The outcomes of two high-profile cases frustrate both critics and supporters of the capital punishment process

By Ashbel S. Green - The Oregonian

Sunday, September 26, 2004

Jesse Lee Johnson is far from a household name.

Outside Salem, few people noticed last March when a Marion County jury convicted Johnson of aggravated murder for stabbing a woman to death in her apartment during a robbery.

But it was big news last week when Ward Weaver and Edward Morris pleaded guilty -- Weaver to sexually assaulting and killing two Oregon City girls, and Morris to murdering his wife and three children in the Tillamook State Forest.

Yet it is Johnson, a relatively obscure murderer, who is the newest resident of Oregon's Death Row while two of the most notorious killers in recent state history got plea bargains that spared their lives.

The disparate outcomes of the cases stem in large part from the fact that Johnson maintained his innocence while Weaver and Morris were willing to admit their guilt.

But there is more to it.

Capital punishment opponents say the three cases demonstrate that Oregon's death penalty system is arbitrary and unfair.

"I just don't see how there's any way within human ability to fairly and rationally separate who should live from who should die in a fair, consistent and appropriate manner," said Richard L. Wolf, a Portland criminal defense lawyer who has handled several death cases.

Supporters of capital punishment are unhappy that the system has been ineffective.

Since voters reinstated the death penalty nearly 20 years ago, the state has executed two of the 51 men who have been sentenced to death.

And those two are considered "volunteers" because they abandoned their appeals.

More than half of the men sentenced to death have had their sentences reversed on appeal, several more than once. Of the 28 men who remain on Death Row, four were originally sentenced more than 16 years ago, yet none has an execution date.

"I think anybody who supports the death penalty for people like Weaver, people like Morris -- I think you should be frustrated and angry with government and the judiciary in this state for not carrying out the will of the people in a timely manner," said Steve Doell, a crime victims advocate.

Killer's appeals continue

No one has lived on Oregon's Death Row longer than Jesse Clarence Pratt.

More than 18 years after the former Seattle trucking company owner sexually assaulted, maimed and killed Carrie L. Love near Klamath Falls, Pratt, now 70, continues to appeal his aggravated murder conviction and death sentence.

"I think it's a travesty," said Love's mother, Connie. "It's just a matter of legal mumbo jumbo. He did it. And all it's doing is keeping a worthless piece of humanity alive while what he did to Carrie is there every day."

For capital punishment supporters, Pratt's case illustrates the frustrating pace of death penalty appeals.

A Klamath County jury sentenced him to death in 1988. But the Oregon Supreme Court in 1990 ordered a new trial, saying prosecutors had improperly introduced evidence of his criminal history.

Pratt was resentenced to death in 1991. Two years later, the Oregon Supreme Court upheld his conviction.

Pratt's case really slowed down in the next phase of the appeals process, post-conviction relief. This is where inmates argue that their lawyers' inadequate defense denied them their constitutional right to a fair trial.

It took nearly six years before a Marion County judge rejected Pratt's petition for post-conviction relief in 1999.

Pratt appealed. His attorney said he needed to file a 260-page appellate brief. The state Court of Appeals balked, saying 150 pages were more than enough. Pratt appealed that decision. The Oregon Supreme Court agreed to review his appeal although it eventually rejected his claim in 2002.

Still, that detour added about two years to his appeal, which is still pending before the Oregon Court of Appeals.

Clackamas County District Attorney John Foote said the likelihood of lengthy appeals weighed heavily on the relatives of Ashley Pond and Miranda Gaddis, Weaver's victims.

"I don't believe they wanted to deal with this case 20 years from now," Foote said. "And it's not fair that they should have to deal with it 20 years from now."

Court addresses delays

Oregon Supreme Court Justice Michael Gillette, the court's point man on the death penalty, said he and his colleagues have taken steps to speed up the time between presiding over oral arguments and issuing opinions. In addition, Gillette said that about a year ago he told lawyers who handle death penalty appeals that they had to make them a bigger priority.

Still, Gillette said it makes no sense to rush appeals if it causes errors that lead to reversals in the federal courts.

"Doing it slowly once appears to be the right thing to do," Gillette said. "Doing it slowly but faster than we've been doing it is what we're trying to accomplish."

As much as supporters assail the pace of appeals and the reversal rate, opponents bemoan what they see as a fundamentally unfair system in which prosecutors use the threat of a death sentence to force plea bargains.

Noel Grefenson, who represented Jesse Lee Johnson, said his client refused a plea bargain because he maintained his innocence.

In effect, the system in Oregon favors some of the worst killers if they are willing to deal.

"You can end up with a Green River Killer who kills 40 people who gets life, and a grocery robber who kills the clerk and won't take a plea and gets a death sentence," Grefenson said.

In addition, similarly horrific crimes receive different treatment: While Christian Longo is on Death Row for killing his wife and family, Edward Morris isn't.

Professor, prosecutors divided

William Long, a professor at Willamette Law School, said the disparate treatment of cases is absurd.

"Oregon has shown for all of us to see, through the plea bargains of Edward Morris and Ward Weaver, that the administration of the death penalty in Oregon is now capricious," Long wrote in an article published this week on his Web site. "As such, the only responsible civil action at this point is for the citizens of Oregon to abolish the death penalty."

Clatsop County District Attorney Josh Marquis, the state's most outspoken death penalty supporter, said abolishing the death penalty would be a mistake.

"The only reason that Morris and Weaver pleaded guilty is because the death penalty hung over their heads," Marquis said. "And they knew that both of the prosecutors were willing to seek it."

Stephen Dingle, the Marion County deputy district attorney who prosecuted Jesse Lee Johnson, agrees. Although he does not know prosecutors' thinking behind the Weaver and Morris deals, he cautions against resorting to plea bargains because the appeals process is taking too long.

Dingle, who prosecutes inmates who commit crimes at the Oregon State Penitentiary in Salem, said many inmates serving life sentences figure they have nothing to lose. Dingle won a death sentence in 2000 against David Cox, an inmate who was serving what amounted to a life sentence when he killed another convict.

"I think that what is perhaps lost on some of the people around the state is that, unfortunately because of where we are, we see the result of these plea bargains," Dingle said. "In many of these cases you create very dangerous inmates."

Because the jury found defendant guilty, we state the facts in the light most favorable to the state. State v. Gibson, 338 Or 560, 562, 113 P3d 423, cert den, 126 S Ct 760 (2005). On March 20, 1998, the victim was found lying on her living room floor, stabbed to death. An acquaintance of the victim told the police that defendant had been in the victim's home the day before she was murdered. Another witness reported seeing a person who matched defendant's appearance walk away from the victim's home shortly after the murder. Police officers later found defendant's fingerprints in the victim's home.

On March 27, seven days after the victim's death, two police officers arrested defendant for a probation violation. When the officers arrested him, they seized his jacket, which was similar to the one that the person walking away from the victim's home had been wearing. Before leaving with the officers, defendant put on a pair of heavy work boots. One officer noticed that the pattern on the soles of defendant's boots was consistent with a shoe impression found in blood at the crime scene.

After they arrived at the police station, the officers advised defendant of his Miranda rights and spoke with him concerning the murder. During their conversation, defendant admitted that he had known the victim but maintained that he never had been to her home even after the officers told him that his fingerprints had been found there. After the interview, the officers seized defendant's clothing and boots, placed them in an evidence locker, and booked defendant into the Yamhill County Jail on the probation violation charge.

One of the officers interviewed defendant a second time on April 17, 1998. By that time, the police had spoken with a number of people who had reported seeing defendant in possession of the victim's jewelry shortly after her death. One of those witnesses told the police that defendant had showed him some of the victim's jewelry and then said, "I offed the bitch to rob her." When the officer asked defendant whether the witness was lying when he reported that defendant had made that statement, defendant replied, "No, he's not."

The state charged defendant with aggravated murder on June 25, 1998, and trial was set to begin on September 8, 1999. Before trial, defendant moved to suppress some of the state's evidence, including the clothing and boots that the officers had seized during their first interview with him. On August 20, 1999, the trial court suppressed that evidence, reasoning that the officers did not have a warrant to seize defendant's clothing and that the inevitable discovery doctrine did not apply. The state pursued two pretrial appeals regarding the seized clothing. Neither appeal was successful. The case against defendant went to trial on March 8, 2004, and the jury found him guilty of aggravated murder and sentenced him to death.

As noted, defendant assigns error to 23 of the trial court's rulings. Among other things, defendant argues that the trial court erred in denying his motion to prevent the officers from commenting at trial on his invocation of his constitutional right to silence, in denying his motions to dismiss the charges because the state denied his statutory and constitutional rights to a speedy trial, and in ruling that, if defendant presented expert testimony regarding footprints left at the crime scene, he would open the door to the introduction of evidence that the trial court had suppressed. We discuss those rulings below and affirm without further discussion the remainder of the rulings to which defendant assigns error.

We begin with defendant's argument that, at trial, the officers impermissibly commented on the exercise of his right to remain silent. Defendant filed a pretrial motion to suppress statements that he had made to police officers on March 27 and April 17, 1998. He contended that he had not knowingly and intelligently waived his rights under Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966). At the hearing on that motion, the state offered evidence that the officers had advised defendant of his Miranda rights and that he had spoken with them after receiving that advice.

The evidence at the hearing also revealed that defendant had not answered all the officers' questions. Sometimes, defendant had responded, "I don't know what you're talking about." Other times, defendant would pause, the officers would repeat or clarify the question, and then defendant would respond. Still other times, defendant would simply remain silent in response to a question. Ultimately, defendant told the officers that he did not want to talk to them anymore and, after that point, made no further statements.

After the hearing on his suppression motion, defendant filed a supplemental memorandum based on the officers' testimony during the hearing. In that memorandum, defendant identified specific instances in which he had remained silent in response to the officers' questions. Defendant argued that evidence of his silence was not admissible for two reasons. First, he contended that his silence did not qualify as an adoptive admission under the Oregon Evidence Code. Alternatively, he argued that introducing evidence of his silence at trial would be an impermissible comment on the exercise of his constitutional right to remain silent.

The state argued, in response to the evidentiary issue raised in petitioner's supplemental memorandum, that it intended to introduce evidence of his silence only for the purpose of proving that his statements to the officers were voluntary. On the constitutional issue, the state argued that defendant's silence, when viewed in context, did not constitute an invocation of his right to remain silent. The state reasoned:

"Your honor, I guess what it boils down to on this issue is that the State is asking you to look at all of the circumstances, to recall that the defendant was able to and did exercise certain of his rights or at least rights that he perceived that he had and to, from that, infer that the defendant was not engaging in an invocation of his right to silence when he was not responding to certain questions but was rather simply pausing before answering questions and thinking about them, which is really what I believe the record reflects * * *."

The trial court accepted the state's argument on the constitutional issue and "f[ound] that the defendant did not implicitly invoke his right to remain silent." The court was concerned, however, that testimony regarding defendant's silence, even if relevant to prove voluntariness, was more prejudicial than probative. Applying that standard, the trial court ruled that two instances of defendant's silence in response to the officers' questions were admissible but that the other instances of silence that counsel had identified were not.

At trial, the officer who had interviewed defendant did not testify regarding the two instances of silence that the trial court had ruled would be admissible, nor did he testify regarding any other instance of silence that defendant had identified in his supplemental memorandum. Rather, the officer testified as follows:

"Well, the first thing that I told [defendant] was -- was that we've continued to investigate this; we've developed more information. And I just simply told him 'I don't have any doubt you were there. I think you were there at the time of the homicide. And -- you know -- the issue with us is that we at this point need to know what your involvement is.' While I'm talking with him saying, 'Hey. I need to talk to you about a murder,' he is almost casual in his appearance. He's got his arms crossed. He's looking away, down, kind of off to the side of his lap. He would be nonresponsive to some statements and questions, so I'd have to repeat them to get him to respond to me. I told him that -- you know -- 'Hey. I really need to talk to you about this situation. And I know you were there when this happened.' And his response to that was to say, 'I don't know what you're talking about.' And I would follow that up with, 'Well, I'm talking about a murder. I'm talking where someone has been stabbed to death. Someone has stolen her jewelry, and people are saying you're the one involved in that.' And he would say, 'I don't know what you're talking about.'"

The issue that defendant raises on review is narrow. He does not argue that, when he remained silent in response to the officers' questions, he invoked his right to silence and all questioning therefore had to stop. Cf. State v. Longo, 341 Or 580, 592-93, 148 P3d 892 (2006) (recognizing that selective refusal to talk on some subjects did not foreclose questioning on other subjects). Rather, he argues that his intermittent silences were selective invocations of his constitutional right to remain silent and that, when the officer testified at trial that he had remained silent in response to the officers' questions, the officer impermissibly commented on defendant's invocation of his constitutional right to remain silent.

One difficulty with defendant's argument is the factual premise that underlies it. The officer did not testify at trial that defendant remained silent in response to his questions. Rather, he testified that defendant hesitated and then answered. The officer told the jury that defendant "would be non-responsive to some statements and questions, so I'd have to repeat them to get him to respond to me." The officer went on and set out defendant's responses to his questions -- responses in which defendant denied any knowledge of the events to which the officer referred. Far from testifying that defendant remained silent in the face of questions, the officer testified only that defendant paused before responding.

At the hearing on defendant's supplemental memorandum, defendant's counsel explained that he purposefully had omitted from the memorandum "situations of testimony where the defendant sat, thought, and then gave a response." Defense counsel added, "If the State wants to introduce evidence during this trial that defendant sat and thought about things before he answered, I don't see a problem with that." It appears from the limited testimony that the officer gave at trial that the state did precisely what the defense invited it to do; it offered testimony that, in response to the officer's questions, defendant sat, thought, and then responded. In any event, because the officer did not testify that defendant remained silent in response to his questions, his testimony was not a comment on defendant's silence, much less a comment on defendant's exercise of his constitutional right to remain silent.

Defendant's fifth and sixth assignments of error challenge the trial court's rulings denying his two motions to dismiss the case for lack of a speedy trial. As noted, the state indicted defendant for aggravated murder on June 25, 1998. On July 13, 1999, defendant filed a motion to suppress several pieces of evidence, including the clothing and boots that the officers had seized during their first interview with him. On August 20, 1999, the trial court suppressed the clothing and boots, finding that "the detectives seized defendant's clothing without a warrant and without exigent circumstances." The court also rejected the state's argument that it inevitably would have obtained the clothing, ruling that "inevitable discovery [was] inapplicable to the facts and evidence in this case."

On September 30, 1999, the state appealed the trial court's pretrial order. The state conceded that the officers had obtained the evidence illegally but argued that the trial court erred in concluding that the inevitable discovery doctrine did not apply. State v. Johnson, 177 Or App 244, 247, 35 P3d 1024 (2001) (Johnson I). The state contended that the jail staff would have inventoried (and thus seized) defendant's clothing at the jail if the officers had not illegally seized the clothing earlier. Id. at 250. It followed, the state reasoned, that the inevitable discovery doctrine applied. Id. The Court of Appeals disagreed, concluding that, even if jail staff would have inventoried defendant's clothes after his arrest and seized them temporarily for that purpose, the state had failed to show that the jail staff would have seized that clothing for all the purposes of a criminal investigation, such as forensic testing. Id. at 252. Accordingly, on October 17, 2001, the Court of Appeals affirmed the trial court's order suppressing the evidence.

While the state was pursuing its appeal, it applied to the trial court for a search warrant authorizing the seizure of the boots and clothes. That court issued the warrant, authorizing the police to seize and analyze the clothing "located at the Salem Police Department." After the state lost its appeal, it did not petition for review of the Court of Appeals decision. It chose instead to rely on the seizure pursuant to the warrant. Defendant then moved to suppress the evidence seized pursuant to the warrant. He argued that the police officers were able to locate the clothing and boots for the purpose of executing the warrant only because of their earlier, illegal seizure of that evidence. The trial court agreed and again suppressed the evidence.

On October 18, 2002, the state appealed directly to this court from the second order suppressing evidence. On appeal, the state argued that the officers had an independent source for the information that led to the issuance and execution of the warrant. State v. Johnson, 335 Or 511, 519, 73 P3d 282 (2003) (Johnson II).

On July 24, 2003, this court upheld the trial court's order. See id. at 511. The court began by examining the question, previously unanswered in state law, of how the burdens of production and persuasion should be allocated when the state claims that a warranted search or seizure is not the product of an earlier illegality. Id. at 519-21. This court concluded that, if a defendant meets the burden of "establishing a 'factual nexus' between the unlawful police conduct and the challenged evidence," then the burden of persuasion shifts to the state to prove that the evidence was not tainted by the unlawful conduct. Id. at 520-21.

After this court determined that the trial court correctly had allocated the burdens of production and persuasion, it considered whether the evidence supported the trial court's conclusion that the state had failed to meet its burden of persuasion that the seizure of the evidence pursuant to the warrant was not a product of the earlier illegality. Id. at 522-23. On that issue, the court reviewed the evidence before the trial court and concluded that, although the trial court could have found that the state had met its burden of persuasion, it could not say as a matter of law that the trial court erred in finding otherwise. Id. at 523-26. Accordingly, the court affirmed the trial court's order suppressing the evidence that the state had seized pursuant to the warrant. Id. at 526.

Immediately after this court issued its decision in Johnson II, the trial court offered defendant a trial date of November 10, 2003. Defendant agreed to postpone the trial further, pushing it back to February 2004. In October 2003, defendant filed a pretrial motion to dismiss for lack of a speedy trial, arguing that the state had violated his rights under ORS 135.747, Article I, section 10, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution.

After a hearing on the motion to dismiss, the trial court found that the "lion's share" of the pretrial delay had been caused by two unsuccessful and "unduly lengthy" state's appeals. The court noted that the first appeal took nearly two years and found that the state's attorney assigned to the case had failed to give the appeal the "highest priority," working instead on "a number of less serious cases in lieu of this case." The court found that the second appeal "was poorly timed, of questionable value and added eighteen months to an already unnecessarily long pretrial delay." Although the court questioned the value of the state's two pretrial appeals, it denied defendant's motion to dismiss. It found that defendant had failed to prove that the delay had prejudiced him. The court reasoned:

"Although the length of the delay and the reasons for the delay analysis suppor[t] Defendant's motion, the Court finds the prejudice prong has not been met. Facts supporting a finding of actual prejudice are likely to become apparent only following trial, when a comprehensive analysis can be made of the evidence still available following delay."

After the guilt phase but before the penalty phase of his trial, defendant renewed his motion to dismiss, arguing once again that the state had denied his right to a speedy trial. Defendant based his motion in part on what he characterized as "the testimony contained in the record regarding numerous instances of faded or absent memories of witnesses." He also based it on missing evidence regarding cigarette butts and a photo throw-down. In support of his motion, defendant filed an affidavit describing the ways in which the delay had "substantially affected [his] physical and mental well-being." The affidavit referred, among other things, to trouble sleeping due to the stress of being in jail, weight loss due to anxiety, the loss of "important family members" and "all hope," and trouble concentrating on helping his attorney with the case.

The trial court denied defendant's second motion for the same reasons that it had denied his first motion -- the failure to prove prejudice. On that point, the court found that defendant's anxiety was not atypical for someone facing the death penalty, that defendant was not having trouble sleeping, and that he had not demonstrated that the evidence that he identified as missing or lost was either material or favorable. On review, the parties renew the arguments that they made below.

When a defendant charged with murder raises statutory and constitutional speedy trial claims, we reverse our usual order of analysis and consider the constitutional claims first. State v. Harberts, 331 Or 72, 81, 11 P3d 641 (2000). We do so because a defendant who prevails on a constitutional speedy trial claim is entitled to dismissal with prejudice. Id. When a defendant who is charged with murder prevails on a statutory speedy trial claim, he or she is entitled only to dismissal without prejudice and faces the prospect of another prosecution for the same crime. Id. Accordingly, we begin with defendant's state constitutional claim.

Article I, section 10, of the Oregon Constitution provides, in part, that "justice shall be administered * * * without delay." Even though that provision refers broadly to the administration of justice, this court has held that it is "similar" to the command contained in the Sixth Amendment that, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy * * * trial." State v. Mende, 304 Or 18, 22, 741 P2d 496 (1987); see also Harberts, 331 Or at 81-86 (describing the two provisions as substantially the same). The two provisions are not identical, however. See Haynes v. Burks, 290 Or 75, 80, 619 P2d 632 (1980) (so noting). For instance, a defendant's failure to invoke his or her right to a speedy trial is neutral in the state constitutional analysis while the failure to invoke the federal right can weigh against a defendant. Id.

Even though a pretrial appeal is part of the administration of justice, an undue and "wholly unjustified" delay in prosecuting a pretrial appeal can result in the denial of a defendant's rights under Article I, section 10. See Haynes, 290 Or at 90 (so stating); accord Harberts, 331 Or at 89-91. In assessing the effect of the delay, the court considers both the length of the delay and the reasons for it. When the state pursues a reasonable pretrial appeal with diligence, the delay will weigh only slightly against the state. See Harberts, 331 Or at 90 (stating proposition). On the other hand, the delay resulting from a pretrial appeal will weigh more heavily against the state if considerable delay already has occurred, if the state lacks a "strong justification" for the appeal, and if the state fails to give the appeal sufficient priority. See id. at 91-93 (stating those propositions).

In determining whether a defendant's constitutional right to a speedy trial has been impaired sufficiently to warrant dismissing the charges against him or her, a court also must consider the prejudice to the defendant. State v. Tiner, 340 Or 551, 555, 135 P3d 305 (2006). More specifically, a court

"must assess prejudice to the defendant in light of the interests that the speedy-trial requirement was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize the anxiety and concern of the criminally accused; (3) and to limit the possibility that the defense will be impaired."

Id. When a defendant proves that "the delay caused a 'reasonable possibility of prejudice' to the ability to prepare a defense," that will weigh in the defendant's favor. Harberts, 331 Or at 86 (quoting State v. Ivory, 278 Or 499, 508, 564 P2d 1039 (1977)); see also Haynes, 290 Or at 82 (indicating that something more "concrete" is called for if trial has occurred). However, when the value of unavailable evidence is only speculative, the unavailability of that evidence will not factor significantly in the analysis. See Tiner, 340 Or at 557-58 (loss of witness's unknown testimony not sufficient to warrant dismissing charges); State v. Emery, 318 Or 460, 473-74, 869 P2d 859 (1994) (same).

This court is bound by a trial court's findings of historical fact if there is evidence in the record to support them. Johnson II, 335 Or at 523. Accordingly, the trial court's findings of fact concerning the length and reasons for the delay, as well as the type, level, and cause of any anxiety that defendant suffered, are binding if supported by evidence. See Harberts, 331 Or at 94 (so indicating). How those findings of historical fact factor into the constitutional analysis presents a question of law. See id. at 91-92 (so indicating).

In this case, the grand jury indicted defendant on June 25, 1998. See State v. Vasquez, 336 Or 598, 612-13, 88 P3d 271 (2004) (explaining that the period for assessing a speedy trial claim begins when the state initiates criminal charges against a defendant by indictment or its equivalent). Trial began on March 8, 2004. The period between indictment and trial was five years and eight months. Defendant does not argue that the state intended to hamper his defense through delay or that the delay was so long that it is sufficient, without more, to establish a violation of his speedy trial rights. See Harberts, 331 Or at 86 (recognizing those bases for proving a speedy trial violation). The delay, however, is "substantially greater than the average." See Mende, 304 Or at 23-24. Accordingly, we consider the reasons for the delay and the prejudice to the defendant, bearing in mind that the length of the delay weighs against the state. See id. (following similar course).

We accept the trial court finding of historical fact that the "lion's share" of the delay in this case stems from the state's two appeals. The question of law for this court, however, is whether the state acted unreasonably and without a sufficient justification in pursuing the two appeals. See id. at 92-93 (reviewing those issues as questions of law). On that issue, the trial court reasoned that the appeals were "unduly lengthy" due, in part, to the state's failure to prioritize its first appeal. It is true that the state could have pursued the first appeal with greater diligence; however, the state's attorney moved for only two 28-day extensions of time in which to file the opening brief in part because of the other cases for which she was responsible. We cannot say that the state took an unreasonably long time to brief the case or contributed unduly to the delay. Indeed, defense counsel sought more than three months of extensions to file the answering brief and added to the delay with a cross-appeal that defendant ultimately abandoned. To be sure, part of the delay also derived from the state's motion to supplement the record and its motion for a limited remand. The purpose of those motions, however, was to speed up the process, not slow it down.

With regard to the second appeal, the parties pursued it with exemplary diligence. The state moved for one seven-day extension of time in which to file its opening brief, and defendant did not ask for any extensions of time. We do not discount the length of time that the appellate process took; however, we cannot say that the state took an unreasonable amount of time or acted in a dilatory manner.

We also disagree with the trial court's implicit conclusion that the state acted unreasonably in pursuing the two appeals. The second appeal presented unresolved issues of state law, and its outcome was far from a foregone conclusion. See Johnson II, 335 Or at 520 (explaining that the allocation of burdens of production and persuasion presented an unresolved issue of state law). If the trial court had erred in placing the burden of persuasion on the state, then the factual finding on which its order depended would have had no force. We also conclude that the state acted reasonably in pursuing its first appeal. Not only had the trial court based its ruling on a statute that had been superseded, but the appeal presented a novel issue of state law -- how the inevitable discovery doctrine applies to unlawful seizures as opposed to unlawful searches. Johnson I, 177 Or App at 248-50. The fact that the state did not prevail on the two appeals does not mean that it acted unreasonably in pursuing them.

In sum, looking at the length of the delay and the two appeals responsible for most of it, we conclude that the length of the delay weighs against the state but that the state did not act unreasonably in taking or pursuing the two appeals. See Haynes, 290 Or at 86-87, 90-91 (rejecting speedy trial claim in case involving two pretrial appeals); cf. Tiner, 340 Or at 556-57 (concluding that little justification existed for delay caused by an unwarranted appeal); Harberts, 331 Or at 92, 98 (finding speedy trial violation where state pursued an appeal with little likelihood of success, after much delay already had occurred, and then failed to prioritize that appeal and ultimately abandoned it).

The final factor is prejudice to the defendant. On that point, defendant argues that he suffered prejudice to all three interests protected by the speedy trial requirement in the form of lengthy incarceration, anxiety, and impairment of his defense. With regard to the first interest, the length of the pretrial incarceration in this case cuts against the state. With regard to the second interest, the trial court found, in ruling on defendant's speedy trial motion, that he appeared "in good health without visible stress." Accordingly, the second interest does not advance defendant's speedy trial claim. See State v. Dykast, 300 Or 368, 378, 712 P2d 79 (1985) (reaching similar conclusion under comparable facts).

With regard to the third interest, defendant contends that, by the time of trial, several witnesses had forgotten critical facts and that their lost memories hampered his defense in two respects. Defendant's claims of trial prejudice arise from a related series of events. We first set out the trial testimony regarding those events. We then turn to the specific details that some of the witnesses could not remember and explain why we conclude that, considering the other evidence on the same points, the witnesses' inability to remember did not prejudice defendant.

At trial, Stacy Satter and Donald Blocker testified regarding defendant's attempts to trade jewelry and other valuables for methamphetamine shortly after the victim's death. Satter testified that, when she met defendant in a park, he had a backpack containing jewelry and a Citizens Band radio that he was trying to trade for drugs. Defendant initially had asked Blocker to make the trade. According to Satter, Blocker took the jewelry but not the radio to see if he could trade it for drugs. When Blocker's efforts proved unsuccessful, Satter took the jewelry and was able to trade it for a small amount of methamphetamine, which she brought back to defendant and Blocker.

Blocker testified consistently with Satter. He did not remember seeing a radio but testified that he had attempted to trade the jewelry unsuccessfully. He also testified that, in talking with defendant about where he had gotten the jewelry, defendant "said he offed the bitch for what he had" -- i.e., for the jewelry that he was trying to trade for drugs. Blocker testified, as Satter had, that she took the jewelry and was able to trade it for a small amount of methamphetamine, which he and defendant consumed.

Two other witnesses, Vicki Free and Earl Jones, testified regarding different encounters with defendant. While defendant was visiting Free's home shortly after the murder, he gave her two pairs of earrings, which were similar to earrings that the victim had owned. Jones was Free's fiancé. He was not present when defendant gave Free the earrings. However, Jones testified that he saw defendant later that same day. He noticed that defendant had some rings, an Elgin watch, and cell phones that he was trying to trade for drugs. Jones testified that Free had not been present and had not seen the watch but that he may have told her about it.

Defendant contends that, by the time of trial, Blocker and Free had forgotten critical details about those incidents that could have aided his defense. He notes that Free could not remember whether she had told the police that he had a watch and Blocker could not remember whether defendant had a Citizens Band radio that he was trying to trade for drugs. Defendant argues that, if Free and Blocker had remembered that he possessed that property in addition to the jewelry, the jury could have inferred that he trafficked generally in stolen property and that he had received the victim's jewelry in the course of that enterprise rather than as a result of killing her and stealing the property from her.

The initial difficulty with defendant's argument is factual. For example, he notes that, although Free testified that he had given her earrings shortly after the murder, she testified that she had not seen defendant with a watch and could not remember whether she had told the police that defendant had a watch that day. Even though Free did not remember telling the police that defendant had a watch, Jones told the jury that he had seen defendant with an Elgin watch, and his testimony provided the jury with the information that Free could not remember. Similarly, although defendant argues that Blocker could not remember whether defendant had a Citizens Band radio the day that he was trying to get Satter and Blocker to trade the jewelry for drugs, Satter remembered that he had a radio.

Even if some witnesses suffered a loss of memory, other witnesses testified to the same facts that defendant argues the jury should have heard. That evidence permitted defendant to argue that he came into possession of the victim's jewelry as a result of trafficking in stolen property generally and not as a result of killing the victim. Beyond that, the inference that defendant seeks to draw from the fact that he possessed other stolen property for trade -- i.e., that he came into possession of the victim's jewelry as a result of trafficking in stolen property -- seems somewhat strained in light of defendant's statement to Blocker that he came into possession of the jewelry as a result of "off[ing] the bitch."

Defendant also argues that Blocker's loss of memory barred him from impeaching Blocker's trial testimony. Blocker testified on direct examination that, in explaining the source of the jewelry, defendant had told Blocker that "he offed the bitch for what she had." Blocker acknowledged, on direct examination, that he had made contradictory statements to a defense investigator. Blocker testified that he had told the investigator that defendant had not "said these things" and that the police had threatened to charge him with aggravated murder. Blocker also explained on direct examination why he had made those statements to the investigator.

On cross-examination, defense counsel sought to impeach Blocker's testimony by asking him whether the investigator had asked certain specific questions and whether Blocker had replied either that defendant had denied being involved in the murder or that the detectives had threatened him. Blocker testified that he remembered some of the questions and answers, that he did not remember others, and that he might have made some of the statements but that he could not remember specifically whether he had done so. Defendant argues that Blocker's inability to remember all the specific questions that the investigator had asked and all the answers that he had given prevented defendant from impeaching Blocker's testimony.