Gearing up for September

Well it should be an interesting month. Starting next week, I have two motions to suppress, a trial, a trial the next week, another motion to suppress, a trial the week after, and in the meantime, I need to get lots of other motions out the door so I’m ready for all these trials and motions. It’s rather exhausting, but I love it. It’s hard to complain, anyway, as I am immensely blessed. My kids are awesome, my wife is fantastic, we live in a wonderful city, we’re getting more connected with our church, and college football season has just started! What could be better?

I’m going to try to have all my sites more regularly updated. For more info, check my twitter feed, or the links to the right.

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Upward departure factors are a crock

The most frustrating thing about working for the defense bar is the way a prosecutor can legislate with impunity through the use of upward departure factors. These are charming factors such as “past criminal sanctions have failed to deter”, “persistent involvement in similar behavior”, and “defendant was on supervision at the time of the offense.” Why is this such a big deal? Because in Oregon, we already have 1) A criminal guidelines grid, which gives increasingly severe sentences to defendants as their criminal history score grows over time, correlated to the seriousness of the new offense being committed, 2) mandatory minimum sentences for crimes like rape, assault and kidnapping that actually exceed the amount of time people might do for murder in other states 3) repeat offender schemes that give people 18 to 32 months in prison for property crimes, per incident.

So with these penalties already in place, why is the prosecutor allowed to double the penalty for any crime that he or she sees fit? Oh, and why isn’t there even a grand jury who provides oversight for this process, unlike the grand jury requirement to actually charge someone with a felony? I don’t remember much from my 11th grade government class, but I’m pretty sure that the prosecutor is not in the legislative branch. At least, not in other states.

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Demurrer has 3 Rs.

According to Black’s Law Dictionary, demur is a verb. It’s also a noun: demurrer. When I demur, it means I’m taking a swing at the charge filed by the prosecutor, hoping that the charge is somehow flawed in such a way that the prosecution cannot proceed. We don’t file demurrers very often in Douglas County, because the prosecutors here generally know what they’re doing, and can fix their mistakes if they mess up. Why should that make a difference? Well, generally, the remedy for a demurrer is a do-over. Sorry prosecutor! You messed up that charge, so we’ll just let you fix it and start over again! The timelines on demurrers are a bit fuzzy (they have to be done at arraignment, which occurs pretty early in the process, or “at such time that may be provided”, which I guess means whenever the judge feels like it, except for the middle of a trial.)

To put it succinctly : Filing a demurrer is usually incorrect because most things that are technically flawed and thus vulnerable to a demurrer can be fixed by the prosecutor. On the other hand, if you wait until the trial is underway, THEN your motion on a technicality, such as a motion for judgment of acquittal, may very well be a non-fixable problem for the prosecutor.

Here’s the thing: Just because filing a demurrer is normally incorrect doesn’t mean it’s always incorrect. Sometimes, cases are fatally flawed. Sometimes the grand jury voted the first time around to indict someone, but it was a really close vote, and if it had to go through the process again, the grand jury would toss the case out. Sometimes the prosecutor hates a case and is just looking for a reason to dump it. I think the fear in the criminal defense community is that if you demur to something, that crazy prosecutor is just going to re-evaluate their case and come back with three times as many charges. That might happen. But it could also be a good way to get a better deal than you would if you hadn’t filed anything.

And yes, I am filing a demurrer this week. Hopefully it does what I need it to. And if you’re a lawyer and you need to file a demurrer on your own, go read some articles by Ryan Scott on the topic over at Oregon Library of Defense.

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Time for an update

Well I’ve been practicing law for 22 months, but after 20 trials, hundreds of negotiated pleas and a few dozen motions to suppress evidence, I haven’t gotten bored of it. I also haven’t written many blog posts. I’d like to blame that on the Oregon Library of Defense, a blog run by the Oregon Criminal Defense Lawyers Association that manages to cover all the new developments in Oregon criminal law as well as tactics and strategy for criminal defense attorneys. With a site like that out there, I’m not sure what the value of having my own site actually is. So instead of case updates, I’m going to focus this site on criminal issues on my radar, as well as notable wins and losses and what I’ve learned from them. I might also try to put a general primer on what to do if you are accused of a crime (short version: Don’t talk to the cops. Lawyer up) simply because by the time I get most my cases, they are seriously broken thanks to the knowledge disparity. The state knows exactly what its doing. People accused of crime? Not so much.

On the table for this week: Going to trial on charges of reckless driving and reckless endangerment. Also, preparing for trials on driving under the influence of alcohol (felony) and assault in the third degree.

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State v. Luman

Decided by the Supreme Court on December 31, 2009. In something of a companion case to Heckathorne, the Court held that a shopowner did not have a privacy interest in illegally-recorded survelliance tapes because the tapes were turned over to the police by the defendant’s employees after the employees watched the tapes. The Court cited federal cases from as far back as 1921 and held that the employees’ viewing of the tapes and description to the police of what was on the tapes removed the need for a warrant to be issued. DeMuniz and two other justices dissented, stating that prior jurisprudence in this area would dictate that the evidence should have been suppressed.

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State v. Heckathorne

[This is one of many case summaries I hope to write about relevant criminal cases decided by the Oregon Court of Appeals and Oregon Supreme Court.]

In State v. Heckathorne, decided by the Supreme Court on December 31, 2009, the Court reversed the Court of Appeals and upheld the search of an opaque container that was giving off odors consistent with anhydrous ammonia. The Court relied on Owens and Herbert in deciding that the contents of a container may be revealed by the container’s “feel or smell”, and that training and expertise may turn it into PC for a search.

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Welcome to the club

Well all that waiting was worth it. I found out on September 25 that I passed the bar exam, and I began my new job as a lawyer with the Umpqua Valley Public Defender the following Monday.

The job is really interesting. I already have two dozen clients, and am told that I’ll receive 20 to 30 additional cases per month once I’m up to speed. While the vast majority of clients end up taking some sort of plea bargain offered by the District Attorney, everyone we represent has the right to a jury trial if they chose that option, which means that I potentially could have two dozen or more trials in a month (though in practice, it will probably end up being more like six to 12 trials in a year.) My predecessor had zero trials in her 14-month tenure here, so whatever happens I’m likely to take more cases to trial in the next year than she did.

I work for a non-profit that contracts a specific number of criminal cases with the state of Oregon every two years. There’s a few other organizations, mostly private firms, that handle the extra workload, as our office is occasionally conflicted out of a particular case (for instance, if two people are accused of robbing a bank and a third is accused of being the getaway driver, our office could probably only represent one of those defendants.)

Today is the start of week 3 at the job. I’ve put my files in order and scheduled appointments with most of my clients. It’s difficult to prioritize my time so that I’m not frantic the day before a trial … it seems like the work is either super busy or nothing for a day or two, so I’ll need to learn how to balance the feast-or-famine time crunch. Oh, and on Thursday I was officially sworn in as a lawyer. I should be getting my bar number in the mail this week, which I will then put on all my legal documents and fellow lawyers will examine my number, note the ’09 at the beginning and conclude I’m a newbie. Which I am, but I plan to learn fast.

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Playing the waiting game

It’s 8 a.m., and the sunlight is filtering through the east window by the kitchen, pink and orange and still rather sleepy. In a few minutes I’ll be waking up Charlie and taking him over to his grandparents for the day.

54 hours until I receive my bar results.

There’s something uncivilized about taking a 2 day, $1,000 test that determines your ability to practice law, then have to wait 8 weeks to be told whether you’ve passed or not, as you put your entire life on hold and wait.

I begin a job as a public defender in Roseburg on September 28, assuming that I pass the bar on Friday. Valerie and Charlie and I will begin a new chapter in our lives, as we look at buying our first house and finally put grad school completely behind us and start acting like normal people. It’s really exciting. But for the next 54 hours, it’s still a little worrying.

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