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OCDLA Email Summary
June 2, 2005 – June 15, 2005
This Issue:
Supreme Court Cases…………...
9th Circuit Cases………………...
Oregon Supreme Court Cases…...
Oregon Court of Appeals………..
2
5
7
8
Discussion:
Article of the Week…………....... 9
From the Pond ……...…………. 12
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US SUPREME COURT
Kansas v. Marsh
Certiorari granted: 05/31/05
No. 04-1170
Court below: 278 Kan. 520 (2004)
Full text: http://www.kscourts.org/kscases/supct/2004/20041217/81135.htm
CIVIL PROCEDURE (Whether the Constitutionality of a State Statute Provides Basis for Supreme Court
Jurisdiction for Review of a Judgment by the State’s Highest Court)
The issue in this case is whether the Kansas Supreme Court’s judgment was adequately supported by a ground
independent of federal law and whether that judgment deprives the Supreme Court of jurisdiction for review.
The defendant, Michael L. Marsh II (Marsh), was convicted of capital murder, first degree murder, aggravated
arson, and aggravated burglary. Marsh was sentenced to death for the capital murder charge. At sentencing, the State
relied upon statutory aggravating factors to support a death sentence, for example, that Marsh had knowingly or
purposely killed or created a great risk of death to more than one person; that he committed a crime to avoid a lawful
arrest or prosecution; and that the crime was committed in an especially heinous manner. The issue on appeal was
whether the evidence was sufficient for the jury’s verdict finding Marsh guilty of capital murder. The Supreme
Court of Kansas (state supreme court) affirmed the trial judge’s finding that the evidence was sufficient to support
the death sentence recommended by the jury. However, the state supreme court found that the district court’s refusal
to admit evidence connecting a third-party, the victim’s husband, with the crime was constitutional error.
Additionally, the state supreme court held that Kansas statute (statute), K.S.A. 21-4624(e), was unconstitutional on
its face and that it was not within the power of the court to rewrite the statute to make it constitutional as this would
encroach on the power of the legislature. The state supreme court’s determination that the statute was
unconstitutional rendered moot the guilt and penalty phase issues and therefore other trial issues did not constitute
reversible error. The state supreme court also found that the Kansas’ “hard 40 sentencing scheme” was constitutional
and that the district’s court imposition of the scheme was appropriate given the aggravating circumstances present in
the case. [Summarized by Kianna Bradley.]
Cutter v. Wilkinson
Decided: 5/31/05
No. 03-9877
Full text: http://laws.findlaw.com/us/000/03-1488.html
ESTABLISHMENT CLAUSE (Excessive Burdens on Inmates’ Religious Exercise Prohibited Unless the Burdens
Advance a Compelling Government Interest)
The United States Supreme Court held unanimously (opinion by Ginsburg; concurrence by Thomas) that Section 3
of the Religious Land Use and Imprisoned Persons Act permissibly accommodates inmates’ religious practices and
is not barred by the Establishment Clause.
Jon Cutter (Cutter) and current and former prisoners sued the Ohio Department of Rehabilitation and Correction
(Ohio prison) claiming that as practicing members of “nonmainstream” religions such as Satanist, Wicca, Asatru and
Church of Jesus Christ religions they were denied accommodations for their religious exercise under Section 3 of the
Religious Land Use and Imprisoned Persons Act (RLUIPA). Ohio prison officials claimed RLUIPA violated the
First Amendment’s Establishment Clause. The District Court for the Southern District of Ohio (District Court)
denied the Ohio prison officials’ motion. The Sixth Circuit Court of Appeals (Court of Appeals) reversed, holding
Section 3 of RLUIPA violated the Establishment Clause. The United States Supreme Court (the Court) reversed the
Court of Appeals ruling. The Court held RLUIPA did not facially exceed permissible legislative accommodation of
religious practices. The Court found Congress had documented examples of frivolous and arbitrary burdens imposed
on inmates’ religious exercise. The Court held the legislature may act in a zone between the requirements of the Free
Exercise Clause and the prohibitions of the Establishment Clause. The Court held RLUIPA’s construction properly
balanced security concerns with religious accommodation. The Court reasoned the statute could be neutrally applied
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among diverse faiths as it neither conferred privileged status on nor singled out particular religious sects.
[Summarized by Noelle Kompkoff.]
Arthur Andersen, LLP v. United States
Decided: 05/31/05
No. 04-368
Full Text: http://laws.findlaw.com/us/000/04-368.html
OBSTRUCTION (Jury Instructions Failed to Convey the Elements of a Corrupt Persuasion When the Instructions
Were So Broad as to Virtually Eliminate the Requirement of Mens Rea)
The United States Supreme Court held unanimously (opinion by Rehnquist) that the instructions read to the jury did
not accurately illustrate the elements for “corrupt persuasion” under 18 U.S.C. Section 1512(b).
Arthur Andersen, LLP(Andersen) was Enron’s auditor. Despite notice of a potential investigation, Anderson
followed existing policy and shredded Enron’s financial documents until the Securities and Exchange Commission
issued a formal subpoena for Enron’s records. In the District Court for the Southern District of Texas (District
Court), Andersen was found guilty of knowingly, intentionally and corruptly persuading others with the intent of
withholding documents from and altering documents for use in official proceedings. The United States Court of
Appeals for the Fifth Circuit (Court of Appeals) affirmed the conviction. The Court of Appeals held that jury
instructions that did not require the jury to find any awareness of wrongdoing properly conveyed the meaning of
“corruptly persuades.” The United States Supreme Court (the Court) reversed. The Court held that the statutory
language indicates that “knowingly” modifies “corruptly persuades,” thereby creating a requirement of conscious
wrongdoing. Further, the Court found removing the word “dishonestly” from the phrase “knowingly and
dishonestly, with the specific intent to subvert or undermine the integrity (of a proceeding)” inappropriately
removed the distinction between the common business practice of routine shredding and a criminal act.
[Summarized by Margaret Stearns.]
Miller-El v. Dretke
Decided: 06/13/05
Docket No. 03-9659
Link: http://laws.findlaw.com/us/000/03-9659.html
CRIMINAL PROCEDURE (Extensive pattern of discriminatory practices during voir dire sufficient to prevail on
Fourteenth Amendment Claims)
The United States Supreme Court held 6-3 (opinion by Souter; concurrence by Breyer; dissent by Thomas) that
habeas relief is justified when the prosecution shows a pattern of evaluating prospective jurors using different
processes and when race-neutral explanations fail to explain prosecutors’ actions.
During jury selection for Thomas Joe Miller-El’s (Miller-El) capital murder trial, Dallas County, Texas prosecutors
struck ten of the eleven qualified black venire members. Miller-El objected, claiming the strikes were race-based
and could not be presumed legitimate due to the history of the District Attorney’s Office excluding blacks from
criminal juries. The trial court denied his request for a new jury and Miller-El received the death sentence. Pending
his appeal, Batson v. Kentucky was decided, holding that discrimination by a prosecutor in selecting a defendant’s
jury violated the Fourteenth Amendment. The trial court found on remand no showing that prospective jurors were
struck due to race. The State Court of Criminal Appeals affirmed. The Federal District Court denied Miller-El
federal habeas relief, and the Fifth Circuit denied a certificate of appealability. The Supreme Court of the United
States (the Court) reversed, finding that the merits of Miller-El’s Batson claim was debatable. The Fifth Circuit then
rejected Miller-El’s Batson claim on the merits. Noting the dissimilar treatment of panel members with like views,
the prosecution’s pattern of discriminatory practice during jury selection, the contrasting voir dire questions
presented to black jury members, and the prosecutor’s inability to state a racially neutral explanation, the Court
reversed again, finding the Fifth Circuit’s decision to be an unreasonable determination of the facts in light of the
evidence presented. [Summary by Valerie Hedrick.]
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Wilkinson v. Austin
Decided: 6/13/05
No. 04-495
Full text: http://laws.findlaw.com/us/000/04-495.html
FOURTEENTH AMENDMENT (Determining Whether Inmates Due Process Is Violated Requires Balancing
Interests And Proper Safeguards For The Liberty Interest Involved)
The United States Supreme Court held 9-0 (opinion by Kennedy) that where an inmate’s liberty interest is involved,
the court seeks a balance between the private interest, the risk of an erroneous deprivation of that interest, and the
Government’s interest through informal, nonadversarial procedures.
A class of current and former inmates (inmates) sued Ohio prison officials (Ohio) alleging violation of the
Fourteenth Amendment Due Process Clause. Ohio opened a “Supermax” prison facility, the Ohio State Penitentiary
(OSP), in 1998 to segregate their most dangerous prisoners. OSP involves deprivation of almost any environmental
or sensory stimuli and almost all human contact. The District Court for the Northern District of Ohio (District
Court) ordered substantive and procedural reforms, finding the inmates held a liberty interest in avoiding assignment
to OSP. The District Court found Ohio denied the inmates due process, and held the New Policy was inadequate to
meet due process requirements. The Sixth Circuit Court of Appeals (Court of Appeals) affirmed the inmate’s liberty
interest and the procedural modifications, but set aside the substantive modifications. The United States Supreme
Court (the Court) upheld the inmates’ liberty interest while holding that the New Policy provides sufficient
compliance with the Due Process Clause. The Court found the New Policy provides adequate informal and
nonadversarial notice and hearing procedures. The Court then balanced the inmates’ private interest, the risk of
erroneous deprivation of such interest, and the Government’s interest (giving deference to prison management
decisions). Based upon the private interest being evaluated within the context of the prison system, the notice and
review requirements of the New Policy, and the State’s interest in prison safety and security, the Court ruled that
Ohio’s New Policy strikes a constitutionally permissible balance between the factors of the Mathews framework and
was thus an adequate safeguard to protect an inmate’s liberty interest in not being assigned to OSP. [Summarized by
Eric Leonard.]
Bradshaw v. Stumpf
Decided: 06/13/05
No. 04-637
Full text: http://laws.findlaw.com/us/000/04-637.html
CRIMINAL PROCEDURE (Guilty Plea is Knowing, Voluntary and Intelligent When Elements of the Offense are
Explained; Plea is Not Invalidated by Prosecutorial Inconsistencies)
The United State Supreme Court held unanimously (opinion by O’Connor; concurrences by Souter and Thomas)
that a guilty plea was knowing, voluntary and intelligent and that prosecutorial inconsistencies regarding whether
defendant or his accomplice shot the victim did not void the plea.
John Stumpf (Stumpf) and his accomplice Clyde Wesley committed an armed robbery that left Mr. Stout wounded
and Mrs. Stout dead. Stumpf admitted to shooting Mr. Stout, but denied shooting Mrs. Stout. Stumpf plead guilty to
aggravated murder as part of a detailed plea bargain. The United States Court of Appeals for the Sixth Circuit (Court
of Appeals) held that Stumpf’s guilty plea was invalid because he did not know of the aggravated murder charge’s
specific intent element. The Court of Appeals also held that prosecutorial inconsistencies regarding whether Stumpf
or Wesley shot Mrs. Stout voided Stumpf’s guilty plea and sentence. The United States Supreme Court (the Court)
held that Stumpf’s guilty plea was knowing, voluntary and intelligent and that the prosecutorial inconsistencies
regarding which of two defendants shot victim did not void the guilty plea. The Court found that because the record
showed that the Stumpf’s competent lawyer fully explained the elements of the charge, his guilty plea was valid.
Further, Ohio law considers those who aid and abet equally culpable in the aggravated murder statute. So long as
one party had the specific intent to cause death, Stumpf’s assertion that he did not shoot did not preclude a valid
guilty plea. Finally, the record indicating Stumpf’s intent to show evidence to mitigate his sentence was not
inconsistent with his plea; a bad bargain does not invalidate the guilty plea. In reversing the second holding, the
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Court reasoned that prosecutorial inconsistencies could not affect guilty plea because whether Stumpf or Wesley
shot Mrs. Stout was immaterial under the Ohio aggravated murder law. [Summarized by Tyler Prout.]
Johnson v. California
Decided: 6/13/05
No. 04-6964
Full Text: http://laws.findlaw.com/us/000/04-6964.html
JURY SELECTION (California’s “More Likely Than Not” Standard Is Too Burdensome for Defendants to Prove
When Establishing a Prima Facie Case of Purposeful Discrimination In Jury Selection)
The United States Supreme Court held 8-1 (opinion by Stevens; concurrence by Breyer; dissent by Thomas) that
California’s “more likely than not” standard is too burdensome for defendants to prove when establishing a prima
facie case of purposeful discrimination in jury selection.
Jay Johnson (Johnson), a black male, was convicted for the murder and assault of a white child in a California state
court by an all-white jury. Of the 43 eligible jurors, the prosecutor used his peremptory strikes to remove the three
black prospective jurors. The trial judge found that Johnson failed to show a strong likelihood that the peremptory
challenges were based on race, thus failing to establish a prima facie case of purposeful discrimination. The
prosecutor never explained his rationale behind the strikes. The California Court of Appeal held that the judge
should have only required an inference of racial bias and set aside the conviction. The California Supreme Court
reinstated Johnson’s conviction, holding that under Batson v. Kentucky, 476 U.S. 79 (1986), state courts had
discretion to determine the sufficiency of a prima facie case of discrimination in jury selection. The United States
Supreme Court (Court) held that California’s standard, that discrimination was “more likely than not” the reason for
unexplained peremptory challenges, was too strict under Batson. The Court held that a defendant need only produce
evidence to allow a judge to infer that discrimination had occurred. That all three black jurors were removed in
Johnson’s case was sufficient to infer discrimination and thus established a prima facie case. The Court reversed
and remanded; the trial court should have sought the prosecutor’s explanation for the strikes before making a final
determination. [Summarized by Margaret Stearns.]
9TH CIRCUIT
U.S. v. Navarro-Vargas
02-50663 (05/23/05)
Before Circuit Judges Schroeder, Pregerson, Hawkins, Silverman, Wardlaw, W. Fletcher, Berzon, Rawlinson,
Clifton, Bybee, and Bea
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/2FFB70385B3AB4A38825700A0054A4D8/$file/0250663.pdf?o
penelement
CONSTITUTIONAL LAW / FIFTH AMENDMENT / GRAND JURY CLAUSE
Opinion (Bybee): Under 21 U.S.C. sec. 960 and 841, Steve Navarro-Vargas (“Navarro-Vargas”) and Jose Antonio
Leon-Jasso (“Leon-Jasso”) conditionally pled guilty to importation and possession of marijuana and cocaine,
respectively. In separate cases, Navarro-Vargas and Leon-Jasso contended that their Fifth Amendment rights were
violated because they were denied the unfettered judgment of the grand jurors. Navarro-Vargas and Leon-Jasso also
argued that 21 U.S.C. sec. 960 and 841 are unconstitutional on their face because they require judges to determine
sentencing factors. In each case, the district court instructed the grand jury using the model charge recommended by
the Judicial Conference of the United States. A divided Ninth Circuit en banc panel affirmed the convictions. The
panel’s opinion was vacated. Navarro-Vargas and Leon-Jasso were granted a rehearing en banc to review their
motions to dismiss their indictments. Because these cases presented the same issues, they were consolidated for oral
argument and disposition. After examining the history of the grand jury and the structure of the Grand Jury Clause
of the Fifth Amendment, the Ninth Circuit determined that these instructions did not violate the Constitution and
affirmed the district courts’ denial of the motions to dismiss their indictments. AFFIRMED. Dissent by Judge
Hawkins. Joined by Pregerson, Wardlaw, W. Fletcher, and Berzon. [Summarized by Kirsikka Van Doren]
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U.S. v. Nobriga
No. 04-10169 (05/20/05)
Before Circuit Judges Wardlaw, Berzon and Fitzgerald, District Judge
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/721E6BC859A9289A882570060082AF2A/$file/0410169.pdf?op
enelement
CRIMINAL LAW / DOMESTIC VIOLENCE
Opinion (per curiam): Nobriga was charged with violating a federal statute that makes it a crime to possess a
firearm after having been previously convicted of a misdemeanor crime of domestic violence. The predicate offense
at issue was Nobriga’s Abuse of a Family or Household Member (AFHM) conviction in Hawaii. In state court,
Nobriga pleaded no contest to the charges that he hit his former girlfriend. In the district court, Nobriga moved to
dismiss the federal indictment on the grounds that his underlying AFHM conviction was not for a “misdemeanor
crime of domestic violence.” The district court denied Nobriga’s motion to dismiss based on his prior no contest
plea and Nobriga appealed. The Ninth Circuit reversed the district court’s denial of Nobriga’s motion to dismiss on
the grounds that his former girlfriend did not qualify as a victim under the federal statute. Because the relationship
between Nobriga and the victim of his AFHM conviction did not fall within any of the categories prescribed by the
federal statute, the Ninth Circuit held that the government did not establish that Nobriga had previously been
convicted of a misdemeanor crime of domestic violence. The Ninth Circuit accordingly held that Nobriga’s motion
to dismiss should be granted and the case remanded. REVERSED AND REMANDED. [Summarized by Allison
Abbott]
U.S. v. Brailey
No. 04-30083 (05/19/05)
Before Circuit Judges Schroeder, Graber, and Fisher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/8CC5EB017E7E85708825700600037EFB/$file/0430083.pdf?op
enelement
CRIMINAL LAW / DOMESTIC VIOLENCE / POSSESSION OF A FIREARM
Opinion (Schroeder): Brailey appealed a conditional guilty plea conviction for being a person in possession of a
firearm in violation of 18 U.S.C. § 922(g)(9). Brailey was convicted of a domestic violence felony. After completing
his sentence in 1997, a Utah court granted a petition to reduce Brailey’s conviction from a felony to a class A
misdemeanor. A person convicted of a class A misdemeanor may possess a firearm under Utah law. Before the
Ninth Circuit, Brailey contended that because his conviction was reduced to a misdemeanor, the federal statute’s
exception for persons convicted of misdemeanors who have had their civil rights restored applied to him. The court
held that because Brailey’s misdemeanor conviction did not remove Brailey’s core civil rights, his civil rights had
not been restored under the meaning of the federal statute. AFFIRMED. [Summarized by Michael Banks]
Campbell v. Rice
No. 99-17311 (05/20/05)
Before Circuit Judges Schroeder, Chief Judge, Ferguson, Reinhardt, Rymer, Kleinfeld, Silverman, Graber, Wardlaw,
Gould, Clifton and Bybee
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/4EA39DC31CDBD6A98825700600828116/$file/9917311.pdf?o
penelement
CRIMINAL LAW / HABEAS CORPUS / CONFLICT OF INTEREST
Opinion (Clifton): Alexander Campbell retained Maureen McCann as counsel, and one month later, the police
arrested McCann on drug charges. No one informed Campbell of a pre-trial conference where the court determined
the same office prosecuting both Campbell and McCann did not create a conflict of interest. A jury found Campbell
guilty of burglary, and he appealed the conviction and petitioned for habeas corpus. The California Court of
Appeals affirmed Campbell's conviction and denied Campbell's petition for habeas corpus. Campbell subsequently
petitioned the U.S. District Court for habeas corpus, which the court denied. Campbell then appealed the district
court's denial of habeas corpus, arguing that McCann was ineffective because she did not object to the prosecution's
use of DNA evidence, or admit evidence of other burglaries in the area that went uncharged. The court rejected both
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arguments, finding that DNA evidence was acceptable and evidence of uncharged burglaries in the area would not
have exonerated Campbell. Second, Campbell argued that the ex-parte pre-trial conference in chambers violated his
right to due process. The court held that Campbell's exclusion from the meeting was not a "structural error", which
would require an automatic reversal of the conviction. Instead, the court applied a "harmless error" analysis to the
ex-parte communication and held that Campbell did not prove any adverse effects resulting from the pre-trial
conference. AFFIRMED. Dissent by Judge Ferguson. [Summarized by David Wilson]
Lara-Cazares v. Gonzales
No. 03-71568 (05/23/05)
Before Circuit Judges Pregerson, Canby, and Beezer
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F41BB5EB307A25638825700A0054DE02/$file/0371568.pdf?op
enelement
IMMIGRATION LAW / CRIMES OF VIOLENCE
Opinion (Canby): Lara-Cazares is a native and citizen of Mexico who became a lawful permanent resident of the
United States in January 1988. In June, 1998 he was convicted under Cal. Penal Code § 191.5(a) of gross vehicular
manslaughter while intoxicated. An Immigration Judge ordered Lara Cazares removed from the United States under
8 U.S.C § 1101(a)(43)(F). Under the federal statute, a lawful permanent resident may be removed from the country
if he or she commits a “crime of violence”. The Board of Immigration Appeals agreed, holding that because
the crime required proof of “gross negligence”, it satisfied the mens rea requirement for a crime of violence under
18 U.S.C § 16. Lara-Cazares appealed this ruling. The Ninth Circuit reversed, citing Leocal v. Ashcroft, 125 S. Ct.
377 (2004) where the Supreme Court unanimously held that a conviction under a Florida law for driving under the
influence and causing serious bodily injury did not qualify as a crime of violence. REVERSED. [Summarized by
Christopher Carling]
Fernandez-Ruiz v. Gonzales
No. 03-74533 (05/31/05)
Before Circuit Judges Reinhardt, Noonan, and Fernandez
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/E67E759C276861F8882570120075FA92/$file/0374533.pdf?ope
nelement
IMMIGRATION LAW / REMOVAL / AGGRAVATED FELONY
Opinion (Reinhardt): Fernandez was a citizen of Mexico and pled guilty to a charge of domestic abuse and was
convicted for theft. A Board of Immigration Appeals decision ordered the removal of Fernandez from the United
States. The Ninth Circuit held that while it had jurisdiction to review Fernandez’s petition, Fernandez was not
eligible to receive relief because the government repealed Fernandez’s opportunity to a waiver of deportation and
Fernandez could not cancel the removal, since he committed an aggravated felony. PETITION FOR REVIEW
DENIED. [Summarized by Nick Kuwada]
OREGON SUPREME COURT
State v. Gibson
Case No.: S48323 http://www.publications.ojd.state.or.us/S48323.htm
AREA OF LAW: EVIDENCE
Holding: (Opinion by Balmer, J.) Relevant evidence means evidence having any tendency to make the existence of
any fact that is of consequence to the determination of the action more probable or less probable than it would be
without the evidence.
The Lane County circuit court imposed a sentence of death for defendant Travis Lee Gibson for the murder of
Joshua Copp during a robbery of Copp’s house. During the trial, Gibson denied ever having fired the murder
weapon or having a leadership role in the robbery. To establish that Gibson had fired the murder weapon and that
Gibson also had a leadership role in the robbery, the state introduced evidence of Gibson shooting the murder
-7-
weapon at a sandwich shop the week before the murder, and also of Gibson’s suggestion to a cohort that she
prostitute herself to earn money for her and Gibson after the murder. The trial court accepted both items of
evidence, and Gibson objected to the relevance. The Supreme Court held that testimony of Gibson’s sandwich shop
shooting was relevant to impeach the defendant. However, the Court held that Gibson’s comments regarding
prostitution were irrelevant because any later group leadership cannot point to previous group leadership. Given this,
the Court determined that the trial court’s admittance of the prostitution conversation was not prejudicial to Gibson
and therefore there was no reversible error. Judgment of sentencing affirmed, case remanded for the limited purpose
of merging Gibson’s two convictions for aggravated murder and resentencing Gibson to only one sentence of death.
[Summarized by Stephen Ellis.]
OREGON COURT OF APPEALS
State v. Warner
Case No.: A121246 http://www.publications.ojd.state.or.us/A121246.htm
AREA OF LAW: CONSTITUTIONAL LAW / FORMER JEOPARDY
HOLDING: (Opinion by Armstrong, J.) (Non-criminal prosecution for infraction does not preclude later criminal
prosecution for same event.)
After a traffic incident, Scott A. Warner (Warner) was charged with traffic infractions and a three-count criminal
indictment. Warner was convicted of the traffic infractions, including careless driving. However, in a separate trial,
The trial court granted Warner’s motion to dismiss criminal charges of DUII and reckless driving on grounds of
former jeopardy under ORS 131.515, and Art. I, sec. 12, of the Oregon Constitution. On appeal, the Court of
Appeals found that careless driving and reckless driving are not the same for purposes of ORS 131. 515(1).
Given this, the Court of Appeals noted that former jeopardy may attach if prosecution for that infraction was
criminal in nature. The Court of Appeals applied the Selness/Miller test to evaluate: whether pretrial procedures
associated with criminal law were used, the nature of the penalty, the potential for public stigma from the judgment
or penalty, and the collateral consequences. The court held that Warner’s prosecution for careless driving was not
criminal in nature, and the state is not prohibited under Art. I, sec. 12 to criminally prosecute Warner for reckless
driving and DUII. Reversed and remanded. [Summarized by Kimberly Boswell.]
State v. Page
Case No.: A119561 http://www.publications.ojd.state.or.us/A119561.htm
AREA OF LAW: CONSTITUTIONAL LAW / FORMER JEOPARDY
HOLDING: (Opinion by Armstrong, J.) An individual that is prosecuted for crimes stemming from a criminal
episode that also resulted in a traffic violation does not violate the prohibition against former jeopardy because
prosecution for a violation is not criminal in nature.
Gregory Page (Page) was prosecuted and convicted of driving while suspended (DWS). Although the district
attorney could have charged Page with a misdemeanor the attorney chose to prosecute as a violation. The
conviction for the violation did not prevent the attorney from later prosecuting Page for a DUII because the
proceedings for the violation were not criminal in nature. Four factors are used to determine whether a proceeding
is criminal in nature: 1) the pretrial procedures available, 2) the nature of the penalty, 3) the stigmatizing effect of
the judgment or penalty, and 4) the collateral consequences of the judgment or penalty. Factors two through four
held against the proceedings being criminal. The fine was $600, which was not excessive, a conviction did not carry
the stigma of common law crimes, and the collateral consequences were not criminal in nature. Even though
prosecution for the misdemeanor violation is criminal in nature until the charge is downgraded to a violation one
factor alone is not enough to find that the proceedings were criminal in nature. Affirmed. [Summarized by Megan
Thornton.]
State v. Etter
Case No.: A118334 http://www.publications.ojd.state.or.us/A118334.htm
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AREA OF LAW: CRIMINAL LAW
HOLDING: (Opinion by Landau, P.J.) In criminal sentencing, the defendant has the right to have additional facts
that may increase the sentence beyond the otherwise applicable sentence decided by a jury, not a trial court judge.
This case is on remand from the Supreme Court for resentencing. Defendant Etter was convicted of first-degree
theft, and felon in possession of a firearm. The presumptive sentence for the felon in possession conviction is 10-12
months. The trial court imposed a departure sentence of 24 months with 24 months post-prison supervision based
on a finding that Etter committed the theft while another county had charges pending against him. On appeal, Etter
argued the trial court erred in determining the sentence from findings not submitted to, or determined by, a jury. In
State v.Dilts, Oregon Supreme Court held that the defendant has a right to have these additional findings decided by
a jury. In light of the decision in Dilts, the sentence is vacated and remanded for resentencing; otherwise affirmed.
[Summarized by Sheryl Oakes.]
Moser v. Lampert
Case No.: A123232 http://www.publications.ojd.state.or.us/A123232.htm
AREA OF LAW: CRIMINAL LAW - POST CONVICTION / INEFFECTIVE ASSISTNCE OF COUNSEL
HOLDING:(Opinion by Armstrong, J.) To succeed in an inadequate assistance of counsel claim petitioner must
show that his counsel failed to exercise reasonable professional skill and judgment, and petitioner was prejudiced as
a result.
Moser was convicted of two counts of sexual abuse. The trial court granted post-conviction relief based on a finding
of inadequate assistance of counsel because counsel failed to challenge the competency of the alleged twelve-year
old victim, when the state used her as a witness. The facts on record showed Moser admitted to touching the girl on
two separate occasions but for non-sexual purposes. The mother and a police officer further testified Moser
admitted he touched the girl on two occasions. In light of these facts and petitioners testimony the court found it
unlikely the inclusion of the girl’s testimony prejudiced Moser, or that without her testimony the outcome would
have been different. Reversed and remanded. [Summarized by Stephen Ellis]
Alexander v. Gower
Case No.: A123175 http://www.publications.ojd.state.or.us/A123175.htm
AREA OF LAW: HABEAS CORPUS
HOLDING: (Opinion by Edmonds, P.J.) A person’s failure to seek timely judicial review of a final order of the
State Board of Parole and Post-Prison Supervision under ORS34.330(4) operates to bar a petition for writ of habeas
corpus.
Gower, superintendent of Columbia River Correctional Institution, appealed habeas corpus relief to Alexander and
the order for Alexander’s immediate release from prison. The Court of Appeals found that Alexander had an
adequate remedy available by judicial review. The court held that under ORS34.330(4), because Alexander failed to
seek judicial review in a timely manner, Alexander was barred from his petition for writ of habeas corpus in by
operation of law. Reversed. [Summarized by Darin Dooley.]
ARTICLE OF THE WEEK
The Supreme Court Upholds Congressional Power to Override California's Medical
Marijuana Law: Judicial Federalism Gets Really Interesting (By Michael C. Dorf)
In 1996, California approved a ballot initiative eliminating criminal penalties for the private cultivation and use of
marijuana for medical purposes. But the federal Controlled Substances Act makes these activities illegal throughout
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the United States--with no exceptions. And under the Supremacy Clause of the Constitution, federal law trumps
state law, provided that the federal law in question is itself constitutionally valid.
Is the Controlled Substances Act valid? Earlier this week, the U.S. Supreme Court addressed this question in
Gonzales v. Raich. The Court ruled 6-3 that it is. Accordingly, the federal Act can be applied to prohibit the private
cultivation and use of marijuana for medical purposes, despite California law purporting to shelter such conduct.
Court-watchers were keenly interested in Raich because the case had the potential to scramble political and
jurisprudential sensibilities. And for two Justices at least, it did just that.
The six Justice-majority in Raich included the four most liberal members of the Court--Justices Stevens, Souter,
Ginsburg, and Breyer. All four have consistently dissented from recent decisions narrowing the scope of
Congressional power. For these Justices, the principle of broad federal power prevailed against any countervailing
sympathy they may have felt for sick people unfairly ensnared in the war on drugs. Writing for the majority, Justice
Stevens said that complaints should be addressed to the political process, not the courts.
The three dissenters--Chief Justice Rehnquist, Justice O'Connor and Justice Thomas--also put their federalism
commitments first. But for these conservatives, those commitments cut against sustaining Congressional power-because, for them, federalism allows a large area in which the states can act unimpeded by federal power. Thus,
although one would be hard-pressed to label any of these three "soft on drugs," they all nonetheless thought that the
legal status of medical marijuana was an issue constitutionally reserved to the states.
The key to the decision, therefore, was that two of the Justices who have lately voted to construe Congressional
power under the Commerce Clause relatively narrowly--Scalia and Kennedy--jumped ship and joined the liberals.
Despite a jurisprudential commitment to states' rights, these two Justices thought that the federal government had
ample authority to regulate all marijuana use, notwithstanding any exceptions California or other states would have
permitted.
Did Scalia and Kennedy vote as they did simply because they oppose marijuana legalization? Did they, in other
words, cast jurisprudential principle aside to impose their subjective views of drug use?
The answer is no, although the reason will take some explaining.
The Emergence of the "Economic Activity" Category
To understand what was at issue in Raich, it will help to understand the state of Commerce Clause jurisprudence
before the Rehnquist Court set about rewriting it a decade ago.
When I started teaching constitutional law in 1993, I used to play a version of "Six Degrees of Separation" with my
students. I would ask them to name an activity that the federal government had no apparent authority to regulate, and
I would demonstrate--in six steps or fewer--how the Supreme Court's precedents interpreting the Commerce Clause,
authorized regulation.
What about a federal law barring whistling in the shower? No problem. (1) People who whistle in the shower don't
concentrate on cleaning themselves; (2) therefore, they take longer showers; (3) therefore, they use more hot water;
(4) therefore, they use more energy to heat the water; (5) therefore, they increase demand for energy in the interstate
market; and (6) thus, Congress can regulate whistling in the shower as a means of regulating the interstate market
for energy. Take that, Kevin Bacon!
The game became somewhat less fun in 1995, when the Supreme Court decided United States v. Lopez. By a 5-4
margin, in that case the Court said there is a logical stopping point to this sort of ankle-bone-connected-to-the-kneebone account of the Commerce Clause. In Lopez, and again in the 2000 case of United States v. Morrison (decided
by the same 5-4 margin), the Justices said that Congress has very little power to regulate purely intrastate activities
that are not, in their nature, "economic."
The supposedly non-economic issues in Lopez and Morrison were, respectively, possession of a firearm near a
schoolyard, and private gender-motivated violence.
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But even as it drew a line in the sand in Lopez and Morrison, the five-Justice majority reaffirmed what had, until that
point, been the most far-reaching application of Congressional power to regulate interstate commerce. In the 1942
case of Wickard v. Filburn, the Court upheld a federal agricultural quota even as applied to a farmer who, in addition
to cultivating eleven acres for commercial purposes, planted an additional twelve acres for what was described as
home consumption.
The Lopez Court recognized that the Filburn case stood at the outer limit of Congressional power, but thought--or at
least said--that it was just inside that limit. Growing a commodity like wheat, even if it is consumed before ever
entering the market, was economic activity, whereas possessing a gun or committing gender-motivated violence,
was not.
Is Marijuana Just Like Wheat?
In some sense, Raich was--or should have been--an extraordinarily easy case. If the government can regulate the
intrastate cultivation of wheat for home consumption, as the Court said it can in Filburn, then surely it can likewise
regulate the intrastate cultivation of marijuana for home consumption.
So said the majority at any rate, and the fact that Filburn was reaffirmed in Lopez and Morrison provides the best
explanation for the votes of Justices Scalia and Kennedy in Raich.
But now we have a different mystery: How could Chief Justice Rehnquist, who wrote the majority opinions in both
Lopez and Morrison, and Justice O'Connor, who joined those opinions, think that the federal government has less
power to regulate marijuana than to regulate wheat? (We need not ask this question of Justice Thomas, who has
consistently expressed a far narrower view of Congressional power under the Commerce Clause than any other
Justice.)
The answer is that the dissenters thought the marijuana in Raich was unlike the wheat in Filburn in two key respects.
First, the law at issue in Filburn already contained an exemption for very small plots of land, such as a vegetable
garden.
As University of Minnesota law professor Jim Chen explained in a chapter of my book Constitutional Law Stories,
to consume the wheat that farmer Filburn's excess acreage produced would have required Filburn and his family to
eat forty-four one-pound loaves of bread every day! Clearly, the excess wheat was intended to be sold on the market,
either directly, or as the milk, eggs or meat resulting from its consumption by Filburn's animals. By contrast, the
marijuana at issue in Raich really was a personal consumption quantity.
Second, the dissenters noted that in Filburn a stipulated record revealed the workings of the interstate wheat market
in a way that nothing in the Raich record supported for the market in marijuana. Accordingly, the Raich dissenters
were unprepared to assume--as the majority was--that marijuana grown for personal medical use could be easily
diverted to the general market.
The Raich majority gave short shrift to both of these distinctions. It's true, Justice Stevens acknowledged, that
Congress had exempted vegetable-garden-sized plots from wheat quotas, but nothing in the language or overall
reasoning of Filburn indicated that it was constitutionally required to do so. And as for the interchangeability of
personally grown medical marijuana and commercially grown recreational marijuana, the majority thought this was
visible "to the naked eye," rendering evidence of interchangeability wholly superfluous.
The Importance of a Comprehensive Regulatory Scheme
If the dissenters had difficulty distinguishing the Filburn case, the majority in Raich had difficulty distinguishing
Lopez. Why is possession of marijuana more "economic" than the possession of a firearm near a schoolyard?
The majority answered that question indirectly. The key is that the Controlled Substances Act forbids even intrastate
cultivation and home consumption of marijuana, as part of a comprehensive scheme regulating marijuana and other
drugs.
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Although the majority opinion of Justice Stevens thought this fact simply underscored the economic nature of
marijuana cultivation and consumption, Justice Scalia, who wrote a separate opinion concurring in the result, gave
what is probably a better explanation.
In addition to possessing the power to regulate interstate commerce, Congress has the power "To make all Laws
which shall be necessary and proper for carrying" out the Commerce Clause power, and the other enumerated
powers. Where Congress adopts a comprehensive scheme for regulating some activity that is undeniably a matter of
interstate commerce, the Necessary and Proper Clause authorizes Congress to regulate purely intrastate noneconomic activity if regulation of that purely intrastate non-economic activity is necessary to achieve the aims of the
comprehensive regulation of interstate commerce.
The Controlled Substances Act at issue in Raich was such a comprehensive scheme. The regulation of guns near
schoolyards in Lopez was not.
The dissenters thought that such a rule would give Congress a perverse incentive: If Congress wants to get at some
intrastate non-economic activity, all it has to do is embed the relevant law in some larger comprehensive law. Thus,
according to the dissenters, the loophole for a comprehensive regulatory scheme would encourage the federal
government to regulate more, not less activity--leaving less, not more autonomy for the states.
The majority, however, thought this fear unfounded. Justice Stevens observed that there are political checks against
Congress lightly adopting far-reaching legislation simply to immunize some relatively narrow law from
constitutional challenge. Justice Scalia added that such ploys, if attempted, would be transparent.
The Future of Federalism
Its immediate significance for Californians and others aside, perhaps the most interesting aspect of the Raich
decision is what it portends for future litigation concerning the limits of federal power.
With one or more retirements a real possibility in the near future, we can expect President Bush to add Justices to
the Lopez/Morrison majority. But cases like Raich show that this majority is hardly monolithic. Only Justice
Thomas wants to scale back the scope of federal power radically. The remaining four state-friendly Justices split
evenly in Raich.
Accordingly, even solidification of the Rehnquist Court vision of states' rights on a post-Rehnquist Court will not
mean the end of fighting over the line between state and federal authority. And that is entirely appropriate for a
Constitution that was born out of a still-unresolved struggle between Federalists and Anti-Federalists.
FROM THE POND
6/2/2005
[mcadpond] [Fwd: project Bond]
Here is a new angle on an old program. It is supposed to be a substitute for other conditions not be in addition to
other conditions so if you run into it with other conditions also being required you should balk at this and say that is
not what your understanding is:
You will be seeing more recommendations for defendants to attend "project Bond". This is basically a child
parent training interaction class run out of Family Building Blocks, the relief nursery on Lancaster. The
defendants go downtown to the domestic relations help office and talk to April. She does the screening and
sets them up with the next class. This is currently for parents of children ages 1 - 3, but may expand. I
wanted to get this information out to you so you would be prepared for more referrals. We are going to
change the referral form. On EDP the person will be filling out information and you may get a sheet
regarding their status with the file.
6/2/2005
[Ocdlapond] delivery expungement
Any scenario where delivery of marijuana for consideration (b fel) can be expunged/reduced?
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Response:
ORS 137.225(5)(c) and ORS 161.705
6/3/2005
[Ocdlapond] Brainless FTAs?
I'm coming up on my 1st FTA trial since the '03 amendment. A couple dda's seem to think it is now a strict liability
offense. I don't read it that way. How low are tr. courts setting the bar on the mental state? Does anyone have any of
the leg. hist. from '03?
Response:
This may not apply to your situation (or you may already know of it), BUT I ran across this case, was
delighted with it & ready to argue it recently in Columbia Co (never got to--state dism'd b4 trial); it may
help you; it says, essentially: State v. Clay, 84 Or App 514 (87')
if client in custody & not arraigned within statutory time period in ORS 135.010, then can't be held to
release agreement--thus, MJOA FTA as a matter of law
Response:
That would seem to violate ORS 161.105 and the Requirements of Culpability.
“The minimal requirement for criminal liability is the performance by a person of conduct which
includes a voluntary act or the omission to perform an act which the person is capable of performing.
“A person is not guilty of an offense unless the person acts with a culpable mental state with
respect to each material element of the offense that necessarily requires a culpable mental state.” and State
v. Thaxton, 190 Or App 351, 356 (2003),re Criminal Liability:
“Criminal liability requires the performance by a person of conduct which is a voluntary act or the
omission to perform an act which the person is capable of performing,” causing the Court of Appeals to
reverse defendant’s conviction.
See also State v. Tippetts, 180 Or App 350 (2002). The court in that case reversed the trial court,
saying that ORS 161.095 requires a voluntary act as a predicate to criminal liability, i.e., it requires some
evidence that the defendant had the ability to choose to take a particular action. In that case, there was no
evidence from which a reasonable juror could find that defendant had chosen to deliver contraband to a
correctional facility. Moreover, defendant’s earlier voluntary act of possession of drugs could not provide
the basis for criminal liability; on the facts of this case, the introduction of the drugs into the jail was not a
reasonably foreseeable consequence of possessing them.
“By its terms, the statute requires (1) that the act that gives rise to criminal liability be performed
or initiated by the defendant and (2) that the act be voluntary. ORS 161.085(2), in turn, defines the phrase
“voluntary act.” It means “a bodily movement performed consciously.” Tippetts at 354.
“[A] voluntary act requires something more than awareness. It requires an ability to choose which
course to take, i.e., an ability to choose whether to commit the act that gives rise to criminal liability.
Conversely, a person may be aware that a particular act is being committed during a seizure or during a
reflexive act, but that fact alone does not make the act voluntary.” Tippetts at 356.
Oregon law requires (1) that the act that gives rise to criminal liability be performed or initiated by
the defendant and (2) that the act be voluntary. The phrase “voluntary act.” It means “a bodily movement
performed consciously.” State v. Tippetts at 354; ORS 161.085.
“[A] voluntary act requires something more than awareness. It requires an ability to choose which
course to take, i.e., an ability to choose whether to commit the act that gives rise to criminal liability.” State
v. Tippetts at 356.
Response:
The Chapter 162 FTA statutes provide that defendant must "knowingly" fail to appear, i.e., be aware when
he was to be in court, so it is not strict liability. It seems to me that is not strict liability, since defendants
frequently think they have a different court date. The issue is not whether defendant was told when to
appear, but whether he was aware he needed to be in court - and it is his awareness on the court date, not
the date when the meeting was set. Am I missing something, being too simplistic?
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