Oregon Supreme Court 09-01-11
by: Abassos • August 31, 2011 • no comments
Read the full article for details about the following new cases:
- Search - Emergency Aid
- Legal Malpractice - PCR - The Stevens Exoneration Rule
- Parole Determinations - Juvenile Aggravated Murderers Sentenced Between 1990 and 1995
Search - Emergency Aid
An emergency aid exception to the Article I, Section 9 warrant requirement is justified when officers have an objectively reasonable belief, based on articulable facts, that a warrantless entry is necessary to render immediate aid or to assist persons who are imminently threatened with serious physical injury. Here, officers appropriately used the emergency aid exception where a neighbor called 911 and reported hearing yelling and screaming and the use of a code word by the woman in the house, set up with the neighbor, which meant that something was seriously wrong and that the neighbor should immediately call the police. Once police were in the house legally they saw marijuana plants in plain view and seized them.
The appellate court had also found that there was evidence of an emergency when the police arrived but that such evidence dissipated when the police looked through a side window and saw a non-violent argument between two people. However, the Supreme Court refuses to consider dissipation because Defendant didn't make that argument at the trial court. At the trial court, Defendant only argued that the emergency aid exception didn't apply at the point when the officers arrived at the house. Not to put too fine a point on it, but the Oregon Supreme Court just slapped down the Appellate Court for being insufficiently harsh on preservation. Weird. State v. Baker
Legal Malpractice - PCR - Grounds for Dismissal
The Stevens exoneration rule doesn't apply to post-conviction relief cases. Stevens says that a criminal defendant has only suffered a legally cognizable harm as a result of his trial lawyer's negligence when he has successfully challenged the conviction through the appeal or PCR process. Here the lawyers being sued for malpractice were hired on a PCR case. Unlike a criminal trial where there are multiple ways to seek post-conviction corrective action, there is no express statutory mechanism in Oregon for obtaining "exoneration" from a denial of PCR caused by legal malpractice. Thus, applying the Stevens rule would create an insurmountable and arbitrary bar to relief.
The Court also makes it clear that a plaintiff in a PCR malpractice case must allege (and prove) that he would have won the PCR case and then would have won the underlying criminal case. It is legally insufficient to merely allege (or prove) that plaintiff lost the opportunity for Post-Conviction Relief. Reversed and remanded for further proceedings. Drollinger v. Mallon
Parole Determinations - Juvenile Aggravated Murderers Sentenced Between 1990 and 1995
Apparently there was a period between 1990 and 1995 in which Oregon had switched over to a determinate sentencing scheme but the scheme did not apply to juveniles sentenced for aggravated murder. So the parole board promulgated rules that, the supreme court finds in this case, were not legal. Of particular importance is the rule that such folks have to go through an intermediate review process before a parole board release decision. The intermediate review process in the underlying cases put off the potential release decisions for 15 to 20 years. Now the two prisoners at issue will receive a release decision. I think. This is an incredibly complicated case, procedurally and legally. Suffice it to say that if you're challenging a parole board decision for someone who was a juvenile convicted of aggravated murder in the early 90s, you should read this case. And talk to one of the fantastic attorneys involved: Andy Simrin or Kristina Hellman. Engweiler v. Felton
