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IN THE CIRCUIT COURT FOR THE STATE OREGON

FOR THE COUNTY OF MARION

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STATE OF OREGON,

NO. 04-C-46224

Plaintiff,

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v.

MOTION TO STRIKE SENTENCE OF

DEATH AND FOR ANY OTHER
RELIEF AVAILABLE UNDER LAW

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GARY HAUGEN,

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Defendant.

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MOTION

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The State failed to comply with Oregon law and has forever forfeited its lawful
right to seek Mr. Haugens execution.

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The State set an execution date of December 6, 2011. Mr. Haugen was not
executed on that date. Days earlier, former Governor Kitzhaber issued a reprieve not

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solicited by Mr. Haugen. After Haugen was not executed on the date appointed in the
death warrant, the State failed to seek a new execution date as required by ORS
137.463(7).

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As a result of the States failure to take any action, the execution warrant expired.
Mr. Haugen now moves this Court for an order striking the death sentence from Mr.

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Haugens judgment, as well as any other remedy that this Court finds is available under
the law.

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MOTION TO BAR DEATH PENALTY-1

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FACTS
In 2007, a jury convicted Gary Haugen of aggravated murder for the murder of a

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fellow inmate, and the jury sentenced Haugen to death. The Oregon Supreme Court

affirmed the judgment of conviction and sentence of death. State v. Haugen, 349 Or 174,

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176, 243 P3d 31 (2010). Mr. Haugen did not seek post-conviction relief. Following two
death warrant hearings, the trial court set an execution date of December 6, 2011.

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Mr. Haugen was not executed on that date.

Before that date, former Governor Kitzhaber issued a reprieve, which read, in part:
WHEREAS, Oregons application of the death penalty is not fairly and
consistently applied, and I do not believe that state-sponsored executions bring
justice;
NOW, THEREFORE, by virtue of the authority vested in me by Article V, Section
14 of the Oregon Constitution, I, John A. Kitzhaber, MD, Governor of the State of
Oregon, hereby grant Gary D. Haugen a temporary reprieve of the aforementioned
death sentence for the duration of my service as Governor.

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The State did not seek and no court issued a stay of execution. At no time
between December 7, 2011, and now has the State sought or this Court issued a new

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execution warrant.
ARGUMENT

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Following the law is not optional. Judicially rewriting the law is not permitted.

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The State failed to comply with the mandatory directive of ORS 137.463 to issue a
new death warrant after Mr. Haugen was not executed on December 6, 2011.

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Consequently, the State has forfeited its legal ability to seek a new execution warrant.
ORS 137.463 provides in pertinent part:

MOTION TO BAR DEATH PENALTY-2

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(5) Following the death warrant hearing, a death warrant, signed by the trial judge
of the court in which the judgment was rendered and attested by the clerk of that
court, shall be drawn and delivered to the superintendent of the correctional
institution designated by the Director of the Department of Corrections. The death
warrant shall specify a day on which the sentence of death is to be executed and
shall authorize and command the superintendent to execute the judgment of the
court. The trial court shall specify the date of execution of the sentence, taking into
consideration the needs of the Department of Corrections. The trial court shall
specify a date not less than 90 days nor more than 120 days following the effective
date of the appellate judgment.

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The statute then provides what the State and this Court must do when an execution
does not take place on the date specified in the warrant.

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(7) If for any reason a sentence of death is not executed on the date appointed in
the death warrant, and the sentence of death remains in force and is not stayed
under ORS 138.686 [automatic stay of sentence of death for state post-conviction
and federal habeas proceedings] or otherwise by a court of competent jurisdiction,
the court that issued the initial death warrant, on motion of the state and without
further hearing, shall issue a new death warrant specifying a new date on which
the sentence is to be executed. The court shall specify a date for execution of the
sentence, taking into consideration the needs of the Department of Corrections.
The court shall specify a date not more than 20 days after the date on which the
states motion was filed.
(8) No appeal may be taken from an order issued pursuant to this section.

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Mr. Haugen was not executed on the appointed date. The sentence of death
remained in force. The death sentence was not stayed, either by operation of law or by

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any court. The State did not seek a new death warrant.
The State will almost certainly respond that the Governors reprieve relieved it of

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the obligation to do so. That would be a compelling argument if the a reprieve was a
statutorily identified exception to the obligation to seek a new warrant anytime an
execution does not take place on the date specified. But, it is not.

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MOTION TO BAR DEATH PENALTY-3

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The text of the statutory provision itself is the starting point for interpretation and
is the best evidence of the legislature's intent. State ex rel. Juv. Dept. v. Ashley, 312 Or.

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169, 174, 818 P.2d 1270 (1991). Words of common usage typically should be given their

plain, natural, and ordinary meaning. See State v. Langley, 314 Or. 247, 256, 839 P.2d

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692 (1992) (illustrating rule); Perez v. State Farm Mutual Ins. Co., 289 Or. 295, 299, 613
P.2d 32 (1980) (same). As Oregon courts and other authorities long have observed, there

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is no more persuasive evidence of the intent of the legislature than the words by which
the legislature undertook to give expression to its wishes. State ex rel Cox v. Wilson, 277
Or. 747, 750, 562 P.2d 172 (1977) (quoting U.S. v. American Trucking Ass'ns., 310 U.S.

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534, 54244, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940)).The intention of the legislature as to

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the mandatory or directory nature of a particular statutory provision is determined

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primarily from the language thereof. Shall is a command: it is used in laws, regulations,
or directives to express what is mandatory. Preble v. Dept. of Rev., 331 Or 320, 324, 14
P3d 613 (2000) (citations omitted). It is elementary that shall connotes the imperative.

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Sizemore v. Myers, 327 Or. 71, 7475, 957 P.2d 577 (1998) (requirement that notice of

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petition for review of ballot title shall be given by certain deadline was statutory

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prerequisite to review, even though it was not jurisdictional).

In addition, because the death penalty qualitatively differs from any other
sentence, death penalty procedures required application of a heightened degree of

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scrutiny. California v. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 3451-52, 77
L.Ed.2d 1171 (1983); Zant v. Stephens, 462 U.S. 862, 884, 103 S.Ct. 2733, 2746, 77

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L.Ed.2d 235 (1983); Enmund v. Florida, 458 U.S. 782, 797, 102 S.Ct. 3368, 3377, 73
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L.Ed.2d 1140 (1982); Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65
L.Ed.2d 392 (1980); Woodson v. North Carolina, 428 U.S. 280, 304, 96 S.Ct. 2978,

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2991, 49 L.Ed.2d 944 (1976).

ORS 137.463 is a mandatory, rather than a directory, statute. Failure to comply

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with its terms results in the loss of any future opportunity to invoke the statute. When a
defendant is not executed on that date specified in a death warrant and no stay is entered,

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the State must seek another warrant. It is indisputable that the State failed to seek another
warrant. Now, years later, the State has forever lost the statutory right to do so.
Although Mr. Haugen relies primarily on the statute, because the State failed to

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comply with the statutory directive, double jeopardy provides a further protection against

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the State seeking another execution date. It was the statutory duty of the state officials

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to make sure that there was no failure. Louisiana ex rel. Francis v. Resweber, 329 U.S.
459,477 (1947) (Burton, J., dissenting).
The double jeopardy clause of the federal constitution protects against three

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distinct abuses: a second prosecution for the same offense after acquittal; a second

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prosecution for the same offense after conviction; and multiple punishments for the same

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offense. United States v. Halper, 490 U.S. 435, 440 (1989) (citing North Carolina v.
Pearce, 395 U.S. 711, 717 (1969)). See also United States v. DiFrancesco, 449 U.S. 117,
129 (1980). The double jeopardy clause mandates that a criminal sentence, once its

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service has commenced and there is a reasonable expectation of its finality, may not later
be increased or augmented without violating double jeopardy's proscription against

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multiple punishments. United States v. DiFrancesco, 449 U.S. at 127-28, 134-37; United
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States v. Fogel, 829 F.2d 77, 87 (D.C. Cir. 1987) (Bork, C.J.). See also United States v.
Benz, 282 U.S. 304, 307 (1931).

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Here, the State had a duty (and Mr. Haugen had a reasonable expectation) that the

State would return to court in order to address the execution warrant once the Governors

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reprieve was issued. Instead, the State did nothing. It did not seek a new execution date.
It did not seek a stay. It did nothing.

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As a result, the execution warrant expired. In the years since, the State has taken
no steps to comply with the law. The State cannot now revive what it let expire.

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CONCLUSION

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The Oregon Supreme Court has previously found that a right may be forfeited by
failure to make timely assertion of the right. Delaney v. Gladden, 232 Or 306, 374 P2d

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746 (1962), cert den 372 US 945 (1963). Compare State v. Lewis, 249 Or App 480, 499,
278 P3d 51, rev den 352 Or 564 (2012) (where transcript lost due to passage of time, and
where defendant had been advised how to obtain transcript earlier, but did not do so, loss

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of transcript due to defendant's inaction was not a basis for reversal). As Wardius v.

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Oregon, 412 U.S. 470 (1973), instructs: the Due Process Clause of the Fourteenth

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Amendment requires equal enforcement of the law.

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MOTION TO BAR DEATH PENALTY-6

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This Court should dismiss the death penalty and order any other relief that it finds
appropriate.

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DATED this 28th day of July, 2015.

Respectfully Submitted:

/s/Jeffrey Ellis
Jeffrey Ellis OSB # 102990
Attorney for Mr. Haugen
621 SW Morrison St., Ste 1025
Portland, OR 97205
JeffreyErwinEllis@gmail.com

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MOTION TO BAR DEATH PENALTY-7