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Under Supreme Court decision, new sentence is likely life imprisonment; case returns to Clackamas County.

COURTESY OREGON JUDICIAL DEPARTMENT - The Supreme Court Building in Salem, now undergoing renovation. The justices reversed a death sentence for serial killer Dayton Leroy Rogers in a decision announced Friday, Nov. 12. Based on an Oct. 7 opinion interpreting a 2019 law that narrows the number of crimes defined as "aggrevated murder," the court returned the case to Clackamas County Circuit Court, where the new sentence is likely to be life imprisonment without parole. Rogers has been in prison since his 1989 convictions in connection with the murders of six women whose bodies were found near Molalla.Serial killer Dayton Leroy Rogers has had his death sentence overturned again by the Oregon Supreme Court, which under a recent ruling has narrowed the application of the death penalty to match a 2019 law.

OREGON DEPARTMENT OF CORRECTIONS - Dayton Leroy RogersThe latest decision, which the court released Friday, Nov. 12, is likely to result in life imprisonment for Rogers, now 68. He has been in prison since his 1989 conviction on 13 counts in connection with the deaths of six women, whose bodies were found in a forest near Molalla in 1987. Rogers had one of the highest confirmed death counts of any Oregon serial killer, and most of his victims were picked up in Portland.

The decision also could signal the court's intention to reverse the death penalty for many of the 25 people now on death row at the Oregon State Penitentiary.

The high court has upheld Rogers' conviction four times, but ordered his resentencing in 1992, 2000 and 2012. Each time Rogers was sentenced to death in Clackamas County Circuit Court, most recently in 2015.

This time was different.

Six sitting justices and one retired justice, Robert Durham, applied an Oct. 7 decision by the court to the Rogers case. (Justice Thomas Balmer, a former deputy state attorney general, did not take part.)

In reversing the death sentence for David Ray Bartol, who was convicted in 2016 for the murder of another inmate in the Marion County Jail while awaiting trial, the court led by Justice Rebecca Duncan specified a law that the Oregon Legislature passed in 2019.

The law narrowed the number of crimes defined as "aggravated murder" — the only one eligible for the death penalty under the Oregon Constitution — from 10 to four. They are the murder of a police or other public safety officer, a child under age 14, two or more people resulting from a terrorist attack, and someone in prison or jail if the defendant had been convicted of murder previously.

Although Senate Bill 1013 was not intended to be retroactive — there were 24 men and one transgender person on Oregon's death row as of Oct. 10 — the court ruled in the Bartol case that crimes under the previous definition of "aggravated murder" no longer qualify for a death sentence.

"SB 1013 reclassified all of those theories of aggravated murder as first-degree murder," the opinion by Justice Adrienne Nelson in the Rogers case said. "The conduct that defendant was found guilty of committing is no longer classified as aggravated murder, and it is no longer punishable by death."

Others pending

Lawyers for four others on Oregon's death row filed briefs in the Rogers case. They represent Randy Lee Guzek, convicted in 1988 for the 1987 murders of Rod and Lois Houser at their home in Terrebonne; Robert Paul Langley Jr., convicted in 1989 for the separate murders of Anne Louise Gray and Larry Richard Rockenbrant in Salem; Michael Martin McDonnell, convicted in 1988 for the 1984 murder of Joey Keever near Drain while McDonnell was a prison escapee; and Marco Montez, convicted in 1988 for the 1987 murder of Candice Straub in Portland.

As chief deputy district attorney in Deschutes County, Josh Marquis prosecuted Guzek in his 1988 murder trial. Marquis was appointed Clatsop County district attorney in 1994 and served through 2018. He is an outspoken supporter of Oregon's death penalty, which voters reinstated in a 1984 statewide vote.

Since 1984, two inmates waived their appeals and were put to death by lethal injection in 1996 and 1997. No others have died since then-Gov. John Kitzhaber called a halt to executions in November 2011, but a future governor could lift the moratorium.

According to the Death Penalty Information Center, Oregon, California and Pennsylvania have governor-ordered moratoriums; 24 states retain the death penalty; and 23 have abolished it. Of the 11 states that have abolished it since 1984, eight did so through legislative action and three through the courts; none was by statewide election.

Marquis said in a 2020 opinion piece — and which he reaffirmed after the Supreme Court's Oct. 7 decision — that the 2019 legislation and the court's interpretation of it are no substitute for a decision by voters on the fate of Oregon's death penalty.

He wrote:

"This is a sad coda by a state Supreme Court unwilling to accept the will of the people or the decisions of the U.S. Supreme Court (not just recently, but for 50 years) that the death penalty is constitutional if voters of a state want it available.

"The court endorsed the sleazy move by largely Democratic legislators in 2019 to neuter the death penalty, because they could do that without the two-thirds votes they didn't have.

"As a result, people like Randy Guzek … who has been four times sentenced to death by 48 different jurors, will now be eligible for immediate parole."

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