Defense attorneys for Jeremy Christian argued in court Wednesday that the death penalty shouldn't be a sentencing option during a trial set for June 2019.
Christian is charged with two counts of aggravated murder and one count of attempted murder in connection with stabbings aboard a Portland MAX train on May 26, 2017. Prosecutors say he stabbed three men, killing two. Christian has pleaded not guilty to a 15-count indictment.
The defense spent the better part of two days of pre-trial hearings arguing the language in what they said is a key question jurors must weigh before handing down a death sentence.
Jurors must answer: "Whether there is a probability that the defendant would commit criminal acts: of violence that would constitute a continuing threat to society."
It's one of four questions jurors would consider before handing down a death sentence.
To make their argument, Christian's defense team called a clinical psychologist who testified, in essence, that jurors get that question wrong, because defendants sentenced to death aren't more violent on death row.
"They get to then promote this depraved human mind. That it's really all about not what will happen in some context, it's all about what's in their heart, what's that person like, what's the person's disposition," argued Dean Smith, one of Christian's defense attorneys.
Smith reminded Multnomah County Judge Cheryl Albrecht of what their expert testified to during the previous two days of hearings: that those are not things science can address.
"It's not something any of us can really address because it's asking us to contemplate some fictional scenario where a person doesn't even live in our real world, but just as a depraved heart and therefore we need to treat bad people in a certain way and the state's solution would be to kill the person," Smith argued.
In Oregon, an aggravated murder conviction carries the death sentence. Defendants convicted of aggravated murder can also be sentenced to "true life" in prison meaning there's no possibility of parole or a 30-year sentence before they're eligible to apply for parole.
Prosecutors argued the defense was making a scientific argument when jurors would, in their view, be facing a series of moral questions; ones supported by higher courts.
"Let's be clear on the issue of question two and what the defense is asking the court to do and that's asking the court to overrule U.S. Supreme Court and Oregon Supreme Court precedent," said Jeffrey Howes, first assistant to the district attorney.
Christian, who attended three days of pre-trial hearings, sat quietly and stared at Howes as the prosecutor addressed the judge.
Howes said the state intended to introduce evidence of Christian's past behavior, "in order to demonstrate there is a possibility that he would commit criminal acts of violence in the future."
He said the defense was creating a false construct for the judge.
"Do jurors sometimes get it wrong?" Howes said. "I suppose in a sense they do."
But he quickly pointed out that 25 percent of people on Oregon's death row committed a homicide while in custody.
Deputy District Attorney Ryan Lufkin added that what jurors were being asked wasn't a scientific question.
"We are dealing with what I view to be four moral questions about the defendant," he said. "The first being whether or not he acted deliberately, the second being whether he is a dangerous person who will engage in future violence, the third being whether or not he was provoked by the victim and the fourth being whether or not he should receive the death penalty — all of which are judgements jurors make every day."
He said the Supreme Court — "both of them" — have ruled this is not scientific.
"So we must accept that to be true," Lufkin said. "It is a moral question about this particular defendant. And whether or not as he sits there in front of the jury he possesses dangerousness in the lay term of art."
Albrecht was faced with more than 50 motions during the three days of pre-trial hearings. Most she'll issue written orders on in the coming weeks.
Jury selection in Christian's trial is expected to start in mid June.