Aggressive Preservation and Defensive Preservation
by: Ryan • December 27, 2013 • one comment
At the OCDLA conference in December 2012, I spoke about accomplice liability. Though it wasn't a large part of my presentation, I mentioned a pending case -- State v. Philips -- which the Oregon Supreme Court had under advisement. It dealt with whether a concurrence instruction was required in a case where the state put forward -- at trial -- the possibility that the defendant could be either the principal or the accomplice. The COA had ruled against the defense, but the appellate attorney had done a great job at the Oregon Supreme Court, and I thought there was a chance the defense would prevail.
In light of the potential success, I suggested that attorneys who had clients in that situation -- i.e., the defendant could be convicted of either an accomplice or principal theory -- should ask for the concurrence instruction, note to the trial court that the COA has already said the court didn't have to give it, and then except if the judge in fact didn't give it. Why? Because if the OSC reversed the COA, there would be a very good chance that your client's conviction would be reversed as well.
Today, the OSC held that the trial court was wrong in denying the instruction, but it found the error harmless. So obviously, any attorneys who followed my advice aren't guaranteed a reversal -- it could be harmless in your case as well -- nevertheless that advice is looking pretty good at the moment.
If you did ask for the instruction but noted, as required by the ethics rules, that the COA had ruled against you, I would call that aggressive preservation. It does no harm to your client but may do him a lot of good down the road.
I have made a similar recommendation when it comes to the improper joinder demurrer. It could be in your client's best interest to lose the demurrer, with the hope he wins at the COA, at which time it would often be too late for the state to reindict (lapsed statute of limitations). A half-dozen attorneys have preserved it in Multnomah County, where the demurrer has never won, unlike other counties around the state where the demurrer has had more success. In my opinion, preserving that issue -- by definition, losing the argument -- is excellent lawyering, just as -- self-serving though it may be --recommending the concurrence instruction in co-defendant cases looks in retrospect like excellent advice.
I'd contrast aggressive preservation with defensive preservation. Yesterday, in a good case (mostly) for the defense, the COA reversed a sex abuse I conviction, based on the failure to give the defendant's special jury instruction. The opinion is here. The instruction would have told the jury that the defendant had to know that he was engaging in forcible compulsion, the same issue that reversed rape and sex abuse convictions in State v. Nelson.
Alas, in the opinion, the defendant didn't get his sex abuse III conviction reversed, despite preserving a request for essentially the same instruction for that count. The COA held that, yes, a mental state did apply to whether the complainant did not consent, but it didn't have to be knowingly. It could have been, say, that the defendant was recklessly or negligently unaware that the complainant failed to consent. The different results hinge on the fact that "forcible compulsion" is an act, but "does not consent" is a circumstance.
I'm not going to argue that the COA got it wrong. I would however hold this case up as an example of how incredibly complex criminal law has gotten in the past 20 years. Getting issues of first impression correct involves increasingly going down the rabbit hole of legal analysis. Which is why it is important to preserve things defensively. The defense attorney did a great job in preserving his special jury instructions (and let's not forget he got the Sex Abuse I reversed). Great lawyering! But -- and I say this as someone who has made this exact same mistake -- he should have objected to the standard instruction as well, even if, at the time, it would have seemed redundant. It's important to recognize that if the COA rejects the special instruction for an unanticipated reason, as it did here, you can still win -- even if, by definition, you can't anticipate where the COA will find fault -- if you except to the standard instruction as inadequate for failing to include a mental state.
This is defense preservation, or over-preservation, if the COA largely agrees with your analysis but rejects the special instruction for reasons you can't imagine.
In sum, this is a hard, f*&$ing job to do exceptionally well. But over time, really good results accrue to the attorneys who do.
