Response of ORCRC Regarding Standing

June 20, 2011 02:31 PM
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IN THE SUPREME COURT OF THE STATE OF OREGON

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: No. S059519 : Trial Court No. 04C46224 : (Marion County Circuit Court) : MEMORANDUM OF LAW -vs.: REGARDING STANDING : GARY HAUGEN, : Defendant-Relator. : CAPITAL CASE--EXPEDITED ________________________________________________________________ INTRODUCTION This is a mandamus proceeding arising from the lower courts decision to sign a death warrant without conducting an adversarial competency hearing, but instead
STATE OF OREGON, Plaintiff-Adverse Party,
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permitting Mr. Haugen to represent himself; ordering counsel to take direction from Mr. Haugen as stand by; and striking the only expert opinion regarding Haugens mental condition. As it stands, even if he is incompetent, Mr. Haugen is scheduled to be executed in less than two months. Despite defense counsels expert and personal opinion that Mr. Haugen is incompetent, his defense counsel have now been rendered powerless to act unless directed by Haugen or ordered by this court. See Response to Courts Standing Inquiry by Attorneys Simrin and Goody. In addition, the State now argues that mandamus cannot be sought on Mr. Haugens behalf unless he consentseven if he is
Page 1 Response of ORCRC Regarding Standing
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incompetent to give or refuse that consent. Nor, can any other party seek review, according to the State, because no one else has the necessary relationship with Mr. Haugen to qualify as next friendif that type of standing exists, a point advanced, but not conceded by the State. Thats some catch that Catch-22.1 Contrary to the States argument that this court is powerless to act even if Mr. Haugen is incompetent, this court has several options. It can permit the Oregon Capital
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Resource Center (ORCRC) to prosecute this mandamus to protect an arguably incompetent capital defendants rights. It can direct that former counsel Simrin and Goody act as next friend in this proceeding. It can remand for a hearing on whether
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ORCRC should be given next friend statusa hearing encompassing ORCRCs relationship with Mr. Haugen, as well as Haugens competence. It can appoint ORCRC to act as amicus. Or, it can exercise its supervisory powers and direct the trial court to
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conduct an adversarial competency hearing.
Heller, Joseph, Catch 22 (There was only one catch and that was Catch-22, which specified that a concern for one's own safety in the face of dangers that were real and immediate was the process of a rational mind. Orr was crazy and could be grounded. All he had to do was ask; and as soon as he did, he would no longer be crazy and would have to fly more missions. Orr would be crazy to fly more missions and sane if he didn't, but if he was sane, he had to fly them. If he flew them, he was crazy and didn't have to; but if he didn't want to, he was sane and had to. Yossarian was moved very deeply by the absolute simplicity of this clause of Catch-22 and let out a respectful whistle.)
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This court should not countenance the execution of an incompetent defendant by reasoning that only that incompetent person has the authority to assert or waive his rights. Instead, this Court should order the lower court to determine Mr. Haugens competency. ADDITIONAL FACTS This court should consider the following facts, in addition to those set forth in the mandamus petition: 1. As the State correctly notes in its response, after the conclusion of the direct
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appeal, the Office of Public Defense Services (OPDS) authorized Andy Simrin to substitute for direct appeal counsel. W. Keith Goody later associated with Mr. Simrin. 2. OPDS is governed by the Public Defense Services Commission (PDSC), an
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independent body. The Chief Justice of this court appoints the seven Commission members. The Commission's primary charge is to establish a public defense system that ensures the provision of public defense services in the most cost efficient manner
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consistent with the Oregon Constitution, the United States Constitution and Oregon and national standards of justice[.] 3. In 2007, OPDS adopted the 2003 ABA Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases. See www.ojd.state.or.us/ osca/opds/Reports/documents/pdscdeathpenaltyreportandplan.pdf. The ABA Guidelines provide the minimal standard of care in the defense of death penalty cases. Attorneys appointed to represent a defendant under a death sentence are both contractually and ethically obligated to meet the performance standards set forth in the Guidelines.
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4.
The Oregon Capital Resource Center was created in 2007, after PDSC held
a public hearing about the need for a resource center in order to assure state-wide compliance with the Guidelines. Matthew Rubenstein was the first director. He presently works as federal capital resource counsel. Mr. Ellis is the second director of ORCRC. 5. ORCRC is funded by OPDS and contracts to provide legal services and
assistance, in close collaboration with the Executive Director of OPDS and staff, in order
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to help OPDS meet their obligations as the responsible agency under the ABA Guidelines to ensure high quality representation in capital cases in Oregon. The Guidelines require the designation of a responsible agency in order to ensure that each
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capital defendant in the jurisdiction receives high quality legal representation. Guideline 3.1 (emphasis added). 6. The Oregon Capital Resource Center Center (ORCRC) serves as a
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resource, advocacy, and training center for attorneys, mitigation specialists, and investigators representing capital clients in pre-trial, trial, and post-conviction death penalty cases. ORCRC was created, in part, to help guarantee compliance with the ABA Guidelines by contractors in capital cases. In keeping with its mandate, ORCRC provides direct representation in capital cases, as well as assistance to attorneys and other members of capital defense teams. 7. In the past, ORCRC has helped OPDS meet these obligations as a
responsible agency by intervening in capital cases in a variety of situations. For

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example, ORCRC appeared and sought next friend status in the Robert Langley appeal (No. S053206) when counsel was medically unable to perform his duties. This court denied ORCRCs request to appear, but granted ORCRCs requested relief (an extension of time) on its own motion. ORCRC has successfully intervened in several trial court post-conviction proceedings where appointed counsel was not providing competent representation according to the ABA Guidelines. For example, ORCRC sought removal of counsel and appointment of new counsel in the Robert Acremant post-conviction
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proceeding, a capital case where replacement counsel recently obtained a life settlement. See Marion County Case No. 05C20069. In the post-conviction case of Jesse Compton, ORCRC intervened to seek removal of appointed counsel because counsel was
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performing deficiently. The post-conviction trial court granted the motion. See Marion County Case No. 03C10543. In short, ORCRC has historically sought to intervene or appear as next friend in extraordinary cases in order to protect the rights of death
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sentenced defendants and to insure compliance with the ABA Guidelines as adopted by OPDS. 8. In this case, at the May 18th hearing, over defense counsels objection and
despite the fact that counsel presented evidence that Mr. Haugen harbored delusional beliefs that rendered him incompetent, Judge Guimond discharged appointed counsel, and directed them to serve as stand-by counsel, requiring them to take direction from Mr. Haugen and refusing to permit them to speak.
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9.
Prior to the hearing, defense counsel consulted extensively with Mr. Ellis,
the director of ORCRC. As part of that confidential consultation, Mr. Ellis was involved in communications with Dr. Muriel Lezak, the neuropsychologist who evaluated Mr. Haugen just before the death warrant hearing and who found Haugen incompetent to be executed. Mr. Ellis also attended the death warrant hearing. 10. After Mr. Simrin and Mr. Goody were ordered to serve as stand by counsel
and precluded from presenting evidence of Mr. Haugens incompetency, OPDS

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authorized ORCRC to file the instant mandamus. 11. ORCRC has not instituted this mandamus to advance any political
opposition to the penalty of death.

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12.
Although in his current mental condition Mr. Haugen undoubtedly
disagrees, Mr. Ellis and ORCRC are acting in Mr. Haugens best interests to preserve his legal rights. If an unbiased judge finds Mr. Haugen competent after a full and fair
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adversarial hearing, ORCRC would concede that it does not have standing to continue to assert Mr. Haugens rights. ` 13. ORCRC is also willing to present evidence in support of next friend
standing by former counsel Simrin and Goody, if so directed by this court. 14. Finally, if this court grants next friend status to former counsel or decides
to exercise its supervisory power, ORCRC seeks to appear as amicus in support.
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MEMORANDUM OF LAW Introduction The State does not respond to the central claim presented in this mandamus. This mandamus argues that the trial court erred by removing counsel in order to conduct a non-adversarial competency hearing. This mandamus petition seeks only a hearing on competency that is full and fair. The hearing conducted without counsel and without consideration of the only expert opinion was procedurally defective and unreliable in
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violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, as well as the equivalent provisions of the state constitution. The trial court's May 18, 2011, rulings also ensured that no party would appear
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before it to advocate: (1) that the defendant is incompetent; and (2) the need for procedures governing requests for execution which comport with due process of law and the Eighth Amendments requirement of heightened reliability in capital cases. See
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Woodson v. North Carolina, 428 U.S. 280, 305 (1976) ("Because of the qualitative difference [between death and any other sentence], there is a corresponding difference in the need for reliability in" death penalty cases); accord Gardner v. Florida, 430 U.S. 349, 357-58 (1977); Lockett v. Ohio, 438 U.S. 586, 604 (1978); Beck v. Alabama, 447 U.S. 625, 637-38 (1980); Eddings v. Oklahoma, 455 U.S. 104, 118 (1982) (O'Connor, J., concurring). Furthermore, the trial court's May 18th rulings ensured that no party would appear before it with an interest in arguing that before courts allow death-row inmates
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voluntarily to be executed they must: (1) order competency evaluations, convene adversarial competency hearings, and make reviewable findings that such inmates are competent to volunteer for execution and that their waivers are knowing, voluntary and intelligent; (2) hear all relevant evidence as to defendant's competency and whether their waivers were knowing, voluntary and intelligent; (3) explore and make reviewable findings after an adversarial hearing as to whether the defendants are competent and their waivers are knowing, voluntary and intelligent; and (4) explore and make reviewable
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findings after an adversarial hearing as to whether the defendants waivers are merely suicidal wishes2 stemming from depression and despair, rather than the results of a belief in the justness of their executions.
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Apparently, it does not trouble the State that an execution is about to occur of an arguably incompetent man because the State argues only that arguably incompetent man can authorize this courts review of whatever errors occurred below. And, if that
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arguably incompetent man does not authorize review, then this court cannot act at all. ORCRC respectfully disagrees. This Court Has Supervisory Authority This court can exercise its supervisory power and direct the lower court to conduct an adversarial competency hearing.
Although Oregon recognizes a right to die for certain individuals who suffer from terminal illnesses, no one argues that the law applies to Mr. Haugen. ORS 127.800-.995. If Mr. Haugen made a request under the law for medication to take his own life, he would certainly be refused. ORS 127.805.
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This Court is the highest judicial tribunal in the state. ORS 1.002. The Chief Justice shall exercise administrative authority and supervision over the courts of this state consistent with applicable provisions of law and the Oregon Rules of Civil Procedure. Id. In particular, the legislature granted the Chief Justice the authority to [t]ake any other action appropriate to the exercise of the powers specified in this section and other law, and appropriate to the exercise of administrative authority and supervision by the Chief Justice over the courts of this state. ORS 1.002(1)(i). In addition, ORS 1.025 specifically references the writ of mandamus as a means of this court enforcing a lower courts duty to follow the law. Consequently, this court is empowered to issue a writ of mandamus on its own motion and pursuant to ORS 1.001 requiring the Marion County Circuit Court to conduct an adversarial competency hearing. In fact, ORS 1.160 provides: When jurisdiction is, by the constitution or by statute, conferred on a court or judicial officer, all the means to carry it into effect are also given; and in the exercise of the jurisdiction, if the course of proceeding is not specifically pointed out by the procedural statutes, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of the procedural statutes. As a result, this court can exercise its supervisory powers to direct the lower court to conduct an adversarial competency hearing.
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ORCRC Has the Authority to File a Mandamus to Protect an Incompetent Defendants Rights ORCRC has previously acted in other capital cases to protect capital defendants rights where counsel is unable or unwilling to do so. As the Memorandum of Law
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accompanying the mandamus petition provides, caselaw recognizes the right of counsel to seek review, even over the defendants personal objection, when the defendants competency is in issue and has not been the subject of an adversarial hearing. See Petition, p. 13-16. In addition to the cases cited therein, Mason ex rel. Marson v. Vasquez, 5 F.3d 1220 (9th Cir. 1993), further demonstrates the failings of the trial court in this case. In Mason, the Ninth Circuit recognized that according to Rees v. Peyton, 384 U.S. 312, 314
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(1966), it had both the authority and obligation to ensure that any waiver of review by the capital defendant was competently made. The Ninth Circuit favorably quoted Rees: Whether or not Rees shall be allowed in these circumstances to withdraw his certiorari petition is a question which it is ultimately the responsibility of this Court to determine, in the resolution of which Rees' mental competence is of prime importance. We have therefore determined that, in aid of the proper exercise of this Court's certiorari jurisdiction, the Federal District Court in which this proceeding commenced should upon due notice to the State and all other interested parties make a judicial determination as to Rees' mental competence and render a report on the matter to us.... 384 U.S. at 313-14. The Ninth Circuit then reviewed the record in the case before it and
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found that defendants competence was found after a full and fair hearing: Adequate time for preparation was afforded. A psychiatrist was appointed by the court. The court noted: In order to ensure impartiality the court elected to appoint a psychiatrist other than one recommended by one of the parties. All interested parties were able to present all the relevant evidence. Mason was afforded counsel of his choice to represent his point of view and he, Marson [former counsel who was permitted to present the case that Mason was incompetent], and the State's Attorney were each given full opportunity to examine the witnesses. The district judge thoroughly and carefully questioned Mason himself. 5. F.3d at 1224. The case at bar presents a much different record.
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ORCRC respectfully suggests that this court direct the trial court to conduct a hearing similar to the hearing reviewed in Mason. This Court Can Order a Hearing to Determine Whether to Permit ORCRC to Appear as Next Friend or Can Designate Next Friend Status for Former Counsel The States response acknowledges the possibility of next friend standing, but argues that ORCRC does not have a sufficient relationship with Mr. Haugen in order to assert that status. Implicit in the States argument is the concession that former counsel possesses such a relationship. Consequently, this court can and should direct former counsel to appear as next friend.
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In addition or alternatively, if this court does not remove former counsel from their current legal limbo, this court can and should direct an unbiased judge to conduct a hearing in order to determine whether ORCRC should be given next friend standing.
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Next friend standing requires a showing of a relationship and incompetence. Both of those elements are contested in this case. The appropriate manner of resolving the disputed facts is through an evidentiary hearing.
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Where a notice of appeal has been filed without by a party without standing, caselaw holds that the notice is not void, but voidable. Marlow v. Rollins Cotton Co. (In re Julien Co.), 146 F.3d 420, 423 (6th Cir. 1998) (specifically noting the distinction between a valid notice and a valid appeal). In order to void the review instituted in this case, there must first be a factual determination of whether ORCRC or any other party has standing.
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Standing is a mixed issue of fact and law. When there are disputed factual issues related to standing, those disputes are resolved through an evidentiary hearing. Duddles v. City Council of West Linn, 21 Or.App. 310, 535 P.2d 583 (1975) (a circuit court evidentiary hearing on the facts relevant to standing should be conducted where disputed facts relevant to standing). See also Bischoff v. Osceola County, 222 F.3d 874, 879 (11th Cir. 2000) (Our Circuit has suggested, and other circuits have made clear, that a district court cannot decide disputed factual questions or make findings of credibility essential to
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the question of standing on the paper record alone but must hold an evidentiary hearing.); United States v.1998 BMW I Convertible Vin No. WBABJ8324WEM20855, 235 F.3d 397, 400 (8th Cir.2000) (vacating dismissal and requiring district court to hold
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evidentiary hearing on issue of standing where there were disputed factual issues); Munoz-Mendoza v. Pierce, 711 F.2d 421, 425 (1st Cir.1983) (The court must resolve any genuine disputed factual issue concerning standing.).
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Under federal common law principles, next friend status requires a showing of: (1) a relationship with the party in interest and dedication to his best interests; and (2) incompetence. See Whitmore v. Arkansas, 495 U.S. 149, 163-164 (1990) (in seeking to obtain "next friend" status under federal common law, a party has two burdens: a next friend must provide an adequate explanationsuch as ... mental incompetencewhy the real party in interest cannot appear on his own behalf to prosecute the action.... Second, the next friend must be truly dedicated to the best interests of the person on whose behalf he seek to litigate....) (internal punctuation removed).
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As the State concedes, numerous courts have held that a defendants lawyers and former lawyers, particularly if they have had a significant relationship with him, satisfy Whitmore's second prong (i.e., the next friend must have a significant relationship to the defendant and be dedicated to his best interests). See, e.g., Padilla v. Rumsfeld, 352 F.3d 695 (2nd Cir. 2003) (attorney properly could act as inmate's next friend and file federal habeas petition), reversed on other grounds sub nom., Rumsfeld v. Padilla, 124 S.Ct. 271 (2004); Ford v. Haley, 195 F.3d 603, 624 (11th Cir. 1999) (attorney with
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history of representing client has next friend standing if client is found to be incompetent); Lenhard v. Wolff, 443 U.S. 1306, 1310 (1979) (Rehnquist, Circuit Justice) (it strikes me that from a purely technical standpoint a public defender may appear as
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next friend with as much justification as the mother of [the defendant]); Dennis v. Budge, 378 F.3d 880, 887 (9th Cir. 2004) (federal district court found former attorney who filed next friend petition for death-row volunteer is dedicated to Dennis best
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interests and has a significant relationship with him); Miller ex rel. Jones v. Stewart, 231 F.3d 1248, 1251, 1252 (9th Cir. 2000) (stating that [n]o one questions [the defendant's former public defender's] dedication or significant relationship with the defendant; remanding case for evidentiary hearing at which the former attorney could attempt to demonstrate defendant's incompetence); In re Cockrum, 867 F. Supp. 494, 495 (E.D. Texas 1994) (recognizing that prisoner's former attorney had a significant relationship with the prisoner for purposes of next friend standing because attorney had acted on behalf of the prisoner in prior legal proceedings); Schornhorst ex rel. Fleenor v.
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Anderson, 77 F. Supp. 2d 944 (S.D. Ind. 1999) (same); State v. Martini, 677 A.2d 1106, 1108 (N.J. 1996) (volunteer defendant's former attorneys, state Office of the Public Defender, permitted to remain in litigation despite trial court's appointment of independent counsel to represent volunteer); In re Heidnik, 720 A.2d 1016, 185-186 (Pa. 1998) (holding that public interest defense attorneys who had never been retained or appointed to represent petitioner had standing to challenge his competence; [t]he mere fact that the matter of the condemned prisoner's competence is of constitutional
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dimension suggests that any limitations based on degree of interest or relationship are unworkable. We are simply unwilling to hold that this important issue might escape review because the condemned prisoner lacks family or friends sufficiently close to him
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who are able and willing to raise it); Franz v. Lockhart, 700 F. Supp. 1005, 1011 n.2 (E.D. Ark. 1988) (it is clearly inconceivable that any defendant who would otherwise be found incompetent ..., would be permitted to be killed by the State for the sole reason that
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3
the parties seeking to assert [his] rights were not closely enough related to him to meet the common law requirements for next friend status"). Compare Phoebe G. v. Solnit, et al., 252 Conn. 68 (1999) (next friend has standing to bring action on behalf of conserved person rather than conservators if exceptional circumstances exist, including conservators unwillingness to institute action).3
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Examples abound of defendants who at one point decide to end further challenges to their death sentences, but later could not bring themselves to follow through. See, e.g., Pike v. State, 2004 Tenn. Crim. App. LEXIS 635 (Tenn. 2004) (death-row inmate changed her mind about volunteering); Smith by and through Mo. Public Defender Comm'n v. Armontrout, 812 F.2d 1050, 1052 (8th Cir. 1987) (defendant changed his mind about the desirability of a petition for post-conviction relief eight times between the time of his conviction and 1987); Lonchar v. Thomas,
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The appointment or designation of a next friend is critical to the integrity and reliability of the death penalty in volunteer cases where there has been no reliable competency finding. See ORourke v. Endell, 153 F.3d 560, 565, 567-68, 569 (8th Cir. 1998) (We conclude that, without ... a waiver [by the defendant of his right to proceed] and without the appointment of a next friend to advocate the position that the prisoner is incompetent, a competency hearing such as the one at issue here is not full and fair, nor does it comport with due process.... Just as no one at the hearing took the position that
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ORourke was incompetent, so no one advocated that his waiver was less than knowing and voluntary; relying in part on petitioners former counsel's unsuccessful attempt in state court to be appointed to advocate the position that ORourke was incompetent to
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waive that appeal, the court rules: We believe ORourke should have been represented by an attorney, either a counsel of record or a next friend, to argue that he lacked the capacity to waive his appeal), citing Whitmore v. Arkansas, 495 U.S. at 165; Miller v.
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Stewart, 231 F.3d 1248 (9th Cir. 2000) (granting stay of volunteer's execution and remanding for an evidentiary hearing at which attorney with the Pima County Public Defenders Office is given an opportunity to demonstrate that volunteer is incompetent under the Rees standard); Hays v. Murphy, 663 F.2d 1004 (19th Cir. 1981) (approving
58 F.3d 590, 591 (11th Cir. 1995) (defendant changed his mind), vacated and remanded, 517 U.S. 314 (1996); Fairchild v. Norris, 869 F. Supp. 672, 679-80 (E.D. Ark. 1993) (after resisting attacks on validity of sentence for 10 years, defendant changes mind 2 and 1/2 days before scheduled execution); Potts v. Zant, 638 F.2d 727, 730-34 (5th Cir. 1981) (remanding for voluntariness hearing after defendant changed mind three times); O'Rourke v. State, 778 S.W.2d 938, 939-40 (Ark. 1989) (Glaze, J., dissenting) (listing examples of defendants who changed minds about abandoning challenges to death penalty). Mr. Haugen has already changed his mind about his desire to be executed since the conclusion of his direct appeal.
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procedures used by district court, which gave an opportunity for a full hearing and the presentation of evidence available, but reversing finding of competency because the examinations and evaluations of [the volunteer] were insufficient for a determination on the critical question of competency); Slawson v. State, 796 So. 2d 491, 502 (Fla. 2001) (circuit court followed correct procedures in determining that volunteer was competent; the reports and conclusions of [mental health witnesses] have been properly subjected to adversarial testing in an evidentiary hearing). See also Dennis v. Budge, 378 F.3d 880,
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904 (9th Cir. 2004) (Berzon, concurring) (pointing out that state courts finding of volunteers competency should not be presumed correct because, inter alia, the opinion of the only, court-appointed expert was not subject to adversarial presentation, but
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joining majority because the district court did hold an evidentiary hearing [and] that hearing was adversary with respect to [the petitioners] competence). The United States Supreme Court has often stressed the importance of the crucible
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of meaningful adversarial testing. Moran v. Burdine, 475 U.S. 412, 430 (1986). See also Ford v. Wainwright, supra; Gardner v. Florida, 430 U.S. 349, 360, n.23 (1977) (citing "[o]ur belief that debate between adversaries is often essential to the truth-seeking function of trials ..."); Polk County v. Dodson, 454 U.S. 312, 318 (1981) ("The [American criminal justice] system assumes that adversarial testing will ultimately advance the public interest in truth and fairness"). Of course, adversarial testing will only happen in this case if this court authorizes undersigned counsel or directs former counsel to appear as next friend.
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This Court Can Also Authorize ORCRCs Appearance as Amicus If this court directs former counsel to appear as next friend, it should authorize ORCRC to appear as amicus. Even if this court does not authorize any next friend appearances, it can authorize ORCRC to appear as amicus. The standard practice that exists throughout the country of (1) appointing amici when a death-row inmate volunteers for execution; (2) requiring volunteers to undergo competency evaluations; and (3) convening adversarial hearings on volunteer's
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competency and whether their waivers are knowing, voluntary and intelligent has no doubt arisen in substantial part because of the frequency with which volunteers such as Mr. Haugen change their minds, oscillating between a craving for death and a clinging
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to life. See, e.g., Christy Chandler, Voluntary Executions, 50 Stan. L. Rev. 1897, 1903 (1998) (stating that many death row inmates express a desire to die, but most change their minds); Richard W. Garnett, Sectarian Reflections on Lawyers Ethics and Death
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Row Volunteers, 77 Notre Dame L. Rev. 795, 801 (2002) (many, if not almost all, capital defendants at one point or another, express a preference for execution over life in prison. Most of them, though, change their minds.); Richard C. Dieter, Ethical Choices for Attorneys Whose Clients Elect Execution, 3 Geo. J. Legal Ethics 799, 801 (1990). Accordingly, allowing ORCRC to appear as amicus clearly is critical to the interests of justice. See Dennis v. Budge, 378 F.3d 880, 895, 903 (9th Cir. 2004) (Berzon, J., concurring) (appointment of amicus or other party to present arguments that a
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volunteer petitioner should not be executed has often occurred in cases involving death-row volunteers); State v. Dodd, 838 P.2d 86, 90 (Wash. 1992) ("We redesignated Dodd's attorneys as amici curiae, appointed new counsel to represent Dodd, ordered a fact-finding hearing to determine whether Dodd's decision to waive his general right of appeal was made knowingly and voluntarily and resolve any question regarding his competency, and ordered that the waiver issue be presented at the same time as the argument on appeal.").
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CONCLUSION Mr. Haugens current desire for his execution should neither be decisive, nor subject to scrutiny. However, that is what the State seeks in its reponse.
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No person or party is harmed by ordering a competency hearing. If Mr. Haugen is determined to be competent by an unbiased judge after a full and fair hearing, then he is entitled to waive further review and be executed, if that remains his choice. If, on the
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other hand, Mr. Haugen is, in fact, incompetent then this court will have protected Mr. Haugens rights and upheld the requirements of the Constitution. This Court should either grant the petition or remand for an evidentiary hearing/ DATED this 20th day of June, 2011. /s/Jeffrey E. Ellis Jeffrey E. Ellis, OSBA # 102990 Attorney at Law Oregon Capital Resource Ctr. 621 SW Morrison St., Ste 1025 Portland, OR 97205 JeffreyErwinEllis@gmail.com
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CERTIFICATE OF FILING & SERVICE I certify that on June 20, 2011 I conventionally served full, true and exact copies of the foregoing Memorandum of Law on the parties listed below by placing same in a sealed envelope with First-Class prepaid postage affixed thereto and deposited in the United States Mail at Portland, Oregon. The names and mailing addresses of respective counsel/parties are as follows: Mary Williams Solicitor General Jeremy Rice Assist. Attorney General Dept. of Justice, Appellate Division 1162 Court Street NE Salem, OR 97310 Gary Haugen # 5673362 Oregon State Penitentiary 2605 State Street Salem, Oregon 97310-0505 The Hon. Joseph C. Guimond Judge, Marion Co Circuit Court P.O. Box 12869 Salem, OR 97309 The Hon. Walter M. Beglau Marion County Prosecuting Attorney 100 High Street NE, 1st Floor Salem, OR 97301
Dated: June 13, 2011//Portland, OR

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/s/Jeffrey E. Ellis Jeffrey E. Ellis OSB # 102990

Response of ORCRC Regarding Standing

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Response of ORCRC Regarding Standing

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June 20, 2011 02:31 PM

IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON, Plaintiff-Adverse Party,

conduct an adversarial competency hearing.

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responsible agency by intervening in capital cases in a variety of situations. For

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and precluded from presenting evidence of Mr. Haugens incompetency, OPDS

opposition to the penalty of death.

Although in his current mental condition Mr. Haugen undoubtedly

to exercise its supervisory power, ORCRC seeks to appear as amicus in support.

Page 6 Response of ORCRC Regarding Standing

Page 8 Response of ORCRC Regarding Standing

Page 14 Response of ORCRC Regarding Standing

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Dated: June 13, 2011//Portland, OR

/s/Jeffrey E. Ellis Jeffrey E. Ellis OSB # 102990

Page 19 Response of ORCRC Regarding Standing

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