The quiz is here.
The results are brutal this year. The ECSA/criminal episode issue was decided against the defense in State v. Dulfu, although the Oregon Supreme Court has granted review.
The good news appears to be limited to (4)(b).
That said, most of the remaining issues have yet to be addressed by the COA. But virtually all of the undecided issues are working their way through the appellate courts, so there is reason to think we'll get answers in 2018.
I have often noted that ambiguity in the law favors the state. If a defendant honestly can't tell whether or not crimes arise out of the same criminal episode, then he won't know the maximum sentence he might fact. Consequently, his decision to go to trial or accept a plea offer must factor in the worst case scenario, i.e., the sentence he might get if the court finds multiple criminal episodes. The prosecutor has little reason to make the same calculation from the other side. Maybe she'll make the offer marginally better because the defendant has a plausible claim to one criminal episode, but the consequences of being wrong -- arguing for multiple criminal episodes and losing -- is going to be of minimal significance.
This situation plays out in various ways every date in the criminal justice system. I don't include situations where the defendant doesn't know if he's going to be found guilty or not. But I do include situations where there is a genuine dispute over whether -- if the defendant actually did the acts he's accused of -- he's actually guilty of an offense, because there is some ambiguity over what the law actually says.
But there is one situation where the ambiguity in the law provides a potentially huge upside to the defendant. And that is when he has a slightly outside-the-box type of legal argument that could result in dismissal of most or all of the charges, and because of the relative novelty of the argument, there is no clear case law one way or the other. Because it's a longshot, the prosecutor scoffs and gives it little weight, generally assuming -- with good reasons -- that most judges are highly risk-adverse and aren't likely to grant the defendant's motion.→ continue reading...
Not an unusual fact situation described her. From fourthamendment.com:
Defendant was a passenger in a car stopped for expired tags. She should have been allowed to keep her purse when she got out of the car. Instead, she was told to leave it in the car, and then it was searched in the car when the car was impounded. Suppressed. State v. Campbell, 2017 Iowa App. LEXIS 777 (Aug. 2, 2017).
The opinion is here.
Another noteworthy quote:→ continue reading...
Notable Colorado opinion. Headline at fourthamendment.com reads: CO: In this recreational MJ use state, a dog sniff is a “search,” and a positive alert isn’t PC a crime is occurring
I am of the opinion that the standard jury instructions for most theories of Assault II, some theories of Assault I, APSO, Theft-by-Taking and Criminal Mischief I and II are wrong. If you want supplemental jury instructions that would give you an additional defense and/or give you an issue for appeal, please contact me directly. If you know someone who is taking one of these cases to trial, please spread the word.
Maybe yes. First, a quick primer on vertical proportionality. From State v. Koch:
Second, State v. Haddon, which essentially held that ID Theft (a felony) can be a lesser-included of Fraudulent Use of a Credit Card (misdemeanor).
In other words, some ID Theft charges, by being charged as felonies, will violate Article I, section 16, because they carry a greater sentence than misdemeanors that describe more serious behavior.
The Haddon court found that the FUCC (the greater offense, measured by elements, but the lesser offense measured by crime seriousness) merged into ID Theft (the reverse). Even if that is the correct result in a merger analysis, that holding wouldn't solve the proportionality problem under the Oregon Constitution. The state can also defeat the merger argument by not charging FUCC, but that too would not have an impact on the proportionality challenge.
This argument will be limited to ID Thefts that fall into the Haddon category, but if they do, it's a powerful and fun argument to make. I would ask for either dismissal of the ID Theft or, failing that, immediate reduction to a misdemeanor. Can you raise it pre-trial? Probably not. Whether you'd want to alert the prosecutor to the issue as a part of negotiations will likely depend on how easy a problem it would be for them to fix.
This is a long blog post, but please read before you go to trial on an assault II based on serious physical injury, an assault I based on knowingly causing serious physical injury to a child, or assault on a public safety officer. It will tell you everything you need to know about why the standard jury instructions for those crimes are wrong.→ continue reading...
In State v. Engen, the Court of Appeals held that while a defendant must knowingly possess a controlled substance, he didn't need to know the exact nature of the controlled substance. That is, a defendant charged with possession of cocaine couldn't get an acquittal by arguing he thought it was meth.
But back then, a defendant wouldn't have been charged with specifically possessing cocaine. He was charged with possessing a schedule II controlled substance. The statute didn't distinguish between cocaine and methamphetamine. Now, a defendant is usually charged with expressly possessing cocaine in most cases, though a separate general statute based on drug categories still exists.
The earlier failure to distinguish different controlled substances was part of the analysis in Engen:
As I mentioned, at least some of the drug statutes make those distinction now. Let's assume the charge is possession of cocaine. The mental state is knowingly. The conduct -- using a Simonov analysis -- is possession of cocaine. I don't think a person can be guilty under that statute of possessing cocaine if they thought they possessed methamphetamine.
The story is here.
There is a larger point to be made about sloppy legislative drafting (as well as other points not suited to this blog) but I'll save those for another time.
If prisoner A is in custody, serving a prison sentence, because it is necessary to keep the community safe, then the fact that there is a job shortage would not impact that conclusion, would it?
But if a job shortage is a basis for releasing a prisoner, perhaps community safety isn't the issue. And if community safety isn't the issue, then aren't there a number of ways to punish a person that are more effective and cheaper than incarceration?
Drunk driving fatalities have fallen dramatically since the early '80s. They continued to fall since the mid-90s, but that drop is less significant because non-DUII auto fatalities have fallen the same amount, suggesting that improvements in auto safety (which protect the drunk and sober alike) account for most if not all of the drop in the last two decades.
Still, if you go back to the early '80s, the decline of drunk driving fatalities has been an extraordinary success story. Is it because of tougher laws? Social stigma? Demographics? Change is alcohol consumption patterns?
You might find an answer here.
The Tennessee Supreme Court, in a recent opinion, went over a large body of case law on whether a "No Trespassing" sign defeats the implicit license of police to walk up to your front door. A discussion of their opinion is here.
The Oregon Court of Appeals recently discussed the issue in St v. Wilson.
The US Supreme Court is considering whether to take cases where the issue is whether a search warrant or a mere subpoena is necessary to obtain historical cell-site data.
Links to the multiple petitions for cert can be found here.
And an argument for revisiting the third-party doctrine is here. As previously noted, the Oregon Constitution provides much greater protection to records held by third-parties, per State v. Ghim. Having said that, the exact parameters of that protection will continue to be unknown until defense attorneys start preserving the issues.
In State v. Simonov, the Oregon Supreme Court lays out the law on applying which mental states to which elements. The charge was UUV, but it's a great place to start if you ever have any questions about mental states and material elements.
In his opinion, Justice Brewer points out that the "knowing" mental state is the lowest applicable mental state that can be applied to conduct. When it comes to results and circumstances, the lowest applicable mental state is criminal negligence. He points out that if a crime is in the criminal code, and no mental state is explicitly applied to a particular element, then the lowest possible mental state applies, which, in the case of a conduct element, is "knowingly" and in the case of a circumstance element is "negligently."
He briefly uses theft to highlight the difference between conduct and circumstance, specifically the fact that value of an item is a circumstance.
But what he says next is what's most important. He cites St v Jones, a COA case (authored by then-Chief Justice of the Court of Appeals, David Brewer) that specifically involves whether one should apply a knowing mental state to the value of items stolen. And he summarizes Jones as follows:→ continue reading...
Kopf's list begins:
10. Criminal defense lawyers are at great risk of becoming drunken bastards—the stress is beyond description.
9. Being a good criminal defense lawyer requires sincerity whereas being a great criminal defense lawyer requires the ability to fake it.
8. When it comes to convincing a client to accept a guilty plea because it is in the manifest best interests of the client, a criminal defense lawyer must become a client whisperer.
7. When it comes to convincing a client to reject a plea offer and take the case to a jury, a criminal defense lawyer (regardless of gender) must possess balls of steel.
6. Real criminal defense lawyers don’t hate prosecutors, but they don’t trust them either.
The rest of the list gets more interesting.→ continue reading...
Kevin Drum's post is here, highlighting two studies. Very interesting to show how leaded gasoline -- and the subsequent ban on leaded gasoline -- impacts incarceration and crime as categorized by the race of the defendant.
You may have thought this issue was dead, but apparently it has some life. Per SCOTUSblog, SCOTUS has invited the solicitor general to weigh in on the petition for cert in Snyder v. Doe, which raises the question whether retroactive application of sex-offender-registry laws violates ex post facto clause.
That doesn't mean the justices will take the case, but at least one justice is considering doing so. I wouldn't expect a decision on whether to grant cert until the fall.
I've been waiting to have a case -- almost certainly a vehicular manslaughter or similar -- in which to raise this issue. Hasn't happened yet. But here's an appellate opinion where it was raised. Key quote:
Here is Orin Kerr's take on the issue.
I highly recommend you look at this chart via Kevin Drum.
Mr. Drum writes:
The Oregon Supreme Court has granted review to a case involving child porn sentencing. The issue is this: how many different criminal episodes are there when multiple images are found during a single search, but those images were obtained on different dates?
I won't reiterate the arguments here, but it's my case, so if anyone wants the briefs after they're filed, let me know.
If the defense wins, the impact could be that a defendant who is an "I" would stay an "I" for all counts. While much better than being an "A" after just a few counts, are there any other limitations that could dramatically shorten the sentence?
Yes. If the state can't prove separate victims, the 200% rule would kick in, and the defendant's likely sentence would be no more than 36 months.
But what if the images all involve separate children? My argument -- which I have written about before -- is that the burden is on the state to show that the people depicted in the images are still alive at the time of downloading by the defendant, because if they aren't, they are beyond all harm, and thus cannot be victims (in the same way you can't libel the dead).
The state's response, shared by some defense attorneys, is that when you download the images ten, twenty or even a hundred years later, you -- as a consumer of these images -- are the reason these images were created in the first place, thus you are complicit in the original abuse. Consequently, it is the harm from the original abuse that makes the children "victims" for all eternity, even if the porn people look at five hundred years from now is the same porn that exists today.
I think this is wrong because I don't think the law recognizes retroactivity in this type of culpability. Space/time certainly doesn't. But there is another key reason, and when I say it, you're going to be shocked, but read on, and you'll see I'm not promoting an argument that only a psychopath would make.→ continue reading...
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