IN THE SUPREME COURT OF THE STATE OF OREGON

STATE OF OREGON,
Plaintiff-Adverse Party,
v.
GARY HAUGEN,
Defendant-Relator.
Marion County Circuit
COUli No. 04C46224
Supreme COUli No. S059519
MANDAMUS PROCEEDING
RESPONSE TO THE OREGON CAPITAL
RESOURCE CENTER'S REQUEST
On October 17, 2011, Jeffrey E. Ellis, of the Oregon Capital Resource
Center ("OCRC"), filed a "request" in this court, in the context of this
previously filed mandamus proceeding. \ Ellis asks this cOUli to undertake a
review, "on its own motion," of the underlying death-warrant proceedings-
viz., State v. Haugen, Marion County Circuit COUli no. 04C46224 ("State v.
Haugen")-"for compliance with this Court's mandamus order" of June 29,
2011.2 (Request 3). Ellis asserts that the death-warrant proceedings are
\ Ellis's pleading-which is titled "REQUEST FOR THIS COURT
AND/OR THE CHIEF JUSTICE TO ACT ON ITS OWN MOTION AND
ISSUE AN ORDER ENFORCING ALTERNATIVE WRIT OF MANDAMUS
ISSUED ON JUNE 29, 2011"-will be refelTed to in this response as "Ellis's
request" or, in citation, as "Request."
2 A copy of that order-which is titled "ORDER ALLOWING
PETITION FOR ALTERNATIVE WRIT OF MANDAMUS; ALTERNATIVE
WRIT OF MANDAMUS"-is set forth in the Appendix to this response, for
the convenience of the cOUli. This response will refer to it as the "mandamus
order" or, in citation, as "AIt. Writ."
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fundamentally flawed and that various remedial actions should be taken. In
particular, he contends that the circuit comt erred: (1) by not complying with
the mandamus order, (2) by not considering the report of Dr. Lezak, and (3) by
appointing a counsel who is "conflicted." (Request 2-3).
This comt has invited the patties in the underlying proceeding and Judge
Guimond
3
to respond to Ellis's request. This response is submitted on behalf of
the State of Oregon. For the reasons discussed below, neither Ellis nor OCRC
has standing to raise any of the challenges set fOlth in Ellis's request. In any
event, this record establishes that the death-warrant proceedings have fully
complied with this comt's mandamus order, the applicable laws, and
defendant's constitutional rights. Consequently, this court should deny Ellis's
request.
3 The Honorable Joseph C. Guimond was the judge in the trial
proceedings that resulted in defendant Haugen's convictions and death
sentence, he generally has been presiding over the death-warrant proceedings,
and he was the judge who ultimately found that defendant is competent and has
chosen to waive his additional appellate and collateral remedies, which has
paved the way for issuance of a death warrant. (See Ex 7). But other judges
have palticipated in the proceedings, including the Honorable Jamese Rhoades,
who presided over the palt of the proceedings in which the comt removed Andy
Simrin and W. Keith Goody as defendant's counsel and Gregory Scholl was
appointed as substitute counsel. (See Ex I). For that reason, this response will
refer to the judges by name when addressing the various mlings in this case.
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A. NEITHER ELLIS NOR THE OCRC HAS STANDING
Neither Ellis nor the OCRC purpolis to represent defendant Haugen, the
state, defendant's current or former counsel, or any party in the underlying
criminal action. Nothing in Ellis's request alleges any facts that would provide
a basis for this cOUli to conclude that either he or the ORCR has any patiicular
interest in this in the impending execution of is
different from that of any other citizen. Therefore, this cOUli should dismiss
Ellis's request.
1. Procedural background.
This mandamus proceeding relates to the impending execution of
defendant based on a conviction for aggravated murder and death sentence
entered in State v. Haugen. This court previously affirmed defendant's
conviction and death sentence. State v. Haugen, 349 Or 174,243 P3d 31
(2010). Judge Guimond, who was the trial judge, conducted a death-warrant
proceeding in accordance with ORS 137.463.
In the initial phase ofthose proceedings, defendant was represented by
Andy Simrin and W. Keith Goody and they, over defendant's repeated
objections, asked Judge Guimond to find defendant not to be competent to
waive his appellate and collateral remedies. After a hearing, Judge Guimond
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granted defendant's request to remove Simrin and Goody as his counsel, found
defendant to be competent, found that he waived his right to further appeal and
collateral remedies, and ultimately issued a death wan'ant on May 18, 2011,
scheduling an execution for August 16, 2011.
On June 13,2011, the OCRC filed a petition for writ of mandamus in this
court contending that Judge Guimond erred by granting defendant's request to
discharge Simrin and Goody and by issuing a death warrant without a sufficient
inquiry into whether defendant is competent. This cOUli requested briefing on
the standing issue, the state filed a response asking this court to deny the
petition because OCRC lacks authority to present that claim, and Simrin and
Goody submitted a letter suppOliing the petition. (Alt. Writ 1-2).
This cOUli ultimately avoided resolving the question of whether the
OCRC has standing to seek mandamus relief because it concluded that Simrin
and Goody-who, at that point, had not yet been replaced as defendant's
counsel-had such authority to seek relief and that their letter constituted a
sufficient petition for mandamus relief:
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1. OCRC has alleged that Haugen is the relator in this
proceeding. The relator is "the beneficially interested party on
whose relation" the proceeding is brought. ORS 34.105(4).
However, OCRC also acknowledges that it does not represent
Haugen and states that "Mr. Haugen has not requested counsel to
file this petition." OCRC has not made the necessmy showing of
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legal authority to bring this proceeding on behalfofHaugen under
ORS 34,105(4), At this stage ofthe proceedings, the court is not
presented with and does not decide whether OCRC may seek a
mandamus remedy, under Article VII (Amended), section 2, ofthe
Oregon Constitution, to enforce the asserted duties ofthe trial
court as alleged in its petition.
2, Judge Guimond's reassignment of Simrin and Goody to
act as "stand by" counsel to Haugen and order not to act on behalf
of Haugen except at Haugen's request for the purposes of the May
18, 20II, hearing do not prohibit Simrin and Goody from taking
any legal action to challenge Haugen's competency to discharge
them, Simrin and Goody contend, as does OCRC, that Judge
Guimond acted contrary to the requirements of the law in
accepting Haugen's waiver of his right to counsel without a
hearing regarding Haugen's competence to do so,
3, Because Haugen's execution is currently scheduled for
August 16, 2011, and time is of the essence, we therefore construe
the June 20, 2011, letterfrom Simrin and Goody as a petitionfor
an alternative writ ofmandamus seeking an order directing Judge
Guimond to vacate certain ofhis findings, rulings and orders 01', in
the alternative, to show cause why the court should not order him
to do so, We deem the allegations of the petition to include the
assertions and allegations contained in the Simrin and Goody letter
described above and the allegations set forth in the petition filed by
OCRC on June 13,2011.
Based on the foregoing, the court orders that the petitionfor
alternative writ ofmandamus by Simrin and Goody is allowed,
(Alt. Writ 3; emphasis added),
ShOlily thereafter, on July 14,2011, a hearing was held in State v,
Haugen before Judge Rhoades on defendant's request to remove Simrin and
Goody as his counsel, and Judge Rhoades granted that request and 1Uied that
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she would arrange for appointment of appropriate substitute counsel. (Ex 1),4
Simrin and Goody immediately filed in this court another petition for writ of
mandamus in which they sought to challenge Judge Rhoades's ruling removing
them, but this COUIt summarily denied that petition by an order entered on July
18,2011,5
On July 18, 2011, Judge Rhoades appointed Gregory Scholl as substitute
counsel for defendant. (Ex 2). On August 3,2011, at Scholl's request, Judge
Guimond appointed Steven Gorham to be "co-chair" for defendant. (Ex 5). As
a result of these developments after this court issued the mandamus order,
Simrin and Goody no longer represent defendant in any capacity, and defendant
instead is represented now by Scholl and Gorham.
2. Neither Ellis nor the OCRC has standing.
Neither Ellis nor the OCRC represents defendant in this or any other
litigation. Ellis does not assert that he has submitted his request on behalf of
4 All the various exhibits attached to this brief are judicial orders entered
by the circuit COUIt State v. Haugen or by this COUIt in the parallel mandamus
proceeding. The state asks this court to take judicial notice of those orders
pursuant to OEC 201(f) and 202.
5 That proceeding was docketed separate from this mandamus
proceeding. State ofOregon v. Gary Haugen and Andy Simrin and W Keith
Goody, S059590, (Ex 3),
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defendant or his current counsel, and he does not assert that either he or the
OCRC has any direct interest in defendant's case. In fact, he implicitly
concedes that his request is directly contrary to defendant's wishes.
As explained above, this comt issued the mandamus order in this case
based only on the petition of Simrin and Goody-who, at the time, were at least
nominally still defendant's counsel-and not on the petition filed by the OCRC.
Ellis does not asselt that he has filed his request on behalf of Simrin and
Goody.
6
Therefore, neither Ellis nor the OCRC has standing and authority to
raise any claims related to defendant and the underlying death-warrant
proceedings, and this court should deny his request.
7
"Standing" is "the right to obtain an adjudication." Eckles v. State, 306
01' 380,383,760 P2d 846 (1988). A person without standing has "no right to
have a tribunal decide a claim under the law defining the requested relief,
6 As a result, it is not necessalY to address whether Simrin and Goody
may have some lingering standing in this mandamus proceeding to ask this
court to review Judge Guimond's compliance with the mandamus order that this
court had issued based on their petition. Suffice it to say, the removal of Simrin
and Goody as counsel for defendant effectively revoked any standing they
previously may have had in this proceeding.
7 The argument that follows in this section repeats the substance of the
argument that the state had made previously in its response to original petition
for writ of mandamus filed in this case by the OCRC.
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regardless whether another plaintiff has any such right." Ibid. Whether a
particular person has standing to bring a particular claim "depends upon the
type of relief sought and commonly is governed by a specific statutory
standard." Id. at 384. Generally, "for [a] party to have standing, [the] court's
decision must have some practical effect on [the] palty's rights." Strunk v.
PERB, 338 Or 145, 153, 108 P3d 1058 (2005). Because Ellis has not alleged
that he or the OCRC has standing in their own right and they do not represent
defendant, they do not have any authority to seek mandamus as his agent.
If Ellis or the OCRC has authority to seek relief on defendant's behalf, it
can be only because the legislature has authorized some form of standing by a
"third party'; in mandamus proceedings. But the applicable statutes do not
allow for third-party standing in this proceeding. The legislature has authorized
third-patty standing in some limited contexts. ORS 183.400 allows "any
person" to challenge the "validity of any [administrative] rule" in the COUlt of
Appeals. See Kellas v. Dept. ofCorrections, 341 Or 471, 484, 145 P3d 139
(2006) (discussing standing requirements under ORS 183.400). And the Post-
Conviction Hearing Act authorizes "one person on behalf of another person
who has been convicted of aggravated murder and sentenced to death" to seek
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post-conviction relief in certain limited circumstances. ORS 138.510(2),
8
Unlike those statutes, the applicable statutes governing mandamus do not
provide that anyone other than the relator himself may seek mandamus relief.
The "relator" in this case-the "beneficially interested paIty"-is
defendant Haugen, And nothing in ORS chapter 34 provides that anyone other
than defendant himself may seek mandamus relief on his behalf.
9
Because the
legislature has not authorized third-paIty standing in this case, this court should
8 ORS 138.510(2) allows a third patty to seek post-conviction relief on
behalf of a petitioner who has been sentenced to death if the third party "has a
significant relationship" with the petitioner and shows that the petitioner is
"unable to file a petition" himself. Ellis does not assert that he has standing
under that provision.
9 The federal COutts recognize a form of third-patty standing in habeas
corpus cases known as "next friend" standing. A "friend" of an inmate may
bring a habeas corpus action on the inmate's behalfifthe person can establish
"( 1) that the petitioner is unable to litigate his own cause due to mental
incapacity, lack of access to COutt, or other similar disability; and (2) [that] the
next friend has some significant relationship with, and is truly dedicated to the
best interests of, the petitioner." Massie ex rei. Kroll v. Woodford, 244 F3d
1192, 1194 (9th Cir 2001); see generally Whitmore v. Arkansas, 495 US 149,
163-64,110 S Ct 1717, 109 LEd2d 135 (1990) (explaining "next friend"
doctrine). As explained above, the legislature has authorized similar third-patty
standing in a capital post-conviction case based on a similar standard. ORS
138,510(2), But no statute authorizes "next friend" standing in mandamus
proceedings. Even if "next friend" standing were available in mandamus
proceedings, Ellis would not be entitled to seek such relief on defendant's
behalf.
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dismiss Ellis's request. 10
B. THIS COURT SHOULD DENY ELLIS'S REQUEST
If this court nonetheless considers Ellis's request on the merits, it should
deny it. As noted above, Ellis's request is based on his assertions that the
circuit COUli erred in three patiiculars: (1) by not complying with the mandamus
order, (2) by not considering the report of Dr. Lezak, and (3) by appointing a
counsel who is "conflicted." (Request 2-3). None of those asseliions is
suppOlied by this record.
1. Introduction
Before addressing those three claims on the merits, it is helpful to narrow
the scope of the inquiry by identifying what Ellis does not challenge:
Ellis does not dispute that Judge Rhoades properly
removed Simrin and Goody as counsel for defendant based on a
finding of an irremediable breakdown in their attomey-client
relationship. (Ex 1).
Ellis does not dispute that Scholl, Gorham, and Kati
Dunn-who have been representing defendant since Simrin and
10 As noted above, this court specifically did not address in its mandamus
order "whether OCRC may seek a mandamus remedy under Aliicle VII
(Amended), section 2, of the Oregon Constitution, to enforce the duties of the
trial court as alleged in the petition." (Alt. Writ 3). Because Ellis has not
attempted to argue that this cOUli has authority to review his request under that
constitutional provision, this response will not address that issue.
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Goody were removed-are competent defense counsel and are
qualified to assist defendant in the death-warrant proceedings,
Ellis does not dispute that (as will be discussed below)
defendant has exercised his privilege under OEC 504 to preclude
any disclosure and use of Dr, Lezak's opinion and that Judge
Guimond has enforced that privilege by precluding any disclosure
or use of her opinion (Ex 6),
Ellis does not dispute that defendant was properly and
thoroughly examined by Dr. Richard Hulteng, Ph,D, to determine
whether he is competent, that Dr, Hulteng is fully qualified to
make that assessment, and that Dr, Hulteng testified in open court
on October 7, 2011, that defendant, in his professional opinion, is
competent. 1\ .
Ellis does not dispute that Judge Guimond carefully
complied with each of the steps required for a death-warrant
proceeding under ORS 137.463, that he made all of the findings
required by ORS 137.463(4) (see Ex 7), and that each of those
findings is amply supported by evidence in the record,
Ellis does not dispute that the findings made by Judge
Guimond are a legally sufficient basis under Oregon law to allow
defendant to waive his appellate and collateral remedies and to be
executed, And he does not dispute that those findings are a legally
sufficient basis under federal law to allow defendant to waive his
rights and to be executed,I2
1\ Dr. Hulteng's report of his evaluation of defendant was received as an
exhibit at the hearing on October 7, 2011, but it was sealed by order of Judge
Guimond, The state has no objection to this court reviewing that report in
camera,
12 See Panetti v, Quarterman, 551 US 930, 956-57, 127 S Ct 2842, 168 L
Ed 2d 662 (2007) (refining standard under Ford v, Wainwright, 477 US 399
(1986, Consequently, this brief will not address that issue.
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In short, the claims raised by Ellis in his request are very narrow. He
does not dispute that the death-warrant proceedings that culminated in Judge
Guimond's order of October 7,2011, finding defendant to be competent were
regular on their face, fully complied with ORS 137.463, and are a legally
sufficient basis to proceed toward defendant's execution. Rather, he claims
only that Judge Guimond should have taken some additional steps. For the
reasons discussed below, Ellis is wrong.
2. Pertinent facts
In his request, Ellis summarizes some evidence presented in the penalty
phase ofthe trial in State v. Haugen relating to defendant's mental health.
(Request 6-11). That summary may be accurate as far as goes-albeit one-
sided-but it is not relevant to issues before this court, because it does not
provide any basis on which this court may conclude that, despite Dr. Hulteng's
testimony and Judge Guimond's findings, defendant currently is not fully
competent.
Ellis does not assert that at any point in the trial in State v. Haugen any
question was raised about defendant's possible competence to proceed or assist
his counsel, and he does not assert that defendant ever asserted or presented
evidence to show that he has a mental disease or defect that may provide a basis
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for an insanity defense under ORS 161,295, And he does not asseli that at any
point in the proceedings in State v, Haugen leading to the imposition of the
death sentence or during any step of the subsequent death-warrant proceedings
defendant engaged in any behavior or made any statements that may call into
question his mental condition relating to his competency,13 Finally, although
Ellis notes some evidence in the record that suggests that defendant in the past
occasionally may have had difficulty controlling his behavior when he is not
taking medication (Request 9-10), he concedes that defendant advised the cOUli
during the death-warrant proceedings that he has been taking his medication,
and nothing in the record suggests otherwise, In shOJi, the evidence that Ellis
summarizes may provide a basis to conclude that defendant may have
significant mental-health issues, but that evidence does not, of itself, provide
any basis to conclude that defendant is not competent.
Ellis asserts next that Dr. Lezak submitted a report in which she opined
that defendant is incompetent:
13 It is impOJiant to emphasize that Judge Guimond was the trial judge in
State v. Haugen and, as a result, had the oppOJiunity to hear all the evidence
presented at trial in that case and to personally observe defendant on a close and
daily basis for months.
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Dr. Lezak evaluated Mr. Haugen and concluded that he was
incompetent to be executed. Her report was provided to this Court
along with the mandamus petition.
(Request 11-12). That assertion is not factually correct in at least two respects.
First, no "report" that was prepared by Dr. Lezak ever was submitted either to
the circuit court in State v. Haugen or to this court in the mandamus proceeding,
and no such repmi CUl1'ently is in the record in this case. The only document
that ever was submitted relating to Dr. Lezak's evaluation was her three-page
affidavit-attached as an exhibit to the OCRC's petition-in which she merely
summarized her findings.
Perhaps more to the point, defendant asserted repeatedly during the
death-warrant proceedings that he believes that he was manipulated and
affirmatively misled by Simrin and Goody into cooperating with Dr. Lezak and
that Simrin and Goody then improperly disclosed and used her opinion without
his informed consent and in violation of his privilege. Defendant has been
adamant in his desire to exercise his privilege and have that report sealed. Ellis
acknowledges that, based on defendant's objection, Judge Guimond expressly
"struck Dr. Lezak's opinion" at the original death-wan-ant hearing on May 18,
2011. (Request 12, 15). Subsequently, on September 27,2011, Judge
Guimond issued a formal protective order, at defendant's request and based on
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his assertion of his privilege, that expressly precludes any disclosure and use of
Dr. Lezak's evaluation:
This matter coming before the Court on oral Motion of
Defendant * * *to seal and order non disclosure of a
Neuropsychology Report of an examination of Gary Haugen on
May 9,2011 completed by Muriel D, Lezak, Ph,D" without the
express, informed written consent of Gary Haugen, and the COUli
being fully informed,
NOW, THEREFORE, IT IS HEREBY ORDERED:
Access to the Neuropsychology Report of an examination of
Gary Haugen on May 9, 2011 completed by Muriel D. Lezak,
PhD., shall be restricted solely to Defendant, his current counsel,
Gregory Scholl, Steven H. Gorham, Kati Dunn and their
investigators Keeley McCallum unless and until Gary Haugen
gives express written consent, or further order ofthis COUli for
disclosure. * * *
The repOli described above may be possessed and examined
only [by] persons described in the preceding paragraph. Any other
use or viewing of these records is not authorized and shall be
deemed a violation of this protective order.
(Ex 6; boldface in original). Consequently, OCRC's attempt to use Dr. Lezak's
affidavit in the original mandamus proceeding was in derogation of defendant's
exercise of his privilege and Judge Guimond's order striking her opinion, and
Judge Guimond's protective order bars Ellis from attempting to rely again on
that affidavit in support of his request.
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3. Judge Guimond complied with this court's mandamus order
Ellis contends that the death-warrant proceedings that Judge Guimond
conducted after this court issued its mandamus order did not comply with the
requirements set forth in that order. In particular, he contends that Judge
Guimond, "without explanation and in derogation of this Court's ruling" found
defendant to be competent "after excluding [Dr. Lezak's opinion] for a second
time." (Request 19-20). That assertion is incorrect, because nothing in this
court's mandamus order required Judge Guimond to consider Dr. Lezak's
opInIOn.
In this court's mandamus order, this court set forth in detail what Judge
Guimond should do. (Alt. Writ 4-5). Judge Guimond scrupulously did every
step, specifically including ordering an "assessment of defendant's mental
capacity to engage in reasoned choices of legal strategies and options"-which
evaluation was done by Dr. Hulteng-and then conducting "an evidentiary
hearing" that complied with ORS 137.463, after which he made appropriate
findings. (AIt. Writ 4-5; see Ex 4).
Ellis nonetheless asselis that Judge Guimond failed to comply with the
pmi ofthis court's mandamus order that required him to:
permit Simrin and Goody to offer evidence pertinent to defendant's
Haugen's mental capacity to make a competent, knowing, and
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voluntary waiver of his rights and to the question of whether
defendant Haugen is competent for the purposes of being
executed[.]
(Alt. Writ 4; emphasis added). But it is patent on the face of that order, and in
the context of the proceedings at that point, that this court's directive was
simply to allow defendant's counsel-not specifically Simrin and Goody-to
present such evidence. As noted above, after this court issued the mandamus
order, Judge Rhoades properly removed Simrin and Goody as defendant's
counsel and substituted Scholl and Gorham. Ellis does not challenge that order.
And at the subsequent death-warrant hearing Judge Guimond did, in fact, allow
Scholl and Gorham, defendant's current counsel, "to offer evidence pertinent to
defendant's Haugen mental capacity," and they chose to rely on Dr. Hulteng's
evaluation and testimony. Ellis does not contend that Judge Guimond
precluded Scholl and Gorham from presenting any relevant evidence.
Nothing in the above-quoted directive in this court's mandamus order
would have required Judge Guimond to permit Simrin and Goody to present
evidence even though they no longer were defendant's counseI.
14
And nothing
14 In any event, Ellis does not assert that Simrin and Goody actually
appeared at the hearing and contended, based on that provision in the
mandamus order, that they were entitled to present evidence relating to
defendant's mental condition. Consequently, even if that provision in the
mandamus order may have been intended as an independent source of authority
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in that directive can be construed as requiring either Judge Guimond or
defendant's counsel to present evidence of Dr, Lezak's opinion in paIiicular.
Therefore, Judge Guimond did not fail to comply with that directive in this
court's mandamus order.
Even if this couti may have assumed, when it issued its mandamus order,
that Dr, Lezak's opinion would be available for Judge Guimond to consider at
the renewed death-warrant hearing, Judge Guimond later enforced defendant's
exercise of his privilege by sealing that report and issuing a protective order to
preclude any disclosure or use of Dr. Lezak's opinion without defendant's
"express, informed, written consent." (Ex 6). As noted above, Ellis does not
dispute that defendant, in fact, has exercised his privilege, that Judge Guimond
consequently has precluded any use of Dr, Lezak's opinion, and that defendant
did not give his consent to use of that opinion at the death-warrant proceeding.
Certainly nothing in this cOUli's mandamus order can be construed as requiring
Judge Guimond to disregard defendant's valid exercise of his privilege and
consider Dr. Lezak's opinion over his objection.
that would have entitled Simrin and Goody to present evidence at the hearing,
nothing in this record suggests that Judge Guimond precluded them from doing
that.
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1162 Court Street NE
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(503) 378-4402
For the reasons discussed above, Ellis simply is factually incorrect when
he asselis that Judge Guimond failed to comply with any term of this court's
mandamus order when he conducted the renewed death-waITant hearing and
found that defendant is competent and that he has validly waived his appellate
and collateral remedies.
4. Court was not required to consider Dr. Lezak's opinion
Ellis contends, in the alternative, that Judge Guimond had some
constitutional obligation to consider Dr. Lezak's opinion even though defendant
and his counsel chose not to present it, and even though Dr. Hulteng
independently evaluated defendant and concluded without qualification that
defendant is competent. (Request 21-23). Because defendant had asserted his
privilege under OEC 504 to preclude any disclosure and use of Dr. Lezak's
opinion, Ellis's claim necessarily must be based on his assertion that Judge
Guimond had an obligation to consider Dr. Lezak's opinion sua sponte even
though defendant had exercised his privilege under state law not to disclose it.
15
15 Ellis does not asseli that defendant's exercise of his privilege under
OEC 504 was ineffective for some reason, nor does he assert that Judge
Guimond would have had some basis under any of the exemptions or
limitations in the rule to have considered the Dr. Lezak's opinion despite
defendant's exercise of the privilege. It is important to note that the limitation
in OEC 504(4)(a) for a court-ordered examination does not apply because Dr.
Lezak did not examine defendant pursuant to a court order.
Page 19 -RESPONSE TO THE OREGON CAPITAL RESOURCE CENTER'S
REQUEST
TAS:slc\3053733-vl
Department of Justice
1162 Court Street NE
Salem. OR 97301-4096
(503) 378-4402
Ellis cites a number of cases that he asserts stand for the proposition that
a court has an independent constitutional obligation in these circumstances to
solicit and consider evidence of the defendant's mental condition. (Request 21-
23). None of those cases suppOlis his asseliion.
Ellis relies primarily on O'Rourke v. Endell, 153 F3d 560 (8
1h
Cir 1998),
which was a proceeding in federal cOUli on the petitioner's petition for habeas
corpus relief to set aside his conviction for capital murder and sentence of death
entered in a state-court prosecution. The Eighth Circuit ultimately affirmed the
petitioner's conviction for capital murder and death sentence after rejecting on
the merits all of his claims that his trial counsel provided inadequate assistance.
Id. at 578-79. As a threshold matter, the court considered the state's argument
that the petitioner had procedurally defaulted on those claims by previously
waiving in state cOUli all of his appellate and collateral remedies, a waiver that
had been affirmed by the Arkansas Supreme COUli. 153 F3d at 567. The
Eighth Circuit agreed that "[t]here is no dispute that a petitioner like O'Rourke
can waive his right to appeal a state trial court's denial of postconviction relief,
and thereby bar federal cOUli consideration of the claims that were not
pursued," but it noted that for such a waiver to be valid the petitioner must be
competent. Ibid. The court then examined the record of the waiver hearing-at
Page 20 -RESPONSE TO THE OREGON CAPITAL RESOURCE CENTER'S
REQUEST
TAS:slc\3053733-v1
Department of Justice
1162 Court Street NE
Salem. OR 97301-4096
(503) 3784402
which, significantly, the petitioner had appeared pro se and without any "next
friend"-and concluded that, for purposes of the procedural-default issue, the
recorded colloquy of the waiver was not sufficiently specific to establish that
the petitioner actually knew what he was waiving, much less that he was
waiving his rights knowingly and voluntarily. 16 Id. at 568-69. The Eighth
Circuit's primary concern was that the petitioner "should have been represented
by an attorney, either a counsel of record or a 'next friend,' to argue that he
lacked the capacity to waive his appeal." Id. at 569.
Nothing in the O'Rourke opinion suggests that when a defendant who is
choosing to waive appellate and collateral remedies is represented by competent
counsel the court has an independent constitutional obligation to solicit and
consider evidence relating to the defendant's mental competence that defendant
and his counsel have chosen not to present. Rather, the problems in O'Rourke
were that petitioner was not represented by counsel at the waiver hearing, the
waiver colloquy actually conducted was not adequate to ensure a knowing and
voluntmy waiver, and the record showed that the petitioner previously had been
16 The cOUli concluded: "Instead, the record as a whole demonstrates that
it cannot be said with any satisfactory degree of confidence that O'Rourke's
waiver of his Rule 37 appeal was knowing and voluntary. Similarly, we think
the record discloses no basis for a reliable finding that O'Rourke was mentally
competent to waive his right to a Rule 37 appeal." 153 F3d at 569.
Page 21 -RESPONSE TO THE OREGON CAPITAL RESOURCE CENTER'S
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Department ofJustice
1162 Court Street NE
Salem, OR 97301-4096
(503) 378-4402
determined to be incompetent at other times, See id. at 569. None of those
circumstances is present in this case. Moreover, in 0 'Rourke the petitioner was
affirmatively challenging the validity of his waiver, which is not the situation
here.
Ellis's reliance on Hull v. Freeman, 932 F2d 159 (3rd Cir 1991), is even
farther afield. As in O'Rourke, the issue in Hull was whether the petitioner had
procedurally defaulted the claims that he asserted in his habeas-corpus petition,
and the underlying claim was whether his trial counsel in the state-court
prosecution had provided constitutionally inadequate assistance at the pretrial
hearing at which petitioner was found to be competent and pleaded guilty. The
question was whether the decision of petitioner's trial counsel to acquiesce in
the petitioner's desire to be found competent and plead guilty-and hence not
to contest his competency at the change-of-plea hearing-was a valid strategic
choice despite the fact that two doctors "recently had found Hull to be
incompetent to stand trial." 932 F2d at 168. Once again, that case, unlike this
one, involved a defendant who was affirmatively challenging the validity of his
waiver (guilty plea) and was complaining about the constitutional adequacy of
his counsel. Moreover, nothing in that opinion suggests that when a defendant
who is choosing to waive his rights is represented by competent counsel the
Page 22 -RESPONSE TO THE OREGON CAPITAL RESOURCE CENTER'S
REQUEST
TAS:s1c\3053733-vl
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
(503) 3784402
court has an independent constitutional obligation to solicit and consider
evidence relating to the defendant's mental competence that defendant and his
counsel have chosen not to present. That is, Hull addresses only the viability of
a possible inadequate-assistance claim asserted by the defendant in a
subsequent proceeding, not an obligation of a trial comt to make an inquiry sua
sponte.
In summary, Ellis has not provided this comt with any authority to
suppmi the proposition-a proposition that is essential to his challenge of the
October 7, 2011, order-that Judge Guimond had a constitutional obligation to
solicit and consider Dr. Lezak's repmi sua sponte even though defendant and
his counsel choose not to offer it and even though defendant had exercised his
privilege under OEC 504 not to disclose the report. The state is not aware of
any such authority. Therefore, this comi should deny Ellis's request.
5. Ellis's "conflicted counsel" claim has no merit
Ellis's final complaint is that Judge Guimond's order of October 7, 2011,
is invalid because he had appointed Gorham, at Scholl's specific request, as
"second chair counsel" to assist defendant. (Ex 5). Ellis contends that Gorham
"was burdened by an obvious conflict" and that Judge Guimond's "decision to
permit that waiver [by defendant of his appellate and collateral remedies] was
Page 23 -RESPONSE TO THE OREGON CAPITAL RESOURCE CENTER'S
REQUEST
TAS:slc\3053733-vl
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
(503) 3784402
necessarily infected by Mr, Gorham's conflict." (Request 24), The only factual
basis for Ellis's assertion that Gorham has a potential conflict of interest is that
Gorham represented defendant during the trial proceedings and that a petition
for post-conviction relief or other collateral remedies may entail an inquiry into
the constitutional sufficiency of Gorham's own professional assistance during
trial. (See Request 14-15),
This response will defer to defendant's current counsel the primary
responsibility for responding to that accusation, But, as noted above, Ellis does
not dispute that Scholl, Gorham, and Kati Dunn are competent defense counsel
and are qualified to assist defendant in the death-warrant proceedings. Ellis
does not contend that either Scholl (defendant's lead counsel) or Dunn has any
potential conflict. He does not assert that defendant has not been fully apprised
by "conflict free" counsel of his potential appellate and collateral remedies,17
and he does not assert that defendant has not been fully apprised of and chosen
to waive Gorham's potential conflict.
Ellis does not cite any authority for the proposition that Gorham actually
has an ethical conflict in these particular circumstances that precludes him
17 It is fair to assume that Simrin and Goody, who persistently opposed
defendant's desire to waive his appellate and collateral remedies, repeatedly and
fully advised him of the rights he would be waiving.
Page 24 -RESPONSE TO THE OREGON CAPITAL RESOURCE CENTER'S
REQUEST
TAS:slc\3053733-vl
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
(503) 3784402
from representing defendant as "second chair," much less such a serious
conflict that defendant cannot choose to waive. Therefore, Ellis's asseliions do
not provide any factual or legal basis on which this court may conclude that
Judge Guimond's order of October 7,2011, is invalid on the ground that
Gorham is a "conflicted counse1."
CONCLUSION
For the reasons set forth above, this cOUli should deny Ellis's request to
review Judge Guimond's order of October 7,2011, finding defendant to be
competent and that he has validly waived his appellate and collateral remedies.
Respectfully submitted,
JOHN R. KROGER #077207
Attorney General
ANNA M. JOYCE #013112
Solicitor General
Page 25 -RESPONSE TO THE OREGON CAPITAL RESOURCE CENTER'S
REQUEST
TAS:slc\3053733-vl
Department of Justice
1162 Court Street NE
Salem, OR 97301-4096
(503) 378-4402
App-l
IN THE SUPREME; COURT OF THE STATE OF OREGON
STATE OF OREGON,
Plaintiff-Adverse Party,
v.
GARY HAUGEN,
Defendant-Relator.
Marion County Clroult Court
04C46224
8059519
ORDER ALLOWING PETITION FOR ALTERNATIVE WRIT OF MANDAMUS;
ALTERNATIVE WRIT OF MANDAMUS
Upon oonslderatlon by the court.
This matter Is before the court on a Petition for a Peremptory Writ of Mandamus
or, in the alternative, for an Alternative Writ of Mandamus flied by the Oregon Capital
Resource Center (OCRC) on June 13, 2011. The Petition seeks an order directing the
Honorable Joseph C. Guimond to vacate the death warrant that he signed on May 18,
2011, and to conduot a hearing to determine whether defendant Gary Haugen is
competent to be executed.
The court has received a letter from lawyers Andy 81mrin and Keith Goody dated
June 20, 2011. In their leUer, Simrin and Goody state as follows:
1. They represented Haugen as his legal counsel prior to and, until they were
discharged, during the death warrant hearing held on May 18, 2011.
2. The death warrant hearing was originally scheduled for May 13, 2011.
3. In their capacity as legal counsel for Haugen, they obtained the services of a
neuropsyohologist who evaluated Haugen and reached the conclusion that
Haugen was not competent to be executed.
4. As a result of the conclusion of the neuropsychologist, they sought an
evidentiary hearing on the Issue of Haugen's competency and they believed
that Judge Guimond would give them time to prepare for such'a hearing and
would continue the death warrant hearing to a later date.
ORDER ALLOWING PETITION FOR'ALTERNATIVE WRIT OF MANDAMUS;
ALTERNATIVE WRIT OF MANDAMUS
REPLIES SHOULD BE DIRECTED TO; State Court Administrator, Records Section,
Supreme Court Building, 1163 State Street, Salem, OR 97301-2563
Page 1of 6
App-2
5. On May 13, 2011, Judge Guimond ordered that no evidence was necessary
or relevant to determine Haugen's competency, other than Haugen's answers
to a set of questions, and that Judge Guimond would propound those
questions at a death warrant hearing on May 18, 2011.
6. On May 18,2011, Judge Guimond asked Haugen If he wished to discharge
Slrnrln and Goody as his counsel and Haugen replied that he did.
7. JUdge Guimond then relh;ved Slmrln and Goody as attorneys of record for
Haugen, reassigned them to act as "stand by" counsel to prOVide legal advice
to Haugen If he requested It, and advised them not to speak unless Haugen
asked them to do so.
8. At the conclusion of the death warrant hearing, Judge Guimond signed the
death warrant.
Based on those factual allegations, Slmrln and Goody made the following legal
contentions:
1. When there Is evidence that a defendant is not mentally competent, such as
the expert opinion of the neuropsychologist in this case, the lawdoes not
permit the defendant to waive counselor challenges to his conviction and
sentence without an evidentiary determination of his competency and the
validity of his waivers.
2. Given Judge Guimond's discharge of Simrln and Goody as counsel for
Haugen and reassignment as "stand by counsel," they are prohibited from
seeking enforcement of the law as they understand it to apply to Haugen,
except at his request.
3. If they were permitted to seek to enforce the law as they understand It to
apply to Haugen, the law would require them to challenge their removal as
counsel for Haugen, and pursue appropriate measures to challenge his
conviction and sentence of death.
In addition, this court has received two letters from Haugen dated June 21, 2011,
expressing his objection to the petition flied on his behalf and stating that he did not
authorize Its flllng.
This court requested briefing on the Issue of OCRC's legal authority to petition for
mandamus relief on behalf of Haugen. In response, the court received memoranda of
law from the Oregon Attorney General and OCRC.
ORDER ALLOWING PETITION FOR ALTERNATIVE WRIT OF MANDAMUS;
ALTERNATIVE WRIT OF MANDAMUS
REPLIES SHOULD BE DIRECTED TO: Slate Court Administrator. Records SeoUon,
Supreme Court Building, 1163 Stale street, Salem. OR 973012663
Page 2 of5
App-3
Based on the foregoing, and having considered the submissions of the Attorney
General, the OCRC, attorneys Slmrln and Goody, and defendant Haugen this court
determines that:
1. OCRC has alleged that Haugen Is the relator In this proceeding. The
relator is "the beneficially Interested party on whose relation" the proceeding Is brought.
ORS 34.105(4). However, ORCR also acknowledges that It does not represent Haugen
and states that "Mr. Haugen has not requested counsel to file this petition." OCRC has
not made the necessary showing of legal authority to bring this proceeding on behalf of
Haugen under ORS 34.105(4). At this stage of the proceedings, the court Is not
presented with and does not decide whether OCRC may seek amandamus remedy,
under Article VII (Amended), section 2, of the Oregon Constitution, to enforce the
asserted duties of the trial court as alleged in Its petition.
2. Judge Guimond's reassignment of Slmrln and Goody to act as "stand by"
counsel to Haugen and order not to act on behalf of Haugen except at Haugen's request
for the purposes of the May 18,2011, hearing do not prohibit Simrin and Goody from
taking any legal action to challenge Haugen's competency to discharge them. Slmrln
and Goody contend, as does OCRC, that Judge Guimond acted contrary to the
requirements of law In accepting Haugen's waiver of his right to counsel without a
hearing regarding Haugen's competence to do so.
3. Because Haugen's execution Is currently soheduled for August 16, 2011
and time Is of the essenoe, we therefore construe the June 20, 2011, letter from Slmrin
and Goody as a petition for an alternative writ of mandamus seeking an order directing
Judge Guimond to vacate certain of his findings, rulings and orders or, In the alternative,
to show cause why the court should not order him to do so. We deem the allegations of
the patlllon to Include the assertions and allegations contained In the Slmrln and Goody
letter described above and the allegations set forth in the petlllon filed by OCRC on
June 13, 2011.
Based on the foregoing, the court orders that the petition for alternative writ of
mandamus submitted by Slmrin and Goody Is allowed.
ALTERNATIVE WRIT OF MANDAMUS
To Judge Joseph C. Guimond:
Wherefore, In the name of the State of Oregon, you are commanded to
vacate the following findings, rulings and orders, and take or agre8 to take the following
actions, by the close of business on July 7, 2011, or, in the alternative, to show cause
for not doing so. In the event you choose to show cause. oral argument Is scheduled
for July 14, 2011, commencing at 1:30 p.m. You and other parties to this action may file
any additional briefing by the olose of business on July 11, 2011,
ORDERALLOWING PETITION FOR ALTERNATIVE WRIT OF MANDAMUS;
ALTERNATIVE WRIT OF MANDAMUS
REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section.
Supreme Court Building, 1163 State Street, Salem, OR 97301-2663
Page 3of 6
App -4
The following are the findings, rulings, and orders that you must vacate or show
cause for not doing so:
1. The finding that defendant Haugen Is competent to waive his right to counsel;
2. The order removing Slmrln and Goody as counsel for defendant Haugen;
3. The finding that defendant Haugen does not suffer from amental or physical
Impairment or any condition that would In any manner affect his decision not
to pursue further challenges to his convictions and his sentence of death, that
he Is competent to engage In a reasonable choice of legal strategies and
opinion and options, that he Is able to aId and assist his former counsel and
aid and assist In the hearing, and that he Is legally sane for the purposes of
being executed; and
4. The death warrant authorizing and commanding the Superintendent of the
Oregon State Penitentiary to execute the JUdgment of death.
The following are the actions that you must take or agree to take or show cause
for not doing so:
1, Pursuant to ORS 137.464, orderthat the Oregon Health Authority or Its
designee perform an assessment of the defendant's mental capacity to
engage in reasoned choices of legal strategies and options;
2. Pursuant to ORS 137.463(3) and (4), after completion of the assessment by
the Oregon Health Authority or Its designee and any other Inquiry you deem
appropriate, and before issuing a death warrant, hold an evidentiary hearing
and:
a. permit Slmrln and Goody to offer evidence pertinent to defendant
Haugen's mental capacity to make a competent, knowing, and
voluntary waiver of his rights and to the question of whether defendant
Haugen Is competent for the purposes of being executed;
b. advise defendant Haugen that he is entitled to counsel In any post-
conviction proceeding and that counsel will be appointed If the
defendant Is financially eligible for appointed counsel at state expense;
c, determine whether defendant wishes to waive counsel, and whether
that waiver Is competent, knowing and voluntary;
ORDER ALLOWING PETITION FOR ALTERNATIVE WRIT OF MANDAMUS;
ALTERNATIVE WRIT OF MANDAMUS
REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Secllon,
Supreme Court Building, 1163 Stale Street, Salem, OR 973012563
Page 4of6 .

App- 5
d. make findings on the record whether defendant Haugen suffers from a
mental condition that prevents defendant Haugen from comprehending
the. reasons for the death sentence or Its Implication; and
e. determine whether defendant Haugen intends to pursue any
challenges to the sentence or conviction and, If not, advise defendant
Haugen of the consequences and make afinding on the record
whether the defendant competently, knowingly and voluntarily waives
the right to pursue available challenges to his death sentence.
02\/
c: Mary H. Williams
Anna Joyce
Jeremy Rice
Jeffrey E. Ellis
AndySlmrln
W. Keith Goody
Walter M. Beglau
Gary Dwayne Haugen
jf
ORDER ALLOWING PETITION FOR ALTERNATIVE WRIT OF MANDAMUS;
ALTERNATIVE WRIT OF MANDAMUS
REPLIES SHOULD BE DIRECTED TO: State Court Administrator, Records Section,
Supreme Court Building, 1163 state Street, Salem, OR 973012563
Page 5 015
,lUi 15 2011 1145PM HP LASE:RJET FAX
STATE OF OREGON '
MARION OOUNTYOOURTS
JUL 14 2011
1F1l..E!O
#31
ORDER REMOVING
C'OUNSELS ANb suaSTlTUTINO
COUNSEL
) No; 04C46224
)
)
)
)
)
)
VS.
CARY. HAUOEN,
Defelldant,
IT IS SO ORDERED this day QfJllly, 201,1,
. '
INTIm CIRcUITCOURT OF THESTA1'EOF OREGON
FOR THE COVNTY OF MAroON
THE STATE OF OREGON
plaintiff,
THIS MA'jvfER bavlng come before the COl1lt on tho 14
th
day of JIlly, 2011, with
Presiding JUdge Jameso L, RllOados fOI' l\llta\llS conference, and lhf:! defendant being
pl'osent with counsels Andy Slmrlt\ and Keith Ooody, and the State being rep1'(}sented by
Deputy DIsMet Donald p, Abar and DOllgIAs Cflansoll;
'fllat based upon the defendant's motion by letter aM orally to the COIIl'tto
, , '
Ilubstltuto newco,unsel and th.o Court havlnll,hellrd the arguments ofdefulldanl Clary.
Hall.SOIl defendant's lIttomey and being flJlly in the
Tho 'Court does llereby gfallt defondant'a motion; Clury Haugen, for new counsel
und fitrt1ler orders that nttomeys Andy Shnrill and Keith Goody lire reJnovod as
defeiul.nnt's for thel'easons set fOl1h 011 tnc recol'd,
#
It 18 t\lflhcl' ordered.that new counsel be nppointed In accorclmtce with tho lnws,
rulos and proecdlll'e established by tho OI'OgOll R6vlsod SlaMes.
1\ "Yor Oh
fhlW I INO DEFENDANT'S COUNSELS AND S\fflSTITUTINO COUNSBL'
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b} 25


I"j
Ex-2
IN THE CIRCUIT COURT OF STATE OF OREGON
E TERED
J L18 2011 \NY
1
Marl 'ounty Circuit Court
2
3
STATE OF OREG N
MARION COUNTY CURTS
JUL 18 2011 4;(
FILED \tL'
#31
FORTHE COUNTY OF MARION
4
5
6 STATE OF OREGON,
7
8
vs.
9 GARY HAUGEN,
10
11
Plaintiff,
Defendant.
)
) Case No.: 04C46224
)
) ORDER GRANTING MOTION
) TO WITHDRAW AND ORDERING
) SUBSTITUTION OF COUNSEL
)
)
)
TIUS MATTER comes now before the COUll on July 18, 2011 at 8:00 a.m.; and
12 sufficient reasons for allowing such withdrawal havIng been shown to the Coml by Benjamh
Kim;
13.
And the COUll now being fully advised in the premises;
NOW THEREFORE IT IS ORDERED that said Motion to Withdraw should be an
hereby is granted, and Benjamin Kim is hereby relieved of any further representation of th
Defendant herein.
.:., ,.
Order prepared by the court.'-
'. .;-..., f .,
IT IS FURTHER ORDERED that Gregory Schol!, Attorney at Law, Oregon State Bm
Number 954039, be and is substituted to represent the Defendant in this matter.
Dated this 18
th
day of July, 201 J.
.. ".' ;
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I - ORDER GRANTING MOTION TO WITHDRA\V AND
28 ORDERING SUBSTITUTION OF COUNSEL
Ex-3
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Plaintiff-Adverse Party,
v.
GARY HAUGEN,
Defendant,
and
ANDY SIMRIN and W. KEITH GOODY,
Other-Relators.
Marion County Circuit Court
04C46224
S059590
ORDER DENYING PETITION FOR WRIT OF MANDAMUS AND DISMISSING
EMERGENCY MOTION TO STAY TRIAL COURT PROCEEDINGS
Upon consideration by the court.
The Petition for Peremptory Writ of Mandamus or, in the alternative, for an Alternative Writ
of Mandamus flied on July 14, 2011, by Relators Simrin and Goody is denied. The
Emergency Motion to Stay Trial Court Proceedings flied on July 18, 2011, by Relators
Simrin and Goody is dismissed as moot.
DATE CHIEF JUSTICE
DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS
Prevailing party: Adverse Party
[ X1No costs allowed
c: Andy Simrin
W Keith Goody
Mary HWilliams
Donald BAbar
Gary Haugen
'"
Gregory BScholl
Hon. Jamese Lou Rhoades
Hon. Joseph C. Guimond
Benjamin BKim
ORDER DENYING PETITION FOR WRIT OF MANDAMUS AND DISMISSING
EMERGENCY MOTION TO STAY TRIAL COURT PROCEEDINGS
REPLIES SHOULD BE DIRECTED TO: State Court Admlnlst'rator, Records Section,
Supreme Court Building, 1163 State Street, Salem, OR 97301-2563
Page 1 of 1

IT IS SO ORDERED this 2..\ - day of July, 2011

Ex-4
STATE OP OREGON
MARION COUNTY COURTS
iJUL 21 2011
FILED
#31
) No.04C46224
)
) ORDERTO ALLOW STATE TO PERFORM
) COMPETENCEEVALUATION
)
)
)
INTHE CIRCUIT COURT OF THE STATE OF OREGON
FORTHE COUNTY OF MARION
vs,
GARY HAUGEN,
Defendant.
THE STATE OF OREGON
Plaintiff,
WHEREFORE, based on the State's motion and the contents therein, the Comt
does hereby order that the State is allowed to perform a mental evaluation by Dr. Richard
Hulteng on the defendant, for the pmJloses of determining whethcr or not the defendant is
competent to be executed and whether 01' not the defendant is competent to waive
counsel.
STATU OF OREGON }
COil Illy of Marlon, ),
[ herohY,oertify Ihal I alll 1111 allotlley for
Plahnlff alld I 'o<vcd'ih. within d"ollmolll'
UflOlI'3\wWiVl (;, (;100(...1 , by
havlllg II Irllo copy of faxcd
011 I L.jJ;-\:I.,..- _
E TERED
I L2I 2011
CountyCircuit Court
Mil}l
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Page J - ORDERTO ALLOW STATE TO PERFORM COMPETENCE EYALUATION
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AUG 0 2tl\\ .. f:'/I...BD
03.
M lioncounl'/ "1r10fl <Of.
a FOR THE COUNTY OF MARTON C'OU17lvC r
'lrfJl.l
1ta
ittl
STATB OF OREOQN, ) No. 04C46224
Plaintiff,
)
ORDER APPOINTING SECOND
)
)
CHAIR CO-COUNSEL
vs.
)
GARY HAUGEN,
)
Defendant;
)
)
10 IT IS HEREBY ORDERED that Steve Gorham, OSB 1175136 is appointed to
11 second chair counsel on this case.
12
13
14
15
16
17 Submitted by:
Greg Scholl, OSB 1195403
18 Attorney for Defendant
19
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. I
", ".,
. 2(i, ,
PAOB 2 MOTION AND ORDBR AJ,WWINO APPOINTMBNT OP SBCOND CHAIR CO.COUNSEL
METROPOl,ITAN PUBLIC DEPENDEII
400 B. MAiN STRum. SUITS 210 IiILLSDOIlO. OREGON 97123m6 1037261900 PAX J037264910
Ex- 6
NOW, THEREFORE, IT IS HEREBY ORDERED:
Gary Haugen on May 9, 2011 completed by Muriel D. Lezak, Ph.D. without
PROTECTIVE ORDER
FOR THE COUNTY OF MARION
Plaintiff,
Defendant.
vs.
Access to the Neuropsychology Report of an examination of Gary Haugen
This matter coming before the Court on oral Motion of Defendant, Gary
Haugen by and through his counsel Gregory Scholl and Steven H. Gorham to
informed,
GARY HAUGEN,
seal and order non disclosure of a Neuropsychology Report of an examination of
THE STATE OF OREGON
express, informed written consent of Gary Haugen. and the Court being fully
\,\\c.BE.D
st.? "- 1 '1.\)\\ IN THE CIRCUIT COURT OF THE STATE OF OREGON
Cilcui\Gault
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on May 9,2011 completed by Muriel D. Lezak, Ph,D.shall be restricted solely to
Defendant, his current counsel, Gregory Scholl, Steven H. Gorham, Kati Dunn
. . 1
and their investigator Keeley McCallum unless and until Galy Haugen gives
eXprbs', ihformed}Vritten 01' further order of this Court for disclosure.
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The above listed Counsel for Defendant may show 01' review copies of the
1, PROTECTNE ORDER
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document to clerical personnel and paralegals employed by counsel for the
parties in the ordinary course of assisting said counsel.
The report described above may be possessed and examined only persons
described in the preceding paragraph. Any other use or viewing of these records
is not authorized and shall be deemed a violation of this protective order.
Any and all written documents filed with the Court during this action, that
contain matter comprising or containing confidential information pursuant to
this Order, and all pleadings and memoranda purporting to reproduce or closely
paraphrase such confidential information, shall be filed in sealed envelopes or
other appropriate sealed containers on which shall be endorsed the title of this
action, an indication of the nature of the contents of such sealed envelope or
other container, the word "CONFIDENTIAL," and a statement substantially in
the following form:
"This envelope contains documents which are filed in this case by
(name of party) and is not to be opened or the contents thereof to be
displayed or revealed except by order of the Court."
Violation of this order shall be subject to review by this court and this
court may issue further Protective Orders as well as exercise the general powers
of this Court, including the power of contempt, if necessary to enforce this
Order.
'ITiS"S6 ORDERED this 2 ' ? ~ a y ofSeptem 1', 2011.
tJudge
2, PROTECTIVE ORDER
Ex-8
'-. ,
FINDINGS OF FACT
5. Defendant understands that hc has becn senlelleed to death.
STATE OF OREGON
Marlon County Circuit Courts
OCT 07 2011
FILED
vs.
. 6. Defendant has a rational understanding of the reason for hIs death sentence.
sentcnced to death for the aggravated murder of David Polin.
today ftnd Is not bnpaired by the medication or other substftnco that he Is currently taking 01'
by any mental or physical illness or condition.
4. Defendant understands thftt he lifts been convicted oftwo couuts ofaggrftvated murder ftnd
3. Defendftut Is able to undorstand what Is said to him and tho nature ofthe proceedings In court
I. Defendant Is ftble to speftk and 1lI1derstand the English language.
2. Defendftnt Is ftblo to read and writo tho English langnage.
THIS MATIER came before the court on the 7" day of October, 20II, for a hearing on tile
GARY HAUGEN,
Defendant.
THE STATE OF OREGON
Plaintiff,
inquired of the defendant, made observations of the defeudant during aU proceedings related to this case,
and Steven Gorham. The State appeared through Marlon County Depnty District Attomeys Donald DAbar
and Douglas CHanson. The Court havblg heard testimony from Dr. Richard Hulteng, l'ecelved evidence,
competence ofthe defendant to be executed. Defendant appeared in person and with counsel, Greg Scholl
and the Court having considered the defendant's responses to the Court's questions at the October 7, 20II
healing, this Court hereby makes the following findings of fact and conclusions of law:
STAT,t
M8J'lon V'Nn.,
OCT 07 201\

COURT OF THE STATE OF OREGON

FORTHE COUNTY OF MARlON
) No.
)
) FINDINGS OF FACT
) AND CONCLUSIONS OF LAW
)
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Page I - FINDINGS OF FACT AND CONCLUSIONS OF LAW
10/51201 I COPIES: (G. Scholl)
Ex-9
sentence of death.
Schoil and Steven Gorham.
under federal or slate law to his convictions and death seutence. Defendant also understands
!lIlder federal law to his convictions and his death sentence. Defendant also understands that
.- ,
dcath.
the federal court may appoint counsel, at public expense, to represent him in a proceeding for
further chailenges to his convictions and sentonce of death,
would continue to represent him, at public expense, on such a petition.
in any manner affect his decision not to pursue any further ehailenges to his convictions and
order his execution on a dale to be detennlned by the court.
that he is entitied to the appointment of a suitable counsel, at public expense, to represent him
In a proceeding for post-conviction relief.
convictions and death sentence. Defendant also understands that the state pnblic defender
slate circuit court and that in such a petition he could present any challenges he may have
a habeas corpus reilef.
11. Defe ndant has discussed his decision not to exercise the above rights with his attomeys Greg
8. Defendant underslands that he has a right to file a petition for a certiorari review of his
14. the available to him to ehailenge his convictions and
. 'j' 1"" I,
sentence of death.:
15. Defe ndant currently does 1I0t plan to pursue any f1u1hel' iegal ehailenges to his convictions
,
7. Defendant understands that he is in court today for the issuance ofa dealh warrant that will
12. Defe ndant does not suffer from a meutal or physical Impairment or auy condition that would
10. Defe ndant understands that he has a right to file a petition for a habeas corpus relief in Ule
federal district conrt and that in such a petition he could present any chailenges he may have
9. Defcndant understands that he has a right to file a petition for post-conviction relief in the
13. Defe ndant Is not taking any medication that would affect his decision to not pursue any
, .
and"sentence'ofdeath, . :: '.' .
'. ). :. ". ; I' "',"', ."., -, "..' .' " . . ".-( . ' . -."
, 16. Defe ndantcurreutly deslresn.at lio other person challenge his convictlous and sentence of
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Page 2 - FINDINGS OF FACT AND CONCLUSIONS OF LAW
IOI5f2011 COPIES: l=fiIe; I=defaty (0. Schoil)
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17. Defe ndant's desire not to challenge his convictions and sentence of death Is not the result of
auy threat or promise.
18. Defe udant understands that he has been sentenced to death, and that exeeutlon of his sentenee
will occur if he does not challenge his sentence or conviction.
CONCLUSIONS OF LAW
I. Defendant Is competent to engage in reason choice of Icgal strategies and options.
2. Defendant is able to aid and assist his counsel.
3. Defendant currently is legally sane for pnl]loses of being executed and has a rational
understanding ofthe reason for his execntlon and the implications thereof.
DATED at Salem, Orcgon, this
Page 3 - FINDINGS OF FACT AND CONCLUSIONS OF LAW
101512011 copms: aty (0. Seholl)
NOTICE OF FILING AND PROOF OF SERVICE
I certify that on October 21, 2011, I directed the original Response to the
Oregon Capital Resource Center's Request to be filed with the Appellate Court
Administrator, Appellate Records Section, at 1163 State Street NE, Salem, OR
97301.
I fmiher cetiifY that on October 21, 20II, I directed the Response to the
Oregon Capital Resource Center's Request to be served upon Jeffrey E. Ellis,
attomey for relator and upon the Honorable Joseph C. Guimond, Circuit Court
Judge in Marion County, by mailing a copy, postage prepaid, to:
Jeffrey E. Ellis
Oregon Capital Resource Center
621 SW Morrison Street
Suite 1025
Portland, OR 97205
Honorable Joseph C. Guimond
Circuit Court Judge
Marion County Comihouse
P.O. Box 12869
Salem, OR 97309-0869
l , ~ T I M THY . Y
(j Y Assistant Attorney
timothy.sylwester
Attorneys for Plaintiff-Adverse Party
State of Oregon
Page 1 - NOTICE OF FILING AND PROOF OF SERVICE
TAS:slc/3053733-vl