Oregon Supreme Ct - Nov. 27, 2015

by: Abassos • November 27, 2015 • no comments

Stun Belts - Right to a Hearing - Penalty Phase of a Death Penalty Trial

A defendant has the same Art. I, Sec. 11 right to be free from unnecessary restraint in the penalty phase of a death penalty trial as in the guilt phase. That right, in turn, requires that a judge hold a hearing, consider the relevant facts and argument and give the defense an opportunity to be heard. It does not, however, necessarily require a “live evidentiary hearing” at which the defense may call witnesses and offer evidence. Nor is there a burden of proof on the state for either the issue of whether to impose restraints or what type of restraint should be imposed. Rather, it is a decision that is up to the judge. Here, the defendant had been convicted of aggravated murder in 1981, twice before been sentenced to death, and at all the prior trials had been found to be a danger. The 2008 trial court continued to believe that defendant was a danger. Since the defense was not offering to prove that defendant was not a security risk (only that the state had not sufficiently proven he was)