Returning to the Island

This wikilog article is a draft, it was not published yet.

by: Ryan • June 5, 2015 • no comments

About 3 years ago, I wrote a post that offended a lot of people. It was called "No Defense Lawyer is an Island." It argued that defense lawyers cannot practice in isolation, that criminal defense is too complicated, too messy, for an attorney to stay on top of all the legal issues and defense strategies out there without putting in a lot of work staying informed. And yes, I was critical of defense lawyers who aren't on the pond or go to conferences or otherwise find ways to be aware of all the arguments they should be making.

I number of people wrote to me directly to complain and summarized and addressed the main points in a post called An Island Never Cries. Here is part of my response:

(4) Let me paraphrase one observation: "being aware of cutting-edge or novel issues is such a tiny part of being a defense lawyer that it is wholly worthless as a guide to how good the lawyer is."

There is more than one reason I chose the example I did. The failure to object to the "natural and probable consequences" instruction was arguably a failure that lasted -- at a minimum -- ten years, between the Anlauf (2000) and Lopez-Minjarez (2010) opinions. It's hard to imagine many -- if any -- practicing criminal defense lawyers who didn't have co-defendant cases during that decade. And the erroneous instruction probably undermined the defense of just about every accomplice. This wasn't some trivial issue. It was a big issue. And ever since Anlauf, we had a pretty good idea the instruction was wrong.

Now, being on the pond, or going to OCDLA conferences, wouldn't guarantee that you were aware of the issue. But I suspect solo practitioners or small firms that are somewhat insular, who aren't routinely exhanging ideas and information with other attorneys, were probably the most likely to miss the issue. In contrast, anecdotal evidence suggests that the attorneys who were winning the objection were from the same county, and I'm sure that had something to do with them talking to each other.

The point is, there is always "an issue"; there is always a pretty big opinion that will soon come out that will change how we practice law, and it's only by being interconnected that we would learn about these issues ahead of time. Jess Barton was telling us for years about the significance of Apprendi, and I admit I was one of those who didn't pay much attention, and then Blakely came out. We've since had St v Hall, and Washington v. Crawford, and St v. Southard, and in the next three years, we'll have more of those decisions. Somebody is making those arguments now and, thanks to OCDLA, there's an infrastructure that would allow you to find about them while they could do your current clients some good.

I return to this issue now, because in January of this year, we had the opinion, Wade v. Brockamp.

Here is a quote from that opinion:

Defendant plays down the relevance of Anlauf as a signal that the uniform jury instruction misstated the law because that case involved the sufficiency of the evidence, not the jury instruction. In petitioner’s post-conviction trial, however, she presented as evidence an affidavit and memorandum by Ryan Scott, an experienced Oregon criminal defense trial attorney. In Scott’s view, petitioner’s counsel’s failure to object to the jury instruction fell below the reasonable standard of legal representation of a client charged on an aid-and-abet theory of liability. His reasons included the relevance of Anlauf, which “was too important and significant a decision to have gone unread by any attorney representing a person charged as an accomplice.” And, according to Scott, the “holding should have alerted any attorney to problems with the natural and probable consequences rule[.]” Moreover, two weeks before petitioner’s criminal trial, Scott had initiated a discussion about the instruction on the “listserve” for the Oregon Criminal Defense Lawyer’s Association, and had opined that “the Anlauf holding is absolutely nonsensical” if the natural and probable consequence instruction was the correct law and that, “based on the comments [Scott had] received, most judges have agreed.” In his affidavit, Scott posited that that statement was evidence that, at the time of petitioner’s trial, criminal defense attorneys were “routinely objecting” to the instruction and that “they were mostly successful in those objections.”

The Court of Appeals upheld the trial court's grant of post-conviction relief. The Oregon Supreme Court denied review. Agree or disagree with the Court of Appeals, I think we can expect the appellate courts to recognize the need of defense lawyers to stay interconnected as part of doing an adequate job.

With that said, I hope to see you in Bend at the 2015 Annual Conference, June 18–20!