Running v. Kelly, 475 P.3d 450

Background

In 1998 Running killed two women, was convicted of two counts of aggravated murder and one firearms offense; he received death for one murder and life without parole for the other.
At penalty phase the jury had to find a probability that Running would commit future violent acts constituting a continuing threat to society before a death sentence could be imposed (ORS 163.150 (1997)).
The state emphasized past violent conduct as the best predictor of future dangerousness; defense presented prison Captain Hepler to describe prison controls but did not call a forensic expert on future dangerousness.
Post-conviction, Running presented Dr. Thomas Reidy, a forensic psychologist, who opined that (1) long-term prisoners have relatively low base rates of "serious" institutional violence, (2) context matters and community violence does not reliably predict prison violence, and (3) jail misconduct poorly predicts prison behavior.
The post-conviction court found trial counsel’s failure to call an expert was constitutionally deficient but concluded Running failed to show prejudice (only a mere possibility of a different result).
The Court of Appeals reversed on prejudice: it held Running showed "more than mere possibility" that expert testimony on future dangerousness would have tended to affect the penalty-phase outcome and remanded with instructions to vacate the death sentence.

Issues

Issue	Plaintiff's Argument (Running)	Defendant's Argument (Kelly)	Held
Whether counsel’s failure to call an expert on future dangerousness prejudiced Running under state constitutional standard	Expert evidence (Reidy) would have rebutted prosecutor’s reliance on past conduct and context claims and tended to affect jurors’ verdict	Reidy’s testimony was limited to "serious" violence and thus didn’t speak to statutory "criminal acts of violence;" not likely to affect jury	Held for Running: prejudice shown — more than mere possibility that expert testimony would have changed penalty outcome
Whether Reidy’s focus on "serious institutional violence" matched ORS 163.150(1)(b)(B)’s broad reference to criminal acts of violence	Reidy’s contextual and base-rate evidence would still undermine the prosecutor’s central premise that past community violence predicts future prison violence	Superintendent contended mismatch made Reidy irrelevant to statutory inquiry	Held: even if narrower in parts, Reidy’s testimony was sufficiently probative to have tended to affect the jury’s assessment
Whether Reidy’s statistical methodology and limited data made his opinion unreliable for jurors	Any statistical limits go to weight and cross-examination, not exclusion; his evidence was nevertheless pertinent to juror assessment of state evidence	Superintendent argued the statistics rested on unrealistic assumptions and would have little persuasive value	Held: limitations were for cross-examination; testimony could have provided meaningful "ammunition" to defense and tended to affect result
Whether introducing expert evidence might have been cumulative or even harmful to Running	Much of Reidy’s evidence was noncumulative (context, base rates, limits of jail conduct as predictor) and would have aided defense	Superintendent suggested the evidence might have emphasized Running’s dangerousness or otherwise harmed him; post-conviction court noted this but found no specific showing	Held: court rejects cumulative/harm argument as dispositive — insufficient to defeat prejudice showing

Key Cases Cited

State v. Running, 336 Or. 545 (Or. 2004) (prior direct-appeal opinion setting out facts and convictions)
Green v. Franke, 357 Or. 301 (Or. 2015) (state prejudice standard: show more than mere possibility that counsel’s omission tended to affect result)
Stomps v. Persson, 305 Or. App. 47 (Or. Ct. App. 2020) (legal question of prejudice may depend on predicate facts; discusses "tendency to affect")
McMillan v. Kelly, 304 Or. App. 299 (Or. Ct. App. 2020) (ineffective-assistance framework: performance and prejudice elements)
Richardson v. Belleque, 362 Or. 236 (Or. 2017) (failure to obtain records or consult an expert can be prejudicial where information would provide additional "ammunition" in sentencing)
Lichau v. Baldwin, 333 Or. 350 (Or. 2002) (post-conviction evidence need not be conclusive to tend to affect trial result)
Johnson v. Premo, 361 Or. 688 (Or. 2017) (strategic choices at trial can affect penalty-phase arguments; alternative strategy may have laid better groundwork in mitigation)
State v. Tucker, 315 Or. 321 (Or. 1993) (interpreting the scope of "criminal acts of violence" for sentencing context)