The View From Here

Fighting to Keep Fighting…and Win

by Dave Ferry, OCDLA President

From the January/February/March 2017 issue of The Oregon Defense Attorney.


Hello fellow defense attorneys, thank you for continuing to fight the good fight. We all know that it is a fight that needs to be fought even when we lose. But let’s not forget that sometimes, damn it, we win.

Have you ever tried to explain to someone who is not a criminal defense attorney why a particular case or issue has gotten under your skin? Then realized that they just weren’t feeling you?

We know that the other participants in the criminal justice system are rarely familiar with our version of reality. We seem to use the terms “justice” and “fairness” in a different way than they do.

But it’s not just that we are different. Sometimes, damn it, we’re also right!
Recent…things, including a couple cases of mine, have really gotten under my skin. I won’t rail against, well, everything, but I will make my point with one example that is currently at the forefront of my mind: the fairly new, judicially enshrined “right” of trial courts to increase sentences on remand.

Where does this right come from? Why do the appellate courts feel so strongly the need to protect it? And when did it come to outweigh the rights of criminal defendants to file appeals without fearing retribution?

A client of mine started an appeal a number of years ago (at a time when the law precluded him from getting a higher sentence on remand after appeal—we miss you, Turner). We won. Turns out, we were correct that the state over-charged and the trial court over-convicted him. But while his case was pending, the trial court won this new “right” to modify the sentence as it sees fit, even if it is more than the sentence defendant got before the courts corrected the errors that had worked against him. So when he went before the resentencing court, it said: I know things the first sentencing court didn’t know (having nothing to do with defendant’s conduct during the crime in question), so I am going to impose a longer sentence now, despite the fact that I am punishing you for significantly fewer crimes.

So I appeal, again. But I can’t convince the Court of Appeals that protecting trial court resentencing decisions like the one in this case will chill defendants’ right to appeal. Which surprises me, because I regularly write letters to my clients actually chilling their right to appeal, quite consciously, because of the realistic risk of sentencing increases like the one in this case. And now I am back before the Oregon Supreme Court. Crossing my fingers.

Shouldn’t a criminal defendant be able to seek correction of a trial court mistake without risking additional years of incarceration? Shouldn’t that be a significant counterweight to balance against a resentencing court’s desire to impose a longer sentence?

Some of you may be thinking (correctly) that the United State Supreme Court once said there was a due process right to be “freed from the apprehension” that appealing might lead to a vindictive sentence. It is now unclear what that means. Is it sufficient to protect against a chill of appellate rights if a reviewing court can conclude that no actual vindictiveness took place? I wouldn’t think so—we are not trying to free judges from the apprehension of vindictiveness, after all, we are trying to free defendants. So where are the cases stating that the appropriate standard must look at resentencing from the perspective of the reasonable criminal defendant?

This bothers me not just because those resentencing practices turning my successes into my clients’ worst nightmares are fundamentally unfair, but also because I don’t understand why that isn’t obvious. Under the current law, meritorious appeals do not get filed, trial court errors do not get corrected, and criminal defendants’ rights are frustrated. Why isn’t that an obvious problem that needs fixing?

It is frustrating to stand on the mountain top and shout about an obvious problem, fully believing that we are right, and find that nobody is listening.

But…the Supreme Court did take my case. They are, even now, listening to my shouts. Maybe this one will get fixed.

That’s another reason why we are important, and needed, and why we keep doing this job. It’s not just because the fight needs to be fought, not just to make sure our voices are heard and to hope they will have some effect on future political discourse—it’s also because sometimes we do get the right outcome.

So, as always, keep fighting the good fight, my friends. And don’t forget: sometimes, despite the political climate, despite everything, we win. Perhaps not nearly as often as we should, but as I tell the young players on my basketball team, only the people willing to take the shots score.