State v. Gregory

This opinion Was filed for record
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-VkMVMAA , CU. ■ SUSAN L CARLSON
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CHIEH JUSTICE
SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
STATE OF WASfflNGTON,
No. 88086-7
Respondent,
V. EN BANC
ALLEN EUGENE GREGORY, FILED OCT 1 1
Appellant.
FAIRHURST, C.J.—Washington's death penalty laws have been declared
unconstitutional not once, not twice, but three times. State v. Baker, 81 Wash. 2d 281,
501 P.2d 284(1972); State v. Green, 91 Wash. 2d 431, 588 P.2d 1370(1979); State v.
Frampton, 95 Wash. 2d 469, 627 P.2d 922(1981).^ And today, we do so again. None
'Arguably, it has occurred four times because a federal district courtjudge found that our
statutory proportionality review of death sentences violated due process. Harris ex rel. Ramseyer
V. Blodgett, 853 F. Supp. 1239, 1288-91 (W.D. Wash. 1994), offd sub mm. on other grounds,
Harris ex rel. Ramseyer v. Wood, 64 F.3d 1432 (9th Cir. 1995). But we considered and rejected
the claim. In Re Pers. Restraint ofBenn, 134 Wash. 2d 868, 925-26, 952 P.2d 116.
State V. Gregory, No. 88086-7
of these prior decisions held that the death penalty is per se unconstitutional, nor do
we. The death penalty is invalid because it is imposed in an arbitrary and racially
biased manner. While this particular case provides an opportunity to specifically
address racial disproportionality, the underlying issues that underpin our holding are
rooted in the arbitrary manner in which the death penalty is generally administered.
As noted by appellant, the use ofthe death penalty is unequally applied—sometimes
by where the crime took place, or the county ofresidence, or the available budgetary
resources at any given point in time, or the race ofthe defendant. The death penalty,
as administered in our state, fails to serve any legitimate penological goal; thus, it
violates article I, section 14 of our state constitution.
I. FACTS AND PROCEDURAL HISTORY
A. Factual background
In 1996, Allen Eugene Gregory raped, robbed, and murdered G.H. in her
home.^ In 1998, Gregory was investigated for a separate rape crime based on
^ In Gregory's first appeal, we summarized the crime scene as follows:
The evidence suggested that G.H. had been attacked in her kitchen. She
was probably stabbed once in the neck and then dragged into her bedroom. G.H.'s
work clothes had been cut off of her, and her hands were tied behind her back with
apron strings. She was then stabbed three times in the back. In addition, she had
three deep slicing wounds to the front of her throat. . . . The medical examiner
concluded that G.H. suffered blunt force trauma to the head and she had several
bruises, but the cause of death was multiple sharp force injuries to her back and
neck. Semen was found in G.H.'s anal and vaginal swabs, on her thigh, and on the
bedspread. The evidence suggested that she was still alive when she was raped.
Missing from her home were a pair of diamond earrings,jewelry, and her cash tips
from that evening.
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State V. Gregory, No. 88086-7
allegations by R.S. In connection with that investigation, the Tacoma Police
Department obtained a search warrant for Gregory's vehicle. In the vehicle, police
located a knife that was later determined to be consistent with the murder weapon
used to kill G.H. Police also obtained Gregory's blood sample during the rape
investigation and used that sample to connect him to the deoxyribonucleic acid
(DNA)found at G.H.'s crime scene. State v. Gregory, 158 Wash. 2d 759,812,147 P.3d
1201 (2006){Gregory I), overruled on other grounds by State v. W.R., 181 Wash. 2d
757, 336 P.3d 1134(2014). After matching Gregory's DNA to that found at G.H.'s
murder scene, the State charged Gregory with aggravated first degree murder. Id.
Gregory was also charged and convicted of three counts of first degree rape
stemming from R.S.'s allegations.
B. Procedural history
In 2001, a jury convicted Gregory of aggravated first degree murder. Id. at
111, 812. The same jury presided over the penalty phase of his trial. Id. at 812. The
jury concluded there were not sufficient mitigating circumstances to merit leniency
and sentenced Gregory to death. Id. When Gregory appealed his murder conviction
and death sentence, we consolidated our direct review ofthose issues with Gregory's
appeal of his separate rape convictions.Id. at 111. We reversed the rape convictions.
State V. Gregory, 158 Wash. 2d 759, 811-12, 147 P.3d 1201 (2006), overruled on other grounds by
State v.W.R.,\U Wn.2d 757, 336 P.3d 1134(2014).
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State V. Gregory, No. 88086-7
affirmed the aggravated first degree murder conviction, and reversed the death
sentence. Id. at 777-78. We based our reversal of Gregory's death sentence on two
grounds:(1)"the prosecutor engaged in misconduct during closing arguments in the
penalty phase ofthe murder trial" and(2)"the rape convictions," which we reversed,
"were relied upon in the penalty phase ofthe murder case."Id. at 111. We remanded
the case for resentencing. On remand,the trial court impaneled a new jury to preside
over a second special sentencing proceeding. Again the jury determined there were
not sufficient mitigating circumstances to merit leniency and sentenced Gregory to
death. Gregory appealed his sentence, raising numerous issues. In addition to any
appeal, our court is statutorily required to review all death sentences. RCW
10.95.130(1). Pursuant to statute, we consolidate the direct appeal and death
sentence review. Id.
Following remand, the State also prepared for a new rape trial. The State
conducted interviews with R.S., but the interviews revealed that she had lied at the
first trial. The State moved to dismiss the rape charges because R.S.'s inconsistent
statements "ma[d]e it impossible for the State to proceed forward on [count I and
count II]" and, given her statements, "the State d[id] not believe there [was] any
reasonable probability of proving the defendant is guilty of [count III]." Clerk's
Papers at 519. The trial court dismissed the rape charges with prejudice.
State V. Gregory, No. 88086-7
11. ISSUES^
A. Whether Washington's death penalty is imposed in an arbitrary and
racially biased manner.
B. Whether statutory proportionality review of death sentences alleviates
the alleged constitutional defects ofthe death penalty.
C. Whether the court should reconsider arguments pertaining to the guilt
phase of Gregory's trial.
III. ANALYSIS
A. Historical background ofthe death penalty in Washington
A brief history ofthe various death penalty schemes in Washington serves to
illustrate the complex constitutional requirements for capital punishment. See also
State V. Bartholomew,98 Wn.2d 173, 180-92, 654 P.2d 1170(1982){Bartholomew
I), vacated, 463 U.S. 1203, 103 S. Ct. 3530, 77 L. Ed. 2d 1383 (1983) (similar
historical discussion). In 1972, the United States Supreme Court nullified capital
punishment laws in 39 states, including Washington, and the District of Columbia.
Furman v. Georgia, 408 U.S. 238, 305, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972);
Baker, 81 Wash. 2d at 282; State v. Lord, 117 Wash. 2d 829, 908, 822 P.2d 177 (1991)
{^'Furman prohibits sentencing procedures which create a substantial risk that death
^ Since we hold that the death penalty is unconstitutional, we decline to address Gregory's
other challenges to the penalty imposed or alleged errors that occurred during the penalty phase of
the trial.
State V. Gregory, No. 88086-7
will be imposed in an arbitrary and capricious manner. In other words, where the
death penalty is imposed wantonly and freakishly, it is unconstitutional." (citation
omitted)). Three years later, by way of a ballot initiative, Washington enacted a new
capital punishment law that required mandatory imposition of the death penalty for
specified offenses. Initiative 316, Laws of 1975 2d Ex. Sess., ch. 9, repealed by
Laws of 1981, ch. 138, § 24. But this, too, proved problematic. In 1976, the United
States Supreme Court held that mandatory imposition of death sentences for
specified homicides is unconstitutional. Woodson v. North Carolina, 428 U.S. 280,
96 S. Ct. 2978, 49 L. Ed. 2d 944 (1976)(plurality opinion); Roberts v. Louisiana,
428 U.S. 325, 96 S. Ct. 3001, 49 L. Ed. 2d 974 (1976). Consequently, we declared
our capital punishment law unconstitutional. Green, 91 Wash. 2d at 447. In contrast,
Georgia's capital punishment law was upheld. Gregg v. Georgia, 428 U.S. 153, 96
S. Ct. 2909,49 L. Ed. 2d 859(1976)(plurality opinion). To be constitutionally valid,
"where discretion is afforded a sentencing body on a matter so grave as the
determination of whether a human life should be taken or spared, that discretion
must be suitably directed and limited so as to minimize the risk of wholly arbitrary
and capricious action." Id. at 189.
Our legislature enacted a new capital punishment law, allowing for the
imposition of the death penalty where the jury, in a subsequent sentencing
proceeding, found an aggravating circumstance, no mitigating factors sufficient to
State V. Gregory, No. 88086-7
merit leniency, guilt with clear certainty, and a probability of future criminal acts.
Laws of 1977, 1st Ex. Sess., ch. 206 (codified in chapter 9A.32 RCW and former
chapter 10.94 RCW, repealed by Laws OF 1981, ch. 138, § 24). The statute was
found unconstitutional because it allowed imposition of the death penalty for those
who pleaded not guilty but did not impose the death penalty when there was a guilty
plea. Frampton, 95 Wash. 2d at 480. The legislature again refined our capital
punishment law in an attempt to conform to various legal directives. Ch. 10.95
RCW. Our current statute is nearly identical to the Georgia statute. State v. Harris,
106 Wash. 2d 784, 798, 725 P.2d 975 (1986)("The language in our statute is identical
to that used in the Georgia statute."); of. Bartholomew I, 98 Wash. 2d at 188 ("The
statutory aggravating circumstances are similar but not identical to those of the
approved Georgia statute.").
Chapter 10.95 RCW provides for a bifurcated proceeding—first the defendant
is found guilty of aggravated first degree murder, and then a special sentencing
proceeding is held before either a judge or a jury to determine whether there are
sufficient mitigating circumstances to merit leniency. RCW 10.95.050,.060. Ifthere
are, the defendant shall be sentenced to life without parole. RCW 10.95.080. If the
defendant is sentenced to death,the sentence is automatically reviewed by this court,
in addition to any appeal the defendant seeks. RCW 10.95.100. Our statutorily
mandated death sentence review proceeding requires this court to determine (a)
State V. Gregory, No. 88086-7
whether there was sufficient evidence to justify the judge's or jury's finding in the
special sentencing proceeding, (b) whether the death sentence is excessive or
disproportionate to the penalty imposed in similar cases, considering the crime and
the defendant,(c) whether the death sentence was brought about through passion or
prejudice, and (d) whether the defendant had an intellectual disability. RCW
10.95.130(2).
Proportionality review "serves as an additional safeguard against arbitrary or
capricious sentencing." State v. Pirtle, 127 Wash. 2d 628, 685, 904 P.2d 245 (1995);
Harris, 106 Wash. 2d at 797. The goal is "to ensure that the death penalty's imposition
is not 'freakish, wanton, or random[ ] and is not based on race or other suspect
classifications.'" State v. Davis, 175 Wash. 2d 287,348,290 P.3d 43(2012)(alteration
in original)(quoting State v. Cross 156 Wash. 2d 580, 630, 132 P.3d 80 (2006)). The
United States Supreme Court held that statutory proportionality review is not
required by the federal constitution. Pulley v. Harris, 465 U.S. 37, 43-44, 104 S. Ct.
871, 79 L. Ed. 2d 29 (1984), but the impetus for it nonetheless derives from
constitutional principles. Lord, 117 Wash. 2d at 908 (proportionality review "was
undertaken in Washington in response to the United States Supreme Court decision
in Furman").
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State V. Gregory, No. 88086-7
B. Gregory's constitutional challenge to the death penalty is intertwined with our
statutorily mandated proportionality review
Gregory challenged the constitutionality of the death penalty, supported with
numerous reasons. He also presented a statutory argument,that his death sentence is
excessive and disproportionate to the penalty imposed in similar cases. RCW
10.95.130(2)(b). Gregory claimed that his death sentence "is random and arbitrary,
and, to the extent it is not, it is impermissibly based on his race and the county of
conviction." Opening Br. of Appellant at 96(underlining omitted). These assertions
are precisely what proportionality review is designed to avoid. See State v. Brown,
132 Wn.2d 529,554-55,940 P.2d 546(1997)("In conducting proportionality review
the court is principally concerned with avoiding two systemic problems ...: random
arbitrariness and imposition of the death sentence in a racially discriminatory
manner.").
In Davis, our court grappled with proportionality review of the defendant's
death sentence. "How to properly perform proportionality review, and upon what
data, is a reoccurring, vexing problem in capital case jurisprudence across the
nation." Cross, 156 Wash. 2d at 636. The majority and dissenting opinions took
different approaches disputing which factors were relevant and to what degree
statistical evidence could be relied on. The majority saw "no evidence that racial
discrimination pervades the imposition of capital punishment in Washington."
Davis, 175 Wash. 2d at 372. But the dissent believed that "[o]ne could better predict
9
State V. Gregory, No. 88086-7
whether the death penalty will be imposed on Washington's most brutal murderers
by flipping a coin than by evaluating the crime and the defendant. Our system of
imposing the death penalty defies rationality, and our proportionality review has
become an 'empty ritual.'" Id. (Fairhurst, J., dissenting)(quoting State v. Benn, 120
Wash. 2d 631, 709, 845 P.2d 289 (1993)(Utter, J., dissenting)). "We can, and must,
evaluate the system as a whole." Id. at 388. Justice Wiggins specifically called on
competent experts to present evidence on the "statistical significance of the racial
patterns that emerge from the aggravated-murder trial reports." Id. at 401 (Wiggins,
J., concurring in dissent).
In light of Davis, Gregory commissioned a study on the effect of race and
county on the imposition of the death penalty. Opening Br. of Appellant, App. A
(Katheione Beckett & Heather Evans, The Role of Race in Washington
State Capital Sentencing, 1981-2012 (Jan. 27, 2014) [https://perma.cc/XPS2-
7YTR]).'^ Subsequently, additional trial reports were filed. Beckett performed a new
regression analysis and updated her report. Katherine Beckett & Heather
Evans, The Role of Race in Washington State Capital Sentencing, 1981-
2014(Oct. 13, 2014)(Updated Beckett Report)[https://perma.cc/3THJ-989W]. The
Updated Beckett Report supported three main conclusions:(1) there is significant
For readability, we refer to Katherine Beekett and Heather Evans collectively as
'Beckett."
10
State V. Gregory, No. 88086-7
county-by-county variation in decisions to seek or impose the death penalty, and a
portion ofthat variation is a function ofthe size ofthe black population but does not
stem from differences in population density, political orientation, or fiscal capacity
of the county,(2) case characteristics as documented in the trial reports explain a
small portion of variance in decisions to seek or impose the death penalty, and (3)
black defendants were four and a half times more likely to be sentenced to death
than similarly situated white defendants. Id. at 31-33. Gregory filed a motion to
admit the Updated Beckett Report, which we granted.
The State raised many concerns about the reliance on Beckett's statistical
analysis, arguing that this was an inappropriate forum for litigating facts and
adducing evidence. The State was also concerned because Beckett had not been
subject to cross-examination about her involvement with Gregory's counsel, her
statistical methodology, and her overall reliability. The State requested an
opportunity to challenge the Updated Beckett Report. We granted the request and
ordered that a hearing be held before then Supreme Court Commissioner Narda
Pierce. No actual hearing was held since the parties agreed on the procedures and
Commissioner Pierce was able to solicit additional information through
interrogatories. The State filed the report of its expert, and Gregory filed Beckett's
response. Nicholas Scurich,Evaluation of"The Role of Race in Washington
State Capital Sentencing, 1981-2014" (July 7, 2016); Katherine Beckett &
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State V. Gregory, No. 88086-7
Heather Evans, Response to Evaluation of "The Role of Race in
Washington State Capital Sentencing, 1981-2014" by Nicholas Scurich
(Aug.25,2016). Commissioner Pierce reviewed these filings and then posed follow-
up questions in interrogatory form. After receiving answers. Commissioner Pierce
filed her report. FINDINGS AND Report Relating to Parties' Expert Reports
(Nov. 21, 2017) (Commissioner's Report). The Commissioner's Report did not
make legal conclusions or recommend how this court should weigh the evidence
before us. Rather, the Commissioner's Report provided us with an overview of the
disagreements between the experts and the overall strength and weakness of
Beckett's analysis, which may impact the weight that we accord to her conclusions.
The parties (and amici) filed supplemental briefing that shed further light on the
issues raised in the Commissioner's Report and the overall assessment of Beckett's
analysis. In turn, the Updated Beckett Report and the subsequent rigorous
evidentiary process provided this court with far more system-wide information
concerning the death penalty, enabling Gregory to use that information to
substantiate his constitutional challenge as well. In his supplemental brief, Gregory
incorporates the analysis and conclusions from the Updated Beckett Report to
support his constitutional claim, arguing that the death penalty is imposed in an
arbitrary and racially biased manner.
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State V. Gregory, No. 88086-7
Given the intertwined nature of Gregory's claims, we have discretion to
resolve them on statutory grounds, by solely determining if his death sentence fails
the statutorily mandated death sentence review and must be converted to life without
parole, or on constitutional grounds, by assessing our state's death penalty scheme
as a whole. "Where an issue may be resolved on statutory grounds, the court will
avoid deciding the issue on constitutional grounds." Tunstall v. Bergeson, 141
Wash. 2d 201, 210, 5 P.3d 691 (2000). Because Gregory challenges the process by
which the death penalty is imposed, the issue cannot be adequately resolved on
statutory grounds. Proportionality review is a statutory task that this court must
perform on the specific death sentence before us, but it is not a substitute for the
protections afforded to all persons under our constitution.
C. Washington's death penalty scheme is unconstitutional, as administered
1. Standard ofreview
We review constitutional claims de novo. However, conducting a
constitutional analysis in death penalty cases is slightly different from our traditional
constitutional review. "The death penalty differs qualitatively from all other
punishments, and therefore requires a correspondingly high level of reliability."
Pirtle, 127 Wash. 2d at 663; see also Lord, 117 Wash. 2d at 888 (The death penalty is
"subjected to a correspondingly higher degree of scrutiny than sentencing in
noncapital cases.").
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State V. Gregory, No. 88086-7
Gregory brought challenges under both the state and federal constitutions. We
have '"a duty, where feasible, to resolve constitutional questions first under the
provisions of our own state constitution before turning to federal law.'" Collier v.
City ofTacoma, 121 Wn.2d 737,745,854 P.2d 1046(1993)(quoting O'Day v. King
County, 109 Wash. 2d 796, 801-02, 749 P.2d 142(1988)); accord State v. Jorgenson,
179 Wash. 2d 145, 152, 312 P.3d 960 (2013) ("Where feasible, we resolve
constitutional questions first under our own state constitution before turning to
federal law."). If we neglect this duty, we "deprive[] the people of their 'double
SQCuniy. AlderwoodAssocs. v. Wash. Envtl. Council,96 Wn.2d230,238,635 P.2d
108 (1981)(quoting The Federalist No. 51, at 339 (A. Hamilton or J. Madison)
(Modem Library ed. 1937)). "It is by now well established that state courts have the
power to interpret their state constitutional provisions as more protective of
individual rights than the parallel provisions ofthe United States Constitution." State
V. Simpson,95 Wn.2d 170, 111, 622 P.2d 1199(1980)(plurality opinion).
Article I, section 14 of our state constitution provides, "Excessive bail shall
not be required, excessive fines imposed, nor cmel punishment inflicted." Our
interpretation of article I, section 14 "is not constrained by the Supreme Court's
interpretation of the [Eighth Amendment]." State v. Bartholomew, 101 Wash. 2d 631,
639, 683 P.2d 1079 (1984){Bartholomew II); U.S. CONST, amend. VIII. This court
has "repeated[ly] recogni[zed] that the Washington State Constitution's cmel
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State V. Gregory, No. 88086-7
punishment clause often provides greater protection than the Eighth Amendment."
State V. Roberts, 142 Wash. 2d 471, 506, 14 P.3d 713 (2000); State v. Ramos, 187
Wash. 2d 420, 453-54, 387 P.3d 650 (quoting same passage), cert, denied, 138 S. Ct.
467(2017).
Especially where the language of our constitution is different
from the analogous federal provision, we are not bound to assume the
framers intended an identical interpretation. The historical evidence
reveals that the framers of [the Washington Constitution, article I,
section 14] were of the view that the word "cruel" sufficiently
expressed their intent, and refused to adopt an amendment inserting the
word "unusual."
State V. Fain,94 Wn.2d 387, 393,617 P.2d 720(1980). A formal GunwalP analysis
is not necessary when we apply established principles of state constitutional
jurisprudence. Roberts, 142 Wash. 2d at 506 n.l 1.^
For example, in Bartholomew II, we adhered to our decision invalidating
portions of our capital punishment law on independent state constitutional grounds
rather than conforming our analysis to a recent United States Supreme Court case
affirming the death penalty against an Eighth Amendment challenge. 101 Wash. 2d at
634 (referring to Zant v. Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235
5 State V. Gmwall, 106 Wash. 2d 54, 720 P.2d 808 (1986).
® We recognize that article I, section 14 is not per se broader than the Eighth Amendment.
Under certain contexts, the court may have good reason to interpret the state and federal
constitutions synonymously rather than independently. For example, in State v. Dodd, we found
that article I, section 14 was not more protective than the Eighth Amendment when a capital
defendant wanted to waive general appellate review in hopes of a speedier execution. 120 Wn.2d
1,21,838 P.2d 86(1992). We later explained that the "ruling in Dodd is limited to the facts ofthat
case." State v. Thome, 129 Wash. 2d 736, 772 n.lO, 921 P.2d 514(1996).
15
State V. Gregory, No. 88086-7
(1983)). Our decision rested "on an interpretation of both the state and federal
constitutions," but the independent state constitutional grounds were "adequate, in
and of themselves, to compel the result." Id. at 644 (relying on Michigan v. Long,
463 U.S. 1032, 103 S. Ct. 3469, 77 L. Ed. 2d 1201 (1983), so that any federal
constitutional decision by the Supreme Court "will have no bearing on our
decision"). However, in State v. Yates, we did not address the defendant's state
constitutional argument because he could not "establish that chapter 10.95 RCW
violates the Eighth Amendment, [so] his claim that the statute violates article I,
section 14 ofthe Washington State Constitution is unavailing." 161 Wn.2d 714,792,
168 P.3d 359 (2007). In contrast, the evidence here shows that Gregory could
establish that Washington's death penalty violates both the federal and state
constitutions. At the very least, article I, section 14 cannot provide for less protection
than the Eighth Amendment,and in this case, we interpret it independently from the
federal counterpart. Let there be no doubt—we adhere to our duty to resolve
constitutional questions under our own constitution, and accordingly, we resolve this
case on adequate and independent state constitutional principles. See Long,463 U.S.
at 1041-42.
2. Our prior decisions upholding Washington's death penalty do not
preclude Gregory's claim
We have previously upheld the constitutionality of the death penalty under
somewhat similar claims. In Cross, we rejected the defendant's argument that "the
16
State V. No. 88086-7
death penalty in Washington is effectively standardless and that our proportionality
review does not properly police the use of the penalty." 156 Wash. 2d at 621; In re
Pers. Restraint of Cross, 180 Wash. 2d 664, 731, 327 P.3d 660 (2014)(rejecting his
constitutional claims again). We reaffirmed the holding in Yates under the federal
and state constitutions. 161 Wash. 2d at 792. Every decision of this court creates
precedent that "[w]e do not lightly set aside." State v. Kier, 164 Wash. 2d 798, 804,
194 P.3d 212(2008).
However, "stability should not be contused with perpetuity," and major
changes have taken place since our Cross opinion that support our decision to revisit
the constitutionality of the death penalty. In re Rights to Waters ofStranger Creek,
77 Wash. 2d 649, 653, 466 P.2d 508 (1970). First, we have numerous additional trial
reports for defendants convicted of aggravated murder that were not previously
available to us or the defendants who made constitutional claims. Reply Br. of
Appellant at 56(judges have filed 120 additional trial reports since Cross was filed;
67 of those were filed after the Cross opinion was published and dozens were filed
after Gregory's motion to complete process of compiling aggravated murder reports
was filed). Second, Gregory commissioned a statistical study based on the
information in the trial reports to demonstrate that the death penalty is imposed in
an arbitrary and racially biased manner. Additionally, we allowed the State to
challenge the Updated Beckett Report, subjected it to a thorough evaluation process
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State V. Gregory, No. 88086-7
facilitated by our court commissioner, and accepted supplemental briefing from the
parties and amici concerning the analysis and conclusions presented.
In Davis, this court saw "no evidence that racial discrimination pervades the
imposition of capital punishment in Washington." 175 Wash. 2d at 372. That is
precisely what has now come to light and warrants our consideration. See Roper v.
Simmons, 543 U.S. 551, 564-69, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005)
(reconsidering precedent upholding the death penalty for juvenile offenders,
supported by scientific and sociological studies about the differences between
juveniles and adults, and objective indicia of society's view ofjuveniles); Atkins v.
Virginia, 536 U.S. 304, 314, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002)
(reconsidering precedent upholding the death penalty for intellectually disabled
defendants, because "[mjuch has changed since then," including objective indicia
that society's views on the execution of such defendants had changed and newly
available clinical information about people with intellectual disabilities); State v.
O'Dell, 183 Wash. 2d 680, 695, 358 P.3d 359 (2015)(in light of "advances in the
scientific literature" concerning cognitive and emotional development, while not
overruling State v. Ha'mim, 132 Wash. 2d 834, 940 P.2d 633 (1997), we concluded
that youth is far more likely to diminish a defendant's culpability for sentencing
purposes than we had implied in prior cases). In this case, we need not decide
whether the prior cases were incorrect and harmful at the time they were decided.
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State V. Gregory, No. 88086-7
Rather,the scope of article I, section 14, no less than that ofthe Eighth Amendment,
"is not static." Trap v. Dulles,356 U.S. 86,101,78 S. Ct. 590,2 L.Ed.2d 630(1958)
(plurality opinion). Where new, objective information is presented for our
consideration, we must account for it. Therefore, Gregory's constitutional claim
must be examined in light ofthe newly available evidence presently before us.
3. Washington's death penalty is imposed in an arbitrary and racially
biased manner
It is now apparent that Washington's death penalty is administered in an
arbitrary and racially biased manner. Given the evidence before us, we strike down
Washington's death penalty as unconstitutional under article I, section 14. "Where
the trial which results in imposition ofthe death penalty lacks fundamental fairness,
the punishment violates article I, section 14 of the state constitution." Bartholomew
II, 101 Wash. 2d at 640; see also State v. Manussier, 129 Wash. 2d 652, 676, 921 P.2d
473 (1996) ("the state constitution, like the Eighth Amendment, proscribes
disproportionate sentencing in addition to certain modes of punishment").
To reach our conclusion, we afford great weight to Beckett's analysis and
conclusions. We refer to Beckett's analysis and conclusions rather than a specific
report or model variation filed with this court because there have been numerous
updates, corrections, and iterations of her analysis that were conducted since the
Updated Beckett Report was first admitted. The State is correct that we cannot
explicitly rely on the Updated Beckett Report because of these subsequent changes
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State V. Gregory, No. 88086-7
in Beckett's data file and analysis. As a result of the State's challenge and
Commissioner Pierce's fact-finding process, Beckett's analysis became only more
refined, more accurate, and ultimately, more reliable.
After running various models, as requested by Commissioner Pierce, Beckett
summarized her findings regarding race:
[F]rom December 1981 through May of 2014, special sentencing
proceedings in Washington State involving Black defendants were
between 3.5 and 4.6 times as likely to result in a death sentence as
proceedings involving non-Black defendants after the impact of the
other variables included in the model has been taken into account.
Resp. to Comm'r's Suppl. Interrogs. at 16 (Sept. 29, 2017). Though the Updated
Beckett Report presented three main conclusions concerning the impact of race,
county, and case characteristics on the death penalty, supra at Section III.B,
Gregory's constitutional argument does not refer to the county variance, so we do
not consider that conclusion in our analysis. Suppl. Br. of Appellant at 25 ("This
new evidence [referring to the Updated Beckett Report] shows the death penalty is
imposed in an arbitrary and racially biased manner."). With regard to the
methodological issues raised by the State, we find that these concerns have no
material negative impact on the weight accorded to Beckett's analysis and
conclusions.^
^ The State argued that Beckett's analysis was based on too small of a data set because she
used maximum likelihood estimate procedures, which generally require at least 100 cases to draw
from. To the contrary, we agree with Gregory and amici that the concern is inapplicable because
20
State V. Gregory, No. 88086-7
The most important consideration is whether the evidence shows that race has
a meaningful impact on imposition ofthe death penalty. We make this determination
by way of legal analysis, not pure science. Davis, 175 Wash. 2d at 372, 401 ("We
acknowledge that 'we are not statisticians.'" (quoting Wiggins, J., concurring in
dissent)). At the very most, there is an 11 percent chance that the observed
association between race and the death penalty in Beckett's regression analysis is
attributed to random chance rather than true association. Commissioner's Report at
56-68(the p-values range from 0.048-0.Ill, which measures the probability that the
observed association is the result of random chance rather than a true association).^
Beckett conducted an observational study in which her data set includes all trial reports filed for
defendants who imderwent a special sentencing procedure from 1981-2014. The data set reflects
the population, not a sample.
Additionally, concerns regarding Beckett's coding protocol and data entry have largely
been alleviated by the rigorous review process throughout this litigation. Since the coding and data
entry are based on the trial judge's qualitative trial report, there will always be some degree of
variance or subjectivity when those reports are translated into numerical values. Gregory highlights
the more crucial point—^the initial regression analysis in the Updated Beckett Report, the
regression analysis conducted in response to Commissioner Pierce's interrogatories, and the final
regression analysis conducted pursuant to the updated coding protocol all lead to the same
conclusion. The subsequent analysis, with corrections, provides even stronger support for the
statistical significance of race on the imposition of the death penalty. The State argues that the
existence of errors "should give this Court pause." Suppl. Br. of Resp't at 4. Surely we have taken
a pause by allowing the State to challenge the Updated Beckett Report and directing Commissioner
Pierce to undergo a fact-finding process. We are unpersuaded that the existence of some errors
should lead to the conclusion that the rest of the data set is rife with additional errors, especially
when professors and social scientist researchers across the field characterize it as a "rigorous and
thorough study." Br. of Soc. Scientists & Researchers, at 1.
^ The most common p-value used for statistical significance is 0.05, but this is not a bright
line rule. Commissioner's Report at 57-58. The American Statistical Association(ASA)explains
that the '"mechanical "hright-line" rules (such as "p<0.05") for justifying scientific claims or
conclusions can lead to erroneous beliefs and poor decision making.'"Id. at 58(quoting SCURICH,
supra, at 22)'"A conclusion does not immediately become 'true' on one side of the divide and
"false" on the other.'"Id.(quoting Ronald L. Wasserstein & Nicole A.Lazar, The ASA's Statement
21
State V. Gregory, No. 88086-7
Just as we declined to require "precise uniformity" under our proportionality review,
we decline to require indisputably true social science to prove that our death penalty
is impermissibly imposed based on race. Lord, 117 Wash. 2d at 910.
This is consistent with constitutional legal analysis. For example, in Furman,
Justice Stewart explained that the death sentences before the court were "cruel and
unusual in the same way that being struck by lightning is cruel and unusual. . . .
[T]he petitioners are among a capriciously selected random handful upon whom the
sentence of death has in fact been imposed." 408 U.S. at 309-10 (Stewart, J.,
concurring).^ Justice Stewart did not need to compare the probability of being struck
by lightning to the probability of being sentenced to death, nor did he need to rely
on an expert's regression analysis to ensure that the petitioners were in fact randomly
selected without any relation to other dependent variables. Similarly, Justice White
explained what he believed to be "a near truism: that the death penalty could so
seldom be imposed that it would cease to be a credible deterrent or measurably to
contribute to any other end of punishment in the criminal justice system." Id. at 311
(White, J., concurring). He did not need to rely on an expert's calculation as to what
point the rate at which the death penalty is imposed becomes low enough that
on p-Values: Context, Process, and Purpose, 70 Am. Statistician 129, 131 (2016)),
http://dx.d0i.0rg/l0.1080/00031305.2016.1154108.
® "Since five Justices wrote separately in support of the judgments in Furman,the holding
of the Court may be viewed as that position taken by those Members who concurred in the
judgments on the narrowest grounds—Mr. Justice Stewart and Mr. Justice White." Gregg, 428
U.S. at 169 n.l5.
22
State V. Gregory, No. 88086-7
potential murderers are no longer deterred from committing their intended crimes.
Similarly, under the Sixth Amendment to the United States Constitution, ineffective
assistance of counsel claimants must show deficient performance and prejudice,
where prejudice entails a "reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)."A reasonable probability is a probability sufficient to undermine confidence
in the outcome." Id. We do not expect the defendant to present statistical evidence
of the outcome of hypothetical trials with a more effective attorney and compare it
to the original trial, controlling for all other variables. Lastly, in State v. Santiago,
when deciding that the death penalty was unconstitutional, the Connecticut Supreme
Court took judicial notice of scientific and sociological studies that were '"not
necessarily indisputably true'" but were "'more likely [true] than not true.'" 318
Conn. 1,127-29, 122 A.3d 1 (2015)(emphasis omitted)(quoting 2 McCormick ON
Evidence § 331, at 612-13(Kenneth S. Broun ed., 7th ed. 2013)).
Given the evidence before this court and our judicial notice of implicit and
overt racial bias against black defendants in this state, we are confident that the
association between race and the death penalty is not attributed to random chance.
We need not go on a fishing expedition to find evidence external to Beckett's study
as a means ofvalidating the results. Our case law and history ofracial discrimination
23
State V. Gregory, No. 88086-7
provide ample support. See, e.g.. City ofSeattle v. Erickson, 188 Wash. 2d 721, 734,
398 P.3d 1124 (2017) (peremptory challenge used to strike the only African-
American on a jury panel); State v. Walker, 182 Wash. 2d 463, 488, 341 P.3d 976
(2015) (Gordon McCloud, J., concurring) (describing prosecutor's use of
inflammatory, racially charged images "highlighting the defendant's race—^his
blackness—in a case where that had absolutely no relevance"); In re Pers. Restraint
of Gentry, 179 Wash. 2d 614, 632, 316 P.3d 1020 (2014)(prosecutor heckled black
defense attorney in a death-penalty trial, asking,'"Where did you leam your ethics?
In Harlem?"'); State v. Saintcalle, 178 Wn.2d 34,45,309 P.3d 326(2013)(plurality
opinion) ('"[T]he fact of racial and ethnic disproportionality in [Washington's]
criminal justice system is indisputable.'" (second alteration in original) (quoting
Task Force on Race & Criminal Justice Sys., Preliminary Report on Race
AND Washington's Criminal Justice System 1 (2011), https://law.seattleu.
edu/Documents/Korematsu/Defender%20Initiative/2014DefenderConference/2pm
%20panel/preliminary_report_race_criminaljustice_03011 l.pdf)
[https://perma.cc/6BV4-RBB8]); State v. Monday, 171 Wash. 2d 667, 616-19, 257
P.3d 551 (2011)(reversing a case in which the prosecutor argued to the jury that
'"black folk don't testify against black folk'" and referred to the police as "'po-
leese'" in the examination of black witness); State v. Rhone, 168 Wash. 2d 645, 648,
229 P.3d 752 (2010)(plurality opinion)(peremptory challenge used to strike the
24
State V. Gregory, No. 88086-7
"only African-American venire member in a trial of an African-American
defendant"); State v. Dhaliwal, 150 Wn.2d 559,582,79 P.3d 432(2003)(Chambers,
J., concurring) (the prosecution's theory of the case relied on "impermissible
stereotypes of the Sikh religious community"); Turner v. Stime, 153 Wash. App. 581,
594, 222 P.3d 1243 (2009) (requiring new trial based on jurors' racist remarks
regarding Japanese-American attorney); Office of Atty. Gen. of Wash. State,
Consolidating Traffic-Based Financial Obligations Washington State 9
(Dec. 1, 2017), https://app.leg.wa.gov/ReportsToTheLegislature/Home/GetPDF
?fileName=SB%206360%20Report_12-01-7_0c338f90-d3b6-46e2-a87d-387eba9
a0b46.pdf[https://perma.cc/TB4K-KAEF]; see also Amici Curiae Br. of 56 Former
& Retired Wash. State Judges et al. at 8-13.
The arbitrary and race based imposition ofthe death penalty cannot withstand
the "'evolving standards of decency that mark the progress of a maturing society.'"
Fain, 94 Wash. 2d at 397 (quoting Trop, 356 U.S. at 101). When considering a
challenge under article I, section 14, we look to contemporary standards and
experience in other states. State v. Campbell, 103 Wash. 2d 1, 32,691 P.2d 929(1984).
We recognize local, national, and international trends that disfavor capital
punishment more broadly. When the death penalty is imposed in an arbitrary and
Governor Jay Inslee issued a moratorium on capital punishment in 2014. He explained
that "[t]he use ofthe death penalty in this state is unequally applied .... There are too many flaws
in the system. And when the ultimate decision is death there is too much at stake to accept an
25
State V. Gregory, No. 88086-7
racially biased manner, society's standards of decency are even more offended. Our
capital punishment law lacks "fundamental fairness" and thus violates article I,
section 14. Bartholomew II, 101 Wash. 2d at 640.
4. The death penalty, as administered, fails to serve legitimate
penological goals
Given our conclusion that the death penalty is imposed in an arbitrary and
racially biased manner, it logically follows that the death penalty fails to serve
penological goals. The principal purposes of capital punishment are "retribution and
deterrence ofcapital crimes by prospective offenders." Gregg,428 U.S. at 183; State
V. Kwan Fai Mak, 105 Wash. 2d 692, 755 n.l24, 718 P.2d 407 (1986)(quoting the
same passage). Unless the death penalty "measurably contributes to one or both of
these goals, it 'is nothing more than the purposeless and needless imposition ofpain
and suffering,' and hence an unconstitutional punishment." Enmiind v. Florida,458
imperfect system. . . . When the majority of death penalty sentences lead to reversal, the entire
system itself must be called into question." Govemor Jay Inslee Remarks Armouncing a Capital
Punishment Moratorium (Feb. 11, 2014), https://www.govemor.wa.gov/sites/default/files
/documents/201402ll_death_penalty_moratorium.pdf [https://perma.cc/U6VX-9FVH]. While a
majority of states have capital punishment laws, the annual number of new death sentences has
steadily decreased over the last 20 years, from 315 in 1996 to 39 in 2017. Death Penalty Info.
Ctr., The Death Penalty in 2017: Year End Report 1 (Jan. 3, 2018),
https://deathpenalt)dnfo.org/documents/2017YrEnd.pdf [https://perma.cc/YGV4-XLHV]. Nine
states have abolished the death penalty since Gregg, and three other governors issued moratoria.
Suppl. Br. of Appellant at 31 (citing States with and without the Death Penalty as ofNovember 9,
2016, Death Penalty Info. Ctr., https://www.deathpenaltyinfo.org/states-and-without-death-
penalty) [https://perma.cc/8DT6-H7DG]). Intemationally, dozens of countries have abolished
capital punishment, including all European Union nations. Id. (citing Abolitionist and Retentionist
Countries, DEATH PENALTY Info. Ctr.,https://deathpenaltyinfo.org/abolitionist-and-retentionist-
countries [https://perma.cc/V3BE-9JQS]).
26
State V. Gregory, No. 88086-7
U.S. 782,798, 102 S. Ct. 3368,73 L. Ed. 2d 1140(1982)(quoting Coker v. Georgia,
433 U.S. 584, 592, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977)). "If the policy of this
state is retribution for capital crimes, then it must be evenhanded." Campbell, 103
Wash. 2d at 48 (Utter, J., concurring in part, dissenting in part).
In Davis, this court was unable to address the defendant's state constitutional
claim that the death penalty failed to serve the legislative goal of deterrence because
of a "severe lack ofinformation on the death penalty's implementation." 175 Wash. 2d
at 345. Now the information is plainly before us. Beckett's analysis and conclusions
demonstrate that there is "no meaningful basis for distinguishing the few cases in
which [the death penalty] is imposed from the many cases in which it is not."
Furman,408 U.S. at 313(White,J., concurring). To the extent that race distinguishes
the cases, it is clearly impermissible and unconstitutional.
Our capital punishment law was intended to fix the problems identified in
Furman, but after decades of experience, we now see the same fatal flaws emerge,
despite the legislative attempt to avoid such deficiencies. Yet, the death penalty is
not per se unconstitutional. Campbell, 103 Wash. 2d at 31 ("the death penalty is not
per se unconstitutional, since both the federal and state constitutions recognized
capital punishment at the time oftheir adoption"). We leave open the possibility that
the legislature may enact a "carefully drafted statute," Gregg, 428 U.S. at 195, to
impose capital punishment in this state, but it cannot create a system that offends
27
State V. Gregory, No. 88086-7
constitutional rights. "[T]he death penalty is constitutional only if it is properly
constrained to avoid freakish and wanton application." Cross, 156 Wash. 2d at 622-23.
The United States Supreme Court was "unwilling to say that there is any one right
way for a State to set up its capital sentencing scheme." Spaziano v. Florida, 468
U.S. 447,464,104 S. Ct. 3154,82 L.Ed. 2d 340(1984), overruled on other grounds
Hurst V. Florida, U.S. , 136 S. Ct 616, 193 L. Ed. 2d 504 (2016). We agree.
"[T]o hold that the death penalty is per se unconstitutional would be to substitute our
moral judgment for that of the people of Washington." State v. Rupe, 101 Wash. 2d
664, 698, 683 P.2d 571 (1984)(plurality opinion).
5. Proportionality reviewfails to alleviate the constitutional defects in our
capital punishment law, hut it cannot be severed
Imposing the death penalty in an arbitrary and racially biased manner cannot
be alleviated through this court's statutory proportionality review. RCW
10.95.130(2)(b). Proportionality review serves as a safeguard against arbitrary
sentencing, but it is conducted on an individual basis for each death sentence. "At
its heart, proportionality review will always be a subjective judgment as to whether
a particular death sentence fairly represents the values inherent in Washington's
sentencing scheme for aggravated murder." Pirtle, 127 Wash. 2d at 687 (emphasis
added). It does not address our capital punishment law as a whole. Notwithstanding
the broad goals of proportionality review, case-by-case review of death sentences
cannot fix the constitutional deficiencies before us.
28
State V. Gregory, No. 88086-7
Despite this shortcoming, proportionality review cannot be severed. Our
capital punishment law contains a severability clause, Laws OF 1981, ch. 138, § 22,
but such clauses are '"not an inexorable command'." Hall v. Niemer,97 Wn.2d 574,
584, 649 P.2d 98 (1982)(quoting Dorchy v. Kansas, 264 U.S. 286, 290, 44 S. Ct.
323, 68 L. Ed. 686 (1924)); McGowan v. State, 148 Wash. 2d 278, 295, 60 P.3d 67
(2002) (severability clauses are "not necessarily dispositive"). The test for
severability is
"whether the constitutional and unconstitutional provisions are so
connected . . . that it could not be believed that the legislature would
have passed one without the other; or where the part eliminated is so
intimately connected with the balance ofthe act as to make it useless to
accomplish the purposes ofthe legislature."
Hall, 97 Wash. 2d at 582 (alteration in original)(quoting State ex rel. King County v.
State Tax Comm'n, 174 Wash. 336, 339-40, 24 P.2d 1094 (1933)). The disputed
provision "must be grammatically, functionally, and volitionally severable."
McGowan, 148 Wash. 2d at 295.
At the time of enactment, the legislature likely assumed that a constitutional
death penalty statute required proportionality review(a component ofdeath sentence
review) because the Georgia death penalty statute upheld in Gregg contained a
mandatory proportionality review. 428 U.S. at 206. The United States Supreme
Court later held that proportionality review is not required under the federal
constitution. Pulley, 465 U.S. at 43-44, but the provisions remain intimately
29
State V. Gregory, No. 88086-7
connected. Lord, 117 Wash. 2d at 908. This court has not opined on whether
proportionality review is required under our state constitution. Regardless,
proportionality review cannot be functionally severed because there is no authority
to carry out capital punishment without proportionality review. See Dodd, 120
Wash. 2d at 14 ("[T]his court must review a sentence of death, regardless of a
defendant's wishes."). The trial court cannot issue a death warrant to order execution
until our court affirms the death sentence and remands the case back to the trial court.
RCW 10.95.160(1). The execution date is then dependent on the date ofremand.Id.
Proportionality review does not guarantee the constitutionality ofthe death penalty,
but it is so intimately and functionally connected to the capital punishment law that
it cannot be severed.
D. Review of arguments pertaining to the guilt phase of Gregory's trial is
precluded
This case is an appeal of Gregory's death sentence, combined with our
statutorily mandated death sentence review. Gregory's first degree murder
conviction has already been appealed,reviewed by this court, and affirmed. Gregory
I, 158 Wash. 2d at 777-78. Despite this, Gregory continues to raise arguments
pertaining to his conviction.
30
State V. Gregory, No. 88086-7
1. We decline to review Gregory's arguments concerning the admissibility
ofevidence used at trial or the denied motionfor a new trial
Gregory argues that the trial court should have suppressed certain key
evidence used at trial (blood samples, DNA, a knife) and should have granted his
motion for a new trial. In Gregory's first appeal before this court, we upheld the
validity ofthe blood samples and DNA evidence but reversed his rape conviction on
other grounds and remanded the case for resentencing. Gregory 1,158 Wn.2d at 828-
29, 867. In June 2011, following remand, Gregory brought a pretrial motion that
again challenged the admissibility ofthe DNA evidence. Gregory moved to dismiss
his death penalty proceeding and to order a new guilt phase trial. Gregory also moved
to suppress evidence used to obtain his first degree murder conviction or, in the
alternative,to order hearing to determine the State's knowledge regarding
potentially exculpatory evidence used as a basis to find probable cause for the
warrant and orders in question. Gregory argued that despite our holding in Gregory
I, law of the case did not bar his challenge. He also argued that the State had in its
control Brady" information concerning R.S. that evidenced its lack of probable
cause to prosecute Gregory for rape. The trial court ruled the information regarding
R.S. was not Brady material and was not withheld by the prosecution. Regarding the
DNA and blood samples,the trial court denied Gregory's motions because this court
"Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674,57 L. Ed. 2d 667(1978).
"Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194,10 L. Ed. 2d 215 (1963).
31
State V. Gregory, No. 88086-7
had "thoroughly analyzed and decided"those issues in Gregory I. 5 Verbatim Report
ofProceedings (June 24, 2011)(VRP)at 284. Gregory filed a motion to reconsider,
but the trial court denied the motion.
Gregory now attempts to reassert many of the same arguments from his first
appeal. He claims the State withheld relevant information about R.S. when obtaining
the orders to procure a sample of his DNA and a warrant to search his vehicle where
the knife was found. Specifically, he asserts that the trial court would not have
authorized the warrant or the orders if it was aware that R.S. had a history as a paid
confidential informant. We decline to address this argument because reconsideration
is barred by law of the case doctrine. Alternatively, review is not warranted under
RAP 2.5, nor has Gregory shown grounds for overruling our precedent.'^
Normally, the trial court's rulings would be reviewed under abuse of discretion. A new
trial is necessary only when the defendant "'has been so prejudiced that nothing short of a new
trial can insure that the defendant will be treated fairly.'"iStore v. Hager, 171 Wn.2d 151,156,248
P.3d 512(2011)(internal quotation marks omitted)(quoting State v. Bourgeois, 133 Wash. 2d 389,
406, 945 P.2d 1120 (1997)). The decision to grant or deny a new trial is primarily within the
discretion ofthe trial court, and we will not disturb that decision absent a clear abuse of discretion.
Id. Similarly, we grant the trial court wide discretion in granting or denying dismissals for
discovery violations, and we will not disturb that decision absent a manifest abuse of discretion.
State V. Woods, 143 Wn.2d 561,582,23 P.3d 1046(2001)(citing State v. Hanna, 123 Wash. 2d 704,
715,871 P.2d 135(1994)). Manifest abuse ofdiscretion requires a finding that no reasonablejudge
would have ruled the way the trial court did. State v. Mason, 160 Wash. 2d 910, 933-34, 162 P.3d
396(2007). On appeal,the defendant bears the burden ofdemonstrating that the trial court's refusal
was an abuse ofdiscretion. State v. Robinson,38 Wn.App. 871,881,691 P.2d213(1984). Gregory
fails to show that the trial court abused its discretion, let alone that it manifestly or clearly abused
its discretion. See Hager, 171 Wash. 2d at 156; Woods, 143 Wash. 2d at 582.
32
State V. Gregory, No. 88086-7
a. Law ofthe case doctrine bars review
When we have already determined a legal issue in a prior appeal, the law of
the case doctrine typically precludes us from redeciding the same legal issue on a
subsequent appeal. State v. Clark, 143 Wash. 2d 731, 745, 24 P.3d 1006 (2001).
"'[Q]uestions determined on appeal, or which might have been determined had they
been presented, will not again be considered on a subsequent appeal if there is no
substantial change in the evidence at a second determination ofthe cause.'" Folsom
V. County ofSpokane, 111 Wn.2d256,263,759P.2d 1196(1988) Adamson
V. Traylor, 66 Wash. 2d 338, 339, 402 P.2d 499 (1965)). We will reconsider a
subsequent appellate argument raising the identical legal issue only when the
holding of the prior appeal is clearly erroneous and the application ofthe law of the
case doctrine will result in a manifest injustice. Clark, 143 Wash. 2d at 745.
The primary justification Gregory asserts for revisiting this issue is the
information surrounding R.S.'s history as a confidential informant. However, the
trial court found that this information was either known or made available to
Gregory's attorney prior to the first trial. Gregory does not challenge this finding on
appeal. Thus, Gregory failed to timely raise the issue in the trial court either prior to
or during his first appeal. See State v. Robinson, 171 Wash. 2d 292, 304, 253 P.3d 84
(2011)(explaining that the general rule is that a failure to raise an issue before the
trial court constitutes a waiver, unless the party can show a manifest error affecting
33
State V. Gregory, No. 88086-7
a constitutional right); see also RAP 2.5(a). The decision regarding the propriety of
the warrant and orders to obtain physical evidence are therefore law ofthe case and
not subject to review. Law of the case also precludes consideration of the Franks
issue and the probable cause required to obtain the search warrant and blood draw
orders. Clark, 143 Wash. 2d at 745 (law of the case bars new arguments attacking the
factual basis of our holding in the first appeal when the issue could have been
determined had it been presented). Moreover, Gregory presents no new evidence
that would merit authoritatively overruling Gregory I. See id.
b. Review is not warranted under RAP 2.5(c)(1)
In an attempt to overcome law ofthe case doctrine, Gregory argues that review
is warranted under RAP 2.5(c)(1) because he raised new grounds in his 2011 motion
to the trial court, other than those considered in Gregory 1. RAP 2.5(c) provides:
Law of the Case Doctrine Restricted. The following provisions apply
ifthe same case is again before the appellate court following a remand:
(1)Prior Trial Court Action. If a trial court decision is otherwise
properly before the appellate court, the appellate court may at the
instance of a party review and determine the propriety of a decision of
the trial court even though a similar decision was not disputed in an
earlier review ofthe same case.
"This rule does not revive automatically every issue or decision which was not raised
in an earlier appeal." State v. Barberio, 121 Wash. 2d 48, 50, 846 P.2d 519(1993). An
issue that could have been appealed in an earlier proceeding is reviewable under
RAP 2.5(c)(1) in a later appeal following remand of the case only if the trial court,
34
State V. Gregory, No. 88086-7
on remand and in the exercise ofits own independentjudgment,considered and ruled
again on that issue. Id.
When the trial court ruled on the 2011 motions, the court considered
Gregory's argument regarding the history of R.S. and how that may have impacted
the validity ofthe warrant request and blood draw orders. The trial court found that
the purported "new" evidence was made available to Gregory before the first trial.
VRP at 283. The trial court explained that it was constrained by our analysis
surrounding the same evidence in Gregory I and, thus, it did not exercise its
"independentjudgment" by ruling again on that issue as RAP 2.5(c)(1)requires. See
Barberio, 121 Wash. 2d at 50. Gregory fails to make the requisite showing under RAP
2.5(c)(1) to warrant review.
c. Review is not warranted under RAP 2.5(c)(2)
Gregory argues that intervening changes in the law compel our review ofthe
blood draw orders under RAP 2.5(c)(2). RAP 2.5(c) states:
Law of the Case Doctrine Restricted. The following provisions apply
ifthe same case is again before the appellate court following a remand:
(2)Prior Appellate Court Decision. The appellate court may at
the instance of a party review the propriety of an earlier decision ofthe
appellate court in the same case and, where justice would best be
served, decide the case on the basis of the appellate court's opinion of
the law at the time ofthe later review.
This rule "allow[s] a prior appellate holding in the same case to be reconsidered
where there has been an intervening change in the law." State v. Schwab, 163 Wash. 2d
35
State V. Gregory, No. 88086-7
664, 673, 185 P.3d 1151 (2008)(citing Roberson v. Perez, 156 Wash. 2d 33, 42, 123
P.3d 844(2005)). Ifthere has been an intervening change in the law, we will consider
whether '"corresponding injustice would result to the other party if the erroneous
decision should be set aside.'" Folsom, 111 Wash. 2d at 264 (quoting Greene v.
Rothschild, 68 Wn.2d 1,10,402 P.2d 356,414 P.2d 1013 (1965)).
Gregory relies on four different opinions, but none of them establish an
intervening change in the law to warrant reconsideration of Gregory I. In State v.
Figeroa Martines, we held that the State's warrant authorized the extraction of the
defendant's blood sample, which indicated that probable cause existed to believe the
blood contained evidence of driving under the influence (DUI). 184 Wash. 2d 83, 93,
355 P.3d 1111 (2015). Gregory relied on the Court of Appeals' opinion in that case
because he submitted his reply brief prior to our decision reversing the Court of
Appeals. Gregory also argues that State v. Garcia-Salgado constitutes an intervening
change in the law because it clarified the standards for biological samples under CrR
4.7. 170 Wash. 2d 176, 240 P.3d 153 (2010). In that case, we held that a cheek swab
for DNA constitutes a search and therefore requires a warrant or a warrant exception
in order to be permissible. Id. at 184. Though we considered the requirements under
CrR 4.7, this did not render our decision in Gregory I erroneous in any way,
especially when we cited to Gregory I for the proposition that the blood draw orders
were constitutionally valid. Id. at 186; see Folsom, 111 Wash. 2d at 264.
36
State V. Gregory, No. 88086-7
Gregory next relies on State v. Winterstein, 167 Wash. 2d 620, 220 P.3d 1226
(2009). In that case, we held that there is no inevitable discovery exception^"^ under
article I, section 7 because "it is incompatible with the nearly categorical
exclusionary rule under article I, section 7."Id. at 636. Gregory argues that we relied
on the inevitable discovery doctrine to uphold the constitutionality ofhis 1998 blood
draw. While we did cite to an inevitable discovery case in Gregory I, we declined to
examine the validity ofthe 1998 blood draw, so no such reliance was placed on the
doctrine. 158 Wash. 2d at 825. Instead, we upheld the validity of the 2000 blood draw
without the inevitable discovery citation. Lastly, Gregory relies on Missouri v.
McNeely, which held that there is no per se exigency exception for taking blood
samples following a DUI arrest. 569 U.S. 141, 133 S. Ct. 1552, 185 L. Ed. 2d 696
(2013). He maintains that McNeely recognized an increased privacy in a suspect's
blood, but this is nothing new. We have already recognized this proposition much in
advance of Gregory I. See, e.g., State v. Olivas, 122 Wash. 2d 73, 93, 856 P.2d 1076
(1993). These cases do not evidence changes in the law necessitating our
reconsideration of Gregory I. Gregory also attempts to use RAP 2.5(a)(3) to seek
i4«[T]he federal [inevitable discovery] doctrine allows admission of illegally obtained
evidence if the State can 'establish by a preponderance of the evidence that the information
ultimately or inevitably would have been discovered by lawful means.'" Winterstein, 167 Wn.2d
at 634(quoting Nix v. Williams, 467 U.S. 431, 444,104 S. Ct. 2501, 81 L. Ed. 2d 377(1984)).
37
State V. Gregory, No. 88086-7
review; however, he relies on the same cases discussed here, so the argument is
subject to the same defects.'^
d. Cheatam remains good law
Gregory argues that we should reconsider our ruling in State v. Cheatam, 150
Wash. 2d 626, 81 P.3d 830 (2003), which we relied on in Gregory I to uphold the
constitutionality of the comparative DNA testing between the DNA from his rape
case and the DNA found on G.H. In Gregory I, we held "that once a suspect's
property is lawfully in the State's control, the State may perform forensic tests and
use the resulting information to further unrelated criminal investigations, without
violating the owner's Fourth Amendment rights" or article I, section 7. 158 Wn.2d
at 826(emphasis omitted)(citing Cheatam, 150 Wash. 2d at 638).
Before we reconsider an established rule of law that is otherwise entitled to
stare decisis, there must be a clear showing that the rule is incorrect and harmful.
State V. Barber, 170 Wash. 2d 854, 863, 248 P.3d 494 (2011)(citing In re Rights to
Waters ofStranger Creek, 11 Wash. 2d at 653). Gregory fails to make this showing.
He relies on authority from other jurisdictions that is clearly distinguishable.
Opening Br. of Appellant at 181-82 (citing State v. Gerace, 210 Ga. App. 874, 437
S.E.2d 862(1993); State v. Binner, 131 Or. App. 677, 886 P.2d 1056 (1994))."We
RAP 2.5(a)(3) provides that "[t]he appellate court may refuse to review any claim of
error which was not raised in the trial court. However, a party may raise the following claimed
errors for the first time in the appellate court: . .. manifest error affecting a constitutional right."
38
State V. Gregory, No. 88086-7
are not inclined to abandon our own directly binding precedent in favor of
distinguishable, nonbinding authority." Davis, 175 Wash. 2d at 337. And he fails to
show that Cheatam is harmful, aside from the fact that it is detrimental to his own
case. We may consider a decision "harmful" for any number of reasons, but the
"common thread" is the "decision's detrimental impact on the public interest."
Barber, 170 Wash. 2d at 865.
2. Law ofthe case doctrine bars review ofchallenges already rejected in
Gregory I
Lastly, Gregory raises several federal constitutional challenges'^ that were
rejected in his first appeal. Opening Br. of Appellant at 278; Gregory I, 158 Wn.2d
Specifically, Gregory asks us to reconsider the following:
a. The trial court improperly excused prospective Juror No. 1 in violation of
Witherspoon v. Illinois[, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776
(1968)], Wainwright v. Witt[, 469 U.S. 412. 105 S. Ct. 844, 83 L. Ed. 2d
841 (1985)], Morgan v. Illinois[, 504 U.S. 719, 112 S. Ct. 2222, 19 L. Ed.
2d 492(1992)],[and] the Eighth and Fourteenth Amendments.
b. There was insufficient evidence of premeditation to support a conviction
under the Fourteenth Amendment and Jackson v. Virginia[, 443 U.S. 307,
99 S. Ct. 628,61 L. Ed. 2d 560(1970)].
e. The State's introduction of evidence that Mr. Gregory declined to be tape
recorded during an interrogation and his failure to contact Det. [David]
DeVault after DeVault left a message for his grandmother violated Mr.
Gregory's right to remain silent and due process of law, protected by the
Fifth and Fourteenth Amendments.
d. The trial court's exclusion of Mr. Gregory's aunt from the courtroom
violated the right of an open and public trial protected by the First, Sixth
and Fourteenth Amendments.
e. Proseeutorial misconduct in closing argument—improperly shifting the
burden of proof regarding Mike Earth; denigrating defense counsel's eross-
39
State V. Gregory, No. 88086-7
at 813-18,838-46. Gregory concedes that we addressed and rejected these arguments
in his first appeal but nonetheless argues that we should reconsider these issues under
RAP 2.5(c)(2). As explained in Section III.D.l.c, supra, RAP 2.5(c)(2) restricts the
law of the case doctrine by providing us the discretion to reconsider issues from a
prior appeal when there has been an intervening change in the law and "justice would
best be served" by our reconsideration. Schwab, 163 Wash. 2d at 673, 668 (citing
Roberson v. Perez, 156 Wash. 2d 33,42, 123 P.3d 844(2005)). Gregory failed to assert
any intervening changes in the law or mistakes in the record that would render our
rulings in Gregory I erroneous. We decline to exercise our discretion to revisit these
issues.
IV. CONCLUSION
Under article I, section 14, we hold that Washington's death penalty is
unconstitutional, as administered, because it is imposed in an arbitrary and racially
biased manner. Given the manner in which it is imposed,the death penalty also fails
to serve any legitimate penological goals. Pursuant to RCW 10.95.090,"ifthe death
examination of John Brown; commenting on Mr. Gregory's right to remain
silent for not returning Det. DeVauIt's calls; and by arguing facts not in
evidence and misstating the facts regarding the DNA evidence—deprived
Mr. Gregory of due process protected by the Fourteenth Amendment.
f. Cumulative error at the guilt phase violated Mr. Gregory's rights under the
Eighth and Fourteenth Amendments.
Opening Br. of Appellant at 278-79(some citations omitted).
40
State V. Gregory, No. 88086-7
penalty established by this chapter is held to be invalid by a final judgment ofa court
which is binding on all courts in the state, the sentence for aggravated first degree
murder ... shall be life imprisonment." All death sentences are hereby converted to
life imprisonment.
We decline to reconsider Gregory's arguments pertaining to the guilt phase of
his trial. His conviction for aggravated first degree murder has already been appealed
and affirmed by this court.
41
State V. Gregory, No. 88086-7
"n CUa '
WE CONCUR:
L
'L
iw 156 Wash. 2d 580, 132 P.3d 80(2006), and State v. Davis,
175 Wash. 2d 287, 290 P.3d 43 (2012), constitutional concerns were voiced in the
dissenting opinions that centered on the randomness, unpredictability, and
arbitrariness ofthe statewide administration ofthe death penalty system. Since the
time those cases were decided, experience shows that the systemic constitutional
concerns have deepened and continued moving toward increased rarity,
randomness, arbitrariness, and overall statewide abandonment.
Based on a current review of the administration and processing of capital
cases in this state, what is proved is obvious. A death sentence has become more
randomly and arbitrarily sought and imposed, and fraught with uncertainty and
unreliability, and it fails state constitutional examination.
Before analyzing the experiences evident in the administration of capital
sentencing in this state, it is necessary to establish the required constitutional
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
standard of review. Constitutional analysis is determined de novo. Conducting a
constitutional interpretation, as is done in death penalty cases, is slightly different
than more traditional constitutional review. As explained more specifically,
constitutional analysis in death penalty review requires a broad, comparative
approach. What this means is that we engage in a systemic view through a broader
lens. In death penalty cases, while our statutory proportionality review includes a
comparability component,the statutory focus is more case specific as it relates to
the defendant, his or her crime, and case specific circumstances, and under the
statute it directs us to determine "[wjhether the sentence of death is excessive or
disproportionate to the penalty imposed in similar cases, considering both the
crime and the defendant.'"^
Importantly, under constitutional comparative review, the analysis
incorporates an inspection ofthe entire system of capital sentencing to ensure
constitutional requirements are satisfied. Cases from the United States Supreme
Court not only establish the required constitutional review but also identify those
minimum Eighth Amendment principles that must be satisfied. As noted
previously, article I, section 14 can provide no less protection.
4RCW 10.95.130(2)(b).
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
Reviewing some ofthe United States Supreme Court Eighth Amendment
cases is helpful in emphasizing constitutional requirements. To begin, the Eighth
Amendment case most often cited as establishing a "comparability analysis," i.e.,
reviewing a specific sentence and comparing that sentence with sentences imposed
in other cases, is Weems v. United States, 217 U.S. 349, 30 S. Ct. 544, 54 L. Ed.
793 (1910). In that case, the Court invalidated a sentence by essentially holding
that the sentence so far exceeded what the Court found was proportionate for the
crime, and compared the sentence in that case with those imposed in other
situations. We have embraced similar reasoning under article I, section 14. See
State V. Fain,94 Wn.2d 387,400,617 P.2d 720(1980). This comparability
principle continues to guide United States Supreme Court Eighth Amendment
review in death penalty and other sentencing situations.
An important aspect of Eighth Amendment comparative constitutional
review requires this systemic-type analysis. Trap v. Dulles, 356 U.S. 86, 101, 78 S.
Ct. 590, 2 L. Ed. 2d 630(1958)(plurality opinion), is often cited as establishing
the principle that "[t]he Amendment must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society." What this
means is that in conducting any constitutional analysis, the inquiry takes into
consideration what is actually and currently taking place in the administration of
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
the entire system—a much broader view than just the facts and circumstances of
the case on review. What the Court looks to, in part, can be characterized as the
"frequency" a death sentence or other sentences are sought or imposed in specific
circumstances. This inquiry plays a significant role in determining the "evolving
standards of decency" principle.
A brief review of how the United States Supreme Court cases have evolved
best evidences this standard of review and the factors the Court has identified in its
decisions.
In Gregg v. Georgia, 428 U.S. 153, 96 S. Ct. 2909, 49 L. Ed. 2d 859(1976)
(plurality opinion), the Court, in affirming a death sentence, upheld a reenacted
state statute that authorized capital punishment for six categories of crime: murder,
kidnapping for ransom where the victim is harmed, armed robbery, rape, treason,
and aircraft hijacking. The statute at issue also provided for an appellate inquiry on
"'[wjhether the sentence of death is excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the defendant.'" Gregg,
428 U.S. at 167 (quoting foimer Ga.Code Ann. § 27-2537(c)(3)(1973)). While
the Court upheld the statute and found that the penalty of death was not
unconstitutional in all cases, it cited favorably to the principles established in Trop.
Gregg, 428 U.S. at 173. The Court in Gregg found the statute sufficiently
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
narrowed the type of death penalty eligible crimes, added objectiveness to guide
and narrow the fact finder's decision, and contained sufficient other procedural
safeguards to survive constitutional scrutiny.
Since Gregg was decided, the United States Supreme Court, in a steady
progression of cases, has narrowed its holding and limited the permissible
constitutional authority of states to seek the death penalty for specific crimes and
for specific defendants. An extensive review is unnecessary; however, several
cases highlight the reasoning and constitutional requirements.
In Godfrey v. Georgia, 446 U.S. 420, ICQ S. Ct 1759,64 L. Ed. 2d 398
(1980), the United States Supreme Court reversed a death penalty. In doing so, the
Court, quoting Furman,^ stated,"[T]he penalty of death may not be imposed under
sentencing procedures that create a substantial risk that the punishment will be
inflicted in an arbitrary and capricious manner. Gregg v. Georgia, supra,
reaffirmed this holding." Godfrey, 446 U.S. at 427."A capital sentencing scheme
must, in short, provide a "'meaningful basis for distinguishing the few cases in
which [the penalty] is imposed from the many cases in which it is not.'" Godfrey,
Furman v. Georgia,408 U.S. 238,92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
446 U.S. at 427 (alteration in original)(quoting Gregg, 428 U.S. at 188(quoting
Furman,408 U.S. at 313 (White, J., concurring))).
InEnmund v. Florida, 458 U.S. 782, 102 S. Ct. 3368, 73 L. Ed. 2d 1140
(1982), the United States Supreme Court invalidated state statutes authorizing the
death penalty for defendants who aided and abetted a felony where a murder is
committed by others and where the defendant does not kill or intend that a killing
occur. Key to the Court's analysis was the determination that, nationally, few states
authorized the death penalty under these circumstances, which under its view,
reflected society's rejection of the death penalty for accomplice liability in felony
murders. The Court observed:
In Gregg v. Georgia the [Supreme Court] observed that "[t]he
death penalty is said to serve two principal social purposes: retribution
and deterrence of capital crimes by prospective offenders." 428 U.S.,
at 183 (footnote omitted). Unless the death penalty [in a specific case]
measurably contributes to one or both ofthese goals, it "is nothing
more than the purposeless and needless imposition of pain and
suffering," and hence an unconstitutional punishment. Coker v.
Georgia,[433 U.S. 584, 592,97 S. Ct. 2861, 53 L. Ed. 2d 982
(1977)].
Enmund,458 U.S. at 798 (second alteration in original).
The United States Supreme Court's constitutional concerns continued to
evolve and incorporate this type of inquiry, looking not only to "frequency" among
the states' practices but also to identifiable trends.
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
In Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335
(2002), the Court invalidated the death penalty for mentally retarded criminals.
Significant to its holding was a statistical-type analysis that looked at not only the
number of states(and Congress)that prohibited the execution of mentally retarded
offenders but also the trend among the states. The Court reasoned,"It is not so
much the number ofthese States that is significant, but the consistency of the
direction of change." Atkins, 536 U.S. at 315. The Court also expressed its view
that
[o]ur independent evaluation ofthe issue reveals no reason to
disagree with the judgment of"the legislatures that have recently
addressed the matter" and concluded that death is not a suitable
punishment for a mentally retarded criminal. We are not persuaded
that the execution of mentally retarded criminals will measurably
advance the deterrent or the retributive purpose of the death penalty.
Atkins, 536 U.S. at 321. This concern surfaces in later cases.
In Roper V. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005),
the Court invalidated the death penalty for juveniles under age 18, overruling its
previous ruling in Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed.
2d 306(1989). In doing so, the Court relied not only on the analysis employed in
Atkins in determining a national consensus and the consistency of the direction of
change but also on a growing awareness of a lack of maturity for juveniles. The
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
Court reasoned that this factor resulted in a diminished culpability ofjuveniles,
which undermined the penological justifications of'"retribution and deterrence of
capital crimes by prospective offenders.'" Roper, 543 U.S. at 571 {oyxotmg Atkins,
536 U.S. at 319(quoting Gregg,428 U.S. at 183)).
Similar reasoning had supported the Supreme Court's invalidation of the
death penalty for rape of an adult woman, Coker v. Georgia, 433 U.S. 584, and,
later, for aggravated rape of a child, Kennedy v. Louisiana, 554 U.S. 407, 128 S.
Ct. 2641, 171 L. Ed. 2d 525 (2008).
More recently, in analyzing mandatory life without possibility of parole
sentences for juvenile offenders, the United States Supreme Court declared
unconstitutional any such mandatory sentencing scheme for juveniles. In Graham
V. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010),the Court
analyzed the "evolving standards of decency" factor and found that although many
state statutes authorized a life withoutparole sentence for juveniles convicted of
nonhomicide crimes, since statistical surveys showed few states actually imposed
such mandatory sentences, those statutes were unconstitutional. In Miller v.
Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407(2012),the Court,
applying much of the analysis from Graham,invalidated sentencing statutes
requiring a life without parole sentence for certain juvenile homicide convictions.
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
The lessons these cases teach us is that review ofthe constitutionality ofthe
death penalty system must analyze the issue in contemporary terms and practices,
and the constitutional analysis, at a minimum, must include a systemic
determination ofrandomness, consensus, arbitrariness, frequency, reliability,
trends, and penological justifications.
As indicated earlier, the United States Supreme Court cases interpreting the
Eighth Amendment guide our state constitutional analysis and cannot be
disregarded. Analysis under article I, section 14 must, at a minimum, proceed and
apply those same principles. A significant difference when analyzing our state
constitution is that we are not constrained by those principles offederalism that
limit and guide United States Supreme Court analysis, where the Court considers
national trends and practices. An analysis under article I, section 14 focuses on
practices, trends, and experiences within our state.
Frequency, Arbitrariness, and Randomness
In order to conduct the article I, section 14 analysis under a similar
analytical framework as employed by the United States Supreme Court, it is
necessary to review what we know about the administration of our state capital
sentencing system.
10
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
As referenced earlier in Cross, the dissent raised the concerns in
constitutional terms over random, arbitrary, or capricious imposition of a death
sentence emphasized in Furman and Cross. In addition to what was analyzed in
that opinion, it is important to review what our state's experiences reflected at that
time.
Shortly after Cross was decided, the Washington State Bar Association
issued a final report ofthe death penalty subcommittee. See WASH. State Bar
Ass'n,Final Report of the Death Penalty Subcommittee of the Committee
ON Public Defense(Dec. 2006)^(Final Report). Our current death penalty statute
was enacted in 1981. As of2006,the report discloses that a total of 254 death
eligible aggravated murder cases were charged arising in 25 counties. The report
observes the "data shows that most ofthe death penalty cases occur in a small
number of counties. . . . Thus, death penalty cases have been brought in 17 ofthe
39 counties during the last 25 years and the death sentence has been imposed in 10
ofthose counties." Final Report at 12. A total of 30 death sentences were imposed
from the 10 counties.
® https://www.wsba.org/docs/default-source/Iegal-community/committees/council-on-
public-defense/death-penalty-report.pdf?sfVrsn=I20301fl_I4 [https://perma.cc/S6C2-MUJK].
11
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
The report continues, revealing that ofthe 30 death sentence cases, 19 were
reversed on appellate review and "nearly all have resulted in a sentence of life
without the possibility of parole." Final Report at 8. Death sentences, including
executions, at that time had arisen in 8 counties out ofthe 25 counties where death
eligible crimes were charged.
In Davis, 175 Wash. 2d 287,then Justice Fairhurst raised a similar concern,
pointing out that since 2000,the only counties where death sentences had been
imposed were King and Pierce, accounting for 5 death sentences in that 12-year
span. Davis, 175 Wash. 2d at 388 (Fairhurst, J, dissenting).'^
Since 2006, about 131 additional death eligible aggravated murder cases
have been brought. Executions themselves are extremely rare. Since 1987, five
executions have occurred, three of which occurred when the defendants waived
their right to challenge their convictions and sentences. No executions will take
place in the near or foreseeable future based on Governor Jay Inslee's issuance of a
reprieve against executions during his tenure.
No death penalties have been imposed since 2011. Currently, no pending
prosecutions seeking the death penalty exist. During that same time, dozens, if not
^ Report of Trial Judge(TR) 194 (Covell Thomas); TR 216(Allen Gregory); TR 220
(Dayva Cross); TR 251 (Robert Yates Jr.); TR 303(Conner Schierman).
12
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
tens of dozens, of aggravated murder prosecutions have occurred. Since 2000, only
three county prosecutors have filed death notices, and in two counties, death was
imposed: Snohomish County in State v. Scherf()Ao. 95-1-02242-2) and King
County in State v. Schierman (No. 06-1-06563-4). Apparently, based on many
reasons, seeking the death penalty is not an option in the other 36 counties. Where
a crime is committed is the deciding factor, and not the facts or the defendant.
The phrase often used where such infrequency is concerned is "the odds are
similar to lightning striking an individual." This presents constitutional problems.
As is also revealed in the Final Report of 2006, approximately 300
aggravated murder convictions have been entered since 1981. Ofthis group, about
270 were death eligible. In about 80 cases, the prosecutor filed the death notice,
and in about 30 cases, the jury imposed death. Five executions have taken place.
Ofthe remaining cases, 19 were reversed on appeal and, on remand, the defendants
were sentenced to life without parole (leaving 6 out of approximately 300).
Based on this report and what additional information we now have, it cannot
be said that trials resulting in death sentences are reliable. Where the vast majority
of death sentences are reversed on appeal and ultimately result in life without
parole, reliability and confidence in the process evaporates.
13
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
What this systemic analysis discloses is clear. Since the opinions in Cross,
and again in Davis, were filed, we know more about the administration of capital
cases today. Importantly, a much more complete set of trial court reports exists.
We also have death penalty prosecutions where the penalty was not imposed and
others where the notice was withdrawn or never filed. We also have the governor's
"reprieve," effectively halting executions for the foreseeable future. In the majority
of our 39 counties, no death penalty has ever been sought. The current death row
population arose from just 6 counties.
The trend is apparent and the indication clear that fewer county prosecutors
elect to file a death notice. The death penalty simply does not exist as an option in
the majority ofthe state's counties.
The concerns expressed in the dissents in Cross and Davis have grown and
expanded. The number of counties where a death penalty prosecution is an option
has been narrowed to, at most, three and may have currently been abandoned
altogether by all counties.
The delay inherent in death sentence cases raises additional concerns,
although much of the delay is a result of court review procedures. For example,
Cal Brown, the most recent execution in 2010, committed his crime in 1991.
Excepting the cases involving Schierman and Scherf, all other death row crimes
14
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
arose in the 1990s. The governor's action means no executions will occur in the
foreseeable future. Where such delay exists, penological purposes in a death
sentence are diminished. We often say,"Justice delayed is justice denied,"
especially for the victims' surviving family. The unfortunate result of delay
diminishes whatever sense ofjustice is provided through an execution. As quoted
earlier, the United States Supreme Court has recognized that where penological
purposes cease to be promoted, the constitutional concerns expand.
Based on a review ofthe administration of death penalty cases,
constitutional flaws have now become obvious. Under article I, section 14 of our
state constitution, where a system exists permeated with arbitrary decision-making,
random imposition ofthe death penalty, unreliability, geographic rarity, and
excessive delays, such a system cannot constitutionally stand. The combination of
these flaws in the system support our conclusion that the death penalty is
unconstitutional. Although this analysis applies the constitutional principles
analysis and requirements established by the United States Supreme Court, as it
must, this analysis and conclusion rests on adequate and independent state
constitutional principles. See Michigan v. Long,463 U.S. 1032, 103 S. Ct. 3469,77
15
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)
L. Ed. 2d 1201 (1983).
16