m not sure it’s the worst penalty; to me, that would be life in prison. She says prosecutors who state that they represent victims should remember that, instead, “prosecutors are elected to represent society.”
She also doesn’t buy the argument that Oregon’s application of the death penalty isn’t vulnerable to racial prejudice. She says that even though race may not have played a part in sentencing in our state’s past history, she isn’t convinced it can’t in the future.
“If the victim is white and the defendant is black or brown, the defendant is much less likely to be exonerated or to receive a lighter sentence.”
Norman W. Frink
Norm Frink, who has prosecuted felonies in the Multnomah County district attorney’s office since 1977, thinks that if Oregon is going to conduct a review of sentencing, it should not look at what has gone wrong, but instead recognize what’s gone right.
He says that is where the real story is. If any other government program could claim, over the last 18 years or so, as major an improvement as in Multnomah County’s criminal justice system, everyone would realize that such a program has been “startlingly successful,” he says.
Frink emphasizes that all of the views he expresses for this article are his own and do not reflect the positions of the Multnomah County district attorney’s office.
He notes that in 1987, the county experienced 90 homicides annually; that number now is 20 or 30 a year. The change has happened for several reasons, but partly due to more appropriate sentencing and, “in part, because many of the violent criminals are locked up longer or on death row,” he says. Stricter sentencing has worked “in punishing and deterring crime,” he says.
Having the death penalty in place has contributed to this improvement, Frink asserts. When he first began practicing in Portland, the laws for serious offenses were lax and badly skewed toward criminal defendants, he says. For instance, people convicted of forcible rape were serving only three or four years, and people convicted of murder sometimes were serving as little as seven to nine years.
“The situation is so vastly improved over what it was 30 years ago,” says Frink. “It was just shocking to me, the situation in the late ’70s. The laws badly needed changing. I ended up becoming involved in crime victims’ groups in working to change the laws. We’ve had a lot of success.”
When Oregon’s 1984 ballot measure passed to bring back capital punishment, a provision of that included enacting a mandatory minimum sentence of 30 years, subject to parole after 20 years if the person had not received the death penalty. With that, influential people in the legal community and the media who had opposed the death penalty and life sentences without parole suddenly changed their minds, he says, and supported life or 30-year sentences in order to avoid the alternative of death sentences.
“It allowed more strict sentencing,” he says. “The only reason they supported it was because they wanted it as an alternative to the death penalty. There has been a decrease in the death penalty with the advent of lifetime conviction.”
Frink says if the governor really thinks there is a problem, he should sponsor a bill to limit post-conviction review. Frink doesn’t think that will happen, because he believes Kitzhaber, and many others who oppose capital punishment, make no attempt to limit appeals because they don’t want to see the death penalty carried out.
Because public surveys show most Oregonians support capital punishment, those who wish to abolish it “have no interest” in its being carried out in a timely manner, and there is no political will to overturn restrictions on appeal, Frink says. “People who have so much influence in the legal community and the media have been able to pick at it.” Over several decades, they have created numerous “procedural maneuvers” to slow up the process. Frink says he doesn’t oppose post-conviction reviews, but the way they are done now amounts to “stalling tactics.”
A native of Portland, Frink graduated from Lake Forest College in Illinois and earned a J.D. degree with honors from Washington and Lee University School of Law in Virginia. He had worked as a summer intern in a civil insurance defense firm, and “I could tell that wasn’t probably what I wanted to do,” he says. His first job offer after obtaining his law degree was at the Multnomah County DA’s office, which he accepted. “I’m very glad I did, because in retrospect I don’t know if I would be happy in private practice. It worked out very well.”
As he began working in Portland, his views about the need for capital punishment evolved. “I realized the problems,” he says. “People forget today, because the situation has changed for the better.”
Since 1982, he has served as chief deputy for the circuit court, and directs prosecution of all felony trial units. He personally prosecutes major homicides, felonies and federal drug cases.
Frink, who has served on the American Bar Association’s Standards Task Force on Government Access to Records, says the ABA is “noted” for opposing capital punishment, and he “would be very surprised if at least a plurality or a majority” of Oregon lawyers don’t oppose capital punishment, too.
But Frink says that if the death penalty were taken away again, he predicts opponents of capital punishment “will go after” the other two options: lifetime sentences and 30-year minimums, and he fears Portland could return to seeing people convicted of murder released after a decade of serving time.
Kathleen M. Correll
Criminal defense attorney Kathleen Correll concurs with prosecutors who say the victims get forgotten in capital punishment cases.
She says she wishes the state “would eliminate the death penalty and put money into victims’ assistance. After the case is over, victims are forgotten. That is a horrible situation. Those people are hurting, and they don’t get attention from anybody.”
This is not because prosecutors aren’t concerned, but rather is due solely to a lack of resources, says Correll, who has a private practice in Portland. “They have to move on to the next” case.
The number of years and huge amounts of money now spent on putting prisoners to death are “perverse,” she asserts. “I don’t think it makes us a better society for us to do that. Better to take that money and put it into a victims’ fund.”
Correll, who was born and raised in the Philadelphia area, completed Oberlin College with a political science degree. She chose to pursue a career in law because she had a desire for public service. She entered Northeastern University School of Law in Boston specifically because of its cooperative legal education (“co-op”) program, which integrates four quarters of full-time employment into its curriculum. After completing their first academic year of law school, Northeastern law students alternate working full-time in legal settings with being full-time students.
Correll initially thought she might be inclined toward environmental law, but “I was not interested at all in criminal law,” she remembers. Her opinion altered dramatically once she selected a three-month co-op job at the Southern Center for Human Rights in Atlanta.
The center is a nonprofit law firm dedicated to defending capital trial and post-conviction cases for disadvantaged people throughout the South. Though she considers herself a lapsed Catholic and religious skeptic, Correll says that observing the selfless dedication of the lawyers there to defend the despised was “the most truly Christian experience I’ve ever had in my life.”
“That co-op in Atlanta really changed my whole professional life,” she says. It made her realize that, even though defending capital cases is grueling, expensive and time-consuming, it also is “the most interesting, rewarding work I can think of doing as a lawyer.”
Another of her co-ops was in Portland with defense attorneys Lawrence Matasar and Janet Lee Hoffman, who at that time were in the same firm. Correll fell in love with Portland and decided to move here once she finished at Northeastern. She worked with Metropolitan Public Defender, then later for the federal public defender’s office, before opening a private practice in the late 1990s.
In 2006, Correll co-authored the OSB’s Criminal Law publication’s Chapter 27, “The Death Penalty,” with Robert B. Rocklin, who was then with the Court of Appeals. She is working on a revised version of that chapter this year, to be co-authored with Kathleen Cegla of the Department of Justice’s Appellate Division.
Correll has handled a number of capital cases, and she finds them highly challenging. A lawyer has to work with many “damaged people,” who often have mental health problems and are distrustful.
“How I see my job is to tell the story of how my client got to be the messed-up person he (became),” she says. Juries don’t like the client and hate what he did, but a defense attorney must help them see that the client has been physically, sometimes also sexually, abused in upbringings so filled with “depravities we can’t even imagine,” she says.
“If they understand that, they find some way to find mercy. In my mind, mercy is not extended to someone who deserves it, but to someone who doesn’t deserve it. That’s what those clients teach us as a society: how to exercise mercy.”
To do a really good, thorough job defending that person is exceptionally hard, she observes. The lawyer often must seek out family members who may be very dysfunctional themselves, and preparing a full case in defense takes a lot of money and effort. That’s one reason why Correll takes exception to prosecutors who state that all Oregon death penalty defendants receive first-class representation.
A few defendants receive very good representation, and a few receive “horrible” representation, while most get “something in the middle,” she believes.
Eight convicts currently are on death row in Washington state, and a death sentence has been authorized in about five additional cases. By contrast, Oregon has 30 to 40 potential death penalty cases pending at any one time.
As a result of Oregon’s broad definition of aggravated murder, we have more aggravated murder charges filed here than in Washington, despite the fact that Washington has more than twice as many murders, she points out. And because every aggravated murder case filed in Oregon is a potential death penalty case, we need more death penalty-qualified lawyers. Given the complexity of these cases, if enough people are charged at one time, the number of cases will outstrip the number of highly qualified lawyers.
“It’s very expensive, and there aren’t enough attorneys,” says Correll. “That’s where you get inadequate representation.”
She recognizes that many of her clients are dangerous and should be incarcerated for life. But she considers that state-sponsored execution is “when society behaves as the worst among us” do. “I feel proud to be tasked to be standing next to the most hated person and treat him as a human being. I feel good about being tasked with that job, just as prosecutors feel about theirs.”
Correll admits that her practice is wearing and has taken its toll on her. She isn’t sure she can continue pursuing it for her entire career. But “I’m hoping to do this for a while longer,” she says. “I think it’s worthwhile work.”
She supports the governor’s call for discussing and examining the system Oregon has in place now. Correll concludes, “We tried to make the death penalty fairly and equally administered in this country, and we’ve yet to achieve that.”
W. Michael Gillette
In 1986, when W. Michael Gillette, then the presiding judge on the Oregon Court of Appeals, was appointed to the Oregon Supreme Court, the first question posed to him by a reporter at the announcement ceremony was, “What is your position on the death penalty?”
The query caught Gillette somewhat off-guard. He told the reporter he had not given the matter much thought, but that because the people of the state had voted two years earlier to make capital punishment legal in Oregon, he expected to carry it out.
From that point on, during his quarter century as a justice, he encountered the topic numerous times, often personally being responsible for administering the processing of appeals, because the Oregon Supreme Court is the first level of appeal for all capital cases. “This is one of the things we’re doing right,” he says. “I don’t think the appeal should go through another court” beforehand. However, that court doesn’t make the final decision, he explains. Instead, the court decides whether the trial was properly conducted and whether the sentencing phase was properly conducted. If the justices decide both were, those two points no longer can be considered in question, he says.
What can be questioned, though, is whether the defendant’s trial attorney had been “up to the task,” says Gillette, noting that questioning the adequacy of representation is “done every time,” at least during his tenure.
Gillette, who returned to private practice last year after retiring from the bench and is a shareholder with Schwabe, Williamson & Wyatt, emphasized that, for the opinions he expresses for this article, he is “speaking as a private citizen, though one with a particularly useful vantage point.”
Before serving on the Oregon Supreme Court, Gillette spent nine years as a judge for the Oregon Court of Appeals, six of those as a presiding judge. Earlier, he had been solicitor general for the state, chief trial counsel for the Oregon Department of Justice and an instructor in constitutional and criminal law at Portland State University.
He says he had not been in favor of the death penalty ballot measure in 1984. “I voted no,” he says. “I thought it was a bad idea.” But his objections were not for moral or constitutional reasons, but instead were due to the way capital punishment is carried out — or rather, how it is not.
“The administration of it bothers me a great deal,” says Gillette. “The thing that struck me the most strongly is, (the process) is never done.” Appeals drag on for years, and convicts can occupy death row for 10 or 15 years, he says. Considering the serious nature of the crimes that lead to a death sentence, letting appeals drag on endlessly “hardly represents justice,” especially compared with those convicted of lesser crimes.
“The simple fact is, no one gets executed quickly after they’ve been sentenced. Given the importance of it, it should be done with reasonable expedition. And it’s not. It’s important that there be one dispositive process, confining death penalty cases to one trial, one appeal and one post-conviction review.”
The criteria for imposing a death sentence seem too arbitrary, he contends. In cases of similar crimes, one defendant might be subject to a death sentence while another would not. For instance, the definition of what constitutes “escape status” — if, say a convict commits murder during an escape — varies from state to state, he says.
Gillette, who grew up in Milton-Freewater, was a prosecutor for four years early in his career. After graduating from Whitman College and Harvard Law School, he worked as an attorney in the firm Rives & Rogers, served for two years as a Multnomah County deputy district attorney, and then served two years as an assistant attorney general for the government of American Samoa.
“I used to make a lot of charging decisions,” he remembers. “There’s an enormous responsibility that falls on prosecutors.” The option of the death penalty adds to that responsibility.
He worries that prosecutors could “give in to public pressure rather than exercise individual decision-making.” He hasn’t observed that happening in Oregon, but it could, he says. “It’s a constant danger.”
The state’s prosecutors are “honorable and take their responsibility seriously,” but some particular case might cause a public hue and cry, and if that were to happen, it could cause a prosecutor to seek the death penalty who otherwise wouldn’t, he says.
Considering that capital punishment has been legal in the state for over 25 years, the delays associated with carrying it out are “shockingly long,” he says. “It needs to be gotten on with, even though it is a system that takes so long.”
One problem, he says, is the challenge of finding enough lawyers to serve as public defenders, both for the trial phase and for post-conviction review. Maybe we should “try to convince major law firms to assist,” he posits.
Gillette says he greatly respects Kitzhaber, but doesn’t understand what factors need to be changed. “I don’t know what the governor perceives to be broken about the system. If he’s got some information about what’s broken, I’d like to know what it is.” If Kitzhaber feels the death penalty is sentenced disproportionately based on some factor such as race, “he should bring forth statistics” supporting that concern.
Gillette recognizes, though, that the issue of capital punishment is a daunting one. “The imponderables are huge and multifactorial. I’ve never heard an argument for or against that I considered outrageous. This is a subject that touches the soul as well as the brain.”
ABOUT THE AUTHOR
Cliff Collins is a Portland-area freelance writer and since 1991 has been a frequent contributor to the Bulletin. Reach him at firstname.lastname@example.org.
© 2012 Cliff Collins