. . . . unleaded gasoline. Or more precisely, the phasing out of leaded gasoline in the US in the 1970s. You can easily find previous articles and evidence of this around the internet. Perhaps the most compelling evidence is that the drop in violence is entirely predictable based on when and how quickly leaded gasoline was phased out, regardless of the country. Here is the evidence as it relates to Britain, which phased out leaded gasoline much later than occurred in the US but, once it did so, did so much more quickly.
This isn't rocket science. We know what lead does to the brain, in terms of intellectual development and impulse control. That getting it out of the environment would have long term benefits for the children who grew up after lead was reduced or eliminated in their neighborhoods is entirely predictable and born out by the evidence.
Today, the Oregon Supreme Court came out with an opinion in State v. Morgan. It's a good defense opinion but not a good one for this particular defendant.
The most significant holding is that in a robbery in the second degree based on "aided by another person actually present," the "other person" must actually intend to aid the principal in the commission of the robbery. It can't be inadvertent assistance.
But there are a few things from the opinion that are very much worth highlighting.→ continue reading...
Article is here.
“Native-born Americans are more likely to be incarcerated than Central American immigrants, and recent increases in immigration occurred as crime actually fell in the US.”
The costs referred to in the title are purely financial. But even those are huge, and likely conservative. The report comes from the Prison Policy Initiative. I haven't read it closely enough to determine if it includes the loss of tax income from inmates who would be working if they weren't incarcerated.
SCOTUS granted cert last week to a case with the following facts (taken from SCOTUSblog's summary):
The first piece involves the reduction, by 50%, of the number of black males under 30 who are incarcerated since 2001. The reason won't surprise anyone who has regularly read this blog. The thing to keep in mind is that, around the country, you're seeing lower incarceration rates for young males AND lower crime rates. Keep this in mind when you hear people defend higher incarceration rates as the explanation for reduced crime.
The second is a Slate piece about Oregon prosecutors. It's brief, and it tries to cover a lot of ground. Consequently, it's a more superficial discussion than I would like, but it's a start.
Here's the story behind it. It's another example of how the greatest anti-crime measure this country ever undertook was removing lead from gasoline.
I wrote about this back in 2011, after the COA had approved a state's instruction on possession with intent to delivery in State v. Schwab. Here's what I wrote, edited somewhat:
The concurrence first quoted the instruction at issue:
Then the concurrence said this about the instruction:→ continue reading...
From Justice DeMuniz's concurrence in Sullivan v. Popoff:
The first question in determining if evidence is admissible -- always the first question -- is relevancy. Once relevancy is demonstrated, the next step is admissibility (e.g., statement of a party opponent, excited utterance, doctrine of chances) and then lastly, whether the probative value is substantially outweight by its prejudicial effect (i.e., OEC 403.)
Normally, relevancy is easy. Does the evidence make a fact in dispute more or less likely?
Relevancy can, in some situations, have two prongs. Let's assume the evidence is only admissible if certain inferences are made. Inferences are okay, but speculation is not. But what if those inferences depend on a separate "fact" that in turn is merely an inference?
If the inference is only relevant if the separate fact is true, then the party seeking to offer the evidence must prove that separate fact before the evidence is admissible. Otherwise, there is improper speculation.
See these recent footnotes from State v. Jesse:
If the evidence is being offered by the state, defense counsel MUST request a limiting instruction to be given at the time the evidence is presented to the jury. If no limiting instruction can successfully mitigate the substantial prejudice of admission, then the evidence must be excluded. Consequently, the court must decide what the limiting instruction would be prior to determining if the evidence is admissible. In this way, an inadequate limiting instruction can result in reversal, even if the evidence might be admissible if a proper instruction were given.
Last week, the Court of Appeals remanded for merger of three counts of sexual abuse involving three different body parts (two belong to the victim, one the defendant.) The case is State v. Nelson.
Over the past eight years or so, the defense bar has won a tremendous number of merger arguments. This is one of the last big ones. A few more can be found here.
AMENDED: Oops, Villagomez, while still a great opinion, isn't as broad as I assumed below. See State v. Stewart.
First, State v. Villagomez. Before this case, you'd virtually never see a level-4 DCS. They would all be level-6 or level-8. After Villagomez, most Boyd deliveries will be level-4s. What's the difference between 6 and 4? In some cases less prison, in other cases, no prison, and in others, less probation.
Secondly, keeping with the CDO theme, State v. Rankins. This case, by weakening one of the CDO factors (specifically drug records, which no longer include routine texts between dealer and buyer), in combination with Villagomez, will help save a lot of people from prison.
Third, State v. Mansor,, the one computer search warrant case that is essential reading. Police are now routinely getting search warrants for our client's phones, especially in drug cases and homicides. This case will significantly reduce the state's discovery -- and reliance -- on a lot of bullshit character evidence. For example, read this story from Sentencing Law and Policy blog about how a Facebook post written by a defendant when he was 13 is being used by the prosecutor to give a minor life in prison. Key quote:
AMENDED: See below
Situation #1: the state alleges in the indictment a bullshit reason why the counts should be joined. But since a demurrer only looks at the face of the indictment, not the facts of the case, a demurrer would certainly fail. What to do? Answer: motion for mistrial after the state rests. And yes, there's a case on point.
Situation #2: the prosecutor, over-learning the lesson of State v. Poston, lazily alleges all three bases for joinder in the indictment. And then at sentencing, it tries to claim that, contrary to the boilerplate language in the indictment, the counts aren't from the same criminal episode. Answer: equitable estoppel. State can't take opposing legal positions simply because it advances their interest to do so at the time.
It was brought to my attention that the equitable estoppel argument lost in 2011 in a case called State v. Bush. The opinion lays out the Oregon analysis:
The Bush court then held that the requirements were not met:
Does this foreclose the argument now? Perhaps not. The opinion was written pre-Poston, of course, and therefore the defendant would not have made the argument that the claim within the indictment of one criminal episode stopped him from filing a demurrer. (And in fact it would have stopped him, because regardless of the facts, that claim on the face of the indictment would have made the indictment immune to a Poston demurrer.)
Now perhaps a defendant could file a motion to sever, if the defendant believes it's not in fact one criminal episode. But this sets up a serious dilemma. If the prosecutor believes it's one criminal episode, then why get a court to convince her otherwise and thus subject the defendant to a greater sentence.
Compounding the problem is that the current state of the law on criminal episodes is a mess. Here is a quote from a draft of a PFR I'll be filing within a couple of weeks:→ continue reading...
I did not follow the trial closely, but unlike a lot of people in a similar position, I don't have a strong opinion about the verdict, other than recognizing that the defense lawyers include some of the best lawyers in the state.
But it's plain from reading the jury instructions on conspiracy, and especially the comments of Juror #4, that what was often referred to as the defendant's "state of mind" played a large role in the acquittals.
There is one exception to my lack of strong opinion about the verdict. More precisely, I have a strong opinion about the reaction to the verdict. Many people were quick to claim "white privilege" as a reason for the acquittals. After reading the comments of Juror #4, it's obvious that the jury engaged in thoughtful and careful analysis, and claims of white privilege are not only glibly dismissive but born out of ignorance, even as they might burnish one's liberal bona fides. You may feel that in a different trial, with different jurors, black defendants might not be afforded the same care and analysis, and I might agree with that, but the fact that these jurors did their jobs is not a reason to diminish their thoughtful application of the law to the facts.
Anyway, back to the reason I'm writing this post. The verdict would seem to show that holding the state to proving the defendant's mental state beyond a reasonable doubt can result in an acquittal, even if the actions are not really in dispute. And yet, we still have defendants going to trial with the juries almost certainly being instructed erroneously on the appropriate mental state, thereby relieving the government of its burden of proof.
For reasons I have explained at length before, I believe the standard instructions on assault I, assault II, numerous theft charges, and most statutory rape offenses are erroneous: they let the jury convict on what is a lesser mental state than the law requires. If you have one of these cases, let me know, and I will provide you with sample instructions. My e-mail is email@example.com.
Remember that when it comes to erroneous jury instructions. or the denial of correct jury instructions, there is no better standard of review on appeal. All we need are defense attorneys who take these cases to trial to adequately preserve the issues. I want to help you. Let me.
In State v. Ghim, the Oregon Supreme Court held that a defendant may have a privacy interest in “information that a third party collects and maintains for its own use.” Ghim at 436.
However, the issue is highly driven by context. Interestingly, the state – in Ghim – did not argue that as a matter of law, a defendant never had a privacy interest in documents held by third-parties. All sides agreed that whether a privacy interest existed was one that:
Ghim at 437.
It is worth noting that this is an extraordinary departure from past holdings of the Court of Appeals. When Ghim was before the lower court, the Oregon Court of Appeals held:
State v. Ghim, 267 Or App 435 (2014), aff’d on other grounds, 360 Or 425 (2016).
In light of the stark contrast between the courts’ analyses of the same issue, the Court of Appeals analysis can no longer be considered good law.
Amusing story about a man who fired a warning shot at a knife-wielding clown. The clown ran, and the police went on a manhunt, and they found a clown hiding in the bushes. Case closed? Not exactly.
Oh, and if that wasn't enough:→ continue reading...
With far too much frequency, some judges are hesitant to grant an in camera review of Grand Jury notes. In justifying that decision, there is often a reference made to the historical secrecy of GJ notes, but (1) an in camera review avoids any of the concerns about disclosure because an in camera review, by definition, means the defendant does not see the notes unless they contain Brady material, and (2) we don't usually see such hesitancy regarding, for example, medical records, which have a far greater claim to being privileged.
It is especially strange given that the standard for obtaining an in camera review is not that high.
A reasonable belief that it might yield relevant evidence? You mean, like a statement made during testimony that is inconsistent with a statement made to the police? In such a scenario, the GJ testimony -- often given closer in time to the statement given to the police, and given under oath -- might easily yield impeachment material.
Preserve, and preserve well. This is an issue we will win on eventually, not because the Constitution favors us (though it does), but because it is simply, fundamentally, right that the state shouldn't be allowed to hide behind Grand Jury secrecy to avoid giving over evidence that their witness may have given different evidence at GJ.
I wonder if this argument could have implications for child porn suppression motions, for those situations where the defendant can claim he didn't know how much information he was sharing with the world when he joined a P2P network. People who have dealt with P2P networks claim that anyone going onto a P2P network must know what that entails; I'm not convinced myself that it is as intuitive or obvious as we might think, especially when the "default" setting when you download the software is "share." Might depend on what you see on the interface.
Anyway, the article by the always valuable Orin Kerr is here.
Are you wondering why crime is up? Who do you think is responsible for the increase? As they like the say in teasing the local news, "the answer will surprise you."→ continue reading...
Remember in the post immediately preceding this one, I suggested that additional language on the affiant's experience won't be enough to get to all the parts of the cell phone that the police can't get to in light of St v Mansor?
If that argument appeals to you, go here. Key quote:
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