Ryan's Favorite Issues
by: Ryan • June 22, 2014 • no comments
I mentioned in my last post that there had been three nice wins in the past year from the Court of Appeals that had all been discussed and encouraged at great length at Library of Defense. These were hardly the only good cases from the past year, but they were particularly meaningful to me, in large part because I'd been writing about them for so long.
What are the issues going forward? What are the open questions? What, in other words, are the arguments that you should be making now that have a chance of making good law at the Court of Appeals and maybe getting your client out of custody early or his or her conviction reversed?
These obviously reflect my tastes and interests. If there are other open questions you think should be litigated, I'm happy to help you to promote them.
(1) Cell phone searches, with and without a warrant. The US Supreme Court will issue some important decisions on warrantless searches within the week. They will answer some big questions but odds are they will leave many unanswered. But there's still a need to challenge cell phone searches authorized by warrants. Those warrants -- like most search warrants -- are really bad. If you have a cell phone search warrant case, find the memos written by Bronson James.
(2) Sentencing issues surrounding the crime of encouraging child sexual abuse. Trial judges are, in some cases, imposing manslaughter-type sentences on child porn offenses, even when the defendant did nothing more than download images from the internet. They are often able to get these kind of sentences because the combination of "separate victims" and "criminal history reconstitution." Both of these are ripe for attack, and in fact there are cases working their way up the appellate ladder that could be quite favorable. There have been numerous posts on these issues, but also feel free to talk to me about them.
(3) The CoDefendant Demurrer. If you're a regular reader, you knew this one was going to be on the list. It's still in its infancy compared to the improper joinder demurrer, and therefore it hasn't had the kind of success at the trial level its big sister has had. But its got a lot of potential. E-mail me if you need a copy. Again, it applies whenever two defendants are on the same indictment but at least one has a charge the other doesn't. I have every reason to believe the AG's office is particularly worried about this one.
(4) Grand Jury notes. We will win on this issue eventually. But defense lawyers need to know how to preserve it, and why it's such a big deal. It's especially important to preserve in sex cases after the complainant testifies. Take a look at previous posts on this subject or again, e-mail me.
Here are some smaller issues but in the right case, a big deal.
(5) Instructing the jury on a mental state for the gun minimum. In a lot of cases, it would be harmless error. But since it is "conduct," and it is an element (State v. Flores), the mental state should be knowingly. In those cases where it isn't harmless error, failure to instruct is reversible error.
(6) Restitution as a jury question, under Blakely.
(7) A finding of a sufficient pause (in order to defeat merger) as a jury question, under Blakely and Mallory.
(8) Do you have a right to ask for a 10 or 12 person jury in a misdemeanor case? Currently under review with the Oregon Supreme Court.
(9) Merger of drug counts through the back door. I think there are ways to potentially merge certain drug counts without overturning current law. And we might even get current law reversed. If you got a drug case, particularly one involving substantial quantities, contact me.
There are of course many more, and you can read them in both past and future LoD posts. But this is enough for today.
Hard to imagine that someone with a full-time state criminal case load wouldn't have at least of the above issues in at least one of their cases. If you think you do, let me know how I can help.
