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                                 OCDLA Email Summary
                           February 15, 2005 – February 28, 2006

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   Oregon Court of Appeals……........ 9
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                                       -1-
US SUPREME COURT

Samson v. California
Argued: 02/22/06
No. 04-9728
Court below: Unpublished
Full text: Unavailable

FOURTH AMENDMENT: (Whether A Statute Requiring Parolees Submit to At-Will Police Searches is an Illegal
Search and Seizure)

The issue in this case is whether a statute requiring parolees to consent to at-will police searches for the term of their
parole violates the fourth amendment right to be free from illegal searches and seizures.

Donald Samson, a parolee, was searched by a San Mateo police officer while walking on a public street. Under Cal.
Penal Code Sec. 3067(a) (statute), parolees must allow at-will searches by officers as a condition of parole. During
the search, the officer found methamphetamine on Samson and arrested him. Samson appealed his trial court
conviction for possession of methamphetamine on the grounds that the evidence was acquired in a search that
violated his Fourth Amendment right to be free from illegal searches and seizures. He argued that officers were not
required to possess “reasonable suspicion” in conducting statutory searches and that his search was thus “arbitrary,
capricious and harassing.” The California Court of Appeals for the First District affirmed the conviction, upholding
the validity of the statute, and stating that Samson’s search was not arbitrary because the officer believed Samson
could have been an at-large parolee. Samson petitioned directly to the United States Supreme Court (the Court),
where he will argue that the parole search condition violates his Fourth Amendment rights because it does not
require that searching officers possess individualized, legal suspicions and thus cannot be deemed reasonable. He
will ask the Court to declare the statutory search provision unconstitutional and reverse his conviction.
[Summarized by Catherine Kauffman.]

Holmes v. South Carolina
Argued: 02/22/2006
No. 04-1327
Court below: 605 S.E.2d 19 (2004)
Full text:
http://www.judicial.state.sc.us/opinions/displayOpinion.cfm?caseNo=25886

EVIDENCE (Whether a Rule of Evidence Making a Criminal Defendant’s Showing of Third Party Guilt
Inadmissible Violates His Constitutional Right to Present a Complete Defense)

The issue in this case is whether South Carolina’s rule of evidence which provides that evidence of a third-party’s
guilt is inadmissible violates a criminal defendant’s right to present a complete defense.

In 1989, Bobby Lee Holmes (Holmes) was arrested for the robbery, rape, and murder of an elderly woman (the
victim). Holmes’ arrest occurred two months after the incident and was based mainly on forensic evidence. In his
defense at trial, Holmes attempted to offer evidence that a third man, Jimmy White (White), had actually committed
the crimes. Holmes attempted to offer evidence of four witnesses who all saw White at or near the victim’s home on
the day of the incident. In addition, Holmes attempted to introduce the testimony of four separate witnesses to
whom White had stated that he had assaulted the victim. Holmes’ reasoning for offering these witnesses was
twofold. First, since it was undisputed that the crimes against the victim were perpetrated by one man, White’s guilt
would prove Holmes’ innocence. Second, some of the testimonies affirmed Holmes’ contention that the forensic
evidence the police used to arrest him was tainted. The trial court conceded that the evidence was probative of
Holmes’ guilt; however, it relied on South Carolina’s rules of evidence and ruled that Holmes’ evidence of third
party guilt was inadmissible. Holmes was ultimately sentenced to death. The South Carolina Supreme Court
affirmed the trial court’s ruling. On appeal to the United States Supreme Court, Holmes will argue that South
Carolina’s rule of evidence barring him from presenting evidence of third party guilt violates his constitutional
rights to present a complete defense, as embodied in the sixth and fourteenth amendments to the United States
Constitution. [Summarized by Ian Johnson.]


                                                      -2-
Cunningham v. California
Certiorari granted: 02/21/06
No. 05-6551
Court below: Unpublished opinion
Full text: Unavailable

EVIDENCE (Hearsay Which Does Not Fall Under a Firmly Rooted Hearsay Exception Is Admissible Under A
Statutorily-Created Minor Abuse Exception)

A trial court properly admitted hearsay evidence under a statutory “minor abuse victim” exception even though the
statements would not otherwise be admissible under a firmly rooted hearsay exception.

A jury convicted John Cunningham of continuous sexual abuse of a child under the age of 14. Cunningham was
sentenced to 16 years, the upper term, based on the trial court’s finding that the crime was violent and that the
victim, Cunningham’s son, was especially vulnerable. Cunningham appealed the conviction and sentencing. He
argued the trial court erred and violated his due process rights by admitting hearsay under the statutory minor abuse-
victim exception; and in sentencing him to an upper term based on facts not found by a jury as required by Blakely
v. Washington, 542 U.S. 296 (2004). Under Cal. Evid. Code Sec. 1360, otherwise inadmissible hearsay statements
by a victim under the age of 12 are admissible if the statement’s making exhibits significant indicia of reliability and
the minor testifies at trial. The Court of Appeals for the First District, Division 5 of California (Court of Appeals)
affirmed. The Court of Appeals found indicia of reliability in the hearsay statements, noting the initial statement
directly inculpated Cunningham using typical childlike language; subsequent statements were consistent and
revealed intimate knowledge of violent sexual assaults. The Court of Appeals rejected Cunningham’s claim that
victim’s admitted past dishonesty with child services showed a lack of reliability. Finally, the Court of Appeals
rejected Cunningham’s sentencing challenge, finding the range of sentences is included within the statute and noting
that trial courts have broad discretion in sentencing and need only identify one aggravating factor to property impose
upper term sentencing. [Summarized by Catherine Kauffman.]

Oregon v. Guzek
Decided: 2/22/06
No. 04-928
Full text: http://laws.findlaw.com/us/000/04-928.html

EIGHTH AMENDMENT (Defendant Not Guaranteed Right to Recall an Alibi Witness to Testify Concerning
Innocence at Sentencing Phase)

The United States Supreme Court unanimously held (opinion by Breyer, Alito did not participate) that the Eighth
Amendment does not guarantee a defendant the right to recall a trial witness to present new evidence concerning
innocence at sentencing.

Randy Lee Guzek was convicted of capital murder and sentenced to death. At trial, he presented two alibi witnesses.
Guzek requested that one of his alibi witnesses testify in person at the sentencing hearing. His request was denied, as
Oregon law only admits the trial transcript for innocence-related evidence at sentencing hearings. The Oregon State
Supreme Court ordered a new sentencing hearing, holding that the Eighth and Fourteenth Amendments guaranteed
the defendant’s right to present new evidence by live testimony. The United States Supreme Court (the Court)
vacated the Oregon Supreme Court decision, holding that a state can set reasonable limits on the evidence a
defendant can submit, as well as the manner in which it is submitted. The Court held that the Eighth Amendment
does not require a state to allow live “residual doubt” testimony at sentencing. The Court pointed to three reasons
why the Oregon restrictions were permissible. First, sentencing hearings do not deal with whether or not the crime
was committed, but rather with how. Second, the issues at question have already been litigated and decided and the
new evidence attacks a matter which, at sentencing, is not at issue. Third, the negative impact of the rule not
allowing new, live testimony is mitigated by the allowance of the complete transcript of all innocence-related
evidence presented at trial. [Summarized by Sam Groberg.]




                                                     -3-
Day v. Crosby
Argued: 02/27/06
No: 04-1324
Court Below: 391 F.3d 1192 (11th Cir. 2004)
Full Text: http://caselaw.lp.findlaw.com/data2/circs/11th/0410778p.pdf

HABEAS CORPUS (Whether a District Court has the Authority to Dismiss, Sua Sponte, a Habeas Petition that is
Untimely)

The issue in this case is whether a district court has the authority to dismiss, sua sponte, a habeas petition that is
untimely, even when the defense of statutory limitation has been waived by the opposition.

Patrick Day (Day) was convicted of second degree murder and sentenced to 55 years in prison. Over a year later,
Day filed multiple motions for state post-conviction relief, which were denied. Day filed a petition for federal
habeas relief 36 days later and the magistrate judge ordered the State to answer. In the answer, the State incorrectly
concluded that the petition was timely. No action was taken in the matter for several months until a newly assigned
magistrate judge ordered Day to show why the petition should not be dismissed as untimely. Day asserted that the
State agreed that the petition was timely. Day also contended that the limitations period tolled while he sought
review from the denial of his state post-conviction relief. The magistrate judge recommended the dismissal of the
petition and the district court adopted the recommendation. On appeal, the United States Court of Appeals for the
Eleventh Circuit affirmed the dismissal, holding that a district court has the authority to dismiss sua sponte an
untimely habeas petition. On appeal to the United States Supreme Court, Day will argue that a period of limitations
is an affirmative defense that courts may not enforce unless asserted by the opposition. Day will contend that giving
courts this discretion would destabilize the adversary process and undercut judicial neutrality. Furthermore, Day
will argue that the petition was timely and tolling of limitations should continue during the certiorari period.
Finally, Day will argue that habeas cases should not be distinguished as rigorously from civil cases as the previous
courts have done, as post-answer sua sponte dismissals are not the only way to defend the interests at stake in habeas
cases. [Summarized by Nathan Boderman]


9TH CIRCUIT

U.S. v. Rutledge
No. 05-10060 (02/14/06)
Before Circuit Judges Schroeder, Chief Judge, Canby, and Duffy, Senior
Judge for the Southern District of New York
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1F10A6EAA9146DD28825711400802A52/$file/0510060.pdf?op
enelement

CRIMINAL LAW / CIVIL ASSETS FORFEITURE REFORM ACT

Opinion (Canby): Anthony Rutledge was indicted for mail and wire fraud, and because of this the district court
issued a preliminary injunction seizing the assets of a nonprofit corporation Rutledge allegedly owned. The district
court held that the corporation’s assets would be subject to criminal forfeiture if Rutledge were convicted under the
Civil Asset Forfeiture Reform Act (“CAFRA”). The Ninth Circuit held that under 18 U.S.C. sec. 981(a)(1)(C), civil
forfeiture is available for proceeds of mail and wire fraud. In addition, the Ninth Circuit held that CAFRA allowed
for criminal forfeiture of proceeds of the mail or wire fraud crimes with which Rutledge was charged. The Ninth
Circuit went on to hold that while the proceeds of mail and wire fraud are subject to forfeiture, the assets of the
nonprofit organization were proceeds of the alleged mail and wire fraud. 18 U.S.C. sec. 981(a)(1)(C), the Ninth
Circuit held, clearly defines proceeds to be “property of any kind obtained directly or indirectly, as the result of the
commission of the offense giving rise to forfeiture, and any property traceable thereto, and is not limited to the net
gain or profit realized from the offense.” Because the government had failed to show probable cause, the Ninth
Circuit held that the assets of the nonprofit organization were not subject to forfeiture. VACATED. [Summarized by
Melissa Rogers]




                                                      -4-
U.S. v. Lynch
No. 02-30216 (2/10/06)
Before Circuit Judges Schroeder, Chief Judge, O'Scannlain, Rymer, Kleinfeld, Thomas, Silverman, Wardlaw, W.
Fletcher, Fisher, Rawlinson, and Clifton
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1583300B9A64AA6088257111004F7C00/$file/0230216.pdf?ope
nelement

CRIMINAL LAW / HOBBS ACT / COLLINS TEST

Opinion (Per Curiam): While in Montana, John Lynch asked a friend to visit, intending to kill his friend and steal
the money and drugs his friend would bring with him. After killing his friend, Lynch traveled to Las Vegas, using
the ATM card he stole from his friend. Las Vegas authorities legally taped conversations from Lynch, and a
Montana State court convicted Lynch of murder. The conviction was overturned because Montana does not allow
the use of non-consensual electronic surveillance, so the United States Attorney charged Lynch with violating the
Hobbs act, which applies to crimes depleting assets of individuals involved in interstate commerce. Lynch appealed
the conviction, arguing that the ATM transactions were not sufficient to effect interstate commerce. The Ninth
Circuit remanded the case for application of the Collins test, which applies when the effect on interstate commerce is
indirect and is used to determine whether the act is likely to have depleted "assets of an entity engaged in interstate
commerce." On remand, the district court found the Collins test satisfied, and Lynch again appealed the decision.
The Ninth Circuit affirmed the conviction, holding that convictions under the Hobbs Act may be proven by either an
indirect, or a direct effect on interstate commerce. AFFIRMED. Concurrence by Judge Kleinfeld. [Summarized by
David Wilson]

U.S. v. Bhagat
No. 03-10029 (02/08/06)
Before Circuit Judges Schroeder, Tashima, and Rawlinson
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/576FE3543FDDB6148825710E007B222F/$file/0310029.pdf?op
enelement

CRIMINAL LAW / INSIDER TRADING / SECURITIES TIPPING

Opinion (Rawlinson): Atul Bhagat was convicted of insider trading, securities tipping, and obstructing the course of
an SEC investigation. Bhagat worked for Nvidia Corporation (“Nvidia”), and after reading an email about Nvidia
winning a contract to develop the X-Box, a video game console, it was alleged that Bhagat bought Nvidia stock and
told two friends to buy Nvidia stock before the contract was publicized. On appeal, the Ninth Circuit found there
was sufficient evidence for the jury to conclude that Bhagat was aware of the confidential information before he
bought shares, even if the evidence was all circumstantial. The Ninth Circuit also found that a reasonable trier of
fact could have found Bhagat guilty of tipping because of his friendships with the two people he tipped and the fact
that the purchases of stock were so close together in timing. However, the Ninth Circuit held that the sentencing had
to be remanded because at the time of sentencing the lower court followed the mandatory guidelines. The Ninth
Circuit said the sentencing had to be reviewed under Ameline because a limited remand is proper in all pending
criminal appeals involving unpreserved Booker error. CONVICTION AFFIRMED; SENTENCE REMANDED.
Dissent by Judge Tashima. [Summarized by Megan Balogh]

Smith v. Mitchell
No. 04-55831 (2/09/2006)
Before Circuit Judges Pregerson, Canby, and Reed, Jr., District Judge
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/7024E5E91A14CEB38825710F0073F300/$file/0455831.pdf?ope
nelement

CRIMINAL PROCEDURE / HABEAS PETITION / SUFFICIENT EVIDENCE

Opinion (Canby): Shirley Ree Smith was convicted of assault on a child causing the death of her grandchild.
Smith’s appeal challenged the sufficiency of the evidence presented at trial. The appeals court affirmed in an
unpublished opinion and Smith filed a petition for habeas corpus in the District Court of California. The district




                                                    -5-
court recommended dismissal but granted a certificate of appealabilty on whether the evidence presented was
sufficient to convict Smith of the crime. Smith’s appeal argued that there was insufficient evidence to prove the
cause of the child’s death, which is a violation of due process. Finding that no rational trier of fact could have
found, based on the evidence presented, that Smith caused the death of the child beyond a reasonable doubt, the
Ninth Circuit reversed and remanded with instructions to grant Smith’s writ. Because the absence of evidence of the
manner of the child’s death cannot constituted proof beyond a reasonable doubt, the state court’s affirmation of
Smith’s conviction was an unreasonable application of the test for constitutional sufficiency of the evidence.
REVERSED; AND REMANDED. [Summarized by Kirsikka Van Doren]

Morales v. Ornoski
No. 06-70884 (02/19/06)
Before Circuit Judges Kleinfeld, McKeown, and Fisher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/17C074D398D4DDB98825711B00032AF3/$file/0670884o.pdf?
openelement

CRIMINAL LAW / HABEAS / SECOND OR SUCCESSIVE PETITION FOR HABEAS

Opinion (Per Curium): Michael Angelo Morales petitioned for a stay of execution and an application for leave to
file a second or successive (“SOS”) petition for habeas corpus. The court may grant an SOS petition if “the
application makes a prima facie showing that the application satisfies the requirements of 28 U.S.C. Sec. 2244(b),
which requires dismissal of a claim not previously presented unless the claim relies on a new rule of constitutional
law applied retroactively, or the factual basis of the claim could not have been discovered previously. In order for
Morales to raise a claim not previously presented, he must show the claim would not have been shown earlier
through due diligence and actual innocence. Morales made four claims. Morales’s first claim of the proposed SOS
petition is that the prosecution fraudulently presented informant Bruce Samuelson’s perjured testimony. Claims two
and three are based around the premise that the state presented false testimony from a government snitch for
receiving favors. Claim four is based on a claim for actual innocence. The Ninth Circuit determined that claims
one, two and three had previously been presented, thus void under Sec. 2244(b)(1). The Court further found for
claim four to survive the petitioner must show actual innocence and not mere legal insufficiency, which failed under
Sec. 2244(b)(1). APPLICATION FOR PETITION DENIED; AND REQUEST FOR STAY OF EXECUTION
DENIED. [Summarized by Ryan K. Dowell]

U.S. v. Lopez-Perera
No. 05-50102 (02/21/06)
Before Circuit Judges Schroeder, Chief Judge, Goodwin, and Fisher
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1112348BA9E2FC8A8825711C005CC4A7/$file/0550102.pdf?o
penelement

CRIMINAL LAW / POSSESSION OF FIREARM BY UNLAWFUL ALIEN

Opinion (Goodwin): Antonio Lopez-Perera was convicted of being an alien illegally or unlawfully in the United
States (“U.S.”) in possession of a firearm. He appealed the conviction and assigned error to the denial of his motion
seeking acquittal. When Lopez-Perera attempted to enter the U.S. from Mexico, he was told to wait for a secondary
inspection at the border. He waited a short while and then drove toward the exit, whereupon he was stopped by
border officers, arrested, and searched. The search uncovered a .38 caliber revolver. He was subsequently
convicted of making a false claim of U.S. citizenship and possession of a firearm by an alien illegally or unlawfully
in the U.S. At trial, Lopez-Perera argued that the term “illegally and unlawfully in the United States” was intended
as a term of art. The district court disagreed and held that, by his physical presence in the port of entry, Lopez-
Perera satisfied this element of the crime. The Ninth Circuit found that Lopez-Perera did not satisfy this element of
the crime as he was never free from official restraint at the border. Therefore, the Ninth Circuit concluded that he
never entered the U.S. so he could not have been “illegally or unlawfully in the United States.” REVERSED AND
REMANDED. [Summarized by Jennifer Berg]

U.S. v. Knows His Gun
No. 04-30302 (02/15/06)
Before Circuit Judges Gould, Berzon, and Schwarzer, Senior District Judge for the Northern District of California



                                                    -6-
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/BC66DCED0A8F2A2E88257116000ABD37/$file/0430302.pdf?
openelement

CRIMINAL LAW / SIXTH AMENDEMENT / SENTENCING ENHANCEMENTS

Opinion (Gould): Sylvester Knows His Gun III (“Knows His Gun”) was indicted by a grand jury for aggravated
sexual assault on a child. Knows His Gun admitted to the police that he had assaulted his nephew and pled guilty to
the charge. The district court imposed three enhancements to his sentence because the victim in the care of the
defendant, was under twelve years old, and the defendant should have known the victim was vulnerable. Knows His
Gun objected to these enhancements because they were based on facts that were not admitted by the defendant or
proven to a jury. He also objected to the validity and constitutionality of the Sentencing Guidelines because he
argued that the Supreme Court rendered the unconstitutional in Blakely v. Washington, 542 U.S. 296 (2004). The
district court overruled the first objection because it held that Knows His Gun had admitted to the factual basis of all
the enhancements. As to the second objection, the district court held that it would impose an alternate sentence if
the Guidelines were later held unconstitutional. The Ninth Circuit held that the district court correctly predicted that
it would not be bound by the guidelines, so Knows His Gun’s sentence did not violate the Sixth Amendment. The
Ninth Circuit also held that the district court appropriately considered the statutorily-designated factors in imposing
the sentence, so there was no plain error. AFFIRMED. [Summarized by Mary Tollefson]

U.S. v. Chief
No. 05-30214 (02/17/06)
Before Circuit Judges O’Scannlain, Graber, and Bea
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/6FCBCCF93EFE22258825711700830620/$file/0530214.pdf?ope
nelement

CRIMINAL LAW / STATUTE OF LIMITATIONS AND EXCLUDED EVIDENCE

Opinion (Graber): Leo Sure Chief, Jr. was convicted of aggravated sexual abuse. During the trial, an FBI agent
testified regarding Chief’s confession to the crime and the victim’s mother testified regarding the victim’s
propensity to lie. Chief appealed, arguing the district court erred by: (1) not dismissing the indictment under a five
year statute of limitations and (2) refusing to admit testimony of the victim’s behavior problems and the victim’s
school documents. Regarding Chief’s first argument, the general statute of limitations for an indictment was five
years, but prior to later amendments the limitation period for sex abuse cases was 25 years. In 2003, Congress
passed an amendment extending the limitation period for child sex abuse cases to any time during the victim’s life.
Chief argued that because the 2003 amendments repealed the old statute, and Congress did not include a clause to
apply the amendments retroactively, he was subject to the general five year period. The Ninth Circuit held that the
new statute applied retroactively, and Chief’s case was not barred when the new statute was enacted. Regarding
Chief’s second argument, the Ninth Circuit first held that because of the Chief’s confession, and testimony already
given by the mother, the district court’s decision to exclude evidence of the victim’s behavior was not reversible
error. Finally, the Ninth Circuit held that the school documents Chief sought to introduce were properly excluded as
hearsay. AFFIRMED. [Summarized by Andrew Naylor]


OREGON SUPREME COURT

Macpherson v. Dept. of Administrative Services
Case No.: S52875
http://www.publications.ojd.state.or.us/S52875.htm

AREA OF LAW: CONSTITUTIONAL LAW

HOLDING: (Opinion by De Muniz, C.J.) (1) A law that is subject to amendment and repeal does not limit
legislative power; (2) when a law creates a class of persons, that law does not violate equal protection if the
members of that class do not suffer disparate treatment apart from the enactment of the law; (3) a law is suspended
under Article I, section 22, of the Oregon Constitution if the execution of that law is delayed or interrupted; (4) a
challenger must present evidence that a law impermissibly violates the Oregon Constitution’s guarantee of


                                                     -7-
separation of powers, not merely claim that the law does so; (5) Article IV, section 24, of the Oregon Constitution
allows a state to waive immunity “as to all liabilities,” which includes statues that require state and local
governments to compensate private citizens; (6) a law does not violate procedural due process when that law does
not explicitly incorporate predeprivation procedures; and (7) compensating land owners for diminution in property
value is a legitimate state interest.

Under Measure 37 (M37), state and local governments must compensate a private property owner when a land use
regulation decreases the fair market value of his or her land. Alternatively, governments may waive the regulation at
issue. Plaintiffs sued in circuit court and sought to invalidate M37. The trial court found that M37 violates the
United States and Oregon Constitutions, declared M37 invalid, and entered judgment in favor of the plaintiffs. On
direct appeal, the Oregon Supreme Court reversed the trial court, held M37 constitutional, and on remand directed
the trial court to enter judgment for defendants and intervenors.

(1) The trial court found that M37 impermissibly limits the legislature’s power to regulate land use. The Supreme
Court held, however, that M37 does not limit legislative power because it is subject to amendment and repeal.

(2) The trial court found that M37 violates Article I, section 20, of the Oregon Constitution, under which a law must
grant all citizens equal privileges and immunities. According to the trial court, M37 discriminates between
landowners who obtain property before the enactment of a land use regulation and landowners who obtain property
after that enactment. However, the Supreme Court held that when a law creates the class in question—as in this
instance, in which M37 creates two classes of property owners—the members of that class do not suffer disparate
treatment apart from the enactment of the law. For that reason, laws that create the class in question do not violate
the Oregon Constitution.

(3) The trial court found that M37 violates Article I, section 22, of the Oregon Constitution, under which a law shall
not be suspended “except by the Authority of Legislative Assembly.” The Supreme Court held, however, that M37
does not “delay” or “interrupt” land use regulation; rather, M37 authorizes a government to waive land use
regulation. Thus, M37 does not “suspend” any law.

(4) The trial court found that M37 intrudes on the powers of the executive branch—thereby violating the Oregon
Constitution’s guarantee of separation of powers—because it empowers the legislative branch to enforce laws.
However, the Supreme Court held that those challenging M37 failed to undermine the constitutional permissibility
of the “combined functions” performed by local government bodies.

(5) The trial court found that M37 impermissibly waives Oregon’s sovereign immunity. The Supreme Court held
that under Article IV, section 24, of the Oregon Constitution, the state may waive immunity “as to all liabilities.”
For that reason, a law may require the state to compensate its citizens.

(6) The trial court found that M37 violates procedural due process as required by the 14th Amendment to the United
States Constitution. Specifically, the trial court found that M37 does not provide notice to property owners affected
by a M37 claim. The Supreme Court held that M37 does not prohibit predeprivation procedures. Instead, it allows
state and local governments to “adopt or apply procedures for processing claims.”

(7) The trial court found that M37 violates substantive due process as required by the 14th Amendment to the United
States. Specifically, the trial court found that the legislature had no legitimate reason for enacting M37 because it
impedes the state from exercising plenary power. However, the Supreme Court held that M37 was enacted in
furtherance of legitimate state objectives, such as compensating land owners for a diminution in property value or
otherwise reliving landowners from the financial burden created by certain land use regulations.

Reversed. Case remanded for entry of judgment in favor of defendants and intervenors. [Summarized by Mark
Mayer.]




                                                     -8-
OREGON COURT OF APPEALS

Soderholm v. Krueger
Case No.: A121592
http://www.publications.ojd.state.or.us/A121592.htm

AREA OF LAW: CIVIL STALKING PROTECTIVE ORDER

HOLDING: (Opinion by Deits, J. pro tempore.) To obtain a permanent stalking protective order requires petitioner
to prove that the unwanted contacts alarmed or coerced petitioner, caused petitioner fear or apprehension about his
or her safety or that of a family member, and that petitioner’s reaction to the contacts were objectively reasonable.

The trial court found that Soderholm “knowingly and recklessly engaged in repeated and unwanted contact” with
Kruger and her family. The trial court issued a permanent stalking protective order (SPO) against Soderholm,
barring him from contacting Krueger. Soderholm appealed arguing a lack of sufficient evidence to support the SPO.
To obtain an SPO, petitioner must show that respondent “intentionally, knowingly, or recklessly made repeated and
unwanted contact with petitioner” or her family. Additionally, it must be objectively reasonable that petitioner was
“alarmed or coerced,” and caused petitioner “reasonable apprehension” regarding his or her safety. On de novo
review, the court of appeals found no evidence of any “direct or assaultive behavior” that rose to the level of “fear
and apprehension” required to meet the statutory guidelines. Therefore the court concluded that the trial court should
not have issued the SPO. Reversed. [Summarized by Laura Watts.]

Hollon v. Wood
Case No.: A126960
http://www.publications.ojd.state.or.us/A126960.htm

AREA OF LAW: CIVIL STALKING PROTECTIVE ORDER

HOLDING: (Opinion by Linder, J.) To support a civil stalking protective order on the basis of “expressive
contacts,” the requester’s alleged contacts will be held to a heightened standard of subjectively and objectively
instilling fear of imminent harm; non-expressive contacts must occur two or more times.

Hollon appealed a judgment granting Wood’s request for a permanent stalking protective order (SPO), alleging
insufficient evidence to support the SPO. A court may authorize a civil SPO on the basis of “repeated and
unwanted” contact that causes the recipient to be alarmed or coerced. In this case, Hollon and Wood dated the same
man. Wood alleged that Hollon engaged in “expressive verbal communications” on the phone and in person, as well
as one encounter of non-expressive contact. Hollon asserts that the expressive contacts fail to meet the standard set
forth in Castro v. Heinzman, a more stringent standard than ORS 163.730(3). On de novo review, the Court of
Appeals (Court) determined that Wood failed to demonstrate either an objective or subjective fear for her personal
safety as a result of Hollon’s contact. Both prongs must be met for the heightened standard set forth in Castro. The
Court held that as non-expressive contact occurred one time, it was insufficient to meet ORS730(7)’s definition of
repeated contact as “two or more.” As a result, the SPO should not have been issued. Reversed. [Summarized by
Erin Cecil-Levine.]

State v. Flajole
Case No.: A120819
http://www.publications.ojd.state.or.us/A120819.htm

AREA OF LAW: CRIMINAL LAW

HOLDING: (Opinion by Landau, P.J.) The scope of authority conferred under ORS 161.655(1) does not authorize a
court to order a defendant to pay costs associated with extradition to pursue a probation violation.

Mathew Flajole was convicted of felony failure to report as a sex offender and sentenced to probation. He
absconded from supervision and the state spent $236 in extraditing him from Washington. At the probation
violation hearing, the trial court ordered Flajole to pay $236 as reimbursement for the cost of extraditing him. On


                                                     -9-
appeal, Flajole argued that ORS 161.655(1) does not authorize a court to order a defendant to pay costs associated
with extradition to pursue a probation violation. The Court of Appeals stated the issue is one of statutory
construction. The Court examined the statute and found: (1) the phrasing of the statute is limiting in nature, (2) the
court may impose costs only in the case of a defendant for whom it enters a judgment of conviction, and (3) the
costs a court may order a defendant to pay are limited to those incurred by the state in prosecuting a defendant. The
Court concluded that the trial court erred in ordering Flajole to pay the costs of extraditing him for the purpose of
conducting a probation violation hearing because the cost was not incurred when the court entered the judgment for
conviction and was not incurred in the prosecution of felony failure to report. Vacated and remanded for entry of
corrected judgment. [Summarized by Cristin Casey.]

State v. Meyrovich
Case No.: A124680
http://www.publications.ojd.state.or.us/A124680.htm

AREA OF LAW: CRIMINAL LAW/CONSTITUTIONAL LAW

HOLDING: (Opinion by Schuman, J.) Criminal Law - The State’s burden of proof in a charge of sexual abuse in the
first degree is reasonable doubt that the accused knew or should have recognized that a given body part is ‘intimate.’
Constitutional Law - A life sentence resulting from repeated convictions of sexual abuse is not so ‘disproportional to
the offense as to shock the moral sense of all reasonable persons’ as to constitute ‘cruel and unusual’ punishment.

Meyrovich was convicted of burglary and sexual abuse in the first degree and appealed based on three assignments
of error in the trial court. Meyrovich was given a life sentence based on prior sex abuse convictions. In his first
assignment of error, Meyrovich asserted that he should have been acquitted of sexual abuse in the first degree
because a requisite element of the charge is “touching of intimate parts” and the neck is not an “intimate part.” The
Court of Appeals applied the test articulated in State v. Woodley in finding that the state proved “beyond a
reasonable doubt that the accused should have recognized [the neck] to be an “intimate part.” Meyrovich premised
his second assignment of error on the argument that the life sentence constituted “cruel and unusual punishment”
in violation of Art I, sec 16 of the Oregon Constitution. The Court applied the test set forth in State v. Isom in
determining that the sentence is not “so disproportionate to the offense as to shock the moral sense of all reasonable
persons…” In his final assignment of error, which was not preserved in the trial court, Meyrovich argued that the
imposition of an enhanced sentence on his burglary conviction based on facts neither admitted by Meyrovich or
found by the jury is not in keeping with the requirement announced in Apprendi. The Court recognized plain error,
but found that the burglary charge being concurrent with the life sentence negated the gravity of the error. Affirmed.
[Summarized by Margaret M. Rossi.]


State v. Bruce
Case No.: A125410
http://www.publications.ojd.state.or.us/A125410.htm

AREA OF LAW: EVIDENCE

HOLDING: (Opinion by Landau, P.J.) It is harmless error for a court to admit evidence when the party opposing
admission has not objected to any testimony offered on the evidence prior to its admission.

Bruce appealed his conviction for failure to obey a traffic control device. Bruce contended the trial court erred in
admitting two photographs depicting him driving his truck through a red light. The Court of Appeals found that
Bruce had not objected to any testimony offered on the photographs. The Court held that Bruce would only be
entitled to reversal of judgment if he demonstrated that the evidentiary ruling affected a substantial right, and no
substantial right has been affected if a particular error has not affected the verdict. The Court also held that, even
assuming the trial court erred in admitting the photographs, because Bruce did not object to any of the testimony
regarding the photographs prior to them being admitted, admission of the photographs was not prejudicial, and
therefore harmless. Affirmed. [Summarized by Darin Dooley.]




                                                     - 10 -
Green v. Baldwin
Case No.: A122802
http://www.publications.ojd.state.or.us/A122802.htm

AREA OF LAW: POST CONVICTION

HOLDING: (Opinion by Wollheim, J.) When a prison releases a prisoner, any appeal challenging a prior denial of
parole becomes moot unless that denial affects the specific date on which the parolee will be released from parole.

Convict Daniel Green was serving a thirty-year prison term at Eastern Oregon Correctional Institution (EOCI). In
1996, the parole board denied Green parole. Green subsequently appealed that denial. Shortly thereafter, EOCI
released Green from prison and placed him on parole. EOCI now asserts that Green lacks standing to pursue his
appeal because he is no longer in prison. Green submits that he does not lack standing because he is currently on
parole and, therefore, still affected by the board’s denial in 1996. However, at the time of Green’s conviction, the
law empowered the parole board to extend a parolee’s period of supervision if “final release” was incompatible with
“the prisoner’s welfare and that of society.” Thus, Green cannot argue that the board’s denial in 1996 affected the
duration of his parole or the specific date that he would be released from parole. For that reason, the court held that
“[t]he mere possibility that the board might have earlier discharged [Green] from parole does not prevent [his] claim
from becoming moot [because] of his release from prison.” Appeal dismissed. [Summarized by Mark Mayer.]

State v. Howard/Dawson
Case No.: A121011
http://www.publications.ojd.state.or.us/A121011.htm

AREA OF LAW: CRIMINAL PROCEDURE

Holding: (Opinion by, Linder, J.) When a party contracts for the removal of their garbage, whatever privacy interest
they had in the garbage is lost once the sanitation company removes the garbage.

Defendants appealed their convictions on numerous drug charges, claiming that the trial court erred in admitting
evidence that was obtained from a warrantless search of their garbage. Specifically, the defendants claimed that the
warrantless search violated their possessory and privacy interests granted to them by Article I, section 9 of the
Oregon Constitution. The facts are clear. The sanitation company permitted police to search the defendants’
garbage after it had been collected from the defendants’ house. The defendants claimed that they retained a
protected possessory and privacy interest in the discarded trash, and therefore a warrant was needed prior to
inspection. The Court of Appeals stated that in order for police to conduct a warrantless search, it must be shown
that there are either circumstances which would bring the search within an exception to the warrant requirement, or
show that the defendant did not have a protected privacy interest in the property. The Court of Appeals held that
prior to collection, the defendants had a protected privacy interest in the cans. However, upon collection, this
interest was lost. The court stated that on collection the garbage becomes the property of the sanitation company,
who is free to turn the garbage over to the police. Furthermore, this decision was reinforced by the fact that the
defendants’ explicitly contracted for the removal of the garbage. Affirmed. Dissent by Schuman, J. [Summarized by
Marisa Moneyhun]

ARTICLE OF THE WEEK

The Supreme Court's Unanimous Decision Recognizing a Religious Right to Use
Hallucinogenic Tea
By MICHAEL C. DORF
Monday, Feb. 27, 2006

Last week, in Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal, the Supreme Court held that U.S.
members of a Brazilian-based Christian Spiritist Sect had a right to use a hallucinogenic tea called hoasca for




                                                    - 11 -
religious purposes. The Court so ruled notwithstanding the fact that hoasca is a Schedule I substance with no
medical or otherwise accepted use.

Crucial to the reasoning of the unanimous opinion, authored by Chief Justice Roberts, was the Court's determination
that the government bore the burden of showing that permitting a religious exception to the prohibition would
undermine compelling governmental objectives.

The Court's decision appears to indicate that the Justices are more receptive to claims of religious freedom now than
they were just sixteen years ago, when they issued a landmark ruling in a case involving a different hallucinogenic
drug--peyote--rejecting a claimed right to use the drug for religious purposes.

But it is not clear whether the Justices are really more receptive to such claims because the Court's hoasca opinion
ignored, rather than addressed, a critical ambiguity in its own prior rulings.

A Law Unto Himself? The Nineteenth Century Approach to Free Exercise Claims

To understand what makes the hoasca case important requires some familiarity with the Justices' less-than-entirely-
successful efforts, over time, to reconcile the background assumption of majority rule with the First Amendment's
protection of free exercise of religion.

The doctrinal story begins in the Nineteenth Century, at a time when the Mormon Church regarded polygamy as a
religious rite. (The Mormon Church prohibited the practice in 1890.) George Reynolds was charged with violating a
federal law banning bigamy. He defended on the ground that he was obligated to take plural wives by his religion.
But the trial judge refused to instruct the jury that sincere religious belief could excuse compliance with an
otherwise valid law. Reynolds was convicted.

The Supreme Court affirmed the conviction in the 1878 case of Reynolds v. United States. Chief Justice Waite
explained: "Laws are made for the government of actions, and while they cannot interfere with mere religious belief
and opinions, they may with practices." A religious belief in the necessity of human sacrifice could not supply a
defense to murder, the Court reasoned, and more generally, to grant exemptions from generally applicable laws on
the basis of individual religious belief would be "to permit every citizen to become a law unto himself."

There the law stood for nearly a century, but then the Supreme Court ruled that sincere religious belief can excuse
compliance with otherwise valid general laws, unless the government can demonstrate that it has a "compelling
interest" that cannot be achieved by granting religious exemptions. Under this test, human sacrifice would still be
proscribable because of the government's compelling interest in protecting innocent human life, but less pressing
governmental objectives would yield to religious claims.

Two leading cases illustrate what the compelling interest test requires. In 1963, in Sherbert v. Verner, the Court
invalidated a South Carolina law that deemed a Seventh Day Adventist ineligible for unemployment benefits
because she refused to work on Saturdays. Even though the law applied to everyone, the Court held, as applied to
those who observed the Sabbath on Saturday, it infringed religious freedom.

Likewise, in the 1972 ruling in Wisconsin v. Yoder, the Supreme Court found that Wisconsin had failed to justify the
application of its compulsory education law with respect to Amish children between the ages of 14 and 15. (The
state required children to go to school until the age of 16; for religious reasons, the Amish finished school after the
eighth grade.)

The Peyote Decision, and Congress' Reaction

In 1990, however, in the case of Employment Division v. Smith, the Court essentially returned to the principle of
Reynolds. Echoing the Reynolds Court's unwillingness to make every citizen "a law unto himself," Justice Scalia,
writing for the majority in Smith, declared that "a private right to ignore generally applicable laws . . . is a
constitutional anomaly."

Accordingly, in the Smith case itself, the Justices did not apply the compelling interest test to Oregon's extension of
its ban of peyote to those who used this hallucinogenic drug in their Native American worship service. Thus, the
majority ruled that the Oregon law did not even implicate the religious rights of Native Americans.


                                                    - 12 -
Since the Smith decision in 1990, the Court has understood the Free Exercise Clause to be nothing more than a
principle of formal equality: If a law singles out a religious practice because it is religious, then the compelling
interest test applies. But if the law applies to everyone, then no Free Exercise issue is even raised.

For example, under Smith, a state could not specifically prohibit the wearing of yarmulkes in courtrooms, for that
would single out observant Jews for disadvantage. But the state could forbid the wearing of all headgear in
courtrooms, even though the impact on observant Jews of these two laws is identical.

The Smith ruling was widely unpopular, sparking legislation in 1993 that enjoyed broad bipartisan support: the
federal Religious Freedom Restoration Act (RFRA). That law expressly restored the compelling interest test even
for generally applicable laws, wherever they substantially burden religious exercises.

The Court Strikes Back by Invalidating RFRA

Yet Congress did not have the last word. In the 1997 case of City of Boerne v. Flores, the Supreme Court held that
RFRA itself was unconstitutional.

Congress may only exercise those powers delegated to it by the Constitution. Although Congress claimed that
RFRA was authorized by Section Five of the Fourteenth Amendment, the Court thought otherwise.

Section Five grants to Congress the power to "enforce" the substantive provisions of the Fourteenth Amendment,
including its Due Process Clause. That Due Process Clause is the basis for the application of the First Amendment's
Free Exercise Clause to state and local governments. Hence,, Congress thought that, by "restoring" the compelling
interest test and the pre-Smith cases, it was "enforcing" the Fourteenth Amendment--and thus acting within its
constitutionally granted powers.

The Court disagreed. In Boerne, Justice Kennedy explained for the Court that the power to enforce the substantive
provisions of the Fourteenth Amendment does not include the power to change the meaning of those substantive
provisions. The Court had already said--in Smith--that the compelling interest test does not apply to laws that do not
single out religious practices. Accordingly, RFRA's attempt to restore the rule of Sherbert and Yoder was deemed a
disguised effort to change the meaning of Free Exercise and Due Process. And the only way to do that is by
amending the Constitution.

The Exaggerated Rumors of RFRA's Demise

The Boerne case thus held RFRA unconstitutional, but it left a critical ambiguity unaddressed. By its terms, RFRA
applied to all levels of government--federal, state and local. The Boerne decision itself involved a local law, and its
theory made clear that Congress was without power to subject local or state laws of general applicability to the
compelling interest test. But what about federal laws?

As to federal laws, most constitutional scholars (including yours truly) argued that RFRA remained valid. Why?
Because as to federal laws, Congress did not need to rely on its power to enforce the Fourteenth Amendment for
authority to enact RFRA. Rather, with respect to federal laws, RFRA was simply an exception to whatever other
rules Congress enacted--for example, the drug laws. It said, in effect, don't apply these other federal laws to the
extent that they substantially burden free exercise of religion and fail the compelling interest test.

Congress surely didn't need any source of power to withhold the exercise of federal authority. Put differently, the
authority for RFRA as applied to the federal government was simply whatever power authorized each of the laws to
which RFRA mandated an exception.

In last week's ruling in the hoasca case, the Supreme Court tacitly accepted this theory. It remarked in a footnote that
the Court had invalidated RFRA as to state and local government in Boerne, and it proceeded on the assumption
that, with respect to the federal drug laws, RFRA could simply be treated as authorization for the courts to find
religious exemptions from those laws.

It is not very surprising that the Court upheld RFRA as applied to the federal government. What is somewhat
surprising is that it did so unanimously, and without even addressing two arguments that had previously been
advanced in support of the proposition that RFRA is unconstitutional as applied to all levels of government.


                                                     - 13 -
Establishment of Religion: The First Dog that Didn't Bark

According to the first argument, which was made by Justice Stevens in a concurring opinion in the Boerne case,
RFRA was unconstitutional because it favored religious claims for exemptions from general laws over other kinds
of exemptions, in violation of the First Amendment's Establishment Clause.

The Court has long held that government may not favor religion over non-religion. Yet RFRA can be seen as doing
just that. If you can't work on Saturdays because that is your Sabbath, then RFRA--which expressly approves of the
Sherbert decision--will grant you an exemption from a state law that classifies you as ineligible for unemployment
compensation. However, if you can't work on Saturdays because that is the only day that you can feasibly visit your
ailing mother, RFRA provides you no excuse (unless perhaps you can claim that you need to visit your mother to
comply with the Biblical obligation to honor her). More generally, RFRA favors those who claim religious reasons
for exemptions from general laws over those who claim medical, family and other non-religious reasons for
exemptions.

Look at last week's decision itself. The Court held that the federal government bore the burden of proving that
granting a religious exemption from the general prohibition on hoasca possession would undermine the prohibition.
Yet less than a year ago, in Gonzales v. Raich, the Court had placed the burden of showing that an exemption from a
general prohibition on marijuana use would not undermine the prohibition on the law's challengers--not on the
government defending the law.

The difference in burden allocation mattered: The federal government was permitted to enforce its marijuana
prohibition nothwithstanding a medical claim rooted in states' rights; it was not permitted to enforce its hoasca
prohibition in the face of a religious claim.

Does Justice Stevens's argument mean that the Court was wrong in the hoasca case? Should the Justices have
invalidated RFRA as applied to all levels of government?

Not necessarily. Recall that only Justice Stevens had previously expressed the view that RFRA violates the
Establishment Clause. Other Justices might have reasonably thought that a regime of religious exemptions does not
actually favor religion over non-religion. Rather, such a regime provides protection for religious minorities who
might fare poorly in the political process. After all, it is no accident that during the era of Prohibition, ritual use of
wine (by Catholics, Jews and others) was permitted, but that Oregon and other states made no exception for ritual
use of peyote. RFRA, on this view, merely levels the playing field.

And indeed, that is more or less what the Supreme Court said last year in Cutter v. Wilkinson. That case rejected an
Establishment Clause challenge to a different law--the Religious Land Use and Institutionalized Persons Act
(RLUIPA)--which, like RFRA, mandates that general laws (in the context of prisons and other settings of
confinement) be subject to the compelling interest test if they substantially burden religious practice. (Curiously,
Justice Stevens joined the majority opinion in Cutter, without explaining whether, or why, he had changed his mind
since writing his concurring opinion in Boerne.)

Separation of Powers: The Second Dog that Didn't Bark

A second argument for the invalidity of RFRA even as applied to the federal government derives from the language
of the peyote decision itself. Legislatures, Justice Scalia wrote there, could balance the costs and benefits of granting
religious exemptions in particular cases, but courts are particularly ill-suited to that task: Weighing the importance
of a religious practice against the government interest in its generally applicable laws is within the legislature's
competence, not that of the courts.

Yet if the judiciary lacks the institutional competence to perform some task, how can the legislature assign that task
to the judiciary? In the view suggested by this rhetorical question, RFRA violated the separation of powers--the
constitutional notion that each branch of government must stick to its assigned area of expertise.

In his opinion for the Court in the hoasca case, Chief Justice Roberts addressed the separation-of-powers objection
obliquely. He said that concerns about judicial competence led the Smith Court to reject the compelling interest test




                                                      - 14 -
as a matter of constitutional obligation. But, he implied, those concerns are not weighty enough to override a
Congressional mandate--in RFRA--to apply the compelling interest test.

A Duty to Explain: The Court Fails to Address Judicial Competence Concerns

Why not? Is it because judicial application of the compelling interest test is merely difficult--rather than, as
suggested in the peyote case, impossible? And if so, does that suggest that the peyote case itself was wrongly
decided? Why should the Court shy away from performing its constitutional duty merely because doing so is
difficult?

Persuasive answers could perhaps be given to these questions, but the Court did not even address them.

To be fair to the Court, perhaps Chief Justice Roberts ignored the separation-of-powers argument in the hoasca case
because it was not advanced by the parties. Avoiding unnecessary determinations of constitutional law is an
important discipline for the Court.

At the same time, however, the Court has an obligation to explain apparent inconsistencies in its own decisions.
Moreover, if, as the Smith Court suggested, it is simply improper for the judiciary to apply the compelling interest
test in religion cases, then the fact that the parties didn't object to the courts' playing this improper role should not
have made any difference.

Our courts derive their legitimacy in part from their willingness to give reasoned explanations for their decisions.
The hoasca opinion is well-reasoned as far as it goes, but it should have gone further in explaining just what, if
anything, is left of the Court's broad pronouncements in the peyote case. There, Justice Scalia wrote for the Court
that it is an "unavoidable consequence of democratic government" that the legislature must make religious
exemption determinations on a statute-by-statute basis rather than having the courts weigh each law against claims
to religious freedom under the compelling interest test. The disadvantage that thus results to religious minorities, the
Smith majority said, "must be preferred to a system in which each conscience is a law unto itself or in which judges
weigh the social importance of all laws against the centrality of all religious beliefs."

In the hoasca case, the Court formally left Smith intact as the constitutional rule. Yet, at the same time, the Court
appeared to reject the core logic of Smith, as Justice Scalia explicated it. Thus, these issues will likely return to the
Court before too long.



FROM THE POND
2/24/2006
[mcadpond] juvenile prosecution
simrin@wvi.com
Sheriff deputy takes report on juvenile (too young to be tried as adult) or alleged sex abuse and forwards it to
Marion County DA for evaluation. I notified sheriff & DA that I represent client. Three months later, there is no
word from DA, nothing filed, and no further effort by law enforcement to try to contact my client.

Any idea how long I need to wait before I can advise client it looks like they've decided not to pursue the matter? I
figure I can't leave his money in my trust account forever.

         Response: vhr@open.org
         Unfortunately, they have been known to wait until the defendant is an adult, and then charge. Please keep
         that in mind.

         Response: bholstedt@aol.com
         There used to be a statute in the juvenile code which prevented them from sitting on this for a period of
         time. Look at the "waiver into adult code provisions", or the juvenile code procedure sections, and maybe
         you can find that statute still exists.




                                                      - 15 -
2/27/2006
[mcadpond] Work Groups – Conflicts
Cott Thompson [olcott@open.org]
A question about how to deal with co defendants and conflicts in conjunction with work groups came up last week.
The reality of the problem is it is no more of a problem that it is now. We discuss cases with others now, including
cases with counsel of co defendants. The discussion within a work group should be the same.

If counsel for a co defendant is in your work group you need to be extra careful not to disclose anything that will
harm you client vis-a-vis the co defendant. Same as if you were discussing the case directly with the co defendant's
counsel now.

If no co defendant counsel in the work group still must be careful not to disclose privileged information. Same as if
discussing case with another attorney now.

There is no additional conflict check needed nor are one attorney's conflicts imputed to the rest of the work group.
We just have to continue to be careful. We all should know who the attorney(s) are for any co defendants.

Except for quality issues work groups cannot mandate how an attorney does something. Comments as to what to
do/not to do, what might work/might not work (as we get now from discussions with other lawyers) can and should
be made but in the end each attorney decides how s/he will handle their own cases.

2/27/2006
[mcadpond] Viewing a security tape
dmcarroll-atty@qwest.net
In one of my cases, I have been provided with a video tape that purportedly contains the entire incident, BUT it's
one of those security system tapes that records three or four cameras at once. On playback it seems to show a
different camera image on every other frame. Does anyone know how I can convert this tape for viewing? Does
anyone know how I can at least view the thing myself?

2/15/2006
[Ocdlapond] Intoxilyzer 5000 scoring
attorneylang@paccomm.net
QUESTION: Defendant blew a .08 BAC score on the Intoxilyzer 5000... so the question is whether or not the
Intoxilyzer 5000 rounds up the third digit? NOTE: The 11/28/05 calibration certification evidenced a read out to
the third digit on the value obtained test score. So, is there a defense based upon the uncertainty as to whether or
not Defendant was actually .07X which was rounded up to .08?

         Response: simrin@wvi.com
         Oh, I think you can certainly make the argument. Get an expert witness to explain the difference between
         precision and accuracy of a measuring instrument. Though it's a longshot, I'd consider an MJOA (if there's
         no evidence of perceptible impairment), arguing that, due to the precision factor, no rational factfinder
         could find beyond reasonable doubt that the value is .08 or higher. It is essentially a 50/50 proposition.

         Response: dhaller@seasurf.net
         1. I can't recall whether this applies to the 5000, but at least some stte approved machines have
         been designed to round down.

         2. I would love to hear any approach to selling realities like this to a jury or judge. People, including
         judges and lawyers, who have not been immersed in science classes have a tendency to not get it. (I recall
         a court of appeals case years ago where the court swallowed an accident reconstruction "expert's"
         calculation of the trajectory of a human body that claimed precision to a fraction of a degree.)

         Response: attorney@integrity.com
         The Intox 5000 will drop the third digit--there is no rounding. What you might argue is that the machine
         has an inherent variance of at least .01. So, the .08 that your client blew could be anywhere from .07 to




                                                    - 16 -
         .09. (NOTE: this becomes very important when you're dealing with juveniles, where any amount is
         deemed impaired.)

         Response: dhaller@seasurf.net
         "The Intox 5000 will drop the third digit..." functional equivalent of rounding down to 2d digit.

         Response: attorney@integrity.com
         sure. but keep in mind that that argument works for the State. The DA will typically say something like
         this: "The breath test machine is working in Defendant's favor by rounding down. He's actually an .083
         (or something) and we're only alleging a .08!" Not sure how rounding down helps you.

         The better argument, especially for an .08, is that there is an inherent variance in the machine of .01.
         Therefore, if the State is trying to allege driving with a BAC of .08 or more, you should have an expert
         come in and explain the inherent variance in the machine. Go back to the blog I pointed you to and cite
         those cases to the court. I think the State's I/C guy will admit it on the stand. But have your own expert
         ready and waiting in the wings....

         Then have your expert work the machine over in direct. Such as, the inherent variance on every BAC
         result; or that the filter wheel is never calibrated; or that the RFI detector on the machine is designed to
         detect frequencies at the level of an AM radio (can anyone say 1800 mhz cell phone...?), etc. Experts on
         the machine usually have to be stopped once you get them going! It can be fun.

         Response: simrin@wvi.com
         I agree with Martin. This exemplifies the distinction between precision and accuracy I raised earlier. I
         think you need a statistician to explain the difference between systematic error, which the down-rounding is
         an example of an accuracy issue, and variability of measurement, which is a function of precision.

2/15/2006
[Ocdlapond] Traffic Stop
spinner@bakervalley.net
Have a client who was stopped for driving because one head light was burned out during broad daylight. Stop
resulted in felony DUII indictment. His only hope is to get stop suppressed. If convicted he's a 6A on the grid.
Haven't had the chance to research the stop issue. Am assuming the cop can stop for defective equipment even
though one doesn't need head lights in broad daylight.

         Response: rankinjohnsonlaw@comcast.net
         I haven’t looked into it, but I wouldn’t assume that the police can stop for defective equipment. D wasn’t
         doing anything wrong, and the stopping officer had no reason to think that he was. The officer’s subjective
         belief that he could stop for a single burned-out headlight won’t make any difference; look at State v.
         Tiffin, decided last October (mistake regarding whether defendant’s conduct was unlawful does not justify
         a stop).

         Response: rscott@mpdlaw.com
         Just a reminder that -- if you've got nothing else -- there's a double-counting/Due Process argument that
         should be made when the state relies on prior DUIIs to both enhance the charge from a misdo to a felony
         and to move the defendant along the grid. State v. McCoin only involved a double jeopardy argument and
         did not address double-counting. In light of all the recent federal double-counting cases, I believe this
         argument needs to be made in every felony DUII case it can be.

         Response: ddghazi@qwest.net
         did you look at 811.515(1): ("any lighting equip required") must be displayed at any time limited visibility
         conditions exist." ? What's that Latin maxim of stat construction--"expressio unis," or something (because
         the specific is expressed, the opposite omission is implied) The argument being, obviously, because it's
         required "when" conditions exists, it's NOT required when conditions don't exist.

         Response: bcox@scslaw.org


                                                    - 17 -
no reasonable basis/bases to believe a traffic crime or infraction exists means no pc for stop; no pc for stop
stop means no subsequent 'fruits;' no 'fruits means no prosecution. An officer's 'good faith' generally doesn't
matter, but an officer being wrong about whether a crime or infraction actually exists (believed sufficient
facts exist giving pc to stop/cite/arrest - e.g. it looked like he was speeding will give the officer a 'good
faith' pass on that mistake. That's not the same as being wrong on the law (e.g. I believed a crime/infraction
occurred but later learned the conduct/circumstance was not a crime/infraction) in 'good faith' or otherwise
 - which gets the state no where - and which puts one back at step one.

Response: reo@oberlaw.com
The first two sentences of your email were precisely addressed in Pooler v. MVD, and you're right.
Your third sentence, about a cop getting a "good faith" pass based on a mistake of fact, I respectfully
disagree with. "Good faith" works for federal but not state analysis. Arizona v. Evans, 514 US 1 (95).
Under the federal analysis, good faith is important b/c we suppress to deter police misconduct. Not so under
the state rationale, where we suppress to vindicate the individual's privacy right -- the right to be left alone.
IMHO, anyway.

Response: rankinjohnsonlaw@comcast.net
A good-faith mistake as to the facts can give rise to PC and a stop, as long as the facts, as the officer
reasonably believes them to be, give rise to objective PC. Oregon and federal law are about the same on
this, although I’ve never tried to compare them precisely.

A police officer’s good-faith, erroneous belief that the law justifies a stop is not PC, and the resulting stop
is bad. Oregon and federal law are different on this; under federal law, subjective PC based on a mistake
about the law will still justify a stop.

Response: simrin@wvi.com
Ditto. See State v. Johnson, 120 Or App 151 (no good faith exception to Article I, section 9).

Response: Don Haller [dhaller@seasurf.net]
also 816.320 (Lighting Equip. Req.), 816.330 (Penalty provision), also 816.050 (Headlights). One-eye in
daylight may give reasonable grounds to believe traffic violation occurred. Or maybe not. Or maybe dda
won’t think of it. Are any of the convictions uncouseled or from a state with a more expansive DUII law?

Response: simrin@wvi.com
I think ORS 811.515 and ORS 815.520 are irrelevant, but I think Don's on to something with ORS 816.320
(and ORS 816.330).

ORS 811.515 and ORS 815.52 regulates when lights must be used. ORS 816.320 regulates the equipment
a car must have and 816.330 prosribes operation of a vehicle without required equipment. It has no
requirement regarding the use of that equipment. In other words, it is unlawful to operate a vehicle without
the required equipment, even when there is no requirement to use that equipment.

As I see it, the issues are:
1) Is a burned out headlight a "headlight" under ORS 816.320(1)(a)?
If not,
2) Did the officer lawfully observe that the headlight was burned out before seizing the defendant? (e.g.,
was D driving with headlight(s) on during broad daylight, so that the failure of one was obvious?)

Response: ddghazi@qwest.net
How on earth can the rule on whether something needed to be used be irrelevant to a stop based on def's
using something when it's not required?? If it's not required to be used, there's no violation of the law for
not using it!

816.320, et seq talks about required "equipment," not whether the equipment works or when it has to be
used; if the vehicle is equipped with the item, it satisfies the rule, period; is that the statute def was cited




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under (stopped for violating)? If so, I think def wins, regardless that it wasn't working; if he was cited under
811.515, he wins because the statute doesn't apply when it's light-out (by its own terms).

Response: simrin@wvi.com
Assuming that a burnt out headlight is a headlight. Maybe it is, maybe it isn't. But until there's a case (or a
stutory definition somewhere), it's a potential issue.

Response: ekirkwood@cfelaw.com
Couldn't the defendant's position be that he could have been on the way to get it fixed? The only time to do
that would be during the day since it would be illegal to do so in the evening when dark.

Response: simrin@wvi.com
That would probably be an argument in favor of a construction that a burned out headlight is a "headlight."
I believe that argument would come in at the third level of PGE v. BOLI, and you're unlikely to get
anything useful out of the first two levels.

Certainly, a person can be on their way to get defective equipment fixed. That doesn't, as a matter of law,
necessarily mean they're allowed to drive with the defective equipment at a time when the law doesn't
require use of the equipment. But, I think it's a good argument. On the other hand, maybe the law
anticipates that you'll inspect your car for equipment failures before operating it, just in case you
unexpectedly need the equipment . . .

Response: reo@oberlaw.com
I've had a suppression motion granted on this issue (Mult County), on virtually identical facts as Arizona v.
Evans (good faith arrest on already-cleared warrant that appeared active in cop computer). Same argument
-- we suppress in state court to vindicate the individual's right to be left alone, not to deter police
misconduct. Good faith matters to the latter, but not to the former.

Response: ddghazi@qwest.net
Actually, the good faith argument doesn't work for RS for Terry stop under federal law, at least according
to 9th circuit: U.S. v. twilley, 222 F.3d 1092 (9th Cir. 2000) (officer's good faith mistaken belief on traffic
violation statute as basis for stop makes stop not objectively reasonable)




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