Still need that credit? MPD will have two free Child Abuse Reporting CLEs in the next two weeks. The first is tomorrow, Wednesday, Dec. 2nd at the MPD-Hillsboro office at noon. The MPD Hillsboro office is conveniently located at 400 E. Main Street in the East Main Plaza building, just a stone's throw from the Hillsboro Central Max stop. The second CLE is next Thursday, Dec 10th at the MPD-Portland office at noon. The Portland office is at 630 SW 5th above the Williams Sonoma across from Macys at the Pioneer Place Max stop.
The presenter for both CLEs will be Michael Rees, an experienced criminal defense attorney who has carved out a small niche in this area of the law. He has done CLEs on Child Abuse Reporting each of the last three years.
As always, MPD CLEs are free and open to all.
A bit of brilliance from Ryan: The DA's failure to abide by their constitutional duties to "victims" may belie their claim at sentencing that each possessed ID represents a victim.
"Hey all. I have previously written that ID Thefts - from one criminal episode - merge if there aren't separate victims. I've also argued that the person whose name is "stolen" is not necessarily a victim. Laura Frikert has written a great brief on that score, and we are awaiting ruling from the COA. I won't belabor the argument here.
But here's an interesting aspect I thought about today.
As the COA has recently noted, there is a statutory presumption that "[o]fficial duty has been regularly performed." OEC 311(1)(j)
As y'all know, the Oregon Constitution places some official duties on you, if there is a victim to a crime.
And victim, of course, is defined in the constitution as follows:
(c) "Victim" means any person determined by the prosecuting attorney to have suffered direct financial, psychological or physical harm as a result of a crime and, in the case of a victim who is a minor, the legal guardian of the minor. In the event that no person has been determined to be a victim of the crime, the people of Oregon, represented by the prosecuting attorney, are considered to be the victims. In no event is it intended that the criminal defendant be considered the victim.
So if you've got one of those ID Theft cases where 50 IDs were found at one time, and the name on each ID - and therefore on each count of the indictment - lists a different person, I would ask if your prosecutor, pursuant to his or her constitutional obligations, fulfilled his duties to anyone he or she believes is a victim of ID Theft, and I'm pretty certain you'd get the answer that the "victims" named in each count in the indictment have not been notified, nor any effort made to guarantee them their constitutional rights.
Of course, you don't have to ask your DA. You can just check to see if a certification of compliance - as contained in UTCR 4.120.1 - has been filed in the court file. If not, that's a pretty strong assumption that they aren't victims, right? If they are victims, the prosecutor has certain duties. There is a presumption, noted above, that those official duties have been regularly performed. If they haven't been performed, then either the prosecutor has violated the constitution or the names in the indictment aren't victims."
According to Professor Berman at Sentencing Law and Policy blog, the incorporation of the 2nd Amendment is a fait accompli.
It seems to me that an expansion of the incorporation doctrine could easily impact other as-yet unincorporated principles, such as the right to a GJ for sentence enhancements.
The OSC has previously held, in Sawatzky:
Finally, the indictment clause of the Fifth Amendment applies to only federal prosecutions, because the Fourteenth Amendment does not require that it apply to the states. Hurtado v. California, 110 US 516, 4 S Ct 111, 28 L Ed 232 (1884).
While we are obligated to recognize adverse precedent, it seems a significant change is likely to happen this year in the incorporation doctrine, and that the genie, once out of the bottle, could have broader implications. So, if you've got a sentence enhancement case where the enhancements haven't been plead, it's still worth preserving."
Ryan Scott from the pond:
Note the following two paragraphs from an opinion this morning from the COA. It's boring, it's bland, but there's a subtlety I want to point out.
The state appeals in this criminal case, raising various challenges to the trial court's imposition of sentence following defendant's convictions for attempted first-degree assault (Count 1), two counts of unlawful use of a weapon (Counts 2 and 3), and one count each of possession of methamphetamine and delivery of methamphetamine (Counts 4 and 5). Specifically, the state contends that the trial court erred in concluding that (1) it was precluded, under the principles announced in Apprendi v. New Jersey, 530 US 466, 490, 120 S Ct 2348, 147 L Ed 2d 435 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."), from determining whether defendant's convictions on Counts 1 through 3 counted as part of his criminal history for purposes of Counts 4 and 5; (2) it lacked authority under the rule of Apprendi to impose consecutive sentences based on facts found by the trial court rather than the jury; and (3) "the people of Oregon" were not the victim of defendant's drug offenses for consecutive sentencing purposes. The issue raised by the state's second argument has since been resolved in the state's favor by the United States Supreme Court in Oregon v. Ice, ___ US ___, 129 S Ct 711, 172 L Ed 2d 517 (2009) (judicial factfinding in support of consecutive sentences does not violate the Sixth Amendment). The trial court erred in its conclusion to the contrary. Because that error requires us to remand the case for resentencing, ORS 138.222(5)(a), and it is not certain that the other issues will again arise on remand, we decline to address them."
Note that the COA only acknowledges that (2) was overruled by Oregon v. Ice. (1) was not. The issue in (1) is still very much worth arguing when appropriate, because Ice did not overrule State v. Mallory.
Great Machuca article from a national DUII clearinghouse:
The limbic system is the root cause of most of our criminal and delinquency cases. Emotions and impulses, not rational intentionality. Here's an interesting lecture on the subject I found on Youtube. This is really a test to see about linking to video.
Google has teamed up with the CDC and US Dept of Health and Human Services to create a map of all the places near you that have flu vaccines. Just go to this site, punch in your zip code and it will tell you the nearest places that have vaccines: flu shot map. Which is cool. Of course, when I did just that, I learned that every place in the Portland area is out of stock. For both seasonal and H1N1. Which is not cool. I think I preferred my ignorant bliss.
The Multnomah County Library system is incredible. Not only is it the busiest library system in the nation (circulation divided by residents served), it has an amazing portal that allows you to access pretty much anything you want over the web: MultCo Library Portal. You want to check out death notices in Minnesota from two years ago? It's there. You want to look at archived copies of the Oregonian or the Bend Bulletin or the Eugene Register-Guard or the New York Times? It's there. You want to look at an academic article that you would normally have to pay for? It's probably there. It's worth getting a library card just for access to the portal.
Rose City Resource is an amazing website that constantly updates all the available metro Portland resources like food boxes, medical assistance, counseling and psychiatric meds, etc., etc.. But it's not just a list, it's organized both by topic and area. So you can limit your search to Washington County or Clackamas County if you want. Check it out.
The new expungement filing fees are an abomination. $250.00 per petition. And they apply to both arrests and convictions. So if you're found not guilty at trial or the cops arrest you because you have a similar name to the real suspect and you want to expunge that dismissal or false arrest, it'll cost you $250.00. If you don't have it, that's just too bad. Most counties, including Multnomah, have decided that the fee is not waivable. Ugh.
I talk fairly regularly to my fellow attorneys about competency and GEI evaluations at the State Hospital. I've found there to be some common themes to those conversations. To wit:
- "OSH" will not be doing the evaluation. A person within the Forensic Evaluation Service (FES) at the State Hospital will be doing the evaluation. That person is likely to have a doctorate in psychology. Or perhaps an MD in psychiatry. As with any group, some people doing the evaluations are better than others. To say that OSH did the evaluation is to miss the point that a particular person with particular skills actually wrote the report and did the thinking. Some of the FES evaluators also do defense work. They are private psychologists who contract out with the FES. Drs. Dawn Clark-Plowman and Alex Milkey, for example, are excellent psychologists who are available for private evaluations at PDSC rates and they also contract out with the FES to do evaluations at the State Hospital.
- The FES is not a treatment team. In fact, they pride themselves on being independent from the wards. They have access to the charts and can speak with the treating staff in order to gather information for the evaluation. But they are not involved in treatment. Their offices are below the evaluation rooms in a different part of the Hospital than the wards.
- Competency evaluations have a very standard format. The first part gathers personal information from the defendant. Some of the questions are bland and others are potentially sensitive such as the ones about drug use, child abuse, head injuries, etc. The point is to gather information which might point to or buttress a particular diagnosis. The second part asks about a long list of potential symptoms. For each one, the defendant is asked whether he has that symptom. Like "do you ever hear messages directed at you, personally, from the television." Or "are you able to hear other people's thoughts." In addition to the list, there will also likely be some basic cognitive testing of the client. For example, counting backwards from 100 by subtracting 7s. Or, questions related to the client's awareness of his surroundings or the external world. The third part is about the client's relationship to the case and the defense attorney. Questions mostly come from a class taught on the ward called the ".370 class". The .370 class teaches people what the roles of the parties in court are, what GEI is, etc. In theory, the class is a good thing. The danger is that clients will memorize the words without ever understanding, even in a basic way, what the words mean. For example, more than once I've had clients say that "the judge is 'the boss of the court.'" That sounds good. But if they're asked what that means, they'll say "The judge is the boss of the court." Good evaluators will see through incompetence masked by short term memorization. Unfortunately, most judges will not see through it. Nor do most attorneys. So it's important for you to be aware of the possibility. The third part also inquires into the relationship between client and attorney. If the client understands perfectly the justice system but refuses to speak with his attorney because his attorney is Genghis Khan, then he may still be incompetent, despite his understanding.
- Client's should not be sent down to OSH for the .365 one day evaluation except under very rare circumstances. The defense attorney should hire a psychologist to do an evaluation. You wouldn't submit a client for a polygraph without getting a private one first. Don't do the same thing with psychological evaluations. If the client is incompetent, the court can use the private evaluation to make the determination for "treat until fit."
- It's really important for an attorney to be present at evaluations that occur at OSH. Any information given can be used against the client in court. That should be enough to get the defense attorney's presence. But it's also a really scary situation for the client. Being there, or at least appearing by phone, can build the attorney-client relationship like few other actions can. Finally, you will see and hear things that will not show up in the report and may very well provide the key to your defense.
I'm creating a curriculum for new criminal defense attorneys. All the things that defense attorneys need to know but don't know they need to know until they run up against a new issue - sometimes too late. Check out my list and see if I'm missing anything:
There are four avenues to pursue for looking to suppress a statement: (I) statements following unlawful extensions, (II) involuntary statements, (III) Miranda-bad statements, and (IV) those made after the defendant has invoked his rights.
There is a new article in the Scientific Evidence section dealing with polygraphs . Despite positive public perceptions, lie detector tests using a polygraph machines do not stand up to scientific rigor. Polygraphs have proven to be easy to fool and prone to returning incorrect results. Because of this, polygraph results are not typically allowed as evidence in trials. However, there are a number of other legal proceedings, such as probation hearings, where polygraph evidence may be used. The new article provides links to resources describing lie detector testing procedures, lists relevant Oregon statutes dealing with the use of polygraphs and the licensing of polygraph examiners, and gives an overview of Oregon case law dealing with polygraph evidence. section dealing with polygraphs .
I have previously written two posts: here and here - both subsequently updated - on merging Felon in Possession and UUW, when the former also alleges the gun minimum. The impact, ironically, is to leave your client with only a non-person conviction.
Though I laid out the analysis in those two posts, I did not include a memo. Well, here's a motion entitled Gun minimum, UUW and merger arguing for the merger of Burglary I and UUW, when the burglary count also includes the gun minimum allegation.
Enjoy! Please let me know the outcome if you make the argument.
Congratulations to former MPD attorney Nancy Cozine on her appointment as Executive Director of the Office of Public Defense Services. While she has big shoes to fill, I have no doubt she will carry into her new position the grace and skill I have seen her possess in every job she's had.
Today, the Oregon Court of Appeals issued an opinion that found that Robbery in the First Degree and Robbery in the Second Degree are from separate statutory provisions. Consequently, the two counts do not merge. It is not unexpected, and I'm not going to tell you it's wrong. But I do want to explain why I'm not 100% convinced that it's right.
In contrast to other merger decisions, the COA put all its eggs into one basket: the fact that Rob I is an A felony, with both a greater presumptive sentence and a greater mandatory sentence, than Rob II, a B felony. Here's what the court says, and by itself, it sounds pretty convincing:
The court has not retreated from its analysis in White. For example, in describing White, the court stated in Parkins, "It is difficult to see how, when the legislature sets out the offenses in separate sections, defines them as different degrees of an incrementally graded offense, and assigns them different punishments, those can be anything other than separate provisions for purposes of the anti-merger statute." 346 Or at 354-55; see also State v. Blake, 348 Or 95, 98, 228 P3d 560 (2010) (stating the same principle). First-degree robbery and second-degree robbery are in separate statutory sections, as different degrees of incrementally graded offenses, and have different punishments. Thus, they are different statutory provisions for purposes of ORS 161.067(1).
Reading that, it would appear that the COA is bound pretty tightly by precedent. But I want to highlight a quote from Blake that demonstrates that the legislative format is not necessarily, by itself, determinative:
Where the legislature defines each crime in a separately numbered and labeled statutory section, as it does in this instance, it is difficult to see how those sections can be anything other than separate statutory provisions for purposes of ORS 161.067(1). See State v. Parkins, 346 Or 333, 354-55, 211 P3d 262 (2009) (so stating with respect to separate statutory sections defined as different degrees of incrementally graded offense and assigned different punishments); State v. White, 346 Or 275, 294, 211 P3d 248 (2009) (Kistler, J., concurring) (explaining reasons that separate statutory sections should be treated as separate statutory provisions for purposes of ORS 161.067(1)). We need not decide, however, whether the particular format that the legislature used here is determinative of its intent.
In other words, the OSC raises a very high obstacle in front of the defense, but it doesn't claim it's an impossible hurdle. It leaves open the possibility that, in fact, it's a hurdle that could be overcome. In other words, this is the start of the analysis, not the end of it.
Just in case you think I'm gilding the lily with a selective quote from Blake, I would note two things. First, neither White nor Parkins involved crimes of different degrees, so the suggestion of what they might do if the crimes were of different degrees is mere dicta. Secondly, the Parkins quote that today's opinion relies on - while a strongly worded quote - takes its authority from the concurrence in White, not the main opinion. (You may find this amusing: Parkins was written by Justice Linder, who quotes from the concurrence in White, not the main opinion. While she did not write the concurrence, she did join in it. Just keep in mind there's a reason it was a mere concurrence.)
Moreover, look at the quote that today's opinion did take directly from the majority opinion in White, and it's analysis of that quote:
"[T]he legislature did, in fact, distinguish between the different degrees of robbery, creating an ascending scale of different degrees of one crime, each of which it classified as a different level of felony and enacted as a different statute. Identifying a common legislative concern in the two means of proving second-degree robbery-which is similar to the concerns underlying all the robbery statutes, but greater in magnitude than third-degree robbery and less than first-degree robbery-does not eliminate the statutory distinctions, but, rather, gives effect to the legislature's statutory structure." Id. at 289 n 13 (emphasis in original). Thus, although the court described the robbery statutes as creating different degrees of "one crime," the court's analysis demonstrates that it interpreted each degree of robbery as a distinct statutory provision while viewing the two means of proving second-degree robbery as one statutory provision.
I think it's safe to say that today's opinion - in interpreting the White quote - is really putting its thumb on the scale. At least it acknowledges that the White court referred to the different degrees of Robbery as "one crime," but asserts a conclusion - different degrees equals different statutory provisions - that is simply not in the text. What White says, at most, is that different degrees is a factor to be taken into account, not the bright-line rule that the state would like.
And we know that in part because the OSC has rejected bright line rules. I want to bring in a quote from an earlier COA opinion, summarizing White, which explains not only the analysis, but at least implicitly rejects relying on any single factor as dispositive:
In White, the court reaffirmed that, to determine whether a single act violates two or more statutory provisions, a court must determine whether the legislature intended to create a single crime or two or more crimes. 346 Or at 280. That inquiry does not depend-at least not entirely-on the structural form that a criminal statute takes, although the use of a single section is one indication that the legislature intended to define a single crime. Id. Neither does the inquiry turn entirely on whether two or more charges are based on one or more statutes that address separate and distinct legislative concerns. Id. at 283. That is so because, as the court observed in White, "every statutory section that 'requires proof of an element that the others do not,' ORS 161.067(1), necessarily involves a distinct legislative concern-otherwise there would be no need for the additional element." Id. The court therefore clarified in White, that, "[A court views] the statute as a whole, looking to the text, context, and, when appropriate, legislative history of the statute. That analysis includes consideration of whether the sections, although addressing different concerns, also may address, on a more general level, one unified legislative objective." Id. at 283-84. State v. Cufaude
The very thorough, very demanding analysis required by White - and recognized by Cufaude- has been cut short by the court in today's opinion. My fear of course is that unless the OSC grants review, the easy analysis of today's opinion will foreclose any chance of ever merging two crimes from highly related, but graded, statutes.
And here, in the case of Rob I and Rob II, common sense tells us that - different grades aside - these are highly similar crimes. Though not strictly a legal analysis, it is worth noting that it is highly rare to commit Rob I without committing Rob II. Almost, but not quite, impossible. In order to commit Rob I (armed with a firearm) without committing Rob II (representing that one is armed with a deadly or dangerous weapon), you would have to commit a robbery, with a loaded gun in your pants or otherwise in your possession, but never show it to the person you are robbing. At the same time, you couldn't even hint that you might use a deadly or dangerous weapon. I've handled a lot of robbery cases, and I've never had one where the defendant possessed a firearm but kept it completely hidden.
I recognize that it's the hypothetical possibility that such a thing could happen that keeps the two counts from merging under a lesser-included theory. But when two crimes are - de facto - almost indistinguishable, it suggests the possibility that the legislature was largely focused on criminalizing the same behavior, the more serious Rob I addressing a more serious concern, but the overall legislative objective being essentially the same.
Again, I'm not saying the today's opinion is wrong. But it is simplistic, where the OSC precedent demands complexity.
I recognize the danger in asking for the OSC to grant review. The Linder/Kistler analysis may ultimately prevail when the Oregon Supreme Court actually has a case like today's COA case in front of it. But if the OSC doesn't grant review, trial judges will follow today's opinion in any case of crimes involving different degrees, trial attorneys will stop raising it, appellate attorneys will stop arguing it, and the window of opportunity for the OSC to weigh in will be lost.
When the state seeks to admit statements made to a witness through a translator, several thorny and unsettled issues come up in regards to both hearsay and confrontation. The following is a guide for how the law currently stands and where the best arguments can be made.
In NRL v. State, 249 Or App 321 rev allowed, 352 Or 377 (2012), the Court of Appeals held that a juvenile does not have a right to a jury trial as to restitution. I filed an amicus brief (on behalf of the Oregon Trial Lawyers Association) urging the Supreme Court to reverse. I’m more able to be objective about my arguments’ vigor before I write them into a brief - so take what I say with a grain of salt. But I’m convinced that State v. Hart, 299 Or 128 (1985) was wrongly decided.
Hart held that a criminal defendant does not have a right to a jury trial on restitution. Ryan Scott, and others, have been arguing that restitution, codified at ORS 137.106 (for adults) and ORS 419C.450 (for juveniles), is now, with recent statutory changes, more about compensation and less about punishment, than when Hart was decided. Thus, Hart's logic leads to the conclusion that a jury trial is now required even though it wasn't then. I'm arguing here that Hart was wrong when it was decided.
The opinion discussed separate issues under Article I, section 11 (criminal jury trial right) and Article I, section 17 (civil jury trial right). I don’t think the Article I, section 11 argument is especially compelling, except maybe in the rare instance when the restitution award exceeds the maximum fine. But the Article I, section 17 argument is compelling, and I am optimistic about the outcome in NRL.