SALEM, Ore. (AP) — A recent opinion from the Oregon Department of Justice that a former death row inmate cannot be sentenced to death upon retrial because of a new law curbing the use of the death penalty has the state’s prosecutors working to determine how many murder cases might be affected.

The Oregonian/OregonLive reports that Benjamin Gutman, Oregon’s solicitor general, wrote the email to prosecutors, which was distributed Friday and later obtained by the newspaper.

Gutman said the issue came up during the agency’s review of a Washington County trial court ruling last week involving Martin Allen Johnson who authorities say raped and murdered a 15-year-old Tigard girl in 1998 before throwing her body off an Astoria bridge.

As soon as Gov. Kate Brown signed Senate Bill 1013, which limits the crimes eligible for the death penalty, Johnson’s lawyers raised the issue of whether the law applies to their client. Circuit Judge Eric Butterfield determined that Johnson’s crime no longer qualifies as aggravated murder under the new law and therefore he isn’t eligible for the death penalty.

“I know that I have had conversations with many of you in which I suggested otherwise but after careful review of the issue . we have concluded that we don’t have a plausible basis for an appeal,” Gutman wrote.

It is unclear how the opinion will affect some of the state’s most notorious cases.


The new law narrows the definition of aggravated murder, which is the only crime in Oregon eligible for a death sentence. Aggravated murder is now limited to defendants who kill two or more people as an act of organized terrorism; kill a child younger than 14 intentionally and with premeditation; kill another person while locked in jail or prison for a previous murder; or kill a police, correctional or probation officer.

Gutman, who as solicitor general oversees the state’s appellate division, said the Justice Department’s analysis has broad implications. Lawyers for the agency handle all appeals for criminal cases.

He sent the email to prosecutors with aggravated murder cases that have been sent back for retrial.

“I thought all of your offices would want to know about our conclusion because it also means that we do not think we could defend a death sentence (or even an aggravated murder conviction) obtained in any of the pending cases even if the trial courts were to rule differently than the court” in the Washington County case, he wrote.

Tim Colahan, executive director of the Oregon District Attorneys Association, and other prosecutors said the opinion has injected uncertainty into the most serious cases and undermined the families of murder victims.

District attorneys are trying to determine how many cases may be affected by the opinion, he said