                                                       This opinion Was filed for record
                FIL
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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 Wn.2d 281,

501 P.2d 284(1972); State v. Green, 91 Wn.2d 431, 588 P.2d 1370(1979); State v.

Frampton, 95 Wn.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 Wn.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.
                                              2
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 Wn.2d 759,812,147 P.3d

1201 (2006){Gregory I), overruled on other grounds by State v. W.R., 181 Wn.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 Wn.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).
                                             3
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 Wn.2d at 282; State v. Lord, 117 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.2d 628, 685, 904 P.2d 245 (1995);

Harris, 106 Wn.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 Wn.2d 287,348,290 P.3d 43(2012)(alteration

in original)(quoting State v. Cross 156 Wn.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 Wn.2d at 908 (proportionality review "was

undertaken in Washington in response to the United States Supreme Court decision

in Furman").




                                          8
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 Wn.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 Wn.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

Wn.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 &


                                         11
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.




                                         12
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

Wn.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 Wn.2d at 663; see also Lord, 117 Wn.2d at 888 (The death penalty is

"subjected to a correspondingly higher degree of scrutiny than sentencing in

noncapital cases.").

                                           13
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 Wn.2d 796, 801-02, 749 P.2d 142(1988)); accord State v. Jorgenson,

179 Wn.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 Wn.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

                                          14
State V. Gregory, No. 88086-7

punishment clause often provides greater protection than the Eighth Amendment."

State V. Roberts, 142 Wn.2d 471, 506, 14 P.3d 713 (2000); State v. Ramos, 187

Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.2d at 621; In re

Pers. Restraint of Cross, 180 Wn.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 Wn.2d at 792. Every decision of this court creates

precedent that "[w]e do not lightly set aside." State v. Kier, 164 Wn.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 Wn.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

                                         17
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 Wn.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 Wn.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 Wn.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.

                                         18
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 Wn.2d at 640; see also State v. Manussier, 129 Wn.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
                                         19
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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn. 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 Wn.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 Wn.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 Wn.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 Wn.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

Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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

Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.2d at 156; Woods, 143 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.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 Wn.2d
                                        35
State V. Gregory, No. 88086-7

664, 673, 185 P.3d 1151 (2008)(citing Roberson v. Perez, 156 Wn.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 Wn.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 Wn.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 Wn.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 Wn.2d at 264.

                                         36
State V. Gregory, No. 88086-7

       Gregory next relies on State v. Winterstein, 167 Wn.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 Wn.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 Wn.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

Wn.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 Wn.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 Wn.2d 854, 863, 248 P.3d 494 (2011)(citing In re Rights to

Waters ofStranger Creek, 11 Wn.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 Wn.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 Wn.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 Wn.2d at 673, 668 (citing

Roberson v. Perez, 156 Wn.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 <ie-S(A




                                42
State V. Gregory (Allen Eugene)




                                        No. 88086-7


       JOHNSON,J.(concurring)—While I generally concur with the majority's

conclusions and its holding invalidating the death penalty, additional state

constitutional principles compel this result. While the conclusions contained in the

Beckett report' disclosing racial bias in the overall administration of capital

punishment raise significant concerns, other additional constitutional factors have

become more apparent, supporting the conclusion that the death penalty, as

administered, is unconstitutional.

       Article I, section 14^ of our state constitution is the counterpart to the Eighth

Amendment^ to the United States Constitution. We have recognized, in limited

situations, that this provision may provide greater constitutional protections than


     'Katherine Beckett & Heather Evans,The Role of Race in Washington State
Capital Sentencing, 1981-2014(Oct. 13, 2014)[https://perma.cc/XPS2-74TR].

       2"EXCESSIVE BAIL,FINES AND PUNISHMENTS.Excessive bail shall not be
required, excessive fines imposed, nor cruel punishment inflieted."

       ^ "BAILS,FINES,AND PUNISHMENTS.Excessive bail shall not be required, nor
excessive fines imposed, nor eruel and unusual punishments inflicted."
State V. Gregory (Allen Eugene), No. 88086-7
(Johnson, J., concurring)


established under the Eighth Amendment. It is unnecessary to explore whether

greater protections exist in this situation because, at the very least, our state

constitution cannot provide for fewer protections than exist under the Eighth

Amendment. What that means is that article I, section 14, at a minimum, embraces

the same principles and concerns existing under the Eighth Amendment and,

importantly, the same standard of review.

      In State v. Cross, 156 Wn.2d 580, 132 P.3d 80(2006), and State v. Davis,

175 Wn.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 Wn.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 Wn.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
