Twice this week, I've seen portions of two arguments, and two rulings, on the improper joinder demurrer. Since I did only see parts of the arguments, it would be unfair to report what I saw. I missed too much to be confident that anything I might describe would constitute a fair representation of what actually happened. Instead I'm going to present two hypotheticals that bear some similarities to what I saw, but that have also been changed in some significant particulars.
In the first hypothetical, the indictment is quite obviously improperly joined. One crime from one date, three crimes from another, and nothing about the crimes that made them similar. The state concedes that the counts are improperly joined, but simply moves to sever. The judge agrees and severs, and then denies the demurrer in light of the remedy which has been fashioned.
It's a practical solution, and the judge probably thinks he is taking a reasonable middle ground. But it also highlights the difference between the appellate courts and the trial courts: if I am right -- and the statutes do appear to be unambiguous -- that a demurrer is the only legislatively-approved remedy when counts are improperly joined -- then the COA will look at whether the judge has the power to sever under the statute, not whether severance is a reasonable solution. (You may recall that severance is -- per statute -- an appropriate remedy when the counts are properly joined but it would be too prejudicial to try them together.)
In some ways, losing the demurrer might be the best thing that would happen to this defendant. The counts are severed, meaning jury #1 won't hear about crime #2, #3 and #4, and jury #2 won't hear about crime #1, AND the Court of Appeals could still reverse any and all convictions because the trial judge was required to grant the demurrer. And of course by the time the COA rules, it would be too late (statute of limitations) to reindict.
The next hypothetical involves a high-speed chase that occurred after the police spotted the car a half-hour after a reported robbery. After reciting the facts of the case, the prosecutor's only argument for why the demurrer should be denied is that the Attempt to Elude is from the same criminal episode as the Robbery. (Assume that the defense attorney did NOT make the argument that the court was limited to the four corners of the indictment and therefore couldn't consider the prosecutor's recitation of the likely evidence.)
The defense attorney responds by citing Orchard v Mills, which says that a hit and run is from a different criminal episode than the duii/assault which immediately proceeded it. Orchard wasn't a joinder case, but involved determining separate criminal episodes for the purposes of consecutive sentences.
The judge asks the right question, "is the analysis for 'same criminal episodes' for determining consecutive sentences the same analysis you'd use in determining 'same act or transaction' for the purposes of joinder?"
The correct answer is "Yes." Give me five minutes and I can find you 20 cases that say so. Alas, the judge, ruling from his gut, answers his own question (according to my hypothetical) with, "no, probably not, because Oregon is a permissive joinder state." (In other words, that five minutes of research that would have been required to reach the correct answer, it was spent on something else.)
Again, the defendant may very well benefit from this ruling. If the demurrer wins in 2 1/2 years, it will have been more than 3 years since the robbery, and more than four years before the defendant would otherwise have been released. In other words, the defendant may get out much sooner than he would have under the plea offer, and he'll have no supervision.
You might be thinking, Mr. Scott's optimism is hardly justified. His demurrer is fairly novel. No appellate court has yet said that a demurrer is the proper remedy. And while that's true, and all appeals should be assumed lost until they are won, the statute is remarkably plain, notwithstanding how widely it is misunderstood. Furthermore, I've argued it a couple of times, and I've talked to attorneys who have both won it and lost it, and right now the state hasn't come up with a good or consistent response. Prosecutors have relied almost entirely on the judge's fear of the unknown, though a couple of judges did the heavy lifting, pushed past their assumptions, and ruled for the defendant. On the other hand, a few weeks ago I watched a judge deny the demurrer, and she really wasn't capable of explaining why she was denying it.
It's true that you never know how good an argument is until you've heard the counter-argument. I've heard a few counter-arguments now, and they've only served to make me more optimistic than ever.
If you want a copy of the latest version of the demurrer, please e-mail me, and I would be very happy to send it to you. If you want to ask if your indictment would justify the demurrer, I'd be happy to share my thoughts on that too.