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Why the Improper Joinder Demurrer Is Even More Viable

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by: Ryan • April 18, 2012 • no comments

I have written a few times about the improper joinder demurrer. Here's an article (with a sample demurrer) that discusses what to do when there is overlap in the time and place of the charges improperly contained on the same indictment. Here's another article (with a sample demurrer) when crimes that don't overlap in time and place have been improperly joined.

As I've discussed previously, when the case law gets worse for us regarding separate criminal episodes at sentencing, that means the law is more favorable for filing an improper joinder demurrer. If you take a look at the opinion in Orchard v. Mills, the COA applied a very rigorous standard for determining if crimes came from the same criminal episode. If we apply that same standard to a indictment containing, for example, PCS and ID Theft, then there's a good chance that those counts were improperly joined, and the indictment should be dismissed.

And as I've noted, the remedy, per statute, is Dismissal, Not Severance .

Of course, if the judge is uncomfortable with dismissal, and merely severs, then that's usually helpful at trial AND you've preserved the issue for appeal.

While this isn't a new development, this post by Mr. Jeffers suggests that we've been much too tolerant of joinder based on "same or similar offenses" or "common scheme or plan." If that analysis is correct, then that broadens the range of cases to which the improper joinder demurrer would apply.

As I mentioned in this post , the COA recently AWOP'd a case where the state was arguing that PCS and DUII -- arising out of the same traffic stop -- weren't from the same criminal episode for the purposes of double jeopardy. Under the Orchard v. Mills analysis discussed above, that's not surprising.

The OSC has granted review of that case, and maybe the Supremes will wipe out years of COA case law that seems to have deviated quite a bit from previous OSC cases such as St v Fitzgerald. If so, the strength of these demurrers might be weakened, but our clients benefit at sentencing.

In sum, this really is a win/win demurrer for defendants. If you lose, you have an issue for appeal and your client probably benefits at sentencing. If you win, all sorts of good things can happen, not least of which is that the ID Theft jury doesn't hear about your clients drug possession.

Looking at the Multnomah County Drug and Property docket every day, I see a ton of cases that would be subject to these challenges. I assume the same is true around the state.