Governor withholds execution emails; Counsel cites attorney-client privilege, need for 'frank communication' with staff

Posted on December 4, 2011 by

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What’s Governor Kitzhaber hiding now?

The Salem Statesman Journal reports that John Kitzhaber is refusing to release emails related to his reasoning for placing an unconstitutional “moratorium” on the death penalty in Oregon.

Gov. John Kitzhaber’s administration is refusing to release more than 150 emails dealing with internal advice the governor received prior to his controversial decision to grant a reprieve for condemned killer Gary Haugen and to ban capital punishment while he’s in office.

The action came last week in response to a public records request filed by the Statesman Journal.

Liani Reeves, Kitzhaber’s chief legal advisor, released numerous emails to the newspaper, but she withheld the meatiest ones — those dealing with legal advice and messages “to and from the governor and his staff that are discussing whether and how to handle Haugen’s case.”

Now, it’s understandable that in times of emergency or security risk, high level communications need to remain privileged. Where’s the privilege in matters of interpretation of law, and the constitutional power afforded your office? One can’t help but to wonder why this Governor isn’t more confident in the legal outcome of his move to ban the death penalty without a vote of the people or their representatives.

And, credit where it’s due: The Statesman Journal is doing its job by asking for the communications of our highest public employee. They make three very convincing arguments why this communication should be public:

-Kitzhaber’s ban on capital punishment
effectively nullified Oregon voters
reinstatement of the death penalty in
1984. Accordingly, Oregonians have a right
to know, in much greater detail than
Kitzhaber has revealed to date, how and
when he decided to take his extraordinary
stand against the death penalty. The
withheld emails could shed light on his
decision-making process.

-The public interest served by disclosing
the emails trumps the governor’s office
stated desire to keep the messages secret
in order for his advisors “to give uninhibited
advice” to Kitzhaber.

Keeping the emails under wraps runs
counter to the governor’s call for “all
Oregonians” to engage in a “long overdue
debate” about capital punishment.

The entire article is remarkable. The special interests have of course lined up, including Sister Prejean of Dead Man Walking fame. The list of state legislators congratulating Governor Kitzhaber on his unconstitutional move is very telling.

Kitzhaber’s own statement on the matter is also illuminating:

Though Kitzhaber has the power to
commute Haugen’s death sentence, as well
as those of the three dozen others inmates
on Oregon’s death row, he said he opted
not to do so because “the policy of this
state on capital punishment is not mine
alone to decide. It is a matter for all
Oregonians to decide.”

This indicates full knowledge of the legal conundrum he’s created for himself. The article notes that this decision has been building for months, as the Gary Haugen execution has drawn closer. It appears that Governor Kitzhaber needed a significant amount of time simply to craft a defense of his “moratorium”.

This moratorium is, of course, completely contrary to the wishes of both Haugen himself and his relatives. Haugen has stated on numerous occasions that the Governor needs to stop delaying and allow the execution to take place.

The Statesman Journal also quotes one of the released emails from an adopted relative of Haugen as insisting to the Governor that the execution be allowed to proceed:

-A St. Helens woman who described
herself as Haugen’s “foster sister” sent an
email to the governor’s office on Nov. 17,
imploring Kitzhaber to allow the execution
to happen, as Haugen requested.

“He is a very intelligent man and knows
exactly what he is doing,” wrote Barbara
Arellano. “I am so frustrated with the
people against the death penalty now
asking you to stop his execution.”

Arellano noted that she lived in the same
home with Haugen in the 1970s and now
corresponds with him by mail and speaks
to him several times a week by telephone.

“I know it sounds crazy to beg you to let my
brother die, but I understand why he wants
this and will be in total respect of his
wishes,” she wrote.

“I know where his head is and this needs to
just be done with.”

John Kitzhaber, you have a lot of explaining to do – you are defying the will of the people, the will of the accused, the victims of this monster AND our Constitution. What are you hiding in those emails?

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