Haugen - Resp to OCRC Request

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IN THE SUPREME COURT OF THE STATE OF OREGONSTATE OF OREGON,

Plaintiff-Adverse Party,v.

GARYHAUGEN,Defendant-Relator.

Marion County CircuitCOUli No. 04C46224Supreme COUli No. S059519MANDAMUS PROCEEDINGRESPONSE TO THE OREGON CAPITALRESOURCE CENTER'S REQUEST

On October 17, 2011, Jeffrey E. Ellis, of the Oregon Capital ResourceCenter ("OCRC"), filed a "request" in this court, in the context of thispreviously filed mandamus proceeding. \ Ellis asks this cOUli to undertake areview, "on its own motion," of the underlying death-warrant proceedings-viz., State v. Haugen, Marion County Circuit COUli no. 04C46224 ("State v.Haugen")-"for compliance with this Court's mandamus order" of June 29,2011.2 (Request 3). Ellis asserts that the death-warrant proceedings are

\ Ellis's pleading-which is titled "REQUEST FOR THIS COURTAND/OR THE CHIEF JUSTICE TOACT ON ITS OWNMOTION ANDISSUE AN ORDER ENFORCING ALTERNATIVE WRIT OFMANDAMUSISSUED ON JUNE 29, 2011"-will be refelTed to in this response as "Ellis'srequest" or, in citation, as "Request."

2 A copy of that order-which is titled "ORDER ALLOWINGPETITION FOR ALTERNATIVE WRIT OFMANDAMUS; ALTERNATIVEWRIT OF MANDAMUS"-is set forth in the Appendix to this response, forthe convenience of the cOUli. This response will refer to it as the "mandamusorder" or, in citation, as "A It. Writ."Page 1- RESPONSE TO THE OREGON CAPITAL RESOURCE CENTER'SREQUESTTAS:slc\3053733-vl

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fundamentally flawed and that various remedial actions should be taken. Inparticular, he contends that the circuit comt erred: (1) by not complying withthe mandamus order, (2) by not considering the report ofDr. Lezak, and (3) byappointing a counsel who is "conflicted." (Request 2-3).

This comt has invited the patties in the underlying proceeding and JudgeGuimond3 to respond to Ellis's request. This response is submitted on behalfofthe State ofOregon. For the reasons discussed below, neither Ellis nor OCRChas standing to raise any of the challenges set fOlth in Ellis's request. In anyevent, this record establishes that the death-warrant proceedings have fullycomplied with this comt's mandamus order, the applicable laws, anddefendant's constitutional rights. Consequently, this court should deny Ellis'srequest.

3 The Honorable Joseph C. Guimond was the judge in the trialproceedings that resulted in defendant Haugen's convictions and deathsentence, he generally has been presiding over the death-warrant proceedings,and he was the judge who ultimately found that defendant is competent and haschosen to waive his additional appellate and collateral remedies, which haspaved the way for issuance of a death warrant. (See Ex 7). But other judgeshave palticipated in the proceedings, including the Honorable Jamese Rhoades,who presided over the palt of the proceedings in which the comt removed AndySimrin and W. Keith Goody as defendant's counsel and Gregory Scholl wasappointed as substitute counsel. (See Ex I). For that reason, this response willrefer to the judges by name when addressing the various mlings in this case.

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A. NEITHER ELLIS NOR THE OCRC HAS STANDINGNeither Ellis nor the OCRC purpolis to represent defendant Haugen, the

state, defendant's current or former counsel, or any party in the underlyingcriminal action. Nothing in Ellis's request alleges any facts that would providea basis for this cOUli to conclude that either he or the ORCR has any patiicularinterest in this p r o c e e d i n g ~ o r in the impending execution of d e f e n d a n t ~ t h a t isdifferent from that of any other citizen. Therefore, this cOUli should dismissEllis's request.

1. Procedural background.This mandamus proceeding relates to the impending execution of

defendant based on a conviction for aggravated murder and death sentenceentered in State v. Haugen. This court previously affirmed defendant'sconviction and death sentence. State v. Haugen, 349 Or 174,243 P3d 31(2010). Judge Guimond, who was the trial judge, conducted a death-warrantproceeding in accordance with ORS 137.463.

In the initial phase ofthose proceedings, defendant was represented byAndy Simrin and W. Keith Goody and they, over defendant's repeatedobjections, asked Judge Guimond to find defendant not to be competent towaive his appellate and collateral remedies. After a hearing, Judge Guimond

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granted defendant's request to remove Simrin and Goody as his counsel, founddefendant to be competent, found that he waived his right to further appeal andcollateral remedies, and ultimately issued a death wan'ant on May 18, 2011,scheduling an execution for August 16, 2011.

On June 13,2011, the OCRC filed a petition for writ ofmandamus in thiscourt contending that Judge Guimond erred by granting defendant's request todischarge Simrin and Goody and by issuing a death warrant without a sufficientinquiry into whether defendant is competent. This cOUli requested briefing onthe standing issue, the state filed a response asking this court to deny thepetition because OCRC lacks authority to present that claim, and Simrin andGoody submitted a letter suppOliing the petition. (Alt. Writ 1-2).

This cOUli ultimately avoided resolving the question ofwhether theOCRC has standing to seek mandamus relief because it concluded that Simrinand Goody-who, at that point, had not yet been replaced as defendant'scounsel-had such authority to seek relief and that their letter constituted asufficient petition for mandamus relief:

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1. OCRC has alleged that Haugen is the relator in thisproceeding. The relator is "the beneficially interested party onwhose relation" the proceeding is brought. ORS 34.105(4).However, OCRC also acknowledges that it does not representHaugen and states that "Mr. Haugen has not requested counsel tofile this petition." OCRC has not made the necessmy showing of

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legal authority to bring this proceeding on behalfofHaugen underORS 34,105(4), At this stage of the proceedings, the court is notpresented with and does not decide whether OCRCmay seek amandamus remedy, under Article VII (Amended), section 2, of theOregon Constitution, to enforce the asserted duties of the trialcourt as alleged in its petition.

2, Judge Guimond's reassignment of Simrin and Goody toact as "stand by" counsel to Haugen and order not to act on behalfofHaugen except at Haugen's request for the purposes of the May18, 20 II, hearing do not prohibit Simrin and Goody from takingany legal action to challenge Haugen's competency to dischargethem, Simrin and Goody contend, as does OCRC, that JudgeGuimond acted contrary to the requirements of the law inaccepting Haugen's waiver of his right to counsel without ahearing regarding Haugen's competence to do so,

3, Because Haugen's execution is currently scheduled forAugust 16, 2011, and time is of the essence, we therefore construethe June 20, 2011, letterfrom Simrin andGoody as a petition foran alternative writ ofmandamus seeking an order directing JudgeGuimond to vacate certain ofhis findings, rulings and orders 01', inthe alternative, to show cause why the court should not order himto do so, We deem the allegations of the petition to include theassertions and allegations contained in the Simrin and Goody letterdescribed above and the allegations set forth in the petition filed byOCRC on June 13,2011.

Based on the foregoing, the court orders that the petition foralternative writ ofmandamus by Simrin and Goody is allowed,

(Alt. Writ 3; emphasis added),ShOlily thereafter, on July 14,2011, a hearing was held in State v,

Haugen before Judge Rhoades on defendant's request to remove Simrin andGoody as his counsel, and Judge Rhoades granted that request and 1Uied that

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she would arrange for appointment of appropriate substitute counsel. (Ex 1),4Simrin and Goody immediately filed in this court another petition for writ ofmandamus in which they sought to challenge Judge Rhoades's ruling removingthem, but this COUIt summarily denied that petition by an order entered on July18,2011,5

On July 18, 2011, Judge Rhoades appointed Gregory Scholl as substitutecounsel for defendant. (Ex 2). On August 3,2011, at Scholl's request, JudgeGuimond appointed Steven Gorham to be "co-chair" for defendant. (Ex 5). Asa result of these developments after this court issued the mandamus order,Simrin and Goody no longer represent defendant in any capacity, and defendantinstead is represented now by Scholl and Gorham.

2. Neither Ellis nor the OCRC has standing.Neither Ellis nor the OCRC represents defendant in this or any other

litigation. Ellis does not assert that he has submitted his request on behalfof

4 All the various exhibits attached to this brief are judicial orders enteredby the circuit COUIt State v. Haugen or by this COUIt in the parallel mandamusproceeding. The state asks this court to take judicial notice of those orderspursuant to OEC 201(f) and 202.

5 That proceeding was docketed separate from this mandamusproceeding. State ofOregon v. Gary Haugen andAndy Simrin and W KeithGoody, S059590, (Ex 3),

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defendant or his current counsel, and he does not assert that either he or theOCRC has any direct interest in defendant's case. In fact, he implicitlyconcedes that his request is directly contrary to defendant's wishes.

As explained above, this comt issued the mandamus order in this casebased only on the petition of Simrin and Goody-who, at the time, were at leastnominally still defendant's counsel-and not on the petition filed by the OCRC.Ellis does not asselt that he has filed his request on behalfof Simrin andGoody.6 Therefore, neither Ellis nor the OCRC has standing and authority toraise any claims related to defendant and the underlying death-warrantproceedings, and this court should deny his request.7

"Standing" is "the right to obtain an adjudication." Eckles v. State, 30601' 380,383,760 P2d 846 (1988). A person without standing has "no right tohave a tribunal decide a claim under the law defining the requested relief,

6 As a result, it is not necessalY to address whether Simrin and Goodymay have some lingering standing in this mandamus proceeding to ask thiscourt to review Judge Guimond's compliance with the mandamus order that thiscourt had issued based on their petition. Suffice it to say, the removal of Simrinand Goody as counsel for defendant effectively revoked any standing theypreviously may have had in this proceeding.

7 The argument that follows in this section repeats the substance of theargument that the state had made previously in its response to original petitionfor writ ofmandamus filed in this case by the OCRC.Page 7 - RESPONSE TO THE OREGON CAPITAL RESOURCE CENTER'SREQUESTTAS:slc\3053733-vI

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regardless whether another plaintiffhas any such right." Ibid. Whether aparticular person has standing to bring a particular claim "depends upon thetype of relief sought and commonly is governed by a specific statutorystandard." Id. at 384. Generally, "for [a] party to have standing, [the] court'sdecision must have some practical effect on [the] palty's rights." Strunk v.PERB, 338 Or 145, 153, 108 P3d 1058 (2005). Because Ellis has not allegedthat he or the OCRC has standing in their own right and they do not representdefendant, they do not have any authority to seek mandamus as his agent.

IfEllis or the OCRC has authority to seek relief on defendant's behalf, itcan be only because the legislature has authorized some form of standing by a"third party'; in mandamus proceedings. But the applicable statutes do notallow for third-party standing in this proceeding. The legislature has authorizedthird-patty standing in some limited contexts. ORS 183.400 allows "anyperson" to challenge the "validity of any [administrative] rule" in the COUlt ofAppeals. See Kellas v. Dept. ofCorrections, 341 Or 471, 484, 145 P3d 139(2006) (discussing standing requirements under ORS 183.400). And the Post-Conviction Hearing Act authorizes "one person on behalfof another personwho has been convicted of aggravated murder and sentenced to death" to seek

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post-conviction relief in certain limited circumstances. ORS 138.510(2),8Unlike those statutes, the applicable statutes governing mandamus do notprovide that anyone other than the relator himselfmay seek mandamus relief.

The "relator" in this case-the "beneficially interested paIty"-isdefendant Haugen, And nothing in ORS chapter 34 provides that anyone otherthan defendant himselfmay seekmandamus reliefon his behalf.9 Because thelegislature has not authorized third-paIty standing in this case, this court should

8 ORS 138.510(2) allows a third patty to seek post-conviction reliefonbehalf of a petitioner who has been sentenced to death if the third party "has asignificant relationship" with the petitioner and shows that the petitioner is"unable to file a petition" himself. Ellis does not assert that he has standingunder that provision.9 The federal COutts recognize a form of third-patty standing in habeascorpus cases known as "next friend" standing. A "friend" of an inmate maybring a habeas corpus action on the inmate's behalfifthe person can establish"( 1) that the petitioner is unable to litigate his own cause due to mentalincapacity, lack of access to COutt, or other similar disability; and (2) [that] thenext friend has some significant relationship with, and is truly dedicated to thebest interests of, the petitioner." Massie ex rei. Kroll v. Woodford, 244 F3d1192, 1194 (9th Cir 2001); see generally Whitmore v. Arkansas, 495 US 149,163-64,110 S Ct 1717, 109 LEd2d 135 (1990) (explaining "next friend"doctrine). As explained above, the legislature has authorized similar third-patty

standing in a capital post-conviction case based on a similar standard. ORS138,510(2), But no statute authorizes "next friend" standing in mandamusproceedings. Even if "next friend" standing were available in mandamusproceedings, Ellis would not be entitled to seek such reliefon defendant'sbehalf.

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dismiss Ellis's request. 10B. THIS COURT SHOULD DENY ELLIS'S REQUEST

If this court nonetheless considers Ellis's request on the merits, it shoulddeny it. As noted above, Ellis's request is based on his assertions that thecircuit COUli erred in three patiiculars: (1) by not complying with the mandamusorder, (2) by not considering the report ofDr. Lezak, and (3) by appointing acounsel who is "conflicted." (Request 2-3). None of those asseliions issuppOlied by this record.

1. IntroductionBefore addressing those three claims on the merits, it is helpful to narrow

the scope of the inquiry by identifying what Ellis does not challenge: Ellis does not dispute that Judge Rhoades properly

removed Simrin and Goody as counsel for defendant based on afinding of an irremediable breakdown in their attomey-clientrelationship. (Ex 1) .

Ellis does not dispute that Scholl, Gorham, and KatiDunn-who have been representing defendant since Simrin and

10 As noted above, this court specifically did not address in its mandamusorder "whether OCRC may seek a mandamus remedy under Aliicle VII(Amended), section 2, of the Oregon Constitution, to enforce the duties of thetrial court as alleged in the petition." (Alt. Writ 3). Because Ellis has notattempted to argue that this cOUli has authority to review his request under thatconstitutional provision, this response will not address that issue.

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Goody were removed-are competent defense counsel and arequalified to assist defendant in the death-warrant proceedings, Ellis does not dispute that (as will be discussed below)

defendant has exercised his privilege under OEC 504 to precludeany disclosure and use ofDr, Lezak's opinion and that JudgeGuimond has enforced that privilege by precluding any disclosureor use of her opinion (Ex 6),

Ellis does not dispute that defendant was properly andthoroughly examined by Dr. Richard Hulteng, Ph,D, to determinewhether he is competent, that Dr, Hulteng is fully qualified tomake that assessment, and that Dr, Hulteng testified in open courton October 7, 2011, that defendant, in his professional opinion, iscompetent. 1\ .

Ellis does not dispute that Judge Guimond carefullycomplied with each of the steps required for a death-warrantproceeding under ORS 137.463, that he made all of the findingsrequired by ORS 137.463(4) (see Ex 7), and that each of thosefindings is amply supported by evidence in the record, Ellis does not dispute that the findings made by Judge

Guimond are a legally sufficient basis under Oregon law to allowdefendant to waive his appellate and collateral remedies and to beexecuted, And he does not dispute that those findings are a legallysufficient basis under federal law to allow defendant to waive hisrights and to be executed,I2

1\ Dr. Hulteng's report of his evaluation of defendant was received as anexhibit at the hearing on October 7, 2011, but it was sealed by order of JudgeGuimond, The state has no objection to this court reviewing that report incamera,

12 See Panetti v, Quarterman, 551 US 930, 956-57, 127 S Ct 2842, 168 LEd 2d 662 (2007) (refining standard under Ford v, Wainwright, 477 US 399(1986, Consequently, this briefwill not address that issue.Page 11 -RESPONSE TO THE OREGON CAPITAL RESOURCE CENTER'SREQUESTTAS:slc\3053733-vl

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In short, the claims raised by Ellis in his request are very narrow. Hedoes not dispute that the death-warrant proceedings that culminated in JudgeGuimond's order ofOctober 7,2011, finding defendant to be competent wereregular on their face, fully complied with ORS 137.463, and are a legallysufficient basis to proceed toward defendant's execution. Rather, he claimsonly that Judge Guimond should have taken some additional steps. For thereasons discussed below, Ellis is wrong.

2. Pertinent factsIn his request, Ellis summarizes some evidence presented in the penalty

phase ofthe trial in State v. Haugen relating to defendant's mental health.(Request 6-11). That summary may be accurate as far as goes-albeit one-sided-but it is not relevant to issues before this court, because it does notprovide any basis on which this court may conclude that, despite Dr. Hulteng'stestimony and Judge Guimond's findings, defendant currently is not fullycompetent.

Ellis does not assert that at any point in the trial in State v. Haugen anyquestion was raised about defendant's possible competence to proceed or assisthis counsel, and he does not assert that defendant ever asserted or presentedevidence to show that he has a mental disease or defect that may provide a basis

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for an insanity defense under ORS 161,295, And he does not asseli that at anypoint in the proceedings in State v, Haugen leading to the imposition of thedeath sentence or during any step of the subsequent death-warrant proceedingsdefendant engaged in any behavior or made any statements that may call intoquestion his mental condition relating to his competency,13 Finally, althoughEllis notes some evidence in the record that suggests that defendant in the pastoccasionally may have had difficulty controlling his behavior when he is nottaking medication (Request 9-10), he concedes that defendant advised the cOUliduring the death-warrant proceedings that he has been taking his medication,and nothing in the record suggests otherwise, In shOJi, the evidence that Ellissummarizes may provide a basis to conclude that defendant may havesignificant mental-health issues, but that evidence does not, of itself, provideany basis to conclude that defendant is not competent.

Ellis asserts next that Dr. Lezak submitted a report in which she opinedthat defendant is incompetent:

13 It is impOJiant to emphasize that Judge Guimond was the trial judge inState v. Haugen and, as a result, had the oppOJiunity to hear all the evidencepresented at trial in that case and to personally observe defendant on a close anddaily basis for months.

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Dr. Lezak evaluated Mr. Haugen and concluded that he wasincompetent to be executed. Her report was provided to this Courtalong with the mandamus petition.

(Request 11-12). That assertion is not factually correct in at least two respects.First, no "report" that was prepared by Dr. Lezak ever was submitted either tothe circuit court in State v. Haugen or to this court in the mandamus proceeding,and no such repmi CUl1'ently is in the record in this case. The only documentthat ever was submitted relating to Dr. Lezak's evaluation was her three-pageaffidavit-attached as an exhibit to the OCRC's petition-in which she merelysummarized her findings.

Perhaps more to the point, defendant asserted repeatedly during thedeath-warrant proceedings that he believes that he was manipulated andaffirmatively misled by Simrin and Goody into cooperating with Dr. Lezak andthat Simrin and Goody then improperly disclosed and used her opinion withouthis informed consent and in violation ofhis privilege. Defendant has beenadamant in his desire to exercise his privilege and have that report sealed. Ellisacknowledges that, based on defendant's objection, Judge Guimond expressly"struck Dr. Lezak's opinion" at the original death-wan-ant hearing on May 18,2011. (Request 12, 15). Subsequently, on September 27,2011, JudgeGuimond issued a formal protective order, at defendant's request and based on

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his assertion ofhis privilege, that expressly precludes any disclosure and use ofDr. Lezak's evaluation:

This matter coming before the Court on oral Motion ofDefendant * * * to seal and order non disclosure of aNeuropsychology Report of an examination ofGary Haugen onMay 9,2011 completed by Muriel D, Lezak, Ph,D" without theexpress, informed written consent ofGary Haugen, and the COUlibeing fully informed,NOW, THEREFORE, IT IS HEREBY ORDERED:

Access to the Neuropsychology Report of an examination ofGary Haugen on May 9, 2011 completed by Muriel D. Lezak,PhD., shall be restricted solely to Defendant, his current counsel,Gregory Scholl, StevenH. Gorham, Kati Dunn and theirinvestigators Keeley McCallum unless and until Gary Haugengives express written consent, or further order ofthis COUli fordisclosure. * * *

The repOli described above may be possessed and examinedonly [by] persons described in the preceding paragraph. Any otheruse or viewing of these records is not authorized and shall bedeemed a violation of this protective order.

(Ex 6; boldface in original). Consequently, OCRC's attempt to use Dr. Lezak'saffidavit in the original mandamus proceeding was in derogation of defendant'sexercise of his privilege and Judge Guimond's order striking her opinion, andJudge Guimond's protective order bars Ellis from attempting to rely again onthat affidavit in support ofhis request.

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3. Judge Guimond complied with this court's mandamus orderEllis contends that the death-warrant proceedings that Judge Guimond

conducted after this court issued its mandamus order did not comply with therequirements set forth in that order. In particular, he contends that JudgeGuimond, "without explanation and in derogation of this Court's ruling" founddefendant to be competent "after excluding [Dr. Lezak's opinion] for a secondtime." (Request 19-20). That assertion is incorrect, because nothing in thiscourt's mandamus order required Judge Guimond to consider Dr. Lezak'sopInIOn.

In this court's mandamus order, this court set forth in detail what JudgeGuimond should do. (Alt. Writ 4-5). Judge Guimond scrupulously did everystep, specifically including ordering an "assessment of defendant's mentalcapacity to engage in reasoned choices of legal strategies and options"-whichevaluation was done by Dr. Hulteng-and then conducting "an evidentiaryhearing" that complied with ORS 137.463, after which he made appropriatefindings. (AIt. Writ 4-5; see Ex 4).

Ellis nonetheless asselis that Judge Guimond failed to comply with thepmi ofthis court's mandamus order that required him to:

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voluntary waiver ofhis rights and to the question ofwhetherdefendant Haugen is competent for the purposes ofbeingexecuted[.](Alt. Writ 4; emphasis added). But it is patent on the face of that order, and inthe context of the proceedings at that point, that this court's directive wassimply to allow defendant's counsel-not specifically Simrin and Goody-topresent such evidence. As noted above, after this court issued the mandamusorder, Judge Rhoades properly removed Simrin and Goody as defendant'scounsel and substituted Scholl and Gorham. Ellis does not challenge that order.And at the subsequent death-warrant hearing Judge Guimond did, in fact, allowScholl and Gorham, defendant's current counsel, "to offer evidence pertinent todefendant's Haugen mental capacity," and they chose to rely onDr. Hulteng'sevaluation and testimony. Ellis does not contend that Judge Guimondprecluded Scholl and Gorham from presenting any relevant evidence.

Nothing in the above-quoted directive in this court's mandamus orderwould have required Judge Guimond to permit Simrin and Goody to presentevidence even though they no longer were defendant's counseI.14 And nothing

14 In any event, Ellis does not assert that Simrin and Goody actuallyappeared at the hearing and contended, based on that provision in themandamus order, that they were entitled to present evidence relating todefendant's mental condition. Consequently, even if that provision in themandamus order may have been intended as an independent source of authorityPage 17 -RESPONSE TO THE OREGON eAPITAL RESOURCE CENTER'SREQUEST

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in that directive can be construed as requiring either Judge Guimond ordefendant's counsel to present evidence ofDr, Lezak's opinion in paIiicular.Therefore, Judge Guimond did not fail to comply with that directive in thiscourt's mandamus order.

Even if this couti may have assumed, when it issued its mandamus order,that Dr, Lezak's opinion would be available for Judge Guimond to consider atthe renewed death-warrant hearing, Judge Guimond later enforced defendant'sexercise of his privilege by sealing that report and issuing a protective order topreclude any disclosure or use ofDr. Lezak's opinion without defendant's"express, informed, written consent." (Ex 6). As noted above, Ellis does notdispute that defendant, in fact, has exercised his privilege, that Judge Guimondconsequently has precluded any use ofDr, Lezak's opinion, and that defendantdid not give his consent to use of that opinion at the death-warrant proceeding.Certainly nothing in this cOUli's mandamus order can be construed as requiringJudge Guimond to disregard defendant's valid exercise ofhis privilege andconsider Dr. Lezak's opinion over his objection.

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For the reasons discussed above, Ellis simply is factually incorrect whenhe asselis that Judge Guimond failed to comply with any term of this court'smandamus order when he conducted the renewed death-waITant hearing andfound that defendant is competent and that he has validly waived his appellateand collateral remedies.

4. Court was not required to consider Dr. Lezak's opinionEllis contends, in the alternative, that Judge Guimond had some

constitutional obligation to consider Dr. Lezak's opinion even though defendantand his counsel chose not to present it, and even though Dr. Hultengindependently evaluated defendant and concluded without qualification thatdefendant is competent. (Request 21-23). Because defendant had asserted hisprivilege under OEC 504 to preclude any disclosure and use ofDr. Lezak'sopinion, Ellis's claim necessarily must be based on his assertion that JudgeGuimond had an obligation to consider Dr. Lezak's opinion sua sponte eventhough defendant had exercised his privilege under state law not to disclose it. 15

15 Ellis does not asseli that defendant's exercise of his privilege underOEC 504 was ineffective for some reason, nor does he assert that JudgeGuimond would have had some basis under any of the exemptions orlimitations in the rule to have considered the Dr. Lezak's opinion despitedefendant's exercise of the privilege. It is important to note that the limitationin OEC 504(4)(a) for a court-ordered examination does not apply because Dr.Lezak did not examine defendant pursuant to a court order.

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Ellis cites a number of cases that he asserts stand for the proposition thata court has an independent constitutional obligation in these circumstances tosolicit and consider evidence of the defendant's mental condition. (Request 21-23). None of those cases suppOlis his asseliion.

Ellis relies primarily on O'Rourke v. Endell, 153 F3d 560 (81h Cir 1998),which was a proceeding in federal cOUli on the petitioner's petition for habeascorpus relief to set aside his conviction for capital murder and sentence of deathentered in a state-court prosecution. The Eighth Circuit ultimately affirmed thepetitioner's conviction for capital murder and death sentence after rejecting onthe merits all of his claims that his trial counsel provided inadequate assistance.Id. at 578-79. As a threshold matter, the court considered the state's argumentthat the petitioner had procedurally defaulted on those claims by previouslywaiving in state cOUli all of his appellate and collateral remedies, a waiver thathad been affirmed by the Arkansas Supreme COUli. 153 F3d at 567. TheEighth Circuit agreed that "[t]here is no dispute that a petitioner like O'Rourkecan waive his right to appeal a state trial court's denial of postconviction relief,and thereby bar federal cOUli consideration of the claims that were notpursued," but it noted that for such a waiver to be valid the petitioner must becompetent. Ibid. The court then examined the record of the waiver hearing-at

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which, significantly, the petitioner had appeared pro se and without any "nextfriend"-and concluded that, for purposes of the procedural-default issue, therecorded colloquy of the waiver was not sufficiently specific to establish thatthe petitioner actually knew what he was waiving, much less that he waswaiving his rights knowingly and voluntarily. 16 Id. at 568-69. The EighthCircuit's primary concern was that the petitioner "should have been representedby an attorney, either a counsel of record or a 'next friend,' to argue that helacked the capacity to waive his appeal." Id. at 569.

Nothing in the O'Rourke opinion suggests that when a defendant who ischoosing to waive appellate and collateral remedies is represented by competentcounsel the court has an independent constitutional obligation to solicit andconsider evidence relating to the defendant's mental competence that defendantand his counsel have chosen not to present. Rather, the problems in O'Rourkewere that petitioner was not represented by counsel at the waiver hearing, thewaiver colloquy actually conducted was not adequate to ensure a knowing andvoluntmy waiver, and the record showed that the petitioner previously had been

16 The cOUli concluded: "Instead, the record as a whole demonstrates thatit cannot be said with any satisfactory degree of confidence that O'Rourke'swaiver of his Rule 37 appeal was knowing and voluntary. Similarly, we thinkthe record discloses no basis for a reliable finding that O'Rourke was mentallycompetent to waive his right to a Rule 37 appeal." 153 F3d at 569.Page 21 -RESPONSE TO THE OREGON CAPITAL RESOURCE CENTER'SREQUESTTAS:slc\3053733-vl

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determined to be incompetent at other times, See id. at 569. None of thosecircumstances is present in this case. Moreover, in 0 'Rourke the petitioner wasaffirmatively challenging the validity of his waiver, which is not the situationhere.

Ellis's reliance onHull v. Freeman, 932 F2d 159 (3rd Cir 1991), is evenfarther afield. As in O'Rourke, the issue in Hull was whether the petitioner hadprocedurally defaulted the claims that he asserted in his habeas-corpus petition,and the underlying claim was whether his trial counsel in the state-courtprosecution had provided constitutionally inadequate assistance at the pretrialhearing at which petitioner was found to be competent and pleaded guilty. Thequestion was whether the decision of petitioner's trial counsel to acquiesce inthe petitioner's desire to be found competent and plead guilty-and hence notto contest his competency at the change-of-plea hearing-was a valid strategicchoice despite the fact that two doctors "recently had found Hull to beincompetent to stand trial." 932 F2d at 168. Once again, that case, unlike thisone, involved a defendant who was affirmatively challenging the validity of hiswaiver (guilty plea) and was complaining about the constitutional adequacy ofhis counsel. Moreover, nothing in that opinion suggests that when a defendantwho is choosing to waive his rights is represented by competent counsel the

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court has an independent constitutional obligation to solicit and considerevidence relating to the defendant's mental competence that defendant and his

counsel have chosen not to present. That is, Hull addresses only the viability ofa possible inadequate-assistance claim asserted by the defendant in asubsequent proceeding, not an obligation of a trial comt to make an inquiry suasponte.

In summary, Ellis has not provided this comt with any authority tosuppmi the proposition-a proposition that is essential to his challenge of theOctober 7, 2011, order-that Judge Guimond had a constitutional obligation tosolicit and considerDr. Lezak's repmi sua sponte even though defendant andhis counsel choose not to offer it and even though defendant had exercised hisprivilege under OEC 504 not to disclose the report. The state is not aware ofany such authority. Therefore, this comi should deny Ellis's request.

5. Ellis's "conflicted counsel" claim has no meritEllis's final complaint is that Judge Guimond's order ofOctober 7, 2011,

is invalid because he had appointed Gorham, at Scholl's specific request, as"second chair counsel" to assist defendant. (Ex 5). Ellis contends that Gorham"was burdened by an obvious conflict" and that Judge Guimond's "decision topermit that waiver [by defendant of his appellate and collateral remedies] was

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necessarily infected by Mr, Gorham's conflict." (Request 24), The only factualbasis for Ellis's assertion that Gorham has a potential conflict of interest is that

Gorham represented defendant during the trial proceedings and that a petitionfor post-conviction reliefor other collateral remedies may entail an inquiry intothe constitutional sufficiency ofGorham's own professional assistance duringtrial. (See Request 14-15),

This response will defer to defendant's current counsel the primaryresponsibility for responding to that accusation, But, as noted above, Ellis doesnot dispute that Scholl, Gorham, and Kati Dunn are competent defense counseland are qualified to assist defendant in the death-warrant proceedings. Ellisdoes not contend that either Scholl (defendant's lead counsel) or Dunn has anypotential conflict. He does not assert that defendant has not been fully apprisedby "conflict free" counsel of his potential appellate and collateral remedies,17and he does not assert that defendant has not been fully apprised of and chosento waive Gorham's potential conflict.

Ellis does not cite any authority for the proposition that Gorham actuallyhas an ethical conflict in these particular circumstances that precludes him

17 It is fair to assume that Simrin and Goody, who persistently opposeddefendant's desire to waive his appellate and collateral remedies, repeatedly andfully advised him of the rights he would be waiving.

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from representing defendant as "second chair," much less such a seriousconflict that defendant cannot choose to waive. Therefore, Ellis's asseliions do

not provide any factual or legal basis on which this court may conclude thatJudge Guimond's order ofOctober 7,2011, is invalid on the ground thatGorham is a "conflicted counse1."

CONCLUSIONFor the reasons set forth above, this cOUli should deny Ellis's request to

review Judge Guimond's order ofOctober 7,2011, finding defendant to becompetent and that he has validly waived his appellate and collateral remedies.

Respectfully submitted,JOHN R. KROGER #077207Attorney GeneralANNA M. JOYCE #013112Solicitor General

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App-lIN THE SUPREME; COURT OF THE STATE OF OREGON

STATE OF OREGON,Plaintiff-Adverse Party,v.

GARY HAUGEN,Defendant-Relator.

Marion County Clroult Court04C462248059519

ORDER ALLOWING PETITION FOR ALTERNATIVE WRIT OF MANDAMUS;ALTERNATIVE WRIT OF MANDAMUSUpon oonslderatlon by the court.

This matter Is before the court on a Petition for a Peremptory Writ ofMandamusor, in the alternative, for an Alternative Writ of Mandamus flied by the Oregon CapitalResource Center (OCRC) on June 13, 2011. The Petition seeks an order directing theHonorable Joseph C. Guimond to vacate the death warrant that he signed on May 18,2011, and to conduot a hearing to determine whether defendant Gary Haugen iscompetent to be executed.The court has received a letter from lawyers Andy 81mrin and Keith Goody datedJune 20, 2011. In their leUer, Simrin and Goody state as follows:1. They represented Haugen as his legal counsel prior to and, until they weredischarged, during the death warrant hearing held on May 18, 2011.2. The death warrant hearing was originally scheduled for May 13, 2011.3. In their capacity as legal counsel for Haugen, they obtained the services of aneuropsyohologist who evaluated Haugen and reached the conclusion thatHaugen was not competent to be executed.4. As a result of the conclusion of the neuropsychologist, they sought anevidentiary hearing on the Issue of Haugen's competency and they believedthat Judge Guimond would give them time to prepare for such'a hearing andwould continue the death warrant hearing to a later date.

ORDER ALLOWING PETITION FOR'ALTERNATIVE WRIT OF MANDAMUS;ALTERNATIVE WRIT OF MANDAMUSREPLIES SHOULD BE DIRECTED TO; State Court Administrator, Records Section,Supreme Court Building, 1163 State Street, Salem, OR 97301-2563Page 1of 6


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App-2

5. On May 13, 2011, Judge Guimond ordered that no evidence was necessaryor relevant to determine Haugen's competency, other than Haugen's answersto a set of questions, and that Judge Guimond would propound thosequestions at a death warrant hearing on May 18, 2011.

6. On May 18,2011, Judge Guimond asked Haugen If he wished to dischargeSlrnrln and Goody as his counsel and Haugen replied that he did.7. JUdge Guimond then relh;ved Slmrln and Goody as attorneys of record forHaugen, reassigned them to act as "stand by" counsel to prOVide legal adviceto Haugen If he requested It, and advised them not to speak unless Haugenasked them to do so.8. At the conclusion of the death warrant hearing, Judge Guimond signed thedeath warrant.

Based on those factual allegations, Slmrln and Goody made the following legalcontentions:1. When there Is evidence that a defendant is not mentally competent, such asthe expert opinion of the neuropsychologist in this case, the law does notpermit the defendant to waive counselor challenges to his conviction andsentence without an evidentiary determination of his competency and thevalidity of his waivers.2. Given Judge Guimond's discharge of Simrln and Goody as counsel forHaugen and reassignment as "stand by counsel," they are prohibited from

seeking enforcement of the law as they understand it to apply to Haugen,except at his request.3. If they were permitted to seek to enforce the law as they understand It toapply to Haugen, the law would require them to challenge their removal ascounsel for Haugen, and pursue appropriate measures to challenge hisconviction and sentence of death.In addition, this court has received two letters from Haugen dated June 21, 2011,expressing his objection to the petition flied on his behalf and stating that he did notauthorize Its flllng.This court requested briefing on the Issue of OCRC's legal authority to petition formandamus relief on behalf of Haugen. In response, the court received memoranda oflaw from the Oregon Attorney General and OCRC.

ORDER ALLOWING PETITION FOR ALTERNATIVE WRIT OF MANDAMUS;ALTERNATIVE WRIT OF MANDAMUSREPLIES SHOULD BE DIRECTED TO: Slate Court Administrator. Records SeoUon,Supreme Court Building, 1163 Stale street, Salem. OR 973012663Page 2of5


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App-3Based on the foregoing, and having considered the submissions of the AttorneyGeneral, the OCRC, attorneys Slmrln and Goody, and defendant Haugen this courtdetermines that:1. OCRC has alleged that Haugen Is the relator In this proceeding. Therelator is "the beneficially Interested party on whose relation" the proceeding Is brought.ORS 34.105(4). However, ORCR also acknowledges that It does not represent Haugenand states that "Mr. Haugen has not requested counsel to file this petition." OCRC hasnot made the necessary showing of legal authority to bring this proceeding on behalf ofHaugen under ORS 34.105(4). At this stage of the proceedings, the court Is notpresented with and does not decide whetherOCRC may seek amandamus remedy,under Article VII (Amended), section 2, of the Oregon Constitution, to enforce theasserted duties of the trial court as alleged in Its petition.2. Judge Guimond's reassignment of Slmrln and Goody to act as "stand by"counsel to Haugen and order not to act on behalf of Haugen except at Haugen's requestfor the purposes of the May 18,2011, hearing do not prohibit Simrin and Goody fromtaking any legal action to challenge Haugen's competency to discharge them. Slmrlnand Goody contend, as does OCRC, that Judge Guimond acted contrary to therequirements of law In accepting Haugen's waiver of his right to counsel without ahearing regarding Haugen's competence to do so.3. Because Haugen's execution Is currently soheduled for August 16, 2011and time Is of the essenoe, we therefore construe the June 20, 2011, letter from Slmrinand Goody as a petition for an alternative writ ofmandamus seeking an order directingJudge Guimond to vacate certain of his findings, rulings and orders or, In the alternative,to show cause why the court should not order him to do so. We deem the allegations ofthe patlllon to Include the assertions and allegations contained In the Slmrln and Goody

letter described above and the allegations set forth in the petlllon filed by OCRC onJune 13, 2011.Based on the foregoing, the court orders that the petition for alternative writ ofmandamus submitted by Slmrin and Goody Is allowed.

ALTERNATIVE WRIT OF MANDAMUSTo Judge Joseph C. Guimond:

Wherefore, In the name of the State of Oregon, you are commanded tovacate the following findings, rulings and orders, and take or agre8 to take the followingactions, by the close of business on July 7, 2011, or, in the alternative, to show causefor not doing so. In the event you choose to show cause. oral argument Is scheduledfor July 14, 2011, commencing at 1:30 p.m. You and other parties to this action may fileany additional briefing by the olose of business on July 11, 2011,ORDER ALLOWING PETITION FOR ALTERNATIVE WRIT OF MANDAMUS;ALTERNATIVE WRIT OF MANDAMUS

REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section.Supreme Court Building, 1163 State Street, Salem, OR 97301-2663Page 3of 6


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App -4

The following are the findings, rulings, and orders that you must vacate or showcause for not doing so:1. The finding that defendant Haugen Is competent to waive his right to counsel;2. The order removing Slmrln and Goody as counsel for defendant Haugen;3. The finding that defendant Haugen does not suffer from amental or physicalImpairment or any condition that would In any manner affect his decision notto pursue further challenges to his convictions and his sentence of death, thathe Is competent to engage In a reasonable choice of legal strategies andopinion and options, that he Is able to aId and assist his former counsel andaid and assist In the hearing, and that he Is legally sane for the purposes ofbeing executed; and4. The death warrant authorizing and commanding the Superintendent of theOregon State Penitentiary to execute the JUdgment of death.The following are the actions that you must take or agree to take or show cause

for not doing so:1, Pursuant to ORS 137.464, orderthat the Oregon Health Authority or Itsdesignee perform an assessment of the defendant's mental capacity toengage in reasoned choices of legal strategies and options;2. Pursuant to ORS 137.463(3) and (4), after completion of the assessment bythe Oregon Health Authority or Its designee and any other Inquiry you deem

appropriate, and before issuing a death warrant, hold an evidentiary hearingand:a. permit Slmrln and Goody to offer evidence pertinent to defendantHaugen's mental capacity to make a competent, knowing, andvoluntary waiver of his rights and to the question ofwhether defendantHaugen Is competent for the purposes of being executed;b. advise defendant Haugen that he is entitled to counsel In any post-conviction proceeding and that counsel will be appointed If thedefendant Is financially eligible for appointed counsel at state expense;c, determine whether defendant wishes to waive counsel, and whetherthat waiver Is competent, knowing and voluntary;

ORDER ALLOWING PETITION FOR ALTERNATIVE WRIT OF MANDAMUS;ALTERNATIVE WRIT OF MANDAMUSREPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Secllon,Supreme Court Building, 1163 Stale Street, Salem, OR 973012563Page 4of6 .


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App- 5d. make findings on the record whether defendant Haugen suffers from amental condition that prevents defendant Haugen from comprehendingthe. reasons for the death sentence or Its Implication; ande. determine whether defendant Haugen intends to pursue anychallenges to the sentence or conviction and, If not, advise defendantHaugen of the consequences and make a finding on the recordwhether the defendant competently, knowingly and voluntarily waivesthe right to pursue available challenges to his death sentence.02\/

c: Mary H. WilliamsAnna JoyceJeremy RiceJeffrey E. EllisAndySlmrlnW. Keith GoodyWalter M. BeglauGary Dwayne Haugen

jf

ORDER ALLOWING PETITION FOR ALTERNATIVE WRIT OF MANDAMUS;ALTERNATIVEWRIT OF MANDAMUSREPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section,Supreme Court Building, 1163 state Street, Salem, OR 973012563Page 5 015


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, lUi 15 2011 1145PM HP LASE:RJET FAX

STATE OF OREGON 'MARION OOUNTY OOURTSJUL 14 2011

1F1l..E!O#31

ORDER REMOVING D J ~ F E N D A N T ' SC'OUNSELS ANb suaSTlTUTINOCOUNSEL

) No; 04C46224))))))

VS.CARY.HAUOEN,Defelldant,

IT IS SO ORDERED this I ~ ' h day QfJllly, 201,1,. '

IN TIm CIRcUIT COURT OF THE STA1'E OF OREGONFOR THE COVNTY OF MAroON

THE STATE OF OREGONplaintiff,

THIS MA'jvfER bavlng come before the COl1lt on tho 14th day ofJIlly, 2011, withPresiding JUdge Jameso L, RllOados fOI' l\llta\llS conference, and lhf:! defendant beingpl'osent with counsels Andy Slmrlt\ and Keith Ooody, and the State being rep1'(}sented byDeputy DIsMet A t t o r t 1 e ~ s Donald p, Abar and DOllgIAs C flansoll;

'fllat based upon the defendant's motion by letter aM orally to the COIIl'tto, , 'Ilubstltuto newco,unsel and th.o Court havlnll,hellrd the arguments ofdefulldanl Clary.Hall.SOIl n n defendant's lIttomey and being flJlly ~ d v l s e d in the J l r ~ 1 l 1 1 s e s ;

Tho 'Court does llereby gfallt defondant'amotion; Clury Haugen, for new counselund fitrt1ler orders that nttomeys Andy Shnrill and Keith Goody lire reJnovod asdefeiul.nnt's e 0 1 U l ~ e l s for thel'easons set fOl1h 011 tnc recol'd,

# It 18 t\lflhcl' ordered .that new counsel be nppointed In accorclmtce with tho lnws,rulos and proecdlll'e established by tho OI'OgOll R6vlsod SlaMes.

1\ "Yor OhfhlW I ~ O l t l ) I l R R E M O INO DEFENDANT'S COUNSELS AND S\fflSTITUTINO COUNSBL'

'I23456789,10II12131415161718192021222324b} 25

! i i ~ ! ~ ~ t ! ~ ~ ,I"j


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Ex-2

IN THE CIRCUIT COURT OF STATE OF OREGON

E TEREDJ L 18 2011 \NY1Marl 'ounty CircuitCourt

2

3

STATE OF OREG NMARION COUNTY CURTSJUL 18 2011 4;(FILED \tL'#31

FOR THE COUNTY OF MARION56 STATE OF OREGON,78 vs.9 GARY HAUGEN,

1011

Plaintiff,

Defendant.

)) Case No.: 04C46224)) ORDER GRANTINGMOTION) TO WITHDRAW AND ORDERING) SUBSTITUTION OF COUNSEL)))

TIUS MATTER comes now before the COUll on July 18, 2011 at 8:00 a.m.; and12 sufficient reasons for allowing such withdrawal havIng been shown to the Coml by BenjamhKim;13. And the COUll now being fully advised in the premises;

NOW THEREFORE IT IS ORDERED that said Motion to Withdraw should be anhereby is granted, and Benjamin Kim is hereby relieved of any further representation of thDefendant herein.

. : . , ,.Order prepared by the court.'- '. .;-..., f .,

IT IS FURTHER ORDERED that Gregory Schol!, Attorney at Law, Oregon State BmNumber 954039, be and is substituted to represent the Defendant in this matter.

Dated this 18th day of July, 201 J.. . ". ' ;21

19

15

14

24

16

22

18

23

20

17

25 . : .. \" '

26

27I - ORDER GRANTING MOTION TO WITHDRA \V AND28 ORDERING SUBSTITUTION OF COUNSEL


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Ex-3

IN THE SUPREME COURT OF THE STATE OF OREGONSTATE OF OREGON,Plaintiff-Adverse Party,

v.

GARY HAUGEN,Defendant,and

ANDY SIMRIN and W. KEITH GOODY,Other-Relators.Marion County Circuit Court04C46224

S059590ORDER DENYING PETITION FOR WRIT OF MANDAMUS AND DISMISSINGEMERGENCY MOTION TO STAY TRIAL COURT PROCEEDINGS

Upon consideration by the court.The Petition for Peremptory Writ ofMandamus or, in the alternative, for an Alternative WritofMandamus flied on July 14, 2011, by Relators Simrin and Goody is denied. TheEmergency Motion to Stay Trial Court Proceedings flied on July 18, 2011, by RelatorsSimrin and Goody is dismissed as moot.

DATE CHIEF JUSTICE

DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTSPrevailing party: Adverse Party[ X1No costs allowedc: Andy Simrin

W Keith GoodyMary HWilliamsDonald B AbarGary Haugen'"

Gregory BSchollHon. Jamese Lou RhoadesHon. Joseph C. GuimondBenjamin BKim

ORDER DENYING PETITION FOR WRIT OF MANDAMUS AND DISMISSINGEMERGENCY MOTION TO STAY TRIAL COURT PROCEEDINGSREPLIES SHOULD BE DIRECTED TO: State Court Admlnlst'rator, Records Section,Supreme Court Building, 1163 State Street, Salem, OR 97301-2563Page 1 of 1


34/41

IT IS SO ORDERED this 2..\ - day of July, 2011

Ex-4STATE OP OREGONMARION COUNTY COURTS

iJUL 21 2011FILED#31

) No.04C46224)) ORDER TO ALLOW STATE TO PERFORM) COMPETENCE EVALUATION)))

IN THE CIRCUIT COURT OF THE STATE OF OREGONFOR THE COUNTY OF MARION

vs,GARY HAUGEN,Defendant.

THE STATE OF OREGONPlaintiff,

WHEREFORE, based on the State's motion and the contents therein, the Comtdoes hereby order that the State is allowed to perform amental evaluation by Dr. RichardHulteng on the defendant, for the pmJloses of determining whethcr or not the defendant iscompetent to be executed and whether 01' not the defendant is competent to waivecounsel.

STATUOFOREGON }COil Illy of Marlon, ),[ herohY,oertify Ihal I alll 1111 allotlley forPlahnlff alld I 'o


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E \ \ r n ~ R E O .AUG 0 2tl\\ . . f:'/I...BDc \ r c ~ W i l i l C I R C U I T C O U R T O F T H B S T A T E O F i l R ; B ~ 03.

M lion counl'/ "1r10fl


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Ex- 6

NOW, THEREFORE, IT IS HEREBY ORDERED:

Gary Haugen on May 9, 2011 completed by Muriel D. Lezak, Ph.D. without

PROTECTIVE ORDER

FOR THE COUNTY OF MARION

Plaintiff,

Defendant.

vs.

Access to the Neuropsychology Report of an examination of Gary Haugen

This matter coming before the Court on oral Motion of Defendant, GaryHaugen by and through his counsel Gregory Scholl and Steven H. Gorham to

informed,

GARY HAUGEN,

seal and order non disclosure of a Neuropsychology Report of an examination of

THE STATE OF OREGON

express, informed written consent of Gary Haugen. and the Court being fully

\,\\c.BE.Dst.? "- 1 '1.\)\\ IN THE CIRCUIT COURT OF THE STATE OF OREGON

Cilcui\Gaultiol1cou[\\'!

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g 10U. 11~ 12~ ~ ~ ~ O ~ : J l 1 3w(!J " ' ~ , 14o=t: 'r"~ i l i J " ~ 15-J::s; g:.il~ J ' " 16( J ) ~ 17(l;W 18

1920212223242526

", ; Page

on May 9,2011 completed by Muriel D. Lezak, Ph,D.shall be restricted solely toDefendant, his current counsel, Gregory Scholl, Steven H. Gorham, Kati Dunn. . 1and their investigator Keeley McCallum unless and until Galy Haugen giveseXprbs', ihformed}Vritten c o ~ s e n t , 01 ' further order of this Court for disclosure.

1 .The above listed Counsel for Defendant may show 01' review copies of the

1, PROTECTNE ORDER


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Ex-7

document to clerical personnel and paralegals employed by counsel for theparties in the ordinary course of assisting said counsel.

The report described above may be possessed and examined only personsdescribed in the preceding paragraph. Any other use or viewing of these recordsis not authorized and shall be deemed a violation of this protective order.

Any and all written documents filed with the Court during this action, thatcontain matter comprising or containing confidential information pursuant tothis Order, and all pleadings and memoranda purporting to reproduce or closelyparaphrase such confidential information, shall be filed in sealed envelopes orother appropriate sealed containers on which shall be endorsed the title of thisaction, an indication of the nature of the contents of such sealed envelope orother container, the word "CONFIDENTIAL," and a statement substantially inthe following form:

"This envelope contains documents which are filed in this case by(name of party) and is not to be opened or the contents thereof to bedisplayed or revealed except by order of the Court."Violation of this order shall be subject to review by this court and this

court may issue further Protective Orders as well as exercise the general powersof this Court, including the power of contempt, if necessary to enforce thisOrder.

'ITiS"S6 ORDERED this 2 ' ? ~ a y ofSeptem 1', 2011.tJudge

2, PROTECTIVE ORDER


38/41

Ex-8

'-. ,

FINDINGS OF FACT

5. Defendant understands that hc has becn senlelleed to death.

STATE OF OREGONMarlon County Circuit CourtsOCT 07 2011FILED

vs.

. 6. Defendant has a rational understanding of the reason for hIs death sentence.

sentcnced to death for the aggravated murder ofDavid Polin.

today ftnd Is not bnpaired by the medication or other substftnco that he Is currently taking 01'by any mental or physical illness or condition.

4. Defendant understands thftt he lifts been convicted of two couuts ofaggrftvatedmurder ftnd

3. Defendftut Is able to undorstand what Is said to him and tho nature ofthe proceedings In court

I. Defendant Is ftble to speftk and 1lI1derstand the English language.2. Defendftnt Is ftblo to read and writo tho English langnage.

THIS MATIER came before the court on the 7" day ofOctober, 20 II, for a hearing on tile

GARY HAUGEN,Defendant.

THE STATE OF OREGONPlaintiff,

inquired of the defendant, made observations of the defeudant during aU proceedings related to this case,

and Steven Gorham. The State appeared throughMarlon County Depnty District Attomeys Donald DAbarand Douglas CHanson. The Court havblg heard testimony from Dr. Richard Hulteng, l'ecelved evidence,

competence ofthe defendant to be executed. Defendant appeared in person and with counsel, Greg Scholl

and the Court having considered the defendant's responses to the Court's questions at the October 7, 20 IIhealing, this Court hereby makes the following findings of fact and conclusions of law:

STAT,t? t g ~ ~ ? ~ r \ SM8J'lon V'Nn.,OCT 07 201\

J E ; N ~ T ! J E ; ! R ! E B : n ~ t I B C I R C U I T COURT OF THE STATE OF OREGONFOR THE COUNTY OF MARlON

) No. 0 ~ C ~ 6 2 2 4)) FINDINGS OF FACT) AND CONCLUSIONS OF LAW)))

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Page I - FINDINGS OF FACT AND CONCLUSIONS OF LAW10/51201 I COPIES: I ~ f l l e ; I ~ d e f f t t y (G. Scholl)


39/41

Ex-9

sentence ofdeath.

Schoil and Steven Gorham.

under federal or slate law to his convictions and death seutence. Defendant also understands

!lIlder federal law to his convictions and his death sentence. Defendant also understands that

.- : . ,dcath.

the federal courtmay appoint counsel, at public expense, to represent him in a proceeding for

further chailenges to his convictions and sentonce ofdeath,

would continue to represent him, at public expense, on such a petition.

in any manner affect his decision not to pursue any further ehailenges to his convictions and

order his execution on a dale to be detennlned by the court.

that he is entitied to the appointment of a suitable counsel, at public expense, to represent himIn a proceeding for post-conviction relief.

convictions and death sentence. Defendant also understands that the state pnblic defender

slate circuit court and that in such a petition he could present any challenges he may have

a habeas corpus reilef.11.Defe ndant has discussed his decision not to exercise the above rights with his attomeys Greg

8. Defendant underslands that he has a right to file a petition for a certiorari review of his

14. D ; ~ e . n d ~ n t u ~ l ~ e F s t a ! l d s the I J r 9 c e ~ u r e s , available to him to ehailenge his convictions and. 'j ' 1"" I,sentence ofdeath.:

15. Defe ndant currently does 1I0t plan to pursue any f1u1hel' iegal ehailenges to his convictions,

7. Defendant understands that he is in court today for the issuance ofa dealh warrant that will

12. Defe ndant does not suffer from ameutal or physical Impairment or auy condition that would

10. Defe ndant understands that he has a right to file a petition for a habeas corpus relief in Ulefederal district conrt and that in such a petition he could present any chailenges he may have

9. Defcndant understands that he has a right to file a petition for post-conviction relief in the

13. Defe ndant Is not taking any medication thatwould affect his decision to not pursue any

, .and"sentence'ofdeath, . :: '.' .

'. ). :. ". ; I ' "',"', ." ., -, "..' . ' " . .".-(. ' . -.", 16. Defe ndantcurreutly deslresn.at lio other person challenge his convictlous and sentence of, '. , '-,' 'i

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17. Defe ndant's desire not to challenge his convictions and sentence of death Is not the result ofauy threat or promise.

18. Defe udant understands that he has been sentenced to death, and that exeeutlon ofhis senteneewill occur ifhe does not challenge his sentence or conviction.

CONCLUSIONS OF LAWI. Defendant Is competent to engage in reason choice of Icgal strategies and options.2. Defendant is able to aid and assist his counsel.3. Defendant currently is legally sane for pnl]loses of being executed and has a rational

understanding of the reason for his execntlon and the implications thereof.

DATED at Salem, Orcgon, this

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NOTICE OF FILING AND PROOF OF SERVICE

I certify that on October 21, 2011, I directed the original Response to theOregon Capital Resource Center's Request to be filed with the Appellate CourtAdministrator, Appellate Records Section, at 1163 State Street NE, Salem, OR97301.

I fmiher cetiifY that on October 21, 20 I I, I directed the Response to theOregon Capital Resource Center's Request to be served upon Jeffrey E. Ellis,

attomey for relator and upon the Honorable Joseph C. Guimond, Circuit CourtJudge in Marion County, by mailing a copy, postage prepaid, to:Jeffrey E. EllisOregon Capital Resource Center621 SW Morrison StreetSuite 1025Portland, OR 97205

Honorable Joseph C. GuimondCircuit Court JudgeMarion County ComihouseP.O. Box 12869Salem, OR 97309-0869

l , ~ T I M THY . Y(j Y Assistant Attorneytimothy.sylwesterAttorneys for Plaintiff-Adverse PartyState ofOregon

Documents

Haugen - Resp to OCRC Request