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Does effective representation require defense attorneys to know where the law is going, not just where it is?

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by: Ryan Scott • November 14, 2020 • no comments

It's very hard to get cases up to the Oregon Supreme Court for a number of reasons. They don't take many cases. They aren't an error-correcting court, meaning any opinion they might issue must have application beyond the case itself. Generally, they're going to only take cases where there isn't a dispute about preservation.

Furthermore, PCR cases are even harder to get to the Supreme Court. There are also a number of reasons for this, but the most obvious is that meritorious PCR appeals are relatively few and far between, compared to criminal cases. Even so, within the last decade, we saw a cluster of PCR cases that reached the Supreme Court on the issue of experts, when defense counsel needed -- at minimum -- to consult with one, to make sure counsel was consulting with the right one, and to make sure counsel understood what the expert was telling them. Collectively, these cases demonstrated that the justices of the Supreme Court expected more from lawyers -- at least with regard to experts -- than appellate case law had previously required.

The Supreme Court seems to be taking an interest in another aspect of criminal defense: making legal arguments that aren't necessarily obvious but based on a careful reading of -- arguably conflicting -- case law. Last week, the Court granted review to two PCR cases, and the press release described the issues as follows:

If an indictment and discovery provide a defendant with inadequate pretrial notice of the nature and cause of the accusation against him, under Article I, section 11, of the Oregon Constitution, the Sixth and Fourteenth Amendments to the United States Constitution, and ORS 132.550(7), must defense counsel, to exercise reasonable professional skill and judgment and provide adequate assistance of counsel, move for a pretrial election by the state?
Can defense counsel perform deficiently by failing to object to evidence that apparently controlling Court of Appeals case law indicates is admissible?
Is objective evidence of prevailing professional norms admissible to prove whether defense counsel's failure to raise a particular issue was unreasonable?

If you know me or my work, you know that I love issues that aren't the law yet. But the issues I've promoted over the past decade -- e.g., the Poston demurrer, criminal episodes, a challenge to St v. Barnes, a challenge to the "natural and probable consequences" jury instruction, and most recently, a challenge to St v. Boyd -- have all been rooted in either express statutory language or case law. Yet those arguments frequently lost -- or continue to lose -- at the trial level because it was contrary to accepted practice, there might have been conflicting Court of Appeals case law or simply no case law on point.

If an attorney wants to defend himself against ineffective assistance for, say, not challenging St v. Boyd or St v. Barnes, it is not a completely unreasonable argument under current PCR case law that Boyd is still good law and Barnes is even good law from the Supreme Court, and effective representation doesn't require attorneys to bang their head against the wall.

I would argue, however, that defense attorneys have an obligation not only to know what the law is but where it is heading. Barnes, a horrible decision that impacts the majority of M11 assaults, as well as other felony assaults, is inconsistent with St v. Simonov, which was obvious the moment Simonov was issued. This is why attorneys, knowing it would lose at the trial level, because Barnes was controlling, nevertheless made an argument to the contrary. Three of the attorneys who did so have been rewarded: their cases are now before the Oregon Supreme Court, which will be reconsidering Barnes this spring.

Were the attorneys who preserved the issue uniquely insightful, were they lucky or were they just doing what the law expects of them? I think when the Supreme Court answers the questions in last week's press release, we will be closer to an answer.

It's possible distinctions can and will be drawn. Assuming the challenges to Barnes are successful, maybe an attorney wasn't ineffective when they failed to raise the issue before the Supremes granted review of those three cases, and only ineffective when they failed to raise it after the Supremes -- by granting review -- made clear it was a live issue. Or maybe they were ineffective when they failed to raise the issue post-Simonov. We'll have to wait and see.

A similar question is likely to come up if the challenge to St v. Boyd is successful. Boyd is a Court of Appeals decision that has resulted in thousands of people going to prison. It interpreted the law in a way that may not be supportable. The Court of Appeals has expressed some doubt in the continuing validity of Boyd, but haven't said they will reverse it. And they might not, whatever their doubts, because of stare decisis. But stare decisis wouldn't bind the Oregon Supreme Court. Is this enough information for us to expect a trial attorney to preserve the issue?

You can guess my opinion on this issue.