OCDLA Library of Defense - Latest Case Reviews

Blog Primer on Preserving As Applied Challenges to Gun Laws by: Henry Oostrom-Shah • July 30, 2025 • no comments The State has charged your client with felon in possession of a firearm where their only felonies are old or non-violent crimes. File a pre-trial motion to dismiss. Demand a hearing. At that hearing, show the judge that your client is no longer a danger to others. Call witnesses to talk about how safe and law-abiding your client is. Bring in employment, treatment, and schooling records. Talk about the lack of subsequent violent criminal history. Because your client is no longer a danger, they still have a constitutional right to bear arms. More follows below, including helpful federal and state cases to support your arguments. → continue reading... Does the Lack of a Mental State Render Most Major Sex Crimes Unconstitutional? by: Ryan Scott • July 17, 2025 • no comments The Oregon Supreme Court is going to hear argument in September in the case of State v. Monaco. The conviction was for felony murder. One of the "questions presented and proposed rules of law" identified in the opening brief is as follows: Third Question Presented. Does ORS 163.115(1)(b), Oregon’s felony murder statute, violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution? Proposed Rule of Law. This court has interpreted ORS 163.115(1)(b) as creating a presumption of a culpable mental state for the causation-of-death element of felony murder, by the defendant’s commission or attempted commission of the underlying felony. Such a legal presumption violates due process because it is inconsistent with the presumption of innocence, relieves the state of its burden to prove every element of the offense, and invades the province of the jury. In the alternative, it violates due process by establishing a strict-liability offense for a violent felony. My question, which is in the larval stage of development, is this: Are any of the constitutional principles on which the Monaco argument relies applicable to major sex crimes where no mental state at all applies to the element that makes a defendant guilty (the age of the victim in a Jessica's Law case) or where no mental state applies but the defendant has the ability to raise an affirmative mental state defense (sex with a sleepy or intoxicated person)? → continue reading... Article I, Section 16, Opportunities by: Ryan Scott • June 17, 2025 • no comments Article I, section 16, of the Oregon Constitution states: “Excessive bail shall not be required nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.” The proportionality provision requires a “comparative relationship” between punishments and the offenses for which they are imposed: “The term ‘proportion’ indicates a comparative relationship between at least two things. See, e.g., 2 Noah Webster, An American Dictionary of the English Language 45 (1828) (“proportion” indicates a “comparative relation”). Here, the two things being related are “penalties” and “the offense,” and the provision requires that the penalties for each particular offense be “proportioned”—that is, comparatively related—to that offense. The strong implication of that requirement is that a greater or more severe penalty should be imposed for a greater or more severe offense and, conversely, that a less severe penalty should be imposed for a less severe offense.” State v. Wheeler, 343 Or 652, 655-56, 175 P3d 438 (2007) The test for making proportionality determinations has “at least three factors” to consider, including: “(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.” State v. Rodriguez/Buck, 347 Or 46, 58, 58 n 6, 217 P3d 659 (2009). Buck/Rodriguez involved Measure 11 crimes, requiring a 75 month mandatory minimum sentence. But the actual behavior was rather minor, and therefore the 75 month sentence was overly severe. In addition, the Oregon Supreme Court has held that characteristics of the defendant plays a significant role in determining if a sentencing is disproportionate. In State v. Ryan, the Court held: "Evidence of an offender's intellectual disability therefore is relevant to a proportionality determination where sentencing laws require the imposition of a term of imprisonment without consideration of such evidence. Accordingly, we conclude that, where the issue is presented, a sentencing court must consider an offender's intellectual disability in comparing the gravity of the offense and the severity of a mandatory prison sentence on such an offender in a proportionality analysis under Rodriguez/Buck." Id. at 620-21. In State v. Gonzalez, the Oregon Supreme Court held that other characteristics other than intellectual disability may be relevant, but rejected the argument that the defendant's mental health attributes rendered a M11 sentence unconstitutional. I think, however, the case law has only scratched the surface of situations where Article I, section 16, would come into play. What follows are some ideas for when the constitutional protections of the proportionality clause might be triggered. → continue reading... Next 20 Articles Case Reviews Oregon Court of Appeals, July 23rd, 2025 by: Rankin Johnson SENTENCING - Restitution SENTENCING - Merger SENTENCING - The evidentiary record → read the full summaries... Oregon Supreme Court, July 17th, 2025 by: Rankin Johnson SEARCH AND SEIZURE - Reasonable suspicion → read the full summaries... Oregon Supreme Court, July 10th, 2025 by: Rankin Johnson SENTENCING - Credit for time served → read the full summaries... Oregon Court of Appeals, July 10th, 2025 by: Rankin Johnson DOUBLE JEOPARDY - Successive trials → read the full summaries... Oregon Court of Appeals, July 9th, 2025 by: Rankin Johnson EVIDENCE - Other bad acts EVIDENCE - Other bad acts SEARCH AND SEIZURE - Particularity SENTENCING - Driver's license suspension CLOSING ARGUMENT - Improper argument by prosecutor → read the full summaries... Oregon Court of Appeals, July 2nd, 2025 by: Rankin Johnson RIGHT TO COUNSEL - Waiver SEARCH AND SEIZURE - Technological surveillance → read the full summaries... Oregon Court of Appeals, June 25th, 2025 by: Rankin Johnson FAPA, STALKING, AND RESTRAINING ORDERS - Victim's rights APPEAL AND REVIEW - Notice of Appeal timelines → read the full summaries... _________________________

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