In my prior posts on this topic, I've focused on identifying those indictments where the demurrer is appropriate. In a couple of those posts, I've included sample improper joinder demurrers, so you've got examples of writing the demurrer. Now I want to explore the issues involved in arguing the demurrer.
First thing to keep in mind: it's the statutes themselves which specify that a demurrer is the remedy for improper joinder.
In arguing a demurrer, in all cases except one, you can only consider what is within the four corners of the demurrer. The one exception is a definite and certain demurrer, where either side can offer the police reports (or other discovery) to show that the discovery does or does not cure the ambiguity contained in the demurrer. In fact, I'm of the opinion that the defense -- as a practical matter -- should always offer the police reports themselves or a thorough affidavit that lays out the facts.
Under current case law, that is the only exception to the four corners rule. It is at least theoretically possible that the courts will carve out a similar exception for the improper joinder demurrer, but let's assume for the first part of this post that they don't.
What you argue next depends a lot on the county in which you file the demurrer. If, like Multnomah County, the indictment never includes the language "as part of the same act and transaction," it arguably creates a very favorable advantage for the defense.
For example, let's assume the indictment alleges failure to register and felon in possession from the same incident date. (In a previous post, I've written why this is a slam dunk winner for the defense.) If the facts came in, that alone would prove that they aren't part of the same criminal episode. (The other bases for joinder -- common scheme or plan or same or similar offense -- self-evidently do not apply.)
But if we are limited to the four corners of the indictment, we win as well. The state can't offer any evidence for why they are part of same criminal episode, because the state can't even offer that the charges arose from the same traffic stop. On its face, the charges are not properly joined in the indictment.
What if you work in a county in which the DA's office does include "same act or transaction" language in the indictment? First, I'd look to see if maybe the language, in a case like the above, actually alleges that the Felon in Possession is part of a "separate act and transaction" from the Failure to Register? If it does, the state has provided all the language you need to win the demurrer.
If the indictment does allege the two counts are from the same act or transaction, this helps you as well. You may not win the demurrer, but you benefit at sentencing. If the crimes are from the same act or transaction, a number of favorable rules -- like "shift to I" -- kick in. Your client might be presumptive prison on both counts, but he'll only get prison on one.
If the court is limited to only considering the four corners of the indictment, what do we do if the indictment alleges felony DUII and criminal mischief, and the state doesn't allege that they are from the same act or transaction? Limited to the face of the indictment, there is no way to know if the counts are from the same act or transaction or common scheme or plan. Would you be entitled to win the demurrer even if -- were all the facts put before the court -- they would have been properly joined? We really don't know how the appellate courts will resolve this issue unless and until we put the issue squarely before them.
If an exception is made -- if the appellate courts say that it would be okay, under this demurrer, to consider the facts of the case to determine if the counts were properly joined -- there are still a number of indictments where it is quite obvious the demurrer would apply. As Brook Reinhard mentioned in his post last week, winning the demurrer -- even if the state reindicts -- has its advantages, including, in his case, keeping the "ID theft" jury from hearing about the drugs, and the drugs jury from hearing about the fake IDs.
But even more advantages accrue if you lose the demurrer, a concept that is easy to grasp if you're a chess player, but maybe not so intuitive if you're not. If you lose the demurrer, you might benefit at sentencing (see one example above) or you might win on appeal, when it would be too late for the state to reindict (the statute of limitations having elapsed).
Lastly, a reminder. Whenever I see the following counts joined in one indictment, the presumption should be that they are improperly joined:
- Theft/Burglary and PCS.