Come Reinke or Come Shine
by: Ryan • September 11, 2013 • no comments
The Oregon Supreme Court is going to issue two very substantial criminal law opinions tomorrow, State v. Reinke and State v. Savastano. Ms. Savastano was convicted in 2008 of multiple counts of Aggravated Theft, following a conditional guilty plea. Her attorney, Conor Huseby, had preserved the equal privileges issues that ultimately prevailed at the Court of Appeals. Oral argument at the Oregon Supreme Court was almost one year ago. The appellate attorney is Ernest Lannet.
Mr. Reinke was convicted in 2009 of Kidnapping in the Second Degree and given a dangerous offender sentence. His attorney, Ron Fishback, preserved the argument that some of the factors in that theory of dangerous offender were "offense-specific" and therefore needed to have been pleaded in the indictment under the Oregon Constitution. Oral argument was 16 months ago, and the appellate attorney is Ernest Lannet.
So what do we know, in advance of the opinions, other than Ernie's not getting much sleep tonight?
We don't know much. I was exceptionally optimistic after oral argument in Reinke. Ernie did a magnificent job. But the length of time the case has been under advisement, the retirements of Durham and DeMuniz, and at least one horrible opinion from this court just a few months ago, have eroded my enthusiasm. Still, here's what I recommend you look for in tomorrow's opinion.
It should have been a slam dunk. The Oregon Supreme Court has held on more than one occasion (St v Wedge and St v Quinn) that offense-specific facts are elements under the Oregon Constitution, regardless of the label given by the legislature. As offense-specific facts, it follows that they should have been pleaded in the indictment, since, after all, it's been understood for decades that elements must be pleaded in the indictment.
The state's argument was that they weren't elements because the legislature says they weren't, end of discussion. If the Oregon Supreme Court shows the appropriate deference to stare decisis . . . well, if they did, it shouldn't have taken 16 months to write an opinion.
They could split the baby, recognizing that offense-specific factors are elements but rejecting the idea that they must be pleaded in the indictment. That would seem odd, but something Chief Justice Balmer said at oral argument had made me think that was a possibility. It might have been an idle statement, so I wouldn't necessarily read too much into it, but obviously it stuck with me 16 months later.
The Oregon Supreme Court has previously rejected the requirement that the "element" must increase the sentence beyond the maximum that can be imposed without the finding, (State v. Wedge again). This contrasts with the federal constitution, or at least it used to. So any argument to the contrary shouldn't be an issue, but adding that requirement might be a way -- with sufficient torturing of logic -- that the Court could overturn Mr. Reinke's DO sentence without opening the floodgates to all the other offense-specific enhancements.
Savastano's oral argument went less well, I thought, not through any fault of the attorneys, but because of an apparent willingness of a couple of the justices to toss out precedent. I won't say who, but I would note that one of the justices also happened to brief State v. Freeland and not on behalf of the defendant. I think there is the unfortunate possibility that Freeland will be significantly narrowed.
What else do we know? Justice Baldwin won't be writing the opinion in Reinke, since he was the trial judge.
And we also know that the lawyers in these cases, at every level, did fantastic work, whatever the outcome. It's been a long, hard road, four to five years from when the arguments were first made. There was little likelihood, in either case, of winning at the trial level. But the trial attorneys nevertheless had vision and smarts, the appellate attorney great skill and ambition, and maybe, just maybe, we will all be the beneficiaries of their exceptional lawyering.
