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Strategic Losing: The Demurrer Y'all Should Really Be Filing Regularly

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by: Ryan • January 25, 2012 • no comments

Assume the following facts. Defendant is a passenger in a stolen car. Following his arrest, a substantial amount of drugs are found on him. He's arrested for DCS and PCS. All three counts (the drugs counts plus UUV) are on the same indictment.

Those counts are properly on the same indictment only if at least one of three requirements is met: (1) Same or similar crimes (no), (2) common scheme or plan (maybe, but probably not - depends on other facts); (3) same criminal episode (no, for the reasons given below).

In this situation, you do NOT want to file a motion to sever. Why? Because a motion to sever - per statute - only applies when the counts are PROPERLY joined, but too prejudicial to be tried together. The only statutory remedy for counts that are IMPROPERLY joined is a demurrer.

Why does it matter, since the judge will treat the demurrer like a motion to sever anyway? Because assume you lose the demurrer. The case goes to trial. You lose at trial. The case goes up on appeal. The COA says, yeah, the demurrer should have been granted, the indictment should have been dismissed. But the state can't get a re-trial, because the statute of limitations has run. Had you appealed the denial of a motion to sever, and you prevailed, there is no need for the state to reindict, and your client has to go through another trial.

So, why aren't the UUV and the DCS/PCS from the same criminal episode? Because the facts necessary to prove the elements of one are unrelated to the facts necessary to prove the elements of the other. See Orchard v. Mills, which held that a hit and run was from a separate criminal episode from the assault/car accident the defendant was running from. Orchard held:

As discussed, ORS 131.505(4) defines a "criminal episode" as "continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective." (Emphasis in Orchard.)

You can't convince me that a hit & run and a vehicular assault are from separate criminal episodes, but a UUV and a DCS are not, if that's the standard. The DCS does NOT involve the same criminal objective as the UUV.

Let's assume you lose. Why do you lose? Because the judge finds that it is in fact one criminal episode? Great. Then your client gets the benefit of the 200% rule and shift-to-I at sentencing. If you lose because the judge merely severs, also great, because now your client has a better shot with a jury and you've preserved the demurrer for appeal. If you win the demurrer, lots of good things could happen: state could appeal, your client gets out of custody, or, at a minimum, you've gotten a de facto severance.

Here's a [sample improper joinder demurrer] when the crimes arise from the same traffic stop. It hasn't been updated to reflect Orchard.

Here's a [sample demurrer] when the crimes occur on different dates.

The full legal analysis - with case law and statutory citations - can be found in the demurrers.

These issues come up quite frequently. Failure to register and just about any other crime, if on the same indictment, are improperly joined. PCS and any non-drug charge (including ID Theft) are probably improperly joined. If you do almost entirely court-appointed felonies, I'll bet I could go through your files and find at least one (and probably more, if you do mostly C felonies) that would benefit from one of these demurrers.

You cannot lose, even when you lose, and how often are defense lawyers in that situation?