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My Last Post (at the old website)

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by: Ryan • February 29, 2012 • no comments

This was my last post at the old website:

It has been quite fun. I hope you've all found something useful in these posts. Even better, I like to think something I wrote helped you settle a case on more favorable terms or even better, win at trial.

Anyway, I thought for my last post, I'd write a summary of what may be the most important issues working their way through the appellate courts (that I know about). That parenthetical is key, since obviously I'm not aware of every appellate issue out there. But I do like to bug people for copies of their briefs and ask about their cases and so I know about issues well beyond the ones I've written about myself.

For those of you who are regularly readers of this website, many of these issues will be familiar to you. One of the more important issues is whether offense-specific enhancement factors are elements under the Oregon Constitution. This isn't the most important issue, in part because it won't affect that many cases. But if it is successful, in State v. Reinke (currently before the Oregon Supreme Court), it will require at least some enhancement facts to be filtered through the Grand Jury.

The issue of enhancement facts has really brought home the importance of Grand Juries. Yes, we all know about the ham sandwich. But, you know, it's very, very rare - in my opinion - that a Grand Jury will indict entirely frivolous charges. It happens, yes. But very rarely. But enhancement facts? The ability of the prosecutor to charge enhancement facts by checking off a box has resulted in truly ridiculous accusations. I think if they had to get by a Grand Jury, we wouldn't see as many. Whether it's because prosecutors would restrain themselves if they had to do more than just check a box, or the Grand Jury would vote against them, who knows. But it can't be a coincidence that charging integrity drops dramatically when there is no Grand Jury.

Perhaps the most important issue currently working its way through the appellate courts is one that, paradoxically, we've already won. It's We Need to Talk About Mallory . But it's been years since Mallory came out, and still defense attorneys don't understand it and certainly don't use it, like a muscle we didn't know we had. But it has potential sentencing benefit for thousands of clients. It could dramatically reduce all sorts of sentences. But still you don't argue it. Well, a couple of you have, and those cases should produce decisions within the next year or two. Let me take this opportunity to plug my series on criminal episodes as they relate to Theft and ID Theft, and Child Porn, and A Strategic Demurrer Updated w/ sample demurrer , and, again, State v. Mallory.

Speaking of sentencing, I saw that a defendant got over 60 years recently for a plea in state court for child porn. Yes, I checked OJIN. Yes, it appeared not a single pre-trial motion was filed. If there was any reference to a sentencing memo, I didn't see it. But right now there are a ton of issues related to child porn that impact both culpability and What Do Dead People Have to do with Encouraging Child Sex Abuse . Expect new posts about defeating ECSA charges for members only at the new website. (Hey, I didn't say this would be my last post anywhere.)

Probably not that many defendants - among the thousands and thousands we send to prison - will be impacted by how the OSC rules in State v. Ofodrinwa. But we'll all be better off if they eliminate Ryan here in Oregon judicial history. Which absurdity is that? It's the absurdity that can require sex offender registration for sex with a 17 year but not sex with a 15 year, as well as make the punishment worse for sex with a 17 year old than sex with a 14 year old.

There are a few other issues I would highlight, and I reference a few of them in the 2012 Oregon Criminal Law Quiz . But that's all for now.

And if you read this post closely, you know that while I won't be writing for mpdtrainer.com anymore, you'll be able to find my new posts at libraryofdefense.org. Some of the posts will be available to the public, some will only be accessible to OCDLA members. It's for the members that we'll really cut loose and talk about creative strategies for doing great things for your clients.