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by: Ryan • January 12, 2013 • no comments

January 13, 2013, is the one-year anniversary of oral argument in State v. Ofodrinwa.

If you think my posts that were mildly critical of defense attorneys (yes, mildly--re-read the posts) were self-righteous rants, then you haven't read the post I wrote after the COA issued its opinion in Ofodrinwa.

Was I unfair? It's worth looking at the subsequent opinion in State v. Simonson. I faulted the Ofodrinwa court for casually dismissing the argument that State v. Stamper was wrongly decided. Stamper, you may recall, was the case that made the punishment in Oregon for sex with a 17-year-old more severe than sex with a 14-year-old. (Don't believe me? Read State v. Simonson.)

The Simonson court spent some time on the defendant's argument that Stamper was wrongly decided, but it found that Stamper wasn't obviously wrongly decided, and therefore (implicitly) it was a decision for the Oregon Supreme Court, not the Court of Appeals. Simonson was written by former-Justice Gillette, who has previously demonstrated his fidelity to the principal of stare decisis. Since I respect his conclusion, and it's the same result as the COA's opinion in Ofodrinwa, then maybe I was unfair my post.

There are a couple of things I would point out. Not that they necessarily are a defense of my post, if you conclude it was unfair. But they could be offered in mitigation.

It was after the thoughtful words of Simonson that the Oregon Supreme Court granted review of State v. Ofodrinwa. Did Justice Gillette's more careful statement--rather than the cursory dismissal in Ofodriwna--help prompt the OSC's review? After all, Gillette did hint that Stamper was wrong. There was no such hint in Ofodrinwa. One reason--despite the same result--to favor Simonson over Ofodrinwa.

Secondly, my rant did get attention. Did its inflammatory title get more people--people who are involved in the criminal-justice system but not just defense lawyers--to take a look at the issues raised? If it did, then even if the post was unfair, I'm not going to apologize for it, because the content was correct and worth disseminating as broadly as possible.

And that's because--when push comes to shove--Stamper is still a horrible decision. As I said, not only does it punish sex with a 17-year-old more than with a 14-year-old, but it can make a sex offender out of a 20-year-old who sleeps with a 17-year-old, but not a 19-year-old who sleeps with a 14-year-old. I don't believe any thinking person could justify either consequence, and I don't believe any legislator ever (and the opinion at its heart is about legislative intent) believed he or she was voting for either result.

But it's not a horrible decision just because it's wrong. It's a horrible decision because of the damage it does to young people who are starting out, who get branded sex offenders for stuff that is not only pretty normal behavior but isn't even criminal in the overwhelming number of states in the US.

The ball is now with the Oregon Supreme Court. It has been for a year. We'll see.