In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Ricketts, others seek dismissal of ACLU lawsuit challenging Nebraska death penalty referendum

Nebraska: Gathering signatures against the repeal
LINCOLN — Attorneys for Gov. Pete Ricketts argued Friday in court that he simply exercised his rights as a citizen when he participated in a referendum petition that restored Nebraska’s death penalty in 2016.

Lawyers for the ACLU of Nebraska countered that as the state’s top executive, the governor doesn’t get to make law, but when he led and helped fund the referendum petition drive to overturn the Legislature’s death penalty repeal, the governor made law in violation of the Constitution’s separation of powers clause.

Lancaster County District Judge John Colborn heard 50 minutes of legal debate Friday from six different lawyers in a lawsuit that could strike down the 2016 death penalty referendum vote.

The judge said he will consider the arguments along with written briefs before he issues a ruling. He could dismiss the case, remove some of the defendants or allow the lawsuit to proceed unchanged.

Lawyers for Ricketts, Attorney General Doug Peterson, Treasurer Don Stenberg and several other defendants argued that the lawsuit should be dismissed now before engaging in further litigation.

J.L. Spray, who represents Stenberg and the three residents who sponsored the pro-death penalty petition drive, said it would be a “ridiculous conclusion” for the judge to say certain citizens could not participate in the process by virtue of holding elected office.

“Just because you’re a governor or state senator or a judge or an employee of the state, you don’t lay down your constitutional rights,” Spray argued.

Bill Trac, a lawyer for the ACLU, said no one is arguing that elected officials or judges can’t vote on a ballot issue. But by organizing the petition drive, Trac said, Ricketts sought to defeat the death penalty repeal, something he could not accomplish even with the veto power of his office.

“That’s really the fundamental argument in this case,” Trac said. “Had the executive not acted, there might not have even been a referendum on the ballot.”

The lawsuit by the ACLU of Nebraska also argues that the Legislature’s 2015 repeal took effect long enough to void the death sentences of the 11 men on death row.

“Did this law go into effect and change our clients’ sentences to life in prison? We say yes,” said Brian Stull, a lawyer with the ACLU.

Assistant Attorney General Ryan Post disagreed. He said that once petition organizers turned in sufficient signatures in the summer of 2015 to put the question on the ballot, the law was suspended until the election on Nov. 8, 2016.

The suit was filed in December in response to the Department of Corrections obtaining fresh supplies of lethal injection drugs. The department gave notice that it intended to use the drugs to execute Jose Sandoval, ringleader of a botched 2002 bank robbery in Norfolk that left five dead.

Source: Omaha World-Herald, Joe Duggan, January 6, 2018

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