Can Any Policy Be So Incoherent that There is No Need to Show Inconsistent Application?
The answer to the above question, according to the COA, appears to be "no."
Let me back up briefly. We're talking about a challenge under Article I, section 20, when the DA's office exercises its discretion on how to aggregate a number of thefts from separate criminal episodes. The COA seems to be taking the position that any policy on aggregation (or any other decision subject to an equal privileges challenge) is enough to shift the burden to the defendant to show an inconsistent application of that policy.
"Defendant may be correct that a list of general factors, including (as did the prosecutor's list in the present case) 'any other circumstances or factors unique to the case,' does not automatically and necessarily meet the requirements of Article I, section 20. To do so, the policy must be systematically and consistently applied. * * * However, to prevail, defendant must demonstrate inconsistency." State v. Smith, ___ Or App ___ (2011), quoting State v. Pettengill, 243 Or App at 594-95
On the one hand, there is something appealing about this position. It's sorta like saying, "the proof is in the pudding." We - the COA - are not going to predetermine if a somewhat amorphous policy is too vague to be applied consistently; if it is too vague to be applied consistently, then that can be shown with inconsistent application. If the defendant cannot find any examples of inconsistent application, then we aren't going to say it's too vague in the abstract.
I don't know how fair or accurate that bit of ventriloquism is, but that's how I interpret today's opinion.
My uneasiness with this analysis can be shown as follows. Let's say the DA's policy on aggregation is entirely summed up as, "our policy is to aggregate based on the facts of the case." The "facts of the case" was actually one of three factors that made up the policy at issue in today's opinion. Assume for this hypothetical that it's the only factor. I believe it would give insufficient guidance to any prosecutor, but moreover, it's so vague that it's not clear to me how you could ever prove inconsistency. No two aggregation cases are going to be exactly alike. There would always be factual differences, from the dollar value of the individual thefts, the overall amount taken, the rate of theft, and so forth. In sum, there would always be a fact that could distinguish your case from another, if the two were in fact aggregated differently. A really useful and coherent policy would explain which differences are truly relevant, but that's not the case in this hypothetical.
So while I'm inclined to think the COA burden-shifting is unworkable in a practical sense, I'm not entirely convinced my concern is justified. Because even I'm just looking at the issue in abstract, and the devil is in the details. If you've got an aggregated theft case, find other cases of a similar nature, and start doing a case by case comparison. It will require a lot of shoe-leather, and cooperation from other defense attorneys, but it may turn out that, you know, it's not hard to find charging inconsistencies. In which case my concerns might be moot.
The other thing to keep in mind is that the COA has not yet articulated what constitutes permissible criteria. If you find cases aggregated differently, and the state wants to point out trivial factual differences, then I'd argue that trivial factual differences don't amount to permissible criteria.
And for an argument that almost always applies in aggregation cases, but isn't an equal privileges argument, see [/Embezzlement,_Criminal_Mistreatment_and_Aggregated_Thefts here.]