Death penalty opponents challenge Haugen’s competence

By Helen Jung, The Oregonian, October 17, 2011

Gary Haugen is led into the Marion County courthouse. (Photo: AP)

Gary Haugen is led into the Marion County courthouse. (Photo: AP)

The tentative Dec. 6 execution date for death row inmate Gary Haugen faces a new obstacle — a legal defense group’s challenge that Haugen’s competency hearing wasn’t all that competent.

Oregon Capital Resource Center filed a request Monday asking the state Supreme Court to block Marion County Circuit Judge Joseph Guimond from signing a death warrant for Haugen, saying that a competency hearing held last month failed to meet the court’s standards.

The center — headed by Jeff Ellis, a board member for Oregonians for Alternatives to the Death Penalty — argued that Guimond improperly excluded consideration of Portland neuropsychologist Muriel Lezak’s opinion that Haugen is delusional.

The request asks the Supreme Court to require a new competency hearing with a new judge, lift the ban on Lezak’s opinion, allow others to present evidence of Haugen’s incompetence and appoint a new lawyer for Haugen. One of his attorneys should be replaced because of an alleged conflict of interest, the request states.

“Society’s independent stake in enforcement of the Eighth Amendment’s prohibition against cruel and unusual punishment cannot be overridden by a defendant’s purported desire to ‘sacrifice’ himself to prove that Oregon’s death penalty system and criminal justice system is unfair and unconstitutional,” Ellis wrote in the filing.

Responses are due by the end of Friday, he said. Oregon Capital Resource Center provides resources and training for attorneys defending death penalty cases.

The filing is the latest effort by death penalty opponents to halt the execution of twice-convicted murderer Haugen, who has repeatedly sought to end his legal challenges and be put to death.

Haugen himself objected to any use of Lezak’s opinion, saying that she and his attorneys at the time — W. Keith Goody and Andy Simrin –failed to get his permission to release any medical information about him. Haugen also said that Lezak was on a mission to find him incompetent.

Guimond initially allowed Haugen to waive his appeals and set an Aug. 16 execution date last May. But Goody and Simrin argued that Haugen was not competent, citing the Lezak opinion.

The state Supreme Court stepped in, ordering Guimond to cancel the execution, schedule a psychological evaluation with an Oregon Health Authority-designated professional and conduct a full competency hearing.

Guimond agreed. Another judge subsequently replaced Goody and Simrin at Haugen’s request.

The new competency hearing was held Sept. 27. Portland psychologist Richard Hulteng, who met with Haugen for 10 hours over two days, detailed his evaluation of Haugen and testified that the inmate was mentally competent.

Guimond then ruled on Oct. 7 that Haugen was competent to waive his legal appeals and is legally sane for the purposes of execution. Although Guimond did not sign a death warrant at the hearing, he said he expected to do so once the state submits its motion.

But Ellis wrote that Guimond’s process did not comply with the Supreme Court’s requirements. The Supreme Court ordered Guimond to allow Goody and Simrin to present evidence pertinent to Haugen’s mental capacity. Not only did Guimond disallow pertinent information — the Lezak opinion — but Haugen’s new attorneys failed to challenge Hulteng’s opinion, did not present their own expert and did not call Goody and Simrin to testify about Haugen, Ellis argued.

“It may be clear from the record or from their response to this pleading that current counsel are unwilling to present evidence of Mr. Haugen’s incompetence because they view their ethical duty in a manner differently than described by caselaw,” Ellis wrote. He urged the Supreme Court to allow third-party attorneys to “present the evidence that was missing from the last hearing.”

He cited testimony from Haugen’s 2007 trial for the killing of fellow inmate David Polin. The testimony showed Haugen had a history of serious mental illness and dysfunction, he wrote, including a diagnosis of “intermittent explosive personality disorder” and seizures.

Ellis also argued that the Supreme Court should disqualify Steve Gorham from representing Haugen in the current proceeding. Gorham was one of the two lawyers representing Haugen in his 2007 trial for killing Polin.

Ellis wrote that part of an attorney’s responsibility is to advise Haugen on all his legal options — including that his trial attorney may have made mistakes. Gorham is unlikely to offer that as an option, he argued.

Gorham declined to comment. Haugen’s other attorney, Greg Scholl, did not return a call for comment.

Haugen and a co-defendant, Jason Brumwell, were convicted in 2007 of stabbing Polin and crushing his head. Haugen had already been serving a life sentence with the possibility of parole at the Oregon State Penitentiary for the 1981 beating death of Mary Archer of Northeast Portland. Archer was the mother of his former girlfriend.