My posts tend to fall into three categories: relatively obscure rules of law, unintended consequences of appellate decisions and, my favorite, "open questions."
I love open questions. But not everyone does. And by "not everyone," I mostly mean trial judges. I kid, sort of. Open questions can be very hard to win at the trial level, in the absence of sufficient guidance from the appellate courts, because -- as I have said in other contexts -- the default position of the average trial court judge is to rule for the state. It's the safest thing to do. And from a purely statistical analysis, it's the right the thing to do. Ruling for the defense on an issue of first impression is not the best way to maintain that 95% affirmation rate.
Which is why it's the defense lawyer's job not merely to have the better argument, especially on open questions, but to make the argument in such a way that you give the trial court the confidence to rule for the defense. Which means well-written, concise and persuasive memos, cogent oral arguments and a reputation for being right.
One of the ways you get that reputation, by the way, is to lose issues of first impression at the trial level but win them on appeal.
Trial judges aren't the only ones who don't like open questions. Some defense lawyers don't either. Open questions require more work, more analysis, than, say, a motion to dismiss for lack of speedy trial. And you have to sell something you might not have that much confidence in either.
It is my hope that the LoD can keep you up-to-date on the newest of the open questions. With that in mind, let's get to the good news. The Oregon Supreme Court has granted review to State v. N. R. L. Oral argument is set for March 11, 2013.
Which one is N. R. L. ? It raises the question whether -- in light of recent changes to the restitution statutes -- the amount of restitution is a jury question, under the guarantee of a civil jury trial contained in the Oregon Constitution.
The COA said it wasn't, relying on two things, essentially. The first was that there's no non-economic damages, i.e., "pain and suffering" or punitive damages, in an award of restitution. This distinguishes it from a civil award, and it's a distinction that matters if the question is framed as, "is restitution exactly like a civil judgment?"
I think this asks the wrong question, but I won't belabor it here. I would point out though that if a plaintiff in a civil suit only sought economic damages, he would still be guaranteed a jury trial. So I would present the question as, "is the purpose of restitution predominantly restoring the victim or is it the rehabilitation of the defendant?" There is an obvious counter-argument that could be made that I'm framing the issue wrong as well, but I'll wait until a later post for a more thorough discussion of the merits.
For now, I simply want to alert everyone that the Oregon Supreme Court considers this an issue worth addressing. For this reason alone, you need to preserve it now. And this is an issue that -- if we win -- can have a huge impact on our client's lives. The tens of thousands of dollars of debt -- undischargeable -- that dog our clients years after they've gotten out of prison only makes the transition to civil society that much harder. And it's especially unfortunate when there's been a certain amount of "restitution inflation," which we've all seen but which is difficult to persuade a judge of. A jury might be better positioned to question some of the more outrageous dollar amounts claimed by the victim. But more importantly, if faced with the prospect of defending dubious restitution requests to a jury, prosecutors will be more likely to negotiate.
That is, if we win, and it's still a tough sell to the Oregon Supreme Court. But the defense bar has won a number of open questions in the past few years -- many of which were highlighted early on in a variety of OCDLA forums. Statistically, it might be safe for a trial judge to rule for the state on open questions, but I can name a half-dozen issues from the past couple of years where it turned out it wasn't the right thing to do.