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                             May 05, 2005 – May 18, 2005

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US SUPREME COURT


Burdge v. Palmateer
Case No. S50753 http://www.publications.ojd.state.or.us/S50753.htm

AREA OF LAW: PROFESSIONAL RESPONSIBILITY

HOLDING: (Opinion by Riggs, J.) Inability to exploit a statutory ambiguity is not a failure of reasonable
professional skill or judgment when the ambiguity is not so obvious that any attorney exercising reasonable skill and
judgment would have seen it.

Burdge (Petitioner) was convicted of five felony crimes in three cases, with a consolidated sentencing hearing. At
issue in the post-conviction proceeding was whether Burdge’s attorney provided constitutionally adequate assistance
at the criminal trials. When the trial court increased Burdge’s sentences by applying ORS 137.635, his lawyer failed
to challenge whether the statute applied. Two years later the Court of Appeals interpreted ORS 137.635’s
ambiguities in State v. Allison, 143 Or App 241 (1996). Analogous to Strickland v. Washington’s two-part test, the
Oregon Constitution applies a two-step analysis to determine whether counsel is inadequate. 466 US 668 (1984).
First, a petitioner must show beyond a preponderance of the evidence that counsel failed to exercise reasonable
professional skill and judgment. Strickland uses ―an objective standard of reasonableness – under prevailing
professional norms.‖ Second, if petitioner can meet that burden, he must then prove that counsel’s failure had an
effect on the outcome of the trial. The Supreme Court held that although a court ruled later on ORS 137.635’s
ambiguities, the fact that Burdge’s trial counsel failed to recognize the statute’s ambiguities did not indicate a lack of
reasonable professional skill or judgment. Additionally, the Supreme Court applied the Strickland test and ruled that
Burdge’s Sixth and Fourteenth Amendment rights to effective assistance of counsel were not violated. Court of
Appeals’ decision reversed. Circuit court decision affirmed. De Muniz, J., dissenting. [Summarized by Erin
Levine.]


In re Leisure
Case No.: S51514 http://www.publications.ojd.state.or.us/S51514.htm

AREA OF LAW: PROFESSIONAL RESPONSIBILITY

HOLDING: (Per Curiam opinion) A lawyer who purposefully writes numerous checks after her checking account
accrues a negative balance violates the Code of Professional Responsibility Rules because her conduct:
(1) constitutes a misrepresentation and (2) demonstrates disrespect for the law that adversely reflects on her honesty
and trustworthiness.

The Oregon State Bar alleged that attorney Sally Leisure violated the Code of Professional Responsibility
Disciplinary Rules (DR) by purposefully writing numerous checks after her checking account had accrued a
negative balance. The trial court held that Leisure had violated DR 1-103(A)(3)—which prohibits acts of
misrepresentation—but not DR 1-102(A)(2)—which prohibits criminal acts that call into question a lawyer’s
honesty, trustworthiness, or fitness to practice law. The Supreme Court agreed that Leisure had violated DR 1-
103(A)(3) because she knowingly issued nonnegotiable checks and failed to pay her debts in a timely manner.
However, the Court also held Leisure had violated DR 1-102(A)(2) because her conduct demonstrated continual
disrespect for the law, which reflected adversely on her honesty and trustworthiness. To determine an appropriate
sanction, the Court acknowledged that Leisure’s conduct merely inconvenienced her creditors. Thus, the Court did
not disbar Leisure; rather, the Court suspended her from practicing law for 18 months. [Summarized by Mark
Mayer.]




                                                      -2-
9TH CIRCUIT

USA v. Callum
No. 02-10210 (04/20/05)
Before Circuit Judges Pregerson, Kozinski, and Rhoades, District Judge
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/2E17472380C1EB1388256FE80082175A/$file/0210210.pdf?ope
nelement

CRIMINAL LAW / FEDERAL WIRETAPPING STATUTE

Opinion (Kozinski): Garland Callum, Steven Ray Henderson, Johnny Lee Barnes and Delvonne Maurice Jenkins
(―Callum‖) were indicted for conspiracy to distribute cocaine. The federal DEA agents investigating Callum
exhausted conventional investigating techniques and successfully sought orders permitting the use of wiretaps and
other electronic surveillance. Wiretap orders require an authorized DOJ official to approve before seeking
endorsement from a district court judge. The district court denied Callum’s motion to suppress the wiretap because
omission of the authorizing DOJ official is not facially insufficient, the DOJ approval took place prior to a judge’s
approval, and the significant facts omitted on the request did not render the application insufficient. The Ninth
Circuit agreed, giving deference to the district court on its fact finding and did not find clearly erroneous judgment.
The Ninth Circuit emphasized that precedent forced the affirmation of the district court’s decision, but the DOJ
officers involved acted carelessly in all phases of the applications. AFFIRMED. Concurrence by Judges Pergerson
and Rhoades. [Summarized by Charles Sherer]

U.S. v. Pulliam
No. 03-50550 (04/21/05)
Before Circuit Judges Wallace, T. Nelson, and Wardlaw
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/77E130F93C1FE30D88256FEA000AB45F/$file/0350550.pdf?o
penelement

CRIMINAL LAW / SEARCH AND SEIZURE

Opinion (Wallace): Police officers suspected Pulliam of gang membership and pulled over a vehicle in which
Pulliam was riding for a traffic violation. They ordered Pulliam and the driver out of the vehicle, handcuffed them,
and patted them down without questioning them. Finding nothing illegal on their persons, they searched the vehicle
and found a gun under the passenger seat, to which Pulliam admitted ownership. Pulliam was charged with being a
felon in possession of a firearm. The district court granted Pulliam’s motion to suppress the evidence of the gun by
holding that the officers had no justification for making a subsequent search of the vehicle. On the government
appeal to the Ninth Circuit, Pulliam argued the gun was properly suppressed as a result of an unconstitutional search
and seizure because the exclusionary rule of evidence precludes evidence later discovered from an illegal search and
seizure. However, a principle that limits the exclusionary rule is that a person’s fourth amendment rights are not
violated if the evidence results from an illegal search and seizure of a third person’s property. Pulliam’s reasonable
expectation of privacy was not infringed as he did not own the vehicle. Evidence may not be suppressed unless an
illegal government activity is the but-for cause of the discovery. Pulliam failed to demonstrate that he was illegally
detained, or that the gun resulted from his being detained, as he could have left at any time, or that the traffic stop
was the but-for cause of the gun's discovery. The Supreme Court has held criminal defendants do not have standing
to suppress evidence simply because a search was directed at them. Pulliam could not assert his fourth amendment
rights through another person. REVERSED AND REMANDED. Dissent by Judge Wardlaw. [Summarized by Peter
Johnson]

Boyde v. Brown
No. 02-99008 (04/21/05)
Before Circuit Judges Farris, Kozinski and Silverman
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/355D3F746D70B25E88256FEA000A8C88/$file/0299008.pdf?o
penelement

CRIMINAL PROCEDURE / INEFFECTIVE ASSISTANCE OF COUNSEL



                                                     -3-
Opinion (Kozinski): Richard Boyde was convicted of robbery, kidnapping for robbery and murder, and sentenced to
death. Boyde first appealed the guilt phase of his trial based on numerous errors made by his counsel and the court.
The Ninth Circuit affirmed the district court’s decisions that Boyde did not meet his burden of proof for any of the
alleged errors during the guilt phase of his trial. Boyde then argued he received ineffective assistance of counsel
during the penalty phase of the trial because his counsel failed to investigate evidence of childhood abuse, failed to
introduce the evidence he did find, and prejudiced Boyde with his closing remarks. The Ninth Circuit reasoned that
for Boyde to prove ineffective assistance of counsel he must show a reasonable probability that, but for the counsel’s
errors, the result of the proceeding would be different. The Ninth Circuit held that there was reasonable probability
that the jury would have reached a different sentence but for the errors Boyde’s counsel made. The Ninth Circuit
reversed the district court’s decision regarding the penalty phase and remanded the case with orders for the district
court to issue a writ of habeas corpus, conduct a new penalty phase, or vacate Boyde’s death sentence. AFFIRMED
IN PART; REVERSED IN PART. [Summarized by Andrew Naylor]


U.S. v. Gust
No. 04-30208 (04/25/05)
Before Circuit Judges Fernandez, Tashima, and Gould
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/ECAAD9B7951CA4DB88256FEE007E4D8C/$file/0430208opn.
pdf?openelement

CRIMINAL PROCEDURE / SINGLE PURPOSE CONTAINER EXCEPTION

Opinion (Gould): While investigating a report of gunshots, Deputy Richard K. Johnson encountered Tony Gust and
two companions. Gust was carrying a container that the officer identified as a gun case. He detained Gust and his
companions. Gust told the officer that he had been shooting at targets with the permission of the land owner, and
that he was carrying a contained gun. The officer searched the case and discovered a sawed-off shotgun. Gust was
prosecuted for possession of an unregistered firearm. A pre-trial motion to suppress the shotgun and the comments
made to the officer was made by Gust. Gust argued that his Fourth Amendment Rights had been violated since the
search was conducted without a warrant. The government argued that the search was admissible since the ―single-
purpose container‖ exception applied. The district court denied Gust’s motion, and he entered a conditional guilty
plea. The Ninth Circuit reversed on appeal, finding that the district court erred by applying the ―single purpose
container‖ exception, and that Gust was entitled to have the gun and his statements thereafter suppressed. The court
determined that when evaluating containers, the viewpoint of a layperson, not a trained law enforcement officer
should be used, and that the container could have contained any number of things. REVERSED AND
REMANDED. [Summarized by Bill Niese]


U.S. v. Caymen
No. 03-30365 (04/21/05)
Before Circuit Judges Hall, Kleinfeld, and Wardlaw
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/EDB2E708F324431F88256FEA000AA38D/$file/0330365.pdf?o
penelement

CRIMINAL PROCEDURE / SUPPRESSION OF EVIDENCE

Opinion (Kleinfeld): The police obtained a search warrant for Caymen’s home, discovering a laptop obtained by
credit card fraud. After obtaining permission from the owner of the store, the police searched the laptop and found
child pornography. In court on charges of possessing child pornography, Caymen moved to suppress the evidence
from the laptop claiming the police found the photographs as a result of an illegal search. The district court denied
the motion. The Ninth Circuit (the Court) affirmed and held that even though Caymen did not need to prove
property rights in the laptop, he had not carried the burden of proof to show he had a reasonable expectation of
privacy. Further, society sets the standard of reasonable expectation, and those who obtain goods by fraud or theft do
not have a legitimate expectation of privacy that society will protect. AFFIRMED [Summarized by Michael Elliott]




                                                    -4-
Allen v. Calderon
No. 02-16917 (05/03/05)
Before Circuit Court Judges O’Scannlain, Cowen, and Bea
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/51FA6965D1CAC2CB88256FF50072A38A/$file/0216917.pdf?o
penelement

CRIMINAL PROCEDURE / DISMISSAL OF HABEAS PETITION / INCOMPETENCY

Opinion (Cowen): Ernest Lee Allen, represented pro se, appealed a dismissal of his petition for writ of habeas
corpus, claiming the district court erred in not considering evidence of his incompetence before dismissing the
petition. In district court, Allen claimed a mental condition severely hindered his ability to correctly respond to the
determinations and orders made by the court. The Ninth Circuit discussed that upon a showing of sufficient
evidence of incompetence, counsel should be appointed for the limited purpose of representing the petitioner at a
competency hearing. The Ninth Circuit concluded that the district court abused its discretion in dismissing the
petition for failure to prosecute without first holding a competency hearing or otherwise considering Allen’s claim.
REVERSED AND REMANDED. [Summary by Naomi Levelle]

U.S. v. Ogles
No. 03-10439 (04/28/05)
Before Circuit Judges Rymer, Tallman, and Bea
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/2C14D239E28A847288256FF00072EE78/$file/0310439.pdf?ope
nelement

CRIMINAL PROCEDURE / DOUBLE JEOPARDY

Opinion (Bea): James Ogles set up a booth at a gun show in Arizona, even though his business license to sell guns
was only valid in California. Vendors at the show informed Ogles that federal law prohibited him from delivering
guns to a purchaser outside the state of a vendors' licensure. The same vendors then witnessed Ogles sell and deliver
a gun to an Arizona resident. Ogles was indicted for willfully selling and delivering a firearm without a valid state
license. At the close of the government's case, the District Court granted Ogles' motion to dismiss the charge of
selling firearms without a license and the jury found Ogles guilty of willfully selling and delivering a firearm to an
out of state resident. Ogles appealed the conviction and the government appealed the Court's dismissal of the charge
of selling firearms without a license. Ogles argued that overturning the judge's decision to grant the motion to
dismiss the licensure charge would place him in double jeopardy. The Ninth Circuit concluded that the district court
incorrectly interpreted the statute requiring gun sellers to be licensed in the state where they do business and
overturned the district court's decision. The Ninth Circuit also held that double jeopardy does not apply when a
decision to acquit is based on an interpretation of law made before a finder of fact which determined the guilt or
innocence of the accused. AFFIRMED IN PART, REVERSED AND REMANDED IN PART. Partial Concurrence
and Partial Dissent by Judge Rymer. [Summarized by David Wilson]


OREGON SUPREME COURT

Ashcroft v. Psychiatric Security Review Board
Case No.: S51508 http://www.publications.ojd.state.or.us/S51508.htm

AREA OF LAW: CRIMINAL LAW

HOLDING: (Opinion by Balmer, J.) For purposes of Oregon’s insanity defense statutes, alcohol dependence is a
―personality disorder‖ rather than a ―mental disease or defect,‖ and is not a sufficient basis for the Psychiatric
Security Review Board to deny discharge.

Ashcroft was found guilty except for insanity for attempted assault in the second degree based on mental disease or
defect. The trial court placed Ashcroft under the jurisdiction of the Psychiatric Security Review Board (PSRB) for a
maximum of five years. Several months later the PSRB conducted a hearing to determine whether or not Ashcroft
should be conditionally discharged or released. The PSRB must discharge a person after a hearing if they find the


                                                     -5-
person is no longer suffering from a mental disease or defect. The PSRB denied Ashcroft’s discharge because it
found that his alcohol dependence was a mental disease or defect. Ashcroft appealed and the Court of Appeals held
that while Ashcroft did suffer from alcohol dependence but that the dependence was a personality disorder and,
therefore, not a mental disease or defect as defined by ORS 161.295(2). The Supreme Court agreed with the Court
of Appeals finding that the relevant statutes and legislative history revealed that alcohol dependence is a personality
disorder and not a mental disease or defect. The order of the PSRB is vacated, and the case is remanded to PSRB for
further proceedings. [Summarized by Rachel Arnold.]

State v. Wolleat
Case No.: S50919 http://www.publications.ojd.state.or.us/S50919.htm

AREA OF LAW: CRIMINAL LAW

HOLDING: (Opinion by Kistler, J.) Evidence that a victim was dragged from one room to another during the course
of an assault is insufficient to permit a reasonable juror to find that the victim was kidnapped.

Wolleat was convicted of fourth degree assault and first degree kidnapping for dragging his fiancé approximately 15
to 20 feet from her bedroom to the living room, where he repeatedly struck her. On appeal Wolleat argued that no
reasonable juror could find that he intended to interfere substantially with the victim’s personal liberty as required
under ORS 163.225 and 163.235. The Supreme Court held that moving a victim from one room to another while
committing another crime did not give rise to an intent to interfere substantially with the victim’s liberty. Therefore,
Wolleat was entitled to acquittal on the kidnapping charge. Reversed in part. [Summarized by Trevor Johnson.]


OREGON COURT OF APPEALS

State v. McMillan
Case No.: A112613 http://www.publications.ojd.state.or.us/A112613.htm

AREA OF LAW: CRIMINAL LAW

HOLDING: (Opinion by Landau, P.J.) Restitution may be ordered by the court despite the fact that the precise
amount was not proven beyond a reasonable doubt to a jury.

Blaine McMillan was convicted of theft of cattle valued at more than $1,000 by entering into ―feed and care‖ leases,
then selling the cattle without the owners’ permission. The trial judge ordered McMillan to pay restitution of
$85,969 based on the actual value of the cattle. McMillan argued on appeal that the actual value was a finding of
fact that should have been made by the jury rather than the sentencing judge. The Court of Appeals held that the
precise monetary amount of injury was not an element of the crime of theft that had to be proven to a jury beyond a
reasonable doubt. Proof of $1,000 indicated the seriousness of the injury and was sufficient to permit an order for
restitution. State and federal statutes uniformly authorize trial courts to determine the amount of restitution and
require that they reflect the full amount of the victim’s pecuniary damages. [Summarized by Teka Lamade.]

State v. Giles
Case No.: A118345 http://www.publications.ojd.state.or.us/A118345.htm

AREA OF LAW: CRIMINAL PROCEDURE

HOLDING: (Opinion by Landau, P.J.) Other than a prior conviction, any fact that increases a defendant’s statutorily
prescribed sentence must be submitted to a jury and proved beyond a reasonable doubt because the state has no valid
interest in requiring a defendant to serve an unlawful sentence.

The trial court sentenced Thearone Giles to 300 months imprisonment for murder and felon in possession of a
firearm. On the possession charge, the trial court sentenced Giles to 18-months imprisonment instead of probation—
the presumed sentence—because he had prior firearm use. Giles appealed, arguing that only a jury can determine
whether a defendant persistently engaged in similar offenses. Indeed, other than a prior conviction, evidence that


                                                     -6-
increases a statutorily prescribed sentence must be submitted to a jury and proved beyond a reasonable doubt. The
state argued that the court should not review the plain error because the trial court could have avoided the error by
requiring the state to prove prior firearm usage. The Court of Appeals rejected this argument because it did not
identify any reason for the court to not review the issue, and the state has no valid interest in requiring a defendant to
serve an unlawful sentence. Convictions affirmed; remanded for sentencing. [Summarized by Mark Mayer.]

Makinson v. Lampert
Case No.: A123486 http://www.publications.ojd.state.or.us/A123486.htm

AREA OF LAW: CRIMINAL LAW

HOLDING: (Opinion by Brewer, C.J.) (Petitioner’s claims asserted for the first time on appeal for post-conviction
relief are waived unless they are made in a petition or amended petition.)

Makinson disregarded his amended petition when appealing dismissal of that petition, and instead argued for the
first time that his sentencing counsel proceeded improperly by not using Blakely v. Washington, and that the
sentencing procedures were incorrect by right of Apprendi v. New Jersey, 530 US 466. The Court of Appeals
indicated that a petitioner can have collateral civil remedies under the Post Conviction Hearing Act, ORS 138.510,
by filing a petition, but the petition must state all grounds for post-conviction relief and the petitioner is deemed to
have waived any grounds not asserted, ORS 138.550(3). Makinson did not meet this requirement and argued that
the errors he asserted constituted plain error. The court declined to apply the plain error doctrine to ORS
138.550(3). The court also indicated that any Apprendi claim must be submitted in a petition to the court and cannot
be considered for the first time on appeal. Respondent’s motion for summary affirmance granted. [Summarized by
Kimberly Boswell.]

Pratt v. Armenakis
Case No.: 93C-13559; A107068 http://www.publications.ojd.state.or.us/A107068.htm

AREA OF LAW: CRIMINAL LAW

HOLDING: (Opinion by Haselton, P.J.) A claim of disqualification for the death penalty must be asserted in the
original or amended petition to be considered on appeal. Additionally, a defendant cannot claim inadequate
assistance of counsel for not raising an insanity defense when defendant instructed counsel not to raise such a
defense.

Petitioner (Pratt) was convicted of aggravated murder in 1991 and was sentenced to death. The conviction and
sentence were affirmed on review. Pratt filed an emergency motion to remand this case so he may amend his
petition to allege a claim of his ineligibility to be sentenced to death due to mental retardation based on Atkins v.
Virginia, 536 US 304 (2002). ORS 138.550(3) states that when a post-conviction court renders a decision, petitioner
has no further ability to amend the original petition and may only raise a new claim by filing a subsequent petition.
Pratt additionally asserted the post-conviction court erred in concluding that he was not denied the right to adequate
counsel. To succeed on his appeal, Pratt must show, by a preponderance of the evidence, facts that:
1) trial counsel failed to exercise reasonable professional skill and judgment, and 2) counsel’s failure had a tendency
to affect the results of the criminal trial. Pratt asserted that his counsel failed to exercise professional skill because,
along with 3 other dismissed reasons, his counsel did not raise an insanity defense. Evidence supported the fact that
Pratt instructed counsel that he did not want to assert such a defense. Pursuant to ORS 161.295, a court cannot find
a party guilty but insane against his wishes it then only follows that counsel may not assert the defense against
defendant’s wishes. Affirmed. [Summarized by Sheryl Oakes.]

State v. Jones
Case No.: A119310 http://www.publications.ojd.state.or.us/A119310.htm

AREA OF LAW: CRIMINAL LAW




                                                      -7-
HOLDING: (Opinion by Edmonds, P.J.) The trial court erred by excluding evidence of defendant's previous
suspension because former ORS 809.410(38)(a) (1999) authorized DMV to proceed from the "official record
conviction forwarded by the court," not the charging instrument alone.

Defendant Jones filed a motion in limine in defense of a Lane County charge of felony driving while suspended
arising from a 2002 incident. The trial court granted the motion, suppressing evidence of Jones's 2001 suspension.
DMV issued the 2001 suspension based on a Coos County case in which Jones was charged with assault with a
dangerous weapon, a vehicle, and DUII. In the Coos County case, Jones pled to a lesser-included charge and the
court removed the vehicle language, essentially deleting it from the charging instrument. Jones did not contest the
administrative order. The state appealed the Lane County order in limine. The Court declined to review the state's
unpreserved issue that Jones was barred from collaterally attacking his previous suspension. However, on alternate
argument, the Court held that former ORS 809.410(38)(a) (1999) authorized DMV to proceed from the "official
record conviction forwarded by the court," not the charging instrument alone. Therefore, the trial court erred in
concluding that DMV lacked authority to order the 2001 suspension and in excluding evidence of the suspension.
Reversed and Remanded. [Summarized by Laurie Nelson.]


ARTICLE OF THE WEEK

Supreme Court to review rights of state inmates
Prisoner in wheelchair focus of states' rights case
(CNN.com – Monday, May 16, 2005)

WASHINGTON (AP) -- The Supreme Court said Monday that it will decide if states and
counties can be sued for not accommodating disabled prisoners, setting up another legal
showdown over the power of Congress to tell states what to do.
The high court ruled seven years ago that a landmark federal civil rights law protects people being held in state
prisons.

Since then, however, lower court judges have disagreed over whether states can be sued for damages by prisoners
under the Americans With Disabilities Act, a law meant to ensure equal treatment for the disabled in many areas of
life.

Supporters of the law contend that the threat of damages is needed to force states to comply.

The Bush administration filed an appeal on behalf of a paraplegic Georgia prisoner, in the case with major
implications for states because of the costs of retrofitting old prisons to accommodate people with disabilities.

Justices will consider the case of Tony Goodman, who claims he has been held for more than 23 hours a day in a cell
so narrow he cannot turn his wheelchair.

Goodman, who suffered his injuries in a car accident, is serving time for aggravated assault and a cocaine conviction.
He claims that because the prison in Reidsville, Georgia, is not equipped for people in wheelchairs, he cannot go to
the bathroom or bathe without help, and does not have access to counseling, classes and religious services. He has
sometimes been forced to sit in his own waste, according to Goodman's lawsuit.

Paul Clement, the president's lead Supreme Court lawyer, told justices in a filing that ADA's protections address "the
inhumane, degrading, and health-endangering conditions of daily living for inmates."

Lawyers for the state of Georgia had urged the court to refuse to hear the case, so that other courts will have more
time to sort out a recent Supreme Court ruling in another case involving the disabilities law.

States have repeatedly clashed with the federal government over their liability under the 1990 law, seeking immunity
from lawsuits because the Constitution says a state government cannot be sued in federal court without its consent.

Justices have sharply disagreed on when states are immune.




                                                      -8-
Last May, the Supreme Court ruled 5-4 that states can be sued over inaccessible courthouses. Chief Justice William
H. Rehnquist, who has championed states rights, disagreed with the courthouse decision last year.

The cases are United States v. Georgia, 04-1203, and Goodman v. Georgia, 04-1236.


FROM THE POND
4/20/2005
RE: [Ocdlapond] State v. William
[Posted to call attention to opportunity for appeal in this case.]

Response:
 The public records exception was conceded as an existing and applicable hearsay exception. That is well settled
law. The defense never conceded that the holding of Moore did not apply to the hearsay exception. Unfortunately,
Crawford had not yet been decided when the William case went to trial.

Response:
http://confrontationright.blogspot.com
For folks interested in continuing this battle, I highly recommend the "Confrontation Blog" run by University of
Michigan Law School professor Richard Friedman. Very useful info, and in the December 2004 and February 2005
archives, Jeff Fisher gives a list of decisions around the country applying Crawford.

4/21/2005
[Ocdlapond] U.S. Supreme Court grants cert on "Leach" issue
Earlier this week, the U.S. Supreme Court granted cert in a case called Scott Randolph v. Georgia. The issue was
third party consent to search when suspect was present. The Georgia Supreme Court explicitly relied on
Washington's case, State v. Leach, to hold that such consent is invalid.

5/12/2005
Re: [Ocdlapond] What is the effect of an 'incomplete' arraignment?
[Posted in response to inquiry whether client has been arraigned if client is 'almost' arraigned on an outstanding
DUII. Court advised client of rights, got acknowledgement of correct ID, etc., but then judge was side-tracked and
never asked for/enters any plea. Matter is set for call a little over a month later, and the SOL should pass during the
'normal' scheduling of this case. Has the client been arraigned?]

Response:
Yes, but not always, if the "warrant" or "process" isn't "executed without unreasonable delay." ORS 131.135. Hard
argument to make, but occasionally can be used to good effect in combination with speedy trial claims.

Response:
Only if the warrant is served within a "reasonable time" See:
State v. Barnes, 66 Or App 896 (1984): (prosecution is commenced when a warrant is issued provided it is executed
without unreasonable delay.)
State v. Huskey, 171 OrApp 550 (2000): (statute of limitations is not tolled by initiating a case on a warrant unless
the warrant is served without unreasonable delay.)‖

5/13/2005
Re: [Ocdlapond] depart out of REPO?
[Posted in response to inquiry whether 137.717 allows a judge, upon making mitigating findings, to depart
downward out of a REPO sentence (over the state's objection)?]

Response:
State v. Young (8/27/02) clearly states 137.717 is a mandatory minimum, and NOT a presumptive sentence.
Departures can apply (see Young), but if the state wants to upward, state needs to go back to the SGLs and work it
up from a level 2 or 3 or whatever. Downwards can apply as well, if you can negotiate it with the state or win at
open sentencing.



                                                      -9-
5/13/2005 - 5/14/2005
Re: [Ocdlapond] Suppression Question??
[Posted in response to inquiry regarding reasonable suspicion and warrant requirements with regard to police
inspection of client’s home when marijuana plants spotted during fly over. Client holds medical marijuana card.]

Response:
There is a case, State v. Freund, 102 Or.App. 647 (1990): the cop walks to the front door and says, ―I am here to
pick up the marijuana and I want to do it calmly and efficiently.‖ If your cops are relying on consent…Freund
squarely says that is not consent; it is acquiescence. Added to your lack of reasonable suspicion arguments it could
work.

Response:
There is no provision in the Oregon Medical Marijuana Act for inspections. When the subject came up during the
rulemaking following the election in 1998, neither law enforcement nor DHS wanted the responsibility. During the
last hearing this session on the bill in play to amend the OMMA (SB772), Lt. Craig Durbin (head of the drug unit of
the Ore. State Police) testified about the need for inspections and Dr. Grant Higginson (state health officer and
overseer of the Oregon Medical Marijuana Program) testified about his concerns about what that would look like if
DHS were responsible for it so things do not seem to have changed appreciably since then.

"Possession of a registry identification card or designated primary caregiver identification card pursuant to ORS
475.309 shall not alone constitute probable cause to search the person or property of the cardholder or otherwise
subject the person or property of the cardholder to inspection by any governmental agency." Not just a good idea,
it’s the law. ORS 475.323(1).

So maybe the consent is the fruit of the illegal request. St v Rodriguez and progeny.

5/13/2005
Re: [Ocdlapond] Re: THC / .04 BAC
[Posted in response to post about an Australian study about absorption of acetone and breathalyzer test results. This
additional insight provided by Mike Howard, who ran one of the state crime labs before retiring to do defense work.]

Response:
Acetone will NOT give an artificial BAC on the intoxilyzers used in the state of Oregon. Anyone who tries to use
this as a defense in this state will get blown out of the water by the OSP Crime Lab folks. As I was one of the
scientists who was on the team that brought the model 5000 into the state I know this for sure. I have also tested this
on a severe diabetic who had obvious acetone on her breath. Feel free to pass this information on to the pond or
anyone interested. I can be contacted at (cell) 360-690-5733.
Michael Howard
Forensic Scientist




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