A couple of weeks ago, the Oregon Court of Appeals decided a bevy of issues in one case, St v. Cam, and where there was dispute, and the court reached the merits, they ruled against the defendant. A couple of the sentencing issues will, I hope, eventually reach the Oregon Supreme Court or, alternatively, merit reconsideration when the OSC decides the dangerous offender case, State v. Reinke.
Regardless, that's not why I'm writing this post. Rather, there's one issue the court didn't reach, because it was a jury instruction issue, and it was raised as "plain error." In light of recent, unfortunate case law, the COA will not decide plain error jury instructions on their merits.
The Cam Court didn't say what the issue was, but it's that issue I want to talk about. The defendant had an upward departure sentencing trial, and the jury was instructed that ten jurors were needed to acquit of the sentence enhancements. ("Acquit" is perhaps not the right word, but I'm using it here for clarity.)
In fact, no more than 3 jurors are needed to find for the defendant in order to acquit him of a particular sentence enhancement allegation and in some situations, only 1 is needed to acquit. It's important when the jury is being instructed on sentence enhancements that (1) they aren't misinformed of the # of jurors needed to acquit and (2) they are affirmatively told of the difference from the culpability phase, so they don't assume it's the same.
In retrospect, when I briefed the issue over two years ago, I clearly erred in framing it as a jury instruction issue. If I have to raise it again as plain error, I would frame it as something other than just a jury instruction issue, in light of the recent case law. And I think I could.
I'm using this confession as an opportunity to remind people again what the issue is. And importantly, it doesn't just apply to Blakely factors. A close reading of the statutes will reveal that only 1-3 jurors are needed to acquit of the gun minimum or CDO factors. You can find the analysis at the webpage, How Many Jurors Does It Take to Acquit of a CDO Factor? Or the Gun Minimum?, which can be find on the Ryan Scott page, under the Sentence Enhancements section.