Case Reviews
- Go here to see a list of:
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Oregon Court of Appeals 04-21-10
by: Abassos • April 20, 2010 • no comments
Read the full article for details about the following new cases:
- Sex Abuse - Admissibility of Diagnosis (CARES)
- DUII Diversion - Ineligibility for Prior Participation in Treatment
- Stop - Criminal Investigation
Oregon Supreme Court 04-15-10
by: Abassos • April 14, 2010 • no comments
Read the full article for details about the following new cases:
- Criminal Mischief III - Tampering or Interfering with Property
For the purposes of Criminal Mischief III, "tampering" requires conduct that alters, changes or rearranges property and "interfering" requires an adverse effect on the property's use. The statute contemplates more than mere meddling or unauthorized contact, even where the defendant intends to cause substantial inconvenience. Here, defendant was convicted of Criminal Mischief III for kicking the door of a police car. The appellate court affirmed, finding that "tampering or interference" meant any unauthorized contact with another person's property. The S.Ct. reverses and even gives some helpful examples:
Throwing a switch on a train track that could change the path of a train or opening a gate that blocks access to a forest service road is conduct that alters, rearranges, or changes property, and constitutes "tampering" with property. If done with the intent to cause substantial inconvenience, it constitutes third-degree criminal mischief. Similarly, mixing up library books and reshelving them out of order is an alteration and rearrangement of property and constitutes "tampering" with property. What constitutes tampering with property for purposes of ORS 164.345(1) may depend on the nature of the property: merely entering a "clean room" at a manufacturing facility for silicon wafers or touching a valuable painting with one's finger might constitute tampering, while the same conduct with respect to other property would not. The actus reus element of "tamper[ing] * * * with property" for purposes of third-degree criminal mischief may be easily met in many cases, but it requires some showing, beyond the intent to cause substantial inconvenience, of an appreciable physical change or rearrangement to property.
Oregon Court of Appeals 04-14-10
by: Abassos • April 13, 2010 • no comments
Read the full article for details about the following new cases:
- DUII - Illegal Consent for Breath Test
- Dependency - Transfer of Jurisdiction
- Official Misconduct I - Sufficiency
- Sentencing Guidelines - Unconstitutionality/Vagueness
- Statute of Limitations - Aggravated Murder
- Hearsay - 3rd party Confession (Due Process)
- Marijuana Possession - Full Faith and Credit/Interstate Travel
- Preservation
- Plain Error - Firearm Minimums
- Preservation - GEI
Oregon Supreme Court 04-08-10
by: Abassos • April 7, 2010 • no comments
Read the full article for details about the following new cases:
- Departures - Failure to Deter - Separate Malevolent Quality
The Supreme Court takes a final axe to the separate malevolent quality requirement for some departure factors. Previously, in Bray, they decided that proving persistent involvement required only that the number and frequency of convictions was recurrent and continuing. Here, they find that failure to deter requires only that the defendant should have been deterred by his prior criminal sanctions and was not. No separate proof regarding defendant's character is required. In this case, defendant had 37 convictions and at least 34 sanctions for supervision violations. Thus, there was "no legitimate debate" that prior sanctions failed to deter defendant. State v. Lennon
Oregon Court of Appeals 04-07-10
by: Abassos • April 6, 2010 • no comments
Read the full article for details about the following new cases:
- Preservation - Seizurer
Only one case today and it's on preservation. Frustrating, frustrating preservation. The trial attorney in this case correctly argued that the search was beyond the scope. Unfortunately, it wasn't quite the right flavor of "beyond the scope." The correct sub-argument was, via Reid, that a search of a non-resident's personal effects can exceed the scope of a search warrant. I.e., just because you happen to be at a house to be searched, doesn't mean you're included in the search warrant. The trial attorney argued that officers exceeded the scope by searching defendant for drugs when the warrant was only directed at items related to a burglary. I.e., maybe the officers could have searched defendant for items related to the burglary but that doesn't justify a completely unrelated search for drugs. The most convincing aspect of the Court's opinion is that because the correct legal argument wasn't made, none of the appropriate factual questions were developed. Like, for example, the defendant's actual relationship to the premises; the officer's knowledge of that status; the defendant's interest in and ability to control the items seized, etc. Still though, this preservation thing is infuriating.I hate the way it punishes an aggressive attorney who took the case to trial, filed a specific written motion as well as a supplemental motion and largely got the issue right.
State v. Walker
Oregon Supreme Court 04-02-10
by: Abassos • April 1, 2010 • no comments
Read the full article for details about the following new cases:
- Exceeding Bag Limit on Coastal Bull Elk - "Bag Limit"
With all the open questions of law and frustrating AWOPs from the Court of Appeals, thank god the Oregon Supreme Court finally ruled on this vital issue:
In the Uniform Fish and Wildlife Laws, the phrase "bag limit" refers to the amount of animals taken into one's possession, not the amount of animals killed. Our hapless hero in this case killed his elk and then later noticed another elk which was already dead. Not wanting to waste the death of a perfectly tasty elk, he took it and gave it to a friend. It turns out that he should have called the State Police, who would have donated the meat to charity. So sayeth the Supreme Court. State v. Hogevoll
U.S. Supreme Court 03-30-10
by: Abassos • March 30, 2010 • no comments
Read the full article for details about the following new cases:
- Immigration - Duty to Advise Clients
The Supreme Court ruled today that a failure to properly advise a client of the immigration consequences of a guilty plea can be Constitutionally inadequate representation.
I think the lesson of this case (and others) is fairly clear. When it comes to immigration consequences, never tell your client "don't worry about it". In this case, the lawyer told his client that it was okay to plead guilty to hauling 1000 pounds of marijuana because he'd been in the country so long the Feds would never deport him. Doh! When it comes to immigration, a non-citizen client should always worry about it. The best we can do is attempt to minimize the potential consequences by knowing the basic law, consulting with an immigration attorney where appropriate and telling our clients to hire an immigration attorney if they can. But even if we get the exact right answer right now, the law (or the A.G.s interpretation of the law) might change overnight. In any case, here's the actual ruling:
There will, however, undoubtedly be numerous situations in which the deportation consequences of a plea are unclear. In those cases, a criminal defense attorney need do no more than advise a noncitizen client that pending criminal charges may carry adverse immigration consequences. But when the deportation consequence is truly clear, as it was here, the duty to give correct advice is equally clear.
I.e., in a really clear case, you're expected to know about deportation. In a less clear case, you only need to advise your client that the conviction may have immigration consequences. It's good practice to know more, but it's not Constitutionally insufficient.
The name of the case is Jose Padilla v. Kentucky. But not that Jose Padilla.
Here's the NYT article on the case. And Nina Totenberg on NPR.
Postscript: Via the always brilliant Sentencing Law and Policy, perhaps the Padilla opinion is more far reaching than I imply above. I'm quite sure I'm right about the immigration aspect of it. And, Stevens' opinion says that deportation is a unique area of the law. BUT, Alito's concurrence, which says this is a dramatic and major upheaval of the Sixth Amendment, seems to imply that defense attorneys have a duty to know and advise clients regarding all collateral consequences of a conviction. Frankly, it's just good practice. So I have no problem with such a rule. But it would be far reaching. Gun rights, voting rights, Federal loans, sex offender registration, eligibility for enhanced sentences like Repeat Property Offender or the Federal Career Criminal statute, Social Security, expungement, driving privileges, etc., etc.. There are a lot of collateral consequences that have built up over the last couple decades.
Oregon Court of Appeals 03-31-10
by: Abassos • March 30, 2010 • no comments
Read the full article for details about the following new cases:
- Prosecutorial Misconduct - Mistrial and Double Jeopardy
- DUII Diversion - Fines
- Sex Abuse - Doctor's diagnosis
- Sex Abuse - Medical Expert's Diagnosis
- Stop - Extension
- Search Warrant - Stale Facts
- Stop - Unlawful Extension
- Stop - Free to Leave
- Restitution - Future Treatmentll
Oregon Supreme Court 03-28-10
by: Abassos • March 28, 2010 • no comments
Read the full article for details about the following new cases:
- Felony Murder - Mens Rea
- Felony Assault IV - Witnessed by a Child - "directly perceives
- Forgery - Merger
Every time I go on a little vacation, the Oregon Supreme Court releases multiple cases. Is the Oregon Supreme Court tracking my every move? You decide. I'm just putting the question out there, Glenn Beck style.
→ read the full summaries...Oregon Court of Appeals 03-24-10
by: Abassos • March 23, 2010 • no comments
Read the full article for details about the following new cases:
- DUII - Advice of Right to Privacy
- MJOA - Assault III (Mere Presence)
- Speedy Trial - Misdemeanors
- Reconsideration
Oregon Court of Appeals 03-17-10
by: Abassos • March 16, 2010 • no comments
Read the full article for details about the following new cases:
- Stop - Attenuation
- Merger - Repeated Violations of the Same Statute
- Stalking Protective Order - Speech
- Criminal History - Issue Preclusion
- Dependency - Adoption
Oregon Court of Appeals 03-10-10
by: Abassos • March 9, 2010 • no comments
Read the full article for details about the following new cases:
- Felony/Agg Murder - Burglary
- Speedy Trial
- Voluntary Intoxication - Disordered Mental State (Diminished Capacity)
- Stop - Free to Leave
- Waiver of Supervision Fees
Oregon Supreme Court 03-04-10
by: Abassos • March 3, 2010 • no comments
Read the full article for details about the following new cases:
- Kidnapping - Asportation
This case provides the counterbalance to Wolleat and Zweigart, recent S.Ct. cases that stand for the proposition that moving somebody around in their home is not kidnapping if it is incidental to another crime like Murder or Assault. Or, as the S.Ct. today notes:
Those cases demonstrate that, when the only evidence of a defendant's intent is physical movement of the victim, a reasonable juror may only infer intent to interfere substantially with a victim's freedom of movement if there is 'evidence that the defendant moved the victim a substantial distance."
In today's case, however, there was evidence of defendant's intent to interfere substantially with freedom of movement. Crazy ex-boyfriend grabs victim as she's walking out her door, pushes her back in and into her bedroom, where he repeatedly prevents her from escaping or calling for help by physically restraining her, taking her cell phone, stifling her screams and choking her when she attempted to escape. In fact, the whole point seemed to be to hold her hostage while he told her that he couldn't live without her. Thus, there was evidence from which a trier of fact could have found that defendant's acts were more than just incidental to assault and menacing. State v. Mejia
Oregon Court of Appeals 03-03-10
by: Abassos • March 2, 2010 • no comments
Read the full article for details about the following new cases:
- Stop - Reasonable Suspicion
- Merger - Assault I/Assault II
- Boyd Delivery - Jury Instruction
- Right to Counsel - Proper Request
- Reasonable Suspicion - Dissipation
- Preservation - Plain Error
- Right to Remain Silent
- Theft - Multiple items Merge
- False Information - Sufficiency
- Prior Bad Acts
- Merger - Theft
U.S. Supreme Court 02-24-10
by: Abassos • February 23, 2010 • no comments
Read the full article for details about the following new cases:
- Miranda - Modified Instructions
* Right to Attorney - Break in Custody
→ read the full summaries...Oregon Court of Appeals 02-17-10
by: Abassos • February 16, 2010 • no comments
Read the full article for details about the following new cases:
- Sentencing - Disproportionality
- Felony Elude/Resisting Arrest - Indian Trial Officers
- Prosecutorial Comments on Right to Remain Silent
- Dependency - Relinquishment
Oregon Supreme Court 02-16-10
by: Abassos • February 15, 2010 • no comments
Read the full article for details about the following new cases:
- BAC is Ordinarily an Exigent Circumstance
- Consent Obtained During an Extended Traffic Stop is Invalid
I picked a bad week to go on vacation. Nothing from the Supremes for a couple months and then, bam, two big rulings. They overturned Machuca, ruling that dissipation of alcohol is almost always an exigent circumstance and they upheld Rodgers and Kirkeby, ruling that consent to search which is obtained by extending a traffic stop is the fruit of an unconstitutional seizure unless there is separate reasonable suspicion to support the extended portion of the stop.
Oregon Court of Appeals 02-10-10
by: Abassos • February 9, 2010 • no comments
Read the full article for details about the following new cases: Giving False Info to a Police Officer - Mental State
Sorry about the delay. Just back from vacation.
Only one appellate case last week and it was a state's concession on settled law:
To be convicted of False Info, the State must prove that the defendant knew the officer was requesting the information for the purpose of issuing a citation. See State v. Jaha, 118 Or App 497 (1993). State v. Smith
Oregon Supreme Court 02-04-10
by: Abassos • February 3, 2010 • no comments
Read the full article for details about the following new cases:
- Parole Board May Impose Sex Offender Conditions If Risk of Future Sex Offenses
Two collaterally criminal cases from the Supremes this week: a parole case and a proposed ballot measure.
The particulars of the initiative case have to do with wording of the title and summary. That doesn't matter so much as the substance of the certified initiative: it would modify the sentencing guidelines to make them "advisory only". A departure up or down could be accomplished without a substantial or compelling reason. Berman v. Kroger
The parole board is allowed to impose sex offender conditions on an offender who is not on parole for a sex offense. Even if the offender has never been convicted of a sex offense. For example, Mr. Weems was not on parole for a sex crime and did not have any sex convictions. But he had an arrest for Sodomy where the charges were dismissed and a Sex Abuse case that was pled to Menacing. The board need only find that there is a risk of future sex offenses to impose the sex offender conditions. Here, there was adequate evidence of such a risk based on the arrest record. This was the same finding the Appellate Court made - so the law hasn't changed. But now the S.Ct. has issued the final word on the matter. Weems v. Board of Parole
Oregon Court of Appeals 02-03-10
by: Abassos • February 2, 2010 • no comments
Read the full article for details about the following new cases:
- Felon in Possession - Demurrer
- Theft - Mental State
