How'd the Optimists Do?
by: Ryan • October 7, 2011 • no comments
Short answer: not good. The original quiz is here. Since we've gotten answers to just about every question raised, I thought I'd revisit it, and within the next week or two, I'll publish another quiz.
Contents |
Question 1: Unanimity and Herrera
SCOTUS never granted cert. Though this wasn't the first time cert was denied on this issue, we had reason to be optimistic in light of the favorable analysis of McDonald v. Chicago, which had been issued the previous year.
=
Question 2: Would State v. Speedis change the law on non-enumerated enhancement factors?===
Short answer, no, but a number of questions were left open. See here . See also my thoughts on the opinion here.
=
Question 3: Would St v. Sanchez change the pleading requirements for enhancement facts?===
Nope. And review was denied. I think the COA's analysis of offense-specific enhancement facts is unambiguously at odds with the provisions of State v. Ice that dealt with the Oregon Constitution, but the Court seems pretty locked into its position. Don't expect any changes until the OSC finally grants review.
=
Question 4: On the topic of sex abuse II, would the COA overrule St v. Stamper?===
The short answer is no, but the short answer is misleading. The COA did find that Stamper resulted in an unconstitutional proportionality problem, which is What is the Crime Seriousness Level of Sex Abuse II after Simonson? . While the COA did conclude that stare decisis prevented them from overruling Stamper, the Oregon Supreme Court has granted review of a different sex abuse II case, where the validity of Stamper is one of the questions presented. So, we had a partial win on sentencing, but we haven't had a total win . . . yet.
=
Question 5: Any signs of life for the three issues mentioned?===
Though all three issues have been discussed on this website, I don't know if any of them have been preserved. My guess is, the DRE DUII issue is the one most likely to reach the COA first. See Jonah's discussion of that issue here . Do you have a DRE DUII? It's malpractice not to read Jonah's post.
The constitutional right to a firearm, even when you're a felon (as long as you can prove you aren't dangerous) is A Guide to As-Applied Challenges to Felon in Possession .
=
Question 6: Do any of those charges merge?===
Yes. The court has merged UUV and PSV , which is a big deal for negotiations, and it's an even bigger deal if you know that UUV should not result in a license revocation. See Gabe's post here . (Got a UUV? Again, malpractice if you haven't read Gabe's post.)
The other three merger questions are still open. The ID Theft merger issue - at least as I phrased it in the quiz, limiting it to imaginary people - was somewhat skirted in [/ID_Theft,_Court_of_Appeals_and_Merger State v. Mullens] last month, although it appears generally favorable to merging counts involving non-real people.
All in all, the quiz doesn't reflect just how good a year it's been for criminal defense arguments. St v. Savastano, while anticipated on this website in a post months before the opinion came out, wasn't reflected in the quiz, and it's the gift that will keep on giving for years to come. We've also had good suppression holdings, including most recently the case on the -automobile-exception-doesn't-apply-parked-cars automobile exception. Too many others for me to mention here. In some very important ways, fortune continues to favor aggressive lawyering.
