The other bomb case -- the Woodburn bank bombing -- has ended with the jury recommending death sentences for both Joshua and Bruce Turnidge. This isn't all that surprising, considering that they built a bomb that ultimately killed two police officers. Only one aggravating factor is required for a charge of aggravated murder, but in this case, there were three: use of an explosive device, multiple deaths, and death of police officers. See ORS 163.095.
At the penalty phase, the jury is to answer:
(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;
(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and
(D) Whether the defendant should receive a death sentence.
ORS 163.150. In addition:
The court shall instruct the jury to consider, in determining the issues in paragraph (b) of this subsection, any mitigating circumstances offered in evidence, including but not limited to the defendant’s age, the extent and severity of the defendant’s prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed.
Let me first say that from reading the news accounts of the trial and penalty phase, I think there's more than enough evidence from which the jury could have concluded that death is an appropriate sentence for each defendant. There was some dispute about what caused the bomb to go off, whether it was set off by the defendants by remote control or by the police bomb technician's attempt to disarm it. But the jury could have resolved that against the defendants.
That said, there was a line of evidence introduced against them that I found disturbing:
Pat Turnidge testified about being in the cell phone tower construction business with Joshua and Bruce Turnidge. He is Joshua Turnidge's uncle and Bruce Turnidge's brother.
At one point, Joshua Turnidge had taken one of his checks, wrote it out for thousands of dollars, signed his uncle's name and cashed it. A friend of Joshua's testified that Joshua felt he was owed the money for his work.
Although Pat Turnidge initially called police, he and his brother decided to drop the charges.
Other witnesses described a litany of money troubles that Turnidge faced.
One couple, Lawrence and Dolores Benedict, testified about lending him $30,000 in February 2007. They met Turnidge at the restaurant where they ate breakfast and he told them that he needed money for a construction job in California. He said he would repay them with 25 percent interest.
Lawrence Benedict testified that he brushed aside the offer, saying Turnidge could repay just the principal. But Turnidge never paid them a dime, he said, and the couple would see him continue to enter the restaurant, play video poker and act as if nothing had happened.
Turnidge appeared to have lied on his tax returns, said Marion County Detective Mike Myers, the lead investigator in the bombing. Computer files showed Turnidge's 2007 federal and state tax returns in which he listed himself and his fiancée, Lewis, as a married couple filing jointly, although the two never married.
Another former girlfriend, Victoria Kellner, testified that he "very consistently" had money problems and intimated that he may have taken money that belonged to one of her sons in 2006.
She said her son had received $50 for Christmas and asked Turnidge where he should hide it. But as Turnidge and Kellner were breaking up, Kellner's son realized his money was missing. They never found it, she said.
Turnidge resorted to trying to make money through a chain letter, she said. The letter called for sending the letter out to 200 people and asking them to send back $1, she said. Turnidge set up a post office box and had her twin boys stamp envelopes for the effort, she said.
Joshua Turnidge is clearly a "bad" guy. He cheats, he swindles, perhaps he even stole money from a girlfriend's son. But none of that seems relevant to the question of "[w]hether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society." True, society includes prison society, so it's legal to consider the threat that he would pose to other inmates. But it's a threat of violent crimes, not crimes of fraud.
Now, the statute does say that the jury can consider "the extent and severity of the defendant’s prior criminal conduct," which seems to open the door to this sort of stuff. But that direction is found in a provision concerning mitigating evidence. The statute provides a non-exclusive list of such mitigating evidence -- age, prior criminal conduct, and any mental or emotional pressure.
Granted, it's hard to see how prior criminal conduct is mitigating, as opposed to aggravating, unless it's an absence of severe prior criminal conduct. Nonetheless, the placement of that item within a provision regarding mitigation suggests that it's for the defendant to make use of it if he can find a way that it helps him. It's altogether different for the prosecution to use it against the defendant as an aggravating factor.
It's troubling to me because it sounds like the prosecution argued, in part, that Joshua Turnidge should be executed because he's tried to rip people off in the past. Whatever else one thinks of the death penalty, it seems to me that the reasons for imposing it should relate to future dangerousness -- dangerousness in the sense of violent crimes.