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There are a lot of clever, creative, hard-working criminal defense lawyers in Oregon. And reflecting that qualities, they come up with -- or rediscover -- legal arguments no one else is currently thinking about. And those arguments have the potential to benefit their clients tremendously, even if the arguments don't prevail until they get to a higher court.

But the great thing about criminal defense in Oregon is, you don't have to be particularly creative or clever to make those same arguments. You just have to be in a position to hear about them. One way, for example, is to check out the Oregon Supreme Court's press announcements on every second or third Friday. It will the cases, if any, the Supreme Court has granted review on, a majority of which will be either criminal cases or criminal-adjacent. Had you checked last Friday, you would have learned that the Supreme Court granted review to the constitutionality of Oregon's felony murder scheme. If you've got a felony murder client, you've just been alerted to a motion you can file that may result in your client's felony murder charge being dismissed.

(For the non-lawyers out there, felony murder is unlike any other murder. It doesn't require intent to kill the victim and it doesn't require the defendant personally kill the victim.)

So how great is this? The trial lawyer in that case -- State v. Monaco, fyi -- and the appellate attorney have done all the heavy lifting. They have researched the issue, found the case law, and made an argument sufficiently compelling that the Supreme Court thinks it has merit. Once you've got the briefs, it will maybe take you a half-hour to write your own motion, which may -- down the road -- either result in a dismissal of the charge or, if the prosecutor is smart, get you a better plea offer to avoid the possibility of dismissal. (The morning the press release came out, I mentioned it to a prosecutor, and her reaction was not dismissive. She probably would have been dismissive if I had told her the basis for the legal challenge. Rather, she was "not dismissive" because she believes it's entirely plausible the Oregon Supreme Court will make a decision that could put every felony murder in doubt. For negotiation purposes, that's just as valuable to you as an argument the prosecutor might find credible.)

I give this example, because I think taking five minutes once very 2-3 weeks to look at the Supreme Court press release is, relative to the amount of effort it takes, perhaps one of the most valuable uses of your time, even recognizing you don't have a lot to spare. But even if you don't make a habit of doing that, you would have heard the news anyway if (1) you were on the defense listserve and (2) read my e-mail on the topic. (Not by any means the same thing.)

If you don't want to be on the listserve (I get it), there are other things you can do to keep abreast of new arguments. You can go to OCDLA conferences. You can have friends who love to talk about the law and arguments they've recently heard about. You can read the Library of Defense. You can read the full opinions of the COA to look for new and novel issues the COA rejected but not on the merits. Or COA dissents, where the dissenter made a pretty compelling argument and you think there is a chance the issue will get to the OSC.

But most of all -- and this is either the easiest or hardest thing to do, depending on your personality -- you've got to get excited about new and novel arguments.

Most attorneys don't. And if they don't get excited, they are less likely to do any of the things I mentioned above. Even when they hear about an argument, they are unlikely to make it, because the time it would take to ask for a sample motion and change the caption doesn't seem worth the effort.

I suspect, but I don't know, that the attorneys who don't get excited about new and creative ways to help their clients are also the least happy attorneys. If you don't find joy in a new and fun argument handed to you on a silver platter, an argument that might give you leverage in negotiations or a win at the appellate courts, you are missing out on one of the more significant pleasures of being a defense warrior. Yes, there are other less-cerebral ways of finding joy in the job, but this one is perhaps the easiest.

Or, if you're not interested, the hardest.

Procedurally, the Court of Appeal's opinion State v. Ballangrud, issued on March 12, 2025, is a bit complicated. Substantively, the bottom line is this:

At least one judge on the Oregon Court of Appeals believes that one of the findings necessary to defeat merger -- a sufficient pause between crimes that would otherwise merge -- is a jury question under the 6th Amendment of the US Constitution. It's like an Apprendi/Blakely factor but even more profound. A finding of a sufficient pause doesn't increase the sentence for a conviction. It increases the number of convictions. Could anything be more a jury question than how many convictions a defendant ends up with? If it's a jury question, the state must give notice no later than 60 days after arraignment, and, absent a waiver, it must submit the question of a substantial pause to the jury.

This opinion was expressed by the Chief Presiding Judge in a concurrence. The majority rejected the argument, at least in part, because it concluded -- wrongly -- that the defendant-appellant had improperly argued the issue to the court (something the concurrence rejected). But even the majority left open the possibility that if properly raised, it would hold the question of a sufficient pause should be submitted to the jury. And whatever the COA ultimately does hold, the issue is of such importance that I would assume the Oregon Supreme Court will eventually grant review.

Please preserve this now. Raise it at sentencing, arguing that the state never go notice of an intent to submit the question to the jury, much less actually submitted it. For argument, just provide the judge a copy of the concurrence in Ballangrud.

Good luck!

PS: And yes, I wrote multiple blog posts arguing this exact thing over ten years ago.

Oregon Supreme Court has announced its intent to answer that question.

On February 20, 2025, the Supreme Court:

1. Allowed petitions for alternative writs of mandamus in:

Jordan Perkins v. Corey Fhuere (S071631) (original mandamus proceeding involving an order of the Marion County Circuit Court, Case No. 23CV53183) relator was convicted of sex offenses

against a victim and sentenced to prison. The victim subsequently recanted their testimony, stating in a notarized declaration that their sexual contact with relator had been consensual. Based on that recantation, relator petitioned for post-conviction relief, alleging the stand-alone claim of actual innocence and that his conviction and sentence violated the state and federal constitutions. The state moved to dismiss the petition for failure to state a claim, on grounds that relator's stand-alone actual innocence claim was not a basis for postconviction relief. The trial court agreed with the state, dismissed relator's petition, and relator petitioned for a writ of mandamus.

The Oregon Supreme Court issued an alternative writ, directing the trial court to either vacate the order entered November 27, 2024, granting the state's motion to dismiss and dismissing

with prejudice relator's Amended Petition for Post-Conviction Relief, and to enter an order denying that motion; or, in the alternative, to show cause for not doing so.

The issue in this mandamus proceeding is:

Whether a stand-alone claim of actual innocence may provide a basis for post-conviction relief.

"[The] phenomenon of false memory, and the circumstances that can contribute to the creation of a false memory, are complex and beyond the experience of ordinary jurors. . . ."

State v. Dye, 286 Or App 626 (2017)

There are a number of attorneys who are skeptical of the benefits of hiring a memory expert in a child sex abuse case (or any other case for that matter). Often, these attorneys -- many of whom are in their fifties or sixties -- have never actually consulted with a memory expert. By consult, I don't mean a five minute conversation but actually hiring them to review the case. They will also tell you that the prosecutors they've talked to will claim they've never lost a case in which the defense hired a memory expert. They will also tell you, contrary to the quote from State v. Dye above, that jurors understand the idea of suggestion and don't need an expert to point it out.

I'm not going to get into a whole long argument why I think these attorneys are wrong and are committing malpractice when they fail to have a meaningful consultation with a memory expert when there is any possibility the accusations are based on a false memory. But I do want to give one very narrow, very specific example that comes up frequently in sexual penetration cases. Since sexual penetration for a child under 12 carries a mandatory 25 year sentence, the punishment is far more severe than a sexual abuse I, which is "only" 75 months.

Yesterday, the Court of Appeals issued an opinion in which the primary issue was the trial court's denial of a motion to sever. The Court never reached the merits because they found any error in denying severance was harmless. So this post really isn't about severance at all, but about how judges will try to immunize their bad rulings when the defendant waives jury, and the most effective way to stop them from doing so.