Good UUW News, Bad Omen on Lesser-Included Offenses
by: Ryan • March 29, 2013 • no comments
If you've been following me for awhile, you know that I have argued for years that a threat to use a weapon is not use of a weapon, at least when determining culpability for the crime of Unlawful Use of a Weapon (UUW). To put it another way, threatening to kick my ass is not the same as kicking my ass. You may think that crass analogy distorts the issue, so let me put it another way: legislative interpretation is supposed to disfavor redundancy; if use of a weapon includes the threat to use that weapon, why does the gun minimum require the state to prove "use or threatened use of a firearm"? Double redundant redundancy, isn't it?
Anyway, the defense bar lost this argument in a case called St v. Ziska. There are a few things that are notable about Ziska -- one, the appellate attorney found some fabulous legislative history which strengthened the argument considerably. Two, an otherwise great appellate panel published a really baffling opinion (something I discuss briefly here).
The good news is that the Oregon Supreme Court has granted review of Ziska and another case which presents the same question, State v. Garza. The delightfully succinct question presented is:
Does a person commit the felony offense of unlawful use of a weapon by carrying a dangerous weapon with the intent to threaten someone?
The bad news is that the Oregon Supreme Court has also granted review to a different case, and it presents a very worrisome question:
If a trial court erroneously fails to instruct the jury on a lesser-included offense, is the error harmless if the jury returns a guilty verdict on the charged offense?
If I were superstitious, I would feel responsible for that one, since I praised the Court of Appeals for their consistent holding on this issue. I do so in this post and, alas, I did not simultaneously knock on wood.
If the Oregon Supreme Court reaches a different conclusion than the Court of Appeals, it would shift more power to the state, which already has every incentive to overcharge. It would also demonstrate a fundamental failure to understand how their fellow human beings reach decisions on guilt and innocence. Measuring culpability is not a sterile analysis, it never has been, and any opinion that assumes that it is is in an opinion that widens the gap between the law and real life.
