Why I'm Optimistic about Reinke
State v. Reinke is the case set for oral argument before the Oregon Supreme Court in a couple of weeks. The primary question is whether offense-specific enhancement facts must be pled in the indictment.
For example, if the state alleges "vulnerable victim" or "harm greater than typical," that's something they would have to put in the indictment in order to obtain an upward departure. Reinke itself involves an allegation of Dangerous Offender, although a favorable outcome wouldn't encompass all allegations of DO. A judge asked me recently if I really wanted that, implying that there would be some disadvantages to my client if the enhancements were pled. My answer was "yes, absolutely yes." My experience with "enhancement facts" has taught me that Grand Juries are not as worthless as commonly assumed by the defense bar. Why? Because I rarely see absolutely merit-less indictments. Not never, but it's very rare. In contrast, I've been handed utterly frivolous enhancement allegations. For example, "use of a weapon" enhancement fact for a charge of robbery in the first degree based on use of dangerous weapon. "Vulnerable victim," because the victim of rape III is under 18. I don't know if the Grand Jury would weed out that c**p, or if the prosecutor would just be too embarrassed to present it to a Grand Jury, but I'm confident there'd be far fewer such allegations when the prosecutor has to do something more than check a box.
And there are other advantages to a Reinke win that I'll discuss if and when Reinke wins.
Let's turn to a little history. In Sawatsky II, the OSC rejected a number of the defendant's challenges to the enhancement factors, including whether the enhancement facts had to pled in the indictment. But a slightly strange thing happened. The OSC said the Oregon statutes didn't require that enhancement facts are pled and the federal constitution didn't require it. But the Court was silent on whether the state constitution required it, even though that argument was briefed by the parties.
I was far from the only person who noticed it. In Gill v. Lampert, I think, the COA mentioned that pleading under the state constitution was an open question. Soon after that, at an OSB CLE, I remember a defense attorney -- who I'll call THC -- pointed out to an AAG that it was an open question. The AAG -- an exceptionally smart and talented lawyer, who I won't embarrass by naming, but whose first initial is J. -- countered THC (and I'm paraphrasing very roughly), "it can't be an open question. Why would the OSC even get to the federal constitutional question if such enhancements had to be pled under the state constitution? If this were a live issue, Sawatsky would have turned out differently."
This was a fair answer, and an odds on favorite to be the right one, but it wasn't complete. If that was true, why had the OSC not just said so in Sawatzky? Why dodge the issue?
Here's my guess. I suspect the trial attorney in Sawatzky II had not specifically limited his argument to offense-specific enhancement facts; rather he probably argued that all enhancement facts must be pled. Thus, the argument had to lose at the OSC because it's simply not true: the Oregon Constitution simply does not require that all enhancement factors are pled. But if the Court simply shot the argument down, without making the offense-specific distinction themselves, then the Court might be closing off argument forever. Rather, the Court would stay silent and hope that the defense bar would eventually figure out the right way to make the argument.
Is this crazy projection? Not in light of subsequent events. Not long after that CLE, we had an opinion in St v. Ice, and as I've said before, you can't read the first half of Ice without concluding that offense-specific enhancement facts are elements, not just aggravating factors. I think the Court went into a great deal of depth -- even though they rejected the defendant's state constitutional argument -- to remind the entire bar of case law that had been seemingly forgotten.
Then, a few years after that, in State v. Speedis, the Court included this very telling footnote:
We have no occasion to consider whether greater specificity would be required either for a statute defining the elements of an offense or for sentencing factors that relate to the offense rather than the offender. Cf. State v. Ice, 343 Or 248, 257-60, 170 P3d 1049 (2007) (distinguishing, for the purpose of Article I, section 11, between sentencing factors that relate to the offense and those that relate to a defendant's character or status), rev'd on other grounds, Oregon v. Ice, 555 US 160, 129 S Ct 711, 172 L Ed 2d 517 (2009). [emphasis added.]
Again, I think that's another clue for anyone paying close attention. Article I, section 11, only applies to elements, and the Court is implying a crucial distinction "sentencing factors that relate to the offense" and other types of sentencing factors. And self-evidently, it's a distinction of constitutional magnitude.
In sum, I think the Oregon Supreme Court has been waiting for this argument, waiting for defense attorneys to frame the issue properly, so that they could re-affirm the scope and importance of Article I, section 11. I think we'll know by the end of the year if I'm Sherlock Holmes or Dr. Watson.
But I urge you not to wait for an opinion. If you've got an offense-specific enhancement fact, file a challenge, especially if the enhancement fact -- like Reinke -- is a theory of Dangerous Offender. If you're going to trial on a CDO/SQ drug case, file the demurrer referenced here . Make the merger arguments that would win if Reinke wins. Let's get a string of cool wins at the COA next year!