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Historical Cell-Site Data: subpoena or search warrant?

by: Ryan Scott • March 22, 2017 • no comments

You can see a 9th Circuit oral argument on the issue here.

However, keep in mind, the Oregon Constitution may be far more favorable. See State v. Ghim for Oregon's take on the third-party doctrine.

Juvenile Arrest Rates Since 1980

by: Ryan Scott • March 6, 2017 • no comments

I highly recommend you look at this chart via Kevin Drum.

Mr. Drum writes:

Since 1996, arrests of juveniles have fallen by two-thirds. Arrests for violent crimes have fallen by more than two-thirds. Bottom line: Kids today are way better behaved and way less scary than they were in the 90s. One of these days we ought to start acting like we know this.

Child Porn Sentencing

by: Ryan Scott • March 5, 2017 • no comments

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.

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The Science on Marijuana Legalization's Impact on Opioid Addiction

by: Ryan Scott • February 28, 2017 • one comment

Judge Rejects Warrant Provision On Compelling Thumbprint to Unlock Phone

by: Ryan Scott • February 24, 2017 • no comments

Details here.

Where Can You Get Crime Statistics?

by: Ryan Scott • February 24, 2017 • no comments

For US crime statistics, go to the FBI's Uniform Crime Reports. This is a good place to start. As Kevin Drum states, "Their data delivery tool provides a lot of flexibility, allowing you to get data for specific crimes, specific localities, and specific time periods. Unfortunately, it's usually two years behind the latest release, so you have to wade through the most recent PDF reports if you want current data. If you need a complete series, start with the data tool and then fill in the most recent couple of years by hand from the relevant reports."

More proof that the major reason for the drop in violent crime is. . . .

by: Ryan Scott • February 17, 2017 • no comments

. . . . 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.

Things You Really Need to Know About Special Jury Instructions

by: Ryan Scott • February 16, 2017 • no comments

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.

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Is Your Smart TV Spying on You? And How This Relates to the Most Important Suppression Opinion of the Year

by: Ryan Scott • February 7, 2017 • no comments

The Fourth Amendment blog writes about the story here.

The blog post asks the question: "So, if this is third party data, is it subject to mere subpoena and not a search warrant?"

And the answer is:

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An Objective View of the Relationship Between Immigration and Crime

by: Ryan Scott • January 27, 2017 • no comments

Article is here.

Key quote:

“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 of Mass Incarceration

by: Ryan Scott • January 27, 2017 • no comments

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.

Probable Cause to Arrest for Trespassing

by: Ryan Scott • January 23, 2017 • no comments

SCOTUS granted cert last week to a case with the following facts (taken from SCOTUSblog's summary):

The first grant came in District of Columbia v. Wesby, a case that presents important questions regarding the assessment of probable cause by police officers and qualified immunity. The case arose when police officers in Washington responded to a noise complaint about a vacant house, where they found scantily clad women and the smell of marijuana. No one seemed to know who owned the house or precisely what the occasion was, but some of the partygoers told police that they had been invited by someone named “Peaches” or “Tasty” – who was not at the party, but who admitted that she did not have the owner’s permission to use the house.
The partygoers were arrested for trespassing, but no charges were ever brought against them. The partygoers then filed a lawsuit, in which they alleged that the police lacked probable cause to arrest them because they had told police officers that they had been invited to the house and therefore did not intend to trespass.

Two pieces on criminal law worth reading

by: Ryan Scott • January 16, 2017 • no comments

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.

"Kids Are Killing a Lot Fewer Cops These Days"

by: Ryan Scott • January 4, 2017 • no comments

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.

Possession with Intent to Deliver: the state's special jury instruction

by: Ryan Scott • December 21, 2016 • no comments

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:

[T]he challenge to the instruction was very limited and therefore the COA's holding was narrow. ("In short, the issue that defendant frames on appeal — whether a jury instruction that indicates that a person may be found guilty of delivery of a controlled substance based solely on the quantity of the substance found — is not actually properly before this court.") The Supreme Court denied review, but another strange thing happened. There was a written concurrence to the denial of review, an event I don't know if I've ever seen before. (Dissents, yes, though primarily from SCOTUS. I'm sure it's happened before, but never, for me at least, memorably.)

The concurrence first quoted the instruction at issue:

"Under Oregon law, possession with intent to deliver constitutes delivery, even where no actual transfer is shown. An attempted transfer occurs when a person intentionally engages in conduct which constitutes a substantial step and includes, but [is] not limited to, possession of a large amount of a controlled substance, not for personal use, but consistent, instead, with trafficking in controlled substances."

Then the concurrence said this about the instruction:

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Effect on the Listener

by: Ryan Scott • December 16, 2016 • one comment

From Justice DeMuniz's concurrence in Sullivan v. Popoff:

The first issue has to do with the relevance of the so-called effect-on-the-listener statements. Every statement has an effect on the mind of those who hear it; therefore, there is always an argument to be made that an out-of-court effect-on-the-listener statement is admissible because it qualifies as "not hearsay." However, an out-of-court statement is not hearsay only if it is (a) relevant, and (b) offered to show the statement's effect upon the listener's state of mind. Laird C. Kirkpatrick, Oregon Evidence § 801.01[3][d], 705 (6th ed. 2013); see, e.g., State v. West, 145 Or.App. 322, 325, 930 P.2d 858 (1996) (police officer could testify to instruction given by another officer to show the instruction's effect on defendant); see also State v. Hren, 237 Or.App. 605, 607, 241 P.3d 1168 (2010) ("Statements that are relevant to show their effect on a listener are not hearsay."). Stated another way, an out-of-court statement may be offered to show that the making of that statement had some effect on the person who heard the statement if that person's state of mind is relevant to an issue in the case. See State v. Thomas, 167 Or.App. 80, 83-84, 1 P.3d 1058 (2000) (trial court erred in excluding as hearsay witness's out-of-court statement offered to prove the effect on the defendant, one of the listeners). Not every out-of-court effect-on-the-listener statement is relevant to an issue in a case. For example, a police officer's state of mind is seldom relevant to an issue in a criminal case. Thus, when dealing with so-called "effect-on-the-listener," or state-of-mind statements, the question, "Is it relevant?" is just as important as the question, "Is it hearsay?" G. Michael Fenner, The Hearsay Rule 331-32 (3d ed. 2013). [Emphasis added.]

A short primer on relevancy

by: Ryan Scott • December 16, 2016 • no comments

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:

6 See also OEC 104(2) (if “relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition”).
7 The line between permissible inferences and impermissible speculation is difficult to articulate with precision. The federal courts usefully have described that line in these terms:
“The line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an experience of logical probability that an ultimate fact will follow a stated narrative or historical fact, then the jury is given the opportunity to draw a conclusion because there is a reasonable probability that the conclusion flows from the proven facts.” Tose v. First Pennsylvania Bank, N.A., 648 F2d 879, 895 (3d Cir), cert den, 454 US 893 (1981), abrogated on other grounds by Griggs v. Provident Consumer Discount Co., 459 US 56, 103 S Ct 400, 74 L Ed 2d 225 (1982).

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.

Notable Cert Grant: Brady

by: Ryan Scott • December 16, 2016 • no comments

From Scotusblog:

Two of the cases that the justices agreed to review today, Turner v. United States and Overton v. United States, arise out of the brutal 1984 murder of Catherine Fuller, a District of Columbia mother. The petitioners in the case are a group of D.C. men who were convicted of the crime, based in large part on testimony from alleged eyewitnesses. Decades later, a reporter learned that defense attorneys had not received a statement suggesting that someone else had committed the crime; additional discovery then revealed that prosecutors had failed to turn over other evidence that could have aided the defendants. The men sought to vacate their convictions, but were unsuccessful in the lower courts.
Today the Supreme Court agreed to review both cases. Overton had asked the court to weigh in on the standard that the lower court used to evaluate his claim that prosecutors had not complied with their obligations under Brady v. Maryland, which requires the government to turn over information that could exonerate the defendant. Turner and his co-defendants had asked the court to consider whether, when determining the significance of suppressed evidence, courts can consider information that comes to light after trial. But the court today announced that it would review a more straightforward question in both cases: whether the men’s convictions must be set aside under Brady.

Racial Disparity in Florida Sentencing

by: Ryan Scott • December 11, 2016 • no comments

Disturbing analysis reported on here. Key paragraphs:

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Another Great Merger Opinion from the Appellate Courts

by: Ryan Scott • December 5, 2016 • no comments

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.

Top 3 Cases from 2016 I'm Thankful For

by: Ryan Scott • November 28, 2016 • no comments

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:

Prosecutors will use a Facebook post from 2010 when Gerome Moore was 13 showing him in possession of a handgun and "arguably" displaying gang signs to try to show Moore should be sentenced to life without parole in the January 2015 shooting death of Carolyn Temple in Belhaven.  Moore was convicted of capital murder in September, but his sentencing is on hold. A capital murder conviction had meant a mandatory life sentence without the possibility of parole, but a 2012 Supreme Court ruling said judges must consider the unique circumstances of each juvenile offender....
Moore was 17 at the time of the crime. He didn't shoot Temple, but his gun was used. He and at least two others were driving around that evening looking for someone to rob. Prosecutors say they followed Temple's vehicle, a Mercedes, to her boyfriend's house in Belhaven. Once she got out her car and went to the curb to retrieve her boyfriend's garbage can, two of the individuals tried to take her purse. She resisted and one of them shot her. Prosecutors believe Moore stayed in the car and was the getaway driver, although he provided the weapon.

Two Post-Poston Opportunities

by: Ryan Scott • November 28, 2016 • no comments

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 doctrine of equitable estoppel is "employed to prevent one from proving an important fact to be something other than what by act or omission he has led another party justifiably to believe." Stovall v. Sally Salmon Seafood, 306 Or. 25, 33, 757, *376 P.2d 410 (1988) (quoting Wiggins v. Barrett & Associates, Inc., 295 Or. 679, 689, 669 P.2d 1132 (1983)). In order to establish equitable estoppel, a party must offer evidence from which the trier of fact could find that:
"(1) a false representation (albeit an innocent one) was made (2) by someone having knowledge of the facts to (3) one who was ignorant of the truth, (4) that the statement was made with the intention that it be acted upon by the [ignorant party] and (5) that [the ignorant party] acted upon it." Paulson v. Western Life Insurance Co., 292 Or. 38, 52-53, 636 P.2d 935 (1981).

The Bush court then held that the requirements were not met:

Assuming without deciding that the doctrine might apply in some circumstances, defendant has not proved it here. Defendant does not contend that he was ignorant of the truth as to whether and which of the charged offenses arose from the same criminal episode(s). Nor has defendant made a convincing argument that he was prejudiced by the representation that the offenses arose from the same act or transaction, if it was false. If he had believed that he was prejudiced by improperly joined charges, defendant was free to move to sever the charges under ORS 132.560(3) ("If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires."). Instead, for whatever reason, he did not complain until sentencing. In short, defendant has not shown that he was ignorant of the truth or that he was prejudiced by the state's representation. He has not proved equitable estoppel.

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:

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Search Warrants for Touch ID

by: Ryan Scott • November 2, 2016 • 2 comments

If you haven't seen this yet, you will. And the courts still have not resolved compelling a defendant to provide his pin.

But, as always, Orin Kerr has something to say on this topic. He sets up the issue with these two hypotheticals:

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Do Email Preservation Letters Violate the 4th Amendment?

by: Ryan Scott • October 31, 2016 • no comments

Discussion here. Orin Kerr is always invaluable on these types of issues. Key paragraphs:

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Malheur Refuge Trial: Why Mental State Matters

by: Ryan Scott • October 30, 2016 • one comment

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 ryan@ryanscottlaw.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.




Next 20 Articles

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Oregon Appellate Ct - March 22, 2017

by: Sara Werboff • March 24, 2017 • no comments
  • Post-Conviction Relief - No Appeal from Dismissal as Meritless Petition
  • Search and Seizure - Police Lacked Reasonable Suspicion - Record Not Sufficient to Address State's Alternative Basis
  • Fines and Fees - Trial Court Improperly Imposed Compensatory Fine
  • Juvenile Dependency - Affirming Jurisdiction over Child Due to Domestic Violence in the Home
  • Search and Seizure - Search Warrant Affidavit Established Probable Cause for Search of RV
  • Per Curiam - Search and Seizure - Search Under Automobile Exception Justified
  • Per Curiam - Court Erred in Imposing Fine on Merged Count
  • Per Curiam - Civil Commitment Court Plainly Erred in Failing to Advise of Right to Subpoena
→ read the full summaries...

Oregon Appellate Ct - March 15, 2017

by: Sara Werboff • March 17, 2017 • no comments
  • Indictments - Any Error in Amending Indictment was Harmless
  • FAPA Orders - Insufficient Evidence that Respondent Threatened Harm to Petitioner
  • Post-Conviction Relief - Appellate Counsel was Not Ineffective for Failing to Raise Claim
  • Civil Commitment - Evidence Sufficient to Find that Appellant Continued to Be a Danger to Herself
  • Post-Conviction Relief - Trial Counsel Not Ineffective for Failing to Argue for Application of Shift-to-I Rule
  • Sentencing - Trial Court Erred in Imposing Consecutive Sentences for Robbery and UUV
→ read the full summaries...

Oregon Supreme Ct - March 9, 2017

by: Sara Werboff • March 10, 2017 • no comments
  • Search and Seizure - Automobile Exception Justified Search
  • Mandamus - Court Orders Murder Indictment Dismissed With Prejudice on Former Jeopardy Grounds
→ read the full summaries...

Oregon Appellate Ct - March 8, 2017

by: Sara Werboff • March 10, 2017 • no comments
  • Evidence - Victim's Statements Were Admissible as Evidence of His State of Mind
  • Expert Testimony - Trial Court Did Not Err In Limiting Expert's Testimony
  • Juvenile Dependency - DHS Made Reasonable Efforts to Ameliorate Mother's Mental Health Issues
  • Parole - Rejecting Petitioner's Challenges to Denial of Parole
  • Search and Seizure - Officer's Pat-Down of Defendant Not Justified on Officer Safety Grounds
→ read the full summaries...

Oregon Supreme Ct - March 2, 2017

by: Sara Werboff • March 5, 2017 • no comments
  • Search & Seizure - Police Must Have Suspicion of Specific Crime or Type of Crime
  • Interrogation - Defendant Unequivocally Invoked Right Against Compelled Self-Incrimination
→ read the full summaries...

Oregon Appellate Ct - March 1, 2017

by: Sara Werboff • March 4, 2017 • no comments
  • Post-Conviction Relief - Petitioner Did Not Create an Issue of Fact with Respect to Prejudice
  • Civil Commitment - Evidence was Sufficient to Support Finding that Appellant was a Danger to Others
  • Post-Conviction Relief - State Committed Brady Violation with Respect to Two Witnesses
  • Search and Seizure - Defendant Did Not Consent to a Search of His Residence
  • Sufficiency of Evidence - Reconsideration - Acknowledging Factual Mistake but Adhering to Original Opinion
  • Sentencing - Trial Court has Authority Under ORS 137.750 to Find Defendant Ineligible for a Reduction in Sentence
  • Juvenile Dependency - Record Legally Sufficient to Support Juvenile Court Jurisdiction
  • Post-Conviction Relief - PCR Court Erred in Granting Summary Judgment for State
  • Per Curiam - Sex Abuse Guilty Verdicts Merged
  • Per Curiam - Insufficient Evidence of Witness Tampering
  • Per Curiam - Sex Abuse Guilty Verdicts Merged
→ read the full summaries...

Oregon Appellate Ct - Feb 23, 2017

by: Sara Werboff • February 27, 2017 • no comments
  • Post-Conviction Relief - Reversing Grant of Post-Conviction Relief Because Trial Counsel Made Reasonable Strategic Choices
  • Post-Conviction Relief - Petitioner's Padilla Claim was Barred Because Padilla is Not Retroactive
  • Evidence - Evidence of Other Sexual Assaults in Another County was Admissible
  • Sufficiency of Evidence - Officer's Order to Defendant was Lawful for Officer Safety Reasons
  • Search and Seizure - Automobile Exception Applies to Cars Stopped for Traffic Violation
  • Trial Court Did Not Err in Finding Defendant in Summary Contempt
  • Sentencing - Declining to Overrule Precedent Requiring Full Remand for Merger Error
  • Post-Conviction Relief - Petitioner Did Not Establish that Expert Testimony Would Have Been Admissible
  • Per Curiam - Reversing Attorney Fees
  • Per Curiam - Trial Court Did Not Plainly Err in Imposing Attorney Fees
  • Per Curiam - Defendant's Father Lacked Actual Authority to Consent to Search of Defendant's Room
  • Per Curiam - Insufficient Evidence to Support Civil Commitment
  • Per Curiam - Reversing Attorney Fees
  • Per Curiam - Defendant's Two Unlawful Delivery Guilty Verdicts Should Merge
  • Per Curiam - Reversing Attorney Fees
  • Per Curiam - Juvenile Dependency Appeal Dismissed as Moot
  • Per Curiam - Rejecting Challenge to Auto Exception Search
  • Per Curiam - Court Grants Reconsider to Correct Citation Error
→ read the full summaries...

Oregon Supreme Ct - Feb 16, 2017

by: Sara Werboff • February 20, 2017 • no comments
  • Second-Degree Robbery - State Required to Prove that Person Providing Aid to Defendant Acted with Intent to Promote or Facilitate Defendant's Acts
→ read the full summaries...

Oregon Appellate Ct - Feb 15, 2017

by: Sara Werboff • February 20, 2017 • no comments
  • Parole - Board Erred by Relying on Second Psychological Evaluation to Justify Earlier Decision Deferring Release
  • Sufficiency of Evidence - Sufficient Evidence that Defendant Recklessly Caused Death of Another Person
  • Parole - Board's Factual Findings Not Supported by Substantial Evidence
  • Juvenile Dependency - Juvenile Court Lacked Authority to Order DHS to Place Children with Grandparent
  • Parole - Board's Decision to Deny Parole was Based on Substantial Evidence
  • Per Curiam - Multiple Sex Abuse Convictions Merged
  • Per Curiam - Trial Court Plainly Erred in Imposing Court-Appointed Attorney Fees
→ read the full summaries...

Oregon Supreme Ct - Feb 9, 2017

by: Sara Werboff • February 13, 2017 • no comments
  • California Convictions Were Not "Comparable Offenses" for Purposes of Presumptive Life Imprisonment for Sex Offenders
→ read the full summaries...

Oregon Appellate Ct - Feb 8, 2017

by: Sara Werboff • February 13, 2017 • no comments
  • Civil Commitment - Failure to Prove Appellant was a Danger to Others
  • Appeal and Review - Post-Conviction Relief - Cross-Appeal was Untimely
  • Per Curiam - Civil Commitment - Failure to Hold Hearing Within Five Judicial Days
  • Per Curiam - Civil Commitment - Failure to Advise of Rights
→ read the full summaries...

Oregon Appellate Ct - Feb 1, 2017

by: Sara Werboff • February 5, 2017 • no comments
  • Post-Conviction Relief - Appellate Counsel Was Not Ineffective for Failing to Challenge Juror Excusal - Appellate Counsel Was Ineffective for Failing to Seek Reconsideration of Appellate Disposition
  • Attorney Fees - Court Could Not Infer that Trial Court Relied on Information Collected to Determine Defendant's Eligibility for Counsel in Finding an Ability to Pay
  • Search and Seizure - Seizure of Defendant Justified by Officer Safety Concerns
  • Burglary - State Failed to Prove that Locked Bedroom Was a Dwelling
  • Stalking - Defendant Entitled to Judgment of Acquittal for Stalking Because Contact was Not Repeated
  • Sentencing - Delivery and Possession Counts Did Not Merge - Probation Condition Permitting Walk-Through of Home Not Unconstitutional
  • Juvenile Dependency - Juvenile Court Erred in Changing Permanency Judgment
  • Per Curiam - Attorney Fees - Trial Court Plainly Erred in Imposing Attorney Fees
  • Per Curiam - State Failed to Prove that Defendant Violated Restraining Order
  • Per Curiam - Civil Commitment - Reversal Required for Failure to Advise of Rights
→ read the full summaries...

Oregon Appellate Ct - Jan 25, 2017

by: Sara Werboff • February 5, 2017 • no comments
  • Eyewitness ID - Trial Court Did Not Err in Admitting Eyewitness ID
  • Right to Counsel - Waiver of Right to Counsel During Sentencing Was Not Knowingly Made
  • Self-Incrimination - Court Erred in Compelling Defendant to Testify to His Identity
  • Per Curiam - Evidence Insufficient to Support Criminal Forfeiture
  • Per Curiam - Court Erred in Imposing Attorney Fees
  • Per Curiam - Court Erred in Failing to Record Civil Commitment Proceedings
  • Per Curiam - Court Erroneously Included "Constituting Domestic Violence" in Judgment - Attorney Fees
  • Per Curiam - State Concedes that Evidence Derived from Unlawful Stop
→ read the full summaries...

Oregon Supreme Ct - Jan 20, 2017

by: Sara Werboff • January 24, 2017 • no comments
  • Officer's Request for Consent to Search was Not Reasonably Related to Purpose of Detention
→ read the full summaries...

Oregon Appellate Ct - Jan 11, 2017

by: Sara Werboff • January 13, 2017 • no comments
  • UUV - Overruling Prior Case Interpreting Scope of Unauthorized Use of a Vehicle under ORS 164.135(1)(a) as "Plainly Wrong"
  • Appeal and Review - Declining to Exercise Discretion to Review for Plain Error when Error Could Have Been Fixed in the Trial Court
  • Termination of Parental Rights - DHS Met Burden of Proof under Indian Child Welfare Act (ICWA)
  • Juvenile Dependency - Juvenile Court Must Determine That There Are No Compelling Circumstances to Forego a Change in Permanency Plan
  • Per Curiam - Juvenile Dependency - No Evidence that Mother Continued to Have Domestically Violent Relationships
→ read the full summaries...

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