IN THE SUPREME COURT OF THE STATE OF OREGON. : (Marion County Circuit Court) : -vs.- : : CAPITAL CASE--EXPEDITED GARY HAUGEN, : Relator.

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1 0 0 IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Adverse Party, Page Enforcement of Mandamus : No. S0 : Trial Court No. 0C : (Marion County Circuit Court) : -vs.- : : CAPITAL CASE--EXPEDITED GARY HAUGEN, : Relator. : ADDIONAL SUPPORT FOR REQUEST THAT THIS COURT AND/OR THE CHIEF JUSTICE ACT ON ITS OWN MOTION AND ISSUE AN ORDER ENFORCING ALTERNATIVE WRIT OF MANDAMUS I. INTRODUCTION Both the State and Mr. Haugen s current attorneys defend Judge Guimond s decision granting Mr. Haugen s pro se motion to exclude Dr. Muriel Lezak s testimony that Haugen was incompetent, by arguing that only Haugen could authorize disclosure and that defense counsel was ethically bound to support Haugen s decision. As a result, the trial court only heard evidence that Haugen was competent because Haugen did not want to be found incompetent. This Court issued a writ of mandamus because Judge Guimond conducted a competency hearing where expert testimony that Haugen was incompetent was

2 0 0 excluded. This Court s writ clearly authorized the admission of that evidence. See Alternative Writ, p,, (a). Nevertheless, Judge Guimond conducted a second hearing where that same evidence was again excluded. While the legal basis for exclusion differed, the ultimate reason for the exclusion did not. Mr. Haugen did not want it presented, so Judge Guimond ordered it stricken. The United States Supreme Court has made it exceedingly clear that in a proceeding to determine a prisoner's competency to be executed, the factfinder must have before it all possible relevant information about the individual defendant whose fate it must determine. Ford v. Wainwright, U.S., () (citations and internal quotations omitted). For the second time now, Judge Guimond conducted a hearing where he agreed not to consider evidence supporting one of the two possible outcomes. For the second time now, Judge Guimond permitted the person whose competence was at issue to preclude the introduction of evidence that he was incompetent. This Court should order a third hearing. The reliability of the competency hearing s outcome is not assured simply because the State s expert testified that Haugen was competent. A one-sided hearing is not fair, especially where evidence on the other side of the proposition exists, but is excluded by the person Page Enforcement of Mandamus

3 0 0 whose competence is in question and is supported by attorneys who feel bound to further the defendant s stated goals. The law simply does not permit an arguably incompetent person to control the evidence introduced at his competency hearing, which is exactly why this Court issued its writ. It is also why this Court should now enforce that writ. II. ARGUMENT A. A Ford Hearing Demands More Than Some of the Evidence. A judge presiding over a competency to be executed hearing must demand to hear all of the relevant evidence. Judge Guimond presided over a hearing where he suppressed half of the disputed evidence. The Supreme Court reversed in Panetti v. Quarterman, U.S. 0, - (00), because the state court's factfinding procedures were not adequate for reaching correct results or, at a minimum, resulted in a process that appeared to be seriously inadequate for the ascertainment of the truth. Likewise, in Ford, the United States Supreme Court noted that, in light of the significant interests at stake, [i]t is all the more important that the adversary presentation of relevant information be as unrestricted as possible. In fact, Justice Marshall in the plurality opinion wrote that the adversary presentation of relevant information should be as unrestricted as possible. Ford, U.S. at. Page Enforcement of Mandamus

4 0 0 As an example of why the state procedures on review in Ford were deficient, Justice Powell explained, the determination of sanity appear[ed] to have been made solely on the basis of the examinations performed by state-appointed psychiatrists. Id., at. In fact, the Court rejected the contention that the trial court improperly considered the reports of experts who did not testify, as having no merit because all evidence relevant to the issue of the petitioner's competency to be executed should have been considered. Neither the State nor current defense counsel cite to a single case that permits the exclusion of an expert opinion of incompetence at a competency determination. Instead, the State and current defense counsel ask this Court to adopt a rule completely contrary to Ford and Panetti. The State and current defense counsel ask this Court to affirm the results of a hearing where only the State s chosen expert testified. It is true that this Court s mandamus order does not explicitly require the presentation of Dr. Lezak s testimony. Instead, this Court s order reflects the posture of the case when the writ issued. At that point, former defense had been prevented from offering Dr. Lezak s testimony. This Court directed the trial court to permit Simrin and Goody to offer evidence pertinent to defendant Haugen s competency. Writ, p.. This Court could obviously not have anticipated what Page Enforcement of Mandamus

5 0 0 happened next. Even if the decision to replace Simrin and Goody with new counsel was not a violation of the writ, excluding the existing expert opinion that Haugen was incompetent was both contrary to the writ and the Constitution. This Court s writ was premised on the proposition that a competency hearing could only accord with the statutory and constitutional requirements if all of relevant evidence was presented and considered. That evidence still exists despite the State and Mr. Haugen s interest in suppressing it and current defense counsel s desire not to present it. Nevertheless, the trial court was bound to hear and consider that evidence. B. The State and Current Defense Counsel Defend the Trial Court s Conduct Based on Facts Not in the Record. Those Facts Would Be Disputed at an Adversarial Hearing Designed to Ascertain the Truth. The facts in the record are simple: Two experts have evaluated Mr. Haugen s competency to be executed. One concluded that he was incompetent. The other concluded that he was competent. Only one expert testified: the State s chosen expert. Dr. Lezak never wrote a report extensively detailing her diagnosis or the reasons she found Mr. Haugen incompetent because former defense counsel were promised additional time to prepare for a competency hearing a promise that Judge Guimond revoked only a day or two later. Shortly after that, former defense Page Enforcement of Mandamus

6 0 0 counsel were removed by the court. No one since that time has asked Dr. Lezak to elaborate on her opinions in writing or orally. Dr. Lezak did not testify at the first competency hearing because Judge Guimond granted Haugen s motion to waive counsel and then agreed to strike the evaluation. Dr. Lezak did not testify at the second hearing because Judge Guimond heard and granted Haugen s pro se motion to exclude the evaluation on the grounds of privilege. In other words, in both instances Judge Guimond granted Haugen s request to exclude Dr. Lezak s testimony before deciding whether Haugen was competent. Dr. Hulteng was the prosecutor s chosen expert. He was later adopted as the OHA designee. Although he testified, his report has never been available to the press or public for review. Obviously, undersigned counsel cannot comment on that report because he cannot view it. Instead, the report remains under seal. In defending Judge Guimond s conduct of the death warrant hearing, the State and current defense counsel introduce new facts not found in the record. Those facts should not be considered by this Court. However, the parties reliance on extra-record facts demonstrates the inadequacy of the death warrant hearing. It is important to point out that many, if not most, of those new facts are disputed. For example: Page Enforcement of Mandamus

7 0 0 Mr. Haugen was never assured by his former attorneys that he could assert a privilege if he disagreed with the conclusions reached by Dr. Lezak. Instead, former counsel informed Mr. Haugen that Dr. Lezak was conducting a forensic evaluation to determine whether he was competent; Current defense counsel are aware that Dr. Lezak concluded that Mr. Haugen is incompetent. Current counsel did not ask Dr. Lezak to write a report, to review Dr. Hulteng s evaluation, or to further evaluate Mr. Haugen; Compelling evidence exists to conclude that Mr. Haugen suffers from a chronic and serious mental illness and currently possesses irrational beliefs about the reason for his execution. Current defense counsel sought advice from experienced capital defense counsel, but repeatedly failed to follow that advice. For example, Mr. Scholl was urged to consult with certain experts familiar with Ford hearings, but failed to do so. In fact, Mr. Scholl s extra-record declaration does not reveal a single expert that he consulted with to inform his lay opinion that Haugen is competent other than the State s chosen expert ; The lower court s order finds that Haugen has a rational understanding of the reasons for his execution, but does not elaborate, either on the facts supporting that conclusion or the legal standard employed. Reviewing courts have struggled with applying Panetti s rationality standard. The trial court avoids that difficult issue by simply stating a conclusion, without any factual or legal exegesis. Ake v. Oklahoma, 0 U.S. (), Ford, and Panetti all emphasize the need for the assistance of experts when evaluating mental dysfunction. Page Enforcement of Mandamus

8 0 0 Undersigned counsel can immediately produce declarations in support of these contested, extra-record facts, if this Court requests. This Court can enforce its mandamus order without resolving these disputed, extra-record facts. This Court can simply direct the appointment of independent counsel to present evidence in support of the claim that Mr. Haugen is incompetent. An adversarial competency hearing would not necessarily need to address the competence or correctness of current defense counsel s representation. Instead, an adversarial competency hearing with independent counsel would permit all of the facts to be presented not just the facts authorized by Haugen. C. The Inmates Do Not Run the Asylum. An Arguably Incompetent Capital Defendant Cannot Preclude the Presentation of Evidence that He Is Incompetent. Either a Forensic Competency Evaluation Can Be Introduced Despite a Defendant s Claim of Privilege or the Evidence Rule Conflicts With the Constitution. When it issued the alternative writ of mandamus, this Court concluded that the trial court erred when it considered Mr. Haugen s motion to waive counsel before determining whether he was competent. When Judge Guimond conducted the second competency hearing, he considered Mr. Haugen s assertion of privilege before considering the evidence relevant to competency determination. Nevertheless, the State contends that Judge Guimond properly allowed Mr. Haugen to exercise a claimed evidentiary privilege, prior to determining whether Page Enforcement of Mandamus

9 0 0 he was competent to make that and other decisions. In fact, the State goes so far as to argue that this Court should not have been allowed to consider the fact that Dr. Lezak evaluated Mr. Haugen or that she concluded that he was incompetent because Mr. Haugen did not personally authorize the disclosure of that information. In defending Judge Guimond s conduct of the death warrant hearing, the State and current defense counsel argue that OEC 0 precludes the introduction of a defense-initiated forensic competency evaluation when a defendant does not like the results. If that is true, then the evidentiary rule conflicts with the Constitution. If this Court is considering adopting that argument, this Court should stay proceeding and invite the parties to present briefs on this important and wide ranging constitutional issue of apparent first-impression in this state. The original petition for a writ of mandamus filed in this case argued extensively that, when raised, a determination of competency must be made first Adopting this rule would preclude defense offering an expert opinion in support of any request for a competency hearing anytime the defendant did not authorize disclosure. It would also put the defendant, not counsel, in charge of the decision whether to offer any expert testimony that relies in any part on defendant s statements to the expert. As a result, defense counsel frequently would be restricted from providing effective assistance of counsel. In essence, adopting the rule requested in the responsive pleadings would create de facto hybrid representation anytime a forensic evaluation is conducted which relies in any small measure on a defendant s statements. Undersigned counsel is not aware of any jurisdiction which has adopted such an untenable rule. Page Enforcement of Mandamus

10 0 0 and that defense counsel must be permitted an unfettered opportunity to present the evidence supporting incompetency even in spite of a defendant s stated wishes. See e.g., Hull v. Freeman, F.d (d Cir.). Hull was found incompetent to stand trial and was committed to a state psychiatric institution. Four years later a second competency hearing was held and the State's expert testified Hull was then competent. Hull's attorney did not cross-examine the State's expert despite the fact two other physicians believed Hull to be incompetent. On petition for habeas corpus, the Third Circuit determined the first prong of Strickland was met, remarking it cannot condone the failure of Hull's lawyer to bring the[ ] competing diagnoses to the attention of the factfinder at the competency hearing. Id. at. The court rejected counsel's argument that he relied on Hull's desire to be found competent, stating [a] presumptively incompetent defendant... cannot be entrusted with the responsibility of dictating counsel's tactics at a competency hearing. Id. at. Current defense counsel add that they felt ethically obliged to act only to further their client s stated wishes. However, current defense counsel did not inherit a blank slate. Instead, a defense-initiated forensic competency evaluation had been conducted by an internationally recognized expert who concluded that Mr. Haugen was incompetent. Defense counsel were not free to ignore this Page 0 Enforcement of Mandamus

11 0 0 evidence. If defense counsel felt ethically bound not to present it, counsel should have informed Judge Guimond, who should have then determined how and who should present Dr. Lezak s testimony. Of course, that dilemma never materialized because the trial court took up Mr. Haugen s request to suppress the evidence as the second order of business (after former counsel were once again removed) following remand from this Court. In other words, the evidence had already been suppressed before current defense counsel encountered any perceived ethical dilemmas. As a result, current defense counsel were precluded from introducing Dr. Lezak s expert opinion even if they felt they could do so ethically. However, defense counsel s current extra-record support for their decision should inform this Court s choice of remedy. This Court s order enforcing its mandamus order should direct the presentation of all the evidence that Mr. Haugen is incompetent by counsel other than current defense counsel, given that perceived conflict. III. CONCLUSION Unless this Court acts, Judge Guimond will soon sign a death warrant authorizing the execution of an individual without considering all of the relevant evidence as to whether he is incompetent to be executed. It is elemental that a determination made without considering evidence contrary to that determination is Page Enforcement of Mandamus

12 0 0 neither fair nor reliable. To allow a defendant to control the scope of the testimony presented at a competency hearing permits that hearing to be governed by unconscionable arbitrariness. When a capital defendant seeks to circumvent procedures necessary to ensure the propriety of his conviction and sentence, he does not ask the State to permit him to take his own life. Rather, he invites the State to violate two of the most basic norms of a civilized society-that the State's penal authority be invoked only where necessary to serve the ends of justice, not the ends of a particular individual, and that punishment be imposed only where and when the State has adequate assurance that the punishment is justified and can be carried out. The trial court s conduct of the competency hearing permitted Mr. Haugen to circumvent those constitutionally required procedures. This Court should not countenance the result of that inadequate hearing, but should instead issue an order enforcing its writ of mandamus. Page Enforcement of Mandamus DATED this th day of October, 0. /s/jeffrey E. Ellis Jeffrey E. Ellis, OSBA # 00 Attorney at Law Oregon Capital Resource Ctr. SW Morrison St., Ste 0 Portland, OR 0 JeffreyErwinEllis@gmail.com

13 CERTIFICATE OF SERVICE I certify that on October, 0, I electronically filed the attached document which will automatically serve the parties who have appeared in this case. In addition, I also sent the attached document via to the following parties: 0 0 The Hon. Joseph C. Guimond Judge, Marion Co Circuit Court The Hon. Walter M. Beglau Marion County Prosecuting Attorney October, 0//Portland, OR Date and Place Page Enforcement of Mandamus Timothy Sylwester Oregon Dept. of Justice Gregory Scholl Steven Gorham Attorneys for Mr. Haugen /s/jeffrey Ellis Jeffrey Ellis