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THE DAILY ASTORIAN • THURSDAY, DECEMBER 29, 2016
Marquis, Portland defense attorney debate death penalty
Forum looked
at ultimate
punishment
By PETER WONG
Portland Tribune
Most Oregon lawyers
never deal with cases involv-
ing the death penalty.
But as part of their require-
ment by the Oregon State Bar
for continuing legal education,
a group of them heard from
two lawyers experienced in it
during a session last Thursday
at bar offices in Tigard.
Josh Marquis has been a
county prosecutor for four
decades, the past 23 years as
the elected district attorney of
Clatsop County.
Jeff Ellis is a Portland law-
yer who specializes in crimi-
nal defense, and as director of
the Oregon Capital Resource
Center, has been involved
in cases in Oregon and other
states.
Oregon is among the 31
states, plus the federal gov-
ernment, with the death pen-
alty. Oregon is also one of
four states where the governor
has called a temporary halt to
executions.
Thirty-three men and one
woman await execution in
the Oregon State Penitentiary.
Two men were executed by
lethal injection most recently
20 years ago; both waived fur-
ther appeals.
Oregon voters have gone
back and forth on the death
penalty since the state took
over responsibility for execu-
tions in 1903. A repeal mea-
sure may appear again on a
statewide ballot, although
death penalty opponents have
not advanced it.
‘Rare sentence’
When Oregon voters rein-
stated the death penalty in
1984, it applies to aggravated
murder — circumstances are
specified by law — and it is
exempt from the state con-
stitutional ban on vindictive
justice.
“It is a rare sentence, and
very few murderers deserve
it,” Marquis said. “But there
are some people who I believe
are beyond redemption.”
He described them as
“people who have such deep
sociopathic, antisocial per-
sonalities that either they do
not care about anybody —
or worse, they actually like
to inflict pain, particularly on
vulnerable people.”
Despite his outspoken sup-
port for the death penalty,
Marquis said he has sought it
for only two offenders during
40 years as a prosecutor.
He sought it three times for
Randy Lee Guzek, who was
convicted of a double murder
in Terrebonne in 1987, when
Marquis was chief deputy
district attorney in Deschutes
County.
The Oregon Supreme
Court upheld Guzek’s death
sentence in 2015; Guzek’s
appeal is pending in federal
courts.
“I suspect that Mr. Guzek
will probably outlive me on
death row,” said Marquis,
who is 17 years older. “I will
probably die of natural causes
before he dies of natural
causes.”
He also sought it for
Anthony Scott Garner, con-
victed in 2001 of the 1997
murder of an informant in
Warrenton. But the jury sen-
tenced Garner to life impris-
onment without parole.
“That is really what the
death penalty process attempts
to do,” Marquis said. “It allows
12 jurors to decide whether
a person has any possibility
of either being redeemed or
redeeming himself.”
Under current procedure,
jurors must first decide an
offender’s guilt, then in a sep-
arate penalty phase, answer
“yes” to four questions before
imposing the death penalty.
‘Morally wrong’
Ellis, who has taken part
in Guzek’s case, also has a
strong belief on the death
penalty.
“I think it is morally
wrong. I think the state should
not be in the business of kill-
ing individuals in our name,”
he said.
“But that does not get us
very far, because reasonable
people can disagree about that
position.”
He took issue with Mar-
quis’ argument that Oregon’s
death penalty should apply
only to criminal offenders
beyond redemption.
“I guess he has a vision
of an Oregon death penalty
system that is not the system
that has been operating since
the mid-1980s in Oregon.
Instead we have a system that
is chock-full of problems,”
Ellis said.
Of the offenders sentenced
to death, Ellis said, the only
two actually executed waived
appeals — and no other case
(until Guzek) has moved on
to federal appellate review.
“Eventually we will have
a small and random group
of individuals who were sen-
tenced to death, who lost on
appeal and in post-conviction,
and lost in (federal) habeas
corpus,” he said. “Are these
people the worst of the worst?
Absolutely not.”
Penalty is final
According to the Death
Penalty Information Center,
1,442 executions have taken
place since the U.S. Supreme
Court allowed the death pen-
alty to resume in 1976. Mar-
quis said that number is a
fraction of about 600,000
murders during that period.
Texas leads with 538 exe-
cutions, and according to
the center’s definition of the
region, the South accounts for
a total of 1,175. (Ten of the 11
states in the former Confeder-
acy are in the top 14 states for
executions; the exception is
Tennessee.)
onment, he added, “If she
stands for office in two years,
I suspect she would not get
re-elected.”
A ballot question?
The Daily Astorian/File Photo
District Attorney Josh Marquis is an advocate of the death penalty for criminals who are
“beyond redemption.” He has been a county prosecutor for 40 years.
“Unlike any other pun-
ishment, the death penalty is
irreversible when inflicted,”
Ellis said.
He mentioned the case of
Cameron Todd Willingham,
who was executed in Texas in
2004 for the 1991 arson mur-
der of three children.
A subsequent report dis-
puted whether the fire was
arson, although the fire
agency says the report over-
looked some points.
“The criminal justice sys-
tem does not do a good job
with claims of innocence,”
Ellis said.
Marquis said it is the
“worst nightmare” of prose-
cutors to convict an innocent
person.
“Innocent people have
been on death row,” Marquis
said. “Anyone who denies
that is not being honest.”
But Marquis said even
the most ardent opponents of
Oregon’s death penalty have
yet to make a case for absolv-
ing any of the 34 on Oregon’s
death row.
Marquis cited the case of
Roger Coleman, who was
executed in Virginia in 1992
for the rape and murder of
his sister-in-law, despite
death-penalty foes rais-
ing doubts. A DNA test per-
formed in 2006 confirmed
Coleman’s guilt.
“The story sank faster than
dropping a 10-pound weight
into the deepest part of the
Columbia River channel,” he
said.
Which way?
According to a report by
the Death Penalty Informa-
tion Center, the past year
resulted in the fewest death
sentences imposed in the
United States in the past 40
years, and the fewest execu-
tions since 1991.
Seven states in the past
decade have abolished the
death penalty. But Marquis
said all of them occurred
because of legislative or court
actions — and when the ques-
tion was put in November in
California, Nebraska and
Oklahoma, voters upheld the
death penalty.
(In Nebraska, voters over-
turned a 2015 legislative
repeal. In Oklahoma, second
only to Texas in executions
since 1976, voters approved
a measure allowing any form
of execution not specifically
barred by the U.S. Supreme
Court.)
When then-Gov. John
Kitzhaber issued a tempo-
rary reprieve to Gary Haugen,
who was within two weeks of
execution in 2011, Kitzhaber
also imposed a moratorium
on executions.
Haugen won a challenge
to his unsought reprieve in
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gon Supreme Court in 2013
upheld the governor’s broad
constitutional authority to
grant clemency — including
the reprieve.
“I think the declaration
of a reprieve and a morato-
rium was undertaken by Gov.
Kitzhaber for very serious
and real reasons,” said Ellis,
one of four signers of a let-
ter that Kitzhaber considered
before announcing a morato-
rium in 2011.
The 2013 Legislature
gave only a single hearing to
Kitzhaber’s proposed consti-
tutional amendment to substi-
tute life imprisonment for the
death penalty.
Gov. Kate Brown con-
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succeeding Kitzhaber in Feb-
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long as she holds office. She
was elected in November to
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Kitzhaber’s term.
“If she thinks it is so
wrong, that it is so egregious
and she believes there are
innocent people on death row,
she has the power of commu-
tation. Good luck,” said Mar-
quis, who has been an outspo-
ken critic of the moratorium.
Were she to commute
death sentences to life impris-
Oregonians for Alterna-
tives to the Death Penalty is
conducting a campaign to
raise awareness, but so far,
the group has not petitioned
for any ballot initiative to
abolish it. They say they are
determining lawmakers’ atti-
tudes in the 2017 session.
“I can assure you that the
Oregon Legislature does not
have the guts to change the
Constitution — they will
refer it to the voters,” Mar-
quis said, although the Legis-
lature is required to refer any
constitutional amendment to
a statewide vote.
“I’ve been part of this con-
versation for the past 17 years
in this state. We have talked
this to death. If the voters
choose to abolish the death
penalty, so be it.”
Voters shifted 14 years
later, but Oregon in 1964 was
the most recent state to repeal
the death penalty by popular
vote. Marquis said he remem-
bers that at 12 years old, he
put a pro-repeal sticker on the
rear bumper of his father’s
Ford Falcon.
Although no one has
been released so far under
a life-imprisonment law
for aggravated murder took
effect in 1991, Marquis said
he believes opponents would
challenge it based on the fed-
eral constitutional guaran-
tee against cruel and unusual
punishment.
But Ellis said life impris-
onment without parole is a
good alternative to the death
penalty — and he would not
challenge it for adults.
“If a person is innocent
and we have sentenced him
to life, we cannot give back
the years he lost, but we can
release him and give him
some compensation,” Ellis
said. “We can keep our com-
munities safe with life with-
out parole — and I think we
can keep prisons safe even
with individuals who have
committed murder.”
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