When the Prosecution and Defense Switch Sides
by: Ryan • October 16, 2013 • no comments
Tomorrow, the Oregon Supreme Court will issue the opinion in State v. Campbell. It's a double jeopardy case with an odd procedural history. Factually, it's not a situation that will often be repeated. But this small case could have a huge impact.
First, an anecdote. I almost participated in an argument this week on the issue of "same criminal episode." I had been practicing my argument and ran it by a few people. One of the things I was going to point out is this: "Judge, defendants usually want as many crimes to be squeezed into one criminal episode as possible. The reason is obvious. There are many sentencing advantages to be gained from a finding of one criminal episode: the defendant's criminal history doesn't reconstitute, the shift-to-I rule might kick in, and so on. The state usually wants the opposite. They want a single criminal episode to be as narrow as possible, in order to deprive defendants of those same sentencing rules. This fight has been going on for the last twenty years, and frankly, the defense is losing, badly. We've reached the point that the hit -- in a "hit and run" -- is from a separate criminal episode than the run. That is, the assault arising from a DUII accident is from a different criminal episode from the crime of failure to perform duties of a driver. That's what the Oregon Court of Appeals says in Orchard v Mills. If a defendant steals from three different motel rooms, all in the same motel, that's three different criminal episodes. State v Sparks. So again, I want to emphasize how bad the law is normally for defendants. Except now. Now, I'm arguing that the crimes are from separate criminal episodes, and I have the -- well, luxury, I guess -- of taking what is normally the state's position. And I must say it's rather nice to have all their advantages."
Why was I taking the state's position? Because the defendant was charged with aggravated murder based on killing two people in one criminal episode. If there were separate criminal episodes, the defendant could not be executed.
So what does this have to do with tomorrow's Campbell opinion? Campbell involves whether a PCS and a DUII from the same traffic stop are from the same criminal episode. It's a double jeopardy question. Right now, there's no real daylight between the meaning of separate criminal episode in the context of double jeopardy and the meaning of the same phrase in the context of sentencing (although that wouldn't surprise me if that changed tomorrow).
In that case, the state is arguing that the two crimes are NOT from the same criminal episode. In fact, they take that position as a matter of law.
But most of the time, the two crimes are tried together. Campbell is the oddity. If they're not from the same criminal episode, why do we try them together?
The state would argue that they are joined because they are "connected together" or part of "a common scheme or plan." There are significant problems with this argument as well, but it's never been litigated, as far as I know. And it won't be, until the state alleges in the indictment that the two crimes are connected together.
See, in Multnomah County, if the PCS and the DUII are on the same indictment, it's subject to a demurrer, because the indictment is missing the essential joinder language. Even if the state did argue that the crimes were connected together, the court couldn't consider that claim because doing so would mean going beyond the four corners of the indictment. So the case would be dismissed, if the demurrer was granted. But just the threat of the demurrer would potentially get your client a better deal. I can't tell you how often an unlitigated motion can strengthen your negotiating position, but even so, I hear defense attorneys say they don't plan on filing any motions because the case will eventually settle. Yes, maybe so, but it will settle on better terms if you threaten to make the prosecutor go back to Grand Jury. In my opinion, this difference -- filing good-faith motions even in cases likely to settle -- is the difference between good attorneys and mediocre ones. You may be the world's greatest trial attorney, but on how many of your cases will you actually go to trial? Conversely, how many will settle, and how often do you get a better offer than the lawyer next to you would have?
Anyway, Mr. Campbell may lose tomorrow. The state may have convinced the Supreme Court that PCS and DUII from the same traffic stop are from separate criminal episodes. And if that happens, that may benefit your next DUII/PCS client, who might get his case dismissed or, if nothing else, might keep the DUII jury from hearing about the PCS and the PCS jury from hearing about the DUII. Or you might just get a better deal. All because you were able to benefit from the arguments of the Attorney General's office.
