State Comes Up with Argument Against Co-Defendant Demurrer, Relies on Time Travel

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

by: Ryan • February 12, 2014 • no comments

Sometimes you don't know the strength of an argument until you see the response.

As many of you know, I believe that when co-defendants are joined in the same indictment, the law requires that the co-defendants must all be charged with the same offenses. So if John is only charged with Burglary and Kidnapping, then Jack must be charged only with Burglary and Kidnapping. Throw in an assault for one but not the other, and the indictment is subject to a demurrer. Here's where my belief comes from:

132.560 Joinder of counts and charges; consolidation of charging instruments. (1) A charging instrument must charge but one offense, and in one form only, except that:

(a) Where the offense may be committed by the use of different means, the charging instrument may allege the means in the alternative.

(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:

(A) Of the same or similar character;

(B) Based on the same act or transaction; or

(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan. [Emphasis added.]

I figured the state would attempt to argue that the phrase “committed by the same person or persons” means only that all of the crimes in the indictment were committed by at least one of the people named in the indictment. But if that were true, the statutory requirement is meaningless. All indictments by definition only allege charges against people who are named in the indictment.

If the sentence means anything, it means that all "offenses" must be committed by all co-defendants, if they are all listed on the indictment. If not, then the offenses were not committed by the same persons. When at least one defendant is alleged to have committed an offense that was not committed by a co-defendant, that violates the plain meaning of the statutory requirement.

I finally received the state's written response to the demurrer. And boy, I must admit, they come up with some statutory language that is, frankly, fatal to my argument. Or would be, if this was 1983.

(2) When two or more defendants are jointly charged with different felonies all of which occurred as part of the same act or transaction, the state is entitled to have such defendants tried jointly, except that each such defendant who, before trial, moves the court for a separate trial shall be granted a separate trial.

This would suggest that an indictment allows different felonies for different co-defendants, as long as the crimes are from the same act or transaction. However, this statute was repealed a long time ago. In its place (ORS 136.060), we have a statute that says jointly charged defendants shall be tried jointly, without any reference to when co-defendants can be joined. For that, you have to go back to the current statute quoted above which states that crimes are properly on the same indictment when committed by "the same person or persons."

The state wants to argue that the repealed statute at least suggests how we should interpret the joinder statute. But as far as i can tell, the current version of the joinder statute took effect after the the 1983 version of ORS 136.060 had been repealed. I don't know how much we can infer about the legislative intent behind the current statute by relying on a statute that lived and died before the current statute became law.

Let me point out the obvious. The state will want to claim that this phrase: 'if the offenses charged are alleged to have been committed by the same person or persons' does not require that the defendants are all charged with the same crimes. It only requires that the crimes are from the same criminal episode, part of a common scheme or plan or the same or similar. If the state is correct, however, that means the state could join defendants when defendant A has committed burglary in Multnomah County and defendant B has committed burglary in Multnomah County, even if the burglaries have nothing to do with each other, and A and B have never met. That's absurd. But the two burglaries are "the same or similar" so if there's no requirement -- contrary to the plain language of the aforementioned statute -- that the two defendants committed the "same crime or crimes," then the statute is satisfied if the crimes are similar.

No one could reasonably believe that's what the legislature intended.