The Companion Argument to the Savastano EP Argument
by: Ryan • June 22, 2011 • no comments
Just want to send out a quick reminder that if you file a Savastano challenge to aggregation of thefts in less than 6-month increments, then you'll want to file a second challenge based on allegations that cross-relate , where you'll also find a letter opinion granting a dismissal of all counts based on that argument. The latter argument is not dependent on whether the DA's office has a policy or not.
And as I did yesterday, I want to highlight this footnote from Savastano:
We emphasize that we do not decide that ORS 164.115(5) is facially unconstitutional; we hold only that it was unconstitutionally applied in this case. Nor do we reach the question of whether a policy based on month-by-month aggregation would necessarily violate Article I, section 20. Finally, we do not reach the question whether a policy based entirely on jury convenience would be "permissible" even if consistently applied.
That footnote tells me that there might be additional challenges to the creative aggregation that I certainly haven't quite figured out yet, but that at least crossed the mind of Judge Shuman. Be creative. Will the prosecutor scoff? Sure, that's what they do. It's a negotiating technique. But I bet they'll scoff a little less convincingly after Savastano.
