Now that a Portland jury has found Jeremy Christian guilty of the first-degree murders of two men on a MAX train, many people might assume that – given the horrific nature of his crimes -- he’ll end up serving the rest of his life with the possibility of never being released.
Think again.
A growing chorus of legal experts say they believe there’s a glaring flaw in Oregon’s new first-degree murder law that effectively eliminates the possibility that Christian and other convicted murderers in the future will end up serving “true life” prison terms.
Critics say the new law, passed last summer as Senate Bill 1013, is unconstitutional and vague. They say it disregards two landmark U.S. Supreme Court decisions that invalidate the procedure laid out in the law for handing down true life sentences.
In a flurry of paperwork filed Monday, Christian’s lawyers told Multnomah County Circuit Judge Cheryl Albrecht that given the law’s constitutional problems, her only remaining option under the law is to sentence Christian to life in prison with the possibility of release after 30 years.
Other lawyers representing first-degree murder defendants across Oregon are beginning to make similar arguments, as the first batch of accused killers head toward trials since the law took effect Sept. 29.
Defense attorneys aren’t the only ones pointing to a problem.
“In the prosecution community, there’s considerable concern,” said former prosecutor Josh Marquis. “It’d be naive to say this is some idle speculation.”
Marquis retired as Clatsop County district attorney about a year ago after handling about 25 aggravated murder cases during his 35-year career as prosecutor.
He said few lawyers are aware of the impact that the Supreme Court cases -- Apprendi v. New Jersey in 2000 and Blakely v. Washington in 2004 -- have on true life in Oregon.
“Of 13,000 lawyers in Oregon, maybe 1,500 of them practice criminal law and maybe 125 of them have tried a capital case,” Marquis said.
A jury box (Beth Nakamura, The Oregonian/OregonLive)
The Supreme Court rulings require a jury, not a judge, to decide on an elevated prison sentence, such as true life, critics of SB 1013 say. And criteria – or specific questions asked of jurors -- must be laid out by the law before the jury can hand down the harsher sentence, they say.
The problem with Oregon’s law is that it grants sentencing powers solely to a judge and doesn’t include sentencing criteria.
As a result, retired Multnomah County prosecutor Norm Frink believes there’s “a high degree of probability” that the Oregon Supreme Court will overturn true life sentences for defendants convicted of first-degree murder.
That means the only defendants who can be sentenced to true life -- or for that matter, receive the death penalty -- are those convicted of aggravated murder under the significantly revised section of SB 1013.
“People need to know what is happening,” said Frink, who handled dozens of aggravated murder cases during his prosecutorial career.
SB 1013 significantly narrowed the definition of aggravated murder, to include only defendants who have killed two or more people as an act of organized terrorism; killed a child younger than 14; killed another person while locked up in jail or prison for a previous murder; or killed a police, correctional or probation officer as part of a premeditated plan.
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The uncertainty over how the law will affect the first batch of defendants found guilty of first-degree murder is beginning to play out in courtrooms across the state.
In Christian’s case, Albrecht could go along with the law as stated and decide to sentence him to true life by simply giving what the law calls “the reasons” she thinks he deserves that sentence.
Judge Cheryl Albrecht (Beth Nakamura, The Oregonian/OregonLive)
But Albrecht appears to recognize a problem with this because, after jurors found Christian guilty last week, she asked them to return to court Tuesday and Wednesday. She plans to ask them questions about Christian that will help her decide his sentence.
In court filings Monday, prosecutors came up with their own suggestions for what she should ask, including:
Is there a high probability that Christian can’t be rehabilitated? Were his crimes fueled by “unreasonable racial and religious bias”? Has Christian shown remorse for plunging the knife into the necks of the three men?
Tuesday, defense attorney Greg Scholl cautioned the judge that she is stepping onto shaky ground.
“There’s nothing in the statute that says this is how they (jurors) are supposed to do it," Scholl said.
“We’re operating in a new and somewhat gray area," prosecutor Jeff Howes responded. Howes said just because SB 1013 doesn’t lay out a process for the judge and jury, that doesn’t mean the judge can’t create a process that is constitutional.
Regardless of how Albrecht handles this, Christian’s attorneys are likely to appeal whatever process she devises.
The judge also has the option of sentencing Christian to two life terms with 30-year minimums -- one for the death of Taliesin Namkai-Meche, 23, and one for the death of Ricky Best, 53, for a total of 60 years.
Plus, she could sentence him to another 7 ½ years for the attempted first-degree murder of Micah Fletcher and maybe years more for some of the nine other guilty verdicts on counts ranging from hate crimes to assault.
That means Christian -- who was 35 at the time he attacked the men on a MAX train after a hate-filled rant on May 26, 2017 -- would be more than 100 years old when he’s eligible for release if he lives that long.
But there’s no guarantee that Christian wouldn’t get out before a term of 67 ½ years or longer minimum term expires.
The Oregon Board of Parole and Post-Prison Supervision allows people sentenced to two consecutive life terms with 30-year minimums to be eligible to be considered for release after 30 years, not 60 years.
If he’s considered for release after 30 years, Christian would still need to prove that he’s rehabilitated and is no longer a danger to others. With the evidence that came out about Christian during his trial, that could be a high bar for him to reach.
Christian’s sentencing date hasn’t been scheduled yet.
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Outside Portland, other Oregon judges also have been grappling with what to do.
In November, a Hillsboro jury found Martin Allen Johnson guilty of first-degree murder in the killing of a 15-year-old girl whose body washed up on the banks of the Columbia River more than 20 years ago.
Martin Allen Johnson was convicted in November 2019 of first-degree murder for the 1998 death of 15-year-old Heather Fraser.
Using suggestions from prosecutors, Washington County Circuit Judge Eric Butterfield also came up with a list of questions for jurors. Among them was whether the defendant knew he was preying on a particularly vulnerable person and if prior punishment in the criminal justice system had deterred him from reoffending.
Butterfield then sentenced Johnson to true life. Johnson is appealing.
In Linn County, Brenton Wade Richmond faces a double murder trial in the shooting deaths of his ex-girlfriend and her new boyfriend in her home in 2019.
Brenton Wade Richmond is accused of murdering two. (Linn County Sheriff's Office)
Wade’s defense attorney asked Circuit Judge David Delsman to prevent the prosecution from seeking true life because of what they see as the first-degree murder law’s many constitutional issues.
Lawyers for the Oregon Department of Justice, however, have weighed in, saying in court filings that the true life option is legal and valid.
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Sen. Floyd Prozanski, the Eugene Democrat who chairs the Senate Judiciary Committee, said he wasn’t aware of the deep concerns some critics have over the validity of the law’s true life option for first-degree murder. His committee backed the bill.
Democrat Sen. Floyd Prozanski helped pass Senate Bill 1013. (Dave Killen/The Oregonian)
“Well, that’s their opinion, their interpretation,” said Prozanski, who is a municipal prosecutor and handles misdemeanor cases. “I had not heard that. And I will say that the law is pretty clear... The intent was not to do away with what’s called true life.”
The highly contentious bill has been mired in controversy almost from the time of its passage – with confusion about whether it would apply to old aggravated murder cases in which defendants’ past sentences had been successfully appealed.
Marquis, the retired Clatsop County prosecutor, said he believes at least one of the bill’s backers -- former Oregon House Majority Leader Jennifer Williamson – misled colleagues into believing the law wasn’t retroactive so she could get the bill passed, then revealed that the bill actually did apply to past cases.
“The bill, I believe, was deliberately engineered to create these ‘mistakes,’” Marquis said.
Frink, the retired Multnomah County prosecutor, calls them “poison pills” meant to secretly repeal true life in first-degree murder cases.
“Jennifer Williamson is a lawyer and she’s smart enough so the question is: Why did she do it? When she knew,” Frink said.
Williamson didn’t respond to phone calls or email messages over the past 10 days seeking her response.
Former Rep. Jennifer Williamson, D-Portland, at the Oregon Capitol in January 2019. (Beth Nakamura, The Oregonian/OregonLive)
Williamson has been embroiled in another controversy lately – dropping out of the Oregon secretary of state race earlier this month just before Willamette Week published a story questioning her use of campaign money to pay for international trips.
Rep. Mark Hass, D-Beaverton, also said he voted for the bill with the understanding that first-degree murder defendants could get true life.
“This discussion never came up,” said Hass, who also is running for secretary of state.
If it turns out the true-life portion of the law is unconstitutional, Hass said state lawmakers can rewrite the law. But not this year – the short session is already under way and ends in less than two weeks.
Defense attorneys, however, will most certainly argue that any rewritten law doesn’t apply to their clients who have already been sentenced.
In other words, they believe courts can’t retroactively apply true life sentences for Christian or others if they’ve been sentenced to true life but their sentences were overturned as unconstitutional.
-- Aimee Green
o_aimee
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