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A Finding of a Sufficient Pause Must Be Made by a Juryby: Ryan Scott • March 24, 2025 • no comments Procedurally, the Court of Appeal's opinion State v. Ballangrud, issued on March 12, 2025, is a bit complicated. Substantively, the bottom line is this: At least one judge on the Oregon Court of Appeals believes that one of the findings necessary to defeat merger -- a sufficient pause between crimes that would otherwise merge -- is a jury question under the 6th Amendment of the US Constitution. It's like an Apprendi/Blakely factor but even more profound. A finding of a sufficient pause doesn't increase the sentence for a conviction. It increases the number of convictions. Could anything be more a jury question than how many convictions a defendant ends up with? If it's a jury question, the state must give notice no later than 60 days after arraignment, and, absent a waiver, it must submit the question of a substantial to the jury. This opinion was expressed by the Chief Presiding Judge in a concurrence. The majority rejected the argument, at least in part, because it concluded -- wrongly -- that the defendant-appellant had improperly argued the issue to the court (something the concurrence rejected). But even the majority left open the possibility that if properly raised, it would hold the question of a sufficient pause should be submitted to the jury. And whatever the COA ultimately does, the issue is of such importance that I would assume the Oregon Supreme Court will eventually grant review. Please preserve this now. Raise it at sentencing, arguing that the state never go notice of an intent to submit the question to the jury, much less actually submitted it. For argument, just provide the judge a copy of the concurrence in Ballangrud. Good luck! PS: And yes, I wrote multiple blog posts arguing this exact thing over ten years ago. Is Actual Innocence a Viable Claim in Post-Conviction?by: Ryan Scott • February 21, 2025 • no comments Oregon Supreme Court has announced its intent to answer that question. On February 20, 2025, the Supreme Court: 1. Allowed petitions for alternative writs of mandamus in: Jordan Perkins v. Corey Fhuere (S071631) (original mandamus proceeding involving an order of the Marion County Circuit Court, Case No. 23CV53183) relator was convicted of sex offenses against a victim and sentenced to prison. The victim subsequently recanted their testimony, stating in a notarized declaration that their sexual contact with relator had been consensual. Based on that recantation, relator petitioned for post-conviction relief, alleging the stand-alone claim of actual innocence and that his conviction and sentence violated the state and federal constitutions. The state moved to dismiss the petition for failure to state a claim, on grounds that relator's stand-alone actual innocence claim was not a basis for postconviction relief. The trial court agreed with the state, dismissed relator's petition, and relator petitioned for a writ of mandamus. The Oregon Supreme Court issued an alternative writ, directing the trial court to either vacate the order entered November 27, 2024, granting the state's motion to dismiss and dismissing with prejudice relator's Amended Petition for Post-Conviction Relief, and to enter an order denying that motion; or, in the alternative, to show cause for not doing so. The issue in this mandamus proceeding is: Whether a stand-alone claim of actual innocence may provide a basis for post-conviction relief. Sexual Penetration and Contaminated Memoriesby: Ryan Scott • February 1, 2025 • no comments "[The] phenomenon of false memory, and the circumstances that can contribute to the creation of a false memory, are complex and beyond the experience of ordinary jurors. . . ." State v. Dye, 286 Or App 626 (2017) There are a number of attorneys who are skeptical of the benefits of hiring a memory expert in a child sex abuse case (or any other case for that matter). Often, these attorneys -- many of whom are in their fifties or sixties -- have never actually consulted with a memory expert. By consult, I don't mean a five minute conversation but actually hiring them to review the case. They will also tell you that the prosecutors they've talked to will claim they've never lost a case in which the defense hired a memory expert. They will also tell you, contrary to the quote from State v. Dye above, that jurors understand the idea of suggestion and don't need an expert to point it out. I'm not going to get into a whole long argument why I think these attorneys are wrong and are committing malpractice when they fail to have a meaningful consultation with a memory expert when there is any possibility the accusations are based on a false memory. But I do want to give one very narrow, very specific example that comes up frequently in sexual penetration cases. Since sexual penetration for a child under 12 carries a mandatory 25 year sentence, the punishment is far more severe than a sexual abuse I, which is "only" 75 months. → continue reading...Next 20 Articles Case Reviews
Oregon Court of Appeals, March 19th, 2025by: Rankin Johnson JOINDER, SEVERANCE, AND ELECTION - Same or similar character CONTROLLED SUBSTANCE OFFENSES - Boyd deliveries SEARCH AND SEIZURE - Exploitation SEARCH AND SEIZURE - Conduct constituting a stop EVIDENCE - Relevance EXTREME EMOTIONAL DISTURBANCE - Burden of proof EVIDENCE - Other bad acts THEFT OFFENSES - Property and value Oregon Court of Appeals, March 12th, 2025by: Rankin Johnson SEX CRIMES - Consent INADEQUATE ASSISTANCE OF COUNSEL - Standards for appointed counsel APPEAL AND REVIEW - Offer of Proof EVIDENCE - Vouching APPEAL AND REVIEW - Retroactivity SEX CRIMES - Dates and ages _________________________ |
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