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Jan/Feb/Mar 2015 • Vol. XXXVI, No. 1 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 5 Pushing Back Against Politically Unpopular Winds by Eve Oldenkamp In Memoriam — Ralph H. Smith, Jr. by Duane McCabe False Confessions Why Doctors Can Get It Wrong and Clients Confess Mark Lawrence and Dr. Robert Stanulis, Page 20 10 Criminal Defense Attorneys in China by Marc D. Brown 14 Flaws in Miller and Bucholz by Jesse Wm. Barton 16 Campaign Against Juvenile Shackling by Amy Miller And More “ Q U OTA B L E “The impact of our slave laws will continue to make itself felt into the future. For there is a nexus between the brutal centuries of colonial slavery and the racial polarization and anxieties of today. The poisonous legacy of legalized oppression based on the matter of color can never be adequately purged from our society if we act as if slave laws had never existed.” — A. Leon Higginbottham, Jr., Chief emeritus of the United States Court of Appeals for the Third Circuit. Upcoming CLEs March 6–7 Defenses: Playing Offense April 17–18 Juvenile Law Seminar ” ocdla.org | 541.686.8716 Calendars EVENTS, MEETINGS, & CLEs Online summary of seminars and events 2015 Defenses: Playing Offense March 6–7 Valley River Inn, Eugene Sentencing for Sophomores March 27 OCDLA Office, Eugene Juvenile Training Immersion Program April 16–17 Hallmark Resort, Newport Juvenile Law Seminar April 17–18 Hallmark Resort, Newport Annual Conference Death Penalty Defense Seminar September Seminar Sunny Climate Seminar Juvenile Law Training Academy Winter Conference June 18–20 Mt. Bachelor Village, Bend September 18–19 Ashland Hills, Ashland October 19–20 Oregon Garden, Silverton October 23–24 Sunriver Resort, OR November 8–12 Grand Hyatt, Kauai, HI December 4–5 The Benson Hotel, Portland Public Defense Management Seminar October 22–23 Sunriver Resort, OR BOARD MEETINGS March 6, 9:00 a.m.–12:00 p.m., OCDLA Office, Eugene April 18, 9:00 a.m.–12:00 p.m., Hallmark Resort, Newport June 19, 3:30–5:00 p.m., Mt. Bachelor Village, Bend Visit ocdla.org for a complete calendar of meetings. Board Members PUBLIC DEFENSE SERVICES COMMISSION MEETINGS NEXT MEETING Thursday, March 19, Oregon Civic Justice Building, 790 State Street, Salem, OR 97301. 1 – 4 p.m. Check the PDSC Meeting schedule online for updated meeting information, or contact Laura Anson, 503-378-2355, [email protected]. President: Eve Oldenkamp | District 1, Klamath Falls . . . . . . . . . . . . . . . . . . . . . [email protected] Vice President: Edward Kroll | District 4, Hillsboro . . . . . . . . . . . . . . . . . . . . . . . [email protected] Secretary: Gordon Mallon | District 6, Silverton . . . . . . . . . . . . . . . . . . . . . . . . . [email protected] Russell S. Barnett, III | At-large, Portland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [email protected] Alison Clark | Federal Public Defenders Office, Portland . . . . . . . . . . . . . . . . . . . [email protected] Sara J. Collins | Southern Oregon Public Defender, Medford . . . . . . . . . . . . . . . [email protected] Dave Ferry | Office of Public Defense Services, Salem . . . . . . . . . . . . . . . . . . . . . [email protected] Celia Howes | District 5, Portland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [email protected] Megan Jacquot | District 3, Coos Bay. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [email protected] Robert Kaiser | Public Defender Services of Lane Cty, Eugene . . . . . . . . . . . . . . . . . [email protected] Bradley Kalbaugh | Multnomah Defenders, Portland . . . . . . . . . . . . . . . . . . . . . . [email protected] Greg Scholl | Metropolitan Public Defenders, Hillsboro . . . . . . . . . . . . . . . . . . . [email protected] Alex Spinks | Umpqua Valley Public Defender, Roseburg . . . . . . . . . . . . . . . . . . [email protected] Terri Wood | District 2, Eugene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . [email protected] OCDLA thanks Tony Bornstein for providing the cover quote for each issue. 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. Visit ocdla.org to view board members or a map of board districts. January/February/March 2015 2 The Oregon Defense Attorney THE OREGON DEFENSE ATTORNEY Publisher Oregon Criminal Defense Lawyers Association 101 East 14th Avenue, Eugene, OR 97401 t: 541-686-8716 f: 541-686-2319 www.ocdla.org [email protected] Executive Director, Editor John R. Potter, [email protected] Staff Tracye May, [email protected] Jeff Richards, [email protected] Jennifer Root, [email protected] Alene Sybrant, [email protected] Lobbyists Substantive Issues Gail Meyer, [email protected] Fiscal Issues Justin Martin, [email protected], Nichoel Holmes, [email protected] Submissions & Deadlines OCDLA welcomes articles from qualified professionals. Submit articles by email attachment to [email protected]. 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 email to [email protected] by these dates. April/May 2015........................................... March 16 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 541-686-8716 for information. Full Page (9.75h x 7.5w).....................................$650 2/3 Page Vertical (9.75h x 4.9375w)............. $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............................................. 25¢/word ©2015 Oregon Criminal Defense Lawyers Association The Oregon Defense Attorney In This Issue Calendars............................................................................................................................................ 2 Board of Directors............................................................................................................................ 2 The View From Here | Pushing Back Against Politically Popular Winds............................4 In Memoriam — Ralph H. Smith, Jr............................................................................................ 5 OCDLA Hires New Development Coordinator........................................................................ 6 The Times They Are A-Changin’ with Job Opportunities.................................................... 6 Board Perspective | Judicial Evaluations: Is Now the Time?................................................ 8 International | The Plight of Criminal Defense Attorneys in China.................................. 10 Legislative Update | Preview........................................................................................................ 12 Sentencing | Flaws in Miller and Bucholz....................................................................................14 Juvenile Law | Campaign Against Indiscriminate Juvenile Shackling Comes to Oregon................................................................................................16 Appellate Perspective | Untying the Trial Court’s Hands.....................................................18 False Confessions | Why Doctors Can Get It Wrong and Clients Confess.....................20 Animal Abuse and Neglect | Defending Animal Abuse and Neglect Cases................... 22 Beautiful Words | State v. Jeremy Cox........................................................................................ 26 Reese’s Pieces | In the Matter of D.E........................................................................................... 28 Donors Make the Difference............................................................................................... 32–33 Our Members.................................................................................................................................. 34 Classified Ads.................................................................................................................................. 35 Seminars, Ads, Registration Forms, Events Trial Skills College . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Door Prizes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Home Free: Combatting Veteran Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Chief Defender Peter Gartlan Retiring / Reception . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Defenses Seminar Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Criminal Law Formbook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Fat Pencil Studio . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 OCDLA Learning Center . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Juvenile Law Listserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Sunny Climate Seminar Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Felony Sentencing in Oregon Manual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Juvenile Law Seminar Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Download a CLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Juvenile Training Immersion Program . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 DUII Listserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 March Online Savings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 Getting Expert Witness Transcripts on the Library of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 Library of Defense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 2014 DUII Trial Notebook . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 Search and Seizure Manual . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 OCDLA Online Members Only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 Pond Listserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 2015 Annual Conference Lodging at Mt. Bachelor Village . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Library of Defense Motion Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Online Job Search . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Donate — How to Help . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Strength in Numbers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Defenses: Playing Offense . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Back Cover 3 January/February/March 2015 “ THE VIEW FROM HERE NFL players who face criminal Pushing Back Against Politically Popular Winds charges present a unique opportunity for the defense Football Players and Law Enforcement bar to raise this by Eve Oldenkamp evidence in neurological defense. T he headlines have been rife with incidents of deadly force used by law enforcement after the Ferguson, Missouri, Michael Brown tragedy. Recently, a prosecution was instituted in the state of New Mexico against two officers who were involved in the slaying of a homeless man. This is rare. The Ferguson grand jury did not return an indictment. In Klamath Falls, a grand jury did not return an indictment against two officers involved in the fatal shooting of a man fleeing the scene of a robbery. The public seems empathetic to law enforcement violence, despite the contractual obligation of law enforcement to protect and serve, a societally-based contract wherein we trust them to maintain the peace, protect and serve, uphold our constitutional rights. In contrast, the public outcry toward domestic violence within the National Football League has been strong, the sympathy expressed for the football players, low. Yet, we do not have a societal contract with the players; they have not sworn an oath to protect and serve. I propose that both responses should be modified. Controlled by our greater understanding of neurology, both football players and police officers should receive empathy, and steps should be taken to change the causative force behind the violence exhibited by members of these groups. And, both groups should be held responsible. Law enforcement should not get a walk simply because their job is “dangerous” and they are “afraid of everyone.” Such is not a valid self-defense argument in any state. Self-defense is based on a particularized fear of a particularized person based upon particular interactions with that person, not on a general fear of the public instilled by faulty training. Similarly, football players should be held accountable; their crimes should not be swept under the rug simply because they are famous, wealthy, iconic or essential to an NFL team. Football and Violence Ray Rice was fired by the Baltimore Ravens for a domestic violence incident involving his then fiancée, now wife, caught on an elevator videotape as he knocks her out. The research done by the news industry and the NFL found that domestic violence was “surprisingly common.” Surprising? January/February/March 2015 ” Here is another recent issue the NFL faced. Last June, in a lawsuit filed by retired NFL players in the United States’ District Court for the Eastern District of Pennsylvania, the NFL agree to set up a $675 million fund to assist in covering costs associated with diseases and illnesses linked to head trauma sustained by the players during their careers. The medical conclusion agreed to by the NFL in that settlement, though their numbers were five percent lower than the players’ experts calculated, was that due to a high rate of severe brain damage nearly one-third of retired NFL players are expected to develop long term cognitive problems at an earlier age than the general population. Wow! How huge is that concession? So huge that it should open a very significant, proactive dialogue about domestic violence within the NFL. Closed head injury is injury to the brain that occurs without exhibiting significant outward evidence, e.g., a bruise, a bump or a cut. It is often indicated when somebody loses consciousness or temporarily blacks out or becomes disoriented. How many times, football fans, have we seen this happen to players? Such closed head injuries frequently occur to the frontal cortex. Further, we know that the most common effect of closed head injuries in the frontal cortex is the possibility of personality change.1 By this we mean, of course, aggressive behaviors, incapacity to appreciate societal impute and other demonstrations of lack of emotional control. There are also the coup contra-coup injuries, or injury occurring on the opposite side of the brain from the impact. This frequently occurs in coordination with a frontal lobe injury. Caused by deceleration that forces the brain to ricochet back from the initial force and impact on the stiff, sharp bone ridges on the inside of the skull, the impact results in focal lesions to the opposite side of the brain, leading to “pragmatic problems like impaired Continued on page 24 OCDLA Board President Eve Oldenkamp practices law in Klamath Falls. She serves on the Drug Policy and Pay Parity committees. 4 The Oregon Defense Attorney IN MEMORIAM Ralph H. Smith Jr. 1933–2015 by Duane McCabe L ongtime OCDLA member Ralph H. Smith Jr, peacefully passed away at his home in Bend on January 12, 2015. Ralph had a successful career as a civil litigator and judge in Kansas City, Missouri, and then moved to Oregon in the early ‘70s. Once in Oregon he found his true love, wife Susan, and his true passion in the law, criminal defense. After a short stint with Legal Aid in Portland, Ralph accepted the position of Baker County Public Defender. Following the state’s assumption of public defense funding in the early ’80s, Ralph became the de facto public defender of Eastern Oregon, successfully defending clients in every county east of the Cascade Mountains. No case was too small or too large. He defended each client with the same dedication, commitment and passion. His clients were always foremost in his mind, and over the years he made many personal sacrifices in order to give his clients the best possible defense. In 1988 Ralph became the first state-funded contractor/ defender assigned to represent clients in capital murder cases. He never left that line of work, which continued until his retirement in 2013. When his long earned retirement finally arrived, Ralph retired with the distinction of never having a client sentenced to death. Ralph H. Smith, Jr., right, with Duane McCabe, circa 1997. In addition to his individual clients, Ralph dedicated himself to establishing and maintaining the highest possible standard of capital defense practice in Oregon. He was an initial advocate of an Oregon Capital Resource Counsel and a proponent of a specialized subgroup of OCDLA which has developed into the very successful Capital Defenders. In 2004 Ralph received the OCDLA Ken Morrow Lifetime Achievement Award. Gracious to friend and foe alike, Ralph was held in high esteem by those who worked with him and those who worked against him, including police, prosecutors and judges. Ralph had a knack for charming jurors who inevitably came to trust him and to respond positively to his substantial persuasive powers. Ralph Smith was the trailblazer of capital defense in Oregon. His legacy will be felt in every capital case that is defended in Oregon until the punishment he so despised is erased from the books. As fellow defenders, we owe him so much for his efforts, but more importantly Ralph has a long list of clients who owe him for their very lives. OCDLA Member Duane McCabe practices law in Bend. DOOR PRIZES THANK YOU PORTLAND! Biwa Gino’s Restaurant and Bar Higgins Restaurant & Bar India House Kells Irish Restaurant & Bar Le Bistro Montage Lompoc Brewing McMenamins Pubs & Breweries Mediterranean Exploration Company ¿Por Qué No? Russell Street Bar-B-Que Seasons & Regions Seafood Grill Tasty N Sons Toro Bravo 2015 Trial Skills College. Twenty-one students and thirteen faculty members participated in the eighth annual OCDLA Trial Skills College, February 6–7. Students and faculty worked in large and small groups on theme and theory development, voir dire, opening statement, cross-examination, direct examination, closing argument and staging. The CLE was coordinated by Laura Fine Moro, Jeni Feinberg, Ros Lee and Shaun McCrea. The Oregon Defense Attorney WINTER CONFERENCE DOOR PRIZE DONORS 5 January/February/March 2015 The Times They Are A-Changin’: PD Job Opportunities NEWS OCDLA Hires New Development Coordinator Do you remember 1977? Jimmy Carter was president. He pardoned almost all Vietnam War draft evaders. The Raiders beat the Vikings in the Super Bowl. The Coneheads debuted on Saturday Night Live. Gary Gilmore was executed by firing squad in the Utah state prison. Bank of America adopted the name VISA for their credit cards. Elvis Presley died. The federal minimum wage went from $2.30 to $3.35 an hour. And, Public Defender Services of Lane County (PDSLC) was created. In 1977 the public defender concept, which grew out of the 1963 Gideon V. Wainwright decision, was a relatively new legal phenomenon. Lawyers attracted to the work had been steeled by Vietnam, a skeptical view of authority, and a postwar idealism. Against that backdrop a cadre of lawyers gathered under the PDSLC banner. Many of those lawyers stayed for decades, becoming some of Oregon’s first career public defenders. Well, the times they are a-changin’. These baby boomer champions of justice are now retiring and, for the first time ever, there are multiple job openings in Lane County, with more to come. So, while there haven’t been many public defender job Jeff Richards joined the OCDLA staff in January as our new Development Coordinator. A California native & eight-year resident of Eugene, Jeff earned his JD at the University of Oregon in 2009, before spending time working at a local software startup. Some of you met Jeff in November and December, as he provided technical support for several events and assisted our outgoing Development Coordinator with endof-year fundraising work. Jeff looks forward to helping us grow our organization in the years to come. Please join OPDS for a reception honoring Chief Defender openings in Lane County over the years, there is a sea change happening now. If you’ve ever toyed with the idea of living in or near Eugene, and you know your way around a Measure 11 case, and want to try your hand working in a highly regarded office of courtroom warriors, then your time is now. Dig out your old tie-dye shirt, check the condition of your Birkenstocks and give Lane County Public Defender Director Greg Hazarabedian (541-484-2611, ext. 101) a call. Consider it a career adjustment opportunity. PETER GARTLAN who is retiring after 27 years of service to the state and the citizens of Oregon. ______ Home Free: Combatting Veteran Prosecution Thursday, March 19, 4:30–6:30 p.m. Oregon Civic Justice Building, Willamette University, Jesse Wm. Barton’t article, “Home Free: Combatting Veteran Prosecution and Incarceration,” is available in Volume 11, No. 2 of the online Justice Policy Journal (2014). 790 State Street, Salem, OR 97301 RSVP to: [email protected] January/February/March 2015 6 The Oregon Defense Attorney DEFENSES: Playing Offense valley river inn Who can attend? This program is open to defense lawyers and those professionals and law students directly involved in the defense function. What’s included in the fee? • Written material download in advance • CLE credit • Breakfast and lunch on Saturday • Refreshments at the breaks Financial assistance? Contact OCDLA by Feb _ concerning scholarships or extended payment plans. Cancellations Seminar cancellations made before February 27 will receive a refund less a $25 cancellation fee. Cancellations made after Feb. 27 – once material link has been emailed – will receive a refund less a $100 cancellation/written material fee. No-shows will have been sent the written material electronically & will be provided the audio files in MP3. Lodging: Valley River Inn 1-800-543-8266 1000 Valley River Way, Eugene OCDLA’s special rate is just $99 sgl/dbl occupancy available through February 12. Lodging includes parking & internet. ocdla.org Registration Phone: 541.686.8716 Fax: 541.686.2319 Mail: OCDLA, 101 E. 14th Ave, Eugene, OR 97401 march Registration Please Print 6-7, 2015 Register online, www.ocdla.org. Name ______________________________________________________________________ Name for Badge ________________________________________ Bar/DPSST #_________ Address ____________________________________________________________________ City ___________________________________State __________ Zip__________________ Phone _________________________________Email________________________________ Tuition & Materials Early Bird Standard OCDLA/WACDL Members Lawyer Nonlawyer r $255 r $280 r $160 r $185 Nonmembers Lawyer Nonlawyer r $305 r $330 r $210 r $235 (PDF Download in advance) By Feb. 24 After Feb. 24 Material Options r Add a CD of materials & supplementals for an additional $15 r Add a printed binder of essential materials (w/o supplementals) for $30 = $_______ = $_______ = $_______ = $_______ + $_______ + $_______ Can’t Attend? Written Materials & Audio SAVE $: Download material & MP3 audio online following seminar, $230 members only r Written materials (CD) & audio CDs, $255, members only r Written materials (hardcopy & CD) & audio CDs, $285, members only r Written material only—CD and hardcopy, $150 ocdla.org = $________ = $________ = $________ Not a member? Call OCDLA to join or visit the website at ocdla.org. OCDLA Donations r $ 25 donation to the Scholarship Fund r $ 25 donation to the Legislative Advocacy Fund =$________ =$________ 25 donation to OCDLA’s General Fund r $ =$________ Payment Information $ __________ Total Payment Enclosed r Check enclosed r Charge my VISA/MC/AMEX/Discover ___________________________________________________________________________________________________________________________ Name on card ___________________________________________________________________________________________________________________________ Card Number Exp. date Billing Zip Code CVC Presented by the Oregon Criminal Defense Lawyers Association. CLE Credit— Pending approval for 9.25 general credits in Oregon, and 8.75 in Washington. OCDLA certifies that the Defenses: Playing Offense Seminar has been approved for MCLE credit by the State Bar of California in the amount of 8.75 hours, of which 0 will apply to legal ethics. Call OCDLA for accreditation outside of Oregon. The Oregon Defense Attorney 7 January/February/March 2015 BOARD PERSPECTIVE “ Second, [judicial evaluation] could serve, if we choose to Judicial Evaluations: Is Now the Time? use it that way, as a way to encourage public education related to our judicial system. ” by Gordon Mallon Note: The author includes a section of the King County Bar Association’s website dedicated to judicial evaluations. View it here: http://www.kcba.org/judicial/ratings/ratings.aspx. “I will be appearing in front of judge so and so. How is she on [take your pick]: suppression matters, bench trials, evidentiary rulings, sentencing, contested juvenile dependency hearings, etc.?” This is a common question floated on the Pond. When we ask this questions, we are left to rely on whomever happens to be Pond swimming and feels like answering. Perhaps there is a better way. In Washington it seems every segment of the bar does judicial evaluations. Everybody from the Asian Bar Association to Washington Women Lawyers has their own evaluations. The Governor’s office publishes a uniform questionnaire. The King County Bar Association has an incredibly comprehensive website and publishes detailed evaluations for all the judges that serve the fishing village which is King County’s county seat. In fact, everybody publishes their judicial evaluations on the internet. There are plenty of models for us to follow. In our fair state, no one does this. In Washington County, a small group of family law lawyers and at least one judge have been discussing doing an evaluation, but things seem to have bogged down over the problem that the public might somehow get hold of it. There seems to be a generalized fear that the public might find out whether lawyers think judges are doing a good job. What evil might result if voters were given information to base their votes on? It might encourage a few of them to not skip over the judicial section on their ballots but to vote based on information. Hey, it could happen. Seriously, what are the pros and cons? First, and most obviously, it would be useful to us as a tool when going before an unfamiliar judge. Second, it could serve, if we choose to use it that way, as a way to encourage public education related to our judicial system. Third, it might be taken as constructive criticism or acknowledgment of a job well done by some of the judges. On the con side, some of the more cynical among us (and which defense lawyer isn’t at least a little cynical) might conclude that our praise was a kiss of death and our criticism a ringing endorsement. In some of the smaller counties the anonymity of the January/February/March 2015 evaluators might be hard to protect. Would there be widespread participation from all members of the criminal bar? Our results will only be as good as our data. Prosecutors would also have access to our results, if we make them public, and, based on various Pond leaks in the past, likely even if we don’t. So what do you all think? Are judicial evaluations worth exploring further? Should OCDLA be the leader on this, or sit back and wait for some other organization to take the lead? Do you want to be involved in a work group on the judicial evaluation issue? I will start a thread on the Pond when this article is published. Your input is greatly coveted. And now for something completely different. On the day I wrote this, I learned of the passing of our friend, colleague, and for me and many others mentor, Ralph Smith. (See “In Memoriam” on page 5.) I worked my first murder case with Ralph and learned more from him than I can recount here. I think the most important thing I learned from Ralph I learned from his example. Ralph never stopped learning. He was never satisfied that he knew enough. He always wanted to know more. It is my hope that this lesson stays as fresh for me as it always was for Ralph. OCDLA Board Member Gordon Mallon is a life member and past president of the association. He serves on the Education and Building Development committees. He practices law in Lake Oswego. 8 The Oregon Defense Attorney The Criminal Law Formbook 2011 edition edited by Michael Rose Highlights: • over 500 criminal law forms, contributed by your colleagues, downloaded to your desktop in minutes • forms updated through 2011 Legislative session • forms updated with case law through July 2011 • revamped sections on post-conviction relief, appeals and juvenile law • Word and WordPerfect versions • licensing available for 1–3, 4–10, 11–20, 21–30, 31–40 and 41 or more users PDF Licenses start at $225 Order here. 1–3 users Hardcopy & PDF License for 1–3 users, $475 (hardcopy only, $325) OREGON CRIMINAL DEFENSE LAWYERS ASSOCIATION, ocdla.org The Oregon Defense Attorney 9 January/February/March 2015 INTERNATIONAL “ If the defense attorney dares The Plight of Criminal Defense Attorneys in China to present evidence conflicting with the procurator’s evidence, he or she risks being accused of providing false evidence. ” by Marc D. Brown E verything was in place for my travels to Guangzhou, Guangdong, China, to teach a six-week course on the United States Constitution. I would teach at the South China University of Technology College of Law. For nearly a year, I had been working to secure a Fulbright Scholarship for the trip, developing and compiling a syllabus and course materials, obtaining approval for leave from my position at the Office of Public Defense Services, securing a travel visa, and setting travel plans. In addition to my teaching duties (which would entail teaching two days each week), I was hoping to connect with local criminal defense attorneys to learn more about the situation of criminal defense attorneys in the People’s Republic of China (PRC). Then, two weeks before my departure, I received an email from the professor with whom I had been working to develop the program: Dear Marc, Now I have some questions. A government agency asked me about your visit and whether Chen Taihe of Guangxi Lawyer and Li Heping of Beijing Lawyer will join you. I don’t know whether you are friends. So could you tell me what’s going on? Having never heard of the named attorneys, I turned to the Internet to discover the identities of those two individuals. Chen Taihe, I discovered, is a law professor at Guilin University of Electronic Technology, in Guangxi Province, and is a strong advocate for the introduction of jury trials and other reforms to end corruption in the judiciary. Li Heping, a civil rights attorney in Beijing, has advocated on behalf of several unregistered religious groups and environmental activists. My first reaction was surprise, followed by a bit of pride that I was being associated with lawyers fighting for civil liberties in the PRC. After bragging to colleagues that I was striking fear in the heart of the Communist Party apparatus, I emailed the professor and informed him that I had never met either of the attorneys and, no, they would not be joining me. (Later, I asked the professor January/February/March 2015 about the email; as best as I can figure out, it was part of a power struggle with the professor and the new Communist Party Secretary at the law school.) The professor’s response expressed relief and ended with the advice that when I arrive, I should “focus on teaching and travel.” I took that as a none-to-subtle hint that I should steer clear of any controversy. I quickly understood that my vision of sipping tea while talking with Chinese criminal defense attorneys about the law late into the night (ignoring the fact, of course, that I speak no Chinese) would not come to reality. Although I was unable to interact with any criminal defense attorneys during my tenure at the law school, I did learn some sobering facts about the plight of criminal defense attorneys in the PRC. There is no general right to be represented by counsel in criminal proceedings. Article 34 of the Criminal Procedural Law (CPL) of the PRC provides that a court may designate a legal aid lawyer to represent a criminal defendant who has no representation due to “financial difficulties or other reasons.” If, however, the defendant is blind, deaf, mute or a minor, or if there is the possibility that the defendant may be sentenced to death, the court shall designate a lawyer to represent the defendant. The CPL does provide that a criminal defendant may entrust, as his defender, a lawyer, “persons recommended by a public organization,” or “guardians or relative and friends of the criminal suspect or defendant.” The criminal procedures of the PRC are patterned after those in the former Soviet Union. Those procedures largely ignore the rights of the defendant. Under that system, the courts, the “public security organs,” and the procurator (the equivalent of the prosecutor in common law countries) constitute the structure of the system. Continued on next page OCDLA Member Marc Brown is with the Appellate Division, Office of Public Defense Services. 10 The Oregon Defense Attorney INTERNATIONAL Continued from previous page OCDLA’s Learning Center Available for Your Meetings As in most inquisitorial systems, a presumption of innocence does not exist and the responsibility of the defender is to present, “according to the facts and law, materials and opinions proving the innocence of the criminal suspect or defendant, the pettiness of his crime, and the need for a mitigated punishment or exemption from criminal responsibility.” But, Article 38 of the CPL states that a defense lawyer shall not, among other acts, “interfere with the proceedings of the judicial organs.” A lawyer who violates that provision “shall be investigated for legal responsibility according to law.” Although that provision may sound reasonable in the abstract, in practice Article 38 is a grave threat to the zealous advocacy of criminal defense attorneys in the PRC. That is so because Article 306 of the Criminal Law of the PRC (commonly known as “Big Stick 306”) provides: OCDLA’s new home boasts a spacious room designed to host meetings, small CLEs and other events. The Learning Center comfortably holds 25 people and is equipped with a 65-inch HD “smart” television, donated by Walter Todd. The TV includes HDMI cables to connect to your PC or Mac should you need to show a PowerPoint presentation or lead an audience through an online demonstration. This space is available to all members. Contact OCDLA staff to reserve. Conveniently located at 101 E. 14th Ave, Eugene, OR 97401. Juvenile Law Listserve A defender or an agent ad litem who, in the course of criminal procedures, destroys or forges evidence, assists the party concerned in destroying or forging evidence, threatens or lures a witness to, contrary to the facts, change testimony or provide false evidence, shall be sentenced to fixed-term imprisonment of not more that three years or criminal detention; and if the circumstance is serious, to fixed-term imprisonment of not less than three years and not more than seven years. In practice, a defense attorney has few avenues to obtain information about the criminal investigation of the defendant. The procurator is not required to disclose any information, including names of witnesses, until ten days before a trial. If the defense attorney conducts his or her own investigation, including interviewing witnesses, he or she risks being accused of threatening or luring a witness to change testimony or provide false evidence. If the defense attorney dares to present evidence conflicting with the procurator’s evidence, he or she risks being accused of providing false evidence. Although few such prosecutions occur, the mere threat appears to be sufficient to thwart most zealous advocacy. Imagine a situation where you represent a criminal defendant and talk to a witness who provides a different narrative than he or she provided to the prosecutor. If you present that evidence, you risk a criminal charge and up to seven years in prison (or, at the very minimum, several days of detention while the prosecutor investigates the alleged crime). And the investigating prosecutor is the same prosecutor prosecuting your client. Ultimately, the “three difficulties” facing criminal defense attorneys are access to their clients, collecting evidence, and access to the state’s evidence. This virtually ensures that the criminal defense attorney will be unable to put on an adequate defense. It is a fairly bleak existence for a criminal defense attorney in the PRC. However, improvements in the rule of law may be occurring. In 2012, the People’s Congress amended the CPL with The Oregon Defense Attorney Recent topics of discussion — • Attorneys Fees • Juvenile Delinquency Aid and Assist • Guardianship The self-monitoring list allows juvenile practitioners to share ideas, connect and exchange information. To sign up, send an email to [email protected] with “Subscribe Juvenile Listserve” in the subject line. a number of reforms, including expanded representation in death penalty cases, the right to confrontation, and an adversarial-like trial. Additionally, there is a push for professionally trained procurators and judges (in the recent past, most judges had no formal legal training and were, in many cases, former military personnel). There is hope that a more professional system will result in less intimidation of defense attorneys and more zealous advocacy. Ultimately, however, an independent judiciary will be necessary for true legal reform in the PRC. As for my experience, I did not meet any criminal defense attorneys. I did develop an enduring friendship with the Communist Party Secretary at the law school who had tried to thwart my visit. Teaching Chinese law students about the United States Constitution was rewarding and enlightening. Having spent time with the next generation of Chinese lawyers, I am optimistic. My students were highly intelligent, willing to question authority, and excited about their future careers. I look forward to the day when I receive an email from a former student informing me that he or she won an acquittal in a criminal trial as a result of zealous advocacy. 11 January/February/March 2015 “ LEGISLATIVE UPDATE We are starting the session with good news—national and Preview jury practice. by Gail Meyer W hile the 2015 Legislative Session technically opened on Monday, January 12, the legislature didn’t hold committee hearings until February 2. Over 1400 bills have been submitted for pre-session filing, with plenty more to come. I say all this to point out that as of this writing, we have only limited knowledge of the sum total of bills affecting the interests of OCDLA and its members. This year, members can follow the procession of legislative matters in a members-only section of the Library of Defense. The Legislative Committee will run weekly reports of all the bills OCDLA is tracking, identified by subject matter, setting forth the next scheduled hearing on each bill. Members are encouraged to post comments or suggestions with respect to each bill. (Visit https://libraryofdefense.ocdla.org/ OCDLA_Legislative_Committee to access this area). We are starting the session with good news—national and local media attention on grand jury practice. Four years ago, the OCDLA Legislative Committee set its sights on submitting legislation in 2015 requiring a verbatim recordation of grand jury proceedings. Little could the committee have known that events nationwide would make this bill so timely. Representative Jennifer Williamson (D-Portland) and Senator Jeff Kruse (R-Roseburg) are joining together to cosponsor our bill requiring recordation of grand jury testimony by either a “suitable electronic recording device” or by a certified court reporter, and requiring the clerk to provide a copy of the record to defense counsel after the accused is arraigned on the indictment. Senate Bill 365, has already been submitted; a similar House bill is still in drafting. Whether you are a constituent of either Representative Williamson or Senator Kruse or not, send them an email message thanking them for their support on this important reform. We are also starting the session with bad news—the Judicial Department has submitted SB 373, which limits a party to only one motion for change of judge in judicial districts of three judges or less. After a similar bill in 2013 resulted in a work group which studied this issue, it turns out that the family law bar utilizes two motions for change of judge more often than the criminal bar, although we are a very close second. The judges complain that a party in a small judicial district can effectively select their judge (i.e., “judge shop”) by simply filing such motions, and often an out-of-county judge must appear with attendant case delay, travel January/February/March 2015 ” local media attention on grand and per diem costs. The vast majority of states allow for only one such motion per case. Hence, complaining that it isn’t fair to treat the litigants in small judicial districts with fewer rights than litigants in large judicial districts poses the threat of reducing the number of motions for everyone across the entire state to just one motion per case. For those of you who practice in small judicial districts of three or more judges, the chances are high that your local representative and senator have already heard from your local judges on the merits of this bill. Now would be the time for you to reach out to them and express your concerns about this bill—SB 373—and the reasons why maintaining the status quo is important. Some of you in the world of appellate practice may already have heard of Senate Bill 426, which limits the right to appointed counsel to direct appeals to the court of appeals and eliminates that right for discretionary appeals to the state supreme court or in postconviction relief or post-conviction DNA testing. As of this writing, it is not known what position the Department of Justice or the Judicial Department will take on this bill (one would assume they would hate it as much as we do) or whether it will even be afforded a hearing. Stay tuned on this as more will be learned in the first few weeks of session. There are multiple bills submitted which address investigations into officer-involved shootings, the intersection of privacy and law enforcement use of electronic surveillance devices, police profiling, ignition interlock devices, aid-and-assist determinations, policy body cameras, recreational marijuana regulation, domestic violence and child abuse. And that’s just what is known at this time. I anticipate bills extending, if not eliminating, the statute of limitations for sex crimes, only this time for crimes against adults as well as for minors. I and the entire membership of this organization owe tremendous gratitude to the OCDLA Legislative Committee— co-chaired by Bob Homan and DeAnna Horne—Bobby Kaiser, Lane Borg, Bronson James, Richard McBreen, Tom Sermak, Neal Weingart, Shawn Wiley, Denny Maison and Ruben Medina. These hearty souls have been steadfast in analyzing and formulating Continued on page 19 OCDLA Member Gail Meyer is the association’s substantive issues lobbyist. 12 The Oregon Defense Attorney Hotel & Travel: $999 ppo from Portland November 8–12, 2015 • per person, double occupancy • roundtrip from Portland, other departure cities available, see below Package Includes: • Roundtrip air travel from Portland • Four nights, Grand Hyatt Kauai, HI • Free internet • Free parking • State-of-the-art 24-hour gym • Wellness and yoga classes • Camp Hyatt for kids Add extra days to the package for even more savings. Hotel & travel package is open to all family & friends of CLE attendees. See ocdla.org. Continuing Legal Education: $395 November 10, 2015 ($450 after October 12) CLE Registration Includes: 2015 Sunny Climate Seminar Kauai: Hotel & Travel Package Registration Form Print Legisbly __________________________________________________________________ Full Legal Name Name for Badge __________________________________________________________________ Law Firm (if applicable) __________________________________________________________________ Mailing Street Address __________________________________________________________________ City State Zip __________________________________________________________________ (h) Phone (w) __________________________________________________________________ Email Fax Deposit & Payment Full payment due September 7, 2015. Full payment due Sept. 7, 2015. $250 deposit per person required to reserve travel package. Airfare subject to change until paid in full. Reserve early; limited space. I/We plan to leave from this city: ____________________. Name(s) of additional people staying in room (i.e., spouse, partner, children, friends, etc.): 1. _____________________________________ 2. _____________________________________ 3. ____________________________________ 4. _____________________________________ Travel Payment by Check (payable to TravelPro) ☐ ____ people x $250 per person deposit = $ ________ enclosed. ☐ I am paying for travel in full: _____ people x $ ______ each = $_______ enclosed. • Seminar admission • Written material emailed in advance • Lunch, refreshments, CLE credit by Credit Card Who May Attend ☐ I am paying for travel in full: ____ people x $ _____ each = $______ enclosed. The CLE is open to defense lawyers and professionals or law students directly involved in the defense function. VISA/MC/AmEx/Disc Card no.: __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ Name on Card: _______________________________________________CVC#_____ Exp. Date: ___________________ Billing Zip Code ____________________________ Register for the CLE ONLINE at ocdla.org. To register for the CLE (book travel package separately), visit http://www.ocdla.org/ seminars/shop-seminar-index.shtml. Choose “Sunny Climate Seminar.” You may also call 541-686-8716 to register by phone. A minimum of one CLE registration is required per travel package. Cancellation: Seminar cancellations made by October 30 will receive a refund less a $50 cancellation fee. Cancellations made after Oct 30 — after material download link has been emailed, will receive a refund less a $150 cancellation/written material fee. No-shows will be sent the MP3 audio download link. Other departure cities & prices: Contact Tom Cronkrite, [email protected] or 1-866-6113785, for package pricing from other cities. The Oregon Defense Attorney ☐ Charge my credit card in the amount of $250 deposit x ____ people = $ _____. Complete billing address if different than above:____________________________________ ____________________________________________________________________________ Options — Add extra days ☐ Contact me about arriving early and/or staying longer. Travel Cancellation/Fee The airline portion of the travel package is nonrefundable. In addition, any cancellation after September 7, 2015, will be assessed a $250 hotel cancellation fee. Airfare subject to change until travel paid in full. Total Enclosed $_______ Send this form and payment to: TravelPro, Attn: Tom Cronkrite, 11825 SW Greenburg Rd, Suite 215, Tigard, OR 97223, or via fax to: (503) 296-5886. For more info, email Tom Cronkrite at [email protected], or call 1-866-611-3785. Visit ocdla.org for more details and to register for the CLE portion. 13 January/February/March 2015 SENTENCING … because the Supreme Court Flaws in Miller and Bucholz by Jesse Wm. Barton O n January 13, 2015, I submitted oral arguments in State v. Cuevas, 263 Or App 94, 326 P3d 1242, rev allowed, 356 Or 163 (2014). Initially set to address a pair of narrow claims, the case now presents a pair of related but much broader claims. Information about the claims is provided below, but the questions the claims present are: 1.In State v. Miller, 317 Or 297, 855 P2d 1093 (1993), did the Supreme Court erroneously construe former OAR 253-12-020 (now OAR 213-012-0020), which limits the length of consecutive sentences (via the shift-to-I, 200%, and 400% rules), as inapplicable when sentencing crimes stemming from separate criminal episodes? 2.In State v. Bucholz, 317 Or 309, 855 P2d 1100 (1993), did the court erroneously construe former OAR 253-04-006(2) (now OAR 213-004-0006(2)) as allowing the “reconstitution” of criminal-history scores when sentencing crimes stemming from separate criminal episodes? Admittedly, prevailing Oregon Supreme Court case law will prohibit lower courts from accepting the claims. But because the Supreme Court may accept one or both of the claims, it is crucially important to preserve them starting now.1 Those are the broader claims that Cuevas presents. Only if the court first rejects or declines to consider them will it address the narrow claims. The narrow ones address the question of whether separate-criminal-episode findings, for purposes of criminal-historyscore “reconstitution” and for avoiding application of the guidelines’ “shift-to-I” rule’s limitation on the length of consecutive sentences, are subject to the Apprendi rule. In Cuevas, the Court of Appeals agreed that these types of findings are subject to the Apprendi rule. The Court of Appeals also held that the trial court erred in relying on non-juried findings to reconstitute Cuevas’s criminal-history scores and to decline to apply the shift-to-I rule. But then, the Court of Appeals finally ruled, the errors were harmless. The Supreme Court denied Cuevas’s petition for review of, among other things, the Court of Appeals’s harmless-error ruling. January/February/March 2015 “ may accept one or both of the claims, it is crucially important to preserve them starting now. ” But the court simultaneously allowed the state’s petition of the Court of Appeals’s ruling that the trial court (harmlessly) violated Cuevas’s Sixth Amendment rights. If the Supreme Court addresses only the narrow claims, not only would the litigation not help Cuevas, but it would hurt him by making him postpone petitioning for post-conviction relief for however it long it takes the court to issue its decision. On the other hand, if the Supreme Court addresses the broader claims, its decision could benefit Cuevas. This is because a favorable decision would end in his resentencing. Ideally, the Supreme Court will see this as a reason to address the broader claims, but there are other reasons it should do so. The main one is that by addressing the broader claims, the court could decide the case on sub-constitutional state law grounds, rather than under federal constitutional (Sixth Amendment) grounds. I address the claim that Miller was wrongly decided in part B.1 of my Brief on the Merits. I address the claim that Bucholz was wrongly decided in part C.1 of my brief. Kyle Krohn of the Office of Public Defense Services’s Appellate Division addresses the claim that Miller was wrongly decided in part II.a of his Brief of Amicus Curiae. Persons interested in seeing these briefs may contact me at [email protected]. But to preserve the claims, the essentials are as follows: 1. The text OAR 213-012-0020 says nothing about a separate-criminal-episode exception to its application. The exception exists solely because of the Supreme Court’s decision in Miller. That decision is extraconstitutional, for it inserted into the rule an exception it omits. See ORS 174.010. The rule’s context also supports a construction that there is no such exception. For example, the “single judicial proceeding” rule of former OAR 253-04-006(3); see also former OAR 253-03-001(18), which existed when the Supreme Court decided Miller, supports a construction that the rule applies when counts are permissively joined under ORS 132.560(1)(b) Continued on next page OCDLA Member Jesse Wm. Barton practices law in Salem. He is editor of Felony Sentencing in Oregon: Guidelines, Statutes, Cases. 14 The Oregon Defense Attorney SENTENCING Continued from previous page (A) and (C), not just when, as Miller held, they are mandatorily joined under ORS 132.560(1)(b)(B). Other context includes the guidelines’ economy principle and related laws. See Felony Sentencing in Oregon: Guidelines, Statutes, Cases § 1-1.4.1 (Jesse Wm. Barton ed. OCDLA 3d ed. 2012). This is because abandoning the exception would “comport[] with the policy underlying the guidelines to allocate punishment ‘within the limits of correctional resources[.]’” State v. Davis, 113 Or App 118, 121, 830 P2d 620 (1992) (quoting former OAR 253-02001(1) (now OAR 213-002-0001(1)), aff’d, 315 Or 484, 847 P2d 834 (1993). Moreover, legislative history—guidelines commentary, see Sentencing Guidelines Implementation Manual 126-28 (1989)— further supports the construction that the rule applies whenever counts are permissively joined, not just when they are mandatorily joined. Miller should be reconsidered and overruled. 2. The text of OAR 213-004-0006(2) does not explicitly authorize criminal-history reconstitution. Moreover, the rule’s context—again, the former single judicial proceeding, and the economy principle and related laws—and the rule’s legislative history—again, guidelines commentary, see Implementation Manual at 50-51; see also Supplement Sentencing Guidelines Implementation Manual 8 (1992)2—militate against allowing reconstitution. Bucholz should be reconsidered and overruled. Finally, the fact that in Cuevas the Supreme Court might decline to consider these claims should not dissuade anyone from preserving them in the lower courts. The defendant’s and the amicus briefs in Cuevas put the court on notice about the flaws in Miller and Bucholz (Miller especially). If in Cuevas the court declines to consider the claims, having them preserved in countless cases in the appellate “pipeline” might persuade the court to address the claims in later, post-Cuevas cases. Endnotes 1 Making the claims also would avoid a repeat of what happened after Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000), but before Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004). Post-Apprendi, a few of us urged trial counsel to argue that Apprendi applies to aggravating factors used in departure sentencing. Most others insisted that Apprendi applies only to dangerousoffender findings. Blakely clarified Apprendi in favor of the minority view (although the majority view was not wrong by much; after all, Blakely was a 5-4 decision). Continued on page 30 2012 Edition — INCLUDES December 2014 Update Felony Sentencing in Oregon Guidelines, Statutes, Cases Edited by Jesse Wm. Barton PDF Licenses start at $225 1–3 users • comprehensive coverage of administrative and statutory law changes • significant case law updates • overviews of must-know constitutional challenges to sentencing options • 17-page outline of major topics • Sentencing Guidelines Grid (black and white) included in PDF file • licensing available for 1–3, 4–10, 11–20, 21–30, 31–40 and 41 or more users This edition replaces all previous editions. Linked, Searchable PDF — Thoroughly linked, just click to see full text of cases. Take advantage of Acrobat Reader’s Advanced Search Function to find all instances of a case or phrase within seconds, with links to each occurrence. The PDF is fully bookmarked and printable. Hardcopy & PDF License for 1–3 users, $425 ocdla.org The Oregon Defense Attorney $275 — Hardcopy only hardcopy includes one color, laminated Sentencing Guidelines Grid 15 Order here. January/February/March 2015 JUVENILE LAW “ …in some of Oregon’s juvenile Campaign Against Indiscriminate Juvenile Shackling Comes to Oregon courts children still arrive, participate in hearings, and depart ” weighed down by handcuffs, leg irons, and belly chains. By Amy Miller I n October 2014, several juvenile attorneys from Oregon attended the National Juvenile Defender leadership summit in Louisville, KY. At the conference, members of the Western Regional Caucus (Alaska, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, and Wyoming) decided to focus on ending the practice of indiscriminate juvenile shackling during court proceedings. According to the National Juvenile Defender Center, the practice of indiscriminately shackling youth in court is problematic for a number of reasons: 1. it impedes communication between the child and his or her attorney, 2. it contravenes the rehabilitative purpose of the juvenile justice system, 3. it clouds the presumption of innocence, 4. it erodes the dignity of the court by interfering with the court’s ability to inspire confidence and affect behavior, and 5. it is humiliating and has the potential to cause harm to the normal development of youth.1 Over the past decade, there has been a national trend towards eliminating the practice of indiscriminate juvenile shackling, with ten states and numerous counties ending the practice since 2007. The Campaign Against Indiscriminate Juvenile Shackling (CAIJS), a national organizing campaign created by the NJDC and supported by several foundations, seeks to end the automatic shackling of children in delinquency court. CAIJS assists state advocates through technical assistance, by providing sample language for legislative and administrative reform, and by monitoring state and national reform efforts.2 Oregon has been an early adopter of limiting the use of juvenile shackling inside the courtroom. In State ex rel. Department of Multnomah County v. Millican, 138 Or App 142 (1995), the court considered the constitutionality of shackling juveniles during court proceedings and held that children have the same right as adult defendants to appear free from physical restraints. The court cited two factors for its decision: that shackling interferes with free consultation with counsel, and that the right to remain unshackled is consistent with the rehabilitative purposes of the juvenile justice system.3 January/February/March 2015 However, in some of Oregon’s juvenile courts children still arrive, participate in hearings, and depart weighed down by handcuffs, leg irons, and belly chains. In some cases, courts determine whether the individual child poses an immediate and serious risk of dangerous or disruptive behavior, while in others the practice of shackling is indiscriminate and routine for the majority of alleged youth offenders.4 In early 2015 with the support of CAIJS, the Office of Public Defense Services, and the Oregon Justice Resource Center, a statewide survey of shackling practices is planned as the first step in working towards the elimination of routine shackling in juvenile court. David Shapiro, the Executive Director of CAIJS, will be presenting findings and suggesting strategies at the spring OCDLA Juvenile Law Seminar April 17 and 18. In addition, the CAIJS website contains a wealth of information including affidavits from child psychiatrists and psychologists and sample motions.5 Endnotes National Juvenile Defender Center Issue Brief, Ending the Indiscriminate Shackling of Youth, http://njdc.info/wp-content/uploads/2014/10/ Shackling-HR-10.9.14.pdf. 2 See Campaign Against Indiscriminate Juvenile Shackling, http://njdc. info/campaign-against-indiscriminate-juvenile-shackling. 3 Millican,138 Or App 142 at 147. 4 In Millican, the court indicates that the right not to be shackled is not absolute. Citing to State v. Moore, 45 Or App 837 (1980), the court states that a trial judge has “the discretion to order the shackling of a defendant if there is evidence of an immediate and serious risk of dangerous or disruptive behavior.” See Millican at 146. 5 See Campaign Against Indiscriminate Juvenile Shackling, http://njdc. info/campaign-against-indiscriminate-juvenile-shackling. 1 OCDLA Member Amy Miller is Deputy General Counsel and Manager of the Parent Child Representation Program at the Office of Public Defense Services. She serves on OCDLA’s Juvenile Law Committee. 16 The Oregon Defense Attorney Juvenile Law Seminar: Tips, Tricks, and Tools to Successfully Manage the Complex Practice April 17–18, 2015 Hallmark Resort n Who can attend? OCDLA and WACDL members, other defense lawyers and those professionals and law students not involved in the prosecution function. n What’s included in the fee? • Seminar admission • Electronic material download • CLE credit • Breakfast and lunch on Saturday • Refreshments at the breaks n n n Financial assistance? Bar# / PSID# Name for Badge Address City State Phone Fax Zip Email CLE Tuition and Materials (download link emailed in advance) Early Bird (by 4/7) Standard (after 4/7) OCDLA Members Lawyer r $255 r $280 = $_____ Cancellations Non-lawyer r $160 r $185 = $_____ Cancellations made before April 10 will receive a refund less a $25 cancellation fee. Cancellations made after April 10 — once material download link has been emailed — will receive a refund less a $100 cancellation/written material fee. No-shows will have been sent written materials electronically and will be provided the audio material in MP3 format. Nonmembers Lawyer r $305 r $330 = $_____ Non-lawyer r $210 r $235 = $_____ Lodging – Call by March 16 Other Material Options r Add a CD of materials and supplements for an additional $15. r Add a hardcopy of essential materials (w/o supplements) for an additional $30. (Pre-order the hardcopy by April 10.) + $_____ + $_____ Can’t Attend? Get the audio and written materials. SAVE $: Download materials and MP3 audio following the seminar, $230, members only r Written materials (CD) & audio CDs for CLE credit, $255, members only = $_____ r Written materials (hardcopy & CD) & audio CDs for CLE credit, $285, members only = $_____ r Written materials only (hardcopy & CD), $150, no CLE credit = $_____ OCDLA Fund Donations I would like to donate $25 to the: r Scholarship Fund to assist members who would otherwise be unable to attend = $_____ r Legislative Advocacy Fund which supports OCDLA’s lobbying efforts. = $_____ r General Fund; my gift will be applied where it is most needed.= $_____ CLE Registration ocdla.org Phone: 541-686-8716 Fax: 541-686-2319 Mail: 101 East 14th Avenue Eugene, OR 97401 n Name Contact OCDLA by April 7 about scholarships, payment plans or creative payment arrangements. Hallmark Resort, Newport 541-265-2600 744 SW Elizabeth Street Make reservations by March 16. $104 Traditional 1-bed Queen $109 Traditional 2-bed Queen $129 Limited Edition King Spa Mention OCDLA to receive these special rates. No special OCDLA rates guaranteed after March 16. n Registrant Information CLE Credit for Seminar Pending approval for 7.25 general, 2.5 ethics credits in Oregon; 9 general credits in WA. OCDLA certifies that the Juvenile Law Seminar has been approved for MCLE credit by the State Bar of California in the amount of 9 hours, of which 2.5 will apply to legal ethics. OCDLA is also an approved Oregon DPSST CLE provider. The Oregon Defense Attorney OCDLA Membership Membership valid through June 2015. Bar entry 2010 to 2013 r $185 new/$245 renewing = $_____ Bar entry 2009 or earlier r $260 new/$350 renewing = $_____ Non-lawyer Professional Membership r $100 new/$135 renewing = $_____ Bar entry 2014—New Bar Admittee r $50 new only = $_____ Payment Information Payment must accompany registration. r Check enclosed r VISA/MC/AMEX/Discover Name on Card Card Number Credit Card Billing Address 17 TOTAL = $_____ Billing Zip Code Exp. Date CVC # January/February/March 2015 “ APPELLATE PERSPECTIVE It is significant that OEC 403 balancing does not touch Untying the Trial Court’s Hands upon any interest outside the adjudicatory process itself. For that reason it does not invite legislative input. Why the legislature’s elimination of OEC 403 balancing for evidence of a criminal defendant’s prior bad acts violates separation of powers ” by Kristin Carveth E vidence of a criminal defendant’s prior bad acts is notoriously prejudicial. In fact, researchers have concluded that admitting uncharged misconduct evidence essentially “strips the defendant of the presumption of innocence.”1 Unfortunately, in 1997 the Oregon legislature made that evidence easier to admit: it effectively removed OEC 403 balancing for evidence of a criminal defendant’s prior bad acts. Under OEC 404(4), evidence of a criminal defendant’s uncharged misconduct is admissible if relevant, and trial courts are prohibited from excluding that evidence based on OEC 403 considerations, like undue prejudice, unless required by the state or federal constitution.2 Although the statute still leaves the door open for an argument that due process requires OEC 403 balancing in a particular case, that argument is rarely, if ever, successful. As OEC 404(4) has been interpreted by the courts, trial courts have lost all discretion in deciding whether to admit evidence of a defendant’s prior bad acts. No longer is it permissible to exclude the evidence because it is unfairly prejudicial, confuses the issues, misleads the jury, or is simply a waste of time.3 But can the legislature do that? Does it have the power to remove a trial court’s most basic judicial function: engaging in fact-specific balancing to control the evidence presented at trial? As explained below, I suggest that it cannot. The Oregon Constitution The judicial power of the state is set forth in Amended Article VII, section 1, of the Oregon Constitution.4 Legislation can affect the courts “so long as [it] does not unduly burden or substantially interfere with the judiciary.”5 Indeed, most of the court’s activities are regulated by statute, such as Title I of the Oregon Revised Statutes and the Oregon Rules of Civil Procedure. Nevertheless, if legislation “interferes with the judiciary in a manner which prevents or obstructs the performance of its irreducible constitutional task, adjudication[,]” then that legislation violates separation of powers.6 January/February/March 2015 The Oregon Supreme Court The Oregon Supreme Court has rejected legislation that encroaches upon the judicial branch to an unconstitutional degree. For example, the court struck down a statute that permitted a party to disqualify a judge from a case for any reason (including no reason at all).7 Similarly, the court rejected a statute that limited a trial court’s contempt authority because the statute substantially destroyed the exercise of a power that was necessary to adjudication.8 OEC 404(4) likewise interferes with the independence of the judiciary. A trial court must be able to perform its constitutionally assigned tasks. Those include the power to hear facts and decide issues of law. Relatedly, a core adjudicatory function of a trial court is to control the flow of evidence through case-specific, fact-intensive weighing of probative value against unfair prejudice, confusion, and waste of time. In enacting OEC 404(4), the legislature has banned trial courts from performing that function. Now, if a trial court is confronted with relevant evidence of a defendant’s prior bad act, it has no discretion to keep that evidence out of the trial – even if the one unbiased expert in the courtroom (the trial judge) considers it to be highly inflammatory, believes it will excessively delay the trial, or is concerned it will confuse the jury. It is significant that OEC 403 balancing does not touch upon any interest outside the adjudicatory process itself. For that reason it does not invite legislative input. That stands in contrast to other evidence rules, such as those concerning privilege, that exclude probative evidence from a trial based on policy concerns. That is, a privilege affects behavior outside of the courtroom and is therefore an appropriate subject of legislation.9 Continued on next page OCDLA Member Kristin Carveth is a Deputy Public Defender, Office of Public Defense Services. 18 The Oregon Defense Attorney APPELLATE PERSPECTIVE Continued from previous page Download a CLE Historically, prior bad act evidence is an area where fact-specific weighing by an experienced trial judge has been deemed critical to a fair trial. It is in the best interests of everyone – the prosecution, the defense, the trial court, and the jury – to encourage a robust and full application of OEC 403. An argument that OEC 404(4)’s elimination of OEC 403 balancing violates separation of powers may be one way to give trial courts that discretion back. Written material & MP3 audio downloads available for these seminars: 2014 • Winter Conference: Game of Zones • Sunny Climate Seminar • Juvenile Law Training Academy • Death Penalty Seminar • Search and Seizure Seminar • Education Advocacy for Juvenile Pratitioners • Annual Conference: New Laws, New Ideas, New Strategies • Preserving the Promise of Juvenile Court: Recognizing and Mitigating Collateral Consequences • Defending the Modern DUII • Z is for Zealous: Effective Criminal Defense Advocacy Endnotes Imwinkelried, Edward J., Uncharged Misconduct Evidence, § 1.02 (2004) 2 OEC 404(4) provides, in relevant part, that “In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by: * * * to the extent required by the United States Constitution or the Oregon Constitution, [OEC 403]. 3 Specifically, OEC 403 provides that, “Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.” 4 Article VII, section 1 (amended) provides, in relevant part, “The judicial power of the state shall be vested in one supreme court and in such other courts as may from time to time be created by law. * * *” 5 Sadler v. Oregon State Bar, 275 Or 279, 285, 550 P2d 1218 (1976). 6 Circuit Court v. AFSCME, 295 Or 542, 547, 669 P2d 314 (1983). 7 State ex rel Bushman v. Vandenberg, 203 Or 326, 280 P2d 344 (1955). 8 State ex rel Oregon State Bar v. Lenske, 243 Or 477, 407 P2d 250 (1965). 9 See also OEC 407-412 (evidence of subsequent remedial measure, offers to compromise, payment of medical expenses, withdrawn guilty plea and liability insurance not admissible). 1 2013 • Winter Conference: The Evidence Code • Death Penalty Defense: The Essential Tools • Juvenile Law Training Academy • Sex Cases Seminar • Annual Conference: Celebrating Gideon • Investigation Seminar: Sources of Information: Ethically Getting What You Want • Juvenile Law Seminar: Protecting Clients, Finding Justice, Preventing Atrocities • Hard Time Made Easy: How to Win at Sentencing • Current Issues in Post-Conviction Relief Procedure & Practice LEGISLATIVE UPDATE Continued from page 12 policy on these legislative matters during the interim period and will be meeting weekly throughout the session to guide OCDLA’s legislative policy and response to every bill. It is a herculean task. The next time you see one of these members, please extend your thanks for their devotion of time and service. I can be reached at [email protected]. I’m always happy to receive your feedback, comments and stories about anything and everything, so feel free to send me an email at any time. And one last parting comment: thank you for the privilege in representing OCDLA before the legislature. It is gives me great pride and soul satisfaction to do so. Let the 2015 Session begin! The Oregon Defense Attorney Specialty Credits • Order access to justice, child abuse reporting and ethics credits online. Click above to view the seminar program and to order & download your MP3 audio/written material today. 2012 seminars also available. 19 January/February/March 2015 “ FALSE CONFESSIONS According to the Innocence Project, in cases where DNA Why Doctors Can Get It Wrong and Clients Confess has proven the defendant was actually innocent, he or she had confessed 23% of the time. ” Mark Lawrence and Dr. Robert Stanulis I t was sad when the baby girl died, but it was the best thing that could have happened for the defense. Our client was charged with murder by abuse when his girlfriend’s eight-month-old girl died on his watch. Doctors at Providence Newberg and then Doernbacher Children’s Hospital first diagnosed the child with a fractured skull and drowning. The doctors then added a fractured pelvic bone, lacerated liver, multiple broken ribs and a suspected broken arm to their diagnosis. The child lived three days but the swelling caused by her damaged brain was irreversible and death was inevitable. During those three days of life, our client confessed to the police that he had accidentally dropped the child on the kitchen counter…and then she fell on the floor. Police said that was not enough force to fracture her skull so he admitted to dropping her down the cement stairs that lead out of the house. She had aspirated water into her lungs, and the doctors thought she was unconscious when it happened because conscious babies will hold their breath. Client was told this so he admitted to tossing her 12 feet or so into a bath tub where she crashed and then slid underneath the water. Dr. Clifford Nelson conducted the autopsy. He is a bright, rather matter-of-fact guy, with airplanes and pictures of George H.W. Bush covering his walls and desk. The result of his autopsy— an autopsy being the gold standard for determining injuries and cause of death—was that the child did not suffer a fractured skull or a fractured pelvic bone and her liver was not lacerated. Her arm was not broken but she did have a bump in a rib growth plat which might have been a months-old fracture—he could not be sure. The autopsy confirmed she had aspirated water into her lungs which ultimately caused her death. Also, interestingly, she had a congenital brain defect called Chiari malformation [more on that later]. The big takeaway however, was that the autopsy proved all the injuries diagnosed by the doctors, except aspiration of water, were wrong, not true, had never happened! So, why did the doctors diagnose injuries that did not exist? And why did our client confess to causing non-existent injuries? January/February/March 2015 Why were the doctors so wrong? Our expert, board certified emergency department physician Michael White, M.D. told us that CAT scans and X-rays create an image that shows shadows of bones and flesh. Reading shadows is not a perfect science and sometimes doctors get it wrong—especially when they use the wrong tools. CAT scans are a historically poor tool to use to investigate bone fractures in babies; however, that is exactly what they did in this case so their misdiagnosis is not surprising. Doctors can and are influenced by outside factors. In this case, the police told the doctors they thought the child had been physically abused. Therefore, the doctors looked for physical abuse and that is what they found. Ambiguous scans and X-ray findings that were suspicious for injury were called “consistent with abuse” and then become a (mis)diagnosis of abuse in the form of a lacerated liver, fractured pelvic bone etc. And, because they had a preconceived belief abuse had occurred they overlook facts that were inconsistent with the injuries they diagnosed. For example, Dr. White told us that it is very hard to fracture a baby’s pelvic bone without extreme force—they practically have to fall off a roof or be in a car accident. The amount of force required to fracture the bone would cause soft tissue damage that would be readably noticeable. However, in this case, there was not a single bruise on the little girl’s body, let alone the kind of massive bruising one would see if a pelvic bone had been fractured. Apparently, the doctors did not question the lack of collateral injury that would be present in a pelvic fracture. The doctors also totally discounted the statements of our client that no one had physically injured the child. They did not give any heed to the child’s 10-year-old brother who said she was happy and smiling right up to when she stopped breathing. The doctors should Continued on next page Mark Lawrence practices law in McMinnville. Dr. Robert Stanulis is a certified forensic evaluator in Portland. 20 The Oregon Defense Attorney NEW — Juvenile Training Immersion Program April 16–17 • Hallmark Resort, Newport OCDLA is proud to offer a unique limited enrollment training opportunity for Oregon juvenile delinquency practitioners — a Juvenile Training Immersion Program (JTIP). Developed by the National Juvenile Defender Center, JTIP is meant to be the “gold standard” in training for juvenile defenders and is intended to help defenders across the country offer the highest level of advocacy for their clients. The NJDC program consists of 40 training modules or lessons, a mix of lecture and small group work. OCDLA will present two of those modules: • Competency to Stand Trial (Lesson #15) • Challenging Juvenile Sex Cases (Lesson #32) Enrollment limited to 27 juvenile delinquency practitioners (one from each judicial district). To be considered for this training, contact your supervisor or contract administrator. Deadline to register is March 2. Other questions? Call 541-686-8716, or email Tracye, [email protected]. FALSE CONFESSIONS Continued from previous page have gone through the differential diagnosis process of testing their hypothesis against contradictory statements and physical evidence. They did not do so here, likely because they were seeing what they expected to see. They also did not revise their opinions following the autopsy which is a classic example of confirmatory bias. We suggest that defense attorneys not be shy about hiring an expert, learning everything there is to know about the alleged injury in your case, how doctors are trained to diagnose that specific injury and test if they followed the diagnostic protocol, took short cuts or in any way might have erred in their diagnosis—including unwittingly engaging in confirmatory bias. Why did our client confess to causing non-existent injuries? Why might yours? According to the Innocence Project, in cases where DNA has proven the defendant was actually innocent, he or she had confessed 23% of the time. This is due in large part to the Reid-type coercive interrogation techniques which enhance the likelihood of false confessions. Police officers used the Reid technique to interrogate our client. An essential element of the coercive technique is approaching the suspect with the “fact” that the police “know” they are guilty and the only purpose of the interview/interrogation is to find out the why and how of the abuse. Police coerce confessions by minimizing the consequences of the confession and making the confession the best “rational” choice. In this case, our client was told that the doctors found that the little girl had suffered a fractured skull and the other injuries listed above. Client originally reported that no one had physically harmed the baby, but she had suddenly gone stiff and flipped backwards The Oregon Defense Attorney during her bath, submerging her head under water. He said she was only under water one or two seconds before he lifted her out. She looked scared but seemed fine after he dried her off. When he started to put her clothing on he noticed she was not breathing. The officers would not permit our client to deny he had harmed the child. Over a series of interviews, client was told police wanted to know if he was a monster who liked to torture baby girls, or was he a good guy that made a mistake. He was told it was a fact—irrefutable—that he had injured her. Our client even agreed that if she was injured, he was the only one that could have done it. And, since she was injured, the logical conclusion was that he injured her. The only question was what had he done? Given the false dichotomy of either being a monster or an otherwise good guy that made a big mistake our client chose the only rational option: to be the good guy. So began the process of the police identifying alleged injuries to the baby and our client confessing his made-up abuse stories that caused the injuries. When the police told him that his admitted conduct was not enough to cause the harm they saw, he made his stories worse to match the injuries in question. Chiari Malformation So what about the aspirated water? It turns out that Chiari malformation can cause seizures and an impaired gag reflex, which explains why the baby would suddenly flip back during her bath and inhale water. This fits the client’s original statement about what had happened. Our client was found not guilty of murder by abuse. As clear as this seems now, it was not an easy fight. Robert Stanulis, PhD, joined the team at the beginning to research, help us frame issues and to give his expert testimony. Paula Lawrence, co-counsel, did a superb job in motions. She convinced the court Continued on page 23 21 January/February/March 2015 “ ANIMAL ABUSE AND NEGLECT Unlike human cases, animals are considered property Defending Animal Abuse and Neglect Cases and, therefore, evidence in themselves. ” By Richard Stroud, DVM, MS E veryone has seen the commercials by the America Society for the Prevention of Cruelty to Animals (ASPCA) or the Humane Society (HS) appealing for donations to fight animal abuse and neglect. Television programs such as Animal Cops bring national interest to the subject. The extensive news coverage of the Michael Vick dog-fighting case also brought national attention. Defending a client against animal abuse is much like defending child abuse. The social consequences of a conviction for animal abuse or neglect may carry long term consequences beyond the initial charges. Animal Abuse So how is animal abuse or neglect defined and charged? Charges for animal abuse can include family pets as well as livestock, AND it could include activities such as over punishing a dog you are attempting to train, dog-fighting activities or even shooting the neighbor’s dog for chasing one’s livestock or threatening one’s personal safety. In one of my recent cases, a teenage defendant was charged with 32 counts of felony animal abuse for maliciously and sadistically killing cats in a metropolitan neighborhood. The charges were based on a local veterinarian’s misdiagnosis of the cause of death in several of the cats. An animal investigator provided information to national media early in the investigation, which fanned the storm of misinformation and local panic. A year and a half later, a second examination determined that the cats were actually killed by dogs, rather than the defendant. The defendant was placed under house arrest the entire senior year in high school, lost his college scholarship, and was convicted by the local and national media. After discovery of our findings, all charges were dropped. The stigma remains as this young man tries to put his life back together again. Animal Neglect Animal neglect is more often charged when the defendant is accused of not providing adequate food, water, housing or veterinary care. While neglect may be inferred based on the external physical condition of the animal, there are many subjective factors to consider when assessing the body condition of an alleged January/February/March 2015 neglected animal. These include poisons, parasites, condition of the teeth, cancer or presence of systemic disease, as well as nutritionally deficient feed purchased by the defendant. Another type of neglect occurs in animal hoarding cases which are infamous for accusations of neglect against a defendant who may be trying to give a home to an animal or save it from being euthanized at an overcrowded shelter. These cases usually involve a certain profile of a wellmeaning person who accumulates animals until his or her resources can no longer provide adequate food, veterinary care, or a clean environment. In some cases, a psychological exam of the defendant may be necessary. Animal Abuse Laws The ASPCA has a program to assist the legal community with information related to the prosecution of animal abuse and neglect. Laws are being added, changed, or upgraded by most state legislations to facilitate the prosecution of all forms of animal abuse and neglect. Recently, a special animal case prosecutor, who operates in all Oregon counties as either the main or assistant county prosecutor, has been established as a full-time position through funding provided by the Animal Legal Defense Fund (ALDF). In the effort to enforce these laws there is a lack of real forensic veterinary experience and an apparent rush to judgment based on bias or inadequate investigation. Veterinary Forensics It is important to recognize that the science of animal forensics is relatively new in veterinary medicine. Even with the emphasis by ASPCA and other organizations to inform veterinarians about animal abuse/neglect, few veterinarians are trained to do forensic necropsy/work-ups which are conducted according to accepted forensic standards. These work-ups require a significantly higher standard of evidence handling, photo-documentation, written descriptive documentation and evaluation of cause, manner and Continued on next page Richard Stroud, DVM, MS is a Veterinary Medical Examiner with International Forensic Experts. 22 The Oregon Defense Attorney ANIMAL ABUSE Continued from previous page FALSE CONFESSIONS Continued from page 21 mechanism of death than performing necropsies to determine death due to infectious disease, accident, toxin, or old age. Clinical examination and standardized documentation in the medical records of the condition of neglected animals that are still alive must also be done in a forensically acceptable manner. If a case goes to court, a forensic veterinarian is expected to be able to testify as to his/her findings in a well-documented, scientific and unbiased manner. When defending a person charged with animal abuse or neglect, one must first determine, based on the evidence available, if abuse has occurred. Likewise, the charge of animal neglect can be rather ill-defined as to what the impact of actions or in-action by the accused had on the health/well-being of the subject animal. Observations made by inexperienced, well intentioned observers may be inaccurate and medically incorrect at best, or emotionally and maliciously motivated at worst. Therefore, the evaluation of the animal by unbiased forensically trained veterinarians is essential. This evaluation may involve the clinical examination of the animal including blood and other tests for a live animal or the necropsy examination of a dead animal to determine the cause and circumstances of death. Lesions or conditions observed which support the prosecution must be properly documented. Protocols are available for guidance in the forensic examination of an animal victim. Unlike human cases, animals are considered property, and therefore, evidence in themselves. The prosecution has the obligation to preserve and protect the entire carcass of an animal or samples taken from the animal for the defense expert to re-examine if requested. The animal necropsy examination by its nature is destructive or at the very least alters the carcass. Photo documentation according to court acceptable forensic norms is essential during each stage of the necropsy examination. This allows the defense to reconstruct the findings and evaluate the conclusions which the prosecution expert has made based on the observed and documented lesions. Likewise, the condition of a live animal at the time of examination must be properly and thoroughly documented. The condition of the live animal may change with time, care and/or treatment. It is not uncommon for organizations such as ASPCA to provide support in local animal abuse cases to the prosecution. Therefore, the defense must determine the level of qualification a veterinarian has in the field of forensics prior to retaining him or her. A forensic veterinarian can be invaluable in helping the defense attorney determine if animal abuse or neglect has actually occurred and if proper forensic protocols, examinations, testing and documentation have been followed. to suppress much of our client’s confessions as not being voluntary because of the Reid-type interrogation. These are hard cases. We had the luxury of an autopsy that proved our client’s confession was false. Normally, we must convince the jury the confession is false based on psychological and circumstantial evidence. Here are a few things we have learned: Get transcripts of every statement the client has made. Your expert cannot analyze lengthy interviews without them. Hire a psychologist who is an expert on false confessions. Subpoena the offending police officer’s interrogation training materials. The older ones will likely be called the Reid Technique, while the newer ones will be called something like “Interrogation and Love—One and the Same,” but is likely substantively the Reid technique or another coercive interrogation method which causes false confessions. Challenge your client’s confession in motions—all confessions are initially deemed involuntary. Motions will educate the court for trial and possibly result in suppressing some or all of your client’s confession. Finally, think about your case, talk to experts and find a path to not guilty! DUII Listserve Recent topics of discussion — • DUII diversion and expungement • forensic opthamologist • extrapolation evidence The OCDLA members-only DUII Listserve helps practitioners discuss issues such as diversion, motions to suppress, case theories and divergent county policies and practices. To subscribe, email [email protected] with “Subscribe DUII” in the subject line To sign up, send an email to [email protected] with “Subscribe DUII Listserve” in the subject line. MARCH ONLINE SAVINGS MEMBERS ONLY During March — Save $10 when you REGISTER for the Juvenile Law Seminar online. ocdla.org The Oregon Defense Attorney 23 January/February/March 2015 VIEW FROM HERE Continued from page 5 social judgment, reduced inhibition and poor comprehension of abstraction.”2 NFL players who face criminal charges present a unique opportunity for the defense bar to raise this neurological evidence in defense. It does not excuse the behavior; rather, it explains it and may lead to a Guilty Except for Insanity argument. More importantly, it opens a societal conversation about what tools should be made available to football players to ensure that solutions, not just punishments, attend to individuals whose very profession results in significant brain injury and concomitant societally unacceptable behaviors. Law Enforcement Excessive Force Looking into the environment within which these officers exist, one again finds a neuropsychological explanation for certain behavior. However, as with football players, we should not—as society so commonly does with law enforcement—allow a walk. Rather, charges should be brought and the officer’s circumstances considered during the trial. Again, perchance a Guilty Except for Insanity resolution, based upon a founded PTSD diagnosis, becomes relevant in an individual case. More importantly, the public must reevaluate current policies and be reminded of the nature of the societal contract we have entered with law enforcement. Our Founding Fathers cautioned us with regard to law enforcement. The public needs to hear those warnings in light of recent changes to law enforcement training and behavior. Our Founding Fathers understood well the difference to be maintained between domestic law enforcement and the military, and common sense would agree. The military is trained to annihilate an enemy. The domestic police are there to keep the peace and to protect citizens’ rights under the state and federal constitutions. Law enforcement is “of the people, by the people and for the people.” They should be part of us, not against us. Yet current events seem to show a different approach. We, as defense attorneys, can easily reach into the stories of past or current clients, often veterans or those from highly abusive families, and find the explanation for sudden aggressive behaviors in neuropsychology. We know that when our military personnel come back from combat zones many, even those who have not suffered personal injury, are on high alert, perhaps diagnosed with PTSD and in a state where they believe they are in constant danger and thus likely to respond quickly or violently to a perceived threat. Similar things happen to clients. Our clients may also be suffering from PTSD due to families that were so volatile that the biological imperative of fight or flight kicks in before logic and common sense. What lends explanation—not justification, but explanation—for these two groups may also apply to law enforcement officers. If we train law enforcement similar to the military, as is happening with more and more regularity, and in a manner that causes them to expect at any moment to be shot or otherwise injured or killed, to see their end in every face they meet, are we not then creating a hyper vigilance likely to lead to unnecessarily violent reactions? But, we should still prosecute them. We should still hold them accountable. In fact, their prosecution is critical to the long term survival of a civilized society. They are to be public servants first and foremost. They work for all of us. “Of the people, by the people and for the people.” From this perspective, when they react unreasonably, violate the rights of individuals whom they are sworn to protect and serve, and we do not institute the same societal consequences of a regular citizen, we fray the fabric of our societal Continued on page 27 GETTING EXPERT WITNESS TRANSCRIPTS on the Library of Defense There are two ways you can provide transcripts for the Expert Rooms of the library: 1. Email transcripts of any expert testimony to Alex Bassos, [email protected]. 2. When using the OPDS Direct Criminal Appellate Referral Form, under the “Additional Information” section, make sure you complete the fourth box where you are prompted, “If expert witnesses were called, please enter their name(s), organizations, etc...”. When you complete this box, OPDS staff will be notified that an expert transcript is involved. When the transcript eventually arrives at their office, OPDS will then provide it to Alex Bassos to be posted in the Expert Rooms. Imagine how much better your cross (or direct) of an expert would be if you were able to read and utilize what the expert previously said under oath. Log in to libraryofdefense.ocdla.org today. January/February/March 2015 24 The Oregon Defense Attorney STAY IN THE DAILY LOOP — Library of Defense “Trial yesterday (not guilty), motion to suppress today (granted), both thanks to the Library of Defense. It is a wonderful resource and a real asset to the defense community. Thanks!” — Brian Starns, OCDLA Member in Hood River Legal Collections • Expert Rooms Local Pages • Ryan Scott Case Reviews • Blog Updated Regularly With New Content Editable by You Log in to libraryofdefense.ocdla.org today. DUII Trial Notebook with Resource Guide 2014 edition Edited by Bruce Tarbox “Three books are better than one.” Streamlined Notebook Sleeker, lighter, still filled with tips/case law. NEW Resource Guide Two volumes packed with references. 2014 Edition Available Now The Oregon Defense Attorney 25 ocdla.org January/February/March 2015 BEAUTIFUL WORDS State v. Jeremy Cox by Susan Elizabeth Reese Case: State v. Jeremy Cox Court: Multnomah County Circuit Court Defense Attorney: Bear Wilner-Nugent Prosecutor: DDA Charles R. Mickley, Jr. Judge: The Honorable Ed Jones Defense Expert: Dr. Wendy Bourg Defense Investigator: Tim Russell Defense Legal Assistants: Jeff Price and Crystal Maloney Trial Dates: December 1–5, 2014 Charges: Sodomy in the first degree, sexual abuse in the first degree [two counts] Verdict: Not guilty on all counts S ixteen-year-old Jeremy Cox remained with his mother after his parents divorced in Anchorage, Alaska. His mother, Jennifer, later married Curt Evans, and they had two children, Lucas and Lily. Jeremy’s step-siblings were, respectively, six and four in the summer of 2013.1 Jennifer and Curt had a difficult relationship. Sometime in 2012 Jennifer left Curt, moving to Portland with her new boyfriend, Martin West.2 She shared custody of Lucas and Lily with Curt, who remained in Anchorage. The acrimony between them was so strong that Curt chose to communicate about the children only through text messages. When Jennifer and Curt separated, Jeremy first stayed with Curt, but by 2013 he was living in Anchorage with his father, David. That summer, Jeremy came down from Anchorage to visit his mother and Martin, staying with Jennifer in her tiny apartment for four months. Lucas and Lily also came down from Alaska to spend a month with their mom. While Jennifer was at work, Jeremy was left with the responsibility of caring for the two younger children. At the end of July, Curt flew to Portland to pick up his two children. In response to an offhand question about how the visit had gone, Lucas remarked to Curt that Jeremy had abused him “all summer.” Lucas supposedly claimed that Jeremy had “put my mouth on his ‘peanut’” and “makes his ‘peanuts’ explode.” Still at the Portland airport, Curt immediately sent a text message to Jennifer, saying that there was “a problem.” Jennifer spoke with Jeremy about Lucas’ complaint. He assured his mother that nothing improper had occurred, and she believed him. In Anchorage three days later, however, Curt reported the incident to police. Officers took Lucas to the Anchorage version of a January/February/March 2015 CARES3 facility at that city’s Providence Hospital. There, Detective Jim Trull, who had received one week of training in the evaluation of child abuse complaints, conducted a forensic interview with Lucas. The medical professionals watched his questioning from behind a glass window. Officers interviewed Jeremy in August 2013, after he returned to Alaska. They recorded the interaction with audio and video equipment. Jeremy vigorously denied doing any of the acts that Lucas had alleged against him. The investigation languished for ten months; presumably during that time the two jurisdictions were exchanging information and pondering the proper forum. Meanwhile, Jeremy moved to Portland to live with his mother and complete the 2013–2014 school year at a Portland high school. Learning of his indictment, he appeared voluntarily for arraignment on June 6, 2014. There, Portland police arrested him. Jeremy was then 17 years old. The state charged him with the offenses of sodomy and sexual abuse. Under Measure 11, he faced mandatory minimum sentences on each count if he were convicted. Unable to post the excessive funds required for release on security, Jeremy remained in custody for six months.4 When Bear Wilner-Nugent and his team jumped in to Jeremy’s defense, they faced a deputy district attorney bent on conviction. In addition to pursuing an investigation which ranged from Portland to Anchorage, they thoroughly prepared and vigorously defended against numerous motions in limine. The most difficult of these motions was the state’s effort to exclude Dr. Wendy Bourg’s testimony about the CARES-type interview, but the defense team prevailed. In addition, the defense short-circuited the state’s attempt to get judicial permission for a “fishing expedition” into Jeremy’s juvenile drug treatment records from a couple of years earlier. At trial, the state called the police officers from Portland and Alaska. Lucas testified against his stepbrother. Curt described what Lucas had told him about his allegations against Jeremy. Continued on next page OCDLA Member Susan Elizabeth Reese practices law in Portland. She serves on OCDLA’s Education Committee. OCDLA Member Bear Wilner-Nugent practices law in Portland. 26 The Oregon Defense Attorney BEAUTIFUL WORDS Continued from previous page VIEW FROM HERE Continued from page 24 During the defense case, each of Jeremy’s parents testified on his behalf. Jeremy took the stand in his own defense and firmly denied all the charges. After surviving the prosecution’s efforts to prevent her testimony, Dr Wendy Bourg took apart the Anchorage “CARES” evaluation. She describe the proper investigative protocols endorsed by her profession. She explained to the jury why trained evaluators, rather than police officers, should conduct forensic evaluations when young children make complaints of abuse. After a difficult four-day trial, Jeremy’s jury brought him Beautiful Words on all counts. Three weeks before Christmas, he got his life back — at last. He is now back in school, working toward his high school diploma. I know I preach to the choir here, but I truly believe as defense attorneys we see things differently. We can reach out as the storytellers we are and wrap the lessons of the past, e.g., our Founding Fathers’ messages, with the knowledge of today, and move society to reach better justice than we have in the past. Football players are iconic heroes for many; they provide entertainment and sometimes suffer a cost, an oft irreparable physical cost. Law enforcement officers are public servants sworn to uphold our societal contract, yet we have dropped the proverbial ball and allowed them to be militarized, separated from us. They suffer a psychological cost. When individuals in either group falter, err, or commit crimes, society’s conscience and heart are damaged. Both should be held equally accountable for the error of their ways, both extended empathy, but neither let free of their societal responsibility. This is, again, especially true of law enforcement. We must ensure the public is not afraid to check the powers of the government to which we dedicate the preservation of our liberties. Endnotes At defense counsel’s request, all the parties’ names are pseudonyms. This is also a pseudonym. 3 Oregon’s Child Abuse Response and Evaluation Service, which ostensibly performs assessments of child abuse complaints in a neutral setting with trained personnel. 4 Defense attorney Wilner-Nugent was unsuccessful in securing a reduction of the security amount required. One day after his 18th birthday in October, Jeremy was transferred from the Donald E. Long juvenile facility to MCDC, the Multnomah County Detention Center. There, he was held with adult prisoners awaiting trial or serving short sentences. 1 2 Endnotes Susan E. McPherson & Jeffrey L. Cummings, “The Neuropsychology of the Frontal Lobes in Disorders of Brain and Mind,” 11, 13, 19 (Maria A. Ron & Anthony S. David eds., 1998). 2 The Neuroscience on the Web Series: CMSD 636 Neuropathologies of Language and Cognition, CSU, Chico, Patrick McCaffrey, Ph.D. 1 OCDLA’s Search and Seizure Manual 2014 Edition Legal scholar Ryan Scott has put together a team to completely revamp the manual – newly organized to be user-friendly, provide scores of practice tips and better help you focus your research. Editors include: Morgen Daniels, Paul De Muniz, Alice Newlin-Cushing, and David Sherbo-Huggins. Topics include: • What constitutes a seizure? What constitutes a search? • Motions to Suppress/Motions to Controvert • Exceptions to the Warrant Requirement • Inventories: the search that isn’t a search • Suppressing Statements • Trial judge declares the search/seizure is illegal. Don’t celebrate yet. • Perfecting the Issues for Appeal PDF Licenses start at $175 Hardcopy & PDF License for 1–3 users, $350 (hardcopy only, $225) OREGON CRIMINAL DEFENSE LAWYERS ASSOCIATION, ocdla.org The Oregon Defense Attorney 27 ORDER NOW. January/February/March 2015 REESE’S PIECES In the Matter of D.E. by Susan Elizabeth Reese Case: In the Matter of D.E. Court: Grant County Circuit Court Judge: Sr. Judge J. Burdette Pratt (Malheur County) Defense Attorneys: Katherine Osborn Berger, John Lamborn; assisted by DeAnna Horne and Angela Sherbo Prosecutors: Ryan Joslin, Grant County DA, O. Scott Jackson, Assistant Attorney General (later replaced by Daniel Wendel) Defense Investigators: Randy Lapp, with mitigation specialist Rita Lapp Trial Dates: Hearing on state’s motion to waive case from juvenile to adult court held September 8–11 and September 15–17, 2014. Adjudication December 17, 2014 Charges: Aggravated Murder (two counts) Disposition: Admission to two counts of manslaughter in the first degree with jurisdiction remaining in juvenile court D .E., described by KO Berger as “a sweet kid,” was severely abused as a child. He was placed in DHS custody when he was five or six years old. He suffered from severe behavioral and mental health issues, including impulsivity and developmental delays. He had symptoms of a possible bipolar diagnosis and fell within the descriptions of the autism spectrum. Significantly, he had a lifetime history of being petrified of the dark. D.E. was placed at Jasper Mountain and eventually moved into one of the Jasper Mountain foster homes. He bonded with foster parents John and Diane Poet after being placed in their home in rural Lane County. D.E. referred to them as “Mom and Dad,” and the Poets wanted him to remain with them. Unfortunately, D.E. became suicidal and appeared to need a higher level of care than the Poets could provide. As a result, DHS then placed him at the Parry Center. The Poets remained in contact with D.E., visiting him regularly. D.E. wanted to go back to their home, and they wanted him to return when he was able to leave the Parry Center. When Jasper Mountain was reluctant to have D.E. placed in one of their foster homes, through which the Poets would have received the placement, the Poets worked on getting certified through DHS. DHS balked at returning D.E. to the Poets, claiming it would be too expensive, so the Poets offered to take D.E. without payment. Another experienced therapeutic foster home, people who knew D.E. and had previously been a respite provider for him, also came forward and offered to have D.E. placed in their home. January/February/March 2015 Inexplicably, DHS decided to place D.E. in a completely different foster home, that of Michael and Carlotta Piete in Baker City.1 The Pietes had been trained as “therapeutic” foster parents, and after meeting D.E. once through a Skype connection, they picked him up for the move to their home southeast of Baker City. Michael Piete’s older uncle, Kenneth “KC” Gilliland, lived on the property with the Pietes, D.E. and another foster child. The evidence showed that D.E. liked KC and that he had a good relationship with Mike Piete. Both men had been nice to D.E. For the first time in his life, D.E. would now attend a public school. His prior schooling always occurred through whatever residential treatment program he was in. But in the fall of 2013, 14-year-old D.E. began a full-time course in high school. Not surprisingly, his explosive outbursts led school officials to suspend him shortly after the term began. That fall, Mike and KC planned a hunting trip with friends in a remote cabin near Granite, in northeastern Grant County. Rather than trying to place D.E. with someone else during the trip, the men decided they would take him along. They had some discussion about D.E. performing chores as a sort of punishment for his misbehavior and suspension from school. DHS had warned the Pietes that, because of his impulsivity and immaturity, D.E. should never be around loaded guns, and he should not be permitted to hunt. Nevertheless, D.E. joined Mike, KC, KC’s brother Bill Gilliland, and a friend, Dennis Glerup, at the hunting cabin. What occurred in the middle of the night on October 2, 2013, was never entirely clear. D.E. and the men had fallen asleep. Around midnight, D.E. awoke and he and KC reportedly went outside to relieve themselves. D.E. had heard that there were wolves in the area, so he grabbed one of the numerous guns from the cabin, a loaded .44 Magnum revolver. D.E. said more than once after the incident that he saw “glowing eyes” in the darkness. He was terrified. He “fired into the Continued on next page OCDLA Member Susan Elizabeth Reese practices law in Portland. She serves on OCDLA’s Education Committee. OCDLA Member Katherine Berger practices law in Portland. She serves on the Legislative and Juvenile Committees. OCDLA Member John Lamborn practices law in Burns. He serves on the Drug Policy Committee. OCDLA Member DeAnna Horne is with Metropolitan Public Defenders, Portland. She is co-chair of the Legislative Committee. OCDLA Member Angela Sherbo is with Youth, Rights & Justice, Attorneys at Law, Portland. She serves on the Juvenile Law Committee. 28 The Oregon Defense Attorney REESE’S PIECES Continued from previous page darkness.” He hit KC, killing him. D.E. ran back to the cabin, even more terrified. He heard the other men yelling at him. According to D.E., when he ran back into the cabin he feared the other men were going to shoot him so he fired wildly toward the upstairs loft in which the others were sleeping. One of the bullets went through a bookcase, hitting Mike Piete in the abdomen and then lodging in the wall. D.E. then grabbed a rifle and ran out the door. Outside in the darkness again he fell, shooting himself in the leg with the pistol. Using the rifle as a crutch, he wobbled back to the cabin with the intent to surrender to the others. By this time, Bill Gilliland had begun the thirty-mile drive to Granite to call emergency responders and police, leaving Dennis Glerup alone at the cabin. When D.E. came back to the cabin, Dennis Glerup subdued D.E. and eventually duct-taped him to a chair. Michael Piete had bled to death by the time detectives arrived. They took D.E. to a Boise hospital where they interviewed him. At some point, attorney Tony Griffin, whose partner, Kat Griffin had represented D.E. in his dependency case in Douglas County, received a phone call notifying him that D.E. had been arrested. Tony contacted Mark Rader in Ontario, and Mark met D.E. at Saint Alphonsus Hospital in Boise. District Attorney Joslin quickly filed a petition in juvenile court charging D.E. with two counts of aggravated murder. He brought in Scott Jackson from the Department of Justice to assist him. He then filed a motion to disqualify Grant County Circuit Judge William Cramer.2 As allowed by law, Judge Patricia Sullivan granted the motion, and Judge Pratt was appointed to handle the case. Early in the proceedings, Jackson approached Berger, by then appointed to represent D.E., to ask whether she would agree to a waiver of her client from juvenile court to be tried as an adult. The waiver issue, of course, was the pivotal legal issue in the case. ORS 419C.352 allows a youngster under 15 to be prosecuted as an adult under certain circumstances, one of which is a charge of aggravated murder. If D.E. was tried in adult court, he would face a potential life sentence with a thirty-year minimum. KO Berger refused to consider the state’s suggestion. The prosecution’s theory was that D.E. had intentionally shot the two men. They claimed that D.E. knew he was in trouble for being suspended from school. They asserted he was angry about plans for Carlotta Piete to come take D.E. back from the hunting trip. Dennis Glerup, when later interviewed by police, even asserted that D.E. was “a genius” who had planned the attack all along. ORS 419C.349 allows the juvenile court to waive a youth from juvenile court to a circuit court for prosecution as an adult, if, among other factors, the youngster, “at the time of the alleged offense was of sufficient sophistication and maturity to appreciate the nature and quality of the conduct involved.” The court must also consider various criteria and then determine by a preponderance of the evidence whether retaining jurisdiction would serve the best interest of the youth or society and be justified. The Oregon Defense Attorney The defense engaged two experts: neuropsychologist Dr. Craig Beaver from Boise, and Dr. David Fassler, a child psychiatrist from Burlington, Vermont. After extensive evaluations, both doctors concluded that D.E. lacked sufficient maturity to appreciate the nature of the events and his conduct. Dr. Fassler documented the effects of abuse, neglect, and exposure to domestic violence on the development of the adolescent brain. He noted that as D.E. matured and grew older he was getting better at managing his behavior. Right after Memorial Day of 2014, the parties participated with Senior Judge Charles Luukinen in a settlement conference. To the judge’s consternation, the state had neither prepared for nor planned to discuss the issue of waiver. Both Mr. Joslin and Mr. Jackson believed that the issue easily would be resolved in the state’s favor at a hearing. Judge Luukinen, frustrated by the prosecutors’ refusal to address this pivotal issue, strongly encouraged the state to get its own doctor to evaluate D.E.3 Eventually the prosecution retained Dr. Eric Johnson, who read all of the reports, analyzed all of the information concerning D.E.’s background, examined each of the defense evaluations, and performed his own evaluation of D.E. He concluded, “I cannot discount the incident being an accident.” Dr. Johnson also found that D.E. lacked the necessary sophistication and maturity to appreciate the nature of his conduct. Dr. Johnson did, however, caution that if “new information,” such as evidence of D.E.’s intent or premeditation surfaces, he might change his opinion. The case then moved to the waiver hearing, which could only occur Monday through Thursday because of limits on transportation and the hours D.E. could be held in the Grant County Courthouse. D.E.’s level of maturity was a significant issue at the hearing. ORS 161.290 provides that the state may not prosecute a criminal defendant under 12 in circuit court, for such youngsters can not be held responsible for criminal conduct. Neither the statute nor case law provides a definition of “sufficient maturity” apart from chronological age. D.E.’s school performance records showed him to be significantly less mature than his peers at virtually every age group. Psychological testing placed him in the 9–11 age range. All three doctors agreed, however, that as D.E. matured and his brain developed he would be able to function appropriately in the community and that he was a very low risk to reoffend. Evidence also established that D.E. was sensitive, liked to draw, enjoyed the outdoors, and liked dragons. He was interested in science, but because he couldn’t keep his behavior under control he had difficulty paying attention in science classes. The evidence pointed to positive benefits for D.E. if he remained within the jurisdiction of the Oregon Youth Authority until age 25—the consequence of an adjudication within the juvenile court. Ironically, positive things happened to D.E. while he was in custody at the Northern Oregon Regional Corrections juvenile facility where he lived after the shootings. The head of the facility Continued on next page 29 January/February/March 2015 REESE’S PIECES Continued from previous page testified for the defense about D.E.’s performance there. Phil Brady, a teacher in the center, had bonded with D.E. and inspired him to be interested in learning. The defense team helped D.E. have contact with his adopted siblings as well as each of his biological parents. His father was particularly appropriate in his contact with D.E. and looked forward to personal meetings with the youngster when he was released from prison himself later in the year. Both John and Diane Poet continued their support for D.E., visiting him monthly, appearing on his behalf at the settlement conference and attending most of the waiver proceedings. At the conclusion of the two weeks of hearings, Judge Pratt found that D.E. lacked the required “sophistication and maturity” to be found responsible under the law, and he ordered the case retained in the juvenile system. He continued to handle it, and a trial date was set for March, 2015. Settlement negotiations continued. By mid-December the state agreed to the offer D.E.’s attorneys had been extending since January, 2014: D.E. would admit acts constituting two counts of manslaughter in the first degree if committed by an adult, he would remain within the jurisdiction of the juvenile court, and this jurisdiction would continue until he reaches the age of 25. On December 17, 2014, D.E. admitted the necessary factual basis for the court’s finding. Jurisdiction was affirmed, and the case concluded with the just result that could have occurred many months earlier. D.E.’s hard working team had, finally, banished the shadow of a life sentence across his path. O D L A O N L I N E M E M B E R S O N LY Save $10 During March when you register for the Juvenile Law Seminar online. Library of Defense Instantly access, from any device, all the cases, creative arguments and resources you need to make the best possible case for your client. Library of Defense. Endnotes Because of the events which followed, relatives of the victims have filed tort claim notices indicating an intention to sue DHS and other agencies involved with planning and placement for D.E. The notices, and the resulting involvement of lawyers for the civil claims, added a layer of complexity and clutter to the already difficult tasks for the defense team for D.E. 2 Joslin had been the prosecutor who charged residential care facility owners Vanessa Holmstrom and Thomas Houpt III with manslaughter and other crimes earlier in 2013. In that case, Judge Cramer granted a defense motion for judgment of acquittal at the end of the state’s presentation. That case is profiled in the November/December 2013 issue of The Oregon Defense Attorney. 3 In August, Assistant Attorney General Wendel finally contacted defense counsel to ask her “authority” for such an evaluation. 1 Capital Defender Listserve Updates, tips and encouragement for capital defenders. Capital Defender Listserve Info. DUII Listserve Share ideas, connect, exchange information about DUII law — fast. Email [email protected] to join. Juvenile Law Listserve Share ideas, connect, exchange information about juvenile law — fast. Email [email protected] to join. SENTENCING Continued from page 15 Because so few defense attorneys acted on the minority view, when the Court decided Blakely fewer than 10 cases were pending on appeal with preserved Apprendi claims. The Court of Appeals ordered resentencings for all of those defendants. It also ordered resentencings for the handful of other defendants with unpreserved Apprendi claims who were convicted by jury trials. But ultimately, the court ordered no relief for the hundreds of other defendants with unpreserved Apprendi claims who were convicted by bench trials or by guilty or no-contest pleas. 2 Owing to its date of issuance, the Supplement Implementation Manual’s commentary may not qualify as legislative history. But even then, it should be given deference. See Don’t Waste Oregon Comm. v. Energy Facility Siting Council, 320 Or 132, 142, 881 P2d 119 (1994). January/February/March 2015 C Pond Listserve Expert referrals, shared tips and insights, motions and case law — fast. Pond info. Job Search Find a job. 30 ocdla.org The Oregon Defense Attorney 2015 Annual Conference LODGING June 18–20 • Mt. BAchelor Village Call 1-877-394-8966. Looking for an expert referral? Has a client ever intimated suicide in your office? Ask the Pond! for all this & more, Swim in the Pond! 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Spinney, Springfield David Stanley, Ashland Marc Sussman, Portland David L. Swanson, Corvallis Bruce Tower, Winchester Dave T. Viuhkola, Milwaukie Larry B. Workman, Medford Doug Yerke, West Linn The Oregon Defense Attorney Classified Ads Deadlines are the same as publication deadlines. Call OCDLA at 541-686-8716 for information. Members (up to 100 words, 3x/year). . . . . . . . . . FreeNon-members. . . . . . . . . . . . . . . . . . . . . . . 25¢/word THE OREGON CRIMINAL DEFENSE LAWYERS ASSOCIATION has a nice office available for rent. Located at the new OCDLA home in Eugene, and only blocks from the Lane County Courthouse, the office offers its own private bathroom, high street visibility, large meeting space, high speed internet, utilities, use of kitchen, high end copier/scanner and private parking all for only $625/month. Optional assistant work space is also available. Use of high speed copier and scanner for a nominal cost. Contact OCDLA for a tour and more information: (541) 686-8716 or [email protected]. EDIE ROGOWAY is pleased to announce the opening of Rogoway Law. Her practice will continue to focus on criminal defense, personal injury, employment law and civil rights litigation. Edie is losing the ridiculously long last name (Van Ness) but not the husband. She can be reached at 503.334.0331 or [email protected]. RESEARCH AND TRIAL PREP Inactive lawyer with seven years experience available for research, drafting, witness interviews, and trial preparation. $65 per hour. Negotiable rates for public defense cases. Contact Glenda Harter at glenda.harter@ yahoo.com. www.documentexaminer.info DOWNTOWN EUGENE OFFICES (some with secretarial stations) available for lease in friendly, professional, beautiful, busy law office. On-street and lot parking, close proximity to municipal, state, federal, and bankruptcy courthouses, the jail, all city/county offices, and all downtown amenities. Tasteful offices include full reception services, telephone system, voice-mail, ADSL access, use of 3 conference rooms, break room (with shower), and two work rooms equipped with multiple copiers/imagers, facsimile machines, postage meter, shredder, and related equipment, access to lots of printed material/resources and abundant work areas. For more information, contact OCDLA Member Brian Cox at (541) 683-7151 or at [email protected]. Sunriver Resort Rentals. Sleeps 2–8, hot tubs, bikes. Call Rush Hoag, (541) 344-4125, 1-800-659-2761, www.rush2sunriver.com. Join or Renew Today Memberships are valid through June 2014. Join or renew online. OCDLA is a 501(c)(3) tax exempt organization. The OCDLA–PAC is a separate entity. Call us at (541) 686-8716. DUES Life Member $5000/one-time fee Sustaining Member $550/yr New Bar Admittee (2014)$50/first yr Regular (Bar#2010–2013) $245/yr Regular (Bar#up to 2009)$350/yr Professional Nonlawyer$135/yr Law Library$135/yr Law Student$10/yr Add a PAC Contribution$______ SUSTAINING MEMBERSHIP includes free PDF of written material, upon request, of the September seminar, Winter Conference, March seminar and April Juvenile Law Seminar. FORENSIC DOCUMENT EXAMINER Full service laboratory to resolve questioned handwriting, inks, indentations, etc. Twenty-fiveyears experience. Board certified. Government trained. Contact Jim Green, (541) 485-0832, The Oregon Defense Attorney Strength in Numbers Visit ocdla.org for complete membership benefits. 35 January/February/March 2015 Oregon Criminal Defense Lawyers Association 101 East 14th Avenue Eugene, OR 97401 DEFENSES: Playing Offense valley river inn march 6-7, 2015 self defense entrapment white collar mental health settlement conferences defending adolescent behavior cross-examining the psychologist divorce/custody battles and sex abuse defense Featured Speakers Alex Bassos • Kathie Berger • Marty Beyer, PhD • Andrew Coit • Mark Costello Geoff Gokey • Brad Kalbaugh • Wilson Kenney, PhD • Sr. Judge Charles Luukinen Kendra Matthews • Justin Rosas valley river inn: Register online, www.ocdla.org. 1-800-543-8266 Call now to reserve your room at OCDLA’s special seminar rate of just $99 a night! Rates available through February 12, 2015.