Download The Oregon Defense Attorney - Oregon Criminal Defense Lawyers

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
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©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
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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
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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
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November 8–12, 2015
• per person, double occupancy
• roundtrip from Portland, other
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Add extra days to the package for even
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Hotel & travel package is open to all
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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
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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?
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Phone
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CLE Tuition and Materials (download link emailed in advance)
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will receive a refund less a $25
cancellation fee. Cancellations
made after April 10 — once
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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.
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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
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$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
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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!
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to suppress, case theories and divergent county policies
and practices. To subscribe, email [email protected] with
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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
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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
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Local Pages • Ryan Scott
Case Reviews • Blog
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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
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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
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A
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N
L
I
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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
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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
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Pond Listserve
Expert referrals, shared tips and insights,
motions and case law — fast. Pond info.
Job Search
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ONLINE JOB SEARCH
Library of Defense
MOTION
BANK
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need:
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HOW YOU CAN
HELP —
Add your own useful motions to the Motion Bank
page, https://libraryofdefense.ocdla.org/Motion_
Bank, or email your motions
to Alex Basos, abassos@
mpdlaw.com.
Don’t see what you are looking
for? Put a note under “Motions
We Still Need” at the bottom
of the Motion Bank page. Hint:
click the Edit button.
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The Oregon Defense Attorney
31
January/February/March 2015
THANK YOU
Donors Make the Difference
Thank you to all of our donors. Below are those who contributed to OCDLA during the past 12 months.*
SCHOLARSHIP FUND
L E G I S L AT I V E A DVO C A C Y
Up to $6000
Over $1000
American Bar Association
Up to $2500
Steven H. Gorham
Up to $1000
James W. Gardner
Up to $500
Jesse Wm. Barton
Kathleen Correll
Ken Kahn
David T. McDonald
James G. Rice
Up to $250
Peter J. Carini
Ann S. Christian
Nancy J. Cozine
Adam Greenman
Jacqueline A. Joseph
Karpstein & Verhulst
PC
James D. Lang
Lisa Ludwig
Laura Fine Moro
John Potter
Laurie Shertz
David M. Veverka
Up to $100
Katherine O. Berger
Leland R. Berger
Alan H. Biedermann
Bernard A. Brown
Rhonda L. Coats
Alice D. Ellis Gaut
Timothy J. Felling
Victor J. Hoffer
Steven L. Krasik
Christopher A. Larsen
Rosalind Manson Lee
Tess A. McMahill
Robert S. Raschio
Susan Elizabeth Reese
Alene & Shannon
Sybrant
Suzanne K. Taylor
Clayton M. Tullos
Steven R. Walls
Brian Zanotelli
Up to $25
Duane J. McCabe
David T. McDonald
James A. Arneson
Paul E. Aubry
David J. Celuch
Jesse Coggins
Jeni Feinberg
Mark A. Heslinga
Amit Kapoor
Gordon K. Mallon
Duane J. McCabe
Shaun S. McCrea
Mark Rader
David L. Rich
Up to $1000
Photo by Geoffrey Squier Silver.
Up to $250
Forrest Reid
Sara Snyder
Jon G. Springer
Philip W. Studenberg
Olcott Thompson
Heidi J. Van Kirk
Owyhee Weikel-
Magden
Larry B. Workman
Amy M. Baggio
Emilio F. Bandiero
Whitney P. Boise
C. Lane Borg
Anthony Bornstein
Anne Clark
Sara J. Collins
James Comstock
Jeffrey A. Cone
Jennifer Root
Mike & Debbie Rouse
Robert M. Schrank
Alene & Shannon Sybrant
James D. Hennings
John H. Hingson III
Shaun S. McCrea
John Potter
Up to $500
James A. Arneson
Katherine O. Berger
Alice D. Ellis Gaut
Steven H. Gorham
Justin Martin
Jennifer I. Nash & Nicolas Ortiz PC
EveLyn A. Oldenkamp
Richard L. Wolf
Terri Wood
GENERAL FUND
Up to $6750
Up to $500
Up to $100
Roscoe C. Nelson
Edward A. Kroll
Michael R. Levine
Jason Short
Oregon State Bar
James A. Arneson
David M. Audet
Thomas J. Crabtree
Tom Cronkrite
Karen Edmonds
Pamela Gray
John H. Hingson III
Robert C. Homan
Steven L. Krasik
Thomas Purtell
Edie M. Rogoway
Up to $2000
Children’s Justice Act Task Force
Up to $1000
Steven H. Gorham
Up to $250
Chris Hansen
John Potter
Keith B. Rogers
Michael G. Romano
Bruce Tarbox
John H. Tuthill
January/February/March 2015
David A. Corden
Robert D. Corl
Ellen Feibleman
Peter Glade
Laura Graser
Adam Greenman
Cynthia S. Hamilton
Lisa Hay
Joanna L. Jaspers
Edward A. Kroll
John B. Lamborn
James D. Lang
Paul E. Levy
Lisa J. Ludwig
Susan F. Mandiberg
Matthew G. McHenry
Gail L. Meyer
Danielle O’Brien
Per C. Olson
Beverlee Potter
Scott Reichlin
Laurie Shertz
Suzanne K. Taylor
Elizabeth N. Wakefield
Steven T. Wax
Up to $100
David M. Audet
Gayle Bachik
Nancy Cozine
Kathleen E. Dunn
Patrick J. Ehlers
Dean F. Gushwa
Tiffany A. Harris
David L. Rich
Philip W. Studenberg
Larry B. Workman
Robert C. Homan
Megan L. Jacquot
Robert Kaiser
Steven L. Krasik
Ernest G. Lannet
Kenneth Lerner
Philip A. Lewis
Denny Maison
Richard L. McBreen
Ruben Medina
Karen Mockrin
Robert S. Raschio
Stacey M. Reding
Thalia Sady
Laura Salerno-Owens
Mary A. Sell
Tom Sermak
Mary Shannon Storey
Bobbin Singh
Betsy Tennenbaum
Neal Weingart
Shawn E. Wiley
Up to $25
Lori A. G. Hellis
Patricia Jaqua
Kate Marshall
Marion Miller
Lynne B. Morgan
Susan Elizabeth Reese
Philip W. Studenberg
Owyhee Weikel-
Magden
Larry B. Workman
Brian Zanotelli
*Updated through
February 17, 2015.
View donors online.
Up to $25
Alice D. Ellis Gaut
Patricia Jaqua
Amity Kapoor
Randy Perkins
32
The Oregon Defense Attorney
BUILDING FUND
(Donations and Pledges)
Visionary
$50,000+
Roscoe C. Nelson, Jr.
Leader
$20,000+
Lisa Maxfield &
Kristen Winemiller
Defender
$10,000+
Richard A. Cremer
Chris & Suzanna Hansen
Klamath Defender Services, Inc.
Gordon Mallon
Lawyer, P.C.
David McDonald
John & Beverlee Potter
Mary Potter
Susan Elizabeth Reese & John Painter, Jr.
Steven J. Sherlag
Law Office of Terri Wood, P.C.
Anonymous
Supporter
Guardian
$7,500+
Creighton & Rose, P.C.
Jim Hennings
Law Office of Robert Raschio
McCrea P.C.
Pacesetter
$5,000+
Angeli Ungar Law Group
Kelly R. Beckley
Cow Creek Band of Umpqua Tribe of Indians
Paul J. De Muniz
Ferder Casebeer
French &
Thompson, LLC
Hoevet Boise Olson Howes
Edward A. Kroll
John B. Lamborn,
Attorney at Law, P.C.
Phillip Margolin
Anne & Dave O’Brien
Partner
$2,500+
David Audet
Lane Borg
Duvall Law Office, P.C.
Braulio Escobar
Greg Hazarabedian
John Henry Hingson, III
Megan L. Jacquot
Peter A. Ozanne
Robert Schrank
Spence & Sabitt, LLP
Karen Stenard
David G. Terry
Walter J. Todd
John Tyner
William Uhle
Campaign Supporter
Associate
$1,000+
Fred W. Anderson
James A. Arneson
Ann S. Christian
Thomas Crabtree
Daniel A. Cross
Steven H. Gorham
Cynthia Hamilton
DeAnna M. Horne
Bronson James
Eric Johansen
Riley P. Jones
Scott & Barbara Jones
Gregory A. Karpstein
Dr. Richard Kolbell
The Oregon Defense Attorney
Paul Levy & Judy Jewell
Lisa J. Ludwig
Max Mizejewski
Herbert A. Putney
Kelly W. Ravassipour
Ross M. Shepard
Alene & Shannon Sybrant
Bob Thuemmel
Greg Veralrud
Cate Wollam & Aaron
Greenberg
How to Help
You may send a check in the mail, donate online, or
contact our office at 541-686-8716 or [email protected].
Scholarship Fund Assists members who otherwise
would not be able to attend OCDLA seminars.
Supporter
$500+
Joe Conyard
Jenny Cooke
Alice D. Ellis Gaut
Guy Greco
Adam Greenman
David A. Hill
Chris L. Lillegard
Tracye May
Keith B. Rogers
Jennifer Root
Geoffrey S. Silver
Oregon Association of Licensed
Investigators
Tonkon Fund at the Oregon Community
Foundation
Legislative Advocacy Support OCDLA’s lobbying
effort which focuses on securing public defense
funding, promoting legislation beneficial to
the criminal justice system, and protecting the
constitutional and statutory rights of those accused of
crime. This is not the OCDLA–PAC.
Building Fund Donations go toward retiring the
mortgage of OCDLA’s new home.
General Support Make a general donation and we
will apply your gift where it is most needed.
Door Prizes OCDLA always appreciates the help it
receives from business owners who are invaluable in
making our seminars and events more enjoyable.
Leave a Legacy Consider OCDLA in your estate
planning, with the assistance of Leave a Legacy, a
campaign to help people make the most of their
charitable giving. For help structuring your memorial
gift or estate plan, consult with an attorney, financial
planner, accountant or insurance agent, or contact
Leave a Legacy at http://www.leavealegacyoregon.
org/ or [email protected].
Friend
Up to $499
Dixie Adams
Karl G. Anuta
Carol J. Andersch
M. Janise Augur
Katherine O. Berger
Linda G. Beloof
Gary Berlant
Thaddeus A. Betz
Kelsyn Bevins
Janet M. Boytano
Mary Bruington
Bradley A.
Cascagnette
Richard Cohen
Joseph M. Connelly
Nancy J. Cozine
Robert Crow
Shannon Rae
Douglass
Ben Eder
Douglas M. Engle
Samantha R. Evans
Jeni Feinberg
OCDLA is a 501(c)(3) nonprofit educational association, governed
by a 14-member board. Check with your tax advisor regarding
whether or not your contirbution to OCDLA is tax deductible.
OCDLA Tax ID#: 93-0743226.
Mary C. Goody
William Howell
Patricia Jaqua
James D. Lang
Rosalind Manson Lee
Lann & Melody Leslie
Kenneth Lerner
Philip A. Lewis
Josh McCarthy
Karen McCowan
Teresa A. McMahill
33
David M. Orf
David Paul
David M. Pebworth
Robert N. Peters
Brook Reinhard
Joe B. Richards
David & Jessica Saydack
Brian Schmonsees
Mary A. Sell
Michael W. Staropoli
Janan Stoll
Suzanne Taylor
Olcott Thompson
Troy & Rosenberg, P.C.
Elizabeth N.
Wakefield
Law Office of Owyhee Weikel-Magden
Larry Workman
Brian Zanotelli
January/February/March 2015
OUR MEMBERS
WELCOME NEW MEMBERS
Regular
Brett Allin, Salem
Jonathan M. Char, Bend
David C. Clarke, Tualatin
Anthony Dundon, Medford
Grant Hartley, Portland
Justin Howe, Portland
Brett C. Jaspers, Corvallis
Gabrielle E. Karl, Salem
Gari Lynn Lovejoy, Lincoln City
Colin Murphy, Portland
Amber Reed, Coquille
Jessica G. Snyder, Portland
Nathan Sosa, Hillsboro
Louis Strack, Salem
Spencer Todd, Salem
Benjamin Wornell, Nampa
Since November 12, 2014
Nonlawyer Professionals
Lewis Cary Boté, Warren
Conrad Engweiler, Sisters
Aisha McKenzie, Las Vegas
Martha Molitor, Coos Bay
Fahmi Slail, Beaverton
Harry Williams, West Linn
Academic
Gina Anzaldua, Tigard
Cambell Boucher, Portland
Samantha Hellwig, Salem
Malori Maloney, Brooklyn
Nina Nolen, Salem
Marianne Ober, Eugene
Brian Smith, Portland
Matt Steven, Portland
Alec Unis, Portland
OCDLA LIFE MEMBERS
Leeon F. Aller, Roseburg
M. Janise Augur, Eugene
Kelly R. Beckley, Eugene
John E. Bennington, Eugene
James E. Bernstein, Oregon City
Pat Birmingham, Lake Oswego
Timothy M. Bowman, Portland
Claudia E. Browne, Grants Pass
Christopher Edward Burris,
Oregon City
Peter J. Carini, Medford
David R. Carlson, Vale
Jenny Cooke, Portland
Richard L. Cowan, Salem
Richard A. Cremer, Roseburg
Mark Austin Cross, Oregon City
Michael D. Curtis, Portland
Jacques P. DePlois, Coos Bay
Chris W. Dunfield, Corvallis
Edward L. Dunkerly, Vancouver
Jay Edwards, Salem
Thomas L. Fagan, Eugene
Daniel L. Feiner, Portland
Paul M. Ferder, Salem
Laura Fine Moro, Eugene
Steven H. Gorham, Salem
John M. Halpern, Eugene
Chris Hansen, Eugene
Fredrick R. Hass, Milwaukie
Gregory J. Hazarabedian, Eugene
John H. Hingson, Oregon City
Rush M. Hoag, Eugene
Victor J. Hoffer, Mt. Angel
Robert C. Homan, Eugene
J. Kevin Hunt, Oregon City
Steven Jacobson, Portland
Carter Kerns, Pendleton
Charles G. Kochlacs, Medford
Steven L. Krasik, Salem
Paul H. Kuebrich, Albany
Angie LaNier, Medford
Neil F. Lathen, Salem
Gordon K. Mallon, Lake Oswego
Phillip M. Margolin, Portland
Harris S. Matarazzo, Portland
Shaun S. McCrea, Eugene
David T. McDonald, Portland
James P. McHugh, Tigard
J. Robert Moon, Baker City
Lynn M. Myrick, Grants Pass
Robert H. Nagler, Eugene
John W. Neidig, Portland
Roscoe C. Nelson, Portland
Paul S. Petterson, Portland
David J. Phillips, Eugene
John Powers, Portland
Mark Rader, Ontario
Susan Elizabeth Reese, Newport
Forrest Reid, Albany
James G. Rice, Portland
Beverly D. Richardson,
McMinnville
Michael E. Rose, Portland
Robert M. Schrank, Eugene
Tom Sermak, Salem
Steven J. Sherlag, Portland
Geoffrey Squier Silver, Portland
Emily Simon, Portland
Philip W. Studenberg, Klamath
Falls
David G. Terry, Roseburg
Jason E. Thompson, Salem
Olcott Thompson, Salem
Bob Thuemmel, Portland
Walter J. Todd, Salem
William L. Tufts, Eugene
William K. Uhle, Portland
Monty K. VanderMay, Salem
Gregory E. Veralrud, Eugene
John C. Volmert, Eugene
Peter F. M. Warburg, Eugene
Kristen L. Winemiller, Portland
Richard L. Wolf, Portland
Terri Wood, Eugene
Valerie Wright, Bend
O C D L A S U S TA I N I N G M E M B E R S
James A. Arneson, Roseburg
Paul E. Aubry, Saint Helens
Michael D. Barker, Keizer
Katherine O. Berger, Portland
Gary B. Bertoni, Portland
Marc D. Blackman, Portland
Whitney P. Boise, Portland
Mark C. Cogan, Portland
Jesse Coggins, North Bend
Brian Patrick Conry, Portland
Kathleen M. Correll, Portland
Brian D. Cox, Eugene
Daniel A. Cross, Hillsboro
January/February/March 2015
Peter B. Fahy, Corvallis
Jenifer Feinberg, Medford
James W. Gardner, Gold Beach
Laura Graser, Portland
William J. Hedges, Oregon City
James D. Hennings, Portland
David A. Hill, Eugene
Ronald H. Hoevet, Portland
Celia A. Howes, Portland
Carol E. Jones, McMinnville
Martin S. Krauss, Columbus
James D. Lang, Portland
Rosalind Manson Lee, Eugene
Kenneth Lerner, Portland
Philip A. Lewis, Portland
John W. Lundeen, Lake Oswego
William Aring Meyer, Portland
Per C. Olson, Portland
David M. Orf, Medford
Bob Pangburn, Meridian
Randy Perkins, The Dalles
Gerald K. Petersen, Corvallis
Ellen C. Pitcher, Portland
Herbert A. Putney, Medford
John S. Ransom, Portland
David L. Rich, Hillsboro
34
Justin N. Rosas, Medford
Mark N. Sabitt, Eugene
Ryan Scott, Portland
Edmund J. 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





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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.