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Top Ten Observations about Defense Lawyers

by: Ryan Scott • March 31, 2017 • no comments

Kopf's list begins:

10. Criminal defense lawyers are at great risk of becoming drunken bastards—the stress is beyond description.

9. Being a good criminal defense lawyer requires sincerity whereas being a great criminal defense lawyer requires the ability to fake it.

8. When it comes to convincing a client to accept a guilty plea because it is in the manifest best interests of the client, a criminal defense lawyer must become a client whisperer.

7. When it comes to convincing a client to reject a plea offer and take the case to a jury, a criminal defense lawyer (regardless of gender) must possess balls of steel.

6. Real criminal defense lawyers don’t hate prosecutors, but they don’t trust them either.

The rest of the list gets more interesting.

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Race, Crime, Lead: More on the Impact of Banning Leaded Gasoline

by: Ryan Scott • March 30, 2017 • no comments

Kevin Drum's post is here, highlighting two studies. Very interesting to show how leaded gasoline -- and the subsequent ban on leaded gasoline -- impacts incarceration and crime as categorized by the race of the defendant.

Does Retroactive Application of SO Registry Laws Violate Ex Post Facto?

by: Ryan Scott • March 30, 2017 • no comments

You may have thought this issue was dead, but apparently it has some life. Per SCOTUSblog, SCOTUS has invited the solicitor general to weigh in on the petition for cert in Snyder v. Doe, which raises the question whether retroactive application of sex-offender-registry laws violates ex post facto clause.

That doesn't mean the justices will take the case, but at least one justice is considering doing so. I wouldn't expect a decision on whether to grant cert until the fall.

SW to Seize and Search a Car's Black Box

by: Ryan Scott • March 30, 2017 • no comments

I've been waiting to have a case -- almost certainly a vehicular manslaughter or similar -- in which to raise this issue. Hasn't happened yet. But here's an appellate opinion where it was raised. Key quote:

The state challenges an order granting appellee Charles Worsham’s motion to suppress. Without a warrant, the police downloaded data from the “event data recorder” or “black box” located in Worsham’s impounded vehicle. We affirm, concluding there is a reasonable expectation of privacy in the information retained by an event data recorder and downloading that information without a warrant from an impounded car in the absence of exigent circumstances violated the Fourth Amendment.

Here is Orin Kerr's take on the issue.


Historical Cell-Site Data: subpoena or search warrant?

by: Ryan Scott • March 22, 2017 • no comments

You can see a 9th Circuit oral argument on the issue here.

However, keep in mind, the Oregon Constitution may be far more favorable. See State v. Ghim for Oregon's take on the third-party doctrine.

Juvenile Arrest Rates Since 1980

by: Ryan Scott • March 6, 2017 • no comments

I highly recommend you look at this chart via Kevin Drum.

Mr. Drum writes:

Since 1996, arrests of juveniles have fallen by two-thirds. Arrests for violent crimes have fallen by more than two-thirds. Bottom line: Kids today are way better behaved and way less scary than they were in the 90s. One of these days we ought to start acting like we know this.

Child Porn Sentencing

by: Ryan Scott • March 5, 2017 • no comments

The Oregon Supreme Court has granted review to a case involving child porn sentencing. The issue is this: how many different criminal episodes are there when multiple images are found during a single search, but those images were obtained on different dates?

I won't reiterate the arguments here, but it's my case, so if anyone wants the briefs after they're filed, let me know.

If the defense wins, the impact could be that a defendant who is an "I" would stay an "I" for all counts. While much better than being an "A" after just a few counts, are there any other limitations that could dramatically shorten the sentence?

Yes. If the state can't prove separate victims, the 200% rule would kick in, and the defendant's likely sentence would be no more than 36 months.

But what if the images all involve separate children? My argument -- which I have written about before -- is that the burden is on the state to show that the people depicted in the images are still alive at the time of downloading by the defendant, because if they aren't, they are beyond all harm, and thus cannot be victims (in the same way you can't libel the dead).

The state's response, shared by some defense attorneys, is that when you download the images ten, twenty or even a hundred years later, you -- as a consumer of these images -- are the reason these images were created in the first place, thus you are complicit in the original abuse. Consequently, it is the harm from the original abuse that makes the children "victims" for all eternity, even if the porn people look at five hundred years from now is the same porn that exists today.

I think this is wrong because I don't think the law recognizes retroactivity in this type of culpability. Space/time certainly doesn't. But there is another key reason, and when I say it, you're going to be shocked, but read on, and you'll see I'm not promoting an argument that only a psychopath would make.

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The Science on Marijuana Legalization's Impact on Opioid Addiction

by: Ryan Scott • February 28, 2017 • one comment

Judge Rejects Warrant Provision On Compelling Thumbprint to Unlock Phone

by: Ryan Scott • February 24, 2017 • no comments

Details here.

Where Can You Get Crime Statistics?

by: Ryan Scott • February 24, 2017 • no comments

For US crime statistics, go to the FBI's Uniform Crime Reports. This is a good place to start. As Kevin Drum states, "Their data delivery tool provides a lot of flexibility, allowing you to get data for specific crimes, specific localities, and specific time periods. Unfortunately, it's usually two years behind the latest release, so you have to wade through the most recent PDF reports if you want current data. If you need a complete series, start with the data tool and then fill in the most recent couple of years by hand from the relevant reports."

More proof that the major reason for the drop in violent crime is. . . .

by: Ryan Scott • February 17, 2017 • no comments

. . . . unleaded gasoline. Or more precisely, the phasing out of leaded gasoline in the US in the 1970s. You can easily find previous articles and evidence of this around the internet. Perhaps the most compelling evidence is that the drop in violence is entirely predictable based on when and how quickly leaded gasoline was phased out, regardless of the country. Here is the evidence as it relates to Britain, which phased out leaded gasoline much later than occurred in the US but, once it did so, did so much more quickly.

This isn't rocket science. We know what lead does to the brain, in terms of intellectual development and impulse control. That getting it out of the environment would have long term benefits for the children who grew up after lead was reduced or eliminated in their neighborhoods is entirely predictable and born out by the evidence.

Things You Really Need to Know About Special Jury Instructions

by: Ryan Scott • February 16, 2017 • no comments

Today, the Oregon Supreme Court came out with an opinion in State v. Morgan. It's a good defense opinion but not a good one for this particular defendant.

The most significant holding is that in a robbery in the second degree based on "aided by another person actually present," the "other person" must actually intend to aid the principal in the commission of the robbery. It can't be inadvertent assistance.

But there are a few things from the opinion that are very much worth highlighting.

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Is Your Smart TV Spying on You? And How This Relates to the Most Important Suppression Opinion of the Year

by: Ryan Scott • February 7, 2017 • no comments

The Fourth Amendment blog writes about the story here.

The blog post asks the question: "So, if this is third party data, is it subject to mere subpoena and not a search warrant?"

And the answer is:

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An Objective View of the Relationship Between Immigration and Crime

by: Ryan Scott • January 27, 2017 • no comments

Article is here.

Key quote:

“Native-born Americans are more likely to be incarcerated than Central American immigrants, and recent increases in immigration occurred as crime actually fell in the US.”

The Costs of Mass Incarceration

by: Ryan Scott • January 27, 2017 • no comments

The costs referred to in the title are purely financial. But even those are huge, and likely conservative. The report comes from the Prison Policy Initiative. I haven't read it closely enough to determine if it includes the loss of tax income from inmates who would be working if they weren't incarcerated.

Probable Cause to Arrest for Trespassing

by: Ryan Scott • January 23, 2017 • no comments

SCOTUS granted cert last week to a case with the following facts (taken from SCOTUSblog's summary):

The first grant came in District of Columbia v. Wesby, a case that presents important questions regarding the assessment of probable cause by police officers and qualified immunity. The case arose when police officers in Washington responded to a noise complaint about a vacant house, where they found scantily clad women and the smell of marijuana. No one seemed to know who owned the house or precisely what the occasion was, but some of the partygoers told police that they had been invited by someone named “Peaches” or “Tasty” – who was not at the party, but who admitted that she did not have the owner’s permission to use the house.
The partygoers were arrested for trespassing, but no charges were ever brought against them. The partygoers then filed a lawsuit, in which they alleged that the police lacked probable cause to arrest them because they had told police officers that they had been invited to the house and therefore did not intend to trespass.

Two pieces on criminal law worth reading

by: Ryan Scott • January 16, 2017 • no comments

The first piece involves the reduction, by 50%, of the number of black males under 30 who are incarcerated since 2001. The reason won't surprise anyone who has regularly read this blog. The thing to keep in mind is that, around the country, you're seeing lower incarceration rates for young males AND lower crime rates. Keep this in mind when you hear people defend higher incarceration rates as the explanation for reduced crime.

The second is a Slate piece about Oregon prosecutors. It's brief, and it tries to cover a lot of ground. Consequently, it's a more superficial discussion than I would like, but it's a start.

"Kids Are Killing a Lot Fewer Cops These Days"

by: Ryan Scott • January 4, 2017 • no comments

Here's the story behind it. It's another example of how the greatest anti-crime measure this country ever undertook was removing lead from gasoline.

Possession with Intent to Deliver: the state's special jury instruction

by: Ryan Scott • December 21, 2016 • no comments

I wrote about this back in 2011, after the COA had approved a state's instruction on possession with intent to delivery in State v. Schwab. Here's what I wrote, edited somewhat:

[T]he challenge to the instruction was very limited and therefore the COA's holding was narrow. ("In short, the issue that defendant frames on appeal — whether a jury instruction that indicates that a person may be found guilty of delivery of a controlled substance based solely on the quantity of the substance found — is not actually properly before this court.") The Supreme Court denied review, but another strange thing happened. There was a written concurrence to the denial of review, an event I don't know if I've ever seen before. (Dissents, yes, though primarily from SCOTUS. I'm sure it's happened before, but never, for me at least, memorably.)

The concurrence first quoted the instruction at issue:

"Under Oregon law, possession with intent to deliver constitutes delivery, even where no actual transfer is shown. An attempted transfer occurs when a person intentionally engages in conduct which constitutes a substantial step and includes, but [is] not limited to, possession of a large amount of a controlled substance, not for personal use, but consistent, instead, with trafficking in controlled substances."

Then the concurrence said this about the instruction:

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Effect on the Listener

by: Ryan Scott • December 16, 2016 • one comment

From Justice DeMuniz's concurrence in Sullivan v. Popoff:

The first issue has to do with the relevance of the so-called effect-on-the-listener statements. Every statement has an effect on the mind of those who hear it; therefore, there is always an argument to be made that an out-of-court effect-on-the-listener statement is admissible because it qualifies as "not hearsay." However, an out-of-court statement is not hearsay only if it is (a) relevant, and (b) offered to show the statement's effect upon the listener's state of mind. Laird C. Kirkpatrick, Oregon Evidence § 801.01[3][d], 705 (6th ed. 2013); see, e.g., State v. West, 145 Or.App. 322, 325, 930 P.2d 858 (1996) (police officer could testify to instruction given by another officer to show the instruction's effect on defendant); see also State v. Hren, 237 Or.App. 605, 607, 241 P.3d 1168 (2010) ("Statements that are relevant to show their effect on a listener are not hearsay."). Stated another way, an out-of-court statement may be offered to show that the making of that statement had some effect on the person who heard the statement if that person's state of mind is relevant to an issue in the case. See State v. Thomas, 167 Or.App. 80, 83-84, 1 P.3d 1058 (2000) (trial court erred in excluding as hearsay witness's out-of-court statement offered to prove the effect on the defendant, one of the listeners). Not every out-of-court effect-on-the-listener statement is relevant to an issue in a case. For example, a police officer's state of mind is seldom relevant to an issue in a criminal case. Thus, when dealing with so-called "effect-on-the-listener," or state-of-mind statements, the question, "Is it relevant?" is just as important as the question, "Is it hearsay?" G. Michael Fenner, The Hearsay Rule 331-32 (3d ed. 2013). [Emphasis added.]
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