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On Corkscrews and Calculus

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by: Ryan • December 23, 2012 • no comments

“We shed as we pick up, like travellers who must carry everything in their arms, and what we let fall will be picked up by those behind. The procession is very long and life is very short. We die on the march but there is nothing outside the march so nothing can be lost to it.The missing plays of Sophocles will turn up piece by piece, or be written again in another language. Ancient cures for diseases will reveal themselves once more. Mathematical discoveries glimpsed and lost to view will have their time again. You do not suppose, my lady, that if all of Archimedes had been hiding in the great library of Alexandria, we would be at a loss for a corkscrew?” ” ― Tom Stoppard, Arcadia

The character who says the above, Septimus Hodge, says it in consolation to a young girl mourning the Library of Alexandria and all that was lost in the fire thousands of years before.

I think the law is quite similar. I have mentioned before that a lawyer is lucky to have one or two truly inspired ideas in a career. Great lawyering usually involves borrowing from other people. It's essential. (Especially now that the law has gotten geometically more complicated. My ability to calculate a REPO sentence in my head ended around 2009. Now, I need an hour. What this means for most defendants, practically speaking, is that the defense attorney will take the prosecutor's word for it. In other words, some defendants will serve too much time.)

I have good reason to think that there are a number of legal arguments that have faded from our collective memory. Perhaps the arguments lost too many times at the COA, and therefore people stopped making them. After they stopped making them, the ideas withered from disuse. And newer generations of attorneys didn't even know to look for them.

But these ideas do return, eventually. Equal privileges, as arguments go, was comatose, until State v. Savastano. And amazingly, three more EP arguments came out within six months of Savastano, from different parts of the state, meaning the arguments had been rediscovered independently, like Liebniz and Newton both discovering calculus.

I mention all this as prologue to yet another attempt to persuade you to file the improper joinder demurrer. For a generation, people only filed motions to sever when counts were improperly joined. No one filed it as a demurrer. But the statutes are unambiguous that severance is the remedy only when otherwise proper joinder is too prejudicial. If they aren't properly joined in the first place, then a demurrer should be filed.

Like the lost plays of Sophocles, this was, I suspect, widely known but forgotten. I have a Marion County indictment in front of me. It starts most counts with language such as "in an act of the same or similar character but not part of the same act or transaction as count 1 . . . "

Why is that language there? It's there because it use to be useful, like an appendix, and remains because no one ever likes to change boilerplate and habit. It's there because it saves the indictment from an improper joinder demurrer. Recall that in evaluating a demurrer, the trial court can't use any extrinsic evidence. They are stuck with the four corners of the indictment. Consequently, if there's no language justifying joinder -- language like, "as part of the same act and transaction" or "as part of a common scheme or plan" -- then the demurrer should be granted. (If I were trial judge, I would probably conclude that the third basis for joinder -- same or similar offenses -- could probably be recognized just from the indictment even without the language spelling it out.)

So somebody back in the day, in Marion County, made sure to make their indictments demurrer-proof, meaning some prosecutor must have read the statute, or some defendant had prevailed on a demurrer.

Other counties have variations on that language, but none quite as thoroughly as Marion County.

Incidentally, here's some appellate language that confirms that a motion to sever only applies after there's a determination that the counts are properly consolidated in one indictment.

“First the court must determine whether the offenses to be joined meet any of the three requirements listed in ORS 132.560(1)(b)(A) to (C). If so, the charges may be consolidated in the same charging instrument. Then, either party may move the court to sever the offenses on a showing that it is ‘substantially prejudiced’ by the joinder. The court may then exercise its discretion to order separate trials or ‘whatever other relief justice requires.’"

Johnson, 199 Or App at 314 (citations omitted).

I've encouraged the filing of an improper joinder demurrer for years. It was actually one of the first posts I ever did on Library of Defense. There are great strategic reasons for filing it, even if you don't win. But I've really been pushing it for the past six months. In that time, some attorneys have won. Others have had cases where it would have helped, but they've gone to trial without it.

If you want a sample demurrer, which would take about five minutes to conform to the charges in your case, go to this post. But if you want the demurrer that's attached, you need to log in. We've still got the corkscrew! Take advantage of it.