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Lawmakers said legislation would not apply to previous cases, but DOJ said it might mean affect 30 inmates on Oregon's death row.

PMG FILE PHOTO - Gov. Kate Brown, pictured leading a rally outside the Oregon State Capitol in June, plans to call the Legislature back into session this fall.As lawmakers question whether or not to hold a special session to alter a law around Oregon's death penalty, a death row inmate from Washington County is prepping for a new trial; one that won't include the possibility of him returning to death row.

Martin Allen Johnson, an Aloha man convicted of murdering 15-year-old Heather Fraser in 1998, will have his case re-tried after the Oregon Court of Appeals ruled in his favor in 2016.

Johnson has been on death row since his 2001 conviction. He was convicted of eight counts of aggravated murder after a jury found him guilty of raping and then suffocating Fraser, wrapping her body in a blanket, then dumping her remains off the Astoria-Megler Bridge into the Columbia River.

The Court of Appeals overturned his conviction in 2016 and he is scheduled to be re-tried next month, but a newly passed law, Senate Bill 1013, significantly limits when prosecutors can charge someone with aggravated murder, the only charge in Oregon where the death penalty can be sought.

Martin's attorney, public defender Dean Smith, argued that because Martin was facing an entirely new trial, and not a re-sentencing, the new law would effectively take the death penalty off the table in his case.

Martin was indicted on aggravated murder charges in the 1990s, but Smith said changes to the law mean Martin wouldn't meet the standards necessary for an aggravated murder charge when he is re-tried. Instead, Martin will be tried under a new law, first-degree murder, which didn't exist until the passage of SB 1013.

"All the elements added up to aggravated murder, but now the elements have been reclassified," Smith said. "The question is, 'What do we do now?'"

Washington County Circuit Judge Eric Butterfield granted the motion on Aug. 6.

But when state lawmakers debated the bill last session before its passage, they stressed that wouldn't be the case.

"The intent was never to include those cases," said Sen. Laurie Monnes Anderson, D-Gresham.

Gov. Kate Brown plans to call a special session by the end of September to resolve the case.

During legislative hearings, lawmakers said the bill would not apply to previous cases in which offenders already had been sentenced. However, the Oregon Department of Justice recently said that the law could potentially be applied to the 30 inmates on Oregon's death row who can still appeal. That means, if a death row inmate were granted a new trial on appeal, SB 1013 could bar prosecutors from again sentencing them to death, as has happened in Johnson's case.

Last week, Brown said there was some confusion about what the term "retroactive" meant.

"It is really clear that there is a misunderstanding about the intent of the words in Senate Bill 1013," Brown said. "And, from my perspective, given the seriousness of the issues that we're dealing with and the impact on victims and families, I think it's critically important that there be clarity about the law and in particular, this law."

The lack of clarity led Sen. Floyd Prozanski, D-Eugene, to call for a special session to change the bill. Prozanski carried the bill on the Senate floor.

Rep. Jennifer Williamson, D-Portland, did so in the House. When the controversy over the bill began, Williamson lobbied against a special session, saying the bill will work as intended. She changed her tune in a recent letter sent to Brown and lawmakers, saying she would support a special session.

Brown is calling on Prozanski to draft the fix and get enough support to pass a reform to the law.

"I'm hoping the special session will be brief and to the point of making the technical fix that will clarify the intent of SB 1013," Monnes Anderson said.

Johnson's trial is expected to begin next month, though that date may have to be pushed back if a legislative special session is called and the law is changed.

According to the appeals court, Johnson's original attorneys did not investigate the possibility that Fraser died of a drug overdose, despite high levels of morphine in her system at the time of her death. Instead, his attorneys relied on an unusual tactic, arguing that Fraser may have died after Johnson threw her body from the bridge — which is in Clatsop County, not Washington County, where the case was tried.

"People think he was convicted and got off on a technicality and he just needs to get convicted again," Smith said. "But there's a reason his case got sent back: The first trial didn't work. His first team of lawyers were not competent. They didn't do competent work."

Smith said this isn't about getting a convicted murderer out of prison on a technicality, it's about making sure people's rights are held sacred.

"It is amazing to me that apparently nobody in the Washington County DA's Office read the legislation," Smith said. "You're a lawyer, read the law. My part in all this was simple: I looked at the legislation and it was obvious that it applies to Mr. Johnson. I filed a motion that said that."

Another Washington County death row inmate is scheduled to have his case re-tried in January. Billy Lee Oatney was convicted of aggravated murder in 1998 after he raped and suffocated 34-year-old Susi Larsen in his Tigard apartment. Larson's body was found in Champoeg State Park in 1996.

Oatney's attorneys have also argued that SB 1013 would prevent their client from facing the death penalty.

Washington County's chief deputy district attorney, Bracken McKey, is prosecuting both Oatney and Johnson's retrials. He declined to comment on the open cases.

'Rushing' a fix for the law

Brown's calls for a special session have been met with skepticism by some lawmakers. The legislative session ended in late June on a contentious note between the parties, after Senate Republicans walked out twice to prevent that chamber from taking votes.

"The last thing we should do in this situation is quickly rush something through a compressed process," said House Republican Leader Carl Wilson of Grants Pass, in a statement. "We do not want to compound the existing mistake by rushing a 'fix' through a day-long session in a hastily assembled committee."

Wilson suggested the "best course of action" could be to repeal the bill altogether in a special session.

"Victims, their families, law enforcement and the courts deserve clarity and closure on this matter," Wilson said. "That would also allow ample time before the 2020 regular session to analyze what, if anything, might otherwise be done on new legislation regarding the death penalty."

Brown spoke with Prozanski and legislative leaders, whom she said expect to work with stakeholders and lawmakers to write language for "this very narrow fix" and get enough votes to pass it.

"The session would be focused on this narrow issue," Brown said.

Brown said one of her staff members reviewed the bill and relevant legislative hearings, and her office talked with legislators and other interested parties.

When asked repeatedly how much responsibility she bears for signing the bill, she didn't directly answer.

"Look, there were dozens of lawyers involved in the drafting and the crafting of the legislation," Brown said. "They all thought they knew what 'retroactivity' meant. It turns out that Department of Justice has clarified that, and I think it needs to be fixed. ... There were a lot of people involved in this legislation. I think we all share some responsibility."

Lawmakers already are scheduled to convene in Salem for a series of interim meetings during the third week of September. Brown said she thought the special session could take less than a day.

By Geoff Pursinger
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