Why You Should Be Filing More Demurrers
by: Breinhard • September 27, 2012 • no comments
What do you do when your client is charged with a property crime and the DA tacks on a few additional charges? Ryan has been asking attorneys to file demurrers for years, so I decided I'd finally take a crack at it.
This wasn't my first attempt at a demurrer. Last year I had a client with two sets of domestic violence charges, and I wanted them split into two trials so the jury couldn't hear about the other incident. The prosecutor's office in Douglas County doesn't use magic joinder language (e.g., "committed for and as part of the same transaction alleged in Count 1"), so I took a whack at the charging instrument. The judge sidestepped a ruling on the merits of the demurrer by saying it wasn't timely. (It was filed a couple weeks after client was arraigned.)
But my research was done, so when this new case came up in March, I figured I'd give it another go. My client was charged with various property crimes. When they arrested him, they found drugs in his pants. They also found some mail in the van he was driving, and decided it was stolen. I had concerns about my client getting a fair trial if the jury was distracted by stolen mail and drugs. Also, what do stolen mail and drugs have to do with identity theft and theft by receiving?
I filed the demurrer sooner this time. The statute, ORS 135.610, says it shall be entered at the time of arraignment or "at such other time as may be allowed to the defendant for that purpose." When my client pled not guilty I told the judge that we wanted some time to file the demurrer. He agreed, and we filed it eight days later. The client bailed out of custody, the hearing got postponed, and the judge heard my demurrer in May. The State argued that because mail theft was a property crime, as was identity theft and theft by receiving, it was simply logical that they be heard together! Furthermore, possessing methamphetamine is a lot like possessing stolen items, so they could all be tried together. Finally, the state argued that the charges were based on "two or more acts or transactions connected together," which sounds an awful lot like conceding they were all part of the same criminal episode.
Long story short: The judge granted my demurrer. He gave the state leave to refile the charges. They went back to grand jury and split the charges up into three separate files, just to be on the safe side. My client was arraigned again last week, out of custody. The state just dismissed the original file against him, so he'll be getting his bail money back in the next 60 days or so. It's too early to determine how much the demurrer has helped my client's case. But it's my hope that as we file more demurrers like these, it will potentially change the practice of the prosecutors so they don't keep lumping disparate criminal charges together.
(The motion I filed in my case is included as an attachment. For more background on demurrers and why a demurrer is the correct response to improperly joined charges, please see A Strategic Demurrer Updated w/ sample demurrer . )
