Reply Brief — Robert Paul Langley, Jr., Petitioner v. Oregon

No. 19-7743

__________________

IN THE

Supreme Court of the United States

__________________

ROBERT PAUL LANGLEY, JR., Petitioner,

v.

STATE OF OREGON, Respondent.

_____________________

REPLY TO THE BRIEF IN SUPPORT OF

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE STATE OF OREGON

__________________

*KAREN A. STEELE

Attorney at Law

P.O. Box 4307

Salem, OR 97302

503-508-4668

JEFFREY E. ELLIS

Oregon Capital Resource Ctr.

621 SW Morrison St., Ste. 1025

Portland, OR 97205

503-222-9830

Attorneys for Petitioner

⃰ Counsel of Record

i

TABLE OF CONTENTS

REPLY ...................................................................................................................... 1

1.

REPLY AS TO THE FIRST QUESTION PRESENTED .................... 1

2.

REPLY AS TO THE SECOND QUESTION PRESENTED ............... 5

A. PROCEDURAL AND AMELIORATIVE EN TOTO .................................... 5

B. UNIFIED DEFENSE ........................................................................... 7

C. AGGRAVATING VICTIM IMPACT EVIDENCE ....................................... 8

D. BEYOND A REASONABLE DOUBT .................................................... 10

CONCLUSION ....................................................................................................... 12

ii

TABLE OF AUTHORITIES

Federal Cases

Addington v. Texas,

441 U.S. 418 (1979) .............................................................................................. 11

Apprendi v. New Jersey,

530 U.S. 466 (2000) .................................................................................... 2, 11, 12

Blakely v. Washington,

542 U.S. 296 (2004) .................................................................................... 2, 11, 12

Dobbert v. Florida,

432 U.S. 282 (1977) ................................................................................................ 5

Penry v. Lynaugh,

492 U.S. 302 (1989) ...................................................................................... 2, 3, 10

Ring v. Arizona,

536 U.S. 584 (2002) .................................................................................... 2, 11, 12

Santosky v. Kramer,

455 U.S. 745 (1982) .............................................................................................. 11

United States v. Haymond,

139 S.Ct. 2369 (2019) ....................................................................................... 5, 11

Weaver v. Graham,

450 U.S. 24 (1981) .................................................................................................. 5

State Cases

Johnson v. Premo,

399 P.3d 431 (Or. 2017).......................................................................................... 8

State v. Guzek (Guzek II),

906 P.2d 272 (Or. 1995)................................................................................ 3, 4, 10

State v. Guzek (Guzek III),

86 P.3d 1106 (Or. 2004).......................................................................................... 4

State v. Langley (Langley III),

273 P.3d 901 (Or. 2012).......................................................................................... 1

State v. Langley (Langley IV),

424 P.3d 688 (Or. 2018).......................................................................................... 6

iii

State v. Wagner (Wagner II),

786 P.2d 93 (Or. 1990).......................................................... 3, 4, 6, 7, 8, 10, 11, 12

Statutes and Constitutional Provisions

U.S. Const, Amend VI .............................................................................................. 11

U.S. Const, Amend VIII ........................................................................................... 11

ORS 163.150 ............................................................................................................... 9

ORS 163.150(1)(b) (1989) ........................................................................................... 4

Other Authorities

House and Senate Conference Committee, July 1, 1989, written

testimony of Deputy Attorney General James E. Mountain, Jr.,

regarding 1989 House Bill 2250 (Amendments to Death Penalty

Statute) ................................................................................................................... 7

Appellate and Trial Court Cases

Montez v. Kelly,

Marion County Circuit Court No. 20CV08482, Petition for PostConviction Relief, 2/20/2020 ............................................................................. 2, 10

Montez v. Kelly,

Marion County Circuit Court No. 20CV08482, Answer to Petition

for Post-Conviction Relief, 3/30/2020. .................................................................. 10

State v. Langley,

SC S062353, Opening Brief, 2/5/2016 .................................................................... 9

State v. Langley,

SC S062353, Answering Brief, 9/28/2016 .......................................................... 8, 9

1

REPLY

The State’s Brief in Opposition not only rewrites the questions presented in

Mr. Langley’s petition but, throughout, makes claims of dubious credibility.

Mr. Langley stands by the veracity of the assertions in his Petition for Certiorari.

He provides one example by which this Court may assess the veracity of the State’s

claims. In its recounting of the history of Mr. Langley’s case, the State suggests

that Mr. Langley chose to represent himself in the last sentencing proceeding: “[o]n

remand for a third penalty-phase proceeding, petitioner—this time representing

himself…” 1 In its briefing before the Oregon Supreme Court in the underlying case,

however, the State recounted that last proceeding as follows: “in State v. Langley,

351 Or. 652, 654-655, 273 P.3d 901 (2012) (Langley III), this court held that the

trial court committed reversible error when it required defendant ‘to proceed to trial

on the sentencing phase of a capital murder case without the assistance of legal

counsel[.]’” 2

1. REPLY AS TO THE FIRST QUESTION PRESENTED

In an attempt to discourage this Court from granting certiorari, the State

eschews party presentation principles by reframing the first question presented,

makes arguments it failed to make in state court, disregards this Court’s teachings

regarding effect over form, and fails to apprise this Court that its arguments in

opposition to certiorari are in direct contradiction with admissions the State made

approximately two months ago in State court.

1 Brief in Opposition, p. 4.

2 State v. Langley, SC S062353, Respondent’s Answering Brief, 9/28/2016, p. 216.

2

The State asserts that Apprendi 3 does not apply to the Fourth Question,

claiming that it is a mechanism allowing jurors to impose a lesser rather than an

increased sentence. 4 Not only did the State fail to make that argument below, but,

approximately two months before filing its Brief in Opposition, in the context of

another pre-Penry I 5 Oregon capital case, the State admitted that “[a]n affirmative

finding on the Fourth Question is necessary to the imposition of death under the

Oregon capital scheme” 6 and that “[t]he Fourth Question is an additional finding

that exposes an Oregon capital defendant to a greater punishment than that

authorized by the jury’s guilty verdict alone.” 7

Given the State’s admissions, and as identified by the First Question

Presented, at issue is the viability of Oregon’s capital sentencing statute as applied

to Mr. Langley, since Oregon long ago chose a burden-less Fourth Question as the

mechanism to comply with this Court’s Eighth Amendment command in Penry I,

and that lack of a beyond a reasonable doubt standard being at odds with this

Court’s “statutory maximum” methodology under the Sixth Amendment, as

explained in Apprendi, Ring, 8 and Blakely. 9 In response, the State’s sole refrain is

to urge that this Court dispense with its Sixth Amendment teachings regarding

3 Apprendi v. New Jersey, 530 U.S. 466 (2000).

4 Brief in Opposition, p. 14.

5 Penry v. Lynaugh, 492 U.S. 302 (1989).

6 Montez v. Kelly, Marion County Circuit Court No. 20CV08482, Petition for Post-Conviction Relief,

2/20/2020, paragraph 439 at p. 142; and, in the same case and in reference to paragraph 439, Answer

to Petition for Post-Conviction Relief, 3/30/2020, p. 7, line 24 (“admits the allegations”).

7 Montez v. Kelly, Marion County Circuit Court No. 20CV08482, Petition for Post-Conviction Relief,

2/20/2020, paragraph 440 at p. 142; and, in the same case and in reference to paragraph 440, Answer

to Petition for Post-Conviction Relief, 3/30/2020, p. 7, line 24 (“admits the allegations”).

8 Ring v. Arizona, 536 U.S. 584 (2002).

9 Blakely v. Washington, 542 U.S. 296 (2004).

3

additional findings beyond the statutory maximum because Oregon has attached a

“discretionary determination” label to the Fourth Question—a label affixed to that

question as it was worded and existed 30 years ago. The discretionary

determination label, however, fails to relieve the State of its Sixth Amendment

obligations, and further fails to acknowledge that the Fourth Question circa 2014

was fundamentally distinct from the mitigation-only question approved by the

Oregon Supreme Court in State v. Wagner, 786 P.2d 93 (Or. 1990) (Wagner II).

Wagner II upheld the Oregon capital sentencing statute against a facial

challenge, 10 noting that the statute did not preclude the addition of a Fourth

Question to meet this Court’s Eighth Amendment command in Penry I, 11 the

Oregon Supreme Court later noting that the Fourth Question was developed for the

sole purpose of giving effect to mitigation evidence. 12 Guzek II, 906 P.2d at 282. The

Fourth Question, specifically, “was not to let in more aggravation evidence[,]” 906

P.2d at 283, in that the Oregon legislature would have understood that introduction

of aggravating evidence by way of that question would have transformed the

character of the question into one to be proven by the State beyond a reasonable

doubt. 906 P.2d at 279. This is the historical context in which the Oregon Supreme

Court labeled the Fourth Question “discretionary” and approved no standard of

proof be assigned to that question.

10 The Oregon Supreme Court later observed that, absent the addition of the Fourth Question,

Oregon’s capital sentencing statute would be facially unconstitutional. State v. Guzek, 906 P.2d 272,

281 (Or. 1995) (Guzek II) (citing Wagner II, 786 P.2d at 94).

11 Wagner II, 786 P.2d at 94, 96, 99, 101.

12 Guzek II, 906 P.2d at 282.

4

The State attempts to steer this Court’s attention to an issue not presented

by Mr. Langley, asserting that the 2014 jurors were not balancing aggravation

against mitigation. 13 As an initial matter, Mr. Langley does not make a “balancing”

argument. Beyond that, the underlying record contradicts the State’s assertion. In

the context of the Fourth Question, the jurors were specifically instructed to

consider, and were without discretion to refuse to consider, aggravating victim

impact evidence that was not admissible at the time of the crimes, 14 and the

mitigation evidence presented by Mr. Langley. The Oregon Supreme Court’s

underlying opinion reflects that mitigating evidence and aggravating victim impact

evidence “were the jury’s sole concern in rendering its fourth question

determination in this case.” 15

The Oregon Supreme Court’s reliance on its Wagner II rationale in rejecting

the questions before this Court was misplaced as it failed to take into account that

time and subsequent decisions by this Court have washed away any logic that the

Fourth Question is a discretionary determination, is contrary to the State now

having admitted that the Fourth Question is an additional finding that exposes an

Oregon capital defendant to a greater punishment than that authorized by the

13 The State claims that the jurors do not “expressly balance the aggravating factors against the

mitigating circumstances in order to determine whether one outweighed the other.” Brief in

Opposition, p. 13.

14 The introduction of aggravating victim impact evidence and argument was not admissible at the

time of the crimes in this case, much less in the context of the post-Penry I addition of the mitigationonly Fourth Question. Guzek II, 906 P.2d at 286 (“[V]ictim impact statements are not ‘relevant to

sentencing’ in capital cases under ORS 163.150(1)(b) (1989), because those statements are not

relevant to any of the four substantive questions that a jury must answer pursuant to that statute

and Wagner II, [786 P.2d at 100].”); and see also, State v. Guzek III, 86 P.3d 1106, 1115 (Or. 2004)

(“[U]nder the 1989 version of the death-penalty statutory scheme…the admission of victim-impact

evidence constituted reversible error.”).

15 Pet. App. 29 a.

5

jury’s guilty verdict alone, ignores the consequence of such a finding in view of this

Court’s “statutory maximum” methodology, and further overlooks this Court’s

instruction that “the relevant inquiry is one not of form, but of effect[.]” United

States v. Haymond, 139 S.Ct. 2369, 2377 (2019).

2. REPLY AS TO THE SECOND QUESTION PRESENTED

The State concedes that the 2014 sentencing-only remand proceeding was

held largely under the statute in effect as of 2014 rather than the statute in effect

at the time of the 1987 crimes. 16 The 2014 sentencing-only remand proceeding

subjected Mr. Langley to the retroactive application of various changes to the

capital sentencing statute that, taken individually and cumulatively, were more

onerous and disadvantageous than the capital sentencing statute in effect at either

the time of the crimes or at the time of the post-Penry I statutory fix.

A.

PROCEDURAL AND AMELIORATIVE EN TOTO

A retrospective law can be constitutionally applied to a person only if it is

not to his detriment. Weaver v. Graham, 450 U.S. 24, 33 (1981). “Whether a

retrospective state criminal statute ameliorates or worsens conditions imposed by

its predecessor is a federal question.” Id. The retrospectively applied 2014 statutory

scheme was more onerous than the prior law. Dobbert v. Florida, 432 U.S. 282, 294

(1977). Mr. Langley was clearly disadvantaged by the retroactively applied changes

that, considered individually and cumulatively, were used to obtain a death

sentence against him, violating his right against ex post facto laws.

16 Brief in Opposition, pp. 14-15.

6

The Oregon Supreme Court’s underlying decision states that the 1990

Wagner II decision addressed and dispensed with Mr. Langley’s as-applied

assertions of more onerous, substantially disadvantageous, and non-ameliorative

effects as a result of the retroactive application of changes to the capital sentencing

statute. State v. Langley IV, 424 P.3d 688, 720 (Or. 2018) (Pet. App. 34 a). It did

not. Wagner II was limited to the facial challenge before that court, which obviously

did not include the legislature’s 1995 and 1997 amendments adding aggravating

victim impact evidence to, and requiring jurors to consider that evidence in the

context of, the Fourth Question. Despite this, the State asserts, “Yet petitioner’s

complaints about Oregon’s death penalty statute target only changes that are

procedural or ameliorative.” 17

Mr. Langley provided this Court with non-exhaustive examples of the ways

in which the retroactively applied statutory scheme was more onerous than the

prior law. 18 Mr. Langley further demonstrated to this Court how he was clearly

disadvantaged by the retroactively applied changes that, taken individually and

cumulatively, were used to obtain a death sentence against him, violating his right

against ex post facto laws. The State points to no Oregon Supreme Court authority

analyzing together the non-exhaustive issues presented by Mr. Langley holding

that Oregon’s retroactively applied changes were less onerous, less burdensome,

and ameliorative. 19

17 Brief in Opposition, pp. 17-18.

18 Petition, pp. 20-27.

19 A search of Oregon caselaw reveals that the Oregon Supreme Court has never held the statute,

or the component parts identified by Mr. Langley, ameliorative.

7

B.

UNIFIED DEFENSE

As explained in his Petition for Certiorari, Mr. Langley was clearly

disadvantaged by the loss of the pre-existing entitlement under the statute in effect

at the time of the crimes to the protective and corrective process of a new guilt

phase rather than a sentencing-only remand upon the appellate court finding

reversible error in the penalty phase alone. The State attempts to mislead this

Court by asserting that, “the application of the penalty-phase remand was not a

change in Oregon law as of the date that petitioner committed the murder[,]” 20 and

claims that the Wagner II decision was, “based on the law as it existed in 1987, not

on the curative statutory amendments that were enacted in 1989.” 21 To the

contrary, in its determination that a pre-Penry I defendant was not entitled to the

pre-existing entitlement of a new guilt phase but instead a sentencing-only remand,

the Wagner II Court specifically relied on the 1989 legislative amendment,

emphasizing that the “new statute requires a new jury[.]” 22 Moreover, wholly

absent from the Wagner II Court’s decision is any analysis or determination as to

whether stripping Mr. Langley of the protective and corrective process of a new

guilt phase was to Mr. Langley’s detriment or whether that change was procedural

and ameliorative.

20 Brief in Opposition, p. 21. The State is incorrect. As the State is well aware, and as Mr. Langley

briefed the underlying court, the State’s own representative testified before the 1989 Oregon

legislature that, “under the [pre-Penry I] scheme, the same jury is required for both the guilt phase

and sentencing phase of the proceeding. As a result, there must be a new trial on guilt in order to

have a new trial on the sentence if the sentence is reversed.” July 1, 1989, written testimony of Deputy

Attorney General James E. Mountain, Jr., before the House and Senate Conference Committee

regarding 1989 House Bill 2250 (Amendments to Death Penalty Statute) (emphasis added).

21 Brief in Opposition, p. 21.

22 Wagner II, 309 Or. at 18.

8

In addition to misrepresenting the state of the law at the time of the crimes

versus at the time of Wagner II, the State additionally claims that a unified defense

does not make sense. 23 The State’s opinion runs counter to deep and established

practice standards dating to 1983, by established, well-respected capital defense

practitioners. 24 Moreover, as noted in Mr. Langley’s Petition for Certiorari yet

ignored by the State, in the context of another capital case, the Oregon Supreme

Court likewise has recognized the importance of a unified defense theory, noting

that counsel should, “whenever possible, [] develop a unified defense theory for both

the guilt and penalty phases of the trial, with an eye toward minimizing the risk

that a jury that convicts will impose the death penalty.” Johnson v. Premo, 399 P.3d

431, 444 (Or. 2017) (emphasis added). 25 Application of the legislative change to

impose a sentencing-only remand on Mr. Langley rather than afford him a whole

new trial was certainly not ameliorative but instead was more onerous and

burdensome, leading to Mr. Langley being sentenced to death.

C.

AGGRAVATING VICTIM IMPACT EVIDENCE

The Second Question Presented correlates with Mr. Langley’s Assignments of

Error Nos. 58 and 59 in the underlying state court briefing. The State, in its state

court answering brief, conceded that, “Defendant adequately preserved the claims

of error that he asserts on appeal.” 26 Here, however, the State raises questions of

preservation, claiming that the specific evidence qualifying as victim impact

23 Brief in Opposition, p. 21 n.5.

24 See Petition for Certiorari, p. 21, n.8.

25 Johnson is noted in Mr. Langley’s Petition for Certiorari, p. 21.

26 State v. Langley, SC S062353, Respondent’s Answering Brief, 9/28/2016, p. 225.

9

evidence was not identified. The State’s assertion is without merit in that it was

the trial prosecutor himself that identified the victims’ testimony as victim impact

testimony, both during their testimony and during his closing argument to the

jurors. 27 Mr. Langley’s underlying briefing to the Oregon Supreme Court cited to

that exact identification.

The State’s Brief in Opposition makes much of the parties at the 2014

sentencing-only remand proceeding agreeing not to apply the 1995 and 1997

amendments to Or. Rev. Stat. § 163.150 that permitted jurors in 2014 to consider

“any aggravating evidence” in the context of the Fourth Question. 28 Apart from “any

aggravating evidence,” however, the State fails to acknowledge the salient points:

at the time of the 1987 crimes, aggravating victim impact evidence was not

admissible in the penalty phase; 29 prior to the 1995 and 1997 statutory

amendments, aggravating victim impact evidence was not admissible in a penalty

phase against Mr. Langley; 30 the 2014 statute treated “any aggravating evidence”

and victim impact evidence distinctly; and Mr. Langley did not agree and/or waive

his ex post facto rights as to the admission of aggravating victim impact evidence in

the 2014 sentencing-only remand proceeding. Despite this, the State now claims

27 See, State v. Langley, S062353, Respondent’s Answering Brief, 9/28/2016, p. 177, in which the

State quotes defense trial counsel Clayhold reminding the trial court of the previously litigated

victim impact evidence objection in advance of the victim’s sister’s testimony, with the court

responding “[t]he court has already ruled on that, and the objection is preserved[.]” See also at

p. 178, in which the State quotes the trial prosecutor’s framing of the issue relative to the victim’s

daughter’s testimony for the trial court by characterizing it as “victim impact evidence.” Finally, see

State v. Langley, S062353, Opening Brief, 2/5/2016, pp. 406–407, quoting the trial prosecutor’s

closing argument to jurors: “Next part is victim impact” and going on to describe in detail the

testimony of the victim’s daughter.

28 Brief in Opposition, p. 15 n.3.

29 See, supra, n.14.

30 Id. (noting specifically that the admission of victim-impact evidence constituted reversible error).

10

that all of the changes to the statute as applied to Mr. Langley were procedural and

ameliorative, 31 an argument the State has not only never before made below, but is

contrary to the State’s position before the Oregon Supreme Court in another prePenry I era capital case. 32

D.

BEYOND A REASONABLE DOUBT

The State asserts in its Brief in Opposition that the Wagner II Court

construed then-existing Oregon law in a manner to find the capital statute facially

constitutional by finding that the statute allowed for the submission of a fourth

question to comply with the constitutional rule announced in Penry I. 33 As noted in

the Petition for Certiorari, the Oregon death penalty statute at the time of both

Penry I and Wagner II existed as a result of 1984 Oregon voters authorizing capital

punishment only upon “requiring unanimous jury decisions on guilt and again on

the appropriateness of the death penalty instead of a life sentence—with all

decisions made on the basis of ‘beyond reasonable doubt.’” 34 Approximately two

months before filing its Brief in Opposition, the State admitted that, “[t]he

determination that all decisions were to be made beyond a reasonable doubt reflects

not only the weight of the private and public interests affected, but also a societal

judgment about how the risk of error should be distributed between the parties.” 35

31 Brief in Opposition, pp. 15, 17-18, 19.

32 See, State v. Guzek II, 906 P.2d at 278 (As related by the Oregon Supreme Court:

“The state

argues that the victim impact evidence tends to prove the existence of an aggravating circumstance

under the fourth statutory question, ‘whether a sentence of death should be imposed.’”) (emphasis

added).

33 Brief in Opposition, pp. 16-17.

34 Pet. App. 41 a.

35 Montez v. Kelly, Marion County Circuit Court No. 20CV08482, Petition for Post-Conviction Relief,

2/20/2020, paragraph 426 at pp. 138–139 142; and, in the same case and in reference to paragraph

426, Answer to Petition for Post-Conviction Relief, 3/30/2020, p. 7, line 24 (“admits the allegations”).

11

No burden of proof was assigned to the Fourth Question within the 2014 statute

under which Mr. Langley was sentenced to death. The absence of a jury finding

beyond a reasonable doubt affects not only the individual criminal defendant but

also implicates the judgment of the people at large as to distribution of risk in the

setting of “the metes and bounds of judicially administered criminal punishments.”

Haymond, 139 S.Ct. 2378-2379 (2019). The State nonetheless asserts that “[n]one

of [the changes to the statute] reduced the state’s burden or made a death sentence

more likely[,]” 36 and further argues that the issues Mr. Langley has brought to this

Court amount to no more than his own individual disagreement with the Oregon

Supreme Court’s application of federal law 37 rather than interests including those

of the public at large.

Mr. Langley is further disadvantaged by the Oregon Supreme Court’s refusal

to require a beyond a reasonable doubt finding as to the Fourth Question,

eschewing this Court’s “statutory maximum” methodology. The Oregon Supreme

Court’s Wagner II Eighth Amendment understanding of the Fourth Question is

incompatible with this Court’s teachings relative to the Sixth Amendment

“statutory maximum” methodology. The State fails to respond or provide a basis for

disregarding the Sixth Amendment teachings of Apprendi, Ring, and Blakely in

favor of the outdated nature of the death penalty statute under which Mr. Langley

was sentenced to death—outdated given the substantial and various alterations to

As noted previously in this Reply, Montez is another pre-Penry I capital case. The State’s admission

is consistent with this Court’s authority. Cf. Santosky v. Kramer, 455 U.S. 745, 755 (1982) (citing

Addington v. Texas, 441 U.S. 418 (1979)).

36 Brief in Opposition, p. 15.

37 Brief in Opposition, p. 26.

12

the post-Penry I scheme and the State’s reliance on the Wagner II rationale to refuse

to adhere to the Apprendi line of cases.

CONCLUSION

As to the First Question Presented, the Fourth Question is an additional

finding that exposed Mr. Langley to a greater punishment than that authorized by

the jury’s guilty verdict alone. The failure to apply a beyond a reasonable doubt

standard to that question fails to comply with this Court’s teachings as explained

in Apprendi, Ring, and Blakely.

As to the Second Question Presented, retroactive application of the changes

making up the 2014 capital sentencing statute, cumulatively applied to

Mr. Langley, is in conflict with the ex post facto teachings of this Court. The Oregon

Supreme Court’s underlying decision summarily denied Mr. Langley’s asserted ex

post facto error relying solely on its 30-year-old decision in Wagner II (which

necessarily did not address the changes Mr. Langley identifies), doing so without

engaging in an analysis of the statutory scheme as it existed at the time of the

crimes (and at the time of the post-Penry I statutory fix) and as applied, en toto, to

Mr. Langley in 2014.

For the reasons set forth in his Petition for Certiorari and this Reply, and

because the societal judgment in allocating risk as expressed in the standard of

13

proof is a matter of importance to the public, as distinguished from merely of

interest to the parties, petitioner respectfully prays this Court grant certiorari.

Respectfully submitted,

*KAREN A. STEELE

Attorney at Law

kasteele@karenasteele.com

P.O. Box 4307, Salem, OR 97302

503-508-4668

JEFFREY E. ELLIS

Oregon Capital Resource Ctr.

621 SW Morrison St., Ste. 1025

Portland, OR 97205

503-222-9830

_____________________________

Attorneys for Petitioner