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A jury finding of extreme emotion disturbance can reduce a murder charge to a manslaughter conviction. And it recently got harder for the state to defeat. Richards v Brown, 345 Or App 321 (2025).

It's a substantial reduction, from a life-25 sentence to 10 years.

But a perennial complaint of defense lawyers is that EED -- though understood as a partial defense to murder -- is not a defense in any way to attempted murder. Seems unfair, but that's the law. Is there anything a defense lawyer can do?

Yes. Article I, section 16. There are legal and societal reasons why EED is a substantial mitigating factor. Consequently, EED almost certainly meets Gonzalez standard for application of Article I, section 16. State v. Gonzalez, 373 Or 248 (2025). A successful proportionality argument would still result in prison, but a non-Measure 11 sentence. State v. Fudge, 333 Or App 149 (2024).

I have developed a strong interest in expanding the scope of Article I, section 16. For those keeping score at home, here are other times I think you should consider pushing the envelope:

(1) When the defendant is highly mentally ill but not quite enough to meet a GEI standard.

(2) When the defendant has significant medical needs. (Compassionate release only applies to non-M11 sentences in Oregon.)

(3) When a lengthy sentence will only be served after the defendant is found rehabilitated by the parole board.

(4) When a defendant is convicted of sex abuse II based solely on the victim being 16 or 17, when there is a statute that makes the exact same crime a misdemeanor.

Assume defendant is charged with twenty crimes over the same five year period in the exact same location. Assume also that the crime happened on a weekly basis. Assume also that you cannot tell from the discovery or indictment the specific incidents that are the basis for crimes 1-20.

Because you keep up on the law, you file a demurrer/motion to require election. The state responds by electing in part as follow. Count 2 is the first time a specific crime occurred. Count 3 is the second time that same crime occurred. Is that enough to save the state? Here's an argument taken from an appellate brief why it is not.

Counts 2-3 alleged the “first time” and the “second time”, respectively that rape was alleged to have occurred. They are also representative of the way the state had “elected” with regard to the other counts. Was that sufficient?

The answer is no, for the obvious reason that “first time” or “second time” provide no factual detail that would be necessary to preparing a defense. The following hypothetical illustrates that point. Assume a “residential abuser” case that a complainant was able to provide more specificity than the usual detail in her forensic interview. She alleges that the first time the abuse occurred was right after the spring final exams of her sophomore year. But at trial, she testifies that the first time the abuse occurred was when she wanted to go to her sophomore homecoming. If the state were to elect one or the other, that would be the kind of specific detail that a defendant would have an opportunity to adequately defend against. But if the state’s only election pre-trial is “first time abuse occurred,” it still would not specify the allegation (final exams or homecoming) he has to defend against. “First time” provides no factual specifics that would allow a defendant to defend himself. In this case, because neither “first time” nor “second time” provided the necessary factual specificity, the election was inadequate and if the demurrer was not granted, the motion to elect should have been.

On September 10, 2025, the Court of Appeals issued State v. Bravo-Chavez, 343 Or App 326 (2025). The issue in that case was whether the trial court abused its discretion in requiring the state to elect the specific acts upon which it would

rely when notice was inadequate.

Although the standard of review was an abuse of discretion, the court appeared to hold that a remedy was required.

Although the state should “not be forced to make a choice when it cannot intelligently do so,” an election must “afford the defendant sufficient time, after the choice has been made, to defend himself properly.” State v. Lee, 202 Or 592, 607, 276 P2d 946 (1954). Courts “should compel an election when it appears :that, if the application is denied, the defendant will be * * * prevented from properly making his defense.” State v. Keelen, 103 Or 172, 179-80, 203 P 306 (1922).

Bravo-Chavez, 343 Or App at 339. [Bold added.]

I have long thought of the issue as one of constitutional magnitude. Specifically, "A criminal defendant is entitled “to be informed of the nature and cause of the accusation[.]” US Const, Amend VI. See also Or Const, Art I, § 11 (providing that a criminal defendant has the right to “demand the nature and cause of the accusation against him”)

But it is also statutory. ORS 132.550(7) (providing that an indictment must include “[a] statement of the acts constituting the offense in ordinary and concise language * * * in such manner as to enable a person of common understanding to know what is intended”).

Moreover, the vehicle to address a statutory violation is a demurrer.

ORS 135.630 Grounds of demurrer. The defendant may demur to the accusatory instrument when it appears upon the face thereof:

(2) If the accusatory instrument is an indictment, that it does not substantially conform to the requirements of ORS 132.510 to 132.560, 135.713, 135.715, 135.717 to 135.737, 135.740 and 135.743;

The constitutional remedy is the same: a demurrer arguing that the indictment is not definite and certain.

A "definite and certain" demurrer is the odd man out in the world of demurrers. It appears that in addition to filing the demurrer, the defendant must put in all the discovery when filing the demurrer (or the equivalent) to show that the discovery itself does not provide the missing definiteness and certainty to the allegations. But once the defendant has demonstrated that the discovery does not cure the defect, the four corners of the indictment represent the scope of what the court can consider when deciding the demurrer.

And then, State v Antoine says that an alternative remedy is to make the prosecutor elect pre-trial, which would theoretically cure the lack of definiteness/certainty. However, not all elections are sufficient, and the minimal election in Bravo-Chavez did not accomplish that, and most of the charges were dismissed.

The State of Oregon has taken the position that a pre-trial election is not a proper remedy, up to and including the state's petition for review at the Supreme Court. And frankly I think they're spitting into the wind on that issue. But let's assume they are correct.

The state wants to argue that it should not be forced to elect when it cannot reasonably do so. And it wants to argue the courts should not grant the demurrer if the state cannot reasonably elect.

But here's the problem. The court should not be allowed to consider that argument/excuse when deciding the demurrer. The facts of the case are only considered to the extent they do or do not make the allegations definite and certain. The constellation of facts that purportedly show that the state cannot meet its statutory or constitutional requirements cannot be considered when evaluating a demurrer.

They could in theory be properly considered when evaluating the merits of a pre-trial election, but the state insists that a pre-trial election is not a permissible vehicle for addressing the problem.

So, in sum, I recommend a demurrer first, and an election in the alternative. Make clear the demurrer is under both the statute and the state and federal constitutions. And lastly, point out to the trial judge that the state's complaints of being unable to make the allegations more definite and certain -- to the extent it relies on facts outside the indictment -- is not a proper consideration when deciding the demurrer.