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Once Again: It Can Be Malpractice Not to Ask for a Lesser-Included Offense

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by: Ryan • September 19, 2012 • no comments

Three weeks ago, I had a post that referenced two recent opinions. One, direct appeal, the second, state's appeal from the grant of post-conviction relief. Both opinions made clear the importance of asking for lesser-included offenses, at least when the primary offense is a M11 offense and the lesser-included offenses would not be.

Today, in Bostwick v Coursey, the COA reaffirmed this principle. What makes today's opinion more than just a reaffirmation is the fact that the original trial was a bench trial.

Nor are we persuaded that counsel's error takes on a different quality simply because it occurred during a bench trial. We have repeatedly declined invitations to treat the deliberations of trial courts and juries differently, unless there is some cogent reason for doing so. E.g., State v. Massey, 249 Or App 689, 693, 278 P3d 130 (2012) (trial court and jury equally likely to be misled, and the defendant thereby prejudiced, by applicability of a "Miles instruction" in the absence of evidence that a defendant's physical condition made him more susceptible to the effects of alcohol); State v. Bahmatov, 244 Or App 50, 54, 260 P3d 592 (2011) (explaining that we have previously rejected the state's arguments that "a trial court, as opposed to a jury, is less likely to abdicate [its] legal duty to make independent credibility findings because of a misplaced aura of reliability or validity of expert witnesses" (internal quotation marks omitted)). Here, the state has not advanced any persuasive reason for evaluating the effect of the error differently simply because the factfinder was the court. Neither the nature of the issues nor the trial court's expressed reasoning suggests that its deliberations as a factfinder were any less influenced by the lack of a complete statement of the law concerning the charged conduct. If anything, we know on this record that the trial court actually considered "extreme indifference" to be a close issue--one that the court may well have viewed differently in light of a complete statement of the law.

If you've seen my presentation on jury instructions, you know how much I advocate the submission of jury instructions even in a bench trial. The post I did on that subject is Why You Should Submit Jury Instructions in a Bench Trial: Revisited .