Don't Misread the Washington Equal Privileges Case!
by: Ryan • October 5, 2011 • no comments
In yesterday's opinion in State v. Washington, the defense lost an equal privileges argument on the grounds that a sufficient policy did exist. Although I much prefer case law that expands equal privileges arguments, I'm actually mildly pleased with this decision, for the simple reason that it reaffirms the Equal Privileges principle behind Savastano. Before St v. Savastano and St v. Davis, we had maybe five or six equal privileges opinions in twenty years (numbers taken entirely from the top of my head, so treat with skepticism). A few years ago, when we started to make Freeland-style arguments, the case law seemed like it came from a different era. Judges weren't really familiar with the principle before we brought it to their attention. It always just felt like starting from scratch. In contrast, even unfavorable opinions such as Washington - coming quite soon after Savastano - help cement EP arguments in the judicial mind.
There's one tricky part of Washington I want to highlight, because I think if you read it quickly, you'll mis-read, which I did at first. The court looked at whether the secondary basis for affirmance - the reliance on the prior criminal history of the defendant, not the aforementioned policy - would also survive an EP challenge.
Here, the deputy district attorney who testified that different prosecutors might view criminal history differently also described what, in his view, was a disqualifying criminal history, and further testified that application of this aspect of the policy required his "specific authorization." To the extent that defendant is suggesting that the district attorney's office failed to follow its own policy because review by the senior deputy "did not occur in this case," we find that argument to be disingenuous. As noted, defendant was not eligible for misdemeanor treatment because he was on the NLCEP list; the reason the "criminal history" exception is in play is because the district attorney's office took the position that, had defendant not been disqualified for misdemeanor treatment based on the NLCEP list, he would have been disqualified based on his criminal history. Defendant has not rebutted the state's evidence on that point, nor has he shown that, in practice, the district attorney's office fails to follow its policy or administers it in a standardless or ad hoc manner. See Bruner, 299 Or at 271 (defendant must establish the lack of criteria or, if there are criteria, the lack of consistent enforcement).
When the court starts by observing the the prosecutor identified his view of the criminal history, and that other prosecutors might view it different, I was afraid the court was saying something utterly inconsistent with Savastano - that this particular prosecutor's view was sufficient to constitute a policy, even if different prosecutor would take a different approach. But that's not what the court said, ultimately. Rather, the defendant never offered proof there was no policy, and it's ALWAYS the defendant's burden to first prove the absence of a policy.
In Savastano, the prosecutor volunteered there was no policy at the hearing on the EP motion. But I have reason to believe that prosecutors have learned not to say that. Rather, they are silent when the issue of the policy comes up, except to point out it's the defendant's burden to prove a lack of policy. This means you need to call someone from their office capable of testifying as to the existence or non-existence of a policy, just as Michael Shrunk was called in Freeland.
It might be uncomfortable serving such a subpoena on the DA or chief deputy DA, but in a county like Multnomah, the prosecutors don't want to testify every day, so they've put together an affidavit on their Dangerous Offender policy. In my case, that was good enough for my purposes and we submitted it in lieu of testimony (and eventually the DO notice was withdrawn). The same thing nearly happened regarding their upward departure policy, but the upward departure notice was withdrawn before they turned over the affidavit. You should feel free to suggest the same to the DA's office in your county, although you'd stress that you need to see the affidavit before you waive their live testimony. But bottom line, don't expect prosecutors to volunteer their lack of a policy at the hearing on your motion. That's not something we can get away with twice.
