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State v. Langley

Supreme Court of Oregon

August 16, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
ROBERT PAUL LANGLEY, JR., Defendant-Appellant.

          Argued and submitted September 22, 2017.

          On automatic and direct review of the sentence of death imposed by the Marion County Circuit Court, (CC 88C21624) Mary Mertens James, Judge.

          Karen A. Steele, Salem, argued the cause and filed the briefs for appellant. Also on the brief was Jeffrey E. Ellis, Portland.

          Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Timothy A. Sylwester, Joanna L. Jenkins, and Lauren P. Robertson, Assistant Attorneys General, Salem, filed the brief for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Walters, Chief Justice, and Nakamoto, Flynn, and Nelson, Justices, and Brewer and Baldwin, Senior Justices pro tempore. [*]

         [363 Or. 483] Case Summary:

         In 2014, defendant was sentenced to death following his convictions on 15 counts of aggravated murder. Those convictions stemmed from defendant's 1987 murder of Marion County resident Anne Gray. By 2012, three different juries had similarly sentenced defendant to death for his crimes, but on appeal in each instance, the Oregon Supreme Court had vacated that sentence and remanded for a new penalty-phase trial after determining that prejudicial error had occurred in each previous sentencing proceeding. After defendant's fourth penalty-phase trial again resulted in a sentence of death, defendant challenged various aspects of that proceeding, presenting the Supreme Court with 77 assignments of error on automatic and direct review.

         Held: Each of defendant's assignments of error is rejected and his sentence of death is affirmed. The Court addresses, in particular, four sets of defendant's appellate claims, holding that: (1) under the facts presented, neither state nor federal law had required the trial court judge to recuse herself or be precluded from hearing defendant's case based on actual or perceived bias; (2) the trial court had not erred in allowing evidence concerning the prison environment to be presented as part of the state's case regarding the probability that defendant would continue to commit criminal acts of violence constituting a continuing threat to society; (3) the trial court had not erred in declining to give the jury defendant's requested limiting instruction regarding evidence that the jury could not consider in determining whether defendant should receive a death sentence; and (4) the trial court had not erred in rejecting defendant's argument that, because his crime had been committed in 1987, a death sentence under Oregon's current death penalty statutes would unconstitutionally subject him to a harsher punishment than he could have otherwise received at the time of his crime.

         The sentence of death is affrmed.

         [363 Or. 484] NAKAMOTO, J.

         Defendant was convicted on 16 counts of aggravated murder in 1989. This court affirmed 15 of those convictions in State v. Langley, 314 Or. 247, 839 P.2d 692 (1992), adh'd to on recons, 318 Or. 28, 861 P.2d 1012 (1993) (Langley I), but vacated defendant's death sentence and remanded his case for a new penalty-phase trial. See id. (so stating). The court has since done so twice more, first in State v. Langley, 331 Or. 430, 16 P.3d 489 (2000) (Langley II), and, most recently, in State v. Langley, 351 Or. 652, 273 P.3d 901 (2012) (Langley III). This automatic and direct review proceeding arises as the result of the death sentence imposed on defendant in 2014 following his fourth penalty-phase trial.

         On review, defendant raises 77 assignments of error, only 12 of which warrant discussion here. Those 12 issues encompass four broad contentions: (1) the penalty-phase trial court judge was, or appeared to be, biased and should not have presided over the proceeding; (2) the court erroneously admitted evidence not specific to defendant regarding the second capital sentencing question set out at ORS 163.150(1)(b)(B) (whether there is a probability that defendant would commit criminal acts of violence constituting a "continuing threat to society"); (3) the court failed to expressly preclude jury consideration of aggravation evidence regarding the fourth capital sentencing question set out at ORS 163.150(1)(b)(D) (whether defendant "should receive a death sentence"); and (4) the court erroneously applied sentencing-only remand provisions in capital cases arising before the United States Supreme Court's decision in Penry v. Lynaugh, 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). For the reasons that follow, we affirm defendant's sentence of death.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         This matter comes before the court following the fourth jury determination that defendant should be sentenced to death for the 1987 aggravated murder of Anne Gray. At the time of Gray's death, defendant-while serving a term of incarceration for crimes not at issue here-lived in a cottage on the grounds of the Oregon State Hospital in [363 Or. 485] Salem, where he voluntarily participated in a low-security Correctional Treatment Program for mentally and emotionally disturbed inmates. The program was designed to help inmates nearing the end of their prison terms-like defendant-to transition back into the community through extensive psychological counseling, training in job and independent living skills, and general assistance in establishing productive post-prison lives.

         Gray-a neighbor of defendant's girlfriend- disappeared on December 10, 1987. The same day, defendant enlisted his girlfriend's help in transporting a large, awkward bundle wrapped in a comforter from Gray's apartment to the home of defendant's aunt. In April 1988, Gray's decomposed body was found buried in a shallow grave located in the aunt's backyard. The discovery of Gray's body was facilitated in large part by the discovery a day earlier of defendant's second victim, Larry Rockenbrant, one of defendant's acquaintances.[1] Gray had died from asphyxiation, her body tightly tied into a fetal position by multiple bindings around her wrists, ankles, torso, and legs; her head was duct-taped to cover her mouth and nose, and a shoestring-type ligature was knotted tightly around her neck.

         In December 1989, a jury found defendant guilty of aggravated murder in the death of Gray and sentenced defendant to die. In 1992, this court affirmed 15 of defendant's 16 aggravated murder convictions, but it vacated his [363 Or. 486] death sentence on the ground that the trial court had failed to give a proper jury instruction on the consideration and use of mitigating evidence. Langley I, 314 Or. 247.

         A second penalty-phase proceeding followed, and defendant was again sentenced to death for Gray's murder. In 2000, this court vacated that death sentence on direct review, concluding that the trial court had erred by (1) refusing to allow defendant to waive any ex post facto objection to retroactively considering a true-life sentencing option in his case and (2) refusing to instruct the jury on that sentencing option. Langley II, 331 Or. 430.

         On remand for a third penalty-phase proceeding, defendant was once again sentenced to death-after going through seven different defense attorneys and being ordered to proceed as a pro se litigant. On direct review in 2012, this court concluded that the trial court had erred by not securing a valid waiver of defendant's right to counsel, and defendant's case was remanded for yet another penalty-phase proceeding. Langley III, 351 Or. 652.

         In May 2014, after considering for a fourth time whether defendant should be executed for the murder of Gray, a jury again sentenced defendant to death for that crime. Our opinion now focuses on four different aspects of that 2014 proceeding.

         II. ASSIGNMENTS OF ERROR REGARDING JUDICIAL BIAS AND RECUSAL

         We begin with defendant's contention that the assigned trial court judge should not have presided over his latest penalty-phase trial. On direct appeal, defendant has tendered more than 20 assignments of error that assert the penalty-phase trial judge was, or appeared to be, biased and that defendant's motions for her removal or recusal were erroneously denied. Of those assignments of error, we address the following four:

"Presiding Judge Rhoades erred in failing to 're-set' [defendant's] ORS 14.260 challenges upon this Court's vacating [defendant's] death sentence and remanding to the Circuit Court for resentencing[]" (Assignment of Error No. 12.)
[363 Or. 487] "Presiding Judge Rhoades erred by denying [defendant's] Motion to Disqualify Judge James pursuant to ORS 14.250-14.270 [.]" (Assignment of Error No. 7.)
"Presiding Judge Rhoades erred by denying [defendant's] Motion for Cause or to Recuse Judge James pursuant to ORS l4.2lO[.]" (Assignment of Error No. 8.)
"Presiding Judge Rhoades erred in failing to grant [defendant's] Motion No. 39, in which [defendant] raised additional facts and information related to Judge James' conflict, bias and/or appearance of bias due to Judge James' former employment with the ODOJ and relative to the Gray, Rockenbrant and Langley-related matters[.]" (Assignment of Error No. 13.)

         A. Procedural Background

         On April 6, 2012, Judge Jamese Rhoades, Presiding Judge of the Marion County Circuit Court, filed a circuit court form titled Criminal Assignment Notice as part of the run-up to defendant's latest penalty phase proceeding. In that document, Judge Rhoades assigned Judge Mary Mertens James to preside over defendant's remanded sentencing trial. Before assuming their positions on the bench, both judges had worked as government lawyers: Judge Rhoades as an attorney in the Marion County District Attorney's Office and Judge James as an assistant attorney general in the Oregon Department of Justice's (DOJ) general counsel and trial divisions.

         Defendant's newly appointed defense counsel apparently learned of that assignment on Monday, April 23, 2012, and, on Friday, April 27, 2012, filed two motions seeking Judge James's removal from the case. The first, captioned as "Motion for Change of Judge," cited as its authority ORS 14.250 to 14.270. In a nutshell, under certain conditions, those statutes prohibit a circuit court judge from hearing a matter when a party or attorney timely files a motion that establishes that the "party or attorney believes that such party or attorney cannot have a fair and impartial trial or hearing before such judge. In such case the presiding judge for the judicial district shall forthwith transfer the cause, matter or proceeding to another judge of the court [.]" ORS 14.250(1).

         [363 Or. 488] The second of defendant's removal-related motions was based on the fact that Judge James had been employed by the DOJ during the period that the DOJ had represented the state while defendant appealed his convictions and sentences. In that motion, captioned as a "Motion to Disqualify Judge for Cause or to Recuse Judge," defendant relied primarily on ORS 14.210, which, among other things, prohibits a judge from presiding over a matter if the judge "has been attorney in the action, suit or proceeding for any party." ORS l4.2lO(1)(d). However, an important caveat attached to the prohibition set out in ORS l4.2lO(1)(d). Notwithstanding the particular circumstances articulated in that statute, disqualification would be deemed waived unless the motion for disqualification had been made "as provided by statute or court rule." ORS 14.210(2).

         Defendant's motions were heard by Presiding Judge Rhoades; defendant raised no objections to Judge Rhoades's participation in that proceeding based on her prior employment with the county prosecutor's office. In May 2012, Rhoades denied both the "Motion for Change of Judge" and the "Motion to Disqualify Judge for Cause," indicating that the first was "[u]ntimely & successive," while writing with regard to the second, "Untimely. Successive. Authorities not on point." Judge Rhoades's ruling that the new filings were successive was based on the fact that defendant previously had relied on ORS 14.250 through 14.270 to secure the removal of Marion County judges Leggert and Barber during his 2004 sentencing proceedings.

         Two months later, at the first status conference on the record, Judge James invited further discussion concerning defendant's motions for her removal. At that time, Judge James acknowledged that she and Judge Rhoades had, at some point as part of the case assignment process, discussed whether she, James, could impartially preside over defendant's case. Judge James then discussed her previous employment history with the DOJ, its lack of intersection with defendant's previous appeals, and why it would be inappropriate for her to recuse herself:

"I was an employee of the Oregon Department of Justice from October of 1983 to March of 1984, I believe-I mean [363 Or. 489] of 94, and my assignments *** started out in general business and I then transferred to the civil trial division. I then became attorney in charge of labor and employment where I advised state agencies in labor and employment matters and represented agencies in administrative hearings and interest arbitration, that sort of thing. I did not have any contact with any of the divisions or units of the Department of Justice that may have been involved in any of the litigation involving Mr. Langley, had absolutely no contact with any of that [.]"

         Judge James, therefore, declined to recuse herself.

         In March 2014-nearly two years later and shortly before the commencement of defendant's new penalty-phase trial-defense counsel filed Motion No. 39, essentially a second request to disqualify Judge James that sought reconsideration of the previous disqualification denials. In the course of arguing that motion before Presiding Judge Rhoades, defense counsel acknowledged that the aim of the new motion was essentially the same as its predecessors, albeit more articulately stated and supported. Among other things, defendant argued for the first time that Judge James was required to recuse herself pursuant to the Oregon Code of Judicial Conduct. Defendant relied on former Judicial Rule (JR) 2-106(A)(2) (2012), [2] which provided, in relevant part, that judges must disqualify themselves when they have

"served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously was associated served during the association as a lawyer in the matter [.]"

         Defense counsel also added several elements to his previous statutory argument for change of judge based on ORS 14.260. He argued that (1) the prohibition set out at ORS 14.260(5) against more than two applications for a change of judge had been "reset" with the advent of the new sentencing proceeding and (2) his original motion should be deemed timely because he had filed it at the first opportunity that he could, i.e., the day that he was appointed to represent defendant.

         [363 Or. 490] Presiding Judge Rhoades, however, denied the motion. She issued an order that read, in part:

"Regarding disqualification for cause, Judge Rhoades denies the motion, finding that Judge James did not have any association with and was not involved in any division or units or with any attorneys who were involved in this case while she was employed as an assistant attorney general at the Oregon Department of Justice.
"Regarding Defendant's motion for change of judge, Judge Rhoades denies the motion and finds that ORS 14.250-.270 does not re-set at a new sentencing phase under ORS 163.150. Judge Rhoades also finds that the available challenges were applied to Judge Leggert and Judge Barber in 2004 and, thus, have been exhausted. Furthermore, the motion for change of judge was untimely, because Defendant filed his first motion, under ORS 14.250-.270, on April 24, 2012, while the time to file had expired on or about April 7, 2012, within 24 hours of the appointment of Judge James to this case."

         On May 20, 2014, as the new penalty-phase proceeding neared its end, defendant submitted yet another set of reconsideration motions seeking Judge James's removal, as well as transfer of the entire case to a judge appointed from outside the Marion County Circuit Court. Defendant also asked that his motion be sent to the Oregon Supreme Court for assignment of a conflict-free judge to hear it. In his motions, defendant again argued that Judge James should be removed because, during the time when she had worked for the DOJ in its trial and employment divisions, the DOJ had been extensively involved in litigating appellate matters related to defendant without a formal screening mechanism to separate James from those matters. Defendant maintained that the absence of such screening now created an appearance of partiality. Defendant cited three specific instances of Judge James's past work as a DOJ lawyer or current activity as a judge that, in his view, established actual bias or conflict of interest: her representation of the state in an employment case brought by a state employee, Weinstein, whom the state later called as a witness in defendant's trial; her appearance in a case on behalf of the MacLaren School for Boys; and her association with [363 Or. 491] a charity dedicated to supporting and honoring State Police personnel and their families.

         Defendant's motion was assigned to out-of-county Senior Judge Gregory Foote and scheduled to be heard later on the same day that it had been submitted. Defense counsel, however, requested a set-over of that hearing, arguing that, because his co-counsel had drafted the motion in question, defense counsel was unprepared. Judge Foote granted defendant's request and reset the matter to be heard the following day. Although the hearing on that motion had now been set over to May 22, 2014, defendant's penalty-phase trial had not been similarly postponed, and, on May 21, 2014, the parties presented closing arguments and the matter was submitted to the jury. The jury reached its verdict later that afternoon, concluding that defendant should be sentenced to death. The next day, Judge Foote heard the parties' arguments and denied defendant's recusal-related motion for reconsideration.

         B. Change of Judge under ORS 14.250 through 14.270

         We first address the assignments of error-numbers 7 and 12-related to defendant's unsuccessful motion for a change of judge under ORS 14.250 through 14.270. Under ORS 14.260(1), a change of judge can take place in any proceeding, based on a motion and affidavit setting out a good-faith belief that the party cannot receive a fair and impartial hearing before the judge in question; no specific ground for the movant's belief need be alleged. The statutes also contain several important restrictions. First, parties are prohibited from submitting "more than two applications in any cause, matter or proceeding under this section." ORS 14.260 (6); ORS 14.270. Second, a motion to change judge under ORS 14.250 through 14.270 must be made at the time of the trial court judge's assignment to the case. ORS 14.270.[3] Oral [363 Or. 492] notice of intent to file such a motion will suffice, provided that the actual "motion and affidavit are filed not later than the close of the next judicial day." Id.

         On review, defendant first contends that Judge Rhoades erred in ruling that, under those provisions, defendant's ability to change judges in the proceedings below had already been statutorily exhausted. Defendant argues that, pursuant to the principle announced by the Court of Appeals in Allen v. Premo, 251 Or.App. 682, 284 P.3d 1199 (2012), his ability to seek a change of judge should be deemed to have been reset following remand of his previous death sentence for a new penalty-phase trial. Second, defendant contends that his motion for a change should have been granted because his counsel's initial motion-although untimely- was nevertheless submitted as soon as was practicable, given that Judge James's assignment took place before legal representation had been appointed for defendant.[4]

         For purposes of this opinion, we may assume, without deciding, that defendant could seek a change of judge anew on remand, despite having utilized the change of judge procedure before the remand. Even so, the terms of the statute and our precedent lead us to conclude that the trial court correctly denied defendant's motion as untimely filed under ORS 14.270.

         By its terms, ORS 14.270 currently provides a strict timeframe in which to move for a change of judge:

"An affidavit and motion for change of judge to hear the motions and demurrers or to try the case shall be made at the time of the assignment of the case to a judge for trial or for hearing upon a motion or demurrer. Oral notice of the intention to file the motion and affidavit shall be sufficient compliance with this section providing that the motion and [363 Or. 493] affidavit are filed not later than the close of the next judicial day."

(Emphasis added.)

         An examination of the statutory framework within which the current time limitation in ORS 14.270 was put into place reveals that the legislature repeatedly has limited the ability of litigants to request a change of judge. See Stevens v. Czerniak, 336 Or. 392, 401, 84 P.3d 140 (2004) (in determining legislative intent of a statute, this court considers statute's context, which includes, among other things, the statutory framework within which the law was enacted). When ORS 14.270 was originally made part of the Oregon Revised Statutes in 1955, the statutory time limit set by the legislature for filing the same motion to disqualify was nearly unlimited, in that it could be filed virtually any time before commencement of a hearing or trial:

"In any county of the State of Oregon where there is a presiding judge who hears motions and demurrers and assigns cases to the other departments of the circuit court for trial, the affidavit and motion for change of judges to hear the motions and demurrers or to try the case may be made at any time, either before or after the assignment of the case for trial, and either before a hearing upon a motion or demurrer or before the commencement of trial of the said cause[.]"

Former ORS 14.270 (1955) (emphasis added). But in 1959, the legislature significantly shortened that timeframe by nullifying a defendant's ability to disqualify a judge if the judge had already ruled on any substantive request or demurrer in the case, other than a motion for extension of time. See Or. Laws 1959, ch 667, § 2 (so stating). Ten years later, the legislature further shortened the applicable timeframe by adding to ORS 14.270 the text that currently requires motions to disqualify a judge to be made "at the time of the assignment of the case." See Or. Laws 1969, ch 144, § 1 (amending statute as noted).

         Those amendments to the statutory scheme do not run afoul of a party's rights to take action under the statutes. That is so, this court has noted, because the provisions of ORS 14.250 to 14.270 reflect an extension of "legislative [363 Or. 494] grace" to litigants under which it is unnecessary for the parties to demonstrate that some source of law-such as a state or federal constitution-requires removal of a judge. State v. Pena, 345 Or. 198, 203, 191 P.3d 659 (2008). Regardless of an assigned judge's actual fairness or impartiality, those statutes allow a party-under limited circumstances-to remove the judge from a matter when either the party or the party's lawyer believes that the judge cannot provide a fair and impartial trial. Id. As this court observed in Pena, by doing so, the legislature

"provided parties and lawyers an opportunity, one that is not constitutionally or otherwise required, to remove a judge for personal, but not necessarily legal, reasons. We think it follows that it does not matter whether a party's lawyer was present at the time of the assignment, or even if a party was represented by counsel. In either case, the motion to remove a judge, or at least oral notice of intent to file such a motion, 'shall be made at the time of the assignment.'"

Id. at 207-08. Thus, in this case, although defendant had no appointed lawyer at the time that Judge James was assigned to preside over the penalty-phase retrial, defendant was required to file a motion for a change of judge no later than April 7, 2012, the day after Judge James was assigned.

         This court acknowledged in Pena that the results of its holding may appear harsh. But, at the same time, the court concluded that such an outcome is required by the plain text of the ORS 14.270:

"We are aware that our reading of the statute as making individual parties, whose legal counsel is absent (or nonexistent), responsible for giving a statutory notice or suffering the loss of an important statutory right seems harsh. However, the words of the statute compel that reading. It may be that the legislature assumed that counsel would be present at the pivotal moment, but the words of the statute do not contain that assumption explicitly, and do not require that counsel be present."

345 Or. at 208 n 3. Until the legislature alters ORS 14.270, a motion for change of judge under ORS 14.250 through 14.270 must be made at the time of the assignment, which did not occur below. The trial court correctly denied defendant's belated motion.

         [363 Or. 495] C. Disqualification for Cause under ORS 14.210 and Code of Judicial Conduct

         In addition to arguing that it was error not to change the trial judge under ORS 14.250 through 14.270, defendant also argues that his motions to disqualify Judge James for cause were erroneously denied below. Broadly speaking, defendant contends that, in addition to the fact that James was previously employed as a DOJ attorney during the same period as the Gray and Rockenbrant murder prosecutions, the following factors militate for the general proposition that Judge James should have been disqualified for cause from hearing his case: (1) her previous representation of state officials in the Weinstein employment action, when the state called Weinstein as a witness in his trial; (2) her previous representation of the MacLaren School for Boys; and (3) her association with the Oregon State Police Foundation.

         Defendant notes that, when James was employed with the DOJ, the DOJ had connections to his murder trial. First, the DOJ represented the Mental Health Division, Oregon State Hospital, Oregon Department of Corrections, and MacLaren School for Boys, all of which had provided witnesses for the state in defendant's murder trials. Defendant contends that, during that period, James had to have worked with other DOJ attorneys who appeared in matters stemming from defendant's murder cases. Second, the DOJ provided direct assistance to the Marion County District Attorney's Office in its prosecution of defendant. Defendant suggests that James was among that group of attorneys, based on the appearance of her name in DOJ billing records that had been previously supplied to defendant. When defendant subsequently sought the names of DOJ attorneys who had specifically assisted in his prosecution, the DOJ responded that it was unable to locate specific documents directly responsive to defendant's request, but noted that "many attorneys" whose names were contained in the previous list also had performed services at the request of the Marion County District Attorney's Office. Finally, defendant notes that the DOJ provided representation for the state in other matters during defendant's direct appeals of his convictions.

         [363 Or. 496] Defendant argues that, in light of those contacts that the DOJ had with his case, and without an overt screening mechanism between the DOJ's various divisions, James's position as an attorney with the DOJ had to have caused her to have multiple contacts with matters related to defendant. Defendant also asserts that Judge James failed to fully reveal such contacts when she was assigned to preside over defendant's penalty-phase proceedings.

         Defendant also points to James's participation in a 1990 employment action brought by Weinstein, who had run the Correctional Treatment Program at the state hospital during the time in which defendant had participated in that program, against his supervisors. More than 20 years later, during defendant's latest penalty-phase trial, Weinstein testified as a witness for the state, after which James advised the parties that she had a vague recollection of being involved as an attorney in a civil matter involving the witness. Following that disclosure, neither party queried James further concerning her role in that case or raised an objection at that time. Defendant nevertheless later argued that James's work on the Weinstein case had created an actual conflict because the parties involved in that matter were also involved as witnesses in the criminal case against defendant or in investigations related to the wrongful-death actions that followed defendant's murders.

         The Weinstein employment case arose following defendant's murder of Gray and Rockenbrant. In July 1989, after Weinstein's supervisors reassigned him and gave him different duties, Weinstein filed an employment action against those individuals. As state employees, Weinstein's supervisors were represented by James in her capacity as a DOJ attorney at that time. Thus, James had actively opposed Weinstein, on behalf of her clients.

         In the complaint initiating his employment action, Weinstein had alleged that "the act of reassigning him to other duties was motivated by his discussions with members of the Oregon legislature and expressions of his opinions." Despite the text of Weinstein's complaint, defendant contends that Weinstein's reassignment had to have [363 Or. 497] directly resulted from defendant's murders, a fact, defendant implies, that in turn must have caused James to have substantial contact with materials directly related to defendant while representing Weinstein's superiors. Defendant argues that James improperly downplayed her connection to events in his case that were the result of her role in Weinstein's action.

         With regard to Judge James's representation of the MacLaren School for Boys, defendant primarily relies on a PACER printout that was not part of the record below. The printout shows that, in a civil rights matter captioned Wentz v. Grubbs, et al., James appeared once to file an affidavit in support of a stipulated motion for an extension of time. Defendant apparently now seeks to link that contact between James and the MacLaren School for Boys to the records from defendant's tenure as a MacLaren inmate admitted in evidence at defendant's penalty phase proceeding. Defendant contends that James had been obliged to reveal her MacLaren connection.

         Finally, defendant argues that James's association with the State Police Foundation as a board member is relevant to recusal and should have been revealed below. Defendant notes that the state police (1) constituted the lead investigating agency in defendant's cases and (2) assisted the Marion County District Attorney's Office in its prosecution of defendant.

         Based on Judge James's roles set out above, defendant now contends that it was error not to remove Judge James from his case (or for her not to recuse herself) under ORS 14.210(1) and Codes of Judicial Conduct. Specifically, defendant relies on ORS l4.2lO(1)(a) and (d), which, respectively, expressly prohibit judges from acting in matters where the judge "is a party to or directly interested in the action, suit or proceeding" or "has been attorney in the action, suit or proceeding for any party." Defendant also relies on disqualification provisions from earlier versions of the Oregon Code of Judicial Conduct and of the American Bar Association Model Code of Judicial Conduct in effect when Judge James was first assigned to preside over his penalty-phase trial.

         [363 Or. 498] 1. ORS 14.2l0(1)(a) and (d)

         We review the ruling on defendant's motion to disqualify Judge James based on ORS 14.210(1) for legal error. See State ex rel Kafoury v. Jones, 315 Or. 201, 205-06, 843 P.2d 932 (1992) (analyzing statutes governing change of judge to determine whether trial court correctly identified legal issue). On review, defendant does not appear to argue based on the record that Judge James was either a party or else had a direct interest in his case. See ORS 14.210 (1)(a) (a judge who was "a party to or directly interested in the action, suit or proceeding" cannot serve in the matter). Instead, defendant focuses his argument on ORS 14.210 (1)(d), which provides that a judge "shall not act as judge if the judge has been attorney in the action, suit or proceeding for any party." Defendant contends that, as a former attorney for the DOJ, Judge James was disqualified from serving as the trial judge, given her alleged connections to the prosecution of this case and the Rockenbrant case.

         Yet in this case, there is no dispute that Judge James was not an attorney of record in the appeals that defendant had pursued and that the DOJ had opposed on behalf of the state. And, when Presiding Judge Rhoades denied defendant's motion seeking reconsideration of his motions to remove Judge James as the trial judge in March 2014, she did not find that Judge James had acted as an attorney in defendant's criminal cases. Rather, Judge James explained that she had had no connections with the prosecution in defendant's cases, and Judge Rhoades found that "Judge James did not have any association with and was not involved in any division or units or with any attorneys who were involved in this case while she was employed as an assistant attorney general at the Oregon Department of Justice." In arguing to the contrary, defendant arranges and then connects disparate points to hypothesize that Judge James's status as a former DOJ employment attorney for the Oregon State Hospital and its supervisors (in Weinstein's case) and for the MacLaren School for Boys (in a motion for extension of time)-and later as a State Police Foundation Board member-inexorably led to contact with parts of defendant's aggravated murder case. The difficulty with that proposition, however, is that the objective evidence [363 Or. 499] fails to support defendant's inference that she participated as an attorney in some way in the prosecution of his criminal cases.

         As noted earlier, ORS l4.2lO(1)(a) and (d) require judicial disqualification if a judge was "a party to or directly interested in" or "has been an attorney in" the action or proceeding. We conclude that the record supports Presiding Judge Rhoades's finding and that defendant's arguments based on ORS l4.2lO(1)(a) and (d) are simply unsupported by the evidence. Nothing in the record shows that, during Judge James's previous employment with the DOJ, she acted as an attorney in defendant's prosecution or the appeals that followed, nor is there any evidence that she otherwise possessed a direct interest in defendant's cases.

         2. Code of Judicial Conduct

         In arguing that the presiding judge should remove Judge James from his case in 2014, defendant relied for the first time on provisions of the Oregon Code of Judicial Conduct and the ABA Model Code of Judicial Code, citing versions in effect when Judge James was assigned as the trial judge. Specifically, he relied on former JR 2-106(A)(1) and (2) (2012) of the Oregon Code, which provided:

"(A) A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality reasonably may be questioned, including but not limited to instances when
"(1) the judge has a bias or prejudice concerning a party or has personal knowledge of disputed evidentiary facts concerning the proceeding;
"(2) the judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously was associated served during the association as a lawyer in the matter, or the judge or the lawyer has been a material witness in the matter [.]"

         Defendant also cited ABA Model Code, Rule 2.11(A)(6)(a) (2011), which, as set out by defendant, similarly provided:

"(A) A judge shall disqualify himself or herself in any proceeding in which the judge's impartiality might [363 Or. 500] reasonably be questioned, including but not ...

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