Where the Riding Crop Argument Might Have Made a Difference
by: Ryan • June 28, 2011 • no comments
As defense attorneys, we are not immune from the impulse to second-guess other attorneys. The impulse should be tempered with great humility. No one can really know the circumstances of any particular case. And every attorney makes mistakes or misses opportunities. So while this post might be seen as a criticism, my purpose is only one of edification. Further, I can't say for certain the attorney didn't do what, in retrospect, I am suggesting he or she should have done. It may have been done but never made it into the opinion. And certainly nothing I say here is intended to be critical in the slightest of the appellate attorney, who, I don't need to say, is one of the best appellate attorneys in Oregon.
In today's Court of Appeals cases, there was an assault in the second degree conviction which was upheld. The conviction was based on a "dangerous weapon" theory. The thing about assault with a dangerous weapon, it invariably means convicting the defendant (or trying to convict the defendant) on a counter-factual. Could the weapon, in the manner in which it was used, caused serious physical injury? It was used. It didn't cause serious physical injury. But it could have if . . . what? If it had been used differently? No, that doesn't make sense. I guess if you re-ran events a hundred times, in more than half of them, it would have caused serious physical injury. Just not this time.
Anyway, I have previously argued - most recently at the OCDLA conference in Bend two weeks ago - that the defendant should ask for an instruction stating that he needs to know the weapon was in fact a dangerous weapon. It's not enough that it is a dangerous weapon. If it's not a gun or knife, the defendant may not immediately appreciate the harm that could be caused. If the instruction is denied (since whether or not the mental state of knowing applies to the "dangerous" aspect is technically an open question), the defendant has a great shot at reversal on appeal. If the instruction is given, then the defendant has another argument to make to the jury (i.e., the goal line is pushed back a little further, which could make all the difference in the right case).
Here, this is what today's opinion says about the dangerous weapon:
Defendant kept a board next to the front door. He regularly hit his children with the board in order to discipline them. This practice was referred to as "boarding" by the family members. The child was required to stand still, with hands at his or her sides, while defendant inflicted a predetermined number of blows to the child's buttocks and the back of the child's legs.
So, as unpleasant as these facts may be, the board was used repeatedly, and there appears to be no evidence that it ever caused a serious physical injury. Thus, the defense attorney surely argued that it wasn't a dangerous weapon. But there's just no reason to limit yourself to that argument. He should have argued that the defendant didn't know it was a dangerous weapon. And a jury instruction on that point is hugely important, because as I said in Bend, juries believe that the players on the field don't get to say where the goal line is. It's up to the judge. You want the judge to tell them exactly what the state is required to prove, and then you get to say why they didn't prove it.
Ryan Scott is an attorney at Scott & Huggins. He is trying to get better at self-promotion.
