The S & M defense to assault with a dangerous weapon
by: Ryan • February 4, 2014 • no comments
Although I've been known to complain that defense attorneys miss opportunities to argue (and either win or preserve) certain pet issues of mine, in fact many of you do preserve the issues (you just don't always tell me). But if I've got a favorite argument that I don't think anyone has ever preserved, is that because the argument is weak?
Could be. But it's also a matter of timing. The improper joinder demurrer has been argued quite a bit at this point. It's often won, and it's been preserved in at least a dozen cases where it hasn't won. It's now being conceded by prosecutors on a fairly frequent basis in a county I won't mention. So does that fact alone make it a great argument, if so many skilled attorneys are willing to file it?
Well, maybe. But it's also the fact that the improper joinder can be raised all the time. If you handle court-appointed felonies in Oregon, you've got probably a half-dozen open cases to which the demurrer would apply. If you're the kind of attorney (my kind of attorney) who would be inclined to file it, then you will, sooner or later.
But one of my favorite arguments -- stronger, legally, than the improper joinder demurrer and much more in everyone's comfort zone -- has yet to be preserved, though I've encouraged people to argue it for years now, and I've written blog posts and I've spoken on it at two different conferences. The problem is not with the legal argument. It's the fact that it comes up just infrequently enough that attorneys who may have seen my presentations or read the blog posts years before may have forgotten the argument is out there.
And the argument, very simply, is that in the charge of Assault in the Second Degree (based on the use of a dangerous weapon), the defendant must know it's a dangerous weapon in the manner in which it is used. Oh sure, if the weapon is a knife or gun, that's hardly an argument that will help. But what if the weapon is a basketball shoe? You've probably heard about the defendant suing Nike for failure to provide a warning label that his Air Jordan would constitute a dangerous weapon. Alas, he was pro se at trial, so he can't be faulted for not asking for a special jury instruction telling the jurors he must have known it was a dangerous weapon before they convicted him of assault II.
And then of course there was the riding crop case. If you're wondering where the S & M I referred to in the title can be found, head there.
There was also the case out of Wasco County a couple of years later where the defendant really could have benefited from making the argument that he didn't know "the weapon" was in fact a dangerous weapon.
The cases come up. And the legal analysis can be found at one of the aforementioned blog posts. (And of course if you want a memo on the topic, just e-mail me.) But the cases just don't come up often enough. If a hundred people read this post this week, none of you may have the issue where the dangerous weapon is sufficiently unconventional that maybe the defendant didn't know it was a dangerous weapon. Unfortunately, when you do get the right case (6 months or a year from now), you may have forgotten about this argument. Which is why I'll keep writing about it, until my blog post and your case intersect in time and space, and together we save your client years in prison.
