response to haugen objection

8/6/2019 Response to Haugen Objection

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Andy Simrin PCAttorney at Law______________________________________________________________________________________________________________________________________________________________________________________________________

405 NW 18th Avenue Portland, OR 97209 (503) 265-8940

Hon. Paul J. De Muiz

Oregon Supreme Court

1163 State St

Salem, OR 97301

Re: State v. Haugen, Marion County no. 04C46224, S Ct S059519

June 20, 2011

Dear Chief Justice De Muiz:

We write this letter in response to the letter dated June 14, 2011, from staff attorney

Philip Schradle to Jeffrey E. Ellis, requesting that Oregon Capital Resource Center,

and any other party desiring to be heard, to submit a memorandum regardingOCRCs standing. Though Mr. Goody and I may be precluded, absent an order from

your court, from advocating a position one way or the other on OCRCs standing, wefeel it is imperative for the court to understand the circumstances that created the

conundrum that the court faces and that, in our view, the court must find a way to

resolve.

While the petition for reconsideration was under advisement by your court in Mr.

Haugens direct appeal, OPDS approached Mr. Goody and me with a proposal thatwe be available to represent Mr. Haugen in post-conviction in the event he chose to

pursue that remedy. Mr. Haugen subsequently requested that Mr. Goody and I

represent him at the death warrant hearing. At Mr. Haugens request, I filed a motion

for substitution of counsel after the petition for reconsideration was denied but before

the appellate judgment was issued. Once the appellate judgment was issued, I filed a

notice of association of counsel in the Marion County Circuit Court establishing Mr.

Goody as co-counsel.

Initially, Mr. Haugen had indicated that he wished to waive further challenges to his

conviction and death sentence, but shortly after the appellate judgment was issued, he

expressed a desire for Mr. Goody and me to file a petition for a writ of certiorari.

Almost immediately after that, Mr. Haugen retracted that expression, indicating that

Mr. Goody and I had obtained under duress the note that he had written to the courtexpressing his intention to have us file a petition for a writ of certiorari. Mr.

June 20, 2011 02:21 PM


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Page 2 of 4

Haugens vacillation on whether he wishes to challenge his conviction and sentenceof death or be executed promptly is a matter of record, in his own handwriting, in

your court.

With Mr. Haugen returning to a desire to waive all further challenges to his

conviction and sentence of death, it was incumbent for Mr. Goody and me todetermine whether such a waiver would be knowing, voluntary and intelligent.

Toward that goal, we secured the services of neuropsychologist Muriel Lezak, Ph.D.

Dr. Lezaks examination of Mr. Haugen indicated that he was not competent to be

executed under the standards articulated in Ford v. Wainwright, 477 US 399, 106 S

Ct 2595, 91 L Ed 2d 335 (1986), and Panetti v. Quarterman, 551 US 948, 127 S Ct

2842, 168 L Ed 2d 662 (2007).

Notwithstanding Mr. Haugens express desire to be executed, Dr. Lezaks assessmentrequired Mr. Goody and me, at a bare minimum, to seek an evidentiary hearing to

determine Mr. Haugens competency under the case law cited by Mr. Ellis in hisPetition for a Writ of Mandamus and his Memorandum of Law Regarding Standing

and the ABA Guidelines for the Appointment and Performance of Defense Counsel

in Death Penalty Cases, which have been adopted by OPDS. That obligation was

consistent with the statutory requirement of ORS 137.463(4)(a), which places the

burden of proof on the competency issue on the defense.

In order to prepare for the required evidentiary hearing, Mr. Goody and I apprised

Judge Guimond and the prosecution that we would need 60 to 90 days additional

time. Prior to the originally scheduled warrant hearing on May 13, 2011, JudgeGuimond indicated that he would give us additional time and that he would continue

the warrant hearing. When he took the bench, however, Judge Guimond accepted the

prosecutions contention that the warrant hearing must be completed within 30 daysafter the appellate judgment was issued and that no evidence was necessary or

relevant to determine Mr. Haugens competency, other than Mr. Haugens answers toa set of questions that the prosecution had drafted for the court to ask Mr. Haugen.

See Memorandum in Support of Issuance of Death Warrant at 3-5 (Proposed

Colloquy). Judge Guimond then re-set the warrant hearing for May 18, the date that

the prosecution asserted that the warrant hearing had to be completed by. In theinterim, Dr. Lezak had left for a trip to Europe, having understood that an evidentiary

hearing on competency would later be conducted, as Judge Guimond had initially

indicated.

Mr. Goody and I had received information suggesting that Judge Guimonds

impartiality in death cases might reasonably be questioned, which would require him

to disqualify himself under Oregon Code of Judicial Conduct Rule 2-106(A)(1).


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Page 3 of 4

Prior to the resumption of the death warrant hearing on May 18, we received

affidavits from attorneys Dennis Balske and Lawrence Matasar, the content of which

gave Mr. Goody and me no choice but to file a motion to disqualify Judge Guimond.

We filed the necessary motion, a copy of which is attached to this letter. The

Honorable Thomas Hart presided over a hearing on that motion on May 18.

In order to fully understand the circumstances of this case that brought it to this

procedural juncture, we encourage your court to review the motion to disqualify

Judge Guimond, the supporting affidavits and the entire transcript of the May 18

proceedings in Mr. Haugens case. I have enclosed copies of all of them with thisletter.

In rejecting our motion to disqualify Judge Guimond, Judge Hart relied on his

personal knowledge of information that was outside the record, rather than on the

undisputed sworn testimony of Messrs. Balske and Matasar. At the conclusion of the

hearing on our motion to disqualify Judge Guimond, Judge Guimond resumed the

bench. Because Rule 2-106(A)(1) is couched in terms of what a judge must do, I re-

raised the issue, attempting to explain why Judge Guimond was required to disqualify

himself, notwithstanding the fact that Judge Hart had denied our motion. Judge

Guimond responded by asking whether he should take my legal argument to be a

threat and admonishing me for failing to get my facts right, though the facts that I

had relied on were the undisputed facts sworn to in the affidavits of Mr. Balske and

Mr. Matasar.

Judge Guimond then asked Mr. Haugen if he wished to discharge Mr. Goody and me,and Mr. Haugen indicated that he did. Judge Guimond indicated that Mr. Goody and

I were then relieved as attorneys of record, but that we were to continue as standby

counsel for Mr. Haugen. In response to a request for clarification by Mr. Goody,

Judge Guimond indicated that our lips were sealed for the remainder of the deathwarrant hearing. Judge Guimond completed the death warrant hearing while Mr.

Goody and I sat mute. At the conclusion of the hearing, Judge Guimond signed the

death warrant.

Whether the courts discharge of Mr. Goody and me as counsel comported with therequirements ofState v. Meyrick, 313 Or 125, 831 P2d 666 (1992), and Faretta v.California, 422 US 806, 95 S Ct 2525, 45 L Ed 2d 562 (1975), is questionable. Also

questionable is whether an ostensibly incompetent defendant can waive counsel and

challenges to his conviction and sentence without an evidentiary determination of the

validity of those waivers. Equally questionable is whether potential violations or the

right to counsel, due process, the eighth amendment and Article I, section 16, of the

Oregon Constitution can and should be immunized from review by this court or any


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Page 4 of 4other court on the dictate of a defendant whose competency is subject to unresolvedquestion and the acceptance of a questionable waiver of counsel.There is no question that the case law cited by Mr. Ellis would require Mr. Goodyand me to seek mandamus relief on behalf of Mr. Haugen, notwithstanding hisexpressed desire to proceed with his execution. Unfortunately, our reassignment byJudge Guimond as "stand by" counsel prevents us from discharging our constitutionalduties to Mr. Haugen. Instead, we believe, according to the trial court order, we arerequired to assist Mr. Haugen only upon his request, even if he is incompetent.Recently, your court previously approved a stipulation for attorney discipline in acase in which counsel filed an action without the client's consent. In reBailey. Thatwould appear to render Mr. Goody and me ethically prohibited from discharging ourconstitutional duties to Mr. Haugen.Whether or not OCRC has standing to either file a petition for a writ of mandamus onbehalf of Mr. Haugen or in its own right is only a component of the larger question ofwhat, if anything, the Oregon Supreme Court can and should do under the unusualcircumstances of this particular case. Mr. Goody and I agree that, if OCRC lacksstanding, ORS 1.002 necessarily must empower you to take appropriate measures toensure that the requirements of the constitutions of Oregon and the United States aremet in this case by the courts of this State.

W. Keith GoodyAttorneys at Law

Enclosures: motion to disqualify judge, transcriptscc: Jeffrey E. Ellis

Mary H. WilliamsAnna JoyceJeremy RiceHon. Joseph G. GuimondWalter M. BeglauGary Dwayne Haugen


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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR THE COUNTY OF MARION

STATE OF OREGON,

Plaintiff,

v.

GARY HAUGEN,

Defendant.

)))))))))))

Marion County Circuit CourtCase No. 04C46224

DEFENDANTS MOTION TORECUSE COURT BASEDON APPEARANCE OF FAIRNESS

Hon. Joseph C. Guimond

Motion to Recuse Based on Appearance of Fairness

In the last few days, it has come to the attention of defense counsel that this

Court previously displayed in chambers an artifact depicting an electric chair.

Several attorneys have said that they have viewed this artifact. Counsel can supply

declarations if the truth of the matter is at issue.

Given this information, counsel is now obliged to move to recuse this Court

based on the appearance of fairness doctrine. See e.g., ABA Guidelines for theAppointment and Performance of Defense Counsel in death Penalty Cases,

Guideline 10.8 (commentary) (2003) (Because of the possibility that the client

will be sentenced to death, counsel must be significantly more vigilant about

litigating all potential issues at all levels in a capital case than in any other case.).


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The ABA Guidelines have been adopted by OPDS and set the standard in Oregon

for competent capital representation.

The Oregon Code of Judicial Conduct Rule 2-102 provides in pertinent part:

A judge shall disqualify himself or herself in a proceeding in which the judges

impartiality reasonably may be questioned. The test traditionally employed to

determine whether recusal is mandated is whether an objective, disinterested, lay

observer fully informed of the facts underlying the grounds on which recusal was

sought would entertain a significant doubt about the judge's impartiality.Parker v.

Connors Steel Co., 855 F.2d 1510, 1524 (11th Cir.1988). The purpose of the

judicial recusal statute requiring a judge to disqualify him based on an appearance

of impartiality is to promote public confidence in the integrity of the judicial

process. That appearance is especially critical in a capital case where life and

death are at stake. See also ABA STANDARDS FOR CRIMINAL JUSTICE:

SPECIAL FUNCTIONS OF THE JUDGE Standard 6-1.1(a) (2d ed. 1986) (The

trial judge has the responsibility for safeguarding both the rights of the accused and

the interests of the public in the administration of criminal justice. The adversary

nature of the proceedings does not relieve the trial judge of the obligation of

raising on his or her initiative, at all appropriate times and in an appropriate

manner, matters which may significantly promote a just determination of the

trial.).

To be clear, the question is not whether this Court is actually biased, nor is it

whether this Court would do its very best to weigh the scales of justice equally

between contending parties. Instead, the appearance of fairness doctrine employs

an objective test that focuses on the mere appearance of partiality.
http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1988114558&referenceposition=1524&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=350&tf=-1&findtype=Y&fn=_top&mt=108&vr=2.0&pbc=044ACB21&tc=-1&ordoc=2000362425http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1988114558&referenceposition=1524&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=350&tf=-1&findtype=Y&fn=_top&mt=108&vr=2.0&pbc=044ACB21&tc=-1&ordoc=2000362425http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1988114558&referenceposition=1524&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=350&tf=-1&findtype=Y&fn=_top&mt=108&vr=2.0&pbc=044ACB21&tc=-1&ordoc=2000362425http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1988114558&referenceposition=1524&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=350&tf=-1&findtype=Y&fn=_top&mt=108&vr=2.0&pbc=044ACB21&tc=-1&ordoc=2000362425http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1988114558&referenceposition=1524&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=350&tf=-1&findtype=Y&fn=_top&mt=108&vr=2.0&pbc=044ACB21&tc=-1&ordoc=2000362425http://web2.westlaw.com/find/default.wl?referencepositiontype=S&serialnum=1988114558&referenceposition=1524&rp=%2ffind%2fdefault.wl&sv=Split&rs=WLW11.04&db=350&tf=-1&findtype=Y&fn=_top&mt=108&vr=2.0&pbc=044ACB21&tc=-1&ordoc=2000362425


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According to the Judicial Code, this Court should put on the record an

explanation about the display of a depiction of an electric chair in its chambers. It

may be that there are begin reasons for the Courts display of such an artifact.

However, even assuming that the artifact does not reflect actual bias by the

Court, an accusation that counsel is not making, the appearance of fairness doctrine

still requires recusal. Executing a human being by electrocution was described by

U.S. Supreme Court Justice William Brennan, in the following manner: ...the

prisoner's eyeballs sometimes pop out and rest on [his] cheeks. The prisoner often

defecates, urinates, and vomits blood and drool. The body turns bright red as its

temperature rises, and the prisoner's flesh swells and his skin stretches to the point

of breaking. Sometimes the prisoner catches fire....Witnesses hear a loud and

sustained sound like bacon frying, and the sickly sweet smell of burning flesh

permeates the chamber. See Glass v. Louisiana, 471 U.S. 1080 (1985) (Brennan, J.

dissenting from denial of certiorari). As a result, the electric chair has been

declared cruel and unusual punishment by the Nebraska Supreme Court, the last

state to execute in this manner.

As a result, a reasonable, disinterested observer would likely entertain

doubts about this Courts ability to impartially preside over a contested

competency hearing and/or to issue the death warrant.

Conclusion

Based on the above, this Court should recuse itself under the appearance of

fairness doctrine. This will result in a short delay, at worst. However, it will

remove this case from any specter of unfairness.


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Respectfully submitted, this 17th day of May, 2011.

_________________________________

W. Keith Goody OSB No. 102381

P.O. Box 23

Cougar, WA 98616

360 238 5211


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IN THE CIRCUIT COURT FOR THE STATE OF OREGONFOR THE COUNTY OF MARION

STATE OF OREGON, ) Case No. 04C46224) Honorable Joseph C. GuimondPlaintiff, )v. ) AFFIDAVIT OF DENN IS BALSK E

GARY HAUGEN,)Defendant. j

STATE OF OREGON 1) ss .County of MultnomahI, Dennis Balske, being first duly sworn under oath do depose and say:1. I am an attorney. Along with attorney Lawrence Matasar, I represented Kip

~.. .,Kinkel in his post-conviction action in Marion County Circuit Court, in the case of Kinkel .. ,v. Law head, Case No. 03C-21079 , before Judge Joseph C. Guimond. . ,

? 1 # , . . . *2. The Kinkel post-convictiod trial was held before Judge Guimond on June 19-

3. During the cou rse of the proceedings, Judge Guimond invited counsel into hisoffice to discuss an issue. While waiting for the Judge, Mr. Matasar and I waited inJudge Gu imond's office, behind the chairs facing Judge Guimond, before the Judgebegan our meeting.

4. While waiting, I observed a plaque or fiarned photograph o f an electric ch air.I believe it was on a windo w sill in the back of the Judge's office. It faced into the office,such that it would have been in the Judge's view from his desk and in visitors' view asthey walked around the visiting chairs to be seated and then face the Jud ge.


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5. I do not recall what the wording on the picturelplaque said, but it was myimpression that the picturelplaque had been given to Judge Guimond in appreciation forsomething he had done in support of the death penalty, and that the Judge was proud ofhis accomplishment and therefore displayed it openly in his chambers.

6. I remember that I discussed it with Mr. Matasar after we left the Judge'schambers. I also remember thinking, and possibly saying, that I was glad that our post-conviction case was not a death penalty case.

DATED this/f ay of May, 20 11.rennis BalskeSUBSRIBED AND SWORN to before me this 1 1 day of May, 2011.

~ o t a r ~ublic for OregonMy Commission Expires: S )7 2 ~ '


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IN THE CIRCUIT COURT FOR THE STATE OF OREGONFOR THE COUNTY OF MARION.

STATEOF OREGON, ) Case No. 04C46224) Honorable Joseph C. GuimondPlaintiff, 1)v. ) AFFIDAVIT OF Lawrence MatasarGARY HAUGEN,

Defendant. j11STATE OF OREGON 1) ss.County of Multnomah )

I, Lawrence Matasar, being first duly sworn under oath do depose and say:1. I have been an Oregon lawyer since 1974. Dennis Balske and I represent Kip

Kinkel in his post-conviction action in Marion County Circuit Court, Kinkel v. Lawhead,Case No. 036-21079.

2. The Kinkel post-conviction trial was held before Judge Joseph C. Guimond onJune 19 and 20,2007.

3. I have been asked to provide this affidavit concerning an object I observed inJudge Guimond's chambers.

4. Before or during the trial, Judge Guimond invited counsel into chambers. Mr.Balske and I waited in Judge Guimond's office for the judge to come into his chambers.

5. While waiting, I observed an object concerning the death penalty, consisting ofa drawing, plaque, photograph or small sculpture, located on a window sill in the back ofthe Judge's office, facing the Judge's desk. I believe it may have been a hangman'snoose, electric chair, or gallows


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6. I do not recall the wording on the object, other than that it depicted the dea thpenalty in a positive or humorous way.

7. I remember discussing this matter with Mr. Balske after we left chambers.Both o f us were surprised that such an item would be present in a judge's chambers.

DATED this / day of M ay, 201 1.-2@*awrence Matasar---t"-LLSUBSRIBED AND SWORN to before me this _?2_ day of M ay, 20 1 1.

Notary Public for OregonMy ~ om r nis sio n x ~ i r e s : /7--20~


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1

IN THE CIRCUIT COURT OF THE STATE OF OREGONFOR THE COUNTY OF MARION

STATE OF OREGON, ))

Plaintiff, )

)vs. ) Case No. 04C46224

)GARY HAUGEN, )

)Defendant. )

TRANSCRIPT OF PROCEEDINGS - May 18, 2011-Vol. I

BE IT REMEMBERED that the above-entitled matter

came on regularly for hearing before the Honorable

Thomas M. Hart on the 18th day of May, 2011, at the

Marion County Courthouse, Salem, Oregon.

COLLEEN R. MCCARTY, CSR, RPR, CCR

Northwest Certified Court Reporters, Inc.10157 SW Barbur Blvd., Suite 208C

Portland, Oregon 97219(503) 406-2288


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Northwest Certified Court Reporters, Inc.503.406.2288 *** 800.558.8077 *** www.nwccr.com

2

APPEARANCES

Mr. Doug Hanson, Deputy District Attorney for MarionCounty, representing the Plaintiff;

Mr. Don Abar, Deputy District Attorney for MarionCounty, representing the Plaintiff;

Mr. Andy Simrin, Attorney at Law, representing theDefendant Gary Haugen;

Mr. W. Keith Goody, Attorney at Law, representing theDefendant Gary Haugen.

-oOo-


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Colloquy

3

(May 18, 2011, 9:27 a.m.)

THE COURT: Good morning. Be seated,

please. Mr. Hanson.

MR. HANSON: Good morning, Your Honor.

This is the State versus Gary Haugen, 04C46224.

Defense Counsel Keith Goody and Andy Simrin are

present with the defendant, who is in custody.

Doug Hanson and Don Abar for the State.

Your Honor, this is time and date that we

had set for a death warrant hearing that was continued

from last Friday, May 13. It's my understanding,

based on some motions filed by defense counsel, not

the defendant, that Your Honor is going to preside

over a motion to recuse the Court, specifically Judge

Guimond, from appearing on this case. The State is

ready to proceed.

THE COURT: Okay. Mr. Simrin and

Mr. Goody are both here.

Mr. Haugen, good morning, sir. How are

you doing?

MR. HAUGEN: Good morning, sir.

THE COURT: There's also been a request

by the prosecution to allow you to have your hands

freed so you can review some things. I'm going to


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Colloquy

4

allow that, okay?

MR. HAUGEN: Thank you.

THE COURT: All right. You're not going

to be in trouble with Mr. Goody or Mr. Simrin or

anybody else, are you?

MR. HAUGEN: No, sir.

THE COURT: Okay. There's just too many

people here watching all this stuff.

MR. HAUGEN: Absolutely.

THE COURT: That's not me in the front

here. I'm Judge Hart, and I'm up on the second floor,

okay? Cut him loose.

Have you had a chance to see the motion

that was filed yesterday?

MR. HAUGEN: No, I haven't.

THE COURT: Well, we're going to get you

a copy of that, and then I'm going to have some

inquiry with regard to that, okay?

MR. HAUGEN: Will you actually question

me about my opinion, Your Honor --

THE COURT: Yeah, yeah, yeah, yeah.

MR. HAUGEN: -- in relation to this whole

fiasco? Thank you, Your Honor.

THE COURT: Remember we have a court

reporter, so we stop talking long enough to let her


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Colloquy

5

catch up.

MR. HAUGEN: Yes, sir. Got it.

THE COURT: Thank you. You okay with

yourself?

MR. HAUGEN: I'm fine.

THE COURT: All right. I don't have any

problem giving you both up. Do you have a copy of

that, Mr. Simrin or Mr. Goody, the motion that you

filed yesterday to --

MR. SIMRIN: I only have a single copy.

THE COURT: Well, he ought to have a

chance to take a look at what you filed on his behalf,

don't you think?

MR. SIMRIN: Can we run it into Judge

Guimond's chambers and have it photocopied there?

THE COURT: I can just pull the first

couple of pages off and let him take a look at mine.

And then -- because that was just a copy that I got.

Somebody will get one. I've had a chance to review

that already. I think it's important that he ought to

be able to see.

Now, their basic position is, Mr. Haugen,

that if you are not clear-headed -- you have one?

THE CLERK: Yeah.

THE COURT: Okay, good.


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Colloquy

6

-- then they have to act on your behalf.

And that's kind of what this whole issue's been about

right at the moment and the reason that the death

warrant hearing from last week was continued to today,

okay?

I mean, if they don't feel comfortable

with your mental abilities, which is ultimately a

court's decision, then they have to do certain things

on your behalf. And we're just going to do what needs

to be done. Yes, sir.

MR. HAUGEN: If I may, please?

THE COURT: Uh-huh.

MR. GOODY: Your Honor, just for the

record here --

THE COURT: I'm not inviting you to talk

at this moment. We'll get a chance for the record.

I'm inquiring of Mr. Haugen at this point, okay?

MR. GOODY: Yes. But I'd object to any

inquiry made of the defendant for the reason that it

violates his Fifth Amendment rights to remain silent.

And in particular, the Sixth Amendment right to

effective assistance of counsel and due process of the

law.

Our position -- I understand you

understand, but I'm just making the record. Our


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Colloquy

7

position is he's not competent to be proceeding, he's

not competent to be waiving his Fifth Amendment rights

or his Sixth Amendment rights.

And under those -- and by you talking to

him that's kind of like the horse before the carriage.

I think you have to have a finding about competency

before he's permitted to just go on and on. Thank

you.

MR. SIMRIN: And I would like to add for

the record that provisions Article One, Section 10 and

11, of the Oregon Constitution that are the analogues

of the Fifth and Six Amendments.

THE COURT: Okay. Well, we've got that

taken care of. The question is really going to be --

and I also know that you sent a letter to Judge

Guimond with regard to asking that counsel be fired in

not so many words.

What I want you to do is take a look at

that -- they've made the objections for the record --

and then I'm going to talk to you, okay?

MR. HAUGEN: Okay, Your Honor.

THE COURT: You getting like me, do you

need some readers?

MR. HAUGEN: If you have some,

definitely.


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Colloquy

8

THE COURT: Here, you want to take these?

MR. HAUGEN: I'm getting old. Oh, I can

read it, Your Honor.

THE COURT: Can you read all right?

MR. HAUGEN: I'm working it.

THE COURT: Okay.

MR. HAUGEN: What I'm doing, Your Honor,

is scanning this as best I can trying to glean certain

points of concern.

THE COURT: Well, I already know that

based on the conversation that you were not provided

that copy of the motion that was filed on your behalf.

And the motion essentially asks for

recusal of Judge Guimond, and that's what I'm here to

work on today. Have you --

MR. HAUGEN: Well, Your Honor --

THE COURT: You sat through the whole

thing. You were here at your trial.

MR. HAUGEN: Absolutely.

THE COURT: You uncomfortable with Judge

Guimond?

MR. HAUGEN: Oh, I am more than

comfortable with Judge Guimond. I sat with him for

three months through our trial and assisted in our

defense, myself and my codefendant, and had no problem


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with Judge Guimond at all.

I think he is not only an articulate, but

I think he is very -- he has the tools. He is very

competent, in my opinion.

And I feel that at this particular

juncture, Your Honor, and in the appellate process,

according to statute, this is my time. This is my

time to choose, right? This is -- by statute this is

my time to make a choice. My right, you know,

constitutional, statutory, and a God-given right of

free will to choose.

MR. GOODY: Your Honor, I object to any

more -- I need to make a record --

THE COURT: Sit down. Sit -- sit down,

Mr. Goody. Do you want to be held in contempt? Sit

down. I am asking him a question, okay?

The idea has to be it's his right. And I

understand that you want to act on his behalf. You

have -- but at some point in time the court is making

a decision with regard to whether or not Mr. Haugen is

capable to choose on his own behalf.

MR. SIMRIN: Your Honor, counsel needs to

be able to timely make the record --

THE COURT: And has it not --

MR. SIMRIN: -- not make it after the


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fact.

THE COURT: And has it not been met? He

objected.

MR. GOODY: Well, I think now the

objection is it's just relevant -- relevancy. What

he's talking about now is not relevant to what's

before this court.

THE COURT: Yes, it is in the sense that

I need to know how comfortable he has thought through

all this stuff. And I'm going to make my own minimal

determination on his capabilities.

I was going to inquire a few things about

life on death row, okay? If I don't feel you're

comfortable -- and you're not displaying any of what

I'd call psychosis or inability to make an informed

and intelligent decision.

MR. HAUGEN: Thank you, Your Honor.

THE COURT: Okay. Then if I don't kind

of dance around with this -- kind of like when I take

a plea, you know, I go -- I mean, it's like these guys

from the institution, they didn't let you have a

couple of drinks on the way in, did they?

MR. HAUGEN: No. But according to the

counsel here, the fetal alcohol syndrome, I'm waiting

for that to kick in at any time, you know. I could


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use a drink right now.

THE COURT: The reason I ask about that

is I want to make sure that when you and I communicate

that you know what I'm saying and --

MR. HAUGEN: Absolutely. I understand

you completely, Your Honor. And I appreciate you

offering me the opportunity to speak to you as much as

the conflict between myself and counsel is

interrupting that process.

And the only denial I see of due process

here is my counsel against my right to sit back and

incompetently (sic) make a decision here today. And I

feel that they're doing everything they can to -- like

a woman. That's the only thing I can relate it to, is

a woman's right to choose.

And the appellate process at this

juncture, this is my right to choose. And they're

trying to take that away from me, Your Honor. And

it's damaging my spirit, you know.

And it's definitely damaging the

attorney-client relationship in relation to building

trust with indigent defendants and the community.

This is not building or supporting trust for the

community in attorneys or for me.

THE COURT: Let me ask you a question.


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You've had a chance to review the recusal motion. Is

that something that you want to have done is have

Mr. -- have Judge Guimond taken off of this case?

MR. HAUGEN: Absolutely not, Your Honor.

THE COURT: Now let's hear some argument

of why you think -- I mean, we've got it all submitted

on the record. He doesn't join in the motion. I've

read the cases that have been provided by the State.

MR. HAUGEN: Excuse me, Your Honor, if I

may, please?

THE COURT: Yeah.

MR. HAUGEN: The one thing I did give to

Judge Guimond this morning was a letter motion saying

that it is my position --

THE COURT: Is that the one I just was

talking about?

MR. HAUGEN: I believe so. It is my

position --

THE COURT: About to fire counsel?

MR. HAUGEN: Not so much firing them,

slash, noncommunication. In order with them to not

communicate and not file anything in my behalf. I

have lost all trust in their -- and my faith in their

support of me and my will, my wishes right now. And

if they want to file something, file it, but not in my


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behalf.

I don't agree with anything that they're

doing right now, and I personally object on the record

to definitely this motion.

THE COURT: Okay. Let me deal with the

recusal motion. And depending on what I do there will

decide where we go from there, okay? All right?

MR. GOODY: Mr. Simrin's going to speak

to the recusal issue.

THE COURT: All right.

MR. SIMRIN: May it please the Court and

Counsel, Andy Simrin on behalf of Mr. Haugen.

Yesterday my co-counsel, Keith Goody, faxed in a

motion to disqualify Judge Guimond, and that is

supported by affidavits that we have not yet put into

evidence. Does the court have the affidavits from

Dennis Balske and Lawrence Matasar?

THE COURT: I do. The faxed copies.

MR. SIMRIN: Yeah. I have -- since we

only obtained these affidavits by facsimile

transmission yesterday afternoon we do not yet have

the originals from Mr. Balske and from Mr. Matasar.

I would move to provisionally admit

those affidavits into evidence pending the receipt of

the actual ones.


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MR. HAUGEN: Your Honor --

MR. SIMRIN: As the affidavit of

Dennis Balske indicates --

THE COURT: I don't need to read that

into the record either because we've already got it,

okay?

MR. SIMRIN: Okay. I am simply going to

review part of that affidavit. And in the most

important part Mr. Balske's indication that after he

left the chambers of Judge Guimond, after viewing this

object, his sense was that he remembered thinking and

possibly saying that he was glad that our post

conviction case was not a death penalty case.

The recusal statutes in the Oregon

revised statutes appear at ORS 14.250 to 14.270. The

motion that we have brought is not brought under those

provisions.

I'd like to draw the court's attention to

the Court of Appeals opinion in Lamonts Apparel,

Incorporated versus SI Lloyd Associates, 153 OR App

227.

In that case there had been some

litigation regarding the lease agreement and a

favor -- a jury verdict in favor of the plaintiff.

The defendant moved for a judgment notwithstanding the


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verdict. And there had been a timing issue under ORCP

63(d) as to whether that had been timely filed.

To resolve that, Judge Robinson made an

investigative inquiry to the court operation

supervisor who subsequently testified as a witness in

that proceeding.

The plaintiff moved to disqualify Judge

Robinson relying, as Mr. Goody and I do in this case,

not on ORS 14.250 through 270, but on the ethics rules

and canons of judicial conduct that require

disqualification of a judge.

Rejecting the timing limits found in ORS

14.250 to 270, the Court of Appeals explained,

"Defendant's procedural arguments do not require

extended discussion. The statutes governing

procedures to disqualify a judge, ORS 14.250, 270,

apply to disqualification based on the situation that

exists when the judge is first assigned to a case and

require a showing only that the party seeking

disqualification has a good faith belief that it would

not receive a fair and impartial trial."

It is not necessary to allege specific

grounds for that belief. Those statutes are

irrelevant to whether later events require recusal as

a matter of law. If they were not, it would be


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impossible to move for recusal after the statutory

time had passed no matter what happens in the interim.

THE COURT: Mr. Simrin, I understand all

that part of it, okay?

Let me just interject here. It has to do

with what somebody from the District Attorney's

office -- and I can't remember who else did it -- was

built -- re-creation of what they call Old Sparky from

Florida, okay, that Ted Bundy was killed in.

And it was, during the remodel here,

placed in this holding cell area, okay? Not -- and

Judge Guimond had nothing to do with any of that

creation.

What he did have something to do with was

to get it out of there so that guys like Mr. Haugen or

any other person that was in prison that was in

custody that had to come through this detention area

off the side, get it out of there so they wouldn't

have to be subjected to that. That is all that

remains of what, essentially, was a good move on

behalf of a good judge.

MR. HAUGEN: I concur. Your Honor --

THE COURT: Just a minute.

MR. SIMRIN: May I finish making my

record, Judge?


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THE COURT: You're reading the case that

has clearly been cited. I do not need to listen to

that again, all right?

MR. SIMRIN: Okay. Well, I'm done with

that passage.


MR. SIMRIN: I would like to point out

that what you may or may not have seen as a witness of

Old Sparky, as you call it --

THE COURT: It's not as I call it. And

you told me that you didn't hear about it until last

week. Now, we don't need to go --

MR. SIMRIN: What you're describing --

THE COURT: Stop. We'll only talk one at

a time, Mr. Simrin, okay? We really do.

MR. SIMRIN: Okay.

THE COURT: When it's on paper it doesn't

need to be read, okay? If it's cited, it does not

need to be read. It is exactly what it was, Old

Sparky. Because it went around in this building as

somebody who found the directions on the Internet.

And during the remodel, that's what it was. I'm not

saying that to be negative or anything.

And I know that it was Judge Guimond that

insisted that it be removed. And you're saying that


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because the photo or plaque or whatever it is that's

in his office somehow makes it unfair for Mr. Haugen

to be heard or there's an appearance of impropriety.

Is that the bottom line for the recusal?

MR. SIMRIN: That's incorrect, Your

Honor.

MR. HAUGEN: I would have one in my cell

if I had a picture, Your Honor. I think everybody

should have one to understand the gravity of the

situation and not to take a bias position in which

these gentlemen are doing. Your Honor, they're

just --

THE COURT: Let me finish. We got to do

this part, okay?

So then what's the issue --

MR. SIMRIN: Whatever it was you saw,

Your Honor, in the holding area is -- that may be

relevant or it may not be. But it is apparently not

the thing that attorneys Matasar and Balske saw in the

chambers of the office of Judge Guimond.

And so Old Sparky, or whatever it was

that was in this holding area that you saw, is

evidently independent of the award or plaque that

attorneys Matasar and Balske observed in the chambers

of Judge Guimond, as Balske describes being on open


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display. And the judge was proud of his

accomplishment and, therefore, displayed it openly in

his chambers.

That has nothing to do with whatever

depiction of Old Sparky that you saw in the holding

area that Judge Guimond, from your indication, asked

to be removed.

THE COURT: Okay. Then I'm going to

strike this from the record with regard to Balske

because it was four different things from which he

didn't have any present recollection, of one of which

was an electric chair, okay?

I won't strike it out of the record.

But --

MR. SIMRIN: Matasar was the one who

could not recall if it was an electric chair, a

hangman's noose, or gallows. Balske did remember.

THE COURT: And what did he view it as?

MR. SIMRIN: I'm sorry, I did not

understand.

THE COURT: It was the electric chair,

right?

MR. SIMRIN: (Nods.)

THE COURT: And that's exactly why that

photo is in there, is because Judge Guimond got the


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actual constructive piece out of this building and

sent it away from here.

MR. SIMRIN: Would that explain why Judge

Guimond would have had it on display in his office if

he had merely ordered it removed from the holding

area? I don't think so.

THE COURT: So if we were to see a plaque

from the ACLU in there, would that be a problem from

the prosecution's standpoint? Would you be giving

some issues to his ability to be fair and impartial

today?

MR. SIMRIN: Are you asking me or are you

asking the prosecutors?

THE COURT: Well, you because you're

standing up.

MR. SIMRIN: The ACLU, as far as I

know --

THE COURT: That simply is a yes or no,

okay? Mr. Simrin, you want to close your argument,

please.

MR. SIMRIN: I'd like to continue it.

THE COURT: What else you --

MR. SIMRIN: Eventually I would like to

complete it.

THE COURT: Mr. Simrin, we're not in here


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dancing around. Your argument is on paper. What are

you adding that is not written?

MR. SIMRIN: The canon of judicial

conduct that is --

THE COURT: Cited --

MR. SIMRIN: -- cited in the motion,

there's actually a clerical error.

THE COURT: Okay.

MR. SIMRIN: The real rule is Oregon Code

of Judicial Conduct Rule 2-106 A1. And the depiction

that was proudly displayed on Judge Guimond's office

wall conflicts with that.

That rule provides "A judge shall

disqualify himself or herself in a proceeding in which

the judge's impartiality may be questioned."

As the prosecution successfully argued

last week in this court, in this case, the word

"shall" connotes a mandatory nondiscretionary duty.

Support for that is state ex rel Engweiler versus

Cook, 340 Oregon Reports 373, on page 378.

As the Oregon Supreme Court explained in

In re: Shank 318 Oregon 402, regarding the predecessor

to Judicial Rule of Canon of Conduct 2106. And that

would be former canon 3C1.

The Oregon Supreme Court said, "The


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purpose and importance of canon 3C1's admonition is, a

judge should disqualify himself or herself in a

proceeding in which the judge's impartiality might

reasonably be questioned should be evident --

THE COURT: That's page 2. I'm read --

what --

MR. SIMRIN: That is not --

THE COURT: It's the same issue.

MR. SIMRIN: No, it is not, Your Honor.

And if I may make --

THE COURT: The appearance of --

MR. SIMRIN: And if I may make my record,

I will establish to you that it is not.

THE COURT: What? It's not what you have

on paper?

MR. SIMRIN: It is not in the motion.

And I am trying to make a record here. And I am

trying to rely on Oregon Supreme Court case law

regarding the predecessor here and how that applies

and is different in this particular case. And I would

like the opportunity to do that, Your Honor.


MR. SIMRIN: "The purpose and importance

of canon 3C1's admonition, a judge should disqualify

himself or herself in a proceeding in which the


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judge's impartiality might reasonably be questioned

should be evident.

"Because not only the fact, but also the

appearance of impartiality of the very currency of

judicial legitimacy."

The sole distinction here, under JR 2106,

as compared to canon 3C1, is that 3C1 was couched in

terms of discretion. The word "should" that appeared

in the predecessor has been changed to the word

"shall," a term that even the prosecutor in this case

agrees is mandatory and obligatory on this court.

As the written motion sets forth,

Mr. Goody and I did not contend that the award given

to Judge Guimond establishes actual bias, only that it

establishes that the judge's impartiality may

reasonably be questioned.

And the affidavit of Dennis Balske

confirms that. He left the court chambers saying and

thinking, "I am glad that our post conviction case was

not a death penalty case."

Your Honor, Mr. Goody's and my case is a

death penalty case.

MR. HAUGEN: I will concede --

THE COURT: Mr. Hanson.

MR. HANSON: Your Honor, the State relies


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on the two cases that have been cited to the court.

The State's position is that the defense motion in

this case by the defense attorneys, not the defendant,

is irrational.

And based on Kafoury versus Jones, we ask

the court to make that finding, and that there is no

basis to find that Judge Guimond lacks impartiality in

any way based on the court's understanding of the case

law and the canons that have been cited by defense

counsel.

THE COURT: 15 years as a judge, Judge

Guimond has been steady and even-handed. Mr. Haugen

himself even indicated that he felt comfortable.

And whatever may have been referred to in

the affidavits, whether they could actually remember

them or not or not having the ability to even ask the

question as to why that was there, was as a real

accomplishment of his fairness to not have it in

anywhere around where somebody in the position of

Mr. Haugen would ever have to endure seeing something

like that while they waited for their case to be dealt

with. Anybody in custody.

It was nothing that was of Judge

Guimond's creation. And it was clearly of Judge

Guimond's order to have it removed. And that memory


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26

that was reflected in that is something he ought to

feel good about and that we as members of the

community ought to feel good about.

Do you join in this motion at all,

Mr. Haugen?

MR. HAUGEN: I absolutely do not, Your

Honor.

THE COURT: I'm going to find that you're

clear-headed with me today and that you freely,

knowingly, and understandingly make the decision not

to join in the motion. I'm going to deny the motion

to recuse, and I'm going to allow Judge Guimond to

come --

MR. SIMRIN: Your Honor, in that case I

have one additional motion. Like to ask for a recess

so that Mr. Goody and I may have the opportunity to

prepare and submit our petition for a writ of mandamus

on this issue in the Oregon Supreme Court.

MR. HAUGEN: Your Honor, if I may --

MR. SIMRIN: This is a nondiscretionary

call here. And what was in the waiting area had

nothing to do with what was on display in Judge

Guimond's chambers.

THE COURT: I'm going to deny that motion

right now, and then we're going to let Judge Guimond


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27

deal with you.

Do you want to file the writ of mandamus?

MR. HAUGEN: No, Your Honor. May I say

one thing before we go, because --

THE COURT: Sure.

MR. HAUGEN: You've been very --

THE COURT: You're supposed to stand when

you address me anyway.

MR. HAUGEN: Oh, excuse me, Your Honor --

MR. SIMRIN: I don't think that chair

slides back.

MR. GOODY: The plan was that he wasn't

supposed to stand, Your Honor.

THE COURT: That wasn't my plan. I came

down here, I'm going to give him the respect that he

deserves for dealing with how he needs to be dealt

with. It's not like there aren't enough people

around, okay?

Mr. Haugen, you're going to do what you

need to do, correct?

MR. HAUGEN: May I stand, Your Honor?

THE COURT: Yes, sir. I hate to -- yeah,

yeah. I don't want your drawers falling down, okay?

MR. HAUGEN: Excuse me. Your Honor, what

I find and I object in this whole proceeding is we're


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at the juncture, as I said before, in the appellate

process where it's my choice. And all I'm getting is

ideological and political rhetoric from my counsel,

you know, appointing counsel, that do not agree with

my position.

And so they're using every stall tactic,

every maneuver, every -- personally, in my opinion,

what they're doing to Judge Guimond is reprehensible

and pretty disrespectful, you know, in trying to

attack his character and his ability and competency to

be able to conduct this hearing.

And so me personally, I object to any

motion that they file, period, in regards to trying to

get some sort of extension, continuation at the

taxpayers' expense. How long does this have to go on?

You know, and that's just my opinion, and I wanted to

express it to Your Honor.

THE COURT: Thank you. And it was very

articulate and well said. I'm going to sign the order

denying the motion to recuse. I'm going to send in

Judge Guimond.

(Proceedings adjourned 10:00 a.m.)


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CERTIFICATE

29

STATE OF OREGON )) ss.

COUNTY OF MARION )

I, Colleen R. McCarty, hereby certify that I am

an official reporter for the Third Judicial District

and Certified Shorthand Reporter of the State of

Oregon.

I further certify that I reported in stenotype

the foregoing proceedings before the Honorable Thomas

M. Hart, and subsequently transcribed my shorthand

notes into a typewritten transcript, Pages 1 through

28 inclusive, and that the foregoing is a true and

correct transcript to the best of my knowledge,

ability, and belief of the proceedings as designated.

IN WITNESS WHEREOF, I have hereunto set my hand

in the City of Salem, County of Marion, State of

Oregon, this 31st day of May, 2011.

________________________COLLEEN R. MCCARTY, RPROR CSR No. 00-0371WA CSR No. 2044


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00-0371 [1] - 29:23

04C46224 [2] - 1:4, 3:6

1

1 [1] - 29:11

10 [1] - 7:10

10157 [1] - 1:22

10:00 [1] - 28:22

11 [1] - 7:11

13 [1] - 3:12

14.250 [4] - 15:15,

16:9, 16:13, 16:16

14.270 [1] - 15:15

15 [1] - 25:11

153 [1] - 15:20

18 [2] - 1:11, 3:1

18th [1] - 1:14

2

2 [1] - 23:5

2-106 [1] - 22:10

2011 [3] - 1:14, 3:1,

29:17

2011-Vol [1] - 1:11

2044 [1] - 29:23

208C [1] - 1:22

2106 [2] - 22:23, 24:6

227 [1] - 15:21

270 [3] - 16:9, 16:13,

16:1628 [1] - 29:12

3

318 [1] - 22:22

31st [1] - 29:17

340 [1] - 22:20

373 [1] - 22:20

378 [1] - 22:20

3C1 [3] - 22:24, 24:7

3C1's [2] - 23:1, 23:24

4

402 [1] - 22:22

406-2288 [1] - 1:23

5

503 [1] - 1:23

6

63(d [1] - 16:2

9

97219 [1] - 1:22

9:27 [1] - 3:1

A

a.m [2] - 3:1, 28:22

A1 [1] - 22:10

Abar [2] - 2:4, 3:9

abilities [1] - 6:7

ability [4] - 21:10,

25:16, 28:10, 29:14

able [3] - 5:21, 9:23,

28:11

above-entitled [1] -1:12

Absolutely [4] - 4:9,

8:19, 11:5, 12:4

absolutely [1] - 26:6

accomplishment [2] -

20:2, 25:18

according [2] - 9:7,

10:23

ACLU [2] - 21:8, 21:16

act [2] - 6:1, 9:18

actual [3] - 13:25,

21:1, 24:14

add [1] - 7:9

adding [1] - 22:2additional [1] - 26:15

address [1] - 27:8

adjourned [1] - 28:22

admit [1] - 13:23

admonition [2] - 23:1,

23:24

affidavit [3] - 15:2,

15:8, 24:17

affidavits [5] - 13:15,

13:16, 13:20, 13:24,

25:15

afternoon [1] - 13:21

agree [2] - 13:2, 28:4

agreement [1] - 15:23

agrees [1] - 24:11

alcohol [1] - 10:24

allege [1] - 16:22

allow [3] - 3:24, 4:1,

26:12

Amendment [4] -

6:20, 6:21, 7:2, 7:3

Amendments [1] -

7:12

analogues [1] - 7:11

Andy [3] - 2:6, 3:7,

13:12

anyway [1] - 27:8

App [1] - 15:20

Apparel [1] - 15:19

Appeals [2] - 15:19,

16:13appear [1] - 15:15

appearance [3] - 19:3,

23:11, 24:4

APPEARANCES [1] -

2:1

appeared [1] - 24:8

appearing [1] - 3:16

appellate [3] - 9:6,

11:16, 28:1

applies [1] - 23:19

apply [1] - 16:17

appointing [1] - 28:4

appreciate [1] - 11:6

area [7] - 17:11, 17:17,19:17, 19:22, 20:6,

21:6, 26:21

argued [1] - 22:16

argument [3] - 12:5,

21:19, 22:1

arguments [1] - 16:14

Article [1] - 7:10

articulate [2] - 9:2,

28:19

assigned [1] - 16:18

assistance [1] - 6:22

assisted [1] - 8:24

Associates [1] - 15:20

attack [1] - 28:10attention [3] - 14:12,

14:20, 15:18

Attorney [4] - 2:2, 2:4,

2:6, 2:8

attorney [1] - 11:21

Attorney's [1] - 17:6

attorney-client [1] -

11:21

attorneys [4] - 11:24,

19:19, 19:24, 25:3

award [3] - 14:23,

19:23, 24:13

B

Balske [9] - 13:17,

13:22, 15:3, 19:19,

19:24, 19:25, 20:9,

20:17, 24:17

Balske's [1] - 15:9

Barbur [1] - 1:22

based [5] - 3:13, 8:11,

16:17, 25:5, 25:8

basic [1] - 5:22

basis [1] - 25:7

BE [1] - 1:12

become [1] - 14:2

behalf [10] - 5:12, 6:1,

6:9, 8:12, 9:18, 9:21,

12:22, 13:1, 13:12,

17:21belief [3] - 16:20,

16:23, 29:14

best [3] - 8:8, 14:15,

29:13

between [1] - 11:8

bias [2] - 19:10, 24:14

Blvd [1] - 1:22

bottom [1] - 19:4

brought [2] - 15:16

building [4] - 11:21,

11:23, 18:20, 21:1

built [1] - 17:8

Bundy [1] - 17:9

C

canon [5] - 22:3,

22:24, 23:1, 23:24,

24:7

Canon [1] - 22:23

canons [2] - 16:10,

25:9

capabilities [1] -

10:11

capable [1] - 9:21

care [1] - 7:14

carriage [1] - 7:5

Case [1] - 1:4

case [20] - 3:16, 12:3,

15:13, 15:22, 16:8,

16:18, 18:1, 22:17,

23:18, 23:20, 24:10,

24:19, 24:20, 24:21,

24:22, 25:3, 25:8,

25:21, 26:14

cases [2] - 12:8, 25:1

catch [1] - 5:1

CCR [1] - 1:21

cell [2] - 17:11, 19:7

certain [2] - 6:8, 8:8

certainly [1] - 14:9

certificate [1] - 14:21Certified [2] - 1:21,

29:6

certify [2] - 29:4, 29:8

chair [5] - 14:25,

20:12, 20:16, 20:21,

27:10

chambers [8] - 5:15,

14:22, 15:10, 19:20,

19:24, 20:3, 24:18,

Northwest Certified Court Reporters, Inc.503.406.2288 *** 1.800.558.8077 *** www.nwccr.com

State of Oregon v. Gary Haugen - 5/18/11

1

26:23

chance [5] - 4:13,

5:12, 5:19, 6:16,

12:1

changed [1] - 24:9

character [1] - 28:10

choice [2] - 9:9, 28:2

choose [5] - 9:8, 9:11,9:21, 11:15, 11:17

CIRCUIT [1] - 1:1

Cited [1] - 22:5

cited [5] - 18:2, 18:18,

22:6, 25:1, 25:9

City [1] - 29:16

clear [2] - 5:23, 26:9

clear-headed [2] -

5:23, 26:9

clearly [2] - 18:2,

25:24

clerical [1] - 22:7

CLERK [1] - 5:24

client [1] - 11:21close [1] - 21:19

co [1] - 13:13

co-counsel [1] - 13:13

Code [1] - 22:9

codefendant [1] - 8:25

COLLEEN [2] - 1:21,

29:22

Colleen [1] - 29:4

comfortable [5] - 6:6,

8:23, 10:9, 10:14,

25:13

commendation [1] -

14:23

communicate [2] -11:3, 12:22

community [3] -

11:22, 11:24, 26:3

compared [1] - 24:7

competency [2] - 7:6,

28:10

competent [3] - 7:1,

7:2, 9:4

complete [1] - 21:24

completely [1] - 11:6

concede [1] - 24:23

concern [1] - 8:9

concur [1] - 17:22

conduct [3] - 16:10,

22:4, 28:11

Conduct [2] - 22:10,

22:23

confirms [1] - 24:18

conflict [1] - 11:8

conflicts [1] - 22:12

connotes [1] - 22:18

Constitution [1] - 7:11

constitutional [1] -


43/90

9:10

constructive [1] - 21:1

contempt [1] - 9:15

contend [1] - 24:13

continuation [1] -

28:14

continue [1] - 21:21

continued [2] - 3:11,6:4

conversation [1] -

8:11

conviction [2] - 15:13,

24:19

Cook [1] - 22:20

copies [1] - 13:18

copy [5] - 4:17, 5:7,

5:10, 5:18, 8:12

correct [2] - 27:20,

29:13

couched [1] - 24:7

Counsel [2] - 3:7,

13:12counsel [13] - 3:13,

6:22, 7:16, 9:22,

10:24, 11:8, 11:11,

12:19, 13:13, 14:12,

25:10, 28:3, 28:4

COUNTY [2] - 1:1,

29:2

County [4] - 1:15, 2:2,

2:4, 29:16

couple [2] - 5:17,

10:22

COURT [76] - 1:1, 3:3,

3:18, 3:23, 4:3, 4:7,

4:10, 4:16, 4:21,

4:24, 5:3, 5:6, 5:11,

5:16, 5:25, 6:12,

6:15, 7:13, 7:22, 8:1,

8:4, 8:6, 8:10, 8:17,

8:20, 9:14, 9:24,

10:2, 10:8, 10:18,

11:2, 11:25, 12:5,

12:11, 12:15, 12:19,

13:5, 13:10, 13:18,

14:1, 14:13, 14:17,

15:4, 17:3, 17:23,

18:1, 18:6, 18:10,

18:14, 18:17, 19:13,

20:8, 20:18, 20:21,

20:24, 21:7, 21:14,21:18, 21:22, 21:25,

22:5, 22:8, 23:5,

23:8, 23:11, 23:14,

23:22, 24:24, 25:11,

26:8, 26:24, 27:5,

27:7, 27:14, 27:22,

28:18

court [10] - 4:24, 9:19,

10:7, 13:16, 16:4,

22:17, 24:11, 24:18,

25:1, 25:6

Court [9] - 1:21, 3:15,

13:11, 15:19, 16:13,

22:21, 22:25, 23:18,

26:18

court's [3] - 6:8,

15:18, 25:8Courthouse [1] - 1:15

creation [3] - 17:8,

17:13, 25:24

CSR [3] - 1:21, 29:23,

29:23

currency [1] - 24:4

custody [3] - 3:8,

17:17, 25:22

Cut [1] - 4:12

D

damaging [2] - 11:19,

11:20

dance [1] - 10:19

dancing [1] - 22:1

date [1] - 3:10

days [1] - 14:11

deal [2] - 13:5, 27:1

dealing [1] - 27:16

dealt [2] - 25:21, 27:16

death [7] - 3:11, 6:3,

10:13, 14:24, 15:13,

24:20, 24:22

decide [1] - 13:7

decision [5] - 6:8,

9:20, 10:16, 11:12,

26:10

Defendant [3] - 1:6,

2:6, 2:8

defendant [5] - 3:8,

3:14, 6:19, 15:25,

25:3

Defendant's [1] -

16:14

defendants [1] - 11:22

Defense [1] - 3:7

defense [6] - 3:13,

8:25, 14:12, 25:2,

25:3, 25:9

definitely [3] - 7:25,

11:20, 13:4denial [1] - 11:10

Dennis [3] - 13:17,

15:3, 24:17

deny [2] - 26:11, 26:24

denying [1] - 28:20

depicting [1] - 14:24

depiction [2] - 20:5,

22:10

Deputy [2] - 2:2, 2:4

describes [1] - 19:25

describing [1] - 18:13

deserves [1] - 27:16

designated [1] - 29:14

detention [1] - 17:17

determination [1] -

10:11

different [4] - 14:5,20:10, 23:20

directions [1] - 18:21

discretion [1] - 24:8

discussion [1] - 16:15

display [4] - 14:21,

20:1, 21:4, 26:22

displayed [2] - 20:2,

22:11

displaying [1] - 10:14

disqualification [3] -

16:11, 16:17, 16:20

disqualify [6] - 13:14,

16:7, 16:16, 22:14,

23:2, 23:24disrespectful [1] -

28:9

distinction [1] - 24:6

District [4] - 2:2, 2:4,

17:6, 29:5

Don [2] - 2:4, 3:9

done [5] - 6:10, 12:2,

14:18, 14:24, 18:4

Doug [2] - 2:2, 3:9

down [5] - 9:14, 9:16,

27:15, 27:23

draw [1] - 15:18

drawers [1] - 27:23

drink [1] - 11:1drinks [1] - 10:22

due [2] - 6:22, 11:10

during [2] - 17:10,

18:22

duty [1] - 22:18

E

effective [1] - 6:22

either [1] - 15:5

electric [4] - 14:25,

20:12, 20:16, 20:21

endure [1] - 25:20

Engweiler [1] - 22:19

entitled [1] - 1:12

error [1] - 22:7

essentially [2] - 8:13,

17:20

establish [1] - 23:13

establishes [2] -

24:14, 24:15

ethics [1] - 16:9

even-handed [1] -

25:12

events [1] - 16:24

Eventually [1] - 21:23

evidence [2] - 13:16,

13:24

evident [2] - 23:4,

24:2

evidently [1] - 19:23ex [1] - 22:19

exactly [2] - 18:19,

20:24

excuse [1] - 27:9

Excuse [2] - 12:9,

27:24

exists [1] - 16:18

expect [1] - 14:7

expense [1] - 28:15

explain [1] - 21:3

explained [2] - 16:13,

22:21

express [1] - 28:17

extended [1] - 16:15extension [1] - 28:14

F

facsimile [1] - 13:20

fact [2] - 10:1, 24:3

fair [2] - 16:21, 21:10

fairness [1] - 25:18

faith [2] - 12:23, 16:20

falling [1] - 27:23

far [1] - 21:16

favor [2] - 15:24

favorable [1] - 14:25

faxed [2] - 13:13,

13:18

felt [1] - 25:13

fetal [1] - 10:24

few [2] - 10:12, 14:11

fiasco [1] - 4:23

Fifth [3] - 6:20, 7:2,

7:12

file [5] - 12:22, 12:25,

27:2, 28:13

filed [8] - 3:13, 4:14,

5:9, 5:12, 8:12,

14:10, 14:14, 16:2

fine [1] - 5:5

finish [2] - 17:24,

19:13

fire [1] - 12:19

fired [1] - 7:16

firing [1] - 12:20

first [2] - 5:16, 16:18

floor [1] - 4:11

Florida [1] - 17:9

FOR [1] - 1:1

foregoing [2] - 29:9,



2

29:12

formal [2] - 14:2, 14:3

former [1] - 22:24

forth [1] - 24:12

four [1] - 20:10

free [1] - 9:11

freed [1] - 3:25

freely [1] - 26:9Friday [1] - 3:12

front [1] - 4:10

G

gallows [1] - 20:17

GARY [1] - 1:5

Gary [3] - 2:6, 2:8, 3:6

gentlemen [1] - 19:11

given [2] - 9:10, 24:13

glad [2] - 15:12, 24:19

glean [1] - 8:8

God [1] - 9:10

God-given [1] - 9:10

GOODY [6] - 6:13,

6:18, 9:12, 10:4,

13:8, 27:12

Goody [11] - 2:8, 3:7,

3:19, 4:4, 5:8, 9:15,

13:13, 14:10, 16:8,

24:13, 26:16

Goody's [1] - 24:21

governing [1] - 16:15

gravity [1] - 19:9

grounds [1] - 16:23

Guimond [25] - 3:16,

7:16, 8:14, 8:21,

8:23, 9:1, 12:3,

12:13, 13:14, 14:22,

15:10, 17:12, 18:24,

19:20, 19:25, 20:6,

20:25, 21:4, 24:14,

25:7, 25:12, 26:12,

26:25, 28:8, 28:21

Guimond's [5] - 5:15,

22:11, 25:24, 25:25,

26:23

guys [2] - 10:20, 17:15

H

hand [1] - 29:15

handed [1] - 25:12

hands [1] - 3:24

hangman's [1] - 20:17

Hanson [4] - 2:2, 3:4,

3:9, 24:24

HANSON [2] - 3:5,

24:25

Hart [3] - 1:14, 4:11,


44/90

29:10

hate [1] - 27:22

Haugen [14] - 2:6, 2:8,

3:6, 3:20, 5:22, 6:17,

9:20, 13:12, 17:15,

19:2, 25:12, 25:20,

26:5, 27:19

HAUGEN [38] - 1:5,3:22, 4:2, 4:6, 4:9,

4:15, 4:19, 4:22, 5:2,

5:5, 6:11, 7:21, 7:24,

8:2, 8:5, 8:7, 8:16,

8:19, 8:22, 10:17,

10:23, 11:5, 12:4,

12:9, 12:12, 12:17,

12:20, 15:1, 17:22,

19:7, 24:23, 26:6,

26:19, 27:3, 27:6,

27:9, 27:21, 27:24

headed [2] - 5:23,

26:9

hear [2] - 12:5, 18:11

heard [1] - 19:3

hearing [4] - 1:13,

3:11, 6:4, 28:11

held [1] - 9:15

hereby [1] - 29:4

hereunto [1] - 29:15

herself [3] - 22:14,

23:2, 23:25

himself [4] - 22:14,

23:2, 23:25, 25:13

holding [5] - 17:11,

19:17, 19:22, 20:5,

21:5

Honor [38] - 3:5, 3:10,

3:14, 4:20, 4:23,

6:13, 7:21, 8:3, 8:7,

8:16, 9:6, 9:12, 9:22,

10:17, 11:6, 11:18,

12:4, 12:9, 14:16,

15:1, 17:22, 19:6,

19:8, 19:11, 19:17,

23:9, 23:21, 24:21,

24:25, 26:7, 26:14,

26:19, 27:3, 27:9,

27:13, 27:21, 27:24,

28:17

Honorable [2] - 1:13,

29:9

horse [1] - 7:5

I

idea [1] - 9:17

ideological [1] - 28:3

impartial [2] - 16:21,

21:10

impartiality [6] -

22:15, 23:3, 24:1,

24:4, 24:15, 25:7

importance [2] - 23:1,

23:23

important [2] - 5:20,

15:9

impossible [1] - 17:1

impropriety [1] - 19:3IN [2] - 1:1, 29:15

inability [1] - 10:15

Inc [1] - 1:21

inclusive [1] - 29:12

incompetently [1] -

11:12

Incorporated [1] -

15:20

incorrect [1] - 19:5

independent [1] -

19:23

indicated [1] - 25:13

indicates [2] - 14:11,

15:3indication [2] - 15:9,

20:6

indigent [1] - 11:22

informed [1] - 10:15

inquire [1] - 10:12

inquiring [1] - 6:17

inquiry [3] - 4:18,

6:19, 16:4

insisted [1] - 18:25

institution [1] - 10:21

intelligent [1] - 10:16

interim [1] - 17:2

interject [1] - 17:5

Internet [1] - 18:21interrupting [1] - 11:9

investigative [1] -

16:4

inviting [1] - 6:15

irrational [1] - 25:4

irrelevant [1] - 16:24

issue [5] - 13:9, 16:1,

19:15, 23:8, 26:18

issue's [1] - 6:2

issues [1] - 21:10

IT [1] - 1:12

J

join [3] - 12:7, 26:4,

26:11

Jones [1] - 25:5

JR [1] - 24:6

Judge [34] - 3:15,

4:11, 5:14, 7:15,

8:14, 8:20, 8:23, 9:1,

12:3, 12:13, 13:14,

14:22, 15:10, 16:3,

16:7, 17:12, 17:25,

18:24, 19:20, 19:25,

20:6, 20:25, 21:3,

22:11, 24:14, 25:7,

25:11, 25:23, 25:24,

26:12, 26:22, 26:25,

28:8, 28:21

judge [9] - 16:11,16:16, 16:18, 17:21,

20:1, 22:13, 23:2,

23:24, 25:11

judge's [4] - 22:15,

23:3, 24:1, 24:15

judgment [1] - 15:25

Judicial [3] - 22:10,

22:23, 29:5

judicial [3] - 16:10,

22:3, 24:5

juncture [3] - 9:6,

11:17, 28:1

jury [1] - 15:24

K

Kafoury [1] - 25:5

Keith [3] - 2:8, 3:7,

13:13

kick [1] - 10:25

killed [1] - 17:9

kind [4] - 6:2, 7:5,

10:18, 10:19

knowingly [1] - 26:10

knowledge [1] - 29:13

L

lacks [1] - 25:7

Lamonts [1] - 15:19

last [5] - 3:12, 6:4,

14:11, 18:11, 22:17

law [4] - 6:23, 16:25,

23:18, 25:9

Law [2] - 2:6, 2:8

Lawrence [1] - 13:17

lease [1] - 15:23

left [2] - 15:10, 24:18

legitimacy [1] - 24:5

letter [2] - 7:15, 12:13

life[1]

- 10:13light [1] - 14:25

limits [1] - 16:12

line [1] - 19:4

listen [1] - 18:2

litigation [1] - 15:23

Lloyd [1] - 15:20

look [3] - 5:12, 5:17,

7:18

loose [1] - 4:12

lost [1] - 12:23

M

mandamus [2] -

26:17, 27:2

mandatory [2] - 22:18,

24:11

maneuver [1] - 28:7

MARION [2] - 1:1, 29:2

Marion [4] - 1:15, 2:2,

2:4, 29:16

Matasar [5] - 13:17,

13:22, 19:19, 19:24,

20:15

matter [3] - 1:12,

16:25, 17:2

McCarty [1] - 29:4

MCCARTY [2] - 1:21,

29:22

mean [3] - 6:6, 10:20,

12:6

meantime [1] - 14:8

members [1] - 26:2

memory [1] - 25:25

mental [1] - 6:7

merely [1] - 21:5

met [1] - 10:2

might [2] - 23:3, 24:1

mine [1] - 5:17

minimal [1] - 10:10

minute [1] - 17:23

moment [2] - 6:3, 6:16

months [1] - 8:24

morning [5] - 3:3, 3:5,

3:20, 3:22, 12:13

most [1] - 15:8

motion [24] - 3:15,

4:13, 5:8, 8:12, 8:13,

12:1, 12:7, 12:13,

13:4, 13:6, 13:14,

14:10, 15:16, 22:6,

23:16, 24:12, 25:2,

26:4, 26:11, 26:15,

26:24, 28:13, 28:20

motions [1] - 3:13

move [3] - 13:23, 17:1,

17:20

moved [2] - 15:25,

16:7MR [83] - 3:5, 3:22,

4:2, 4:6, 4:9, 4:15,

4:19, 4:22, 5:2, 5:5,

5:10, 5:14, 6:11,

6:13, 6:18, 7:9, 7:21,

7:24, 8:2, 8:5, 8:7,

8:16, 8:19, 8:22,

9:12, 9:22, 9:25,

10:4, 10:17, 10:23,



3

11:5, 12:4, 12:9,

12:12, 12:17, 12:20,

13:8, 13:11, 13:19,

14:8, 14:15, 14:19,

15:1, 15:2, 15:7,

17:22, 17:24, 18:4,

18:7, 18:13, 18:16,

19:5, 19:7, 19:16,20:15, 20:19, 20:23,

21:3, 21:12, 21:16,

21:21, 21:23, 22:3,

22:6, 22:9, 23:7,

23:9, 23:12, 23:16,

23:23, 24:23, 24:25,

26:6, 26:14, 26:19,

26:20, 27:3, 27:6,

27:9, 27:10, 27:12,

27:21, 27:24

N

necessary [1] - 16:22need [11] - 7:23, 9:13,

10:9, 14:13, 14:18,

15:4, 18:2, 18:12,

18:18, 18:19, 27:20

needs [3] - 6:9, 9:22,

27:16

negative [1] - 18:23

noncommunication

[1] - 12:21

nondiscretionary [2] -

22:18, 26:20

noose [1] - 20:17

Northwest [1] - 1:21

notes [1] - 29:11nothing [4] - 17:12,

20:4, 25:23, 26:22

notwithstanding [1] -

15:25

O

object [7] - 6:18, 9:12,

13:3, 14:20, 15:11,

27:25, 28:12

objected [1] - 10:3

objection [1] - 10:5

objections [1] - 7:19

obligatory [1] - 24:11

observed [1] - 19:24

obtained [1] - 13:20

occur [1] - 14:7

OF [7] - 1:1, 1:1, 1:2,

1:11, 29:1, 29:2

offer [2] - 14:9

offering [1] - 11:7

office [5] - 17:7, 19:2,

19:20, 21:4, 22:11


45/90

official [1] - 29:5

old [1] - 8:2

Old [5] - 17:8, 18:9,

18:19, 19:21, 20:5

one [11] - 5:19, 5:23,

12:12, 12:15, 18:14,

19:7, 19:9, 20:11,

20:15, 26:15, 27:4One [1] - 7:10

ones [1] - 13:25

oOo [1] - 2:15

open [1] - 19:25

openly [1] - 20:2

operation [1] - 16:4

opinion [5] - 4:20, 9:4,

15:19, 28:7, 28:16

opportunity [3] - 11:7,

23:21, 26:16

OR [2] - 15:20, 29:23

ORCP [1] - 16:1

order [3] - 12:21,

25:25, 28:19ordered [1] - 21:5

OREGON [3] - 1:1,

1:2, 29:1

Oregon [13] - 1:15,

1:22, 7:11, 15:14,

22:9, 22:20, 22:21,

22:22, 22:25, 23:18,

26:18, 29:7, 29:17

originals [2] - 13:22,

14:3

ORS [4] - 15:15, 16:9,

16:12, 16:16

ought [4] - 5:11, 5:20,

26:1, 26:3

own [2] - 9:21, 10:10

P

page [2] - 22:20, 23:5

Pages [1] - 29:11

pages [1] - 5:17

paper [4] - 14:17,

18:17, 22:1, 23:15

part [6] - 14:2, 14:4,

15:8, 15:9, 17:4,

19:14

particular [3] - 6:21,

9:5, 23:20party [1] - 16:19

passage [1] - 18:5

passed [1] - 17:2

penalty [4] - 14:24,

15:13, 24:20, 24:22

pending [1] - 13:24

people [2] - 4:8, 27:17

period [1] - 28:13

permitted [1] - 7:7

person [1] - 17:16

personally [3] - 13:3,

28:7, 28:12

petition [1] - 26:17

photo [2] - 19:1, 20:25

photocopied [1] -

5:15

photograph [1] -14:21

picture [1] - 19:8

piece [1] - 21:1

placed [1] - 17:11

Plaintiff [3] - 1:3, 2:2,

2:4

plaintiff [2] - 15:24,

16:7

plan [2] - 27:12, 27:14

plaque [4] - 14:20,

19:1, 19:23, 21:7

plea [1] - 10:20

point [3] - 6:17, 9:19,

18:7points [1] - 8:9

political [1] - 28:3

Portland [1] - 1:22

position [9] - 5:22,

6:24, 7:1, 12:14,

12:18, 19:10, 25:2,

25:19, 28:5

possibly [1] - 15:12

post [2] - 15:12, 24:19

predecessor [3] -

22:22, 23:19, 24:9

prepare [1] - 26:17

present [2] - 3:8,

20:11preside [1] - 3:14

pretty [1] - 28:9

prison [1] - 17:16

problem [4] - 5:7,

8:25, 14:6, 21:8

procedural [1] - 16:14

procedures [1] - 16:16

proceed [1] - 3:17

proceeding [6] - 7:1,

16:6, 22:14, 23:3,

23:25, 27:25

Proceedings [1] -

28:22

proceedings [2] -

29:9, 29:14

PROCEEDINGS [1] -

1:11

process [6] - 6:22,

9:6, 11:9, 11:10,

11:16, 28:2

proof [1] - 14:9

prosecution [2] -

3:24, 22:16

prosecution's [1] -

21:9

prosecutor [1] - 24:10

prosecutors [1] -

21:13

proud [1] - 20:1

proudly [1] - 22:11

provided [2] - 8:11,

12:8provides [1] - 22:13

provisionally [1] -

13:23

provisions [2] - 7:10,

15:17

psychosis [1] - 10:15

pull [1] - 5:16

punctuation [1] - 14:6

purpose [2] - 23:1,

23:23

put [1] - 13:15

Q

questioned [4] -

22:15, 23:4, 24:1,

24:16

R

re [2] - 17:8, 22:22

re-creation [1] - 17:8

read [9] - 8:3, 8:4,

12:8, 14:1, 14:13,

15:4, 18:18, 18:19,

23:5

readers [1] - 7:23reading [1] - 18:1

ready [1] - 3:17

real [2] - 22:9, 25:17

really [2] - 7:14, 18:15

reason [3] - 6:3, 6:19,

11:2

reasonably [3] - 23:4,

24:1, 24:16

receipt [1] - 13:24

receive [1] - 16:21

recess [1] - 26:15

recollection [1] -

20:11

record [19] - 6:14,6:16, 6:25, 7:10,

7:19, 9:13, 9:23,

12:7, 13:3, 14:2,

14:4, 14:14, 14:16,

15:5, 17:25, 20:9,

20:13, 23:12, 23:17

recusal [8] - 8:14,

12:1, 13:6, 13:9,

15:14, 16:24, 17:1,

19:4

recuse [3] - 3:15,

26:12, 28:20

referred [1] - 25:14

reflected [1] - 26:1

regard [4] - 4:18, 7:16,

9:20, 20:9

regarding [3] - 15:23,22:22, 23:19

regards [1] - 28:13

regularly [1] - 1:13

Rejecting [1] - 16:12

rel [1] - 22:19

relate [1] - 11:14

related [1] - 14:24

relation [2] - 4:22,

11:21

relationship [1] -

11:21

relevancy [1] - 10:5

relevant [3] - 10:5,

10:6, 19:18relies [1] - 24:25

rely [1] - 23:18

relying [1] - 16:8

remain [1] - 6:20

remains [1] - 17:20

Remember [1] - 4:24

remember [3] - 17:7,

20:17, 25:15

REMEMBERED [1] -

1:12

remembered [1] -

15:11

remodel [2] - 17:10,

18:22removed [4] - 18:25,

20:7, 21:5, 25:25

reported [1] - 29:8

reporter [2] - 4:25,

29:5

Reporter [1] - 29:6

Reporters [1] - 1:21

Reports [1] - 22:20

reprehensible [1] -

28:8

representing [4] - 2:2,

2:4, 2:6, 2:8

request [1] - 3:23

require [4] - 16:10,

16:14, 16:19, 16:24

resolve [1] - 16:3

respect [1] - 27:15

review [4] - 3:25, 5:19,

12:1, 15:8

revised [1] - 15:15

rhetoric [1] - 28:3

rights [3] - 6:20, 7:2,

7:3



4

Robinson [2] - 16:3,

16:8

row [1] - 10:13

RPR [2] - 1:21, 29:22

rule [2] - 22:9, 22:13

Rule [2] - 22:10, 22:23

rules [1] - 16:9

run [1] - 5:14

S

Salem [2] - 1:15,

29:16

sat [2] - 8:17, 8:23

saw [4] - 19:16, 19:19,

19:22, 20:5

scanning [1] - 8:8

seated [1] - 3:3

second [1] - 4:11

Section [1] - 7:10

see [4] - 4:13, 5:21,

11:10, 21:7

seeing [1] - 25:20

seeking [1] - 16:19

send [1] - 28:20

sen

response to haugen objection

Documents