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OCDLA Email Summary
April 21, 2005 – May 04, 2005
This Issue:
Supreme Court Cases…………...
9th Circuit Cases………………...
Oregon Supreme Court Cases…..
Oregon Court of Appeals………..
2
6
8
8
Discussion:
Article of the Week…………...... 10
From the Pond ……...………….. 12
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US SUPREME COURT
Halbert v. Michigan
Argued: 04/25/05
No. 03-10198
Court below: Unpublished
Full text: Unavailable
EQUAL PROTECTION (Whether an Indigent Defendant Who Has Pled Guilty Has a Right to Counsel in Order to
Appeal)
The issue in this case is whether the Fourteenth Amendment requires States to appoint counsel for indigent criminal
defendants for discretionary appeals.
Antonio Halbert (Halbert) waived his right to counsel and pled nolo contendere to two counts of criminal sexual
conduct in the second degree. An amendment to the Michigan Constitution requires a defendant who pleads guilty
or nolo contendere to be granted leave of the court to appeal. Several Michigan state court judges have interpreted
this amendment as also giving them discretion in appointing appellate counsel to indigent defendants. Halbert twice
sued for his right to appeal his sentence in state district court. He requested counsel to be appointed to assist his
appeal at each instance. The Michigan trial court denied his requests for leave to appeal and for appointed counsel.
In an unpublished opinion, the Michigan Court of Appeals denied Halbert’s application for leave to appeal and for
appointed counsel. The Michigan Supreme Court declined to hear Halbert’s appeal without opinion. On appeal to
the United States Supreme Court, Halbert will argue that his Fourteenth Amendment right to appellate counsel in
appeal was violated and that he is entitled to a new direct appeal with assistance from counsel. [Summarized by
Darrick McCasland.]
Gonzalez v. Crosby
Argued: 04/25/05
No. 04-6432
Court below: 366 F.3d 1253 (11th Cir. 2004)
Full text: http://caselaw.lp.findlaw.com/data2/circs/11th/0212054pv2.pdf
ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT (Whether In a Habeas Corpus Proceeding, a Rule
60(b) Motion is Prohibited as a Matter of Law)
The question presented is whether, in a habeas corpus proceeding, the provision of the Antiterrorism and Effective
Death Penalty Act of 1996 barring second and successive petitions prohibits a petitioner from bringing a Rule 60(b)
motion to amend judgment.
Aurelio Gonzalez (Gonzales) pled guilty to robbery with a firearm in 1982. In 1996, he filed a motion in state court,
attacking his conviction on the grounds of newly discovered evidence showing that his guilty plea was induced by a
false promise. The state court denied relief. Gonzales then filed a motion in the United States District Court for the
Southern District of Florida (District Court) on the same grounds. The District Court dismissed because the statute
of limitations provided by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) had run.
Relying on Artuz v. Bennett, 531 U.S. 4 (2002), Gonzalez filed a Rule 60(b)(6) motion to amend judgment,
asserting that an intervening change in law meant the District Court had erroneously interpreted the AEDPA statute
of limitations. The District Court denied the Rule 60(b)(6) motion, stating that it lacked jurisdiction because
Gonzalez had already appealed to the United States Court of Appeals for the Eleventh Circuit (Circuit Court.) The
Circuit Court held that the District Court properly denied the motion because the provision of AEDPA that bars
“second and successive petitions” forecloses on Rule 60(b) motions on the grounds of an intervening change in law.
On appeal to the U.S. Supreme Court, Gonzalez will argue that Rule 60(b) provides a judicially recognized
procedure to challenge final judgment and AEDPA should not be read too expressly, impliedly override or otherwise
repeal Rule 60(b). Further, the Circuit Court did not adhere to the doctrine of Constitutional Avoidance because its
decision calls into question Gonzalez’s Constitutional Due Process rights. [Summarized by Tyler Prout.]
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Bell v. Thompson
Argued: 04/26/05
No. 04-514
Court below: 374.3d 281 (6th Cir. 2003)
Full Text: http://laws.findlaw.com/6th/03a0006p.html
HABEAS CORPUS (Whether a Court of Appeals Abuses Its Discretion by Withdrawing Its Final Judgment when It
Remands a Death Penalty Case to Consider New Evidence)
The issue in this case is whether the Sixth Circuit Court of Appeals abused its discretion when it withdrew its final
judgment denying a habeas corpus petition and ordered a district court to consider new evidence.
In 1985 Gregory Thompson (Thompson) was convicted of first-degree murder and sentenced to death. Thompson’s
conviction and sentence were affirmed on direct appeal. Thompson sought a federal writ of habeas corpus, claiming
ineffective assistance of counsel and disputing the evidence presented to establish his competency to stand trial. The
United States District Court for the Eastern District of Tennessee (District Court) denied the petition. The Sixth
Circuit Court of Appeals (Court of Appeals) affirmed. While Thompson’s appeal was pending, he also petitioned the
District Court to supplement the record with a psychiatrist’s deposition that was discovered but not presented in the
federal habeas proceeding. Both the District Court and the Court of Appeals denied this request. The United States
Supreme Court (The Court) denied his petition for a writ of certiorari. In 2004, the Tennessee Supreme Court set a
date for Thompson’s execution. Thompson filed a petition providing notice of incompetency to be executed. While
Thompson fought the execution, the Court of Appeals conducted a second review of Thompson’s federal habeas
appeal and withdrew its previous judgment and opinion. The Court of Appeals remanded the case to the District
Court for an evidentiary hearing, finding psychiatrist’s deposition taken during the federal habeas proceedings was
relevant to Thompson’s mental state and his claim of ineffective assistance of counsel. On appeal to the United
States Supreme Court, the State of Tennessee (the State) will argue that the Court of Appeals abused its discretion in
withdrawing its prior judgment because the Court of Appeals should only reconsider the merits of a decision that has
become final in extraordinary circumstances or a miscarriage of justice. The State will argue the deposition of the
mental health expert was available to defense counsel and did not affect the jury’s determination of Thompson’s
guilt. Additionally, the State will argue the withdrawal of judgment violates Federal Rule of Appellate Procedure 41
and is inconsistent with the principles of finality and comity. [Summarized by Hannah Nilson.]
Arthur Andersen, LLP v. United States
Argued: 04/27/05
No. 04-368
Court below: 374 F.3d 281 (5th Cir. 2004)
Full text: http://caselaw.lp.findlaw.com/data2/circs/5th/0221200p.pdf
EVIDENCE (Whether Witness Tampering Statute Defines “Corrupt” as Impeding an Investigation and Whether an
Official Proceeding Can Be a Scheduled or Ongoing Investigation)
The issue in this case is whether auditors’ destruction of documents prior to a scheduled SEC investigation
constitutes corruption designed to interfere with an official proceeding.
Arthur Andersen, LLP (Anderson) audited Enron's publicly filed financial statements. In 2001, the SEC began a
formal investigation of Enron and subpoenaed Andersen's records. Andersen was convicted on a single count of
witness tampering based on allegations the firm corruptly persuaded employees to comply with the firm's document
retention policy. At trial, Andersen objected to the jury instructions concerning two key elements of the offense: the
definition of “corrupt” as intending to withhold an object or impair its availability in order to impede an “official
proceeding.” The jury instructions defined an official proceeding as any investigation that is ongoing or scheduled to
begin. Andersen moved for a judgment of acquittal, which the United States District Court for the Southern District
of Texas (District Court) denied. The United States Court of Appeals for the Fifth Circuit affirmed, holding the
intent to impede meets the standards of corrupt persuasion and that proceedings that are ongoing or scheduled
satisfies the “official proceeding” language of the statute. On appeal to the United States Supreme Court, Andersen
challenges the standard that impeding production of evidence constitutes corruption. Andersen argues that the
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statute applies only when the defendant specifically intended to make documents or testimony unavailable to a
specific official proceeding. [Summarized by Ian Jeffrey Slavin.]
Oregon v. Guzek
Date: 04/25/05
No. 04-928
Court below: 86 P.3d 1106 (2004)
Full text: http://159.121.112.45/S45272.htm
EVIDENCE (Admissibility Of Aggravating Evidence And Alibi Evidence Previously Excluded At Trial During A
Penalty-Phase Proceeding)
The issues in this case are whether aggravating evidence, victim-impact evidence, and mitigating evidence excluded
by the trial court may be admissible during a defendant’s subsequent penalty-phase proceeding.
Randy Lee Guzek (Guzek) was convicted of aggravated murder and sentenced to death. During the first automatic
and direct reviews of the death sentence, the Oregon Supreme Court (state supreme court) remanded the case back to
trial court for compliance with a new United States Supreme Court (the Court) ruling requiring the jury consider
general mitigation questions when deciding whether to sentence a convict to death. During the second penalty-phase
proceeding, the state presented evidence of the crime’s impact on Guzek’s victims, which the Court ruled
permissible under the Eighth Amendment. Guzek was again sentenced to death. He challenged the second sentence
on the relevance of the victim-impact evidence in his case. The state supreme court found the evidence irrelevant
and remanded the case for a third penalty-phase proceeding. During the third sentencing phase, the State could either
sentence Guzek to life or empanel a jury to chose between a sentence of death, a newly-enacted life imprisonment
without parole sentence (“true life”) or a life imprisonment with the possibility of release or parole sentence
(“ordinary life”). Guzek waived his ex post facto rights to become eligible for a “true life” sentence. The State did
not instruct the jury to consider a true-life sentence, and the jury sentenced Guzek to death. On the third appeal of
his sentence, Guzek challenged the true-life provision and raised issues of admissibility of three types of evidence
during the penalty-phase proceeding. The state supreme court reversed Guzek’s sentence a third time, holding the
state improperly withheld information of the “true-life” sentence from jury instructions. The state supreme court
ruled that the State may not retroactively apply “aggravating evidence” provisions in sentencing Guzek. The state
supreme court held that the victim’s right to submit relevant victim-impact evidence outweighed Guzek’s ex post
facto rights. Finally the state supreme court held that the trial court erred in excluding alibi evidence, as it was
highly relevant to a critical issue during the third penalty-phase proceeding. [Summarized by Noelle S. Kompkoff.]
Small v. United States
Decided: 04/26/05
No. 03-750
Full text: http://laws.findlaw.com/us/000/03-750.html
CRIMINAL PROCEDURE (Congressional Record Must Show Convincing Intent to Apply Statute to Foreign
Convictions)
The United States Supreme Court held 5-3 (Opinion by Breyer; dissent by Thomas; Rehnquist took no part in this
decision) that barring a convincing indication otherwise, it is assumed that Congress intends a statute using the
phrase “convicted in any court” to apply to domestic, not foreign convictions.
Gary Sherwood Small (Small) was convicted in Japanese court of trying to smuggle firearms and ammunition into
Japan. Small served five years in prison in Japan, and, after returning to America, bought a gun. Small was charged
with unlawful gun possession under 18 U.S.C. Section 922(g)(1), which forbids gun possession by a person
“convicted in any court” of a crime punishable by a year or more in prison. Small pled guilty and later challenged
his conviction, arguing that since his prior conviction was foreign it fell outside the scope convictions applicable to
the illegal gun possession statute. Both the United States District Court for the Western District of Pennsylvania
(District Court) and the United States Court of Appeals for the Third Circuit (Court of Appeals) rejected Small’s
argument. The United States Supreme Court (The Court) reversed. The Court held statutory review may presume
that Congress intends statutes to have domestic, not extraterritorial, applications unless Congress provides clear
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indications otherwise. The Court found no reason to believe Congress considered including foreign crimes in the
gun possession statute based on an examination of the language of the statute itself, the legislative history, and
evidence offered by the Government. The Court concluded there was no convincing indication that Congress
intended the statute to reach beyond domestic convictions and include foreign convictions. [Summarized by Eric
Leonard.]
Pace v. DiGuglielmo
Decided: 04/27/05
No. 03-9627
Full text: http://laws.findlaw.com/us/000/03-9627.html
ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT (Statute of Limitations For Filing a Habeas
Petition Tolls Only While a Properly Filed Application for State Post-Conviction Review is Pending)
The United States Supreme Court held 5-4 (Opinion by Rehnquist; dissent by Stevens) that the petitioner was not
eligible for statutory or equitable tolling of the statute of limitations for filing a federal habeas petition while his
improperly filed application for state relief was pending.
John Pace (Pace) pleaded guilty to second-degree murder and possession of an instrument of crime in a
Pennsylvania state court. Pace filed a petition under the Pennsylvania Post Conviction Hearing Act (PCHA). The
Pennsylvania Supreme Court (state supreme court) denied relief as it was untimely. Four years later, Pace filed a
petition under the Pennsylvania Post Conviction Relief Act (PCRA), which had replaced the PCHA in 1988 and was
amended in 1995 to include a statute of limitations on filing. The Pennsylvania Superior Court denied his PCRA
petition as untimely, as it did not fall within any of the statutory exceptions allowing the statute of limitations to be
tolled. The state supreme court denied review without comment. Upon exhausting his state court remedies, Pace
filed a federal habeas petition in the United States District Court for the Eastern District of Pennsylvania (District
Court.) The District Court found that Pace was entitled to statutory tolling of the statute of limitations under the
Antiterrorism and Effective Death Penalty Act (AEDPA) while consideration of his PCRA petition was pending.
The United States Court of Appeals for the Third Circuit reversed, concluding that the PCRA time limit on filing
was a condition to filing rather than a condition to obtaining relief. The United States Supreme Court affirmed,
holding that Pace’s failure to file within the time limit set by statute precludes statutory tolling. As Pace waited
years without valid reason to pursue his state claim, and then months more before pursuing a federal habeas claim,
his lack of diligence precluded a claim to equitable tolling. [Summarized by Ian Jeffrey Slavin]
Lamarque v. Chavis
Certiorari granted: 05/02/05
No. 04-712
Court below: 382 F.3d 921 (9th Cir. 2004)
Full Text: http://caselaw.lp.findlaw.com/data2/circs/9th/0117072p.pdf
ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT (Antiterrorism and Effective Death Penalty Act’s
One-Year Statute of Limitation for Bringing a Federal Habeas Corpus Petition was Tolled)
The issue in this case is whether Chavis’s federal petition was filed within the one-year statute of limitations provide
by the Antiterrorism and Effective Death Penalty Act.
Reginald Chavis (Chavis) was convicted of attempted first degree murder and sentenced to life with the possibility
of parole. Chavis appealed his conviction to the California Court of Appeals and California Supreme Court; both
appeals were denied. Chavis then field a habeas petition in Sacramento Superior Court and in the California
Supreme court both of which were denied. Chavis then field a second habeas petition in the Sacramento Superior
Court (Superior Court), however the Superior Court held the petition not filed because Chavis had not filed out the
habeas form in accordance with court procedures. One month later, Chavis re-filed his petition, which the Superior
Court held was bared because it was presented in a “piecemeal” manner and that the claim was not presented with
due diligence because seven years had passed between Chavis conviction and the second petition. Chavis then field
a federal habeas petition in the United States District Court for the Eastern District of California (District Court).
The District Court found that Chavis was not entitled to a statutory tolling for state habeas petitions filed prior to the
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enactment of Antiterrorism and Effective Death Penalty Act (AEDPA) and, because his subsequent state petitions
were field more than one year after ADEPA was enacted, the federal petition was also bared. Chavis then appealed
to the United States Court of Appeals for the Ninth Circuit (Court of Appeals) which held that Chavis habeas
petition was timely filed. The Court of Appeals held that Chavis is entitled to tolling while his second round of state
petitions were pending, even though the petitions were denied on procedural grounds. The Court of Appeals
reasoned that that, so long as a state procedure for filing the habeas petition exists, the petition is pending while the
state court considers it, regardless whether the decision untimely or on the merits or on procedural grounds. Thus,
the Court of Appeals found that Chavis was entitled to tolling for the three-year interval between his first round
petitions to the California state courts and the Court of Appeals because the California state court had dismissed it
on the merits. Additionally, since the AEDPA took effect 2 years after Chavis’s first round of state petition, the one
year statute of limitations under the AEDPA did not start to run until one day after the California Supreme Court
denied Chavis’s habeas petition. [Summarized by Hannah Nilson.]
9TH CIRCUIT
Biwot v. Gonzales
No. 03-71456 (04/14/05)
Before Circuit Judges Fletcher, McKeown, and Gould
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/C0C75E479E2FB52E88256FE200778B36/$file/0371456.pdf?op
enelement
CONSTITUTIONAL LAW / DUE PROCESS / RIGHT TO COUNSEL
Opinion (McKeown): Biwot, a citizen of Kenya, petitioned for review of a Board of Immigration Appeals (BIA)
order dismissing his appeal from an order of removal. Biwot came to the United States on a non-immigrant student
visa in 1996. In 1999, Biwot was involved in a brawl that resulted in a conviction for third degree assault. The
conviction prompted the former Immigration and Naturalization Service (INS) to charge Biwot with failure to
maintain his student status. The issue on appeal was whether Biwot was denied his right to counsel under the Due
Process Clause when the Immigration Judge allowed Biwot, who was incarcerated and diligently seeking counsel
only five business days to obtain counsel. The regulations provide that “the alien may be represented in proceedings
before an Immigration Judge by an attorney or other representative of his or her choice.” Furthermore, the Ninth
Circuit had held that the Immigration Judge must provide aliens with reasonable time to locate counsel and permit
counsel to prepare for the hearing–a fact-specific inquiry. Considering the limited amount of time given Biwot to
secure counsel and the fact that Biwot did not knowingly and voluntarily waive his right to counsel, the Ninth
Circuit held that Biwot was denied his statutory right to counsel. PETITION AS TO THE DENIAL OF COUNSEL
CLAIM GRANTED AND CASE REMANDED WITH INSTRUCTIONS. [Summarized by Allison Abbott]
U.S. v. Nava
No. 03-30010 (04/18/05)
Before Circuit Judges O’Scannlain, Rymer, and Bybee
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6A1B530D534423F488256FE7005C1750/$file/0330010.pdf?ope
nelement
CRIMINAL LAW / PROPERTY FORFEITURE / LEGAL TITLE
Opinion (Bybee): Victor Nava, Sr., (Victor) was convicted in district court of drug possession and distribution
charges. The jury rendered a special verdict that three properties used in facilitating the crimes should be forfeited
to the government. Victor’s daughter (Victoria) petitioned the district court, claiming that the forfeiture of two
properties was in error, because she held legal title. The government acknowledged that Victoria held legal title, but
argued that the conveyances were a sham and that Victor actually controlled the properties. The district court agreed
with the government and denied Victoria’s petition. Victoria appealed. The Ninth Circuit reviewed the forfeiture
statute which provided that a person convicted of a drug charge punishable by more than one year of imprisonment,
shall forfeit (1) property constituting proceeds from the violation, or (2) any of the person’s property used to
facilitate the violation. The Ninth Circuit noted that criminal forfeiture proceedings operate in personam against the
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criminal and serve as part of the penalty. The Ninth Circuit found that Victoria gained title through family gifts,
prior to Victor’s violations. The Ninth Circuit discussed that if Victoria was a mere “straw owner,” the government
should proceed under civil forfeiture or prosecute Victoria for criminal charges—and that the criminal forfeiture
statute should not be used as “a tool to punish those who associate with criminals.” Therefore, the Ninth Circuit
held that the forfeiture of Victoria’s property was in error. REVERSED AND REMANDED. Dissent by Judge
Rymer. [Summarized by Matt DeVore]
U.S. v. Cortez-Arias
No. 04-10184 (04/18/05)
Before Circuit Judges D. Nelson, Kleinfeld, and Gould
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/B739A308119BE66A88256FE7005C3993/$file/0410184.pdf?op
enelement
CRIMINAL LAW / SENTENCING / ILLEGAL REENTRY / CRIME OF VIOLENCE
Opinion (Gould): Cortez Arias appealed his 46 month prison sentence based upon a sixteen level increase in offense
level for illegal re-entry into the United States. Cortez-Arias was originally deported after being convicted of
shooting at an inhabited dwelling. Under the United States Sentencing Commission,(USSG) a crime of violence
lead to a sixteen level increase in prison sentence. The lower court reasoned that the crime was violent because
inhabited meant that the building was currently being used for dwelling purposes—whether occupied or not—and
that an inhabited dwelling is one that it is lived in. The Ninth Circuit discussed California caselaw which interpreted
shooting at an occupied building as having intent to commit harm or likely to deal harm and that in this there was
always the potential for violence from this action. Moreover, the court stated that because there was always a
potential of violence, there was also a threatened use of physical force on someone living at that dwelling which was
one definition used to define crime of violence in the USSG. The Ninth Circuit held that the threatened use of
physical force was a one type of crime of violence under USSG and upheld the sentence.
AFFIRMED. [Summarized by Nicholas Wood]
Baldwin v. Placer County
No. 04-15848 (04/19/05)
Before Circuit Judges Noonan, Thomas, and Fisher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/A800F3A983BC382E88256FE7007CD109/$file/0415848.pdf?op
enelement
CRIMINAL PROCEDURE / FOURTH AMENDMENT / UNLAWFUL SEARCH
Opinion (Noonan): Michael Baldwin and his wife, Georgia Chacko, were accused by an informant of possibly
growing marijuana in their home. Jeff Potter, an officer of the marijuana eradication team (MET) of the County’s
Sheriff Department applied for a search warrant, claiming that he had searched through Baldwin’s trash and
discovered marijuana and marijuana growing supplies. A group of five officers including Potter entered Baldwin’s
house “para-military style” without knocking and Baldwin and Chacko were both forced to the ground with guns to
their heads. Baldwin brought suit on claims of excessive force, judicial deception, and conspiracy by the MET
team, all in violation of 42 U.S.C. sec. 1983. The district court denied County’s motion for summary judgment on
the ground of the qualified immunity of the officers. The Ninth Circuit found that Baldwin’s civil right to be free
from battery by gun-wielding officers was violated, because there was no exigency of entry due to no belief of a
danger to the officers existing inside the house. The Ninth Circuit also found that the County violated the Fourth
Amendment upon entering the house when much of the evidence to justify the search had been fabricated.
AFFIRMED. [Summarized by Marissa Winn]
U.S. v. Zone
No. 03-10361 (04/18/05)
Before Circuit Judges Wallace, Kozinski, and Thomas
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/40B38756C4B4AB2D88256FE7005BD553/$file/0310361.pdf?o
penelement
CRIMINAL PROCEDURE / PLEA BARGAIN / DOMINATION OR COLLUSION
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Opinion (Per Curiam): Contrayer Zone pled guilty to a criminal offense in state court as part of a plea bargain.
Evidence in the case was provided to federal agencies. Months later, the federal government indicted Zone for the
same act. Zone appealed the district court’s denial of his motion to dismiss the federal criminal indictment in
violation the Double Jeopardy Clause. Zone alleged that federal prosecutors orchestrated the state plea to obtain the
sworn admission of guilt for the federal charges. In an interlocutory appeal, the Ninth Circuit affirmed the district
court’s decision, finding that the federal government may encourage state agencies to purse plea bargains and take
advantage of the evidentiary record from state trials unless the federal authorities dominate the state’s prosecution.
The Ninth Circuit noted that an exception to this general rule occurs when federal authorities dominate the state’s
prosecutorial discretion, using the state charge as a pretense to obtain evidence against the defendant for a federal
charge, known as the Bartkus exception. The Ninth Circuit concluded that Zone lacked the evidence of federal
domination or collusion. AFFIRMED. Dissent by Judge Wallace. [Summary by Michael Edwards]
OREGON SUPREME COURT
Kaib’s Roving R.Ph. Agency v. Employment Dept.
Case No.: S51165 http://www.publications.ojd.state.or.us/S51165.htm
AREA OF LAW: ATTORNEY FEES
HOLDING: (Opinion by Gillette, J.) When a court finds that a state agency acted without a reasonable basis in fact
or law, ORS 183.497(1)(b) imposes a mandatory obligation to award attorney fees and costs.
This dispute arises out of a judicial review proceeding in which the Court of Appeals vacated and remanded for
reconsideration an order of the Employment Department (Department) that affirmed an unemployment tax
assessment against Kaib’s Roving R.Ph. Agency (Kaib’s). The Court of Appeals denied Kaib’s request for attorney
fees and costs under ORS 183.497(1). The Supreme Court found that under ORS 183.497, attorney fees and costs
may be awarded "if the court finds in favor of the petitioner.” The Department argued that “in favor” only refers to
victories on the merits of the claim, not procedural matters. The Court determined that a decision of the court may
be “in favor of” a party, even if it addresses only procedural maters. The Court then turned to Kaib’s argument that
because the Court of Appeals misconstrued its reading of ORS 183.497(1)(b), it erred in failing to award attorney
fees. The Court agreed. Under ORS 183.497(1)(b) the court "shall allow…attorney fees and costs" if the court finds
that a state agency "acted without a reasonable basis in fact or in law." Contrary to the Court of Appeals’ reading,
the statute goes beyond merely allowing court discretion to award fees but, instead, requires the court to award fees
under the circumstances described. Since this case fits the other criteria in ORS 183.497(1)(b), Kaib’s request for an
award of attorney fees was mandatory. Reversed and remanded to award reasonable attorney fees and costs.
[Summarized by Laura Watts.]
OREGON COURT OF APPEALS
State v. Eagle
Case No.: A119884 http://www.publications.ojd.state.or.us/A119884.htm
AREA OF LAW: CRIMINAL LAW
HOLDING: (Opinion by LANDAU, P.J.) When defendant failed to pay child support, the trier of fact may assume
he is “without lawful excuse,” when the facts permit reasonable inference that a defendant was both capable of
gainful employment and capable of making the required child support payments.
Defendant Eagle was convicted of criminal nonsupport in violation of ORS 163.555(1). The statutory element at
issue is “A person commits the crime of criminal nonsupport if,…the person refuses or neglects without lawful
excuse to provide support…” At trial, Eagle moved for judgment of acquittal because the state neglected to prove
he was “without lawful excuse.” Lawful excuse is a condition, not of the defendant’s own making, which prevents
the ability to pay support. A state may demonstrate absence of lawful excuse by proving the requirement to pay, the
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ability to pay, and the failure to pay. The trial court correctly denied Eagle’s motion because the uncontested facts
permitted the inference that Eagle was “without lawful excuse.” The facts established that Eagle was capable of
working and was working during the relevant period in which he was required to pay support. The trial court did
not error in denying defendant’s motion for acquittal. Affirmed. [Summarized by Jodee Jackson.]
State v. Schlender
Case No.: A120594 http://www.publications.ojd.state.or.us/A120594.htm
AREA OF LAW: CRIMINAL LAW
HOLDING: (Opinion by Deits, J. pro tempore) A defendant’s actions constitute reckless manslaughter if a rational
juror could determine that the defendant was aware of and disregarded a substantial risk that resulted in the loss of
human life.
Attempting to commit suicide, Duane Schlender drove his car into a restaurant at 40 – 45 miles per hour. On impact,
his car crashed through the restaurant’s wall and killed a janitor. The state proffered evidence that Schlender knew a
janitor could be on the premises. Furthermore, the building was well lit, and the janitor had parked his van in plain
view. The jury subsequently found Schlender guilty of reckless manslaughter. On appeal, Schlender argued that his
actions were not reckless because he did not know that the janitor was in the building. However, a defendant’s
actions do not constitute reckless manslaughter because he knows his actions could result in the loss of life. Rather,
a defendant’s actions constitute reckless manslaughter because he is aware that his actions could result in the loss of
life. In the end, the court found that a rational juror could find Schlender met this element. Affirmed. [Summarized
by Mark B. Mayer.]
State v. William
Case No.: A119224 http://www.publications.ojd.state.or.us/A119224.htm
AREA OF LAW: EVIDENCE
HOLDING: (Opinion by Landau, P.J.) Admission as evidence of Intoxilyzer certificates does not violate a
defendant’s confrontation rights as guaranteed by Article 1, Section 11 of the Oregon Constitution because public
and official records are a historical exception to the confrontation rights guarantee.
William appealed from a conviction for driving under the influence of intoxicants. At trial, the state offered into
evidence two documents certifying that William’s .12 percent blood alcohol content (BAC) test result was accurate.
William claimed that admittance of the certificates violated his confrontation rights, as guaranteed by Article 1,
section 11 of the Oregon Constitution because the state failed to offer proof that the technician who prepared the
documents was unavailable to testify. William argues that to avoid a violation of confrontation rights, the hearsay
must satisfy a two-part test that requires proof that the declarant is unavailable, and that the statement otherwise
bears adequate indicia of reliability. The court held that the unavailability requirement that otherwise may apply
under Article 1, section 11 does not apply in this case, because the framers of the Oregon Constitution would have
understood public and official records to have constituted an exception to the confrontation rights guarantee. The
trial court did not err in admitting the Intoxilyzer certifications in this case. Affirmed. [Summarized by Cristin
Casey.]
State v. Johnson
Case No.: A114694 http://www.publications.ojd.state.or.us/A114694.htm
AREA OF LAW: CRIMINAL PROCEDURE
HOLDING: (Opinion by Schuman, J.) A defendant is denied his constitutional confrontation rights when the trial
court allows introduction of redacted testimony of a non-testifying co-defendant.
Johnson appeals a conviction of felony murder, manufacture of a controlled substance and felon in possession of a
firearm. At issue were the denial of motion to sever Johnson’s trial from that of his codefendant, denial of motion
for mistrial, and joinder of the drug manufacturing charges with the others under ORS 132.560. The Court of
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Appeals held that the trial court erred in not severing his trial from co-defendant and also found no interlocking facts
between the growth of marijuana and the rest of the charges to suggest that they were “connected together” or “parts
of a common scheme” as to justify joinder under ORS 132.560. Additionally, the Court held that the trial court
abused its discretion when it denied Johnson’s motion for a mistrial based introduction of redacted testimony of a
non-testifying co-defendant. Reversed and remanded for new trial. [Summarized by Erin Levine.]
ARTICLE OF THE WEEK
Why Zacarias Moussaoui's guilty plea likely won't spare his life – by, Michael C. Dorf
(FindLaw, April 28, 2005)
Defendants facing the possibility of the death penalty frequently plead guilty in exchange for a promise from
the government not to seek execution. The practice is unsettling, as the threat of death may induce an
innocent person to plead guilty simply to save his skin.
Nonetheless, in an overburdened criminal justice system, the courts have accepted plea bargains as a necessary evil,
allowing prosecutors to promise leniency -- including the sparing of a defendant's life -- so that the government may
avoid the cost of a trial and the risk of an acquittal.
So long as the defendant "knowingly, voluntarily and intelligently" waives his right to a trial, the courts will accept
his guilty plea.
But what are we to make of the guilty plea of Zacarias Moussaoui? Last week, Moussaoui pleaded guilty to
conspiracy in the September 11, 2001, plot without any promise of leniency in exchange for his plea.
Although there will be no trial regarding his guilt, Moussaoui will shortly face a trial to determine whether he should
be sentenced to death or life imprisonment.
Ever since he angrily dismissed his attorneys in 2002, Moussaoui has been acting as his own lawyer, only
grudgingly accepting some assistance from standby counsel appointed by Federal District Judge Leonie Brinkema to
ensure fair proceedings.
What has Moussaoui's self-representation been like? In accepting Moussaoui's guilty plea last week, the judge said
he "is extremely intelligent with a better understanding of our legal system than some of the lawyers who have
appeared in court."
Yet Seymour Hersh, writing for the New Yorker, seemed to come closer to the mark when he said about a raft of
filings from Moussaoui during the summer of 2003, that they "contained some glimpses of acute intelligence and
awareness, but more often Moussaoui veered into angry ramblings."
And indeed, an examination of the tactical considerations that appear to underlie Moussaoui's decision to plead
guilty undermines the conclusion that he did so intelligently.
Why an 'unagreed' guilty plea can be intelligent
One might be tempted to treat every decision to plead guilty to a capital offense without a prosecutorial promise to
forego the death penalty as "unintelligent." But that would be inaccurate. A defendant could rationally decide to
plead guilty under such circumstances.
Some defendants feel genuine remorse for their conduct and wish to accept responsibility for it. A defendant who
participated in a crime under the influence of others may not have fully appreciated the gravity of the offense until
faced with the damage. Or, religious scruples, sometimes acquired after the commission of the offense, may lead a
defendant to plead guilty notwithstanding the possibility of a death sentence.
Moreover, whether or not a defendant feels genuine remorse, he may wish to seem remorseful in the hope of
appealing to the sentencing jury. For under federal law, the same jurors that determine the defendant's guilt or
innocence decide whether to impose the death penalty if they find him guilty.
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At sentencing, that jury is guided by the federal death penalty statute, which sets out a number of mitigating factors
that the jury must consider in deciding whether to impose the death penalty. Remorse is not expressly listed among
these, but it would certainly count under the catch-all provision for "other factors ... that mitigate against the
imposition of the death sentence."
In the eyes of many jurors, a defendant who contests his guilt, by definition, manifests no remorse: How could he be
remorseful about a crime, if he does not even admit that he committed it? Thus, the defendant who first contests his
guilt and then professes remorse only after he has been convicted, will typically find that the jury disbelieves his
expression of regret. "He's just feigning remorse to save his skin," the jurors will likely think.
Suppose, then, that a defendant believes that he is likely to be found guilty anyway, because the government's case
against him is very strong. He may calculate that his best hope of averting the death penalty is to plead guilty and, in
effect, throw himself on the mercy of the sentencing jury. Thus, he may rationally plead guilty even without any
prosecutorial promise of leniency.
Why Moussaoui's plea makes little sense
In short, there are a number of very good reasons why a defendant might plead guilty to a capital offense even
without a prosecutorial promise of leniency. But none of them appear to apply to Moussaoui.
Moussaoui is a fanatically religious man, but it is his very religious feeling that, he claims, justified his participation
in a plot to commit mass murder. Far from feeling genuine remorse, Moussaoui appears to regret only that he was
apprehended before he had the opportunity to complete his mission of destruction.
Moreover, Moussaoui has quite openly expressed these sentiments. He has amply exhibited his lack of genuine
remorse through his lack of even feigned remorse. So he can hardly be described as throwing himself upon the
court's mercy.
What about the strength of the case against Moussaoui? Is he merely accepting the inevitable by pleading guilty?
There is essentially irrefutable evidence that Moussaoui came to the United States on an al Qaeda mission to fly an
airplane into a building. But there are real doubts about whether Moussaoui was ever intended to be the 20th
hijacker on September 11, 2001, as the prosecution maintained.
Moreover, a skillful lawyer might have used those doubts to sow doubt on other elements of the government's case.
By pleading guilty, however, Moussaoui effectively eliminated that possibility.
Moussaoui's own misguided account of his plea
If Moussaoui did not plead guilty because of remorse, feigned remorse, or the overwhelming strength of the case
against him, why then did he do it?
The answer is not entirely clear, but his statements in the plea colloquy -- the oral exchange between the judge and
the defendant meant to ensure the plea is voluntary and that the defendant indeed committed the offense -- suggest
that Moussaoui thought he had tricked the prosecution.
Moussaoui acknowledged that he was an al Qaeda operative intent on flying an airplane into a building, according to
his account, the White House. But, he insisted, his plot was distinct from the September 11th plot. Accordingly, he
may think that the evidence of the death and destruction caused by the September 11th hijackings will be excluded
from his penalty trial.
If that is indeed Moussaoui's thinking, he is very much mistaken. Although the indictment setting forth the charges
to which he pleaded guilty does not specifically state that he was to be the twentieth hijacker, it clearly alleges that
he engaged in the same pattern of conduct as the other hijackers and was part of the broad al Qaeda conspiracy to fly
planes into buildings.
As the indictment charges -- and as Moussaoui admitted by pleading guilty -- that conspiracy resulted "in the deaths
of thousands of persons on September 11, 2001." The fact, if it is a fact, that Moussaoui's role in the conspiracy
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would have led to numerous additional deaths of different persons on a different date is legally and morally
irrelevant to whether he is guilty of the offense charged.
The symbolism of Moussaoui's sentencing hearing
If Moussaoui's logic in pleading guilty is faulty, does that mean that his plea is invalid? Hardly.
In requiring that a guilty plea be "intelligent," the law does not demand that it be wise. After all, most criminals--and
especially terrorists like Moussaoui--live their lives by a logic quite different from that of law-abiding citizens.
Thus, the law's requirement of "knowing, voluntary and intelligent" guilty pleas should not be taken literally. That
language is essentially a formula for the notion that the defendant understands that by pleading guilty, he waives his
right to a trial to determine his guilt or innocence. Likewise, the public should understand what Moussaoui's guilty
plea means. With the 19 September 11th hijackers dead and Osama bin Laden still at large, Moussaoui's trial was
always going to be about issues larger than his role in the 9/11 plot.
Fairly or not, Moussaoui was to serve as a kind of surrogate for the dead and absent defendants. Now that the issue
of Moussaoui's guilt is off the table, his sentencing hearing can play the role of stand-in trial for Osama bin Laden,
Mohammed Atta and the other villains now or forever beyond the reach of the courts. And that is unlikely to result
in any mercy being extended to the actual defendant.
FROM THE POND
4/7/2005
Re: [Ocdlapond] Is there an issue here or not?
[The question presented was whether there is a problem with a victim identifying potential suspects after being
escorted to the scene of the arrest by the police, rather than identification from a line up. The response…]
It's called a "show-up" identification (vis a vis a "lineup") and it happens all the time. I've argued State v. Classen,
285 OR 221 (1979); United States v. Wade, 388 U.S. 218 (1967) and their progeny to argue deprivation of counsel at
an important stage of the proceedings and that the procedure was unduly suggestive.
4/8/205
Re: [Ocdlapond] State v. Jayne & UAs
[In response to a judge allowing the DA to reopen a DUII hearing…]
No second bites at the apple. McMillan, 189 Or App 230 (2003) ("Having had fair notice that defendant was
challenging the validity of his stop, the state cannot seek a remand to introduce evidence on that issue.") And
133.673 (2)-- Only a msupp which has been denied can be reopened.
4/12/2005
Re: [Ocdlapond] interesting query posted for friend
[Response to request for cases to “support a Motion to Dismiss for DA / police destruction of criminal investigation
materials before trial.”]
The theory you are talking about is spoliation of evidence and goes back to Roman law. One could look at the
following cases: The Julia, 12 US 81(1814)[discussuses doctrine of "odium spoliatoris"]; US v Castillaro, 67 US
17(1862)[ "Omnia presmuntur contra spoliatorem."]; St v Lance, 48 OrApp 141(1980); St v Mower, 50 OrApp 63
(1981)[D must be able to reasonable contend that destroyed evidence would have advanced theory of defense.]; St
v Zinsli 156 Or 194(1998); Watch out for St v Clark, 171 Or App 1.(2000).
4/13/2005
[Ocdlapond] Surprise defense to theft of property
Here's a defense to Theft charges that will throw the prosecution off its game. And it would apply to most theft 2s
and above, as long as they were thefts of property and not cash.
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I've previously written about challenging the value of the merchandise, relying on State v. Pulver, 194 Ore. App.
423 (Or. Ct. App., 2004), which stands for the idea that the sale price is not necessarily the value of the
merchandise: it may be less, depending on a number of factors, including sales, discounts and -- maybe -- even
future sales and discounts.
The new argument is this: does the defendant know how much the property is worth? To put it another way, does
he know the bike he's taking is worth more than $750? Or to put it a 3rd way, does the mental state element
"knowingly" apply to value?
To show that the mental state applies to the value, you'd want to look at the very recent decision in State v. Lane,
198 Ore. App. 173 (Or. Ct. App., 2005)(although defendant conceded that he knew that he was in custody when he
ran from the courtroom and that he was guilty of third-degree escape, the State presented no evidence that defendant
knew, or circumstances existed under which he could have been held to have known, that he was escaping from a
correctional facility when he fled from the courtroom.)
There's no easy way for the state to distinguish Lane from theft cases. If you don't win an MJOA on this issue
(reducing the charge to a lesser-included), then you'd want to submit a special jury instruction. For preservation
purposes, it's not enough to object to the state's jury instruction: you'd have to submit your own that specifically
applied the mental state to the value.
 Note further response qualifying that defense works only if prosecutor mistakenly pleads knowingly as element:
Although prosecutors often plead it, "knowingly" is not an element of theft. The only mens rea element is "intent to
deprive another." ORS 164.015
4/14/2005
[Ocdlapond] Follow up on suggestion regarding defendant's knowledge of value
If you plan on making an argument/requesting a jury that the defendant needs to know the value of merchandise
stolen, see State v. Van Norsdall. Van Norsdall is a bad opinion -- with a dissent by Leeson -- that says you don't
have to know you were a felon to be convicted of felon in possession. Van Norsdall was subsequently disavowed by
Andrews, and the Lane opinion from last month clearly and unambiguously adopts the rationale espoused in the Van
Norsdall dissent. But what really makes Van Norsdall interesting is this quote from the majority opinion:
Just as a conviction for theft in the third degree would not be reversed on the basis of a defendant's unchallenged
testimony that he did not know that the value of the property exceeded $ 50, see ORS 164.043(b), because the value
of the property is independent of the question of whether the defendant is or should be personally responsible for his
acts, here, being a felon is separate from the acts that constitute the crime of possessing a firearm, and is not subject
to a culpable mental state. In other words, a felon will not be acquitted of the crime of being a felon in possession of
a firearm simply because he claims to have forgotten his prior felony conviction or professes not to understand what
a "felon" is. That is the necessary and logical consequence of the dissent's opinion, and we reject it. Defendant's
ignorance of his own status is no excuse.
Worth citing, given that the dissent by Leeson is now the law.
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