Thoughts on State v Lafferty
by: Jessbarton • February 16, 2011 • no comments
Yesterday Ryan Scott posted an article about the Court of Appeals now-day-old decision in State v. Lafferty. I couldn?t agree with Ryan more that Lafferty is an important case. Congratulations to Meredith Allen for winning it in the COA, and to Gordon Mallon for winning it in the circuit court (which set the case up so nicely for Meredith). In fact, my hat?s off to Harney County Circuit Court Judge Cramer for ruling the right way in the first place, and to Chief Judge Brewer, who wrote the COA opinion (and to judges Haselton and Brewer who joined in his opinion).
But here?s what I like the most about the COA opinion. The court explained that "for certain fundamental rights, the defendant must personally make an informed waiver. The waiver of a right to jury trial-including a waiver on sentencing enhancement facts-is one of those fundamental rights." (Internal quotation and citation omitted.) Lafferty waived jury on the indictment?s charges, but not on the enhancement fact at issue (a prior juvenile adjudication).
The state argued that by operation of ORS 136.776, when Lafferty waived jury on the charges, he automatically waived jury on the enhancement fact.
Absolutely not, the judges said. At sentencing, Lafferty-through the voice of Gordon-objected to using the enhancement fact on the grounds that he hadn?t waived jury on it, and that no jury had found it beyond a reasonable doubt (as the Apprendi rule requires). Under those sorts of circumstances, the COA said, construing ORS 136.776 as establishing an implied waiver would create a constitutional infirmity:
"To construe [ORS 136.776] the way the state suggests would be to say that it overrides the constitutional mandate that a waiver of a jury trial on sentencing enhancement facts be an 'intentional' waiver of a 'known' right. That, of course, a statute may not do. The plausible reading of ORS 136.776 that does not create that constitutional infirmity is that the statute requires that a defendant, in order to waive his constitutional right to a jury trial on the question of guilt or innocence, must also make a knowing and intentional waiver of his right to a jury trial on sentencing enhancement facts, and must do so in writing. Read in that manner, ORS 136.776 instructs courts and litigants as to the form that a waiver of jury trial rights must take. Failure to abide by the statute and secure such a waiver-in writing-as to both guilt or innocence and sentencing enhancement facts is just that, a failure to comply with the statute. We further note that, in the majority of the cases we have seen since the enactment of ORS 136.776, that is exactly how the statute has been used: Defendants are informed via plea agreement and colloquy that, if they wish to waive a jury trial as to guilt or innocence, they also must waive their right to a jury trial as to sentencing enhancement facts. They then enter into written agreements that specify that they are waiving their rights to a jury trial as to both guilt or innocence and sentencing enhancement facts. In short, satisfying the statute while honoring a defendant's constitutional rights is not a difficult matter."
And that was that. No jury waiver, so Lafferty should be sentenced without the enhancement fact.
But reading Lafferty reminded me of this time a few year back, when Lane County PD Greg Hazarabedian consulted me about one of his attorneys who had made sentencing objections essentially identical to what Gordon made. The DA flipped out and accused the attorney of unprofessional conduct. The judge called the attorney onto the carpet for making that objection. Greg wanted my opinion about whether his attorney had done anything wrong.
My opinion was that the judge had it backwards. First, the reason the DA flipped out was because he was embarrassed by the fact that he had screwed up in plea negotiations. Rather than say, "Aw, schucks, I screwed the pooch," he tried to lay his screw up onto a Lane PD lawyer, by accusing her of unprofessional conduct. And the judge was buying it! But there was nothing unprofessional about the attorney making her objection. In fact, what would have been unprofessional is if she had withheld the objection. Which she didn't, so the judge should be commending her, not berating her.
Anyway, Gordon voiced his objection. Thanks to him and Meredith, Mr. Lafferty now is lots better off.
But what about the Lane PD lawyer? What became of her, you might ask? Well, I won?t say her name. But I will mention that she herself is now a judge. So there can be justice in this world.
