Marion County veteran prosecutor Katie Suver ticked off the names and crimes of various death row inmates:
A father and son convicted of conspiring to blow up a bank, killing 2 police officers in the process.
Another man sentenced to death for stabbing a Salem woman then peddling her stolen jewelry.
Several inmates who killed while incarcerated for other crimes.
All of these current death row inmates, Suver said, stand the chance of skipping out on a death sentence in the event their convictions are overturned if lawmakers don't make quick changes before Senate Bill 1013 goes into effect on Sept. 29.
The bill narrows Oregon's use of the death penalty by whittling down the number of crimes that qualify as aggravated murder — the only offense punishable by death.
Previously, about 20 circumstances made a homicide qualify as aggravated murder, including murder for hire, murdering multiple people, torturing before killing, the murder of someone under 14 and murder during the course of a felony crime.
Oregon legislators voted to limit these aggravating circumstances to only 4: terrorist killings of 2 or more people, the premeditated murder of police officers, murder committed in a prison or jail by someone who was already convicted of murder, and the premeditated murder of a child under the age of 14.
According to the Oregon Department of Corrections, 29 men and 1 woman are currently on death row.
Suver said the changes mean most of the people on death row, if tried under the new law, could not be charged with aggravated murder and sentenced to death. This includes a mother accused of torturing and abusing her 15-year-old daughter to death, and a man believed to be Oregon's most prolific serial killer.
The only person Suver believes could still be charged with aggravated murder is an inmate who stabbed and beat another inmate to death at the Oregon State Penitentiary while already serving a sentence for aggravated murder.
"Jason Brumwell is the only defendant currently on death row whose crime would fit under the new definition of aggravated murder," she said. "The only one."
SB 1013 passed the House 33-26 and the Senate 17-10 in the 2019 Legislative session and was signed into law Aug. 1 by Gov. Kate Brown.
The law attracted little attention until an Aug. 9 email from the Oregon Department of Justice sparked debate and confusion.
The department reviewed the bill and a murder case out of Washington County involving a teen thrown off a bridge in 1998 only to find that they could not defend a death sentence or even an aggravated murder conviction.
The defendant in that case, Martin Johnson, was convicted of aggravated murder and sentenced to death in 2001 but his conviction was overturned by the Oregon Supreme Court in 2017. His retrial is set to begin in October.
In an email to Oregon prosecutors, Oregon Department of Justice Solicitor General Benjamin Gutman said the new law would have a significant impact on pending cases.
DOJ officials who had reviewed the then-pending legislation concluded that a new, narrower definition of aggravated murder in SB 1013 did apply to pending cases — including cases that have been sent back for new penalty or guilt phases, Gutman said in the email.
This meant most of those cases could no longer be prosecuted as capital aggravated-murder cases and would instead have to be tried as first-degree murder, which carries a presumptive sentence of life with the possibility of parole after 30 years.
He said the conclusion came as a "surprise."
"Many of us, myself included, were under the impression that SB 1005 ensured that SB 1013 would not apply to cases that had previously been tried and were being retried after an appeal or post-conviction relief," Gutman said. "There are news stories citing legislators as saying as much."
The finding left those who had opposed the law outraged.
In a letter penned to the bill’s chief sponsors, the Oregon District Attorneys Association called on Rep. Jennifer Williamson, D-Portland, and Sen. Floyd Prozanski, D-Eugene, to fix the language in a special legislative session before the law goes into effect on Sept. 29.
“This law is a failure on multiple levels — a failure to respect the will of the voters, a failure to draft a clear law for Oregon’s most dangerous criminals, and a failure of trust by telling voters it is not retroactive when the opposite is true,” ODAA President Beth Heckert said in the letter.
Even those who had supported the law were confused.
Prozanski said after hearing about the DOJ's interpretation of how retroactive the law could be, he immediately knew: "If that's the case, we need to have a special session and fix it."
He said he feared unintended consequences and negative fallout from the law if a change wasn't made before it went into effect.
Prozanksi said he is working with stakeholders to craft legislation to clarify the intent of the bill, making it clear it was not intended to be retroactive in any way and "only applies to offenses committed on or after the effective date of September 29."
Because the bill's effective date is the last Sunday in September, Prozanksi is recommending a special session during legislative days Sept. 16-18 when most lawmakers already are planning to return to Salem for committee hearings.
"The clock is ticking, but we have a month to take care of this," he said.
Clarity for victims
On Wednesday, Brown announced that she was willing to call a special session to make fixes to the bill if the changes have enough votes to pass and the session lasts less than one day and tackles just the one issue.
"From my perspective, given the seriousness of the issues that we are dealing with and the impact on victims and families, I think it's critically important that there be clarity about the law and in particular this law," Brown said during a conference call with reporters.
Oregon has not had an execution since 1997, and all potential executions have been subject to a moratorium put in place in 2011 by then-Gov. John Kitzhaber. After taking office, Brown upheld the moratorium and made her personal opposition to the death penalty clear.
But Brown said she wants to change the law, removing any "retroactivity" and providing clarity to the victims, their communities and the legal system.
"Based on the clarification by the Department of Justice, it is really clear that there is a misunderstanding about the intent of the words in Senate Bill 1013," she said.
Brown said she's relying on legislative leadership to change the language of the bill and garner enough votes ensure passage.
When asked by a reporter whether her office took responsibility for the misunderstanding, Brown replied:
"Look — there were a lot of people involved in this legislation. I think we all share some responsibility."
'Confusion like we've never seen before'
Suver, the Marion County prosecutor, said without a fix, countless cases could be thrown into question.
"What I can say, as a practitioner, as a lawyer, frankly, I continue to be confused about what the application of this law now means," she said.
What happens to those already charged with aggravated murder but awaiting trial, she said.
"Do we go back to grand jury?" she asked. "Do we strike the language in the indictments? Is it just words? Does it really matter?"
Several people in Marion County have pending aggravated murder charges against them, including Amy Robertson, a Keizer woman charged with killing her 12-year-old son, and Craig Bjork, an inmate convicted of murdering his 2 young sons, his girlfriend, a prostitute and an inmate in Minnesota before being transferred to Oregon State Penitentiary. Bjork is suspected of murdering another inmate in 2013.
2 men suspected of shooting and killing two men at a Northeast Salem home also have aggravated murder charges pending against them.They are suspected of also shooting a pregnant woman, killing her unborn child.
"In all fairness and all candor, we have a significant amount of confusion on what this means to pending cases," Suver said. "It has thrown confusion like we've never seen before into the prosecution of the most serious crimes."
This uncertainty also seeps into older cases. Of the 30 people on death row, eight were convicted and sentenced to death in Marion County.
"Not only does (the bill) presently impact cases that are being remanded to our office, but it will continue — potentially for years and years and years — to impact cases as they move through the post-conviction process," Suver said.
Those sentenced to death are automatically granted an appeal. The appeal and post-conviction process can take decades. For example, David Lee Cox was convicted in 2000 of murdering another inmate at the state prison and sentenced to death. His conviction was overturned this year.
The Turnidges are another example of this uncertainty, Suver said.
The father and son were sentenced to death for the bombing deaths of 2 law enforcement officers at a Woodburn bank.
The language of the law about terrorist acts — the same used in the Patriot Act — would make mass shootings, school shootings and the Woodburn bombing hard to prosecute as aggravated murders, Suver said. And SB 1013's requirement to prove "premeditation" would make it difficult to try the Turnidges with aggravated murder if their convictions were overturned.
She and the Oregon District Attorneys Association opposed the bill from the beginning, saying it was not properly being discussed and would create significant legal problems.
"The decision of whether to repeal the death penalty should be a vote of the people of the state of Oregon and the narrowing of the definition of aggravated murder to effectively repeal the death penalty was not the proper process," Suver said.
And despite assurances from lawmakers the bill would not be retroactive, it will be if fixes are not made, she added.
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Proponents push back
Bobbin Singh, executive director of Oregon Justice Resource Center and a key proponent of the bill, accused district attorneys and DOJ attorneys of either being incompetent and not reading the law or understanding it but trying to spark controversy over a non-issue.
"It all went through the legislative process," Singh said. "The plain language of the bill is clear. People knew what it said. There was nothing misleading or anything like that."
He said those wanting the quote-unquote "fixes" are conflating the ideas of retroactivity versus reversal.
"In any criminal case, when there is a reversal, that typically happens for serious constitutional issues," Singh said. "That's not uncommon with death penalty cases because of how big they are, how large they are, how much scrutiny they go under."
If a defense attorney didn't do their job or prosecutors engaged in misconduct, convictions and sentences get reversed and sent back to trial or sentencing.
Singh said when old cases go back to trial, they should get the same rights as those with new cases.
“If the law has changed, it strikes me as reasonable to apply the new law,” said Caroline Davidson, associate professor at Willamette University’s College of Law.
Davidson pointed to the international human rights principle known as “lex mitior” — the concept that if the law has changed, a person should benefit from the lighter penalty. The United States has not consistently adopted this principle, she added.
Davidson said the current confusion over SB 1013 could be attributed to the disconnect between the legal definition of “retroactive” and the non-legal interpretation of the word.
“Retroactivity can be a complicated issue,” she said. “But this isn't retroactive. It's active.”
Those with overturned convictions and sentences have active cases. They have the same rights as other defendants.
Singh said he disagrees strongly with the bill being changed in a special session.
"To me, it is incredibly disturbing that 1) this framing (of the "retroactivity") has been pushed out, and 2) legislative leadership and now the governor are also sort of acquiescing to this sort of nonsense," he said.
But not all legislative leaders support making changes.
“I support Senate Bill 1013 as it was passed and signed into law," House Speaker Tina Kotek, D-Portland, said in a statement. "There is no consensus on whether the law needs to be amended and there is no agreement among legislators on appropriate next steps.”
According to media reports, including several comments to The Oregonian, key backer Williamson insisted the law would not be "retroactive." After the DOJ email, she said no changes were needed and the bill was written as intended.
A few days later, she directed a letter to the governor and legislators saying she would be game for a special session to clear up "apparent confusion" in exchange for the full funding of the Oregon Domestic and Sexual Violence Services Fund, according to the Oregonian/OregonLive.
Williamson did not respond to request for comment from the Statesman Journal.
The tumult is an indicator of how broken Oregon's death penalty system is, Singh said.
"It just goes to show that the death penalty is a waste of time and money and nothing more than a symbolic punishment in which we're asking death penalty attorneys, judges, corrections officers and defendants to go through this perverse charade," he said.
Davidson said she doesn’t think the new law goes far enough.
“I think there are any number of problems with the death penalty from both a moral and cost perspective such that we ought to eliminate it altogether,” she said. “Given those problems, at a minimum, we should be restricting it. This is a step in the right direction, at least.”
Source: Salem Statesman Journal, Staff, Sept. 2, 2019
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"One is absolutely sickened, not by the crimes that the wicked have committed,
but by the punishments that the good have inflicted." -- Oscar Wilde
but by the punishments that the good have inflicted." -- Oscar Wilde