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Oregon Appellate Court--September 12, 2018

by: Rankin Johnson IV • September 20, 2018 • no comments

CONTEMPT - Jurisdiction


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Oregon Innocence Project Announces Its First Exoneration

by: Ryan Scott • September 19, 2018 • no comments

Details here.

See also this story from Oregon Public Broadcasting: Exonerations Raise Questions About Oregon's Controversial Jury System

Time did a story here.

The story prompted this editorial from the Oregonian.

Narrow but important opinion regarding mens rea

by: Ryan Scott • September 19, 2018 • no comments

Today, in State v. Pryor, the COA re-affirmed that the mental state of "intentionally" applies to "serious physical injury" in a charge of assault I, rejecting the state's argument that some pre-Barnes case law saying the same thing should be overruled. At trial, the judge found that the pre-Barnes case law was already overruled by St v Barnes and instructed the jury that Mr. Pryor did not need to intend serious physical injury; he only needed to intend an injury that turned out be serious. Mr. Pryor's Assault I conviction was reversed and remanded for a new trial. The remaining convictions stood.

The short opinion is worth reading, and it may be helpful in the following way. I have long argued that Barnes has been effectively overruled by St v Simonov, and that in assault II (or APSO or Criminal Mistreatment), a "knowing" mental state applies to the injury, serious or not. The alternative argument -- if Barnes is not overruled -- is that when the assault charge is generally charged "knowingly," criminal negligence applies to physical injury, so that if you punch someone (i.e., you don't have a weapon), resulting in serious physical injury, you at least have to be negligent as to that serious physical injury.

The flukier the injury, the more helpful such an instruction would be.

The state generally argues that Barnes is against us on the first issue (which is true), but on "criminal negligence" the prosecutor will likely argue that Barnes held that NO mental state applied to injury. In fact Barnes doesn't say that, but it's a common misunderstanding among both prosecutors and judges.

Today's opinion -- Pryor -- makes plain the second argument is wrong. The Pryor court makes clear that the Barnes decision is strictly limited to whether "knowingly" applies to the injury. It says nothing about the application of any other mental states.

The issue in Barnes was focused on the meaning of only one of several culpable mental states that may be in play in second-degree assault. At issue in Barnes was the culpable mental state, “knowingly,” in one of the several forms of second-degree assault.

Pryor doesn't discuss criminal negligence because it doesn't need to. It's focus is on whether "intentionally" applies to serious physical injury. And, as mentioned above, it does. But in footnote 1 in that opinion, it has the key quote from Simonov that would support criminal negligence applying to assaults with a knowing mental state.

The state’s reading of Barnes, even if limited to the context of second-degree assault, does not take into account later Supreme Court cases that have clarified how mental states attach to different elements of a crime. See, e.g., State v. Simonov, 358 Or 531, 539-40, 368 P3d 11 (2016) (“Unless otherwise indicated for a particular offense, ‘conduct’ elements require proof of an intentional or knowing mental state, ‘result’ elements require proof of an intentional, reckless, or criminally negligent mental state, and ‘circumstance’ elements require proof of a knowing, reckless, or criminally negligent mental state. The state may plead and prove the least culpable of the applicable mental states for a particular element of an offense. ORS 161.115(3). As a result, the minimum culpable mental state for elements that constitute conduct is knowledge, and the minimum culpable mental state for result and circumstance elements is criminal negligence.” (Internal citation omitted.)). The state has not developed any argument how the various mental states apply to the elements of first-degree assault under those more recent Supreme Court cases, let alone an argument that persuades us that our conclusion in Peacock is plainly wrong under a modern approach.

That footnote is satisfying in another way. When responding to the argument that Simonov changes the whole approach to mental states and elements, prosecutors frequently say, "no, it doesn't." They argue that Simonov is a property crime case and says nothing about "assault." That position is inconsistent with that quote of above that strongly implies ("the modern approach") that the rules have changed and the state needs to be prepared to recognize that.

(Incidentally, when arguing against criminal negligence applying to $ value in theft or criminal mischief, the state says the Jones case also says no mental state applies. The state is wrong there too.)

In sum, Pryor represents an important step towards obtaining accurate jury instructions where the standard instructions either mis-state the law or are otherwise incomplete.

Racial Bias in Criminal Justice

by: Ryan Scott • September 19, 2018 • no comments

A worthwhile read from the Washington Post can be found here.

Here's a key paragraph that gets at something most everyone misunderstands:

Of particular concern to some on the right is the term “systemic racism,” often wrongly interpreted as an accusation that everyone in the system is racist. In fact, systemic racism means almost the opposite. It means that we have systems and institutions that produce racially disparate outcomes, regardless of the intentions of the people who work within them. When you consider that much of the criminal-justice system was built, honed and firmly established during the Jim Crow era — an era almost everyone, conservatives included, will concede rife with racism — this is pretty intuitive. The modern criminal-justice system helped preserve racial order — it kept black people in their place. For much of the early 20th century, in some parts of the country, that was its primary function. That it might retain some of those proclivities today shouldn’t be all that surprising.

What kind of person makes false rape accusations?

by: Ryan Scott • September 17, 2018 • no comments

An article on this topic here.

"Study after study shows ex-prisoners would be better off without intense supervision"

by: Ryan Scott • July 10, 2018 • no comments

Details here.

Key quote:

Two-thirds of those released from prison are re-arrested within three years. This incarceration cycle hurts families and communities — and also costs a lot of money. Governments and nonprofits have tried many programs to reduce recidivism, but most are not successful. In a recent review of the literature on prisoner reentry, I summarized the best evidence on how to improve the lives of the formerly incarcerated. One of the most striking findings was that reducing the intensity of community supervision for those on probation or parole is a highly cost-effective strategy. Several studies of excellent quality and using a variety of interventions and methods all found that we could maintain public safety and possibly even improve it with less supervision — that is, fewer rules about how individuals must spend their time and less enforcement of those rules. Less supervision is less expensive, so we could achieve the same or better outcomes for less money.

Why search warrants that were fine under Mansor (COA) may not be fine under Mansor (OSC)

by: Ryan Scott • July 3, 2018 • no comments

For two opinions that (mostly) reach the same conclusion, there are profound differences in the approaches taken by the COA and the Oregon Supreme Court. The following analysis is intended to highlight the practical differences in the two Mansor opinions, and why you should not assume that a cell phone or computer search warrant executed prior to June 28, 2018, is valid under the current interpretation of Article I, section 9.

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Oregon Supreme Court Affirms Mansor But Significant Difference in Approach than COA Took

by: Ryan Scott • June 29, 2018 • no comments

I hope to have my own thoughts on the new Supreme Court opinion in Mansor up soon. Suffice it to say, for now, that you shouldn't be relying on the memos you wrote after the COA opinion was issued. The new opinion requires a significantly different analysis, which is better for some defendants but worse for others. Furthermore, boilerplate Mansor motions really will be worthless. Very fact-specific care will be needed each time you challenge an electronic devices search warrant on particularity grounds.

In the meantime, please enjoy this analysis by Orin Kerr, who was heavily quoted in the opinion.

Post-Carpenter, What's the Status of the 3rd-Party Doctrine?

by: Ryan Scott • June 22, 2018 • no comments

Orin Kerr's same-day take on the status of the third-party doctrine can be found here (question #9)

Key quote:

It lives, but there is an equilibrium-adjustment cap on it. The old understanding was that the third-party doctrine is a bright-line rule: When you voluntarily disclose information to someone, whether to an undercover officer or a business you're working with, you don't have Fourth Amendment rights in the recipient's copy of that information. Chief Justice Roberts says that the third-party doctrine is more limited than that.
As I read him, the Chief seems to be saying that there is an equilibrium-adjustment limit on the third-party doctrine. Once the third-party doctrine starts to give the government massive new powers, the third-party doctrine may no longer apply. Here's the key passage:
"There is a world of difference between the limited types of personal information addressed in Smith and Miller and the exhaustive chronicle of location information casually collected by wireless carriers today.The Government thus is not asking for a straightforward application of the third-party doctrine, but instead a significant extension of it to a distinct category of information."

As many of you may know, I've written about the limitations on the third-party doctrine under the Oregon Constitution ever since St v Ghim came out. OCDLA had a presentation on Ghim at the Winter Conference 2017, which is looking rather prescient right now.

There is a lot for defense attorneys to work with now, under both Constitutions.

Warrant needed for suspect's historical cell-site location data

by: Ryan Scott • June 22, 2018 • no comments

SCOTUS opinion here.

SCOTUSblog analysis here.

A jury selection irregularity

by: Ryan Scott • June 6, 2018 • no comments

In a good opinion from the Court of Appeals today, State v. Gollas-Gomez, the defendant's convictions were reversed because the trial court refused to remove for cause a juror who admitted that he would be partial in the state's favor. Both sides are guaranteed the right to an impartial jury.

The issue was well-preserved, including the fact that the defendant used all of his peremptory challenges, a requirement for appealing a trial court's decision not to remove a juror for cause.

And the juror was ultimately seated on the jury.

Had the juror not been seated on the jury, because the defendant used one of his peremptories on the juror, it is likely, under current case law, the convictions would not have been reversed, because (1) no harm if the biased juror is not seated on the jury and (2) defendant does not have a due process right to peremptory challenges.

This puts defense counsel in an awkward position. If the judge refuses to remove a juror for cause, the defendant can still remove the juror (to avoid poisoning the trial) but gives up the issue for appeal. On the other hand, it's just one juror, and who wouldn't want to good basis for reversal, especially on multiple measure 11 charges, even if the only way to do so is to leave the juror on.

There may be a way around this. The defendant does not have a due process right to peremptory challenges, but if peremptory challenges exist, the defendant has a right to the same number of challenges as the state. There is no reason the state should have an advantage. After all, if a statute or UTCR expressly gave the state more peremptory challenges at the outset than the defendant, that would be a clear constitutional violation. Why should it be any different if the same result is achieved by an erroneous ruling by the court that effectively reduces the number of challenges a defendant has?

New SCOTUS opinion on auto exception

by: Ryan Scott • May 29, 2018 • no comments

Key quote:

This case presents the question whether the automobile exception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parked therein. It does not.

Opinion is here.

And here is Orin Kerr's hot take on the curtilage issues the opinion raises.

Oregon Supreme Court - April 26, 2018

by: Rankin Johnson IV • May 15, 2018 • no comments
  • HABEAS CORPUS -- Failure to provide medical care
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Significant Forensic Cell Phone Search at Border

by: Ryan Scott • May 14, 2018 • no comments

Fourthamendment.com summary here.

Key Fob search opinion

by: Ryan Scott • May 14, 2018 • no comments

Headline from fourthamendment.com: W.D.Tex.: Removal of def’s key fob to press the buttons to locate car was a search that violated a REP in def’s pants pocket

Their summary is here.

Rental Car. Driving not on rental agreement. Reasonable expecation of Privacy?

by: Ryan Scott • May 14, 2018 • no comments

SCOTUS opinion here.

Summary from SCOTUSblog here.

Orin Kerr's analysis here.

From the headnotes:

Held: 1. The mere fact that a driver in lawful possession or control of a rental car is not listed on the rental agreement will not defeat his or her otherwise reasonable expectation of privacy. Pp. 6–13.

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When the Lawyer Concedes Guilt Over Defendant's Objection

by: Ryan Scott • May 14, 2018 • no comments

That's a no-no. Summary of SCOTUS's capital opinion here.

Race and Traffic Stops: A Remarkable (Unpublished) Federal Opinion

by: Ryan Scott • April 26, 2018 • no comments

The opinion can be found here.

It starts with a bang:

Ohio State Trooper Hartford knew three things about Tyrone Warfield before stopping his car. He knew that Warfield, having recently exited a construction zone, was driving under the speed limit with both hands on the steering wheel. He knew that Warfield had touched the lane line twice. And he knew that Warfield was black.

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Warrantless Seizure of Vehicle's Black Box: 4th Amendment Violated

by: Ryan Scott • April 24, 2018 • no comments

Fourthamendment.com has the details.

Foundation, Foundation, Foundation

by: Ryan Scott • April 24, 2018 • no comments

Interesting legal article out of Illinois. It begins notably as follows:

There’s a new rule for ballistics experts who testify at trial.
“Take my word for it” is not enough.

Key quote:

During a December 2011 trial, state police firearms examiner Justin Barr testified that he believed the bullet recovered from the victim’s body originated from Jones’ gun.
Barr explained that experts look for “sufficient similarities” between bullets when trying to identify a match, but there is a level of subjectivity in the process.
On cross-examination, he explained firearm examiners don’t have to identify a set number of matching irregularities or scratches, nor do they have to count them in order to determine a match. He ended his testimony without identifying any individual characteristics between his test bullets and the one recovered from the victim’s body.

A new way of looking at DCS within 1000 feet of a school

by: Ryan Scott • April 9, 2018 • no comments

When a DCS w/in 1000 feet of a school is based on a Boyd delivery (that is, there is not a completed delivery but a substantial step towards a delivery), I suspect many of us erroneously compartmentalize two things we shouldn't. What I mean is, I think we first determine whether or not there was evidence of a substantial step toward a delivery and, if there was, whether defendant was within 1000 feet of a school.

But if we treat those two questions as separate, we potentially give up a possible defense in some DCS w/in 1000 feet of a school cases. Rather, we should ask ourselves -- did the substantial step take place within 1000 feet of a school?

How is that different? Well, assume defendant obtains substantial amounts of drugs, weighs them, bags them, makes arrangements to sell them, and all of this occurs far away from a school. But at some point, some small step occurs within 1000 feet of a school, and that's when he is busted. The state can easily prove a substantial step for a delivery. The state can also prove defendant was within 1000 feet of a school. But can the state prove that the "substantial step" occurred within 1000 feet of a school? Do all the steps that were taken before defendant was within 1000 feet of a school accumulate, so that -- even if the obtaining and weighing and bagging occurred somewhere else -- those steps can be counted toward determining if a substantial step has been taken near the school?

There are plenty of cases where this analysis will not help much. But I can imagine some cases where it would. The key steps a defense attorney would need to take are: (1) asking for a lesser-included of DCS; (2) asking for a jury instruction that states that all steps client took towards delivery can be considered in determining if there was a substantial step towards delivery, (3) but also asking for a jury instruction that says that only the steps taken within 1000 feet of a school should be considered in determining if defendant took a substantial step towards delivery within 1000 feet of a school.

What support do I have for the argument? The statute itself, the definition of attempt and the Boyd case itself. Altogether, they suggest that substantial steps toward a delivery must themselves occur within 1000 feet of a school, not merely the most recent step.

Oregon Supreme Court - March 15, 2018

by: Rankin Johnson IV • March 16, 2018 • no comments

Judicial Fitness

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Cross-Enforcement of the 4th Amendment

by: Ryan Scott • March 15, 2018 • no comments

New draft article by Orin Kerr. Opening paragraph of abstract:

This Article considers whether government agents can conduct searches or seizures to enforce a different government’s law. For example, can federal officers make stops based on state traffic violations? Can state police search for evidence of federal immigration crimes? Lower courts are deeply divided on the answers. The Supreme Court’s decisions offer little useful guidance because they rest on doctrinal assumptions that the Court has since squarely rejected. The answer to a fundamental question of Fourth Amendment law – who can enforce what law – is remarkably unclear.

Applying the right mental state to the material elements: a quick summary and something you probably didn't know

by: Ryan Scott • March 11, 2018 • one comment

Recently, I have given a number of presentations on the steps any defense lawyer should take in determining what mental state applied to which material elements. One anonymous critic wasn't impressed, but for a very practical reason: do jurors really care whether certain crimes have to be committed knowingly, recklessly or negligently? They want to know, "did the guy do it"?

I think it depends on the case. Applying criminal negligence to $ value in a theft or criminal mischief may not matter most of the time, but in the right case -- a victim claiming $800 sunglasses in her stolen purse, plus a $400 alligator-skin wallet, to give an extreme example -- it could easily result in a conviction for a less serious charge.

But I think the question misses the big picture. One, defense attorneys should always make sure the state proves its case, and we aren't doing our jobs by giving the state a gimme on an element or two. Secondly, the jury may not care but the Court of Appeals will. The wrong jury instruction will result in a reversal more times than not. Given how risk-adverse some trial judges are, the likelihood of a judge giving an instruction at odds with the standard instruction is slim, and the chances of reversal are high, if you ask for the right instruction.

So, here is a quick summary of a portion of the relevant law, and a slight twist that might come in handy in the right case.

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Notable Petition for Cert: Can the state seize internet traffic info without PC?

by: Ryan Scott • January 24, 2018 • no comments

Ulbricht v. United States Pending petition

Issues: (1) Whether the warrantless seizure of an individual’s internet traffic information without probable cause violates the Fourth Amendment; and (2) whether the Sixth Amendment permits judges to find the facts necessary to support an otherwise unreasonable sentence.

Go to link above to get the petition, which deserves extra points for the Princess Bride references.

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Oregon Supreme Court - November 8, 2018

by: Rankin Johnson IV • November 12, 2018 • no comments

EVIDENCE — State-of-mind hearsay exception

Trial court erred in excluding e-mails about victim’s financial difficulties, providing a motive to rob defendant. Trial court reversed, Court of Appeals affirmed, remanded for new trial.

Defendant was accused of robbing the victim and then killing him. Defendant argued that the victim had robbed defendant and defendant killed him in self-defense. Defendant sought to offer evidence of e-mails the victim had sent about his financial difficulties. The trial court excluded some of the e-mails as hearsay. Because the e-mails tended to prove the victim’s state of mind, they were admissible as nonhearsay notwithstanding that they also referred to historical facts.

State v. Bement 363 Or 760 (November 8, 2018) (Nelson) (Washington County, Knapp)

Oregon Appellate Court--November 7, 2018

by: Rankin Johnson IV • November 8, 2018 • no comments

CONTROLLED SUBSTANCES - Sufficiency of the evidence

BURGLARY - Sufficiency of the evidence DOUBLE JEOPARDY - Judicial actions constituting acquittal POST-CONVICTION RELIEF - Actual innocence POST-CONVICTION RELIEF - Prejudice TRIAL PROCEDURE - Voir dire CONTEMPT - Sufficiency of the evidence ASSAULT - Injury SENTENCING - Special probation conditions

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Oregon Supreme Court - October 4, 2018

by: Rankin Johnson IV • October 12, 2018 • no comments

POST-CONVICTION RELIEF - Ineffective assistance of counsel

SEARCH AND SEIZURE - Officer safety

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Oregon Appellate Court--September 19, 2018

by: Rankin Johnson IV • September 28, 2018 • no comments

ASSAULT IN THE FIRST DEGREE - Intent to cause injury

STALKING/VRO/FAPA - Acts constituting abuse

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Oregon Supreme Court - September 20, 2018

by: Rankin Johnson IV • September 25, 2018 • no comments

SENTENCING - Separate criminal episodes

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Oregon Appellate Court--September 6, 2018

by: Rankin Johnson IV • September 19, 2018 • no comments

SENTENCING - Disproportionate sentences

RESISTING ARREST FAILURE TO REGISTER AS A SEX OFFENDER - Time to register CRIMINAL MISTREATMENT - Dependent persons PUBLIC RECORDS REQUESTS - Records relating to child abuse SEARCH AND SEIZURE - Conduct constituting stop SENTENCING - Special probation conditions SEARCH AND SEIZURE - Emergency aid exception

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Oregon Appellate Court--August 29, 2018

by: Rankin Johnson IV • September 17, 2018 • no comments


EVIDENCE - 403 balancing PCR - Ineffective assistance of counsel TRIAL PROCEDURE - Mistrials SENTENCING - DNA samples TRIAL PROCEDURE - Statutes of limitations

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Oregon Appellate Court--August 22, 2018

by: Rankin Johnson IV • September 10, 2018 • no comments

SENTENCING - Separate criminal episodes

EVIDENCE - Expert and opinion testimony EVIDENCE - Relevance RIGHT TO COUNSEL - Self-representation

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Oregon Appellate Court--August 15, 2018

by: Rankin Johnson IV • August 31, 2018 • no comments

SENTENCING - Probation violations

PREEMPTION - Minor in possession JURY INSTRUCTIONS - Physical Injury RIGHT TO COUNSEL - Waiver APPEALS - Preservation of error CIVIL COMMITMENT - Sufficiency of evidence APPEALS - Review of civil commitment order APPEALS - Review of Second Look proceedings SENTENCING - Merger

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Oregon Supreme Court - August 9, 2018

by: Rankin Johnson IV • August 23, 2018 • no comments

SEARCH AND SEIZURE - Traffic stops

POST-CONVICTION-Church hearings

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Oregon Supreme Court - August 16, 2018

by: Rankin Johnson IV • August 23, 2018 • no comments

TRIAL PROCEEDINGS - Motions for change of judge

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Oregon Appellate Court--August 8, 2018

by: Rankin Johnson IV • August 13, 2018 • no comments

APPEALS - Motions for summary affirmance

BURGLARY - Relationship between mens rea and actus reus SEARCH AND SEIZURE - Conduct constituting a stop

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Oregon Appellate Court--August 1, 2018

by: Rankin Johnson IV • August 13, 2018 • no comments

JUVENILE DELINQUENCY-Delinquency petition following probation violation

EVIDENCE - Impeachable convictions SENTENCING - Consecutive sentences JOINDER OF OFFENSES - Failure to allege basis for joinder SENTENCING - Measure 11 escape clause PAROLE AND POST-PRISON SUPERVISION - Prohibiting family contact on supervision

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Oregon Supreme Court - August 2, 2018

by: Rankin Johnson IV • August 6, 2018 • no comments
  • ’’’403 BALANCING - Findings’’’
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Oregon Appellate Court--July 25, 2018

by: Rankin Johnson IV • July 27, 2018 • no comments

POST-CONVICTION RELIEF-Conviction which can be attacked

TRIAL PROCEDURE-Amending judgment EVIDENCE-Forfeiture-by-wrongdoing hearsay exception APPEALS-Record necessary for review SEARCH AND SEIZURE-Officer safety EVIDENCE-403 balancing SENTENCING-Merger SEARCH AND SEIZURE-Patdowns

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