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IN THE SUPREME COURT OF THE STATE OF OREGON
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STATE OF OREGON, Adverse Party,

: No. _____________________ : Trial Court No. 04C46224 : (Marion County Circuit Court) : -vs.: : CAPITAL CASE--EXPEDITED GARY HAUGEN, : Relator. : ________________________________________________________________ PETITION FOR A PEREMPTORY WRIT OF MANDAMUS or, in the alternative, for an ALTERNATIVE WRIT OF MANDAMUS ____________________________________________________________ Relator alleges:

1.
Petitioner-Relator, GARY HAUGEN, is the defendant in Marion County Case

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No. 04C46224. He is under a death sentence. He is currently scheduled to be executed on August 16, 2011. Mr. Haugen has not requested counsel to file this petition. 2. Defendant THE HONORABLE JOSEPH C. GUIMOND is a Marion County Circuit Court Judge. Judge Guimond conducted the hearing and signed the death warrant that is the subject of this petition for a writ of mandamus.
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3. The STATE OF OREGON is the Plaintiff in the trial court. 4. Mr. Haugen was previously convicted of aggravated murder and sentenced to death. This court affirmed both the conviction and sentence. State v. Haugen, 349 Or. 174, 243 P.3d 31 (2010). On May 18, 2011, Judge Guimond issued a death warrant. Mr. Haugen is scheduled to be executed on August 16, 2011. A copy of the death

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warrant is attached as Appendix A. 5. Prior to the death warrant hearing, Andy Simrin and W. Keith Goody (“defense

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counsel”) were appointed to represent Mr. Haugen for purposes of investigating and preparing a post-conviction petition. Defense counsel filed several pleadings in advance of the death warrant hearing.

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6. The death warrant hearing was originally scheduled for May 13, 2011. Prior to that hearing, defense counsel moved for a continuance so that they could investigate and present evidence relevant to Mr. Haugen’s competence to be executed. During a conference call prior to the hearing, the trial court stated it would grant the defense request for additional time. However, at the May 13th hearing, the court ruled that it could not extend the time for the death warrant hearing without an express waiver from Mr. Haugen. As a result, the death warrant hearing was reset for May 18, 2011.
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7. Prior to the death warrant hearing on May 18th, defense counsel filed a motion raising questions about Mr. Haugen’s competence to be executed and requesting an evidentiary hearing. A copy of that motion is attached as Appendix B. The motion was supported by an affidavit of counsel and an affidavit by Dr. Natalie Novick Brown, attached as Appendix C and D. Counsel’s declaration recited that Dr. Muriel Lezak had recently evaluated Mr. Haugen and determined that he was incompetent to be executed.

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Appendix C, ¶ 8. Counsel’s declaration further explained that Dr. Lezak had left for vacation without first signing a declaration to that effect because counsel had been assured by the trial court that a competency hearing would be held and that the court

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would permit defense counsel time to prepare for that hearing. Id. at ¶ 5. 6. Dr. Lezak recently faxed her signed affidavit to counsel. That document is

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attached as Appendix E. Dr. Lezak’s sworn statement is entirely consistent with counsel’s earlier sworn statement about the conclusions reached by Dr. Lezak. 7. At the death warrant hearing, the court first allowed Mr. Haugen to discharge counsel. Transcript, p. 3-6; 15. A copy of the transcript of the hearing is attached as Appendix F. Judge Guimond then asked Mr. Haugen if he wished to “strike” the sworn statement attesting to Haugen’s incompetence. Id. at 15 (“Do you want me -- and since I have relieved your counsel as counsel, do you want me to rule on those at this time or do
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you want to withdraw those?”). Mr. Haugen agreed with the court’s suggestion to strike that evidence. Id. As a result, counsel was not permitted to present evidence or argument. Id. (COUNSEL: Are our lips sealed? THE COURT: Yes, sir.”). The court did not consider Dr. Lezak’s opinion. The court found that Mr. Haugen was competent to be executed. Id. at 34 (“I find the defendant is currently legally sane for the purposes of being executed.”). Application for a writ of mandamus was not made to the Circuit Court because

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the application relates to purported “order” of the Circuit Court. 8. Application for the writ is timely and is not sought for purposes of delay. No

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other remedy exists under Oregon law. 9. Relator respectfully asks this Court for the following:

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A. That this court exercise its original jurisdiction pursuant to Article VII (Amended), §2 of the Oregon Constitution and ORS 34.120(2), or alternatively its supervisory powers under said constitutional provision, and issue a peremptory writ of mandamus under seal of this Court directing the Honorable Joseph C. Guimond to vacate the death warrant and to conduct a hearing to determine whether Mr. Haugen is competent to be executed. B. That this court exercise its original jurisdiction pursuant to Article VII (Amended), §2 of the Oregon Constitution, and issue an alternative writ of mandamus
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under seal of this Court directing the Honorable to show cause why the relief prayed for in prayer paragraph 1, ante should not be granted; and C. That this court grant such other relief as is just, equitable and proper. MEMORANDUM OF LAW Introduction When a question regarding a capital defendant’s incompetence to be executed is raised and supported by an expert opinion, the fair determination of that issue is a

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necessary predicate to the integrity of this state’s most profound punishment—a punishment that is irreversible. A court cannot preclude consideration or review of that issue by permitting a capital defendant whose competency is in issue to discharge

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counsel. At the “death warrant” hearing in this case, defense counsel presented the court with evidence from a highly regarded neuropsychologist that Mr. Haugen was

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incompetent to be executed. The next step under the law was to conduct a competency hearing. That did not happen. Instead, the lower court permitted Mr. Haugen to waive counsel; struck the evidence of his incompetence submitted by counsel; and signed a death warrant. As a result, the lower court ordered the execution of a man after ignoring evidence that he did not have a rational understanding of the connection between his crime and his death sentence. The Constitution does not permit this result. This Court should issue a writ of mandamus directing the trial court to vacate the death warrant and conduct an adversarial hearing on Mr. Haugen’s competency.
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To be clear, the issue before this court is not whether Mr. Haugen is, or is not, mentally ill or whether he is, or is not, competent to be executed in compliance with the Constitution. The only issue now before this court is whether Haugen made a threshold showing of incompetency to be executed. Because he clearly met that standard, the death warrant could not be issued and counsel could not be discharged without first conducting a fair hearing on that issue. At a minimum, a fair hearing requires an opportunity for the parties to submit evidence, including expert psychological evidence addressing Mr.

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Haugen’s competence. See Ford v. Wainwright, 477 U.S. 399 (1986); Panetti v. Quarterman, 551 U.S. 930, 948 (2007). The Constitutional Requirement of Addressing Competency First

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The Sixth Amendment entitles a defendant to the assistance of counsel at every critical stage of a criminal prosecution. Kirby v. Illinois, 406 U.S. 682, 690 (1972); United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir.1993). Critical stages are those

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steps of a criminal proceedings that hold significant consequences for the accused. Bell v. Cone, 535 U.S. 685, 695-96 (2002). Thus, a defendant is entitled to counsel at any proceeding where an attorney's assistance may avoid the substantial prejudice that could otherwise result from the proceeding. Coleman v. Alabama, 399 U.S. 1, 9 (1970). There can be little doubt that a competency hearing held at a death warrant is a critical stage of a criminal case. See Appel v. Horn, 250 F.3d 203, 215 (3d Cir.2001); United States v. Klat, 156 F.3d 1258, 1262 (D.C. Cir. 1998); United States v. Barfield,

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969 F.2d 1554, 1556 (4th Cir.1992); Sturgis v. Goldsmith, 796 F.2d 1103, 1109 (9th Cir.1986). When a “sufficient doubt” is raised to a defendant's competency, a hearing is required to prevent the prosecution or, as here, the execution of an incompetent person. Drope v. Missouri, 420 U.S. 162, 180 (1975). It follows that, at a competency hearing where the defendant's competency is “sufficiently in doubt,” the potentially incompetent person should not be permitted to represent himself. Appel v. Horn, 250 F.3d at 215;

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Klat, 156 F.3d at 1262-63. Ruling on a Faretta motion while a competency motion is pending violates a defendant's Sixth Amendment right to counsel. See People v. Horton 11 Cal.4th 1068,

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1108 (1995) (trial court lacked jurisdiction to rule upon Faretta motion while competency proceeding pending and properly declined to do so); Klat, supra, 156 F.3d at p. 1263 (defendant may not proceed pro se until question of competency to stand trial is

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resolved); U.S. v. Purnett, 910 F.2d 51, 55 (2d Cir.1990) ( “Logically, the trial court cannot simultaneously question a defendant's mental competence to stand trial and at one and the same time be convinced that the defendant has knowingly and intelligently waived his right to counsel.”). The United States Supreme Court’s decision in Pate v. Robinson, 383 U.S. 375 (1966), is in accord. In that case, the Court concluded that a defendant could not waive his right to a competency hearing when there was a question as to his competency to stand trial: “[I]t is contradictory to argue that a defendant may be incompetent, and yet
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knowingly or intelligently ‘waive’ his right to have the court determine his capacity to stand trial.” Id. at 384. Instead, when a defendant’s competency is in question, he may not proceed pro se until the question of his competency has been resolved. In Mr. Haugen’s case, appointed counsel presented evidence that Mr. Haugen was incompetent to be executed. Counsel’s declaration states that Dr. Lezak evaluated Mr. Haugen and concluded that he did not possess a rational understanding of the connection between his crime and his death sentence. See Declaration of Goody; Affidavit of Lezak.

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The Statutory Ordering of Issues When a colorable claim of competency is raised by previously appointed counsel, the “death warrant” statute requires the court to resolve that issue first.

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ORS 137.463 provides that if this Court affirms a sentence of death, a death warrant hearing shall take place in the court in which the judgment was rendered within 30 days after the effective date of the appellate judgment. The statute sets forth the order

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of the issues to be addressed at the death warrant hearing. At the death warrant hearing, “(a)fter appropriate inquiry, [the court] shall make findings on the record whether the defendant suffers from a mental condition that prevents the defendant from comprehending the reasons for the death sentence or its implication. The defendant has the burden of proving by a preponderance of the evidence that the defendant suffers from a mental condition that prevents the defendant from comprehending the reasons for the death sentence or its implication.” ORS 137.463 (4).

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If the court makes a finding that the defendant is incompetent to be executed, the statute then directs that the Court: Notwithstanding any other provision in this section, if the court finds that the defendant suffers from a mental condition that prevents the defendant from comprehending the reasons for the sentence of death or its implications, the court may not issue a death warrant until such time as the court, after appropriate inquiries, finds that the defendant is able to comprehend the reasons for the sentence of death and its implications. ORS 137.463(6)(a). It is true that subsection (3) of the statute addresses the right to counsel at the death warrant hearing. However, that subsection assumes that post-conviction counsel

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has not yet been appointed. Further, to the extent that the statute is read as requiring the court to sua sponte inquire whether a death-sentenced defendant wishes to discharge previously appointed counsel, the statute would clearly violate the Sixth Amendment.

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Competency to be Executed—A Rational Understanding of the Reasons for Punishment In Ford v. Wainwright, 477 U.S. 399 (1986), the Supreme Court held that “[t]he Eighth Amendment prohibits the State from inflicting the penalty of death upon a prisoner who is insane.” Id. at 410. A prisoner is incompetent to be executed when his “mental illness prevents him from comprehending the reasons for the penalty or its implications.” Id. at 417. This substantive standard, which is broader than the test for competency set forth in ORS 137.463, was reiterated in the United States Supreme Court’s opinion in Panetti v. Quarterman, 551 U.S. 930, 948 (2007). Panetti makes clear that employing a standard
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for incompetence in this context which focuses exclusively upon the defendant's awareness of his situation, but which ignores the possibility the defendant may suffer from delusional thought processes which interfere with his ability to rationally comprehend the causal link between his capital offense and his imminent execution is unconstitutionally narrow. 551 U.S. at 933. (“Both the potential for a prisoner's recognition of the severity of the offense and the objective of community vindication are called in question, however, if the prisoner's mental state is so distorted by a mental

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illness that his awareness of the crime and punishment has little or no relation to the understanding of those concepts shared by the community as a whole.”). “A prisoner's awareness of the State's rationale for an execution is not the same as

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a rational understanding of it.” Id. “Gross delusions stemming from a severe mental disorder may put an awareness of a link between a crime and its punishment in a context so far removed from reality that the punishment can serve no proper purpose.” Id.

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Finally, Panetti clarified Ford: “It is therefore error to derive from Ford, and the substantive standard for incompetency its opinions broadly identify, a strict test for competency that treats delusional beliefs as irrelevant once the prisoner is aware the State has identified the link between his crime and the punishment to be inflicted.” Id. Prior to the death warrant hearing, defense counsel presented evidence which certainly satisfied the threshold standard set forth in Ford and Panetti. According to the declaration of counsel (given Dr. Lezak’s temporary unavailability after the court had assured counsel that a hearing would take place much later), Dr. Lezak concluded that
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“although Mr. Haugen has the capacity to understand he will be executed as a result of his conviction, he does not have a rational understanding of the connection between his crime and the punishment.” Declaration of W. Keith Goody, ¶ 8. As the declaration further states, Mr. Haugen “repeatedly” made “irrational statements concerning his beliefs about the reasons for his pending execution.” Id. at ¶ 9. The lower court ignored all of this evidence. The Due Process Right to a Meaningful Hearing

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Once a prisoner makes a “substantial threshold showing of insanity,” due process requires a fair hearing on his competency to be executed, in accord with fundamental fairness. Ford, 477 at 426; Panetti, 551 U.S. at 949.

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The hearing in this case was far from fair. In fact, the process for determining Mr. Haugen’s competency was even more rudimentary than the process condemned in Panetti.

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In Panetti, shortly after the state trial court set an execution date, petitioner filed a motion under Texas law claiming, for the first time, that he was incompetent to be executed because of mental illness. The trial judge appointed two “independent” experts who concluded that Panetti was competent. The court then denied the motion without a hearing and without authorizing funds for a defense expert. Subsequently, the Texas Court of Criminal Appeals dismissed petitioner's appeal for lack of jurisdiction. The Supreme Court reversed, holding once a prisoner seeking a stay of execution has made “a substantial threshold showing of insanity,” the protection afforded by
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procedural due process includes a “fair hearing” in accord with fundamental fairness. Panetii, 551 U.S. at 948; quoting Ford, 477 U.S. at 426. This protection means a prisoner must be accorded an opportunity to be heard. When a prisoner has made the requisite threshold showing, the Constitution requires, at a minimum, that a court allow a prisoner's counsel the opportunity to make an adequate response to evidence solicited by the state court. Id. In Panetti this meant an opportunity to submit psychiatric evidence as a counterweight to the report filed by the court-appointed experts. Because that did not

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happen, Panetti reversed, scolding the state court: “Yet petitioner failed to receive even this rudimentary process.” Id. at 952. In this case, the court did even less. The court did not appoint any independent

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experts. The court did not consider expert testimony from the State’s expert. The court did not consider expert testimony from any source. Instead, it struck and ignored the only expert evidence.

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As a result, this case should be remanded for a fair hearing. Although Panetti did not specify all of the procedural contours of a competency hearing, it made the importance of expert testimony plain. Panetti remanded with the instructions that the “underpinnings of petitioner's claims should be explained and evaluated in further detail on remand. The conclusions of physicians, psychiatrists, and other experts in the field will bear upon the proper analysis. Expert evidence may clarify the extent to which severe delusions may render a subject's perception of reality so distorted that he should be deemed incompetent.” Id. at 962.
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This Court should grant this petition with similar instructions. Counsel’s Duty to Raise Competency Concerns At the death warrant hearing, defense counsel had a duty to raise the legitimate questions about Mr. Haugen’s competency even over his objection. This is hardly a novel or radical proposition. Instead, it is settled law. . If the Constitution or a statute renders the fact or timing of an execution contingent upon establishment of a further fact, then that fact must be determined with

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the high regard for truth that befits a decision affecting the life or death of a human being. “Thus, the ascertainment of a prisoner's sanity as a predicate to lawful execution calls for no less stringent standards than those demanded in any other aspect of a capital

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proceeding.” Ford, 477 U.S. at 411-412. If counsel were compelled to assent to defendant's desire not to raise a claim of incompetency, even though counsel has both a bona fide doubt coupled with the opinion

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of an expert finding incompetence, the court would not be informed that a defendant's competence is in issue, and the result would violate due process. See Pate v. Robinson 383 U.S. 375, 377 (1966). Defense counsel's ultimate responsibility to his client is to ensure that those due process rights are not violated. It would place defense counsel and the integrity of the criminal justice system in an impossible position to suggest that defense counsel must ignore his or her bona fide doubt as to the defendant's present competence, simply because the defendant is personally confident that he or she is competent. See People v.
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Harris, 14 Cal.App.4th 984, 18 Cal.Rptr.2d 92 (1993). An attorney who doubts his client's competence “may assume his client cannot act in his own best interests and may act even contrary to the express desire of his client.” People v. Bolden, 99 Cal.App.3d. 375, 379–380, 160 Cal.Rptr. 268 (1979). The same obligation applies to seeking review of an order finding a defendant competent where the trial court ignored the relevant evidence. In Rees v. Peyton, 384 U.S. 312 (1966), a death-sentenced petitioner directed his

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counsel to withdraw his petition for certiorari and forgo any further attacks on his conviction and death sentence. Id. at 313. The Supreme Court remanded the case to the district court to make a determination as to Rees's mental competence, noting that it

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would be appropriate to subject Rees to psychiatric and other medical examinations. Id. at 314. The Supreme Court instructed the district court to "hold such hearings as it deems suitable, allowing the State and all other interested parties to participate should they so

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desire[.]” Id. The question presented on remand to the district court was whether Rees has the “capacity to appreciate his position and make a rational choice with respect to continuing or abandoning further litigation or on the other hand whether he is suffering from a mental disease, disorder, or defect which may substantially affect his capacity in the premises.” Id. See also Commonwealth v. Sam; 952 A.2d 565 (Pa. 2008) (action brought by counsel in order to preserve post-conviction rights of potentially incompetent capital defendant); Miller ex rel. Jones v. Stewart, 231 F.3d 1248 (9th Cir. 2000) (“Because no court has ever made the appropriate inquiry and because current evidence
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suggests that Miller may not be competent, we grant the motion for stay of execution and remand this matter to the district court for an evidentiary hearing.”). The American Bar Association has recognized the serious attorney-client difficulties that capital defense counsel often encounter because of their clients' impaired mental states and stressful circumstances: Many capital defendants are...severely impaired in ways that make effective communication difficult: they may have mental illnesses or personality disorders that make them highly distrustful or impair their reasoning and perception of reality; they may be mentally retarded or have other cognitive impairments that affect their judgment and understanding; they may be depressed and even suicidal; or they may be in complete denial in the face of overwhelming evidence. In fact, the prevalence of mental illness and impaired reasoning is so high in the capital defendant population that “[i]t must be assumed that the client is emotionally and intellectually impaired.” ABA Death Penalty Guidelines at 1007-08 (footnote omitted). Moreover, “the mental condition of many capital clients will deteriorate the longer they remain on death row. This may result in suicidal tendencies and/or impairments in

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realistic perception and rational decision-making.” Id at 1082. Because of these common problems, and the irreversible nature of the death penalty, capital counsel have special “duties respecting uncooperative clients.” ABA Guidelines at 1009 (capitalization altered). For example: Some clients will initially insist that they want to be executed—as punishment or because they believe they would rather die than spend the rest of their lives in prison; some clients will want to contest their guilt but not present mitigation. It is ineffective assistance for counsel to simply acquiesce to such wishes, which usually reflect the distorting effects of overwhelming feelings of guilt and despair rather than a rational decision in favor of a state-assisted suicide….
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ABA Guidelines at 1009-10 (footnotes omitted); see also Christy Chandler, Note, Voluntary Executions, 50 Stan. L. Rev. 1897,1902-03 (1998) (many death-row inmates express a desire to die, but most change their minds); Richard W. Garnett, Sectarian Reflections on Lawyers' Ethics and Death Row Volunteers, 77 Notre Dame L. Rev. 795, 801 (2002) (most capital defendants "at one point or another, express a preference for execution over life in prison. Most of them, though, change their minds." (footnote omitted). This court has not held otherwise. In Wright v. Thompson, 324 Or. 153, 922 P.2d

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1224 (1996), a “next friend” action, competency was not an issue. This court was careful to note, in rejecting the appeal, that it had reviewed the entire record, including the documents provided under seal, and concluded that the record does not disclose even a

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prima facie case sufficient to place Wright's mental competency in this matter at issue. “Counsel acknowledges that the circuit court provided a full opportunity to make a record that was aimed at establishing a prima facie case justifying some further judicial inquiry

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into Wright's alleged mental incompetence. The failure of the record to support such a claim, therefore, answers counsel's assertion on appeal that the trial court erred by not instituting a competency hearing.” This case presents the exact opposite situation. The record supports a claim of incompetency which was ignored by the court below.

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CONCLUSION In Ford, the Court stated the foundation for the prohibition against executing an individual who is incompetent: “[T]oday, no less than before, we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life....Similarly, the natural abhorrence civilized societies feel at killing one who has no capacity to come to grips with his own conscience or deity is still vivid today. And the intuition that such an execution simply of-fends humanity is evidently shared across this Nation. Faced with such widespread evidence of a restriction upon sovereign power, this Court is compelled to conclude that the Eighth Amendment prohibits a State from carrying out a sentence of death upon a prisoner who is insane.” Ford, 477 U.S. at 409-10. In this case, Judge Guimond authorized the execution of Gary Haugen only by

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first allowing Mr. Haugen to proceed pro se and then by putting aside and ignoring expert evidence that Mr. Haugen was incompetent. The lower court’s actions run afoul of the Fifth, Sixth, Eighth and Fourteenth Amendments.

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This Court should grant this petition for a writ of mandamus. DATED this 13th day of June, 2011. /s/Jeffrey E. Ellis Jeffrey E. Ellis, OSBA # 102990 Attorney at Law Oregon Capital Resource Ctr. 621 SW Morrison St., Ste 1025 Portland, OR 97205 JeffreyErwinEllis@gmail.com

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