Are a majority of co-defendant indictments fatally flawed?

This wikilog article is a draft, it was not published yet.

by: Ryan • August 31, 2013 • no comments

I have often argued that ambiguity favors the state. For example, if it is unclear whether your client could legally face 5 years or 20 years, he has to assume it's 20 years, or it might be 20 years, when making his decision about whether to settle. The state can also assume 20 years, and if they're wrong, so what? They don't lose anything by making that assumption.

But ambiguity favors the defense in a couple of situations. If the defendant has filed a demurrer, and maybe it should win or maybe it shouldn't, case law isn't clear, then the state won't automatically reindict. They won't concede. And you may not win with the judge. But if you win on appeal, all the charges go away, and there's the possibility they might never come back. If the demurrer was an obvious winner, the state would reindict before trial, and you'd lose all the advantages of winning on appeal when it was too late for the state to re-file under the statute of limitations.

With that in mind, assume the following facts. Police attempted to pull over car. In car, there's Driver and Passenger. There is an attempt to elude but eventually the car is stopped. Substantial amounts of drugs are found and both Driver and Passenger are charged with DCS and PCS. However, only Driver is charged with Attempt to Elude.

There is only one indictment for both and it charges:

    Ct #1   DCS  (Driver and Passenger)
    Ct #2   PCS  (Driver and Passenger)
    Ct #3   Felony Fleeing (Driver)

Those of you who have read my recent posts on the improper joinder demurrer already know that an indictment presumptively consists of only one charge, unless exceptions are met. If the indictment has multiple counts, and it does not -- on the face of the indictment -- satisfy those exceptions, it is subject to a demurrer, per statute.

The joinder statute states in part:

132.560 Joinder of counts and charges; consolidation of charging instruments. 
     (1) A charging instrument must charge but one offense, and in one form only, except that:

     (a) Where the offense may be committed by the use of different means, 
         the charging instrument may allege the means in the alternative.

     (b) Two or more offenses may be charged in the same charging instrument in a 
         separate count for each offense if the offenses charged are alleged to 
         have been committed by the same person or persons and are:

     (A) Of the same or similar character;

     (B) Based on the same act or transaction; or

     (C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

Again, if you've been following the discussion regarding single-defendant indictments, you know that I take the position that the indictment must justify the exceptions on its face, just as it must justify exceptions to the statute of limitations on its face.

This means that, if the charges aren't obviously the same or similar, then the indictment must allege they are based on the same act or transaction or they are connected together or constitute parts of a common scheme or plan.

A ton of multi-count indictments in Multnomah County fail this test. Most defense attorneys still don't file a demurrer.

But what about the hypothetical situation above. When there are co-defendants contained in the indictment, then there is an additional requirement, specifically that it must be alleged that the offenses were "committed by the same person or persons."

If the above indictment were issued in Multnomah County, it would already be subject to a demurrer, because it would fail to allege that the elude and the DCS/PCS were either part of the same transaction or constituted parts of a common scheme or plan.

But does it also fail the requirement that the offenses were "committed by the same person or persons"? Specifically, does it matter that only Driver is charged with all three counts? The felony fleeing was not committed by Passenger. Yet the language in the statutes says that the offenses must have been committed by the same person or persons? Does the phrase "the offenses" mean "all offenses", and therefore, all offenses must have been committed by all persons? And if it does mean all offenses, does it violate the language of the statute that Passenger is not alleged to have committed all of the offenses in the indictment, only "some of the offenses"?

There is no question there's some ambiguity in the way it is written. But what recently-discovered case law has shown is that the legislature once had a much more limited view of what constituted proper joinder than current practice reflects. It seems not at all implausible that the legislature never intended that one defendant is charged with 3 counts, another defendant is charged with 2 of the 3 as well as two others, and another is charged with some of the first, some of the second, and some of his own.

Let's take it one step further. Your client is charged with Murder and the co-defendant is charged with Aggravated Murder in the same indictment. Is that indictment subject to a demurrer? If your answer is "maybe," shouldn't you be filing the demurrer (and in some cases, hoping you lose at the circuit court)?