Actually, Wagner I has already been overruled, but not entirely. What survived is this holding: the offense-specific questions that juries vote on in determining death do not have to be pleaded in the indictment.
In his excellent and persuasive brief in St v. Reinke, Ernie Lannett argues that the residual holding of Wagner I was in error, the result of an incomplete analysis under the Oregon Constitution's Article I, section 11.
And that analysis involves determining what is an element of a crime and, further, what elements need to be pleaded in the indictment. I have attached a memorandum to this post addressing these issues in non-capital cases, which every lawyer who does felonies should already have in his or her library.
Since the OSC granted review in State v. Reinke, the two questions are: (1) for Mr. Reinke to prevail, must Wagner I be overruled, and (2) if Wagner I is overruled, what impact will this have on capital cases?
I have previously argued that Reinke could win even without Wagner being overruled. The short reason is this: the questions in Wagner that potentially permit a death sentence don't change the crime; it's still aggravated murder, regardless of how those questions are answered.
In contrast, in Reinke or any other charge for which the state is seeking an upward departure based on offense-specific factors, the offense-specific finding does result in a different crime, because it adds at least one offense-specific element. For example, the additional allegation of gun minimum language expressly creates a new crime. State v. Wedge, 293 Or 598, 652 P2d 773 (1982), as described in State v. Ice, "explain[ed] that, although the statute treated firearm use as a mere sentencing factor, when applied in the context of a robbery conviction, it in effect * * * create[d] a new crime' of first-degree robbery using a firearm. Id. at 608." [Emphasis added.]
If the Oregon Supreme Court believes that that is an important distinction, I think it could rule for the defendant in Reinke without overruling Wagner I.
But as I mentioned, Ernie wrote a wonderful brief arguing not only that Wagner I erred but the Wagner court's cursory analysis didn't justify the kind of deference it might otherwise be due. And presumably, if the Oregon Supreme Court agrees with that argument, then most -- all? -- aggravated murder indictments are flawed, at least if the state is seeking death.
There's a good chance we will have the answer before the end of 2012. Capital attorneys should be making the appropriate motion now.