Whether a trial court may impose a death sentence during a statewide moratorium on executions

Question Presented: The Eighth Amendment bars a jury from imposing a death sentence if it “has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v Mississippi, 472 US 320, 328-329, 105 S Ct 2633, 86 L Ed 2d 231 (1985). Throughout petitioner’s trial, Oregon’s governor maintained a moratorium on executions. The jury in this case would have thus been aware that it could impose a death sentence without any immediate chance of it being carried out. May a trial court impose a sentence of death during the pendency ofa statewide moratorium on carrying out executions? Second Question Presented: After the entry of judgment and during the pendency of petitioner’s direct appeal, the trial court learned that an alternate juror had sent an email before trial stating that she had obtained extrajudicial information about the case through her work as a clerk at the trial court. The alternate juror stated in the email that petitioner “needs to die.” During voir dire, she lied to the court by denying that she had learned extrajudicial information or had formed an opinion about the case. When her misconduct came to light and the court questioned the jurors about it, some could not remember whether the alternate had spoken to them about the case. Has the state met its burden of proving that juror misconduct was not prejudicial, when some of the jurors could not remember whether the misconduct affected the verdicts? i