Well, not as big as Blakely. Not as sexy. And not constitutional. Just a matter of statutory construction. But the impact may be significant. All you need is a client charged with delivery of a controlled substance, and the odds are pretty good your client will benefit from today's opinion.→ continue reading...
We’ve all been there: clients facing a slew of crimes against alleged victim #1 and a slew of crimes against alleged victim #2. These could have been joined in the same indictment, or they could have been separate charging documents joined together. The result is the same---you are left thinking, after reading a pretty depressing joinder severance statute, ORS 132.560, that the cases or counts will remain joined together and that your client won’t get a fair trial. Its true, they won’t. Which is why fundamental fairness needs to be our focus. There are at least three different places that due process comes into play: (1) reading due process into the subfactors allowing joinder, (2) weighing whether or not joinder itself can provide for a fair trial using Rule 403, and (3) crafting specific trial procedures and jury instructions in the event of a joinder of wholly separate incidents.→ continue reading...
We don't get very opinions on the Commercial Drug Offense factors which can aggravated a simply delivery or possession to a level 8. Part of the reason is that even if you've got a good challenge, and you preserve it, it might be mooted out by the simple fact that -- even if you were to win -- the state would have more than three factors to rely on.
Anyway, this week's opinion in State v. Rankins is wonderful, and it might provide a basis for new arguments and renewed attention to the factors.→ continue reading...
As most of you know, I have a number of pet issues that I push at any given time. If I seem somewhat relentless with some of the issues, it's because it takes about 6-10 years from when I start promoting an issue to when it gets resolved at the appellate courts. Some win, some lose, some win then lose. But none of them get up to the COA without (1) a case with the issue, (2) a defense attorney who is aware of the issue, (3) a defense attorney willing to preserve the issue (not always the same thing), (4) a case that goes to trial, (5) the issue losing at the trial level, (6) the defendant losing at trial, (7) an appellate attorney who raises it well, (8) an appeal that doesn't moot the issue out for some reason and (9) an appellate court that finds it worth writing about.
Depending on the issue, these can be 9 conditions that are very hard to satisfy. So I keep urging them on attorneys who I like and trust, in the hope that sheer force of numbers will allow the issue to get up at least once, fertilize the COA and produce an opinion.→ continue reading...
If you do felony sentencings, then you know that there is a three-step process in order for the defendant's sentence to be upwardly departed. First is notice that the state intends to prove one or more aggravating factors to the trier-of-fact. The second is actually proving that factor beyond a reasonable doubt to the trier-of-fact. And the third is the judge finding "the circumstances are so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines."
I have previously written why I believe why "on supervision" never justifies an upward departure. The reason is simple: a defendant's status of "on supervision" is not remarkable. In fact, it's probably more likely than not. If so, it isn't the type of "exceptional" circumstance that the judge must find in order to upward depart.
There is a new case that probably justifies making this argument with a bit more vigor. In State v. Davilla,,the Court of Appeals reversed an upward departure on an aggravated murder conviction. It did so because the reasons given for the upward departure were insufficient.
If the state has proven "on supervision", and the judge is now deciding whether to seek an upward departure, be sure to point out that "on supervision" is not exceptional, as demonstrated by the post I linked to above, but also insist that the judge put on the record the reason why "on supervision" is so remarkable in this case that it demonstrates why the guidelines sentence is not sufficient. The judge will have a much easier time explaining why a presumptive probation is insufficient, but she will likely stumble over explaining why a presumptive prison sentence, particularly a long prison sentence, is not sufficient. The key is to ask -- and ask again if necessary -- that the judge put on her reasoning. In the absence of such a request by the defendant, the Court of Appeals will be less likely to hear a complaint that the judge's lack of explanation is insufficient.
If you have a case where the police seized your client's computer or cell phone and searched it pursuant to a search warrant, then you absolutely must read last week's Court of Appeals decision, State v. Mansor.
The key issue:
From a criminal law blog at the University of North Carolina
Good federal case on the failure of the search warrant to connect the alleged dealer's residence with his drug activity.
Reason magazine has recently published, "Confessions of an Ex-Prosecutor."
In today's opinion in Birchfield v North Dakota, the US Supreme Court held -- among other things -- that obtaining a blood draw in a DUII investigation requires a search warrant or an exception to the warrant requirement (e.g., consent, exigency.) It rejected the argument that no warrant was required under the "search incident to arrest" exception to the warrant requirement.
The big question: Is this different than what the Oregon Supreme Court held in Machuca? And the answer is: yes and no.
Machuca did not hold that blood draws in a DUII investigation justified a per se exception to the warrant requirement. But it did -- in effect -- find a near per se exception, finding that in virtually every case a warrant was not required. The exception to the exception occurred when:
Machuca at 736.
Does that mean there's ever a situation where the police would have to get a warrant to draw blood in a DUII investigation? Well, the following exchange might be appropriate here.
In the real world, Machuca announced a per se exception (to everyone except Lloyd Christmas), the very thing that was rejected today in Birchfield. But the Oregon Supreme Court has -- in the past few years -- become known for slicing the law very finely. Will it pretend that its rule of a near per se exigency is not at obvious odds with today's Birchfield decision, because of an exception it imagines that simply doesn't translate in an any meaningful way to the experience on the ground?
Per Ronald Mann, for the Term so far -- there are still nine opinions left to be issued -- the two Justices most in agreement, according to SCOTUSblog statistics, are Justices Elena Kagan and Anthony Kennedy, agreeing in ninety-seven percent of the cases.
I blogged about this in September, 2015, in response to an incident out of North Carolina.
Well, now it has happened a little closer to home. 17-year-old harasser is convicted of distributing child porn of himself
I submit that it is simply impossible to reconcile Tooley and today's opinion, but assuming it is possible, the COA at least had an obligation to try. In Tooley, there was more than enough time to "do other, almost kind of mundane things" (like errands) and then to "reflect, reform a state of mind and intent" (12 hours) before he "came back and administered a second assault" (murder).
The failure of the court to explain its ruling with anything more than the most cursory analysis unnecessarily feeds the cynical view that 12 hours between crimes, with errands run in between, constitutes just one criminal episode as long as it means the state wins, but 15 minutes between crimes, with mundane activities taking place in between, constitutes two criminal episodes, as long as it means the state wins. (Both cases involved one overarching criminal objective.) I am not that cynical, because I'm actually a very big fan of the judges at the Court of Appeals, but I do think they really whiffed on this one.→ continue reading...
Opinion out of Massachusetts here. Unfortunately for this defendant, it was found to be harmless.
As I have noted in previous posts, about once a month, maybe slightly longer, there is an opinion out of a state or federal appellate court finding a cell phone search warrant overbroad. We're still waiting on such on opinion out of Oregon, but in the meantime, please preserve this issue, and talk to me if you need help to do so.
Smart piece by Mark Joseph Stern on the erosion of due process guarantees exemplified by the recent sentencing.
For questions of such seminal importance, we look -- as always -- to the Utah appellate courts.
A notable petition for cert. has been filed with the U.S. Supreme Court. The case is Ye v. United States and the question is: Whether the Confrontation Clause permits the prosecution to introduce an out-of-court, testimonial translation, without making the translator available for confrontation and cross-examination.
In State v. Rodriguez-Castillo, 345 Or. 39 (2008), the Oregon Supreme Court held that when someone testifies about what another person said through a translator for the truth of the matter asserted, it is double hearsay and the statements of both the declarant and the translator must meet some exception. In State v. Montoya-Franco, 250 Or. App. 665 (2012), the defendant challenged police officer's testimony as hearsay because it was based on a translator's statements. In that case, the court held that the officer's testimony had adequate foundation because the translator's qualifications fulfilled the requirements of Oregon's hearsay exception statute OEC 803(28). The translator was a fluent Spanish speaker, spoke Spanish every day, received a bonus for his Spanish skills and frequently served as an interpreter. These qualifications ensured that the interpreter's translation was reliable and trustworthy. Therefore, the admission of the translated statement was not qualitatively different from the admission of the defendant's own statement.
Despite examining an interpreter's statements in the context of hearsay rules and exceptions, Oregon has not yet examined the effect of the federal confrontation clause. For example, in State v. Sierra-Depina, 230 Or. App. 86 (2009), the defendant argued that a defendant's translator's statements are testimonial and inadmissible without the original interpreter's testimony at trial. In that case, the Court of Appeals disposed of the issue on harmless error grounds. Of note however, is this opinion from the Maryland Court of Special Appeals, which relied on Oregon case law and held that an interpreter's statements are testimonial.
Here we go -- another mix of open questions, predictions and -- in a year, if we're lucky -- answers.→ continue reading...
This post includes some news out of the Oregon Supreme Court, as well as recent case law from around the country on blood draws and exigency.
First, the Oregon Supreme Court issued a press release this week, indicating it was granting review to State v. Swan, in which the questions presented are:→ continue reading...
The first five posts I wrote for Library of Defense appeared in October and November of 2010. The subject of all five were criminal episodes. I recently revisited the posts, and I'm rather pleased they've held up nicely, at least in terms of the law. I've copied below the fifth in the series, and it is about the improper joinder demurrer. It makes the point that is worth making again in light of State v. Poston. The goal of the improper joinder demurrer has always been to make the law more fair and just, not about getting the state to reindict. And the demurrer does this indirectly, by encouraging the state to commit -- sometimes -- that the charges in the indictment are from one criminal episode before trial, so that the prosecutor doesn't take the opposite position at sentencing. Consequently, I'm not all that concerned that defense lawyers aren't winning Poston demurrers post-Poston, because the state is amending the indictment to allege the facts necessary for joinder. Instead, I'm pleased that the state is now doing exactly what I hoped. And if you have any doubt, read the following, originally written nearly six years ago.→ continue reading...
The 2015 Criminal Law Quiz is here.
The good news: the questions on the improper joinder demurrer (State v. Poston) and the mental state for UUV (State v Simonov) were answered favorably for the defense.
The non-news: no new opinions on Grand Jury notes or child porn sentencing issues. Will we get new opinions on those topic this year? Out of six cases (that I knew of) where the appellate briefs raised the issue of the failure to turn over Grand Jury notes, five were AWOP'd. One is outstanding, but the GJ notes issue wasn't the only one, so there's no guarantee it will be reached on the merits.
Meanwhile, at the trial level, most judges still rely on prosecutors to reassure them that there was nothing exculpatory in the Grand Jury notes, even in cases where the witness told one thing to the police and something different on the witness stand.. In other words, judges are still forsaking their responsibilities. But I think this will change, as soon as we get one decent appellate decision. But appellate judges aren't all that interested either. Still, I have hope. It is so obviously wrong that defendants are being denied evidence of the most effective tool of cross-examination: the inconsistent statement. But it's a tricky issue to preserve: keep at it, and the COA will get it right eventually.
As for the child porn sentencing issues, the two primary sentencing issues discussed in the criminal law quiz have been preserved in a couple of cases, and I expect the COA will reach the issues eventually, if not this year then within the next two.
I hope to publish the 2016 quiz soon. As always, it's simply a vehicle to highlight open legal questions, and this year at least, we had a pretty good batting average.
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