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Blog Applying EED at Sentencing to Attempted Murder by: Ryan Scott • April 3, 2026 • no comments I. Extreme Emotion Disturbance It is a partial affirmative defense to murder in the second degree if the defendant was under the influence of extreme emotional disturbance (“EED”). ORS 163.115(1)(a). EED “constitutes a mitigating circumstance reducing the homicide that would otherwise be murder to manslaughter. . . .” ORS 163.118(1)(a). Although EED is an affirmative defense, it requires ten jurors to reject the defense. Richards v. Brown, 345 Or App 321 (2025) The difference between a murder in the second degree conviction and manslaughter in the first degree is stark. The former mandates a measure 11 sentence of life in prison, with the possibility of parole only after twenty-five years, and potentially later if any additional sentences are run consecutively. In contrast, manslaughter in the first degree is a ten year sentence. The logic behind the defense of EED is self-evident. A defendant who commits an intentional homicide under the influence of EED is simply less culpable than one who does not. There literally can be no other purpose for the enormous reduction in sentence. II. Proportionality, Measure 11 and Personal Characteristics that Make a Defendant Less Morally Culpable Article I, section 16, of the Oregon Constitution provides that “Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.” When a sentence is so excessively long compared to the defendant’s conduct that it violates Article, I, section 16, the appellate courts will reverse it. See Rodriguez/Buck, 347 Or at 58 (“[I]t is the role of the court to ensure that sentences conform to requirements that have been in our constitution for 150 years. And, when we conclude that, because of its length, a sentence is inconsistent with Article I, section 16, as we have on at least three occasions, we should hold that sentence unconstitutional.”). In Rodriguez/Buck, the Supreme Court identified three factors to consider when determining whether a sentence is unconstitutionally disproportionate: “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.” Id. When assessing the “offense” at issue, the court considers: “the specific circumstances and facts of the defendant’s conduct that come within the statutory definition of the offense, as well as other case-specific factors, such as characteristics of the defendant and the victim, the harm to the victim, and the relationship between the defendant and the victim.” Id. at 62. More recently, in State v. Gonzalez, 373 Or 248, 266, __ P3d __ (2025), the Supreme Court limited a trial court’s reliance on mental illness when determining the proportionality of a sentence. But more relevant to this case was the fact that the court explained how courts should identify, based on societal standards, those personal characteristics that merit a less serious punishment. As we have explained, Ryan did not simply rely on this court's own perception of a societal consensus that intellectual disability can, in some general sense, reduce a person's culpability. Rather, in applying the instruction from our case law to determine whether a sentence would "shock the moral sense of reasonable people," this court relied on "objective evidence of a societal standard" that supplied a basis to determine more precisely when an intellectually disabled offender's culpability is different from that of other offenders. Ryan, 361 Or at 624. As discussed, in Ryan, that objective evidence was the legislature's enactment of ORS 161.290, which provides that a person is not criminally responsible for any conduct that occurred when the person was under 12 years of age. Id. Id. at 265-266. Last month, the Court of Appeals applied the Supreme Court’s opinion in Gonzalez in order to remand a case to the circuit court with instructions to apply the defendant’s mental health issues – greater than those in Gonzalez – in deciding whether to impose the Measure 11 sentence. We agree with defendant that, in light of the Supreme Court's opinion in Gonzalez II, the trial court's understanding of Gonzalez I that only intellectual disability could be considered, was not correct. The Supreme Court was clear that other mental health attributes can be considered, if there is "evidence of a societal standard recognizing that people who suffer from [the particular mental disorders]—but who have the ability to form the requisite mental state and appreciate the gravity of their conduct—have reduced moral culpability for their criminal conduct." Gonzalez II, 373 Ore. at 268. As a strategic matter, defendant here chose not to pursue a defense of GEI. ORS 131.300. In finding defendant guilty, the jury necessarily found that defendant had the ability to form the requisite mental state. Thus, the question for us is whether, despite that finding, the record includes objective evidence of a societal standard that recognizes, for purposes of sentencing, that people who suffer from the particular mental health attributes suffered by defendant have reduced moral culpability for their criminal conduct. See State v. Lancaster, 345 Or App 155, 158, 581 P3d 989 (2025) (applying standard). State v. Clark, 347 Or App 721 (2026). III. Applying Article I, section 16, and Clark to This Case Gonzalez and Clark both require a “societal standard” before a personal characteristic can be a basis for sentencing relief, i.e., taking a defendant out of Measure 11. That standard is met here. The fact that the legislature has recognized EED as a partial defense that dramatically reduces a defendant’s sentence – as presumably states have done similarly across the country – is itself evidence of a societal standard. Because of the legislature's primary role in determining the punishments for criminal conduct, it is appropriate that, in determining whether a societal standard exists that militates against imposing a punishment that would otherwise be required, courts will give great weight to the existence or absence of legislative enactments bearing on such a standard. State v. Gonzalez, 373 Or 248, 266, 564 P3d 109 (2025). [Bold added.] See also State v. Ott, 297 Or 375, 686 P2d 1001 (1984)(history of EED as a mitigating factor.) Merger of UUW with (Attempted) Murder by: Ryan Scott • January 28, 2026 • no comments In a footnote in today's Bock opinion, the COA wrote: 4 UUW is not generally a lesser included offense of attempted aggravated murder, because it requires proof of the use of a “dangerous or deadly weapon,” which is not an element of attempted aggravated murder. However, in cases such as this one in which the counts of attempted aggravated murder included that defendant used a firearm as an additional material element, UUW may be a lesser included offense as it was here. See ORS 161.610(2) (use or threatened use of a firearm may be pleaded in the accusatory instrument and proved at trial as an element of aggravation). Not only then is the most common theory of UUW a lesser-included of Attempted Murder w/ a firearm (assuming same victim), the two counts would merge in the same way a lesser-included offense mergers with a greater offense. The same applies to murder w/ a firearm and UUW. Note that it does not apply to every theory of UUW. For whatever reason, a lot of attorneys who handle murder cases miss this easy and slam-dunk argument. I assume on some level, it's because if a defendant is convicted of murder and UUW after trial, even the most ignorant judge will run the two counts concurrently. The additional conviction for UUW wouldn't increase the sentence or the PPS. But on a more basic level, I believe fewer convictions is better than more convictions. And if it takes a 30-second argument to get one fewer convictions, just do it. Even if there will be absolutely no chance of any collateral impact once the defendant gets out of prison, who knows what DOC policies -- either now or in the future -- would be impacted by the number of convictions. And getting into the habit of thinking about merger and how it applies will help the attorney recognize the issue in cases where fewer convictions really will make a clear and substantive difference. Another objection to UCrJI 1006 by: Ryan Scott • January 8, 2026 • no comments In the preceding post, I argued why the standard jury instruction UCrJI 1006 violates the rules against commenting on the evidence and vouching, because it tells the jury that the witnesses have taken an oath to tell the truth, thereby drawing the jury's attention to a reason to believe those witnesses.. But that's not the only problem with UCrJI 1006. The standard UCrJI 1006 (“Evaluating Witness Testimony”) instruction states: The term witness includes every person who has testified under oath in this case. Every witness has taken an oath to tell the truth. In evaluating each witness’s testimony, however, you may consider such things as: (1) The manner in which the witness testifies. (2) The nature or quality of the witness’s testimony. (3) Evidence that contradicts the testimony of the witness. (4) Evidence concerning the bias, motives, or interest of the witness. [(5) Evidence concerning the character of the witness for truthfulness.] “[(6) Evidence that the witness has been convicted of a previous crime.].” (6) is also an impermissible comment on the evidence because it highlights a fact that the jury is supposed to consider for a particular purpose. Now this one gets more complicated strategically. Obviously, you only want to object when your client's conviction comes into evidence. But there are other considerations, including whether to ask for a limiting instruction that limits what purposes the jury can consider the prior conviction for. Next 20 Articles Case Reviews Oregon Supreme Court, March 26th, 2026 by: Rankin Johnson SEARCH AND SEIZURE - Right to privacy → read the full summaries... Oregon Court of Appeals, March 25th, 2026 by: Rankin Johnson PRESERVATION - Specificity → read the full summaries... Oregon Court of Appeals, March 18th, 2026 by: Rankin Johnson JURY SELECTION - Statements by jurors SENTENCING - Mental illness and proportionality STATUTORY CONSTRUCTION - Mace definition FAPA, STALKING, AND RESTRAINING ORDERS - Standard for issuance DISCOVERY - Sanctions → read the full summaries... Oregon Supreme Court, March 12th, 2026 by: Rankin Johnson DEFENDANT'S STATEMENTS - Voluntariness → read the full summaries... Oregon Court of Appeals, March 11th, 2026 by: Rankin Johnson JUDGMENTS - Satisfaction DEFENDANT'S STATEMENTS - Invocation of right to remain silent DEFENDANT'S STATEMENTS - Public-safety exception ACCUSATORY INSTRUMENTS - Amendments SEX CRIMES - Sufficiency → read the full summaries... Oregon Court of Appeals, February 25th, 2026 by: Rankin Johnson PROBATION AND OTHER SUPERVISION - Revocation proceedings FINES, FEES, AND COSTS - Procedural requirements → read the full summaries... _________________________

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