The Oregon Defense Attorney

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1 Aug/Sept/Oct 2012 Vol. XXXIII, No. 4 Championing justice, promoting individual rights and supporting the legal defense community through education and advocacy. The Oregon Defense Attorney A journal published by the Oregon Criminal Defense Lawyers Association Inside 4 Honoring Gideon by Lane Borg Appellate Perspective Two Supreme Surprises by Marc Brown Page 12 5 New Board Officers, Members 6 What Are We Going To Do Now? by Gordon Mallon 8 Nonverbal Intelligence in the Courtrooom by Sari de la Motte 10 Sentence Enhancement Facts and Elements by Ryan Scott And More QUOTABLE You have the right to remain silent, but I hope you don t. It s a long way to jail, and I like to chit chat. Clancy Wiggum, The Simpsons Upcoming CLEs September Search and Seizure Seminar October Juvenile Law Training Academy ocdla.org

2 Calendars EVENTS, MEETINGS, & CLE Online summary of seminars and events 2012 Building Resilience and Preventing Compassion Fatigue in the Practice of Law July 31, Coos Bay August 1, Grants Pass August 2, Medford August 3, Klamath Falls Search and Seizure Seminar September Agate Beach Inn, Newport Juvenile Law Training Academy October Valley River Inn, Eugene Public Defense Management October Oregon Garden Resort, Silverton Death Penalty Seminar October Oregon Garden Resort, Silverton Sunny Climate Seminar November 7 11 Mauna Lani Bay Hotel Big Island, Hawaii Winter Conference November 30 December 1 Benson Hotel, Portland BOARD MEETINGS October 15, 9:00 a.m., Valley River Inn, Eugene November 29, 4:00 p.m., Benson Hotel, Portland Visit ocdla.org for a complete calendar of meetings. PUBLIC DEFENSE SERVICES COMMISSION Thursday, August 16, 10:00 a.m. 3:00 p.m. Office of Public Defense Services 1175 Court Street NE Salem, OR For information about PDSC meetings contact Laura Anson, , Board Members President: C. Lane Borg Metropolitan Public Defenders Office, Portland.. Vice President: David T. McDonald District 5, Portland.... Secretary: Megan L. Jacquot District 3, Coos Bay... Russell S. Barnett, III At-large, Tony Bornstein Federal Public Defenders Office, Portland.... Carole Hamilton Southwestern Oregon Public Defender, Inc., Coos Bay... Eric R. Johansen Office of Public Defense Services, Salem.... Robert Kaiser Public Defender Services of Lane Cty, Eugene... Edward Kroll District 4, Hillsboro... Gordon Mallon District 6, Silverton... Eve Oldenkamp District 1, Klamath Falls... Kelly Ravassipour Southern Oregon Public Defender, Inc., Medford... Keith Rogers Multnomah Defenders, Portland... Terri Wood District 2, Eugene.... Visit ocdla.org for a map of board districts. August/September/October The Oregon Defense Attorney

3 THE OREGON DEFENSE ATTORNEY Publisher Oregon Criminal Defense Lawyers Association 96 East Broadway, Suite 5, Eugene, OR t: f: Executive Director, Editor John R. Potter, Staff Riley Jones, Tracye May, Jennifer Root, Alene Sybrant, Lobbyist Substantive Issues: Gail Meyer, Submissions & Deadlines OCDLA welcomes articles from qualified professionals. Submit articles by attachment to OCDLA will also consider articles which have appeared elsewhere. OCDLA reserves the right to select and edit material for publication. Articles, announcements, classified and display advertising and other items for publication should be submitted by to by these dates. Nov/Dec/Jan Nov 15 February/March 2013 (Special Gideon Issue)...Jan 15 April/May Mar 15 June/July May 1 Display Advertising Delivered to over 1300 OCDLA members, The Oregon Defense Attorney accepts commercial display advertising. Deadlines are the same as publication deadlines. Call OCDLA at for information. Full Page (9.75h x 7.5w)...$650 2/3 Page Vertical (9.75h x w)... $525 1/2 Page Horizontal (4.6875h x 7.5w)... $400 1/3 Page Vertical (9.75h x 2.375w)... $275 1/6 Page Horizontal (4.5h x 2.375w)...$150 Classified Ads Deadlines are the same as publication deadlines. Members (up to 100 words, 3x/year)...Free Non-members /word In This Issue Calendars...2 Board of Directors...2 The View From Here Honoring Gideon...4 OPDS Update Non-Routine Expense Requests...5 Board Perspective What Are We Going to Do Now?...6 Communication Break-Down Nonverbal Intelligence in the Courtroom...8 Library of Defense What Is the Difference Between a Sentence Enhancement Fact and an Element?...10 Appellate Perspective Two Supreme Surprises In Memoriam Bill Brennan Annual Conference Education, Camaraderie, Fun Legislative Update Summer Doldrums? Not Beautiful Words State v. Timothy Woosley Donors Make the Difference Our Members Classified Ads Seminars, Ads, Registration Forms, Events Compassion Fatigue CLEs...5 Fat Pencil Studio...7 Acrobat Reader s Advanced Search...7 Criminal Law Newsletter...9 Search and Seizure Manual FORTE Pond Listserve Library of Defense...13 Andy Simrin Criminal Appeals Quick Guides for the Defense...19 Juvenile Law Training Academy Registration...22 Public Defense Management Seminar Registration...23 Search and Seizure Seminar Topics and Registration Sunny Climate Seminar Trial Notebook Major Crimes and Defenses Death Penalty Defense: Maximizing the ABA Guidelines...31 REPO / Measure 57 Guide...Back Cover OCDLA thanks Zach Mazer for providing the cover quote for this issue Oregon Criminal Defense Lawyers Association The views expressed by authors are not necessarily the views of OCDLA, nor is the printing of advertising meant to imply an endorsement of those services or products. The Oregon Defense Attorney 3 August/September/October 2012

4 THE VIEW FROM HERE Honoring Gideon by Lane Borg The Annual Conference was a great success. We had spectacular weather and inspiring company, and even though we lost both of our out-of-town speakers, we rallied and persevered. As I stated on the stage Saturday morning, I am privileged and honored to serve OCDLA as president for the coming year. I am particularly honored given that this year is the Fiftieth Anniversary of Gideon v. Wainwright. I want all of us to take the opportunity to celebrate this important case in criminal justice. The right to counsel was so fundamental to our forefathers that it was, of course, included in the Bill of Rights. But long before that it was seen by enlightened people as a cornerstone of the rule of law. The often-quoted Shakespeare line, The first thing we do, let s kill all the lawyers (Henry VI, Part 2, the line our family and friends most like to recite to us), was spoken by anarchists and revolutionaries that knew lawyers would try to stop their tyranny. Although it is a confrontation case, in Crawford v Washington Justice Scalia, in emphasizing the importance of cross-examination (a skill near and dear to any criminal defense lawyer), cited the trial of Sir Walter Raleigh. In our history, John Adams, before he was president, was both a patriot and a criminal defense lawyer, representing British soldiers accused in the Boston Massacre. His son, John Quincy Adams, defended the accused mutineers of the Amistad. Both cases were unpopular in their time but are now seen as quintessential criminal defense cases. Of course, Gideon was not decided in a vacuum nor did it come out of the blue. The Court had been inching toward the ruling for some twenty years. Indeed, the Court had recognized the role of counsel in Powell v. Alabama when they wrote: The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with a crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise The right to counsel, the simple idea that no one should face the force of the state without counsel at their side, is so right, so elegant... inadmissible. He lacks both the skill and knowledge adequate to prepare his defense, even though he may have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. Neither was Abe Fortas randomly or casually selected to argue the case. He had a history of arguing to the Court on significant cases and was known to be a strong supporter of civil rights. His approach to the case was that of the consummate professional. Of Fortas Anthony Lewis wrote: He values craftsmanship most highly. He is no sentimentalist, and he works for reform of the criminal law because he thinks it is right for society, not because of any illusions about criminals. But under his sobriety and detachment there is a passionate conviction. He is an angry man angry at injustice. Gideon s Trumpet. I really like that last part; we should all be angry at injustice. The right to counsel, the simple idea that no one should face the force of the state without counsel at their side, is so right, so elegant, that this is easily a sweet spot for us to hammer on all year long. Who wants an innocent person convicted? Who wants to let more powerful people dominate the weak and ignorant? I commend each of you to take up the banner of Gideon, talk about the right to counsel, and reread (or read) Anthony Lewis Gideon s Trumpet, it will inspire you. In addition, look for a special edition of The Oregon Defense Attorney in March 2013 focusing on Gideon. This commemorative edition of our journal will come to you in both PDF and printed formats. And finally, know that with OCDLA you do not stand alone. The real take away from our gathering in Bend is that there are hundreds of brothers and sisters that are ready and willing to help you do this work. Let s have a great year. OCDLA Board President Lane Borg is director of the Metropolitan Public Defender in Portland. He serves on the Education and Legislative committees. August/September/October The Oregon Defense Attorney

5 New Board Officers, Members At the 2012 Annual Conference, the Board elected the following officers: Lane Borg, President David McDonald, Vice President Megan Jacquot, Secretary Eve Oldenkamp was elected to the District 1 seat. Terri Wood was elected to the District 2 seat. Edward Kroll was elected to the District 4 seat. Russell S. Barnett was elected to the Atlarge seat. Carole Hamilton was appointed to the Southwestern Oregon Public Defender, Inc. seat. Robert Kaiser was appointed to the Public Defenser Services of Lane County, Inc. seat. Visit the Board Page online to see all board members, districts and a district map. Building Resilience and Preventing Compassion Fatigue in the Practice of Law CLE Schedule The Oregon Attorney Assistance Program and the Oregon Criminal Defense Lawyers Association are co-sponsoring the following compassion fatigue prevention trainings: July 31, 2012 Coos Bay August 1, 2012 Grants Pass August 2, 2012 Medford August 3, 2012 Klamath Falls August 21, 2012 Roseburg Visit the online OCDLA seminar calendar for exact locations and informational fliers. Correction: We incorrectly identified Chief Justice Tom Balmer in the June/July 2012 PDF issue of the Oregon Defense Attorney. We apologize for the error. OPDS Update Non-Routine Expense Requests 1 By Nancy Cozine, Executive Director, Office of Public Defense Services At the Public Defense Management Conference held last October in Pendleton, Oregon, a provider suggested that practitioners would benefit from a reminder regarding the required format and structure of non-routine expense requests. Given the recent case of State v. West, 250 Or App 196, P3d (2012), such a reminder seemed necessary, reasonable, and timely. OPDS has an obligation to review each request to ensure compliance with all applicable standards. We do appreciate your feedback, and we hope you will contact us if you have questions, concerns or suggestions. Forms Available on our webpage: CBSForms.page What to Include Expenses must be necessary and reasonable for the investigation, preparation and presentation of a case for trial, negotiation and sentencing. ORS The request must include a narrative explaining the reason the service or expense is necessary and reasonable for proper representation, and what results counsel expects to obtain with the service or expense requested. PDSC Payment Policies & Procedures, Sec The narrative should include the information listed in OPDS s Ten Important Questions document: OPDS/docs/Forms/NRE10Questions.pdf OPDS can approve expenses only if the request establishes a reasonable probability that the expenditure will produce a benefit for the defense, State v. Hammond, 42 Or App 137, 600 P2d 443 (1979), or [w]here a defendant establishes the probable value of the assistance sought such that there is a significant risk of error in the proceedings if that assistance is denied. State v. Rogers, 313 Or 356, 366, 836 P2d 1308 (1992). Request Reconsideration of a Denial If additional information is available to support the request, seek reconsideration by OPDS before undertaking an appeal. Payment Policies and Procedures, Sec Appeal the OPDS Denial The appeal may be taken to the presiding judge (or his or her designee) in the jurisdiction where the matter is pending. ORS (3)(c). Notify OPDS of the appeal and give OPDS an opportunity to be heard. Appeal proceedings should be conducted ex parte, with any appeal documents filed under seal. ORS (9). Courts review the matter de novo (not an abuse of discretion standard). Questions Contact Paul Levy, OPDS General Counsel, or.us 1 Taken from Paul Levy s longer article, available on the OPDS website: July2012NREUpdate.pdf The Oregon Defense Attorney 5 August/September/October 2012

6 BOARD PERSPECTIVE What Are We Going to Do Now? by Gordon Mallon This column was going to be a rather self-congratulatory one about lessons learned from Eve Oldenkamp s and my big victory down in Lane County, but you are going to have to wait for the movie to come out for that one (George Clooney is playing me, FYI). Instead, I am going to address two rather lengthy posts that came across the Pond and the Library of Defense recently. One was from Ryan Scott on the Library of Defense about the quality of representation of the criminally accused in Oregon. The other was from Newport member Rachel Marshall, addressing on the Pond in specific terms the question of indigent defense funding as a main reason for the problems Ryan addressed. Many of the high-quality attorneys (certainly not all highquality attorneys) cash out of the system and work in the private bar so they can make a living. Those who remain are flooded with way too many cases because there is not enough money to hire enough lawyers. As I read these two well-written posts, it occurred to me that these articles clearly set forth the main problem we are facing for our future in the criminal justice system: how are we going to achieve adequate compensation for the work we do? It is easy to see the root of the problem: as a state, as a nation and as a culture in general, we have become unwilling to pay taxes for the goods and services we demand. As individual practitioners or OCDLA as an organization, we are ill-equipped to change this culture of something-for-nothing which permeates our society. So what are we to do? We could sit wringing our hands and wait for the State to have so much money that they are willing to send some of the leftovers to us. There might be a better solution. In thinking about this problem, I thought it best to think like a criminal defense lawyer. When we go into a courtroom to try a case, very few people want us to win. The prosecutor and police don t. Usually the judge doesn t. You have to prove to the jury that your client is innocent before they will pull for you. So how do we win cases? We pry the victory out of their tightly clinched fists, that s what we do. More often than not we use the Oregon and U.S. constitutions as our pry bar. We win cases that no one wants us to win because the Constitution forces them to surrender our clients liberty. Gideon. There is our pry bar. How does this apply to the problem with indigent defense funding? I was reminded recently that we are approaching the 50 th Anniversary of Gideon v. Wainwright, the case that said that under the U.S. Constitution the government has to supply lawyers for the criminally accused. There is our pry bar. They need us. The legislature finds money to build and staff all these pretty new prisons because they are required to by law. But they can t fill all these pretty new prisons without us. So how do we use our only friend to help us here? The answer is not simple, and the scope of this column does not allow a full discussion, but I offer a few ideas. Back in 2003, attention was focused on public defense funding in a way that hadn t been seen before. For those of you who are not, shall we say, of a certain age, the system that funded indigent defense ran out of money. There were two choices: continue to fund lawyers for folks accused of more serious crimes, referred to as the glide path, or continue on until all the money was gone and close the whole thing down. This became known as the cliff scenario. The Chief Justice, who was in charge of indigent defense at that time chose the glide path and let the system continue on in limited form rather than to go over the cliff. (For a fact sheet about the crisis and historic pleadings that were filed on a wholesale basis at the time, see Endnotes.) A case at the time is illustrative of how things went. A transient was picked up in my county for failure to register as a sex offender. Because a lawyer could not be appointed, he was immediately released and just as quickly skipped town. They couldn t lock folks up if they didn t have lawyers. They discovered that we defense lawyers are, in their minds at least, a necessary evil. The result of this crisis was that funding levels have never approached that crisis, at least not in a meaningful way, since. Here is a clue to what we might be able to do to address funding issues now. If the system runs out of money again, the issue will have to be addressed again. How does this happen, you Continued on next page OCDLA Board Member Gordon Mallon Stenard practices law in Silverton. He serves on the Education and Law School Outreach committees. He is a past board president. August/September/October The Oregon Defense Attorney

7 BOARD PERSPECTIVE Continued from previous page. ask, when the legislature is dribbling out enough to maintain our ridiculously low level of compensation? Demand more. The system for the provision of public defense in Oregon is a fairly unusual one, put together in a way that works for us based on a series of ongoing decisions from the time the state first took public defense funding over from the counties until today. We are individual contractors, consortia, non-profit public defenders, and a state agency. Some are unionized and some are not. We must each approach this problem from our own perspective, in a way that fits with whatever business entity we are a part of. If we don t act we will continue to lag far behind the prosecutors in compensation. And they don t even have the Constitution behind them. Endnotes Fact sheet about the crisis: https://www.ocdla.org/pdfs/ factsheetmarch1a.pdf. Historic pleadings filed on wholesale basis in 2003: https://www.ocdla. org/members_only/ldoclib_newocdla.cfm?id=61&name=2003%20 Fiscal%20Crisis.) Acrobat Reader ONLINE Library of Defense Advanced Search Try Acrobat Reader s Advanced Search capabilities: 1. In your PDF, under the Edit menu, select Advanced Search (or press Shift + Command + F). 2. Make sure the In the current document search option is selected. 3. Enter the word or phrase you want to search for. 4. The search results will show you a list of all references to your search phrase, in context. Click on any result and you will go to that page in the book. I ll never use the hardcopy again. OCDLA member after using the Acrobat Reader Advanced Search feature for the first time in his copy of Felony Sentencing in Oregon. The Oregon Defense Attorney 7 August/September/October 2012

8 COMMUNICATION BREAK-DOWN Nonverbal Intelligence in the Courtroom by Sari de la Motte if you re not getting the response you were hoping for, you can change what you re doing. Ed. Note: This is Part 1 of a 5-part series. You can always tell the good ones. You try to catch them in court, sliding into a wooden bench at the courthouse when you have a free minute, just to get a glimpse of them in action. They ve got charisma. They ve got chutzpah. They ve got something that s hard to describe. What they ve got are excellent communication skills. Talking with clients, it amazes me that most attorneys get little to no training in how to communicate. But I can t think of a higher goal particularly for trial attorneys than to make sure you re a kick-ass communicator. There are zillions of books on communication. There are seminars and workshops and believe it or not online courses. And, yet, no one seems to be able to nail down exactly what good communication is, much less how to do it. So it may seem pretty audacious to tell you that over the course of the next year, that s what I aim to do. Unlike most of the communication gurus out there that focus on what to say, I ll focus on how to say it. And, unlike body language experts that focus on reading other people and hallucinating about what they might be thinking or feeling, I m going to show you how to increase your own nonverbal intelligence. Research shows that the majority of our communication is transmitted nonverbally. And no, I m not talking about the controversial Albert Mehrabian stats (i.e., Nonverbal communication comprises 93% of the message ), since he was specifically studying the positive and negative emotional content of the message. I m talking about studies like the one published in the British Journal of Social and Clinical Psychology which determined that nonverbal cues were over four times more effective at getting a message across, and a National Education Association s study which states that 82 percent of a teacher s communication is nonverbal. But research aside, we ve all experienced the power of nonverbal communication in our personal lives. We know when our spouse or partner isn t fine, even when they say they are, just from tone of voice, lack of eye contact, and body positioning. They don t need to say it, we just know. The attorneys we all admire aren t necessarily any smarter or experienced or better looking. They simply out-communicate everybody else. They not only know their stuff, they can communicate it. Jurors aren t persuaded solely by convincing arguments; they re persuaded by convincing people. We live in a fast-paced, sound-bite, what s-in-it-for-me society. You may be the most brilliant, capable and dedicated lawyer out there, but if you can t communicate it, who cares? Take, for example, a hearing I observed recently. The appellate lawyer, whom I m told is quite brilliant, spoke in a timid, whispery voice when addressing the judge. She stood with her weight over to one side, palms facing up and phrased most of her statements as questions. She sounded unsure of herself. It was hard to take her seriously, even though her arguments were right on the money. Still, people will read that and think, Well, sure. That s common knowledge! Everyone knows you need to speak authoritatively to be taken seriously. This sentiment was echoed in some of the comments I received after speaking at the OCDLA Annual Conference: Pretty elementary, or, Entertaining, but not really anything new. Right, it s not new. And yes, it s elementary, in that these skills are simple and fundamental. But most people are not aware of what they re communicating nonverbally. Period. It s one thing to understand these concepts. It s a completely different thing to incorporate them into your life. Take breathing, for example. Another comment from an OCDLA member said, Just breathe? Really? Really. How you re breathing affects every single aspect of communication, from your tone of voice to whether or not people feel safe. And, yet, most attorneys are completely and totally unaware of the fact that they hold their breath when waiting for a juror to answer a voir dire question, or that they rarely pause and breathe during opening, causing the jurors to hold their breath. Simple? Yes. Easy? No. Continued on next page Sari de la Motte is a trial consultant and CEO of FORTE, a Portland, Oregon communications consulting firm. She works with attorneys on trial communication, witness preparation, and jury selection. August/September/October The Oregon Defense Attorney

9 COMMUNICATION BREAK-DOWN Continued from previous page. Not to mention that how we re communicating is only half of the equation. We also need to keep an eye out for how our messages are being received. But how many of us are aware of whether our messages are landing? Or how to alter our approach if we can tell things aren t going well? This is what nonverbal intelligence buys you the ability to adapt in the moment to make sure good communication happens. Nonverbal communication is observable, which means you can tell instantly whether or not your message is landing. It s so much more than simplified advice like Avoid crossing your arms or Make sure to smile! If you know what to look for, you can watch carefully as you deliver your message and gauge the response. And here s the important part: if you re not getting the response you were hoping for, you can change what you re doing. This is what separates the good lawyers from the rockstar lawyers. Welcome to the new column, Communication Break-Down. Through a series of articles with accompanying video clips, we ll chart a course to nonverbal intelligence in the courtroom. We ll start by looking at the three ingredients of nonverbal intelligence: awareness, adaptability, and authenticity. We ll end with a discussion on charisma. Until then, take a look at this video clip about eye contact, body language, and voice pattern, and begin to observe how you interact with others. What s your preferred voice pattern? Do you hold true to the adage, Always make eye contact? How congruent is your body language? We ll discuss this and more over the next several articles. I encourage you to me with any questions at For more reading on nonverbal communication, sign up for my weekly newsletter at www. nonverbalforte.com. VIDEO CLIP Eye Contact, Body Language, and Voice Pattern Sari de la Motte, FORTE, Portland Video Clip URL: Members New Subscribers o START my CLN subscription (PDF with links to cases, articles & comments, plus PDF suitable for printing) for $80. o SAME AS ABOVE, but add a snail mailed hardcopy and set of subject tabs, $130. Members Renew o RENEW my CLN subscription (PDF with links to cases, articles & comments, plus PDF suitable for printing) for $80. o SAME AS ABOVE, but add a snail mailed hardcopy and set of subject tabs, $130. Nonmembers New Subscribers o START my CLN subscription (PDF with links to cases and articles, plus PDF suitable for printing) for $80. o SAME AS ABOVE, but add a snail mailed hardcopy and set of subject tabs, $130. Nonmembers Renew o RENEW my CLN subscription (PDF with links to cases and articles, plus PDF suitable for printing) for $80. o SAME AS ABOVE, but add a snail mailed hardcopy and set of subject tabs, $130. Additional Options All Subscribers o ADD a set of 24 Criminal Law Newsletter subject tabs for $15, suitable for putting into a 3-ring binder. o ADD a cover, spine & 3-ring binder, $10. CRIMINAL LAW Subscription/Renewal NEWSLETTER Form Published By Oregon Criminal Defense Lawyers Association SAVE TIME Don t waste time wading through the advance sheets Criminal Law Newsletter case summaries are already organized by subject, and include names of panel judges and appellate counsel for each case. FAST ACCESS Click from the interactive PDF right to the full text of rulings. GET ORGANIZED Alphabetized subject headings and a year-end cumulative case review keep your case summaries in order. EDITOR INSIGHT AND TIPS Editor s notes help you better understand the case and its implications. STAY UP-TO-DATE The Criminal Law Newsletter is sent right to your in-box twice a month. Order online, call , or send payment to: OCDLA, 96 East Broadway, Suite 5, Eugene, OR July 2012 June 2013 The Oregon Defense Attorney 9 August/September/October 2012

10 LIBRARY OF DEFENSE What Is the Difference Between a Sentence Enhancement Fact and an Element? by Ryan Scott as long as offense-specific elements are mislabeled sentence enhancements as though somehow they aren t actually elements, the state is getting away with undermining the constitutional rights that require grand jury findings of all elements. Ed. Note: This article originally appeared in the online Library of Defense, June 21, Nothing. If you don t believe me, note this quote from the June 21, 2012, US Supreme Court decision: This argument has two defects. First, it rests on an assumption that Apprendi and its progeny have uniformly rejected: that in determining the maximum punishment for an offense, there is a constitutionally significant difference between a fact that is an element of the offense and one that is a sentencing factor. See, e.g., 530 U. S., at 478; Ring, 536 U. S., at 605. That s under the federal constitution. Under the state constitution, the state would like you to think that the answer is murkier. There are a couple of notable differences between the two constitutions. The Oregon Supreme Court unlike SCOTUS has held that only offense-specific enhancement facts are elements under the Oregon Constitution. See State v. Wedge and the first half of State v. Ice. Another difference is that there is no requirement, under the Oregon Constitution, that the enhancement fact increase the sentence beyond the presumptive maximum. State v. Wedge (holding that the gun minimum was an element, even though it didn t increase the statutory maximum beyond the 20-year sentence. This was before the guidelines.) Even aside from those two distinctions, the state (as well as the COA) has insisted that there is still a meaningful distinction between sentence enhancement facts and elements. Simply put, this is a false premise. SCOTUS said as much today. And while the right to a jury trial under the Oregon Constitution has the aforementioned differences than the right contained in the US Constitution, when it comes to offense-specific findings, there is no meaningful difference between sentence enhancement facts and elements. Why does this matter, since regardless of their label the factors/elements have to be proven to a jury? Right now, sentence enhancements such as vulnerable victim or harm greater than typical or other offense-specific aggravating factors are circumventing the protections of a grand jury. Often, the prosecutor is able to allege those aggravating factors just by checking a box, and as a result, defendants must defend against frivolous accusations that nevertheless carry severe consequences. Under the Oregon Constitution elements are supposed to be pleaded in the indictment, and as long as offense-specific elements are mislabeled sentence enhancements as though somehow they aren t actually elements, the state is getting away with undermining the constitutional rights that require grand jury findings of all elements. I am moderately optimistic that we ll get an opinion from the Oregon Supreme Court by the end of the year that agrees with me. In the meantime, we ll have to subsist on the nuggets like the one we got from SCOTUS today. OCDLA Member Ryan Scott practices law in Portland. He serves on the Education Committee and is a past chair of that committee. He is a frequent speaker at OCDLA seminars and contributes regularly to the Library of Defense. August/September/October The Oregon Defense Attorney

11 Trial strategy eluding you? Starving for innovative motions? Swim in the Pond! OCDLA s Listserve expert referrals shared tips and insights motions and case law fast! We belong to what is very likely the best state organization of criminal defense attorneys. Among the many benefits of membership is the ability to use this listserve to get quick answers, to prompt discussion of current issues, and to distribute information. Philip A. Lewis Free with membership: Subscribe Send an to with Subscribe in the subject line. Unsubscribe Send an to with Unsubscribe in the subject line. Um... What you re doing right there Don t do that.? Nonverbal strategies for the office and courtroom. What s your nonverbal volume? What s Turn your it up nonverbal with FORTE. volume? Turn it up with FORTE. n OCDLA s Search and Seizure Manual Just $245. Oregon Search & Seizure Memorandum included. Unreasonable. Exceeded the scope. Exigent circumstances. Drug-detection dogs. School searches. Current July 2012 Update Included These subjects and much, much more included in the July 2012 case law supplement. Order yours today! OCDLA members can order the PDF version online and save $40! ocdla.org. The Oregon Defense Attorney 11 August/September/October 2012

12 APPELLATE PERSPECTIVE Two Supreme Surprises by Marc Brown If you missed those opinions, you are not alone. Yes, there were decisions on immigrant rights, health care, and campaign finance. With all the focus on several highly anticipated opinions from the United States Supreme Court this term, two great cases seemed to fly under the radar. If you missed those opinions, you are not alone. Both opinions may have a significant impact on sentencing in Oregon. Miller v. Alabama may require a court to consider mitigating factors before imposing a mandatory minimum sentence on a juvenile offender. Southern Union Co. v. United States may mandate jury findings to impose a criminal fine above the statutory minimum, or to impose any amount of restitution. Miller v. Alabama 1 As you may know, the Supreme Court has taken a close look at juvenile sentencing over the past seven years. In Roper v. Simmons, 2 the Court held that the imposition of the death penalty on juvenile offenders under the age of 18 constituted cruel and unusual punishment. In Graham v. Florida, 3 the court held that life without the possibility of parole imposed on a non-homicide juvenile offender violated the Eighth Amendment. In Miller, the issue before the Court was the constitutionality of a mandatory sentence of life without the possibility of parole for juveniles convicted of murder. In its analysis, the Court began by noting that it has developed two lines of cases relating to the issue. The first line of cases adopted a categorical ban on sentencing practices where the culpability of a class of offenders did not match the severity of a penalty. 4 In the second line of cases, the Court prohibited the mandatory imposition of capital punishment, requiring that sentencing authorities consider the characteristics of a defendant and the details of his offense before sentencing him to death. 5 Evan Miller was 14 years old when he committed murder. At the request of the prosecution the case was removed to adult court, and a jury found him guilty of felony murder. Alabama law requires a mandatory sentence of life without the possibility of parole for juveniles tried as adults and convicted of felony murder. Although the Supreme Court did not go so far as to say that life without the possibility of parole imposed on a homicide juvenile offender violated the Eighth Amendment per se, the Court did ultimately hold that: a judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalties for juveniles. By requiring that all children convicted of homicide receive lifetime incarceration without possibility of parole, regardless of their age and age-related characteristics and the nature of their crimes, the mandatory sentencing schemes before us violate this principle of proportionality, and so the Eighth Amendment s ban on cruel and unusual punishment. 6 In so holding, the Court relied on the youth matters line of cases that have required that a sentencing court have the ability to consider the mitigating qualities of youth. The Court noted that youth is more than a chronological fact it is a time of immaturity, irresponsibility, impetuousness, and recklessness. Referring to Johnson v. Texas, 7 the Court explained that just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be considered in assessing culpability. The court continued, explaining that past decisions illustrate the flaws of imposing a mandatory life without the possibility of parole on a juvenile offender: Such mandatory penalties, by their nature, preclude a sentence from taking account of an offender s age and the wealth of characteristics and circumstances attendant to it. Under these schemes, every juvenile will receive the same sentence as every other the 17-year-old and the 14-yearold, the shooter and the accomplice, the child from a stable household and the child from a chaotic and abusive one. And still worse, each juvenile (including these two 14-year-olds), will receive the same sentence as the vast majority of adults committing similar homicide offenses but really, as Graham noted, a greater sentence than those adults will serve. 8 On the surface, Miller holds that in order for a sentence of life without the possibility of parole imposed on a homicide juvenile offender to be constitutional, the sentencing court must consider the specific characteristics of the defendant. However, Continued on next page OCDLA Member Marc Brown is with the Office of Public Defense Services in Salem. He writes a technical column, What s Appening, which appears occasionally in this newsletter or the E-Update. August/September/October The Oregon Defense Attorney

13 APPELLATE PERSPECTIVE Continued from previous page. a look beneath the surface will reveal a more broadly applicable proposition: for any mandatory sentence imposed on a juvenile offender to be constitutional, a sentencing court must consider the specific characteristics of the juvenile. Step back from the fact that the case involved life without the possibility of parole, and reread the block quote above. Ultimately, Miller requires that for any mandatory sentence for example, a Ballot Measure 11 sentence to be imposed on a juvenile, a trial court must consider the specific characteristics of the defendant. In other words, any mandatory minimum sentence imposed on any juvenile offender is unconstitutional. Although a court may ultimately impose that sentence if it conducts the proper inquiry and takes factors relating to the offender s youth into consideration, it is not mandated to do so. 9 Southern Union Co. v. United States 10 In Southern Union Co. v. United States, the government charged the defendant corporation with multiple violations of environmental statutes, including one violation of the Resources Conservation and Recovery Act of 1976 (RCRA). Specifically, the government charged that the defendant knowingly stored liquid mercury without a permit [f]rom on or about September 19, 2002, until on or about October 19, Violations of RCRA are punishable by a fine of not more than $50,000 for each day of violation. At sentencing, a maximum fine of $38.1 million was set, on the basis that the defendant violated RCRA for each of the 762 days from September 19, 2002, through October 19, The defendant appealed, arguing that under Apprendi 11 and Blakely 12 a jury finding was required for any fine over $50,000. The Supreme Court agreed, holding that: Apprendi s core concern is to reserve to the jury the determination of facts that warrant punishment for a specific statutory offense. That concern applies whether the sentence is a criminal fine or imprisonment or death. Criminal fines, like these other forms of punishment, are penalties inflicted by the sovereign for the commission of offenses. Fines were by far the most common form of noncapital punishment in colonial America. They are frequently imposed today, especially upon organizational defendants who cannot be imprisoned. And the amount of a fine, like the maximum term of imprisonment or eligibility for the death penalty, is often calculated by reference to particular facts. Sometimes, as here, the fact is the duration of a statutory violation; under other statutes it is the amount of the defendant s gain or the victim s loss, or some other factor. In all such cases, requiring juries to find beyond a reasonable doubt facts that determine the fine s maximum amount is necessary to implement Apprendi s Continued on next page Library of Defense Criminal Appeals for the client who deserves a second chance Andy Simrin Attorney at Law libraryofdefense.org A digital manual for Oregon criminal defense lawyers. Legal Pages Expert Witnesses Local Pages Ryan Scott Appellate Week Public Articles Updated Regularly With New Content Log in to libraryofdefense.org today. 18 years appellate experience over 140 published appellate opinions 16 supreme court opinions author post-conviction proceedings 405 Northwest 18th ;venue Portland, Oregon 972:9 The Oregon Defense Attorney 13 August/September/October 2012

14 APPELLATE PERSPECTIVE Continued from previous page. animating principle: the preservation of the jury s historic role as a bulwark between the state and the accused at the trial for an alleged offense. 13 In sum, Southern Union applies Apprendi and Blakely to the imposition of criminal fines, requiring that any fine greater than a presumptive fine requires jury findings. The question for us becomes what is the presumptive criminal fine in Oregon. The legislature, in 2011, clarified that question. ORS provides the minimum fines for misdemeanors and felonies. Under that new provision, the minimum fine for a misdemeanor is $100 and for a felony is $200. The Blakely Court explained that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. 14 A strong argument can be made that the presumptive fine, for Apprendi purposes, is the statutory minimum in ORS That is so because ORS mandates that sentencing courts consider specific factors when determining whether to impose a fine and its amount. Those findings are precisely those that Apprendi and Blakely require to be made by a jury. Southern Union also strongly suggests that jury findings are required before a court may impose restitution. The question of whether restitution is criminal or civil in nature has been around for many years. Based on an earlier version of the restitution statute, Oregon courts have held that because a trial court can consider a defendant s ability to pay when determining whether to impose restitution and in what amount, restitution is criminal in nature. 15 Although that provision is no longer part of the restitution statute, the court has not overturned Hart or Hval. 16 Restitution is either criminal in nature or civil in nature. If civil, then a defendant is entitled to a civil jury pursuant to Article I, section 17, of the Oregon Constitution. If criminal in nature, then the imposition of restitution is part of the sentence and, as with a criminal fine, requires a jury to make findings before AUGUST ONLINE SAVINGS MEMBERS ONLY During AUGUST Save $10 when you register for the September Search and Seizure Seminar online. ocdla.org imposing restitution greater than the presumptive amount of restitution. Because ORS requires factual findings prior to the imposition of any amount of restitution, the maximum amount of restitution a court can impose without jury findings is zero. Under Southern Union, restitution is part of the sentence and the imposition of any amount of restitution requires jury findings. In sum, pursuant to Southern Union, the imposition of a criminal fine greater than the statutory minimum fine requires jury findings and the imposition of any amount of restitution requires jury findings. Endnotes US (June 25, 2012) US 551 (2005) US (2010). 4 See Kennedy v. Louisiana, 544 US 407 (2008) (imposition of the death penalty for non-homicide offenses violates the 8 th Amendment); Atkins v. Virginia, 536 US 304 (2002) (imposition of the death penalty on mentally retarded defendants violates the 8 th Amendment). 5 See Woodson v. North Carolina, 428 US 280, (1976) (imposition of the death penalty requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death. ); Lockett v. Ohio, 438 US 586, (1978) (a jury must not be prohibited from considering mitigating factors when deciding whether to impose the death penalty). 6 Miller, 567 US at (slip op 27) US 350 (1993). 8 Miller, 567 US at (slip op 14). 9 Jackson v. Arkansas is the companion case to Miller. Jackson came to the court as a state habeas petition. By reversing Jackson s sentence, the Court determined that its holding in Miller is retroactive. Ultimately, this holding could extend to all juveniles currently serving mandatory sentences US (June 21, 2012). 11 Apprendi v. New Jersey, 530 US 466 (2000). 12 Blakely v. Washington, 542 US 296 (2004). 13 Southern Union, 567 US at (slip op 4-5) (internal quotations and footnotes omitted) US at 303. (emphasis in original). 15 State v. Hart, 299 Or 128, 139, 699 P2d 1113 (1985) (where monetary award imposed as part of a defendant s sentence serves primarily penal rather than compensatory purposes, civil jury trial is not constitutionally required); State v. Hval, 174 Or App 164, 181, 25 P3d 958 (2001) (same). 16 See State v. NRL, 249 Or App 321, 332, 277 P3d 564 (2012) (holding that restitution imposed on a juvenile pursuant to ORS 419C.450 is penal in nature and does not require a civil jury despite changes in the statute). ONLINE JOB SEARCH Find a job! Go to ocdla.org, click Jobs/Resumes. August/September/October The Oregon Defense Attorney

15 Swimming Upstream? Help Has Arrived! Post Judgment and Extraordinary Remedies Edited by Eric R. Johansen, OPDS A manual that analyzes post-judgment proceedings and those that seek extraordinary remedies, such as mandamus and habeas corpus in the circuit courts and the Oregon Supreme Court. Comes with the Preservation of Legal Issues guide. Bookmarked and hyperlinked PDF version or traditional binder with mylar tabs. Original artwork by Rich Jeffries. Published by the Oregon Criminal Defense Lawyers Association. Bill Brennan by John Manning IN MEMORIAM B ill Brennan, a Life Member of the Oregon Criminal Defense Lawyers Association, passed away on February 25, 2012, at the age of 70. Bill was proudly a criminal defense attorney throughout his 30- year career. He primarily represented indigent defendants and very much enjoyed the challenges involved. He was at the top of the profession in representing several defendants in capital cases. He tangled with the likes of Norm Frink and Rod Underhill and was well known among members and judges during his many years of involvement with OCDLA. On the personal level, Bill was a loyal friend; once you were his friend you were friend for life. An Irishman to the core, Bill always enjoyed good stories. If the truth were incidental to the story, so be it it was the story that counted. He enjoyed the company of judges Steve Gallagher and Pat Dooley. One of the highlights of Bill s year was attending Judge Gallagher s annual St. Patrick s Day Irish Stew Feast but the drinks were on yerself. One of his prized possessions was an Irish Shillegah. Bill was an Air Force veteran. He flew on oil tankers charged with refueling planes in the air and told stories of a few close calls. He was very proud of the fact that he met and spoke with President John F. Kennedy in connection with his Air Force duties. Bill was devoted to his two children, Stephanie and Steven, and to his foster daughter, Pam Hanson. Bill relied on Pam to assist him in his office over the last few years. Bill enjoyed playing poker in his spare time. He would often go to Reno, Spirit Mountain and Bingen where he enjoyed playing cards and made many enduring friendships. He also enjoyed reading and fishing in his spare time. He will be missed by his many friends and family. DOWNLOAD: $190, members only HARDCOPY: $225 members, $275 nonmembers Order Online John Manning practices law in Beaverton. The Oregon Defense Attorney 15 August/September/October 2012

16 ANNUAL CONFERENCE Education, Camaraderie, Fun OCDLA would like to thank the attendees and everyone who donated time and/or money to help make the conference a success. AUCTION DONORS Businesses Alder Creek Kayak and Canoe, Portland Annie Bloom s Books, Portland Atlantis Casino Resort, Reno Big Dave s Fishing Adventures, Lafayette Eagle Crest Resort, Redmond Eldorado Hotel & Casino, Reno Eugene Hilton, Eugene Federal Public Defender, Portland King Estate Winery, Eugene Marine Discovery Tours, Newport Mariner Square, Newport McMenamins Pubs & Breweries, Portland Mo s Restaurant, Newport Mount Bachelor Village, Bend NACDL, Washington, D.C. Navillus Press, Eugene OCDLA Legislative Committee Oregon Bach Festival, Eugene Oregon Shakespeare Festival, Ashland PD Services of Lane County, Eugene Pendleton Round-Up Association, Pendleton Portland Opera, Portland Seven Feathers Hotel & Casino Resort, Canyonville 10 Barrel Brewing was popular at the brewfest. Photo by Gina Schauland, social media coordinator at Deschutes Brewery. Seventh Mountain Resort, Bend Silver Moon Brewing, Bend Southern Oregon Public Defender, Medford Steamboat Inn, Steamboat Sweet Life Patisserie, Eugene Sylvia Beach Hotel/Table of Contents, Newport The Benson Hotel, Portland The Hallmark Resort, Newport The Homebrew Exchange, Portland The Mill Casino Hotel, North Bend Track Town Pizza, Franklin, Eugene Valley River Inn, Eugene Wild West Hair Co., John Day Wildlife Safari, Winston Individuals Gary A. Berlant, Grants Pass Anthony Bornstein, Portland C. Lane Borg, Portland Hugh Duvall, Eugene Dave Hall, Roseburg Megan L. Jacquot, Coos Bay John B. Lamborn, Burns John Livingstone, Beaverton Zack Mazer, Salem Jack L. Morris, Hood River Dave O Brien, Eugene EveLyn A. Oldenkamp, Klamath Falls John Potter, Eugene Nick Quinn, Roseburg Robert S. Raschio, The Dalles Keith B. Rogers, Portland Jennifer Root, OCDLA STAFF Michael E. Rose, Portland Ross M. Shepard, Eugene A. V. Lonny Smith, Hood River Karen M. Stenard, Eugene Guests enjoyed sunshine, tastes of Bend brew, snacks and a silent auction on Friday after the conference. Photo by Gina Schauland, social media coordinator at Deschutes Brewery. A guest peruses an auction item at the silent auction, which concluded at the first ever OCDLA brewfest. The auction raised $7,400 for OCDLA s legislative advocacy efforts. OCDLA staff photo. August/September/October The Oregon Defense Attorney

17 SCHOLARSHIP DONORS Vist the OCDLA Facebook page for more Annual Conference photos. Individuals Leeon F. Aller James A. Arneson Paul E. Aubry Dennis N. Balske Jesse Wm. Barton Katherine O. Berger Leland R. Berger Anthony Bornstein David J. Celuch Jesse Coggins Richard A. Cremer Morgen Daniels Jenifer Feinberg Laura A. Fine James W. Gardner Stephen A. Houze Steven Jacobson M. Westbrook Johnson Jacqueline A. Joseph Gregory A. Karpstein Steven L. Krasik Rosalind Manson Lee Phillip M. Margolin Tracye May Shaun S. McCrea EveLyn A. Oldenkamp John Potter Robert S. Raschio James G. Rice Lore Rutz-Burri Jon G. Springer Bruce D. Tarbox Suzanne K. Taylor David M. Veverka Steven R. Walls Firms James A. Arneson PC Creighton & Rose PC Eggert & Heslinga Levine & McHenry LLC Ron Hoevet, moderator Noah Horst and speaker Celia Howes. Photo by Geoffrey Squier Silver. Attendees discuss the most recent presentation. Photo by Geoffrey Squier Silver. The Honorable Ken Walker wrapped the conference up Saturday morning. Photo by Geoffrey Squier Silver. Sentencing guru Jesse Barton spoke twice. Photo by Geoffrey Squier Silver. Beautiful weather, a hungry crowd and lots of help from board members and volunteers made for a great barbecue. Pictured, left to right, are grill tenders Bill Lovelace, David McDonald, John Potter and Alan Karpinski. OCDLA staff photo. The Oregon Defense Attorney 17 August/September/October 2012

18 ANNUAL CONFERENCE TEXAS HOLD EM WINNER Barry Engle won the Texas Hold Em Poker Tournament and took home $1,000, plus the Dead Presidents trophy engraved with his name. Second place runner-up was Greg Oliveros, winning $400. Board member David McDonald, left, receives a President s Award from outgoing President Rob Raschio. OCDLA staff photo. RAFFLE WINNER Congratulations to the winner of the Big Island Raffle, former OCDLA legislative advocate, Jennifer Williamson! DOOR PRIZES OCDLA wishes to thank the following businesses for contributing door prizes to the 2012 Annual Conference: Beaverton Data Discovery Bend Longboard Louie s Mother s Juice Cafe New York City Sub Shop Pizza Mondo Texas Hold Em winner Barry Engle poses with Executive Director John Potter and the Dead Presidents trophy. OCDLA staff photo. Portland Fat Pencil Studio Puttman & Teague LLP Salem Bentley s Grill EXHIBITORS Puttman & Teague, LLP, Portland, OR, Barbecue Sponsor Fat Pencil Studio, Portland, OR, Gold Level Sponsor TravelPro, Tigard, OR, Luncheon Sponsor Data Discovery, Beaverton, OR, Silver Level Sponsor The band at the brewfest from left to right: Kati Dunn, Russell Barnett and Haley Griffith. Photo by Gina Schauland, social media coordinator at Deschutes Brewery. August/September/October The Oregon Defense Attorney

19 2012 Oregon Criminal Defense Lawyers Associa9on 2012 Quick Guides for the Defense Blakely Sentencing Challenges (July, 2012) Edited by Jesse Wm. Barton, Jennelle M. Barton Blakely Sentencing Challenges summarizes the 15 most commonly used sentence-enhancement schemes that are subject to the Apprendi rule, including aggravating factors, dangerousoffender factors, and sexually violent dangerous offender factors. The guide identifies each of the 15 schemes and summarizes the theory and legal bases for objections. Color, double-sided, laminated. $15 / $20 nonmembers Order Online. Expungement: Eligibility and Procedure (July, 2012) Edited by Alex Bassos Details eligibility for convictions, arrests and dismissed charges and includes a helpful Expungement Decision Tree. Plus, the basics of the expungement procedure: sealing of records, unsealing the conviction, unofficial records, procedure, judicial standard, and full compliance with the sentence of the court. $15 / $20 nonmembers Order Online. Preservation of Legal Issues (June, 2012) By Stephanie Hortsch OCDLA s quick guide to preserving legal issues for appeal has been revised and updated. It serves as a convenient tool to help you when drafting motions or making arguments in court in order to ensure that the appellate courts reach the merits of your issues. The guide provides general rules for preserving issues, as well as requirements relating to the timing, form, and content of motions and objections. It contains citations to the code provisions and cases you ll want to have handy through all stages of litigation, from motions to suppress through motions for new trials. $15 / $20 nonmembers Order Online. Repeat Property Offender (REPO) Guide (June, 2012) By Brian Walker; Edited by Ryan O Connor 13 months? 18? 24? Oregon s repeat property offender schemes can be very confusing. OCDLA s new repeat property offender guide provides a quick reference to help determine how much time your client will receive if convicted. The back page of the guide includes a rundown on merger rules and concurrent/consecutive sentences, as well as a chart for property crimes committed before Measure 57 went into effect on January 1, Included with every purchase: a free Excel spreadsheet to calculate repeat property sentences on your computer, available to download upon completion of your online order. $20 members only Order Online. Repeat Property Offender (REPO) Guide 2012 OCDLA Measure 57 presumpkve property sentences for crimes commimed on or aner January 1, 2012 If current offense is from list below: Aggravated TheA I, Burglary I, Robbery III, Iden9ty TheA, Aggravated ID TheA. ORS (1)(a). 24 months prison 18 months prison 1 prior from yellow list (except ID 1 prior from yellow list (except ID TheA) or If current offense is from list below: TheA) or Robbery I/II, UUV, Poss Robbery I/II. or Traff Stolen Vehicle. Burg II, Crim Mischief I, Computer OR OR Crime, Forge I, Crim Poss. Forged 2 property crimes. * 2 property crimes. * Instrument I, Fraudulent Use of CC, OR OR TheA I, Mail TheA, Receipt of Stolen + Mail, UUV, Poss or Traff Stolen On supervision for a property On supervision for a property crime or crime or within 3 years of Vehicle. within 3 years of ending supervision for supervision for property crime. property crime. ** ORS (1)(b). ** * DefiniKon of Property Crimes: Previous convic9ons for the following list of completed or auempted crimes: Yellow list (not Agg. ID TheA), blue list, and the following misdemeanor offenses: TheA II, Crim Mischief II, Forge II, Crim Poss. Forged Instr. II. ORS (2). Add 2 months prison, up to 12 month cap, for property crimes NOT used to reach M57 sentence. ORS (3). Departure Sentences: Regular rules for upwards. Downwards require s9pula9on of the par9es OR the following judicial findings: 1) Person was not on supervision for a crime in yellow or blue list when current crime was commiued 2) No previous downward departure for crime in yellow or blue list. 3) Harm or loss not greater than usual AND 4) Departure will a) Increase public safety, b) increase likelihood of rehabilita9on, AND c) not unduly reduce appropriate punishment. ORS (6). DefiniKon of prior convickon: Any other property crime convic9on unless it is from the same conduct/episode Convic9on occurs upon pronouncement of sentence in open court. If convic9ons arise out of the same conduct or criminal episode, then none are deemed to have occurred before any others. ORS (7). Notes: If grid sentence is longer than Measure 57 sentence, grid sentence is the presumpkve sentence. ** The statute does not address whether Defendant's prior convickon for a property crime without supervision skll has a 3- year waikng period. + By Brian Walker, Umpqua Valley Public Defender Edited by Ryan O'Connor, O'Connor Weber LLP Oregon Sentencing Guidelines Grid (July, 2012) Updated by Jesse Wm. Barton A must-have, easy-to-use, full-color guide to Oregon sentencing guidelines. Includes Measure 11. Double-sided and laminated. $20 / $25 nonmembers Order Online. Order these guides and more at The Oregon Defense Attorney 19 August/September/October 2012

20 LEGISLATIVE UPDATE Summer Doldrums? Not. by Gail Meyer Ideally, the summer months after the May primaries are a time for legislators, candidates and lobbyists to breathe before the intensity of the fall campaign season sets in. That doesn t mean nothing goes on, however. To the contrary. Legislative Work-groups Convene to Discuss 2013 The interim period is a time when organizations such as OCDLA convene with other stakeholders in work-groups to discuss legislative concepts likely to be introduced in the upcoming session. This is where the push-pull between various interests plays out in a more thoughtful, in-depth fashion than is possible during the session. OCDLA is participating in work-groups relating to DUII laws, sex offender registration and notification laws, and expungement laws, among others. Closer to the end of the year, the list of work-groups will likely grow as each advocacy group starts to roll out their legislative bills. As you might imagine, this period of time is as important as any during the session itself and highlights the reason why (in my humble but biased opinion) it was wise for OCDLA to employ a fulltime lobbyist. Commission on Public Safety The Commission on Public Safety has been expanded to include DA, defense lawyer, law enforcement and judicial representatives. OCDLA member Larry Matasar is our representative, and he has been meeting individually with his fellow commissioners in preparation for the difficult conversations that lie ahead. The public hearings and presented materials are available online at gov/cjc/commpubsaf.shtml. The commission is tasked with issuing a report to the Governor prior to 2013 proposing legislation to reform Oregon s sentencing laws. OCDLA s Bills for 2013 in Final Draft Stages The OCDLA Legislative Committee selected its legislative agenda early this year, which gives us the advantage of getting final drafts back from the Legislative Counsel s office in time to lobby the bills to legislators in the fall. Our bill agenda for 2013 is lean, targeted, and in alignment with our long-term strategic plan: Eyewitness identification reform: Requires all law enforcement agencies to have written protocols for eyewitness identification procedures that comport with evidence-based standards. Diversion ignition-interlock exemptions: Authorizes courts to grant an employer-vehicle and medical exemption for DUII diversion ignition-interlock requirement. Marijuana classification adjustment: Adjusts the felony crime classification level of manufacturing/delivery/possession of marijuana crimes to align with other Schedule II controlled substances. Codification of Brady requirement: Adopts in large part the NACDL model bill which codifies the Brady discovery requirement, including sanctions for noncompliance. Why Legislators Want to Hear From You I never believed it when I was a busy practitioner, but it really, honestly is true: your legislative representative and senator want to hear from you. Why? You are a constituent. These folks are political. They win or lose their seat based on votes coming from your legislative district. They care about you and your opinion for that reason, if none other. You are a professional. Because you are an educated professional, they assume you are a thought leader that you articulate carefully considered opinions about matters of public interest and, for that reason, you have influence with your family, neighbors and peers. They are interested in having you think highly of them. In many instances, you are a business owner. Most of you are in private practice or a member of a consortia. You rent office space, employ secretaries and legal assistants, buy your lunch downtown. You are a part of what makes your community a community, and goodness knows all politicians want to be known within their communities. You are an expert in matters they are not. Let s face it: laws relating to criminal justice can be intricate and complicated and the debates around them get heated. Look how complicated Oregon sentencing laws are; the DUII statutes get amended every year; the expungement statute reads like a Frankenstein experiment. The Continued on next page OCDLA member Gail Meyer is the association s legislative advocate. August/September/October The Oregon Defense Attorney

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