CONTEMPT - Jurisdiction
OFFENSIVE LITTERING COLLATERAL DNA TESTING - Prima facie case SENTENCING - Forfeiture EVIDENCE - Expert witnesses SENTENCING - Merger EVIDENCE - Relevance→ continue reading...
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.
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.
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.
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.
A worthwhile read from the Washington Post can be found here.
Here's a key paragraph that gets at something most everyone misunderstands:
An article on this topic here.
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.→ continue reading...
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.
Orin Kerr's same-day take on the status of the third-party doctrine can be found here (question #9)
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.
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?
Opinion is here.
And here is Orin Kerr's hot take on the curtilage issues the opinion raises.
Fourthamendment.com summary here.
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.
SCOTUS opinion here.
Summary from SCOTUSblog here.
Orin Kerr's analysis here.
From the headnotes:
That's a no-no. Summary of SCOTUS's capital opinion here.
The opinion can be found here.
It starts with a bang:
Fourthamendment.com has the details.
Interesting legal article out of Illinois. It begins notably as follows:
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.
Judicial Fitness→ continue reading...
New draft article by Orin Kerr. Opening paragraph of abstract:
Applying the right mental state to the material elements: a quick summary and something you probably didn't know
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.→ continue reading...
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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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)
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→ read the full summaries...
POST-CONVICTION RELIEF - Ineffective assistance of counsel
SEARCH AND SEIZURE - Officer safety→ read the full summaries...
ASSAULT IN THE FIRST DEGREE - Intent to cause injury
STALKING/VRO/FAPA - Acts constituting abuse→ read the full summaries...
SENTENCING - Separate criminal episodes→ read the full summaries...
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→ read the full summaries...
TRIAL PROCEDURE - Joinder
EVIDENCE - 403 balancing PCR - Ineffective assistance of counsel TRIAL PROCEDURE - Mistrials SENTENCING - DNA samples TRIAL PROCEDURE - Statutes of limitations→ read the full summaries...
SENTENCING - Separate criminal episodes
EVIDENCE - Expert and opinion testimony EVIDENCE - Relevance RIGHT TO COUNSEL - Self-representation→ read the full summaries...
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→ read the full summaries...
SEARCH AND SEIZURE - Traffic stops
POST-CONVICTION-Church hearings→ read the full summaries...
TRIAL PROCEEDINGS - Motions for change of judge→ read the full summaries...
APPEALS - Motions for summary affirmance
BURGLARY - Relationship between mens rea and actus reus SEARCH AND SEIZURE - Conduct constituting a stop→ read the full summaries...
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→ read the full summaries...
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→ read the full summaries...