The Court will hear arguments tomorrow in Oregon v. Guzek, No. 04-928, a death penalty case in which the Oregon Supreme Court has already overturned the respondent’s death sentence three times. The case presents the question whether the Eighth Amendment entitles a capital defendant to contend in a sentencing proceeding that he should not be sentenced to death because of “residual doubt” about his guilt. In an interesting twist, respondent rejects the question presented on the ground that the case does not present an Eighth Amendment issue, and argues rather that the writ of certiorari should be dismissed as improvidently granted for want of jurisdiction.

Mary H. Williams, Solicitor General of Oregon, will argue on behalf of the State. Kannon K. Shanmugam, Assistant to the Solicitor General, will argue for the United States as amicus curiae supporting petitioner. Richard L. Wolf, of Portland, Oregon, will argue for respondent.

The party briefs are available here. The Solicitor General’s brief is available here.

The case began in 1987, when Randy Lee Guzek and two friends decided to burglarize the Oregon home of Rod and Lois Houser. Guzek had previously dated the Housers’ niece, and after the niece had broken off the relationship, relations soured between him and Rod Houser. The three men first went to Guzek’s home, where they picked up a rifle and a pistol to be used in the burglary. On the way to the Housers’ house, they stopped so that Guzek could show his friend how to use the rifle, as the three men had previously agreed that they would kill the Housers if the Housers were at home. Upon arriving at the house, Guzek pounded on the door and Rod Houser answered. A short argument ensued, at which point Guzek yelled to his friend, “Do it,” and the friend shot and killed Houser with the rifle. Guzek then ran upstairs and shot Lois Houser with the pistol, killing her.

Guzek was charged with two counts of aggravated murder. His friends confessed and pleaded guilty to reduced charges, in exchange for testifying against Guzek. At trial, Guzek’s grandfather testified that Guzek had been with him between 9 p.m. and 2 a.m. on the night of the murders. Guzek’s mother also testified that her son was asleep at her house from 2:16 a.m. until 4:30 a.m. that night. Nonetheless, the jury found Guzek guilty on both counts and he was sentenced to death.

A number of appeals ensued, during which the Oregon Supreme Court affirmed Guzek’s conviction, but vacated his death sentence and remanded for re-sentencing four times. This appeal arises from the Oregon Supreme Court’s fourth order vacating and remanding the case for re-sentencing.

In that order, the Oregon Supreme Court held that the trial court had erred when it refused to admit into evidence at the sentencing hearing the transcript of the grandfather’s trial testimony, reasoning that, under state law, the transcript of any testimony from the guilt phase was admissible at the sentencing phase. At the sentencing, Guzek also sought to present live testimony from his mother regarding his alibi, but was denied from doing so by the trial court. The Oregon Supreme Court held that this, too, was error, because Oregon’s state death penalty statute permits the admission of evidence at sentencing that a defendant is constitutionally entitled to introduce during the penalty phase, and the Eighth Amendment entitles a defendant to introduce mitigation evidence relevant to any circumstances of the offense, which would include evidence that lessens the defendant’s culpability, such as an alibi.

The State of Oregon rejects this construction of the Eighth Amendment. While the Supreme Court’s case law does require the sentencing jury in a capital case to consider mitigation evidence about the defendant’s character or record or about the circumstances of the offense, Oregon argues that the Oregon Supreme Court misread this case law to require “circumstances of the offense” evidence to include alibi evidence challenging the defendant’s actual guilt. Oregon contends that the Eighth Amendment does not enable a defendant in the penalty phase to challenge his legal guilt, but rather only allows him to present evidence challenging his moral culpability for the crime. This is because the purpose of constitutionally required mitigation evidence is to allow the sentencing jury an opportunity to make an individualized assessment about whether the death penalty is the appropriate punishment for the defendant’s specific crimes. Evidence, such as alibi evidence, that, if believed, would negate the defendant’s guilt entirely does not assist the sentencing jury in judging a defendant’s moral culpability. Even if the alibi evidence is offered not to negate guilt, but just to show that residual doubt should militate against imposing the death penalty, Oregon still argues that the Supreme Court in the 1988 case of Franklin v. Lynaugh rejected the argument that residual doubt is constitutionally relevant in a sentencing proceeding. Writing for a plurality of the Court in Franklin, Justice White rejected the argument that a defendant was entitled to a residual-doubt instruction in a capital sentencing hearing and wrote that the Eighth Amendment does not “mandate[] reconsideration by capital juries, in the sentencing phase, of their ‘residual doubts’ over [a] defendant’s guilt.” While this was a plurality opinion and therefore not binding precedent, it does indicate the Supreme Court’s skepticism about constitutionally required residual doubt evidence in this context, and, as Oregon argues, the Supreme Court itself and most lower courts to construe the opinion have read its holding to mean that residual doubt is not a constitutionally mandated mitigating factor.

The United States, writing in support of the State of Oregon, also argues that the Eighth Amendment does not mandate that a defendant be permitted to offer mitigating evidence of the sort that calls into doubt his underlying conviction. The Supreme Court has delineated two categories of constitutionally mandated mitigating evidence: evidence of the defendant’s character or record, and evidence of the circumstances of the offense. Evidence of residual doubt, the United States argues, is different in kind and does not fit into either of these constitutionally mandated categories. Indeed, the concept of “mitigation” itself is premised on the assumption that the defendant is guilty of the crime for which he offers the mitigating evidence. Adopting a rule that a capital defendant is entitled to present evidence or argument at sentencing regarding residual doubt would also have the perverse effect of raising the standard of proof in capital cases. As the government argues, such a rule would permit a jury, at its discretion, to apply a higher standard of proof in capital cases than the typical “reasonable doubt” standard. Injecting “residual doubt” into the calculus would likely confuse the jury and invite speculation as to whether absolute certainty is required for a verdict in a capital case. As the government argues, there is no constitutional justification for permitting a jury to deviate from the well-established “reasonable doubt” standard.

Rather than meeting the State’s argument head on, Guzek argues in a creative brief that the Supreme Court lacks jurisdiction to hear the case, and thus should dismiss the writ as improvidently granted. He argues that there is no federal question properly before the Court because all of the issues can be resolved as a matter of state law and the Oregon Supreme Court’s reasoning with respect to the Eighth Amendment was only dicta. The Oregon Supreme Court directed the trial court at the re-sentencing, pursuant to Oregon state law, to treat as relevant and admissible per se the prior testimony of “any” witness who testified at the guilt phase of Mr. Guzek’s trial. Thus, Guzek’s grandfather’s trial testimony, as well as the testimony of his mother, is per se relevant and admissible at re-sentencing. Although the Oregon Supreme Court did not explicitly hold as such with regard to the mother’s testimony, respondent contends that this is only because that court mistakenly believed that the mother had not testified at trial, when she in fact had. Thus, according to respondent, because the Oregon Supreme Court’s holding requires admission of both the grandfather and the mother’s testimony at re-sentencing as a matter of state law, the Eighth Amendment issue does not need to be resolved. As such, there is no live case or controversy between the parties concerning a federal question. If the Court chooses not to dismiss the writ as improvidently granted, respondent argues in the alternative that the Court should certify to the Oregon Supreme Court the questions (1) whether its decision was based on a misunderstanding of fact, namely, that the mother did not testify at trial; and (2) if so, whether, under a correct understanding of the facts, state law resolves the issue. As a third alternative, respondent suggests that the case should be summarily remanded to the Oregon Supreme Court for clarification of its rationale in deciding the Eighth Amendment issue, in light of an accurate assessment of the trial record.

The State contends that respondent is mischaracterizing the proceedings below and that the Oregon Supreme Court did not make a mistake that would require dismissal or remand for clarification. According to Oregon, the court below properly understood the context in which the case arose, and was correct in reaching the Eighth Amendment issue with respect to the mother. While the grandfather’s prior trial testimony would be admissible at re-sentencing as a matter of state law, respondent sought to admit the live testimony of his mother at re-sentencing, an issue which is not covered by state law and necessarily had to be resolved by resort to the Eighth Amendment. Thus, Oregon argues that the federal issue is alive and well in the case.

In the alternative, respondent argues that exclusion of the mother’s testimony not only violated state law, but also violated the Eighth Amendment and the Fourteenth Amendment Due Process Clause. Respondent argues that he was not trying to introduce the alibi evidence to show residual doubt, but rather was simply providing details about the factual circumstances surrounding the crime, which are relevant to the jury when it is considering mitigating factors. To prevent him from presenting evidence that could morally militate against a death sentence is a violation of the Eighth Amendment. Respondent also argues that he had a right under the Due Process Clause of the Fourteenth Amendment to offer the alibi testimony to rebut or impeach the State’s case at sentencing. The State provided the trial transcript of respondent’s co-defendants during the sentencing hearing in order to show that he acted “deliberately” at the time of the murders, an aggravating factor that can weigh in favor of the death penalty. Respondent claims that he had a constitutional right to present alibi evidence to impeach his co-defendants’ testimony, as the evidence suggests that he may not have been present at least during the planning stages of the murder, which would cut against a finding of deliberation. Respondent also contests the State’s “residual doubt” characterization of his use of his mother’s testimony. Because the evidence was offered for the purposes of rebuttal and impeachment, the evidence is neither irrelevant nor does it go to residual doubt. To the extent that the alibi evidence might cause a jury to question the underlying conviction, respondent suggests that a trial court could simply provide a limiting instruction to the jury stating that the evidence goes to the veracity of the co-defendants’ testimony, and not to the actual question of guilt or innocence.

Petitioner responds in turn that the Due Process issue was not fairly presented or briefed to the Oregon Supreme Court, such that the United States Supreme Court should not address it. In any event, respondent mischaracterizes state law, according to petitioner, and there was thus no Due Process violation because respondent does not have a right under state law to present evidence that undercuts the validity of the underlying conviction. Furthermore, regardless of a potential limiting instruction, the alibi evidence does go to residual doubt, because, if the jury believes the evidence, it would necessarily require the sentencing jury to make a factual determination that is at odds with the verdict entered by the jury at the guilt-phase.