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Bradshaw v. Richey Decided: 11/28/05 No. 05-101 full text: http://laws.findlaw.com/us/000/05-101.html

EVIDENCE (Evidence Not Properly Presented To State Courts Cannot Be Used To Support A Claim For Inadequacy Of Counsel and The Doctrine of Transferred Intent Can Support An Aggravated Murder Conviction.)

The United States Supreme Court held, in an unsigned per curiam opinion, that a transferred intent theory was adequate to support a conviction for aggravated murder and that evidence that was improperly considered by the Appellate Court could not be used to support a claim for inadequacy of counsel.

Kenneth Richey (Richey) was convicted of aggravated murder committed in the course of a felony and sentenced to death. Richey sought habeas relief after exhausting his state court remedies. The United States District Court for the Northern District of Ohio denied his petition after allowing discovery. The United States Court of Appeals for the Sixth Circuit (Court of Appeals) reversed, holding that Richey was entitled to habeas relief because Ohio law did not permit transferred intent as a theory for aggravated murder and that Richey’s counsel was constitutionally deficient. The United States Supreme Court (the Court) reversed. The Court held that the Court of Appeals misapplied Ohio evidence law, thus its ruling on the sufficiency of the evidence was erroneous. The Court held further that the Court of Appeals improperly adjudicated the inadequacy of counsel claim by relying on evidence that was not properly presented to state habeas courts because the Court of Appeals did not determine whether Richey was at fault for failing to develop the factual basis for his claims in state court. [Summarized by Ian Johnson]

Oregon v. Guzek Argued: 12/07/05 No. 04-928 Court below: 86 P.3d 1106 (9th Cir. 2004) Full text: http://www.publications.ojd.state.or.us/S45272.htm

CRIMINAL PROCEDURE (Whether Eighth and Fourteenth Amendments Require Letting a State Capital Defendant Provide an Alibi Claim to Penalty-Phase Jury)

Randy Lee Guzek (Guzek) was convicted of two counts of aggravated murder. Oregon’s death penalty statute at the time did not require an instruction to the jury to consider mitigating circumstances when considering the death penalty, thus the trial court did not give one. The Oregon Supreme Court (state supreme court) affirmed Guzek’s conviction, but reversed the sentence, holding that the Eighth Amendment requires a penalty-phase jury the given the ability to consider relevant mitigating evidence. A new jury again imposed the death penalty on Guzek. The Oregon Court again reversed, finding that the victim-impact evidence had been erroneously introduced. A new jury again imposed the death penalty. The Oregon Court vacated this sentence due to another error and remanded for a fourth penalty-phase proceeding. On appeal, Guzek argued the trial court erroneously refused to permit Guzek to introduce mitigation evidence which would have been contrary to Guzek’s murder convictions if believed. The Oregon Court, on appeal, concluded that the legislature intended admission of mitigating evidence to be limited in penalty-phase proceedings to what the Eighth Amendment requires a penalty-phase jury to consider. Disagreeing as to how whether the Eighth Amendment requires admission of mitigating evidence, a three-justice majority found that a defendant is entitled to introduce alibi evidence during the penalty phase for the jury’s consideration. On appeal to the United States Supreme Court, the Oregon Attorney General will argue that the Oregon Court misread the case law, which actually only entitles a capital defendant to present evidence addressing his moral culpability, not an additional opportunity to reargue legal culpability or guilt. [Summarized by Valerie Hedrick.]

Kansas v. Marsh Argued: 12/07/05 No. 04-1170

- 3 - Court below: 102 P.3d 445 (Kan. 2004) Full text: www.kscourts.org/kscases/supct/2004/20041217/81135.htm

CRIMINAL PROCEDURE (Constitutionality of State Death Penalty Statute Which Requires Death When Mitigating Factors do not Outweigh Aggravating Factors)

The issue in this case is whether a state capital sentencing statute is constitutional when it provides for the imposition of the death penalty when the sentencing jury determines that the mitigating and aggravating evidence is balanced.

Michael Lee Marsh II (Marsh) was convicted of capital murder, first-degree premeditated murder, aggravated arson, and aggravated burglary. He was sentenced to death for capital murder, to a term of life imprisonment with no possibility for parole for 40 years for first-degree murder, and consecutive sentences of 51 months for aggravated arson, and 34 months for aggravated burglary. On appeal the Kansas Supreme Court held that the Kansas state statute violated the Eighth Amendment because it required a capital defendant be sentenced to death if the jury determines that any mitigating circumstances do not outweigh the aggravating circumstances. The majority found that this provision effectively directed imposition of the death penalty when there are no mitigating circumstances. On appeal to the United States Supreme Court (the Court) the state will argue that the Court’s decision in Walton v. Arizona, 497 U.S. 639 (1990), upholding a state requirement that defendants show the mitigating circumstances outweighed the aggravating circumstances should have been controlling in this case. The state will argue that the Kansas Supreme Court’s decision resurrected a split that the Walton decision was intended to put to rest. Finally, the state will argue that the capital sentencing statute does not violate the eighth amendment because it allows a jury to consider all relevant mitigating evidence when it weighs evidence. [Summarized by Ian Johnson.]

9TH CIRCUIT

U.S. v. Johal No. 03-30579 (11/09/05) Before Circuit Judges Schroeder, Chief Judge, Graber, and Fisher http://www.ca9.uscourts.gov/ca9/newopinions.nsf/3ED0F678031F2C65882570B4005F1697/$file/0330579.pdf? openelement

CRIMINAL LAW / DRUG CHARGES / MENS REA

Opinion (Fisher): Joga Singh Johal, a grocery store owner, was convicted for selling large amounts of cold pills containing pseudophedrine to undercover DEA agents and DEA informants. Pseudophedrine is used to make methamphetamine, an illegal substance. Johal appealed his conviction of selling and possessing large quantities of over-the-counter cold pills. The crime required knowing or having reasonable cause to believe that the drugs would be used to manufacture methamphetamine. Johal claimed that a “reasonable cause to believe” standard imposed criminal liability without mens rea, and that the district court should have found him eligible for a sentence reduction because of his acceptance of responsibility. Johal also claimed that the standard was an objective standard. The Ninth Circuit rejected his claim and stated that the standard required a person to subjectively know facts that either cause him or would cause a reasonable person to believe that the ingredients are being used to produce drugs. AFFIRMED AND REMANDED FOR RECONSIDERATION OF SENTENCING. [Summarized by Ryan Dowell]

U.S. v. Labrada-Bustamante No. 04-30082 (11/10/05) Before Circuit Judges Gould, Tallman, and Rawlinson http://www.ca9.uscourts.gov/ca9/newopinions.nsf/09D258FB079D8513882570B5005C13D4/$file/0430082.pdf? openelement

CRIMINAL LAW / SENTENCING GUIDELINES / BASE LEVEL OF OFFENSE

- 4 - Opinion (Rawlinson): Armando Labrada-Bustamante, Roberto Duarte-Cruz, and Catalino Baranda-Gallardo negotiated to sell five pounds of methamphetamine to a DEA agent. Although an agreement on the sale was never reached, and the defendants did not possess any meth, a jury convicted the defendants of conspiracy to distribute five pounds of a controlled substance. The trial court sentenced the defendants to imprisonment for terms ranging from 87 to 151 months. Among other issues, Labrada, Duarte, and Baranda appealed the trial court's use of five-pounds of meth as the quantity of drugs to establish the base level offense. The Ninth Circuit held the use of five-pounds as establishing the base level of the offense was proper because Labrada and Duarte had admitted to the negotiating for the sale of five pounds of meth, but the trial judge erred in saying that the sentence was beyond his control, because the sentencing guidelines should have been advisory. Because of the error, the Ninth Circuit remanded the case to the trial court for re-sentencing. The Ninth Circuit also held that that even though Baranda did not admit to the amount of meth in the proposed sale, his sentence was proper because Baranda's prior drug conviction required a minimum sentence of twenty years. CONVICTIONS AFFIRMED; SENTENCES VACATED AND REMANDED. [Summarized by David Wilson]

U.S. v. Howard No. 03-50524 (11/15/05) Before Circuit Judges Schroeder, Chief Judge, Gould, and Clifton http://www.ca9.uscourts.gov/ca9/newopinions.nsf/569462EAB8438517882570B9006B9DF3/$file/0350524.pdf? openelement

CRIMINAL PROCEDURE / DUE PROCESS / PHYSICAL RESTRAINT / SHACKLES

Opinion (Schroeder): Seventeen criminal defendants challenged a requirement that detainees, making their first appearance before a magistrate judge, wear leg shackles. The United States Marshals Service implemented the policy for the Central District of California, although the record did not indicate exactly why the policy was implemented. In each of the seventeen cases, the magistrate denied the Federal Public Defender’s motion for the defendant to appear without shackles. The district court reviewed and affirmed the magistrate judges’ shackling decisions, citing general safety concerns. On appeal, the Ninth Circuit first noted that the case was not moot and that it had proper appellate jurisdiction. As to the merits, the Ninth Circuit held that due process requires a strong justification of the necessity of the shackling policy because the policy diminished the liberty of pre-trial detainees and distracted from the dignity and decorum of a criminal prosecution. Because the district court offered essentially no justification for the policy, the Ninth Circuit concluded that the district court’s order must be vacated. The Ninth Circuit also held, however, that reinstatement of a similar policy would be allowed if the new policy were based upon a reasoned determination which took into consideration past experiences or present circumstances in the Central District. REVERSED AND REMANDED. Dissent by Judge Clifton. [Summarized by Allison Abbott]

U.S. v. Norris No. 03-10437 (11/10/05) Before Circuit Judges Wallace, Rawlinson, and Bybee http://www.ca9.uscourts.gov/ca9/newopinions.nsf/CA10C718FC122BB6882570B5005C00E8/$file/0310437.pdf? openelement

CRIMINAL PROCEDURE / FIFTH AMENDMENT / EVIDENCE / CORPUS DELICTI

Opinion (Rawlinson): John Cornelio Norris was convicted on three counts of aggravated sexual abuse, based in part, upon confessions made during a voluntary interview at the police station. The trial court allowed the confessions because Miranda was not implicated and corpus delicti did not apply to prior acts. Additionally, Norris asserted that two of the charges were the same act and, therefore, under Chapter 29 Federal Rules of Criminal Norris should have been acquitted. The trial court disagreed. The Ninth Circuit held the trial court was correct in allowing the confessions, because Norris was not in custody for purposes of Miranda. The Ninth Circuit held the evidence of prior child molestation was properly admitted for charge three because evidence was admitted besides the confession and the Trial Court appropriately balanced the probative value of the prior act against the prejudice. The Ninth Circuit held corpus delicti applied to charge two because the evidence did not sufficiently corroborate the core elements of charge, and reversed the conviction on that count. AFFIRMED IN PART; REVERSED IN PART; SENTENCE VACATED; CASE REMANDED. [Summarized by J. Portman Webster]

- 5 - Miranda v. City of Cornelius No. 04-35940 (11/17/05) Before Circuit Judges Fisher, Gould, and Bea http://www.ca9.uscourts.gov/ca9/newopinions.nsf/DA74A93D91D8E04C882570BB007CB152/$file/0435940.pdf? openelement

CRIMINAL LAW / COMMUNITY CARETAKING DOCTRINE / UNREASONABLE SEIZURE

Opinion (Gould): Mrs. Miranda was driving her husband’s van around their neighborhood with her husband, Mr. Miranda, who was in the passenger seat teaching her how to drive. A city police officer observed that Mrs. Miranda was driving questionably and that she was going quite slow, about ten miles per hour, and decided to pull her over. The officer cited Mrs. Miranda for driving without a driver’s license, and cited Mr. Miranda for allowing the vehicle to be driven by an unlicensed driver. The police officer also informed the Miranda’s that their van would be impounded. A city ordinance allowed an officer who reasonably believed a vehicle was being driven by an unlicensed driver to tow the vehicle without prior notice. The Miranda’s filed suit in district court claiming (1) the impoundment of their van was an unreasonable seizure under the Fourth Amendment because it was not in accord with the values of the community caretaking doctrine, and (2) they were not given post-deprivation due process under the Fourteenth Amendment. The District court granted the City’s motion for summary judgment. On the Miranda’s first claim, the Ninth Circuit held that the impoundment of the Miranda’s van was an unreasonable seizure, and a violation of the Fourth Amendment, that was not defensible under the community caretaking doctrine because the Miranda’s van was not threatening public safety nor was it creating any hindrance to traffic. On the Miranda’s second claim, the Ninth Circuit held that the Miranda’s were not deprived of post-deprivation due process and affirmed the district court’s grant of summary judgment to the Defendants. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED. [Summarized by Jaymon Thomas]

U.S. v. Schneider No. 03-30527 (11/18/05) Before Circuit Judges Ferguson, Trott, and Kleinfeld http://www.ca9.uscourts.gov/ca9/newopinions.nsf/5F1687A754099465882570BC00774023/$file/0330527.pdf? openelement

CRIMINAL LAW / SENTENCING GUIDELINES / ADVISORY GUIDELINES

Opinion (Trott): Paul H. Schneider appealed his ten-month prison sentence after his convictions for theft of government money and Social Security fraud. Schneider contended that (1) the enhanced judge-found facts under the United States Sentencing Guidelines (Guidelines) violated his sixth amendment right, (2) the district court erred in denying him a downward departure sentence for diminished capacity, and (3) the district court erred in denying him adjustment for acceptance of responsibility under the Guidelines. The Ninth Circuit held the record insufficiently clear to conduct a plain-error analysis, and remanded the case with instructions for the district court to ascertain whether the sentence imposed would have been materially different had the district court known the Guidelines were advisory. REMANDED. Concurrence by Ferguson. [Summarized by Andrew Naylor]

OREGON SUPREME COURT

State v. Smith Case No.: S51233 http://www.publications.ojd.state.or.us/S51233.htm

AREA OF LAW: CRIMINAL PROCEDURE

HOLDING: (Opinion by Balmer, J.) A trial court does not abuse its discretion by denying a defendant's request for new counsel when defendant does not meet his burden of establishing the legitimacy of his request and the trial court has no duty to conduct an extended inquiry into the facts.

- 6 - Smith requested that the trial court appoint him new counsel on the first day of his trial on robbery and related charges. He argued that counsel had not examined unspecified facts and witnesses and stated that he was not receiving "fair representation." The trial court denied Smith's request, citing its confidence in counsel's abilities as well as counsel's statement of preparedness for trial. After his conviction, Smith appealed, and the Court of Appeals reversed, initially remanding for new trial, but on reconsideration remanding only for a hearing on the merits of the counsel issue. Smith petitioned for review, and the Supreme Court reversed. After review of constitutional authority and case law, the Court concluded that Smith bore the burden of establishing the legitimacy of his request and that the trial court had no duty to make an extensive factual inquiry regarding counsel's adequacy. Indeed, the Court noted, imposing such a duty might trigger other constitutional problems. Furthermore, a person alleging inadequate counsel may pursue such a claim through available post-conviction procedures. In dicta, the Court indicated that in unusual circumstances an extensive inquiry might be appropriate. However, under the circumstances present here, the trial court did not abuse its discretion by denying Smith's request. Court of Appeals decision reversed. Trial court judgment affirmed. [Summarized by Laurie Nelson.]

Roy v. Palmateer Case No.: S51941 http://www.publications.ojd.state.or.us/S51941.htm

AREA OF LAW: POST-CONVICTION RELIEF

HOLDING: (Opinion by Balmer, J.) Under ORS 163.105(2), a finding by the Board of Parole and Post-Prison Supervision that an inmate is “likely to be rehabilitated within a reasonable period of time” requires only that the sentence be changed to include the possibility of parole and does not also require immediate release of the inmate.

In 1984, Roy was convicted of aggravated murder and sentenced to life in prison without the possibility of parole. Pursuant to ORS 163.105(2), Roy was required to serve 20 years of his sentence without the possibility of parole or work release. In 1999, Roy asked the Board of Parole and Post-Prison Supervision (Board) to hold a hearing to determine if he was “likely to be rehabilitated within a reasonable period of time.” The Board determined Roy was capable of rehabilitation and converted his sentence to life imprisonment with the possibility of parole and set a projected parole release date of May 2004. In November 2000, Roy filed a petition for writ of habeas corpus and in December 2001 a writ of mandamus, both times arguing that under the Supreme Court’s decision in Norris v. Board of Parole that he was eligible for immediate release as of the date the Board found him capable of rehabilitation. The trial court denied both petitions and Roy appealed the petitions separately. The Court of Appeals consolidated the claims and reversed the trial court’s decision on the writ of habeas corpus. The state sought review by the Supreme Court and argued that nothing in the Court’s ruling in Norris or in ORS 163.105(2) required Roy to be released immediately upon the Board’s finding that he was “likely to be rehabilitated within a reasonable period of time.” Instead, the state argued that once the Board made its finding it was only required to change Roy’s sentence to include the possibility of parole and that this was not the same as immediate release. The Court agreed and held that neither its holding in Norris or ORS 163.105(2) established that a finding of likely rehabilitation required immediate release. The decision of the Court of Appeals is reversed, and the cases are remanded to the Court of Appeals for further proceedings. [Summarized by Rachel Arnold.]

OREGON COURT OF APPEALS

State v. Liechti Case No.: A123373 http://www.publications.ojd.state.or.us/A123373.htm

AREA OF LAW: CRIMINAL LAW

HOLDING: (Opinion by Schuman, J.) Under ORS 138.230, the court may not modify a judgment if doing so would have no substantial effect on the rights of the defendant.

Liechti pleaded guilty to driving under the influence of intoxicants (DUII). The conviction stemmed from Liechti’s use of alcohol. In his appeal, Liechti contends that one of the special conditions of his probation imposed by the trial court, that he turn in his Oregon Medical Marijuana Program (OMMP) card and refrain from the use of marijuana, is unlawful. The Court of Appeals found that ORS 137.540, which governs the conditions of probation, allows courts

- 7 - to require that a defendant obey all laws; municipal, county, state and federal. In order for Liechti to comply with federal law, namely the Controlled Substances Act, he must abstain from marijuana possession and use regardless of his enrollment in OMMP. The Court held that even if Liechti were to prevail on his appeal, his rights would be essentially unaltered because possession and use of marijuana would violate other conditions of his probation. Thus, a victory on appeal would only allow Liechti to keep his OMMP card which would not “substantially effect” his rights. Affirmed. [Summarized by Sheryl Oakes Caddy.]

State v. Rutley Case No.: A120670 http://www.publications.ojd.state.or.us/A120670.htm

AREA OF LAW: CRIMINAL LAW

Holding: (Opinion by, Schuman, J.) When a defendant is charged with a crime that fails to specify a culpable mental state, the state must prove all elements of the crime by proving that the defendant acted intentionally, knowingly, recklessly or with criminal negligence.

Rutley was convicted of knowingly violating ORS 475.999 which prohibits delivering a controlled substance within 1,000 feet of a school zone. On appeal, Rutley contends that the trial court erred when it refused to instruct the jury that the state was required to prove his culpable mental state with respect to the distance element of the statute. The Court of Appeals found that ORS 475.9999 is silent as to culpable mental state and, thus, the state must prove that Rutley acted intentionally, knowingly, recklessly or with criminal negligence with respect to each material element of the crime. The Court held that the trial court failed to inform the jury that the state was required to prove Rutley’s culpable mental state with respect to the distance element of the crime. Reversed and remanded. [Summarized by Marisa Moneyhun.]

State v. Allen Case No.: A117220 http://www.publications.ojd.state.or.us/A117220.htm

HOLDING: (Opinion by Linder, J.) A departure sentence based on supervision status is not warranted when a defendant merely acknowledges his parole status because a factfinder cannot, without more, draw an inference as to "the malevolent quality of the offender and the failure of his parole status to serve as an effective deterrent."

The State sought reconsideration of the Court of Appeals’ decision which vacated and remanded for resentencing two of Allen’s convictions because the departure sentence violated the Sixth Amendment as interpreted under Blakely. The trial court imposed an upward departure sentence on the two convictions, citing Allen’s ‘persistent involvement unrelated to current crime’ and his parole status at the time of this offense. The Court of Appeals restated a previous holding that an upward departure based on ‘persistent involvement’ requires further inferences about the malevolent quality of the offender and the failure of his parole status to serve as an effective deterrent. The Court found that, although Allen effectively admitted his criminal record and parole status, he did not admit further facts that would allow for an inference of malevolent qualities or that parole had failed to be an effective deterrent. Thus, Allen was entitled to have a jury determine whether those inferences were appropriate to draw by a standard of proof beyond a reasonable doubt. Reconsideration allowed, sentences on counts 1 and 2 vacated, remanded for resentencing, and otherwise affirmed. [Summarized by Darin Dooley.]

Cibula v. DMV Case No.: A125703 http://www.publications.ojd.state.or.us/A125703.htm

HOLDING: (Opinion by Haselton, P.J.) Evidence that driver and passenger actions comported with a “beer run” is sufficient to establish that when the officer stopped the vehicle, he did so with a reasonable suspicion of criminal activity.

- 8 - Officer Fields suspected Cibula of being a party to a “beer run” (grab and run theft of alcohol from a store) and stopped his vehicle. This culminated in Cibula’s arrest for DUII. Cibula refused to take a chemical breath test. After an administrative hearing, DMV suspended his driving privileges. The circuit court determined the stop was not based on reasonable suspicion of criminal activity and set aside the suspension. On appeal, DMV argued that the circuit court erred in its determination. The Court of Appeals reviewed the record directly and stated it may reverse the order only if it is not supported by substantial evidence. The Court determined that the actions of Cibula’s passenger comported, in Field’s experience, with those of a person perpetrating a “beer run.” It also found Cibula’s actions in parking on the street with the passenger side door open and then driving away before the passenger shut the door corroborated that perception. The Court concluded the material findings were supported by substantial evidence that Fields had reasonable suspicion to stop Cibula’s vehicle. Reversed and remanded with instructions to reinstate DMV’s order suspending driving privileges. [Summarized by Cristin Casey.]

State v. Galloway Case No.: A121922 http://www.publications.ojd.state.or.us/A121922.htm

HOLDING: (Opinion by Schuman, J.) 1) the Court has discretion to review “errors apparent on the face of the record,” 2) a prosecutor’s remarks during closing argument that a defendant failed to call witnesses available to him does not constitute a comment regarding the defendant’s choice not to testify, and 3) an upward departure sentence is improper without allowing a jury to make appropriate findings.

Galloway was convicted of 27 counts involving a variety of crimes. Galloway assigned error to three of the trial court’s rulings including: allowing into evidence taped interviews of an accomplice who was unable to testify, denying his motion for a mistrial based on the prosecutor’s remarks about his choice not to testify, and sentencing to an upward departure without findings being made by a jury. The Court of Appeals held that the admission of the tapes constituted plain error, however, because this was an “error apparent on the face of the record” and was not preserved at trial, the court had discretion in whether or not to consider it. The Court opted not to exercise its discretion on this claim of error because the evidence was cumulative and unlikely to have an affect on the jury’s verdict. Next, the Court held that the comment made by the prosecutor was not improper because it only involved a remark about Galloway’s failure to call witnesses that were available to him and did not constitute a comment regarding Galloway’s decision not to testify. Lastly, based on Blakely, the trial court’s decision to impose an upward departure without findings being made by a jury was improper. Sentences vacated; remanded for resentencing; otherwise affirmed. [Summarized by Karla Camac.]

State v. Porter Case No.: A120069 http://www.publications.ojd.state.or.us/A120069.htm

AREA OF LAW: EVIDENCE

HOLDING: (Opinion by Schuman, J.) A defendant’s stipulation to the element of driving under the effects of intoxicants in order to qualify for diversion in a DUII charge does not amount to a confession and is admissible without corroboration.

While driving in Multnomah County, Porter hit two parked cars. He was charged with DUII and two counts of criminal mischief. As part of a plea agreement, Porter agreed to stipulate to the elements of DUII, thus qualifying for a diversion program. Porter, however, failed to comply with the diversion agreement and the State reactivated the charges. The trial court found Porter guilty of DUII. On appeal, Porter argued his statements amounted to a confession, which was inadmissible without other corroborating evidence. The Court of Appeals rejected Porter’s argument, finding Porter’s subjective intent in acknowledging he drove under the “effects” of alcohol relevant in determining whether his acknowledgment was a confession. Based on Porter’s own testimony that his intention was not to admit guilt but to qualify for diversion, the court found Porter’s statements did not amount to a confession and were therefore admissible without corroboration. Affirmed. [Summarized by Gregg Silliman.]

State ex rel Juv. Dept. v. Leach Case No.: A123882 http://www.publications.ojd.state.or.us/A123882.htm

- 9 - AREA OF LAW: JUVENILE LAW

HOLDING: (Opinion by Schuman, J.) The right to be present at the disposition proceeding and to allocate under Article I, section 11 of the Oregon Constitution does not apply at the dispositional phase of juvenile proceedings.

The trial court found that a youth sentenced for sexual abuse charge was in violation of probation terms and committed him to the custody of the Oregon Youth Authority (OYA) for placement at a youth correctional facility. On appeal, the youth asked for remand for a new disposition based on his contention that the trial court violated his right to be present at the dispositional proceeding and to allocute under Art. I, Sec. 11, of the Oregon Constitution. This section of the Oregon Constitution provides criminal defendants with the right to be present at the entire trial, including sentencing, and to speak prior to sentencing. The Court of Appeals held that juvenile jurisdictional proceedings are not cases of "criminal prosecution" within the meaning of Article I, section 11 because the purpose of the juvenile system is to rehabilitate rather than to punish. This Court found no distinction between the jurisdictional and disposition phases in light of the rehabilitation purpose of the juvenile system. The right to be present and allocate is not applicable at the dispositional phase of juvenile proceeding. Affirmed. [Summarized by Margaret M. Rossi.]

State v. Ortiz Case No.: A121193 http://www.publications.ojd.state.or.us/A121193.htm

AREA OF LAW: CRIMINAL LAW.

Holding: (Opinion by, Landau, P.J.) To uphold a conviction under ORS 813.010(5), where the prior convictions have occurred in another jurisdiction, the statute in the foreign jurisdiction must be substantially the same as ORS 813.010(5).

Defendant was charged and convicted of driving under the influence of intoxicants (DUII). ORS 813.010(5) provides for a felony conviction if the defendant has at least three prior DUII convictions in the last 10 years, either under ORS 813.010(5) or its statutory counterpart in another jurisdiction. The defendant had three prior convictions in Idaho, one being under Idaho’s “zero tolerance” statute for underage drinkers. The Court of Appeals held that a conviction under Idaho’s “zero tolerance” statute is not a statutory counterpart to ORS 813.015(5). The Oregon statute makes it illegal to drive with a 0.08 alcohol level, while the Idaho statute makes it illegal for a person under the age of 21 to drive with an alcohol level of 0.02. Because these two statutes are not analogous the defendant’s conviction under Idaho’s “zero tolerance” statute was not the statutory counterpart of ORS 813.010. Reversed and remanded. [Summarized by Marisa Moneyhun]

ARTICLE OF THE WEEK How Governor Schwarzenegger, and Those Who Seek Clemency for Stanley "Tookie" Williams Both Get Our Legal and Constitutional Tradition Wrong

On December 13, the execution of Stanley "Tookie" Williams is set to occur in California. Williams is the co- founder of the Los Angeles Crips gang - but while in prison, he's become a renowned children's book author, and a crusader against gang violence.

Williams hasn't admitted guilt, or expressed remorse for his crimes. Still, his rehabilitation, many have argued, merits clemency from Governor Arnold Schwarzenegger. Even the U.S. Circuit Court of Appeals for the Ninth Circuit, which denied Williams's appeal, remarked on his "laudable efforts opposing gang violence from his prison cell," and suggested that his "good works and accomplishments since incarceration may make him a worthy candidate for the exercise of gubernatorial discretion...."

Williams's supporters are right that Williams should be spared execution, for capital punishment is wrong, and his life is worth saving.

- 10 - But the case they are making on his behalf - which focuses on concepts of fairness and justice -- misunderstands what clemency is, and why the lives of the condemned should be spared. One cannot earn or deserve clemency - as Williams's supporters say he has. Rather, as defined by our legal and constitutional tradition, it is an exercise of mercy and grace.

Meanwhile, Governors across the country have recently demonstrated another, and far more pernicious, misconception about clemency - as I will explain. This misconception, if not corrected, may cause Governor Schwarzenegger to wrongly deny clemency in Williams's case.

The Governors' Misconception: Clemency Is Essentially For Those May Be Innocent

In California and across the nation, clemency has virtually disappeared from the world of capital punishment, as the grounds on which it has been granted have dramatically narrowed. Despite appeals from many -- from the Pope and Mother Teresa, to former prosecutors and even judges and jurors in death cases -- governors now tend to reserve their clemency power for "unusual" cases in which there are serious doubts about guilt, or in which someone clearly has been unfairly convicted.

Consider then-governor George w. Bush. Describing his approach to capital clemency, Bush wrote, "In every case I would ask: Is there any doubt about this individual's guilt or innocence? And, have the courts had ample opportunity to review all the legal issues in this case?"

Apparently applying this standard, Bush declined to spare -- seven years ago -- Karla Faye Tucker in Texas. Tucker had participated in a gruesome murder, but had admitted guilt, expressed remorse, and embraced religion. Politicians, educators, religious leaders, and even such stalwart conservatives as Newt Gingrich and Pat Robertson implored Bush to grant her clemency. But Governor Bush rejected their pleas, and explained, "Like many touched by this case, I have sought guidance through prayer. I have concluded judgments about the heart and soul of an individual on death row are best left to a higher authority."

Governor Schwarzenegger - who will decide Stanley "Tookie" Williams's fate -- has embraced a standard only slightly broader. He takes the view that - as he explained earlier this year, when he allowed Donald Beardslee's execution to proceed -- "Clemency is not designed to undo the considered judgment of the people in favor of the death penalty, but to prevent the miscarriage of justice."

This notion of clemency has sadly become the national norm, with governors everywhere refusing to consider mental illness or incompetence, childhood physical or sexual abuse, remorse, rehabilitation, racial discrimination in jury selection, or the competence of the legal defense.

Nor have governors been willing to take into account glaring disparities in sentences between co-defendants, or among defendants convicted of similar crimes.

But it doesn't have to be that way - for this view is simply wrong. It deeply misunderstands clemency, as our nation's history has defined it.

Not Justice, But Mercy: A Look at the Jurisprudence of Clemency

Fundamentally, clemency is about mercy, not justice. Writing in 1833, in the first case about clemency to reach the Supreme Court, John Marshall described it as "an act of grace, proceeding from the power entrusted with the execution of the laws."

Similarly, writing a little more than twenty years later, in Ex Parte Wells, Justice Wayne explained the difference between the meanings of a pardon in "common parlance" and in the law. In common parlance, he noted, a pardon may loosely be deemed as meaning "forgiveness, release, remission." But in the law, Wayne wrote, "it has different meanings, which were as well understood when the constitution was made as any other legal word in the constitution now is," and noted that without clemency, our system "would be most imperfect and deficient in its political morality, and in that attribute of Deity whose judgments are always tempered with mercy."

- 11 - In sum, Marshall and Wayne equated clemency with grace and mercy - not justice or fairness. An alternative view was offered in the early twentieth century by Supreme Court Justice Oliver Wendell Holmes -- who claimed that a pardon represents not an act of mercy and grace, but rather a cold cost-benefit analysis: "the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed."

Still, most courts have decisively rejected Holmes's view. Indeed, even Chief Justice Rehnquist -- no death-penalty liberal! -- described clemency in one decision as the sovereign's "power to extend mercy, whenever he thinks it is deserved."

And in another, Rehnquist made clear that "the heart of executive clemency… is a grant of clemency as a matter of grace, thus allowing the executive to consider a wide range of factors not comprehensible by earlier judicial proceedings and sentencing determinations."

Clemency, Grace, and Arnold Schwarzenegger

In sum, Governor Schwarzenegger's idea of the clemency standard - as meant only to correct miscarriages of justice - is simply wrong; it profoundly misunderstands our legal and constitutional traditions.

Schwarzenegger should not - and cannot - hide behind this mischaracterization of his clemency power. The decision in the Williams case really is a test of the man, and what kind of governor he wishes to be.

It is about whether he will focus on charity or compassion, or worry about paying the steep political price - at a time when his own popularity is at a new low - that granting clemency to Stanley Williams will necessarily entail. The courageous decision is to spare Williams, not condemn him to death. The question is whether Schwarzenegger has that courage - not whether Williams has "earned" or "deserved" clemency.

FROM THE POND 12/01/2005 [Ocdlapond] probable cause question I'm looking for a case that says mere presence near a person (co-def) who is dealing drugs is not sufficient to establish probable cause.

I am aware of Saude but my reading of it is that mere presence is not sufficient to sustain a conviction. I need to get this case kicked at the arrest stage because the semi-confession my client gives after arrest may be enough to get him convicted!

Response: You need nothing more than Saude and its progeny. If an inference of participation cannot be drawn from mere presence, it does not matter what quantum of proof is being used. See, e.g., State v. Wells, 147 Or App 125, 130 (presence does not permit inference of possession).

Response: U.S. v. Eduardo Ramirez, 880 F2 236 (9th Cir. 7/24/89) Defendant's mere presence at drug house, sleeping there, and possession of paraphernalia was insufficient circumstantial evidence of government of possession with intent to distribute.

State v. Sosa-Vasquez, 158 Or App 445 (1999) Mere presence (no fingerprints, no money, no actual physical possession) near lots of drugs without evidence of right to control insufficient evidence of possession.

U.S. v. Barajas-Montiel 185 F3rd 947 (9th Cir. 1999).

- 12 - Insufficient evidence to convict defendant of knowingly possessing identification documents with intent to transfer them unlawfully (18 USC § 1028) where documents were found in a vase on a nightstand in a bedroom shared with defendant’s boyfriend and their daughters and no evidence tied defendant directly to the document or the vase. No evidence indicated that the defendant actually knew the documents existed.

State v. Sosa-Vasquez 158 Or App 445 (1999). The fact that the defendant was found in a garage with several other people where bags of cocaine were subsequently found and seized was insufficient to prove that the defendant knowingly or intentionally possessed a controlled substance. There was no evidence of the defendant’s right to control any of the drugs or paraphernalia. He did not own the premises and there is no evidence that he touched anything on the table. There was only his presence at the scene, which in itself is insufficient.

Juan H. v. Allen, 408 F3d 1262 (9th Cir. No. 04-15562 dec. 06/02/05) Murder conviction reversed on habeas because evidence was insufficient to demonstrate that juvenile defendant, present at the scene of a gang-related shooting, aided and abetted the shooter simply because there was bad blood with the victim, and because the defendant ran to his parent’s home after the shooting.

12/01/2005 [Ocdlapond] Is Handing Drugs Back to Someone a Delivery? His client is accused of holding pot for his brother, then giving the pot back. While this is technically a transfer from one to another, is there any case law supporting the concept that a transfer back is not a delivery?

Response: My argument would be as follows: if my (non-existent) wife handed me her purse while she went to the bathroom, and I gave it back to her when she got out, she is in constructive possession the whole time. She has not lost possession of her purse, anymore than I've lost possession of my car when it's in the parking garage. If she's never out of possession, then possession never "transfers."

However, be aware of the "agency" language in ORS chapter 475. I think it's distinguishable from the example above, but it's not helpful.

How much MJ was there? Because it doesn't sound like -- even assuming a delivery -- that the deliver was for consideration. If the state is charging a DCS-MJ (Class A felony) because there is more than an ounce, the attached challenge might be useful. I haven't updated this motion in years, and I would re-file it as an MIAJ if you lose at trial because I have concerns about whether a disproportionality argument can be preserved by way of a demurrer, but I'd love to see this win.

And it is disproportionality, not cruel and unusual, although they arise from the same constitutional provision. So yes, the title of attachment is misleading.

Response: I'm not sure about the constructive possession theory. If two people are selling drugs together, then both are in constant constructive possession of the drugs, regardless of who has physical possession at any one time. Establishing that one person has possession doesn't establish that another person doesn't also have possession.

Response: I'm not arguing that Ken's client didn't have possession. I agree both did. But when two people both have constructive or legal possession, and they are tossed back and forth like a volleyball, there isn't a transfer of possession, which is how I'm defining delivery.

I agree the analysis would be different if either of those two then gave the drugs to a 3rd person, but those facts aren't in evidence.

Response: fleeting possession?

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