Here are two important challenges to upward departure factors. They're basic, but often forgotten by even experienced defense attorneys.
If you do felony sentencings, then you know that there is a three-step process in order for the defendant's sentence to be upwardly departed. First is notice that the state intends to prove one or more aggravating factors to the trier-of-fact. The second is actually proving that factor beyond a reasonable doubt to the trier-of-fact. And the third is the judge finding "the circumstances are so exceptional that imposition of the presumptive sentence would not accomplish the purposes of the guidelines."
I have previously written why I believe why "on supervision" never justifies an upward departure. The reason is simple: a defendant's status of "on supervision" is not remarkable. In fact, it's probably more likely than not. If so, it isn't the type of "exceptional" circumstance that the judge must find in order to upward depart.
There is a new case that probably justifies making this argument with a bit more vigor. In State v. Davilla,,the Court of Appeals reversed an upward departure on an aggravated murder conviction. It did so because the reasons given for the upward departure were insufficient.
- To be clear, we are not holding that a defendant’s use of a dangerous weapon could not, as a matter of law, justify a departure sentence. Rather, we conclude that the court’s explanation here regarding defendant’s choice of a small, dull knife and the “increased pain and suffering” experienced by the victim as a result is insufficient to demonstrate why defendant’s use of a dangerous weapon in this case created circumstances so exceptional that the imposition of a presumptive sentence would not accomplish the purposes of the guidelines.
If the state has proven "on supervision", and the judge is now deciding whether to seek an upward departure, be sure to point out that "on supervision" is not exceptional, as demonstrated by the post I linked to above, but also insist that the judge put on the record the reason why "on supervision" is so remarkable in this case that it demonstrates why the guidelines sentence is not sufficient. The judge will have a much easier time explaining why a presumptive probation is insufficient, but she will likely stumble over explaining why a presumptive prison sentence, particularly a long prison sentence, is not sufficient. The key is to ask -- and ask again if necessary -- that the judge put on her reasoning. In the absence of such a request by the defendant, the Court of Appeals will be less likely to hear a complaint that the judge's lack of explanation is insufficient.
The potential significance is this: we can assume the state will attempt to elide the improper joinder demurrer by alleging language justifying joinder in the indictment. If they do so haphazardly for counts that should not be joined, but put in enough language to defeat the demurrer pre-trial, the Sanchez case suggests two remedies when it's apparent -- once the state has rested -- that the counts should not have been properly joined.
If there is one blog post I've written that I think is the most valuable, it's this one. It not only discusses some interesting issues about confessions in the context of a shaken baby case, it also was amended to include links that address some issues related to the disputed science that is relied upon by the state to charge shaken baby cases. Here's one more, from the March 20,2015, edition of the Washington Post, "Prosecutors build murder cases on disputed Shaken Baby Syndrome diagnosis."
I am quite confident that there are prosecutors who, based on the flawed science, have sent innocent people to prison. Alas, I don't think we'll ever see a letter like this one. In fact, I think even suggesting to a prosecutor that at some point in their life, they'll likely have reason to write a letter like this, would earn nothing but their anger.
In US v. Chovan, a defendant with a record of DV misdemeanors, challenged both facially and as-applied, a charge of Felon in Possession of a Firearm. The 9th Circuit affirmed his conviction. But it's worth a read -- especially the concurrence -- if you've got a state-level charge against a defendant with an old, minimal and/or non-violent criminal history.
This is a promised follow-up to this post , which suggests a due process challenge to Sex Abuse II when the "victim" is 17 years old. The quote below isn't intended to be a definitive answer to the standing issue, but I just want to encourage defense lawyers to see standing as -- at worst -- a surmountable obstacle.
In a 9th Circuit case involving the constitutional right, under the Lawrence analysis, of a mentally ill woman to have intercourse, the dissent noted the following:
- If JH has, in certain circumstances, a constitutionally protected right to consent to sex and she does in fact consent, then there is no constitutionally legitimate basis, under Lawrence, to preclude Anderson from having sex with her in those circumstances. Anderson therefore need not satisfy the doctrinal requirements of jus tertii or third-party standing (although I believe that he could).
Anderson v. Morrow, 371 F.3d 1027, 1040 (9th Cir. Or. 2004)
The headline alone would have made Do 17 Year Olds Have a Constitutional Right to Intercourse Do 17 Year Olds Have a Constitutional Right to Intercourse , but not so much, actually.
At some point, I will follow this up with an argument that a criminal defendant would have standing to assert the 17 year old's constitutional right.
It would seem worth raising, for no other reason than alerting the trial judge just how out-of-step Oregon is when it makes a felony (sexual abuse in the second degree) out of sex with 17 year olds, and further it requires sex offender registration, when not only is it not a felony in most states, it's not even criminal.
The rule of lenity use to exist in Oregon, and it was a good rule. It limited the reach and scope of various criminal statutes when we couldn't really tell from reading the statute or looking at legislative history what the legislature intended. That is, if there was some ambiguity about legislative intent, the rule of lenity would favor a more narrow interpretation. In my mind, I compared it to the rule that ambiguous terms in a contract are found against the party which drafted the contract; since the legislature writes the law, they bear the ultimate responsibility for clarity and precision, which so often our statutes lack.
When the legislature got rid of the rule of lenity, the result was to inadvertently (or perhaps advertently) encourage broadly written statutes that are invariably interpreted in the way most favorable to the state.
I say the legislature got rid of the rule of lenity, because that's what the Oregon Supreme Court says it did.
The "rule" was abrogated by the legislature when it adopted ORS 161.025(2), which directs courts to construe penal statutes "according to the fair import of their terms." See Bailey v. Lampert, 342 Ore. 321, 327, 153 P3d 95 (2007) (so holding).
The rule of lenity still exists in federal court, because there is a federal statute that supports the rule. Every now and then, I'll read a brief or a federal opinion that hints that the rule of lenity is rooted in the due process clause, but SCOTUS has never said so, because -- in light of the federal statute -- they've never had to.
Looks like that's going to change. Today, SCOTUS granted cert in ten cases, and here's the last of the ten:
Henderson v. United States 11-9307 The petition raises two questions: "(1) Whether a prior state disposition resulting in a one-year suspended sentence, which is not appealable or considered a 'conviction' under state law, is a 'prior conviction' that has 'become final' for purposes of the penalty enhancement provision of 21 U.S.C. § 851; and (2) whether the Due Process Clause requires the court to apply the rule of lenity in choosing between conflicting precedents with regard to the interpretation of a sentencing statute when the issue has never been decided by the en banc court of appeals and neither decision has been overruled."
Okay, the issue isn't exactly on point: the ideal question for SCOTUS would be, "did the state supreme court (any state supreme court) err in failing to apply the constitutionally-rooted rule of lenity?" But I'll take this one.
When SCOTUSblog puts up a page on Henderson, I'll post a link. For the time being, if you've got an ambiguous statute (and as I've said repeatedly, ambiguity favors the state), I urge you to argue that due process obligates the court to interpret the statute narrowly.