Sample argument for your Attempted DCS/PCS-CDO sentencing memorandum.
LAW and ARGUMENT
I. The CSL for Attempted DCS is a Level-2
Mr. Smith was convicted of attempted delivery of a controlled substance. The jury also found three factors necessary for a finding of a commercial drug offense (CDO). This court reserved until sentencing the question whether CDO factors could apply to a charge of attempted delivery of a controlled substance. CDO factors are “sentencing enhancement factors” which elevate a completed delivery (DCS) from a level-4 crime seriousness level (CSL) to a level-8. CDO factors are not elements of the crime. See State v. Scott, 283 Or App 566, 388 P3d 1148 (2017) (reaffirming that principal and summarizing the long-standing case law on the topic). Because the attempt statute only applies to crimes and not sentencing enhancement factors, it does not apply to CDO factors. ORS 161.405 “Attempt” described. (1) A person is guilty of an attempt to commit a crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime. [Emphasis added.]
Nevertheless, the state is expected to rely on the argument that a completed DCS in this case would be a level-8, an attempted DCS should be a level-6, not a level-2. (“213-004-0005
Attempts And Solicitations (1) A conviction for an attempted crime shall be ranked on the Crime Seriousness Scale at two crime categories below the appropriate category for the completed crime.” This puts the cart before the horse. First, the CDO factors only apply to crimes listed at ORS 475.752, 475.806 to 475.894, 475.904 or 475.906.” ORS 475.900. “Attempted DCS” is not among those crimes listed. A person convicted of an attempt is not convicted under the statute defining the completed offense. Rather, he is convicted under the attempt statute, ORS 161.405. See State v. Becker, 171 Or App 721, 15 P3d 1264 (2000)(“Under Oregon law, a person who is convicted of attempted assault in the first degree is not guilty under the assault statute.”) Consequently, the CDO factors simply cannot apply to a crime that it is not among the listed statutes in ORS 475.900. Under Oregon law, attempted DCS is not among those statutes. Alternatively, OAR 213-004-0005 ranks the CSL for an attempt at 2 below the completed crime. Because CDO factors do not constitute elements of a crime, a “completed crime” of DCS is a level-4. An attempt would therefore be a level-2.
II. Ranking the PCS Higher than a Level-2 Would Violate Article I, section 16, of the Oregon Constitution
Mr. Smith is also charged with Possession of Controlled Substance (PCS), charged as a level-8 offense because of the CDO factors. However, sentencing Mr. Smith as a level-8 on a possession charge would violate the rule against proportionality. Article I, section 16 of the Oregon Constitution commands that even if convicted of that charge, Mr. Smith be sentenced on that count as a level-2. In State v. Bartol, 368 Or 598 (2021), the Supreme Court conducted a lengthy review of the history and application of proportionality clause of Article I, section 16. It is worth reading in full and provides complete support for Mr. Smith’s arguments. It concluded its review as follows:
- To summarize, Article I, section 16, expressly prohibits disproportionate punishments. It embodies “the basic proportionality concept” that “more serious crimes should receive more severe sentences than less serious crimes and vice versa.” Rodriguez/Buck, 347 Or at 61. Or, to echo Blackstone, “penalties of the first degree” should not be assigned to “offenses of an inferior rank.” 4 Blackstone, Commentaries at 18, quoted in Wheeler, 343 Or at 662. Like the Eighth Amendment’s proportionality requirement, Article I, section 16’s proportionality requirement must be interpreted based on current societal standards. It is not static; it evolves as societal standards change. When determining whether a punishment is disproportionate, courts apply the standards that currently prevail. And finally, while it is the role of the legislature to establish penalties for criminal statutory violations, it is the role of the courts to give effect to the constitutional proportionality requirement—by setting aside punishments that, under prevailing societal standards, are disproportionate to the offenses for which they are imposed.
Id. at 621.
PCS is, self-evidently, a less serious crime than attempted delivery. Under the Bartol analysis, it is probably not a requirement of a proportionality violation that the less-serious offense is a lesser-included offense of the more-serious offense. Nevertheless, under current law, PCS is a lesser-included offense of attempted DCS. Under an analysis that has since been rejected by the Oregon Supreme Court, the Court of Appeals held that an individual could commit the crime of Delivery of a Controlled Substance without committing the crime of Possession of a controlled substance. State v. Sargent, 110 Or App 194 (1991)(affirmed on other grounds, 323 Or 455). However, Sargent hinged on the claim that one could commit a delivery based on a theory of solicitation, even if the defendant did not have or possess the drugs themselves. The Oregon Supreme Court rejected the argument that an attempt encompassed a solicitation in State v. Kimbrough, 364 Or 66 (2018), implicitly overruling Sargent. Furthermore, the evidence that constitutes an attempted delivery under Fischer or Hubbell necessarily requires possession of the substance. See State v. Blake, 348 Or 95, 101, 228 P3d 560 (2010)(concluding that because one cannot utter a forged instrument without first possessing it, proof of uttering necessarily includes proof of possession.) Combining the decisions in Hubbell, Fischer, Kimbrough and Blake, it is not reasonably in dispute that a person cannot commit the crime of attempted DCS if they do not, actually or constructively, possess the controlled substance to be delivered. Inevitably, imposing a level 8 sentence on a crime that constitutes a less-serious offense than a level 2 offense violates proportionality. See State v. Koch, 169 Or App 223 (2000)(imposing a greater sentencing for a forgery of more than $1000 violated the proportionality clause when he received a greater sentence than he could get for a forgery involving more than $5000). Similarly, in State v. Simonson, 243 Or App 535, 259 P 3d 962 (2011), rev den, 353 Or 788 (2013), imposing a greater sentence (CSL 7) for sexual abuse in the second degree than could be imposed on the greater offense of rape in the third degree (CSL 6) violated the Oregon Constitution, specifically Article I, section 16.
An attempted DCS must be ranked at a level 2. The conduct for an attempted DCS, taking a substantial step towards delivering drugs to another person, is a worse offense than a person merely possessing drugs. Therefore, as in Simonson, it violates the tenets of vertical proportionality to assign Mr. Smith a grid score of 8 for his possession charge when an attempted DCS is only a level-2. It also violates fundamental common sense to send a person to prison for possession when an attempted DCS is, presumptively, an 18 month probation.
Does effective representation require defense attorneys to know where the law is going, not just where it is?
It's very hard to get cases up to the Oregon Supreme Court for a number of reasons. They don't take many cases. They aren't an error-correcting court, meaning any opinion they might issue must have application beyond the case itself. Generally, they're going to only take cases where there isn't a dispute about preservation.
Furthermore, PCR cases are even harder to get to the Supreme Court. There are also a number of reasons for this, but the most obvious is that meritorious PCR appeals are relatively few and far between, compared to criminal cases. Even so, within the last decade, we saw a cluster of PCR cases that reached the Supreme Court on the issue of experts, when defense counsel needed -- at minimum -- to consult with one, to make sure counsel was consulting with the right one, and to make sure counsel understood what the expert was telling them. Collectively, these cases demonstrated that the justices of the Supreme Court expected more from lawyers -- at least with regard to experts -- than appellate case law had previously required.
The Supreme Court seems to be taking an interest in another aspect of criminal defense: making legal arguments that aren't necessarily obvious but based on a careful reading of -- arguably conflicting -- case law. Last week, the Court granted review to two PCR cases, and the press release described the issues as follows:
- If an indictment and discovery provide a defendant with inadequate pretrial notice of the nature and cause of the accusation against him, under Article I, section 11, of the Oregon Constitution, the Sixth and Fourteenth Amendments to the United States Constitution, and ORS 132.550(7), must defense counsel, to exercise reasonable professional skill and judgment and provide adequate assistance of counsel, move for a pretrial election by the state?
- Can defense counsel perform deficiently by failing to object to evidence that apparently controlling Court of Appeals case law indicates is admissible?
- Is objective evidence of prevailing professional norms admissible to prove whether defense counsel's failure to raise a particular issue was unreasonable?
If you know me or my work, you know that I love issues that aren't the law yet. But the issues I've promoted over the past decade -- e.g., the Poston demurrer, criminal episodes, a challenge to St v. Barnes, a challenge to the "natural and probable consequences" jury instruction, and most recently, a challenge to St v. Boyd -- have all been rooted in either express statutory language or case law. Yet those arguments frequently lost -- or continue to lose -- at the trial level because it was contrary to accepted practice, there might have been conflicting Court of Appeals case law or simply no case law on point.
If an attorney wants to defend himself against ineffective assistance for, say, not challenging St v. Boyd or St v. Barnes, it is not a completely unreasonable argument under current PCR case law that Boyd is still good law and Barnes is even good law from the Supreme Court, and effective representation doesn't require attorneys to bang their head against the wall.
I would argue, however, that defense attorneys have an obligation not only to know what the law is but where it is heading. Barnes, a horrible decision that impacts the majority of M11 assaults, as well as other felony assaults, is inconsistent with St v. Simonov, which was obvious the moment Simonov was issued. This is why attorneys, knowing it would lose at the trial level, because Barnes was controlling, nevertheless made an argument to the contrary. Three of the attorneys who did so have been rewarded: their cases are now before the Oregon Supreme Court, which will be reconsidering Barnes this spring.
Were the attorneys who preserved the issue uniquely insightful, were they lucky or were they just doing what the law expects of them? I think when the Supreme Court answers the questions in last week's press release, we will be closer to an answer.
It's possible distinctions can and will be drawn. Assuming the challenges to Barnes are successful, maybe an attorney wasn't ineffective when they failed to raise the issue before the Supremes granted review of those three cases, and only ineffective when they failed to raise it after the Supremes -- by granting review -- made clear it was a live issue. Or maybe they were ineffective when they failed to raise the issue post-Simonov. We'll have to wait and see.
A similar question is likely to come up if the challenge to St v. Boyd is successful. Boyd is a Court of Appeals decision that has resulted in thousands of people going to prison. It interpreted the law in a way that may not be supportable. The Court of Appeals has expressed some doubt in the continuing validity of Boyd, but haven't said they will reverse it. And they might not, whatever their doubts, because of stare decisis. But stare decisis wouldn't bind the Oregon Supreme Court. Is this enough information for us to expect a trial attorney to preserve the issue?
You can guess my opinion on this issue.
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The "firearm minimum" is a short-hand way to describe a floating element that can be attached to any felony and which, if found, can potentially enhance the defendant's sentence. The element can usually be found in the indictment in the language "with a firearm" added to the title of each offense, as well as "The defendant used or threatened the use of a firearm" added below the other elements. Either one is sufficient.
If added to one count, it is usually added to all felonies from the same criminal episode. But the sentence enhancement can only be imposed on one count per criminal episode.
The statutory authority is ORS 161.610.
There are three things attorneys should be aware of, if their client faces a potential firearm enhancement.
(1) A defendant who is sentenced under the enhancement is not eligible for AIP or transitional leave, but he or she is eligible for good/earned time.
The relevant statutory language is:
- "Except as provided in ORS 144.122 and 144.126 and subsection (5) of this section, in no case shall any person punishable under this section become eligible for work release, parole, temporary leave or terminal leave until the minimum term of imprisonment is served, less a period of time equivalent to any reduction of imprisonment granted for good time served or time credits earned under ORS 421.121, nor shall the execution of the sentence imposed upon such person be suspended by the court."
That language is not a model of clarity, but if read carefully, you'll see that good time is permitted and other forms of release aren't.
A judge can still deny good time, just as they can in other prison cases, but they need a reason to do so. If the judge denies good time but does not give a reason, defense attorneys would be wise to ask the judge to do so "for meaningful appellate review." As I've written before, the appellate courts will usually defer to a trial judge's denial of good time, unless the judge makes a legal error in doing so. When they are asked to put on the record their reason for denying good time, the chance of legal error is surprisingly high.
(2) The firearm enhancement can result in the merger of guilty verdicts that might not otherwise occur.
This topic could be, and may eventually be, the subject of a lengthier and independent blog post. The short version is this: the Court of Appeals has held that trial courts should merge the crimes of Unlawful Use of a Weapon (UUW) and Felon in Possession (FIP) into a single count of FIP when the latter charge includes the firearm minimum. That ruling has subsequently been called into doubt but not (yet) overruled. The doubt is based in part on the theory that UUW requires the firearm in question is used against another person, but Felon in Possession of a Firearm with a Firearm is satisfied if the gun is discharged but not at anyone in particular. Trial attorneys can increase their chances of appellate success if they ask for the UUW to merge with any other felonies that (1) also have the enhancement pled and (2) involve the same victim as the UUW count.
(3) The firearm minimum should only be imposed on the primary offense (probably)
The primary offense is the crime with the highest crime seriousness level (CSL) of all the charges from one criminal episode. And per the Oregon Administrative Rules, the primary offense is to be sentenced first. But the crime with the highest CSL is often a crime like robbery in the first degree, which carries a mandatory minimum of 90 months in prison. If the firearm minimum is imposed on that count, and it's the five year sentence from a first-time offense, the sentence enhancement does not serve to actually enhance the sentence (although robbery in the first degree, almost always, involves a firearm, which is the reason it carries the lengthy mandatory minimum in the first place).
The state will often ask the court not to defer imposing the firearm minimum on the primary offense, saving it instead for a less-serious charge, such as felon in possession, where -- if the counts are run consecutively -- the imposition of the five year minimum would have a significant impact on the defendant's sentence.
Is this lawful? Can the court decline to impose the firearm minimum on the crime it is sentencing first, and then impose it on a later count? The issue is currently on appeal. Defense attorneys should also be aware that the analysis is subtly different if its the first gun minimum the defendant is facing or their second. Unless and until this issue is decided against defendants, trial attorneys need to object to the minimum being imposed on any count other than the primary offense.
For decades, the Court of Appeals has held that guilty verdicts for DCS and PCS don't merge into a single conviction. That holding is now in doubt, in light of an Oregon Supreme Court decision from 2018. The full and complete (and admittedly complicated) analysis is at the Dec 10, 2018 post: "Do DCS and PCS now merge?" It's a lot to read.
Because time is short, here's the shortest version I could write.
The Court of Appeals says that DCS and PCS don't merge because:
- (1) You can attempt a crime merely by soliciting the crime.
- (2) Therefore, you can commit a Boyd delivery with a mere solicitation to commit a delivery.
- (3) A solicitation to commit delivery does not require possession.
- (4) Therefore a delivery does not require possession.
- (5) If delivery does not require possession, then the two crimes do not merge into a single conviction.
In 2018, the Oregon Supreme Court said (1) is wrong. Because (2)-(5) depend on (1), the argument now fails.
Go to the Dec 10, 2018, blog post for the full argument, with all the necessary citations/authority.
Any good attorney is going to spend some time and thought -- prior to trial -- in identifying issues that might have legs on appeal and making sure those issues are well-preserved. This is no less true for cases you are highly confident you'll win at the trial level. No verdict is guaranteed.
Part of the analysis is recognizing that some issues have a better shot on appeal than others. One reason for this is what is known as the "standard of review." Every issue on direct appeal in Oregon is premised on a mistake by the trial judge. Without getting into a full analysis now, suffice it to say that some decisions by the trial judge are subject to greater scrutiny than others.
The least amount of scrutiny is reserved for a standard of review known as "an abuse of discretion." For example, if the prosecutor is seeking to offer "prior bad acts" of the defendant into evidence, and the judge engages in an OEC 403 analysis (e.g., determining if the prejudicial value of the other bad acts substantially outweighs the probative value), the judge's decision to allow in the evidence would only be reviewed on appeal for an abuse of discretion (e.g., whether the judge's decision was within the realm of a legally permissible decision.) In the vast majority of cases, a judge's discretionary call -- even if different than the one the appellate judges would have made -- will be upheld.
But there are ways to significantly increase the chances of appellate success in an area of law where the chances of success are usually low. First and foremost, returning to the example above, after the judge has ruled against the defendant and agreed to allow the state to offer evidence of prior bad acts, the trial attorney should -- routinely and as a matter of course -- ask the judge to put the OEC 403 balancing on the record for "meaningful appellate review."
Under current law, a trial judge -- in most cases -- need only say he conducted the balancing. They need not say on the record how he assessed the prejudice or the probative value, unless the trial attorney asks them to do so.
If asked, and the trial judge refuses to do so, that alone may be grounds for reversal (or at least a remand to the trial court). If the trial judge agrees to put their balancing on the record, there is a remarkably high chance they'll do it wrong. For example, judges are frequently conditioned to give as many reasons for their rulings as possible. If they deny a motion to suppress, for example, they'll say they did so because they believed the police office, and the defendant didn't have a privacy interest anyway, and the evidence would have been inevitably discovered. In the context of a motion to suppress, giving as many reasons as possible will increase the likelihood the judge will be affirmed on appeal, because each justification by itself may be sufficient to prevail.
But that's not true for OEC 403 balancing. If a judge says the prior bad act is admissible for "motive, intent and character evidence," that doesn't give the judge three reasons to be right. It gives the judge three reasons to be wrong. Because if the evidence isn't admissible for intent, it means the judge has assessed the probative value of the evidence incorrectly, giving it more weight than it deserved. That means the OEC 403 balancing wasn't conducted properly, and that alone might be enough to reverse (or remand).
That doesn't happen if the trial attorney doesn't ask the judge to put their balancing on the record.
The same can be true for other decisions that are reviewed for an abuse of discretion, including the denial of good time. If the judge gives an improper reason (relying on a mistaken fact or a fact not in evidence, to give just two possible examples), the case may get sent back.
The key phrase, again, is "meaningful appellate review." Trial counsel need not reargue the issue they've just lost. They should simply and politely ask the trial judge to put their reasons on the record for "meaningful appellate review." If the judge makes a clear error in the analysis, it would probably help to point out the error (but, again, politely, since the judge has already ruled). The rest is up to the appellate attorney.
On Sept 11, 2019, the Court of Appeals issued a per curiam opinion in State v. Morales.
The date is notable only because the case was argued on January 17th. Eight months is a long time to wait for a per curiam opinion. In it, the Court reiterates its holding from State v. Jones that no mental state applies to dollar value in a theft case, and it references State v. Civil for the high bar of reversing precedent.
The issue can be understood this way: when a person steals an item worth more than $1000, he doesn't need to know the item is worth more than a thousand dollars. He simply needs to know he's stealing it. What defense attorneys have argued is that, under the law, he must at least be criminally negligent as to the value, for the simple reason that for all crimes in the criminal code, a mental state must apply to each material element, and "criminal negligence" is the lowest mental state that could apply.
Obviously, it's not going to matter in most theft cases. If you embezzle $5000, then we can be confident you were negligent that you were stealing more than $1000. But take this real-life scenario: you steal a bike that's worth $800 that someone left unlocked on the sidewalk. You don't know that it's part of a bike-sting operation, and inside the bike is a tracking device worth $250. If no mental state applies to dollar value, then you're guilty of felony theft. If criminal negligence applies, then maybe you're only guilty of misdemeanor theft.
In light of Supreme Court precedent that post-dates Jones, there is every reason to believe that under the law "criminal negligence" does in fact apply to dollar value. Reading between the lines, one could take the Morales opinion as an invitation to the Oregon Supreme Court to overrule Jones. And if the only problem with the Morales opinion was perhaps showing too much deference to precedent when it should obviously be ovverruled, then I might disagree with the Court of Appeals but also respect the position it has taken.
The problem, however, is that there is no reason to overrule Jones, because Jones simply doesn't say what the COA says it does. If you think it's arrogant of me to assume I know better than the COA of what one of their own cases meant, you might be right. But before you judge me too harshly, keep in mind that my opinion is the same one as the author of Jones.
Jones was written by then-Judge David Brewer. Contrary to what the Morales court stated, it ruled only that a "knowing" mens rea does not apply to dollar value. We know this because this is how Supreme Court Justice Brewer referenced Jones in his Simonov opinion:
- See State v. Jones, 223 Or.App. 611, 621, 196 P.3d 97 (2008), rev. den., 345 Or. 618, 201 P.3d 909 (2009) (holding that, under a prior version of the first-degree theft statute requiring proof that the value of the property was over $750, the state was not required to prove that the defendant knew that the value of the property exceeded $750). [Emphasis in original.]
That emphasized "knew" gives the game away. He cabins the holding in Jones so that it applies exclusively to a single mental state, not every mental state. This is especially clear when you read Simonov in full.
I have gone on record many times over the past few years stating how much I admire and respect the Court of Appeals. This opinion doesn't change that. At the same time, they've kicked upstairs a decision they should have made, based on nothing more than a misreading of one of their own cases. And for those defendants -- small in number to be sure -- who would benefit from a proper application of the law, they're out of luck.
When you think of the limits that the proportionality clause places on potential sentences, you might think of the Buck/Rodriguez-type arguments that potentially remove a sentence from Measure 11. But there is another type of proportionality argument that now can play a big role in the sentencing of DCS-SSQ cases and DCS-SSSQ cases.
This type of proportionality -- known as vertical proportionality -- is pretty straightforward. The state can't impose a sentence on a crime that is more severe than a greater version of that same crime. In other words, the state can't impose -- without violating the Oregon Constitution -- more time on a single count of a lesser-included offense of felony Theft in the First Degree than it could impose on the greater offense of Aggravated Theft in the First Degree. A useful discussion can be found in State v. Koch.
Whether a crime is a lesser-included offense is also pretty-straightforward. See State v. Blake, 348 Or 95, 99, 228 P3d 560 (2010) ("[I]f one offense contains X elements, and another offense contains X + 1 elements, the former offense does not contain an element that is not also found in the latter offense. In that situation, under ORS 161.067(1), there is only one separately punishable offense.").
Which brings us to Delivery of a Controlled Substance. An unadorned DCS is a level-4 on the crime seriousness scale, but it is elevated to a line-8 or -9 or -10, depending on the sentencing enhancements which apply. However, none of those sentencing enhancements are considered elements. State v. Scott ("Because subcategory factors that are required to be pleaded for sentencing purposes are not elements of the charged offense, and because possession and delivery do not merge as a matter of law, the guilty verdicts on Counts 1 and 2 do not merge into a single conviction.")
Consequently, the only elements in a crime of DCS-SQ, -SSQ, or -SSSQ are "delivery" and "controlled substance."
However, in a charge of DCS w/in 1000 feet of a school, the allegation of "w/in 1000 feet of a school" is an element. Therefore, if a defendant is charged with both DCS-SQ and DCS w/in 1000 feet of a school from the same incident, the two counts merge into a single conviction because all the elements of DCS-SQ are contained in DCS w/in 1000 feet of a school. Therefore, DCS-SQ is a lesser-included of DCS w/in 1000 feet of a school. If the SQ isn't an element, and DCS-SQ is a lesser-included, then merger automatically follows. State v. Mickley:
- We accept the state's concession that the trial court erred in failing to merge the guilty verdicts. See State v. Rodriguez-Gomez, 242 Or App 567, 568, 256 P3d 169 (2011) (concluding that delivery of methamphetamine within 1,000 feet of a school merges with delivery of methamphetamine); State v. Unger, 276 Or App 445, 450-51, 368 P3d 37 (2016) (explaining that the substantial-quantity subcategory factor is not an element of a crime). Furthermore, we agree that the error is plain. See Unger, 276 Or App at 449-52 (concluding that the trial court plainly erred in failing to merge the guilty verdicts for manufacture of cocaine and manufacture of cocaine involving a substantial quantity); State v. Villarreal, 266 Or App 699, 700, 338 P3d 801 (2014) (concluding that the trial court plainly erred in failing to merge convictions for delivery of cocaine within 1,000 feet of a school and delivery of cocaine). Finally, for the reasons stated in Unger, we conclude that it is appropriate to exercise our discretion to correct the error. 276 Or App at 451-52.
The thing is, if it's true -- as the court holds -- that DCS-SQ is a lesser-included version of DCS w/in 1000 feet of a school, then logically, the same is true for DCS-SSQ and DCS-SSSQ. However, proportionality then kicks in, because DCS-SSQ is a level-9, DCS-SSSQ is a level-10, and the greater offense of DCS w/in 1000 feet of a school is a level-8.
Therefore, it violates proportionality to sentence DCS-SSQ or DCS-SSSQ as anything higher than a level-8. See also State v. Simonson
The reduction from a level-9 or -10 to a level-8 is enormous.
Juries are routinely misinstructed on the elements of theft, assault, criminal mistreatment and criminal mischief
Asked to explain how he went bankrupt, Hemingway answered, "Two ways. Gradually, then suddenly."
I think of this quote often when reflecting on the evolution of criminal law. It can move at a glacial pace, and then when the dam breaks (yes, mixed metaphor), changes can occur rapidly.
We are on the cusp of the dam breaking when it comes to some of the most common offenses. Defendants whose attorneys anticipate the changes to come will benefit far more than those defendants whose attorneys don't see them coming or don't care.
The issue involves "mental states," but not in the "guilty except insane" sense. All crimes have elements. If the crime is in the criminal code, then all the physical elements (possessing, uttering, causing injury, taking) have a mental state or mens rea attached (intentionally, knowingly, recklessly or negligently). The circumstantial element of crimes (e.g., more than a thousand dollars) in the criminal code also have a mental state, unless the legislature has expressly said otherwise (e.g., the age of a victim of sexual abuse.) The mental state can make a big difference. The difference between killing someone accidentally versus killing someone intentionally is based entirely on the mental state, and the resulting difference is between life in prison and maybe a couple years. If I'm convicted of intending to kill you, then it's life in prison. If convicted of negligently running you over while speeding, it's more likely 18 months, if I have no criminal history. Maybe even less.
Lawyers and judges often have a very hard time figuring out the appropriate mental state to apply to each element. Part of the problem is that lawyers think juries don't care about the distinction and are unwilling to spend too much time on getting the answer right. Would a juror acquit for a crime that required an intentional mental state but convict if the state only had to prove knowingly? I think maybe they would, and I think it's worth fighting to get the jury instructed correctly.
But there is a far more pragmatic reason to fight for the right jury instruction than the possibility a juror will give serious weight to the distinction. In most cases, if the trial court overrules your request for the instruction, but the Court of Appeals determines you were right, then you'll win on appeal. A reversal will make a big difference to your client, whether he's still in custody in two years or still on probation or just wants another chance to get the conviction off his record.
However, winning on appeal requires something that's very easy to get now, but might not be so easy a year from now. And that something is an erroneous ruling by the judge. When it comes to mental states, trial judges are still getting it wrong. When the Court of Appeals starts reversing convictions because the jury was instructed incorrectly, which I believe will happen routinely as early as next year, then trial courts will finally start giving the right instructions. You'll gain a small victory at trial, which might help you prevail, but you'll lose the chance of winning on that issue on appeal, if you need it.
This line of argument, of course, depends on my being right that judges continue to give erroneous jury instructions on some of the most common offenses: theft, criminal mischief, (knowing) assaults and criminal mistreatment. More evidence that I'm right came today from the Court of Appeals.
It's a concurrence on a per curiam opinion where the defendant lost, written by one of the smartest judges at the Court of Appeals. It's easy to overlook, but it shows that Judge Aoyagi understands the issues involved and can write about them in a clear, accessible and convincing way.
Here is her summary of the Oregon Supreme Court's approach to determining the appropriate mens rea to attach to a particular element.
- The Supreme Court reversed the trial court, agreeing with defendant (and us) that knowledge was the minimum culpable mental state for the lack-of-consent element of UUV. Simonov, 358 Or at 549. The court began its analysis by noting that, when an element of an offense requires a culpable mental state (as most do), but the statute creating the offense does not specify the mental state, the required minimum mental state depends on the nature of the element. Id. at 538-39. The minimum culpable mental state for “conduct” elements is knowledge, while the minimum culpable mental state for “result” and “circumstance” elements is criminal negligence. Id. at 539-40. As clarified in Simonov, “conduct elements are those that describe the nature or essential character of the defendant’s act or omission.” Id. at 541 (emphasis added). “[W]hen an element of an offense within the Criminal Code describes the nature, that is, the essential character, of a proscribed act or omission, it generally is a conduct element.” Id. at 546. By contrast, “circumstance” elements are those that describe “an accessory fact that accompanies the defendant’s conduct.” Id. The court recognized in Simonov that “the line between conduct and other elements is not always easy to draw” but reiterated that it “nevertheless is a principled [line].” Id. at 544. Ultimately, “[w]hether a particular element—including lack of permission or consent—constitutes part of the defendant’s conduct or is a circumstance depends on a careful examination, using well-established statutory interpretation principles, of the role of the element in the offense and its relationship to the other elements.” Id.
If you apply the above to theft cases, then "taking the property" is the conduct and the $ value of the property is the circumstance. Therefore, the jury would be instructed that it had to find a defendant knew they were taking the property but was only negligent as to its value (e.g., more than $1000).
But the state will object to that instruction because it will insist that no mental state applies to $ value. It will insist that a case called St v Jones so holds. The state will continue to make this argument even though the Simonov opinion expressly states that Jones only held that "knowing" doesn't apply to $ value, saying nothing about negligence.
If a judge agrees with the state, the jury will be erroneously instructed and the defendant has an excellent shot at reversal in less than two years.
The same holds true for a charge of criminal mischief that depends on a certain $ value.
With assault, the issue is more complicated, for reasons best reserved for another post. I predict that the Oregon Supreme Court will ultimately hold -- based on that reasoning -- that "knowing" is the appropriate mental state for injury or serious physical injury, when the crime is charged as a knowing assault (e.g., most assault IIs, some assault Is, Assault on a Public Safety Officer). But until that happens, you are entitled to a criminal negligence instruction as to injury, which the state will oppose because this time they will insist the Oregon Supreme Court held that no mental state applies to "serious injury" in a knowing assault. They will continue making that argument even after you point out that the Court of Appeals last year -- in a case called St v Pryor, which held that an intentional mental state applied to serious physical injury in some theories of Assault I -- stated that the Oregon Supreme Court said no such thing.
Attorneys need to make these arguments now. You might lose in the circuit court, but win down the road, sooner than you might otherwise think because the issues have already been preserved and brief at the COA. Criminal law moves gradually, then suddenly. The Simonov analysis will be applied to thefts and criminal mischiefs and assaults and it will change the way these basic crimes are proven. Prosecutors like to argue that Simonov is strictly limited to UUV cases. Today's per curiam proves otherwise.
Orin Kerr talks about a recurring 4th Amendment issue here.
- A common problem in Fourth Amendment law that Supreme Court cases leave surprisingly unresolved is what you might call the "property-in-property" problem. It runs like this. Say a person has evidence of crime A that he puts inside his own bag or backpack or other container B. Our person then puts B inside a house, car, or other place C that they don't own or otherwise lawfully control. The police search place C, and they find container B. The police then search container B and find evidence A. That leads to charges, and a Fourth Amendment dispute over the admissibility of evidence A.
Mirror Universe: Why the Legislature May Spend the Money on a Unanimity Ballot Measure and Defenders of Non-Unanimous Verdicts Will Vote For It
This month, the Oregon Legislature passed on the opportunity send a ballot measure to voters on the issue of non-unanimous jury verdicts.
Currently, the Oregon Constitution enshrines the right to non-unanimous jury verdicts in all criminal cases except murder or aggravated murder. 10-2 is all that's needed for guilty and 10-2 is all that's needed for not guilty. Oregon is the only state that allows non-unanimous guilty verdicts. The only other state with a history of non-unanimous verdicts -- Louisiana -- got rid of them last year.
Although support for eliminating non-unanimous verdicts is widespread throughout Oregon's political class -- a few disgruntled prosecutors and ex-prosecutors notwithstanding -- the legislature's punt is fiscally understandable. A ballot measure is expensive, and there is the possibility that if Oregon does nothing, the US Supreme Court will eliminate the problem in a case being argued before it on the first Monday in October: Ramos v. Louisiana. Mr. Ramos was convicted of murder on a non-unanimous verdict before the Pelican state did away with the practice. Since a decision is expected by February, 2020 (that is, before any ballot measure could get to the voters), it is possible, if not likely, that non-unanimous guilty verdicts will be declared unconstitutional, and Oregon defendants will have a right to a unanimous jury before they're convicted, even without the passage of a ballot measure.
Money saved, right? Maybe not.
The Oregon legislature likely didn't consider something that may lead them to spend the money on a ballot measure even if Mr. Ramos prevails. The Oregon Constitution mandates 10-2 verdicts for guilty or not guilty. If Ramos v. Louisiana finds non-unanimous guilty verdicts unconstitutional, it likely wouldn't have any impact on non-unanimous not guilty verdicts.
Thus in a world where Ramos prevails, Oregon defendants could only be convicted on a unanimous verdict but they could be acquitted on a 10-2 verdict.
Is this a huge benefit to Defendants? In the real world, maybe not, because if the jury hung. with 10-2 voting not guilty, odds are the prosecutor would decline to re-try the case. But in a few cases, nonunanimous not guilty verdict will be highly beneficial.
Consequently, the Oregon legislature, at the urging of prosecutors throughout the state, may put forward a ballot measure even if Ramos wins, in order to repeal non-unanimous not guilty verdicts. The most passionate supporters of such a ballot measure would be the very prosecutors who currently support non-unanimous guilty verdicts.
Let's hope they appreciate the irony.
If a defendant in Oregon is going to trial on any felony other than murder, the jury will likely be instructed that of the 12 jurors, only 10 need to vote guilty to convict. Oregon is the only state in the country that allows the jury to be so instructed. Next term, the Supreme Court of the United States will decide whether that instruction violates the federal Constitution. For details, go here.
In light of the fact that a US Supreme Court ruling is (relatively speaking) imminent, even the most modestly competent defense attorneys in Oregon will object to that instruction and ask that only a unanimous verdict can be the basis for guilt. Prosecutors will oppose. Should they?
First, prosecutors will argue that they are required by the Oregon Constitution to oppose, since they interpret the Oregon Constitution to mandate non-unanimous verdicts, as opposed to merely allowing non-unanimous verdicts. I think that reading is absurd, but if the local DA believes it, then the discussion is over. In their minds, they have no choice but to oppose any unanimity requirement.
But assume a local DA realizes that (1) he can lawfully agree to instruct the jury on the need for unanimity and (2) there is at least a 50/50 chance that non-unanimous verdicts will be declared unconstitutional. Should the DA reduce the risk of an appellate reversal of any convictions by conceding the issue, at least temporarily, now?
It's a fun hypothetical but I would be shocked if any DA made such a concession, no matter how sound it would be to do so. My experience has been such that prosecutors would willingly increase the odds of a reversal, sometimes significantly, than make it even a little harder to get a conviction. There is a reason so many arguments that I have encouraged over the years have resulted in reversals and will do so for decades to come. There are institutional and professional incentives to get the conviction now, at all costs, regardless of the expense of a possible reversal, and the pain it might bring to victims and their families.
(I would note that it's not either/or. If the prosecutor is wrestling with whether to offer a piece of evidence, knowing it's helpful but not essential but also likely to increase the chances of a reversal, the simple solution is to make the defendant a better plea offer.)
In this situation, the usual conflict between getting a conviction and risking a reversal is much more stark than normal. A favorable ruling from SCOTUS could result in dozens of reversals, at great expense and inconvenience.
Prosecutors who support non-unanimous verdicts often claim that, if unanimity were required, the results wouldn't change much, because eventually the hold-outs would eventually agree with the majority. Or in the rare case of a mistrial due to a hung jury, there would be unanimity the next time around. If prosecutors really believe that, then agreeing to unanimity now would seem to minimize the risk of a massive number of reversals in exchange for only mild inconvenience.
But I think prosecutors mostly realize, their public claims notwithstanding, that unanimity would be a hardship for them. Not that there would be that many more hung juries, but that there would be a lot more compromise verdicts. That is, if jurors are 10-2 to convict of Robbery I, rather than telling the court they're hung, they might agree to convict unanimously of Robbery II. It may not be completely satisfying, but jurors want to reach a verdict, they want to get the job done, and if there is a way to do so, they will find it. A compromise verdict is often the most reasonable way forward.
If and when these cases come back in 2-3 years, if a civil trial can't get out because all these criminal cases are being re-tried, if victims have to relive the trauma of trial, remember this: when a case gets reversed, it is the prosecutor's fault. They won't tell you that. They'll blame the appellate judges. And technically, it's the trial judge who is reversed, but only because he or she did what the prosecutor asked them to.
How the prosecutor can seek to double the presumptive sentence of Oregon felonies and why it may be unconstitutional
All felonies in Oregon state court -- even Measure 11 felonies -- can be slotted into a gridblock on the sentencing guidelines. These guidelines -- often known as the grid -- inform both judges and lawyers of the presumptive sentence of that particular crime, calculated in combination with the defendant's criminal history. Those presumptive sentences are often trumped by Measure 11 or sentences specific to repeat property offenders or repeat sex offenders.
The prosecution has ways of increasing the presumptive sentence, by giving notice of upward departure factors. In fact, the presumptive can be doubled, so that it is often greater than most Measure 11 sentences. These factors -- although they are considered elements of an aggravated version of the crime under the US Constitution -- are rarely submitted to a Grand Jury for approval, nor are they presented to a magistrate pursuant to a preliminary hearing. All it takes is written notice within 60 days of arraignment on a felony indictment.
The easier it is to do something, the more frequently it is done, and so prosecutors will often file notice of very frivolous factors in an effort to gain additional leverage over a defendant. Given there is no real oversight, there is no disincentive for prosecutors to do this. How frivolous? Upward departure factors must alleged something that isn't captured in the crime itself, because the factor is supposed to show why the crime is uniquely deserving of extra punishment. Yet any defense attorney who has been practicing for more than a few years has seen a notice that alleges the enhancement of "use of a dangerous weapon" for a crime, such as robbery in the first degree, that as alleged requires use of a dangerous weapon. Or "threat of violence" in an assault case. I haven't yet seen "permanent injury" alleged when the defendant is charged with murder, but I've seen a departure notice that is just as ridiculous.
However, this practice may be unconstitutional, and we might be just a few years away from the United States Supreme Court expressly saying so. Here is a short summary of the complex history this issue implicates.
JOINDER AND SEVERANCE - Evidence relevant to one charge and prejudicial to another FAPA AND STALKING ORDERS - Imminent danger of abuse JOINDER AND SEVERANCE - Necessary allegations SEARCH AND SEIZURE - Reasonable suspicion of timber offense EVIDENCE - Conduct and demeanor as evidence SENTENCING - Persons entitled to claim restitution COMPULSORY PROCESS - Witness asserting privilege CONTEMPT - Permissible sanctions
FINES, FEES, AND COSTS - Ability to pay APPEAL AND REVIEW - Proceedings on remand SEARCH AND SEIZURE - Officer safety
With the issuance of State v. Warren by the Oregon Supreme Court, the lengthy litigation over whether the face of the indictment must affirmatively justify joinder of multiple counts is over. It must, or the indictment is subject to a demurrer.
Nevertheless, some questions remain. Here are three.
1. Does an indictment that alleges that crimes are from the same criminal episode prohibit the state from arguing otherwise at sentencing?
State v. Bush held "same criminal episode" language in the indictment did not prohibit, under the doctrine of equitable estoppel, the state from taking a contrary position at sentencing. Part of the court's analysis was based on the lack of any reliance by the defendant on that language. What is worth noting is that Bush was decided more than a decade before the Court of Appeals ruled in State v. Poston that an indictment without such language might be subject to a demurrer. I see cases now where the relevant language is enough to keep the defendant from filing the demurrer, which would, it would seem, show detrimental reliance by the defendant. In sum, Bush may not be good law anymore.
2. If the state alleges grounds for joinder, but those grounds aren't supported by the facts, may a defendant move for a mistrial at the close of the state's case?
The answer would appear to be "yes."
- If, however, a case goes to trial and the evidence establishes that the charges are not properly joined, then either: (1) the improperly joined charges should be dismissed at the defendant's motion so that they can be the basis of a separate, later trial, see, State v. Clipston, 3 Or. App. 313, 473 P.2d 682 (1970); or (2) if the jury has possibly been unduly influenced by the evidence received concerning the improperly joined charges, then the only remaining procedure is for the defendant to move for a mistrial.
State v. Sanchez, 14 Or. App. 234, 511 P.2d 1231 (1973)
As you can see, Sanchez is from 1973, but there wouldn't appear to be any flaws in its holding or any reason to believe it has been undermined by subsequent case law.
3. Can the state amend the indictment, without resubmitting it to the Grand Jury, to include the necessary joinder language?
State v. Haji says yes. But that's a Court of Appeals decision, and the Supreme Court has just granted review. The argument for why Haji is wrong is this. An error cannot both merit demurrer and be a defect in form—those categories are mutually exclusive. The granting of a demurrer would either end the case in its entirety, or it would require the grand jury to consider a new and different indictment. Allowing the state to simply add language that would obviate either outcome alters the essential nature of the indictment and effectively adds charges to the indictment that should not be there. Because the defect is one of substance and not form, the prosecutor has no authority to amend the indictment in this case.
In 1991, the Oregon Court of Appeals held that Delivery of a Controlled Substance (DCS) and Possession of a Controlled Substance (PCS) do not merge, because each crime contains an element the other does not. Specifically, a person can deliver a controlled substance (which, by statute, includes "attempted delivery") but not simultaneously possess the controlled substance. State v. Sargent, 110 Or App 194 (1991).
In Oregon law, merger refers to the combination of two or more guilty verdicts into a single conviction. If DCS and PCS were to merge, the benefits are real but relatively marginal. Merger of those two crimes would be unlikely to reduce the defendant's time in custody, but it could (1) reduce fines and fees, (2) possibly help with expungement many, many years later and (3) reduce the defendant's criminal history score, in case he or she is charged with more crimes in the future. Generally speaking, though, it's always better to have fewer convictions. Most important of all, however, is that it would require prosecutors to improve their offers pre-trial. A prosecutor who makes no concessions on the DCS because he or she is already agreeing to dismiss the PCS may be pressured to make additional concessions to keep a case from going to trial, since, if the counts merge, the PCS is going away anyway.
There are four different ways for crimes to merge, but the one most relevant to the Sargent analysis is whether, by committing DCS, a person necessarily commits PCS. If yes, then they merge. If not, then they don't.
You might think, of course you have to be guilty of PCS when you commit DCS. You've got to have/possess the drugs to deliver them, don't you?
Not according to the Sargent court. The reason is because of how "delivery" is defined in Oregon law.
ORS 475.005 defines "delivery" as "the actual, constructive or attempted transfer, other than by administering or dispensing, from one person to another of a controlled substance, whether or not there is an agency relationship."
"Attempted" is the key word here. The Sargent court determined that a person could "attempt a delivery" and thus be guilty of DCS if they solicit someone else to deliver drugs. Consequently, the court held:
- We conclude that, if a person solicits another to engage in conduct constituting an element of the crime of delivery, e.g., to provide to the person a controlled substance for the purpose of distribution to third parties, the person has taken a substantial step toward committing the crime of attempted delivery under ORS 475.992(1). Under that statute, the conduct constitutes delivery. Consequently, possession and delivery do not merge as a matter of law, because it is possible to commit the crime of delivery without having a possessory interest in the controlled substance. [Bold added.]
The key thing to note is that the opinion hinges on the defendant soliciting a third party to delivery drugs, which amounts to an attempted delivery. This is distinct from a theory of accomplice liability. If a defendant is convicted as an accomplice to another person's delivery and possession of drugs, he'd still be guilty of possession even if he didn't personally possess the drugs themselves.
The Oregon Supreme Court said as much in the context of forgery in State v. Blake, 348 Or 95 (2010):
- Accomplice liability makes a person who aids or abets a crime liable for that crime even though the accomplice may not have committed any of the acts that the crime entails. See ORS 161.155(2)(b) (criminal liability for aiding and abetting another person in planning or committing a crime). Because the principal who utters a forged instrument also necessarily possesses it, a person who aids and abets the principal in the crime of forgery by definition also aids and abets the principal in the crime of criminal possession of a forged instrument. An accomplice who is liable for forgery is also liable for criminal possession of a forged instrument."
Blake didn't overrule Sargent because unlike DCS, a person could not be convicted of "uttering" a forged instrument merely by attempting to do so. If they couldn't be convicted merely for the attempt, then they couldn't be convicted for mere solicitation.
Even before the events of last week, the Sargent holding was based on a questionable view of the relevant legislative history, specifically whether or not the legislature intended that solicitation by itself amounted to an attempt. There was a subsequent COA case from 2005 that went into the problems with the Sargent reading of legislative history, but reaffirmed Sargent anyway, in part because no one was arguing at that time Sargent was wrong decided. That case is State v. Johnson, 202 Or App 478 (2005).
Skip to December 2018, and the attempted aggravated murder/solicitation to commit aggravated murder case State v. Kimbrough, 364 Or 66 (2018). The bottom line is that the court held that solicitation to commit a crime did not amount to an attempt to commit the crime, unless the defendant intended to commit the crime also. The Supreme Court held:
- Thus, the rule is that to be guilty of attempt, the defendant must personally engage in conduct that constitutes a substantial step, and that substantial step must be toward a crime that the defendant intends to participate in himself.
Kimbrough is a deep-dive into legislative history that does need not to be summarized here. What is important to note is that the holding of Sargent that DCS and PCS do not merge depended on the COA's conclusion that solicitation to deliver drugs constituted an attempt to deliver drugs. The OSC has now held that solicitation is insufficient to constitute attempted delivery, unless the defendant is going to participate, in which case the defendant himself is in possession of those drugs, either as a principal or as an accomplice.
If you are a defense attorney in Oregon, preserving this issue after trial is simple. You can write a memo that cites to the cases above or, if your court tolerates informality, you can simply give them a copy of the blog post. In my experience, most trial judges would not merge, until Sargent is explicitly overruled. But as long as you preserve the issue, an appellate attorney can do the heavy lifting.
Yesterday, in a case called Timbs v. Indiana, the United States Supreme Court heard oral argument on whether the Excessive Fines Clause of the 8th Amendment applied to the states.
When the Bill of Rights -- the first 10 amendments to the US Constitution -- was first adopted, it did not apply to the states. However, the passage of the Due Process Clause of the 14th Amendment -- which does apply in state court -- was widely interpreted as incorporating some of the first 10 amendments, that is, limiting state power in state criminal prosecutions, primarily. But which federal constitutional rights protect a defendant in state court and which do not? Early on, it was hit or miss, and in 1884, in a case called Hurtado v. California, the US Supreme Court appeared to hold that the indictment clause in the Fifth Amendment does not apply to state prosecutions. More on this later.
Over time, the Supreme Court increasingly held that the Due Process Clause of the 14th Amendmendment incorporated more and more of the Bill of Rights. And the trend has been to reverse earlier opinions that said otherwise. For example, it wasn't until 2010 that the US Supreme Court held that the 2nd Amendment (the right to bear arms) was incorporated by the Due Process Clause, reversing very old precedent. Thus, in state court, a defendant could cite the federal protections of the 2nd Amendment when challenging a state statute.
In the Timbs case, the question at issue was whether the Due Process Clause incorporated the provision in the 8th Amendment that prohibits "Excessive Fines." Here's what SCOTUSblog had to say about how the argument went:
- Although the only question before the justices in Timbs’ case was whether the Eighth Amendment’s excessive fines clause applies to the states, the justices spent very little time on that question, because there appeared to be broad agreement on the court that it does. Justice Neil Gorsuch seemed to summarize the feeling on the bench in a question for Thomas Fisher, the Indiana solicitor general who argued on behalf of the state. Gorsuch asked, almost rhetorically: The excessive fines clause “applies to the states, right?” Gorsuch observed that most of the Supreme Court’s cases interpreting the Bill of Rights to apply to the states “took place in like the 1940s.” Somewhat incredulously, Gorsuch continued, “here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on.”
Why does this matter in Oregon? It matters for two reasons. Two provisions from the Bill of Rights that have arguably not yet been incorporated are the right to a unanimous jury (which is not expressly found in the Bill of Rights) and, as mentioned above, the right to a Grand Jury indictment.
I'm not going to talk about the first. This post is about whether the Grand Jury Clause applies to Oregon. But before we get to that, your first question should be, "who cares?"
That should be your first question because Oregon's Constitution has its own Grand Jury clause, Article I, section V. It states that felony prosecutions require an indictment by Grand Jury, a waiver of indictment or a preliminary hearing. If the Oregon Constitution guarantees at least a preliminary hearing, why does it matter that the federal constitution does not?
But the reason it matters is this: the US Constitution recognizes as elements of crimes -- often referred to as Blakely elements -- that the state constitution does not. These elements enhance or aggravate a crime, and they can significantly lengthen the defendant's period of incarceration. Because they are not recognized as elements of a greater offense under the Oregon Constitution (with some exceptions), they do not need to be submitted to a Grand Jury under the Oregon Conbstitution. In other words, the prosecutor can threaten to double the defendant's potential sentence by dashing off -- without any oversight by a Grand Jury or a magistrate -- a number of often ill-thought-out enhancement factors up to 60 days obtaining the indictment.
But because these are elements of aggravated offenses under the US Constitution, if the Grand Jury clause was incorporated as part of the 14th Amendment, and therefore applicable to the state's, the current statutory notice scheme for enhancement factors would be unconstitutional. It would require some form of oversight, and as a result, we would see far fewer enhancements and thus shorter prison sentences.
Put another way, if Hurtado v. California were overturned, then a large number of defendants would benefit. For one, it would decrease the prosecutor's leverage pre-trial. More than anything else -- even more than unanimous juries -- it would have a significant impact on the number of people in prison by generally reducing the length of prison sentences.
(Yes, the prosecutor could still get upward departure factors past the GJ or past a magistrate, but as with anything else, the harder you make it for someone to get a widget, the fewer widgets they will get.)
Since Justice Gorsuch appears to believe that partial incorporation doesn't pass the laugh test, maybe we should be thinking about challenging the use of enhancement facts that haven't been submitted to the Grand Jury and give him the opportunity to apply the last part of the 5th Amendment to Oregon criminal prosecutions.
But I mentioned above that Hurtado "appeared" to hold that the GJ Clause doesn't apply to state prosecutions. Why the hedge?
While it's true that Hurtado found that it does not violate Due Process when the state doesn't submit a charge to the Grand Jury, it does appear to say that Due Process would still require a preliminary hearing. The Hurtado court wrote, after a discussion of the importance and history of Grand Jury indictments:
- Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution, is not due process of law.
In other words, a preliminary hearing in state court prosecution satisfies Due Process. If this is correct, enhancement factors that aren't subject to preliminary hearings, even if Hurtado isn't overturned, violate the US Constitution.
This concept -- that maybe the right applies but not the full scope of that right -- was endorsed -- at least generally -- by Justice Kagan at the same oral argument mentioned above. Again, SCOTUSblog:
- At one point during Fisher’s time at the lectern, Kagan noted that, when the Supreme Court decides that a provision of the Bill of Rights applies to the states, “there are always going to be questions about the scope of the right” that applies. But when the justices “have decided whether to flip the switch” and decide whether a right applies, it hasn’t decided those questions, instead leaving them “for another day,” she explained.
That sounds like exactly what Hurtado did. Maybe you don't get an indictment in state court but the protection that an indictment is supposed to provide is satisfied by a preliminary hearing.
It is not unusual, in a promoting prostitution case, that the defendant is in jail when the crimes allegedly occurred. Tape recorded jail calls will reveal that the defendant sought to have money placed on his books by a woman whose phone number is often used in backpage ads, which offer her services as an escort, though nothing expressly illegal is described in the ad itself. The money that is subsequently placed on defendant's books at the jail is, under the theory used to obtain an indictment, "pursuant to an agreement or understanding that the money, goods, property, services or something else of value is derived from a prostitution activity."
In these cases, the alleged prostitute never testifies, and it is up to a police officer to testify as an expert that those backpage advertisements are consistent with "prostitution activity." This falls under the category of "profile evidence," because there is no direct evidence of this particular person exchanging sex for money, but rather, that she does things -- such as placing lawful backpage advertiesements -- that other people -- who did exchange sex for money -- also did.
Is that enough to prove that the money placed on the books was derived from prostitution activity?
It shouldn't be, and there are a number of ways to attack it. One way would be to move for a limitation on the jury's consideration of the officer's profile evidence testimony. Specifically, the jury should be prohibited from using the profile evidence as substantive evidence that she in fact prostituted herself.
Case law in Oregon is thin or non-existent when it comes to the uses for which profile evidence can be put. Other jurisdictions have more developed case law in these areas. In 'AZ v. Escalante, (issued Sept 14, 2018), the Arizona Supreme Court -- under their version of the plain error standard -- reversed convictions based on the use of profile evidence as substantive proof of guilt, which is impermissible because "of the 'risk that a defendant will be convicted not for what he did but for what others are doing.' [Lee, 91 Ariz at 54.]"
The AZ court wrote:
- The prosecutor here introduced drug-courier profile evidence. He elicited testimony from officers who, after relating their training and experience in drug interdiction, described typical behaviors of drug-traffickers, thereby suggesting that because Escalante also engaged in such behaviors, he too was a drug-trafficker.
The court noted that such evidence can have value, but not as substantive evidence of guilt. If you're representing someone whose is charged with promoting or compelling prostitution because profile evidence is the only evidence the non-testifying witness engaged in acts of prostitution, use AZ v Escalante and the cases it cites to limit the jury's consideration of that evidence as substantive proof of prostitution activities. Then, move for a motion for judgment of acquittal at the close of the state's case. If you won the former, you'll likely win the latter.