Case Reviews
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U.S. Supreme Court - Miranda
by: Abassos • May 31, 2010 • no comments
As avid readers of this blog are aware (from my March post here), the high Court has been considering the question of whether 3 hours of silence followed by a confession is a waiver of one's Miranda rights. The following exchange from oral argument nicely sums up both the internal dynamic and the upshot of today's ruling:
JUSTICE SOTOMAYOR: You want to change the Miranda rule to say: Tell someone their rights and unless they explicitly say "I don't want to talk to you," then they implicitly under virtually any circumstance haven't. That's what you believe the rule in Miranda and Butler and Davis sets forth?
To which Scalia responds that it sounds good to him:
JUSTICE SCALIA: Why shouldn't we have a rule which simply says if you don't want to be interrogated, all you have to say is "I don't want to answer your questions"?
Sadly, Scalia won. The opinion issues on party lines with Kennedy swinging right. Berghuis v. Thompkins.
Oregon Supreme Court 05-27-10
by: Abassos • May 26, 2010 • no comments
Read the full article for details about the following new cases:
- Privacy Interest - Abandonment - Hotel Room
Where defendant denied ownership of a bag in a hotel room and gave the police a false name, she relinquished her possessory and privacy interests in the bag. When the person who rented the hotel room gave permission to search, the police had the consent of the only person that mattered. Trial and Appellate Court reversed:
In light of those cases, we now return to the issue of what weight should be given in this case to defendant having left the bags in a locked room rented by someone she knew. We conclude that that fact does not affect our holding that defendant had relinquished her constitutionally protected interests in the bags. As we have already noted, defendant disclaimed ownership of the bags and voluntarily gave up possession of them. In doing so, she abandoned her bags in a locked room to which she would not have access. Defendant thus relinquished her possessory rights in the bags to Beal. See Howard/Dawson, 342 Or at 640 (noting that it was uncontested that the defendants had relinquished their possessory interests in garbage to the sanitation company, once the sanitation company had picked up the garbage). Because defendant had relinquished her possessory rights, she also had relinquished her privacy interests in the bags. See id. at 642-43 ("when a person gives up all rights to control the disposition of property, that person also gives up his or her privacy interest in the property in the same way that he or she would if the property had been abandoned"). Beal, by virtue of his control of the room, held the only remaining possessory and privacy interest in the two bags. Beal's consent to a search relinquished the remaining privacy interest in the room and its contents. See Tanner, 304 Or at 322 ("B's section 9 interests will not be violated if A allows the police to enter the house and discover the effects, * * * because A controls access to the house * * *."). Accordingly, when Officer Pfaff searched the two bags, she did not violate any constitutionally protected privacy interest held by defendant. The Court of Appeals and the trial court erred in holding otherwise.
Oregon Court of Appeals 05-26-10
by: Abassos • May 25, 2010 • no comments
Read the full article for details about the following new cases:
- Jury Instructions - Theory instructed must match theory charged
- Merger - Rob II
Oregon Court of Appeals 05-19-10
by: Abassos • May 18, 2010 • no comments
Read the full article for details about the following new cases:
- Speedy Trial - When Assent turns into Consent
- PCR - Merger
- Stop - Reasonable Suspicion
Oregon Court of Appeals 05-12-10
by: Abassos • May 11, 2010 • no comments
Read the full article for details about the following new cases:
- Dependency - Dispositional Evidence
- Evidence - Relevancy
- Stalking Order - Extension of Probation
Oregon Court of Appeals 05-05-10
by: Abassos • May 4, 2010 • no comments
Read the full article for details about the following new cases:
- Stalking Protective Orders - Unwanted Contacts
- Restitution - Funeral Expenses
Oregon Court of Appeals 04-29-10
by: Abassos • April 28, 2010 • no comments
Read the full article for details about the following new cases:
- Failure to Perform the Duties of a Driver - Knowledge of Injury
- Stop vs Arrest
- DUII Diversion - Eligibility (Prior Treatment)
U.S. Supreme Court 04-23-10
by: Abassos • April 22, 2010 • no comments
Read the full article for details about the following new cases:
- Animal Cruelty
- Sexting
A couple noteworthy items from the high Court this week:
First, they struck down a federal statute that outlawed the depiction of animal cruelty. The law was aimed at dog fighting and crush videos (in which women are recorded crushing kittens and other small animals with their high heels). The defendant in this case was convicted of disseminating dog fighting videos. The Court found that the law was overbroad - that it may be possible to criminalize crush and dog fighting videos but this law did much more. Hunting videos, for example, would fall squarely within the law. The Court rejected the government's argument that animal cruelty falls outside the scope of the First Amendment, like obscenity and fraud. Chief Justice Roberts called the government's argument in that regard "startling and dangerous". Score one for the Chief Justice. U.S. v. Stevens (Here's Nina Totenberg on Stevens.)
Earlier in the week, oral arguments on a sexting case revealed something more important about the Chief Justice and his colleagues: they know frighteningly little about technology. In a scene reminiscent of Ted "The internet is a series of tubes" Stevens attempting to regulate the web, the Chief Justice actually asked what the difference was between e-mail and a pager. Justice Kennedy asked if it's possible to send and receive a text at the same time. Justice Scalia was baffled by the idea of service providers and fixated on the question of whether texts could be printed and passed out. As Bronson James pointed out on the pond:
Holy hell, I always knew the law lagged behind technology by a couple decades, but the exchange with the high court in the sexting case heard this week was way, way, worse than I could have imagined. Those people have not even a remedial grasp of the modern world, how it works, and how 90% of us are using it.
On the other hand, the Supreme Court knew about kitten crushing videos before I did - so maybe it's just a matter of priorities.
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
