News: Announcements
Petition — 100 Signatures Needed to Establish Veterans Section of the Oregon State Bar
Posted March 4, 2010
1. Read, print and sign the petition to establish a veterans section at the Oregon State Bar.
2. After signing, immediately SNAIL MAIL the signed petition to: Gareld Gedrose, Metropolitan Public Defender, 630 SW Fifth Avenue, Suite 500, Portland, OR 97204. If you have questions, please call Gary at (503) 577-4318 or (503) 225-9100. Do not send the petition to the OSB.
February 2010 Legislative Session Underway
One-hour Notice on Hearings Not Unusual
Posted February 12, 2010
There are several contentious bills moving through the short February session:
• HB 3634 — a post-trial crime victims’ rights bill
• HB 3601 — a bill requiring that all DUII implied consent hearings be conducted by telephone
• SB 1007 — the repeal of the increase in 30% of earned time
There are other bills as well. The session is very abbreviated, with expedited timeframes expected to culminate in one-hour notice of the setting of bills. This truncated process has highlighted the importance of knowing which OCDLA members are the constituents of which legislators. If you have not already done so, please contact the staff at OCDLA at 541-686-8716 and give them your home address and zip code. OCDLA will only use this information for purposes of creating a database so the OCDLA lobbyist, Gail Meyer, can use the information in her lobbying effort.
Machuca Overturned
Posted February 12, 2010
The Supreme Court overturned the decision of the Court of Appeals by holding that the evanescent nature of blood alcohol evidence in DUII cases constitutes an exigent circumstance that will, when coupled with probable cause, ordinarily permit warrantless blood draws for purposes of the Oregon Constitution.
Go here for the Supreme Court Opinion.
GoogleGroup for Macintosh Using OCDLA Members
Posted February 12, 2010
A new GoogleGroup listserv for OCDLA members who use Macintosh computers in their practice has begun. It is a place for attorneys, investigators and others to learn and share information about using Macs in criminal defense. Brownbags on using certain software, such as Bento, Circusponies, TrialSmart or Timline3D are planned. If you would like to join the group, send Lisa Maxfield an email at lisa@pdxlaw.com.
Federal Public Defender CLE February 17 and 18
Current Issues in Child Pornography Cases: A Two Hour Special
Posted February 12, 2010
AFPDs Craig Weinerman and Brian Butler will present a comprehensive look at child pornography prosecutions, from pretrial motions to sentencing issues. The presentation will include a survey of legal issues, including pretrial release, search and seizure and pleading problems, forensic issues with the help of forensic expert Marcus Lawson, understanding psycho-sexual evaluations and other psychological issues, with experts Richard Wollert in Portland and Steven Mussack in Eugene, and an exploration of sentencing issues, including deconstructing the guidelines. Questions and sharing of information will be encouraged.
Portland, Wednesday, February 17, noon – 2 p.m., and Eugene, Thursday, February 18, noon – 2 p.m.
For more information, contact Cheryl Luff-Delaney at the Federal Public Defender Office, cheryl_luff-delaney@fd.org, (503) 326-2123.
Group Gives Up Death Penalty Work
Posted February 12, 2010
Last fall the American Law Institute, which created the modern framework for the death penalty almost 50 years ago, pronounced its project a failure citing the intractable obstacles to ensuring a minimally adequate system for administering capital punishment.
The institute is made up of about 4,000 judges, lawyers and law professors. It synthesizes and shapes the law in restatements and model codes. The institute’s recent decision to abandon the field was a compromise. Some members had asked the institute to take a stand against the death penalty outright.
To read the full story, go here: www.nytimes.com/2010/01/05/us/05bar.html?th&emc=th.
Ninth Circuit Amended Decision Strengthens Holding that SORNA’s Registration Requirement for Juveniles Is Punitive and Unconstitutional
By Noah Barish, Juvenile Rights Project Law Clerk, Portland
Posted February 12, 2010
In September 2009, the Ninth Circuit issued an important decision declaring that the retroactive application of SORNA’s (Sex Offender Registration and Notification Act) registration requirement for former juvenile offenders is punitive and violates the Ex Post Facto Clause of the Constitution. U.S. v. Juvenile Male, 581 F.3d 977 (9th Cir. 2009). For a more complete summary of that decision, see the Juvenile Law Reader, Volume 6, Issue 6, p. 18 (http://www.jrplaw.org/Documents/jrpreaderv6is6.pdf).
Last month, the Ninth Circuit amended that decision slightly but left the holding and substantive reasoning untouched. U.S. v. Juvenile Male, 590 F.3d 924 (9th Cir. 2010), available here, http://www.ca9.uscourts.gov/datastore/opinions/2010/01/05/07-30290.pdf. The amended decision adds two footnotes to the prior ruling, both of which distinguish previous Ninth Circuit cases addressing ex post facto challenges to SORNA’s registration requirements for adults.
The first footnote clarifies that the Ninth Circuit decisions in Russell v. Gregoire, 124 F.3d 1079 (9th Cir. 1997), and Hatton v. Bonner, 356 F.3d 955 (9th Cir. 2004), both addressed registration for adult convictions and failed to consider whether registration would be punitive if imposed on those adjudicated delinquents in the juvenile justice system.
The second footnote discusses United States v. George, 579 F.3d 962 (9th Cir. 2009), an ex post facto challenge to SORNA’s criminal provisions from an adult defendant convicted of a sex offense prior to SORNA and then convicted under SORNA for failure to register. George held that when there is a lawful obligation to register pre-SORNA, that obligation continues post-SORNA, and thus SORNA’s imposition of criminal liability for post-SORNA conduct raises no ex post facto issue. George, however, did not consider whether juvenile offenders may be required to register based on pre-SORNA adjudications, the central issue of Juvenile Male.
This amended decision in Juvenile Male only serves to strengthen the Ninth Circuit’s holding that SORNA’s registration requirement for juveniles is punitive and unconstitutional.
New Capital Resource Attorney Hired
Posted January 8, 2010
Jeff Ellis will assume Matt Rubenstein's former role as the Capital Resource Attorney for Oregon. Jeff, no stranger to Oregon, is a 1987 graduate of the University of Oregon Law School. He worked at the Defender Association in Seattle for 15 years handling the full range of criminal cases and supervising that office’s felony and appellate divisions. Since 2003 he has been in private practice handling complex criminal cases including death penalty cases. He has also served as an adjunct professor at Seattle University School of Law teaching a capital punishment seminar. From 2001–2002 he handled death sentence post-conviction cases in Austin, Texas. He is a frequent speaker on criminal law topics including death penalty law and practice. Welcome back to Oregon, Jeff.
While Matt Rubenstein is leaving the position he will remain in Oregon performing very similar services as a Capital Resource Counsel at the Federal Death Penalty Resource Counsel Project. Special thanks to Matt Rubenstein for his work in helping start the Resource Center.
House Bill 3508 Appeals
Posted January 8, 2010
The Office of Public Defense Services, Appellate Division is litigating the appealability of trial court denials of additional earned time under HB 3508 (from 20% to 30%). On December 28, 2009, the Oregon Court of Appeals held that such denials are not appealable. The Appellate Division will petition the Oregon Supreme Court to review the Court of Appeals’ decision. Until the Supreme Court denies review or rules, inmates and attorneys who want to challenge the denials should still refer cases to the Appellate Division via its website.
Legal Document Library Receives 150 New Documents
Posted January 8, 2010
OCDLA’s motion and brief bank, the Legal Document Library, now contains over 150 new documents, thanks to the editorship of Jessica Freeman of Roseburg. There are new categories since the last update: Contempt and MJOA. Previously, the categories of Demurrer, Mental State, Miranda, Releases, Search Issues and Speedy Trial were created, and Demurrers, Mental State, and Search Issues have expanded in this round. Most documents were created in the last year or two. Take a look by using your username and password to log in under “Members Only.”
If you have documents you believe would benefit other members and you do not see a similar version, please send them to Jessica Freeman at jfreeman@arnesongroup.com.
New Formal Ethics Opinion Approved
Posted January 8, 2010
The Oregon State Bar’s Board of Governors has approved a new Formal Ethics Opinion addressing whether an attorney must withdraw from representing a client who files a bar complaint. The opinion describes circumstances when an attorney, facing a bar complaint from a current client, must move to withdraw from representation, but it also describes circumstances in which withdrawal would not be required. According to Paul Levy, General Counsel at the Office of Public Defense Services, many attorneys and courts have long believed that withdrawal is always required, even in the face of complaints that are clearly frivolous and without merit. The opinion should prove helpful for the conscientious attorney who wishes to continue serving a misguided client who would be ill-served by the withdrawal of prepared and dedicated counsel. The opinion is available on the OSB website.
Juvenile Justice News
Longitudinal Study Finds Detention Is Precursor to Criminal Behavior
Posted January 8, 2010
A new study published in the Journal of Child Psychology and Psychiatry showed that juvenile delinquents were seven times more likely to commit criminal acts as adults than youth from the control group who avoided the juvenile justice system. The control group consisted of youth with histories similar to the delinquent youth but who had not entered the juvenile justice system. Further, the study found that youth in least restrictive environments like community service reoffended as an adult at a rate of 2.3% as compared to a reoffense rate of 38% for youth who had been placed in juvenile facilities such as detention. “Iatrogenic Effect of Juvenile Justice”, The Journal of Child Psychology and Psychiatry, 50:8 (2009) pp 991–998. For a more detailed summary and a link to the published study visit the Annie E. Casey Foundation website.
OCDLA Building Campaign Off to Auspicious Start
Posted January 6, 2010
OCDLA Life Member Chris Hansen and his wife Suzanna Hansen recently handed to Executive John Potter a $10,000 check made out to OCDLA. Hansen’s contribution kicks off OCDLA’s Building Campaign. Hansen said, “It’s about time OCDLA had it’s own space, a true home office.”
Since it’s inception in 1979, OCDLA has rented office space in Eugene. Now the association is looking to put down permanent roots in Eugene.
The OCDLA Board has made buying a building a priority and has set a goal of raising $100,000 to make a mortgaged purchase a reality.
Thank you Chris Hansen for your generous gift and your commitment to OCDLA’s long-term viability and financial stability.
If you would like to contribute to the Building Campaign, contact the OCDLA office. OCDLA is a nonprofit, 501 (c) (3) educational association.
Crime Victims Rights — Amended Uniform Trial Court Rules and Forms
Effective October 13, 2009
The Chief Justice approved amendments to the Uniform Trial Court Rules (UTCR) governing crime victims’ rights in response to Senate Bill (SB) 233, which was passed by the legislature during the 2009 legislative session. The amendments to the UTCR and related forms took effect on October 13, 2009. The UTCR amendments and related forms are available on the Judicial Department’s website.
Indian Tribes in Oregon Among First Jurisdiction to Implement the Sex Offender Registration and Notification Act (SORNA)
Noah Barish, Law Clerk
On September 23, 2009, the US Department of Justice announced that Ohio and the Confederated Tribes of the Umatilla Indian Reservation (located in Oregon) were the first two jurisdictions to substantially implement the controversial Sex Offender Registration and Notification Act (SORNA), Title I of the Adam Walsh Child Protection and Safety Act of 2006. “We understand the importance of working together to protect our communities by creating a national system of sexual offender registries,” said Antone Minthorn, Chairman of the Board of Trustees for the Confederated Tribes. Attorney General Eric Holder also noted that the DOJ was “committed to working with the remaining states, tribes, and territories with their implementation efforts.” The complete article will appear in the next issue of the Juvenile Law Reader, published by the Juvenile Rights Project, at the end of November. For more information about SORNA, visit the U.S. Department of Justice SMART web page.
New Research on Shaken Baby Syndrome
A recently published article, “A Shake to the System” by Radley Balkow, details new challenges to expert testimony describing so-called “shaken baby syndrome.” The online article contains a link to an abstract of an article published by Deborah Tuerkheimer entitled, “The Next Innocence Project: Shaken Baby Syndrome and the Criminal Courts” which appeared in the Washington Law Review. Read “A Shake to the System,” online here.
House Bill 3508
Earned Time Credit
Prepared by Rebecca Duncan
1. Summary.
• Certain inmates will be eligible to have their sentences amended so that they are eligible for 30% earned time, as opposed to the current 20%. (See attached document for more details. Note: BM11 clients (and others prohibited by law from receiving earned time, including Denny Smith inmates) are not eligible, nor are inmates convicted of rape III, sodomy III, sex abuse II, criminally negligent homicide, assault III, felony assault IV, or any attempts of BM11 or the listed crimes.)
• DOC will identify eligible inmates and send notices to the inmates, presiding judges, trial court administrators, and DAs (who will notify victims, if any). The trial court administrator will "file" the notice with the court, and the filing date starts the time running for later due dates. (Note: There are good cause exceptions to the due dates.)
• If no one objects to the increase, the judge will enter a supplemental judgment. If the judge, DA, or victim objects, the court will set a hearing and appoint counsel for the inmate. The objections must be made within 14 days of the filing date in cases where there is no victim, and within 21 days in cases where there is a victim. Hearings must be held within 35 days of the filing date. If there is a hearing, the inmate will likely appear by phone, and the evidence is limited to that which existed at the time of the original sentencing. The court shall grant the earned time unless there are "substantial reasons" to deny.
• HB 3508 was signed by the governor on 7/1. The earned time provisions take effect 60 days later, August 30, 2009. The provisions apply to sentences for crimes committed before July 1, 2013. (They expire in two years.)
• Remember, changes to the sentence only increase the earned time that the inmate can earn; he still has to earn it. And, earned time cannot take an inmate's sentence below six months; he has to serve at least that much.
2. DOC action.
DOC has a team working on the earned time implementation. They will be communicating with inmates and other stakeholders, including OPDS and OCDLA. Note: DOC says that it will not be sending any notices until the operative date of the earned time provisions. Thus, inmates will not be getting any notices of eligibility until August 31, 2009. DOC will prioritze notices based on the length of inmates' sentences. They will send notices to persons with shorter sentences first.
Log-in to access more House Bill 3508 documents in OCDLA’s Legal Document Library
Measure 57 Update
Measure 57 will remain in full effect until February 15, 2010, when its full implementation will be suspended (with a few exceptions) until January 1, 2012. During that 2-15-10 to 1-1-12 period, Measure 57 will remain effective only for those who commit identity theft against persons over 65, those who deliver a controlled substance of any amount to a minor, and those who sell substantial quantities of a controlled substance. No later than January 15, 2010, each of the 36 district attorneys will provide a report to the Criminal Justice Commission on the numbers of persons charged and sentenced under Measure 57, and CJC shall prepare a report to the legislature. In effect, the February, 2010 legislative session will present the district attorneys with an opportunity to argue that the forecast of numbers and costs associated with Measure 57 were over-inflated and that Measure 57’s provisions should not be suspended but remain in full effect. Assuming that no changes are made in the February session, the phase-in provision sunsets on January 1, 2012, and Measure 57 is scheduled to go back into full implementation.
Purchase a Ballot Measure 57 Guide.
DUII Monthly Meeting
Monthly DUII meetings are held the last Friday of the month at 7 a.m. in the office of Cate Wollam, at Multnomah Defenders, Inc., 522 SW 5th Ave., Portland. All are welcome and RSVP is appreciated to Mark Gorski, goresq@comcast.net.