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Good Clackamas County, Bad Clackamas County

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by: Ryan • January 17, 2013 • no comments

This afternoon, I stopped by a courtroom in Clackamas County and I was perusing the standard forms on display.

First, the good news. Clackamas County now has a special form for admitting to contempt. No longer is anyone required to use a criminal plea petition. This is great news, since -- as you all must know by now -- contempt is not a crime.

I did not see a special judgment form for contempts, and I would love to hear from Clackamas County practitioners if such a form exists already or is (hopefully) on its way. Similarly, I don't know if the Clackamas County DA's office continues to charge contempt as an unclassified misdemeanor. If they do, I hope y'all are demurring, because an allegation of contempt fails to state a crime.

Now for the bad news. I also saw a document entitled "Findings of Fact." As far as I can tell, this form is used both after a plea but also after a contested upward departure hearing. Not certain, though, and I'd love to hear from Clackamas County practitioners.

The form states, in part:

The Court hereby makes the following findings of fact:
Findings in Aggravation:

There are a list of enumerated departure factors, and a box next to each one, for the judge to check. I want to highlight three of the alleged departure factors:

The defendant has been persistently involved in criminal activity unrelated to the current crime.
The crime(s) alleged in count(s)___________ involved one or more particularly vulnerable victims.
The crime(s) alleged in count(s) __________ involved harm or loss greater than typical.
[Emphasis in original.]

What's the problem? Simple. None of those are aggravating factors. They look like aggravating factors. They smell like aggravating factors. But they aren't.

They are almost aggravating factors. The actual aggravating factors are:

(B) The offender knew or had reason to know of the victim's particular vulnerability, such as the extreme youth, age, disability or ill health of victim, which increased the harm or threat of harm caused by the criminal conduct.
(D) Persistent involvement in similar offenses or repetitive assaults. This factor may be cited when consecutive sentences are imposed only if the persistent involvement in similar offenses or repetitive assaults is unrelated to the current offense.
(J) The degree of harm or loss attributed to the current crime of conviction was significantly greater than typical for such an offense.
[Emphasis added.]

The relevant OARs can be found here.

In sum, those aspects of the aggravating factor that might make the factor particularly difficult to prove (depending on the case) are conveniently left out of the "verdict" form.

I get that the form can be rationalized as shorthand. But it reinforces -- and rewards -- ignorance, either the prosecutor's ignorance of what he/she has to prove, or the judge's ignorance of what he/she has to find. After all, you wouldn't want a verdict form to say, "assault I, weapon, injury" even if the jury was fully instructed on the elements of assault in the first degree. And I'm not super-confident defense attorneys have all read the OARs on departure factors. (FYI: the limitation on using "persistent involvement" that is contained in the OAR isn't the only self-imposed limitation on a departure factor. Check out the OAR. It's worth it.)

There can be a lot to fight, when it comes to upward departures. If you want to know more, go to the OCDLA conference in March, and watch Russell Barnett's presentation on departures. That alone makes the conference worthwhile, but the whole conference is fantastic.