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Upward Departure Notice in Multnomah County

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by: Ryan • February 25, 2012 • no comments

If your Multnomah County client has been given notice of the state's intent to seek an upward departure and/or a dangerous offender sentence, and you intend to challenge the upward departures based on Savastano and Equal Privileges, you can do one of two things. You can file the motion and then subpoena someone from the DA's office to testify at the hearing about their policy or lack of one. (Michael Shrunk had testified in State v. Freeland, you may recall.) You then get to cross-examine him or her somewhat blindly.

Or you can ask the prosecutor to supply you in advance with an affidavit from either of the two chief deputies regarding their procedures. This way you can tailor your motion to their office procedures. The Multnomah County DA's office has been highly professional in this regard. I have gotten a copy of both their upward departure procedure and their dangerous offender procedure. In my opinion, those affidavits are exceptionally useful in making a clear and unambiguous record, if the COA ever needs to get involved.

While there is the possibility the future Oregon Supreme Court decisions will eliminate this arrow from our quiver, right now I think it's malpractice not to get a copy of the procedures/policies of the DA's office in your county. Keep in mind that if even you've got a dozen clients who have received upward departure notice, you only need to get the policy once. The Multnomah County DA's aggregation policy is also available for the asking.