Nov/Dec 2015 • Vol. XXXVI, No. 5

Inside

ocdla.org | 541.686.8716

4 But Who Will Bell the Cat? Ed Kroll

6 Inspiration from a Dead Time in These End Times Greg Scholl

8 In Memoriam: Robin Jones — Sui Generis

11 Peter Gartlan — Ken Morrow Award Recipient Anne Fujita Munsey

18 PDSC to Insist Upon Presence of Counsel at First Appearances Paul Levy

And More

Upcoming CLEs

December 4–5Winter Conference — Daring Defenses That Work

The Oregon Defense Attorney

A journal published by the Oregon Criminal Defense Lawyers Association

Championing justice, promoting individual rights and supporting the legal defense community through education and advocacy.

February 5–6Trial Skills College

Q U O T A B L E“”

The basic duty defense counsel owes to the administration of justice and as an officer of the court is to serve as the accused’s counselor and advocate with courage and devotion and to render effective, quality representation. — ABA Standards for Criminal Justice: Prosecution Function and Defense Function, 4-1.2(b), (3rd edition, 1993)

ocdla.org

Put a Stop to This!Attacks on Defense Counsel in Final ArgumentTony Bornstein — Page 16

http://ocdla.org/index.shtmlhttp://www.ocdla.org/seminars/shop-seminar-2015-winter-conference.shtmlhttp://www.ocdla.org/seminars/shop-seminar-2015-winter-conference.shtmlhttp://www.ocdla.org/seminars/shop-seminar-2016-trialskills.shtmlhttp://ocdla.org/index.shtml

November/December 2015 2 The Oregon Defense Attorney

P U B L I C D E F E N S E S E R V I C E S C O M M I S S I O N M E E T I N G S

2015Charles Ogletree—Black Lives Matter: Race and Justice across AmericaNovember 11, Portland November 12, Eugene

Sunny Climate SeminarNovember 8–12 Grand Hyatt, Kauai, HI

Winter ConferenceDecember 4–5 The Benson Hotel, Portland

2016Z is for ZealousJanuary 23 World Trade Center Portland

Trial Skills CollegeFebruary 5–6 OCDLA Office, Eugene

New DUII Lawyers WorkshopMarch 11 Valley River Inn, Eugene

C L E sCalendars

December 4 , 8:30 – 11:30 a.m., The Benson Hotel, PortlandTentative – January 29, 12:00 – 2:00 p.m., conference call meeting regarding legislation, if necessaryVisit ocdla.org for a complete calendar of meetings.

NEXT MEETINGThursday, December 10, OPDS, 1175 Court Street NE, Salem Check the PDSC Meeting schedule online for updated meeting information, or contact Laura Anson, 503-378-2355, Laura.J.Anson@opds.state.or.us.

B O A R D M E E T I N G S

President: Edward Kroll | District 4, Hillsboro . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ekroll .law@gmail .comVice President: Sara J. Collins | Southern Oregon Public Defender, Medford sara@sopd .netSecretary: Celia Howes | District 5, Portland . . . . . . . . . . . . . . . . . . . . . . . . . . . . chowes@hoevet-boise .comRussell S. Barnett, III | At-large, Portland . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .BarnettLaw@me .comAlison Clark | Federal Public Defenders Office, Portland . . . . . . . . . . . . . . . . . . .texclark@gmail .com Dave Ferry | Office of Public Defense Services, Salem. . . . . . . . . . . . . . . . . . . . . david .o .ferry@opds .state .or .us Kat Griffin | Roseburg . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . kat@tkdlawgroup.comRobert Kaiser | Public Defender Services of Lane Cty, Eugene . . . . . . . . . . . . . . . . . .rkaiser@lanepds .org Bradley Kalbaugh | Multnomah Defenders, Portland . . . . . . . . . . . . . . . . . . . . . .bkalbaugh@multnomahdefenders .org Eve Oldenkamp | District 1, Klamath Falls . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .eoldenkamp@aol .com Greg Scholl | Metropolitan Public Defenders, Hillsboro . . . . . . . . . . . . . . . . . . . .gscholl@mpdlaw .comEugene Thompson | Umpqua Valley Public Defender, Roseburg . . . . . . . . . . . .eugene .thompson@uvpd .org Olcott Thompson | Salem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .o .thompson@comcast .net Terri Wood | District 2, Eugene . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .twood@callatg .com

Visit ocdla.org to view board members and meetings or a map of board districts.

Board Members

Online summary of seminars and events

DUII SeminarMarch 11–12 Valley River Inn, Eugene

Juvenile Law ConferenceApril 15–16Hallmark Resort, Newport

Annual ConferenceJune 16–18Mt. Bachelor Village, Bend

Search and Seizure SeminarSeptember 16–17Agate Beach Inn, Newport

Sunny Climate SeminarNovember 9–13Mauna Lani Bay, Big Island, HI

Winter ConferenceDecember 2–3The Benson Hotel, Portland

OCDLA thanks Tony Bornstein for providing the cover quote for each issue.

The views expressed by authors are not necessarily the views of OCDLA, nor is the printing of advertising meant to imply an endorsement of those services or products.

Education Committee – Monday, November 16, 12:15 p.m. via GoToMeeting

Web Governance Committee – Monday, November 23, 12:15 p.m., via GoToMeeting

Juvenile Law Committee – Tuesday, November 17, 12:00 p.m., via GoToMeeting; meets approximately once per month

Legislative Committee – meets during the legislative session, contact OCDLA for next meeting time and date

For updated and current meeting information visit ocdla.org’s calendar of meetings. Contact OCDLA for GoToMeeting access information.

C O M M I T T E E M E E T I N G S

http://ocdla.org/calendar.shtmlhttp://www.oregon.gov/OPDS/pages/pdscmeetingschedule.aspxmailto:Laura.J.Anson%40opds.state.or.us?subject=mailto:ekroll.law%40gmail.com?subject=mailto:sara%40sopd.net?subject=mailto:chowes%40hoevet-boise.com?subject=mailto:BarnettLaw%40me.com?subject=mailto:texclark%40gmail.com?subject=mailto:david.o.ferry%40opds.state.or.us?subject=mailto:kat%40tkdlawgroup.com?subject=mailto:rkaiser%40lanepds.org?subject=mailto:bkalbaugh%40multnomahdefenders.org%20?subject=mailto:eoldenkamp%40aol.com?subject=mailto:gscholl%40mpdlaw.com?subject=mailto:eugene.thompson%40uvpd.org?subject=mailto:o.thompson%40comcast.net?subject=mailto:twood%40callatg.com?subject=https://www.ocdla.org/contact-board.shtmlhttp://www.ocdla.org/pdfs/board_districts.pdfhttp://ocdla.org/seminars/shop-seminar-index.shtmlhttp://ocdla.org/calendar.shtmlhttp://ocdla.org/calendar.shtml

The Oregon Defense Attorney 3 November/December 2015

Calendars ......................................................................................................2

Board of Directors ......................................................................................2

The View From Here | But Who Will Bell the Cat?… .........................4

Board Perspective | Inspiration from a Dead Time in These End Times .............................................................................6

In Memoriam | Robin Jones — Sui Generis............................................8

2015 Ken Morrow Award | Peter Gartlan: Shaping Oregon Law .......................................................................... 11

Appellate Perspective | Probation Revocation Sanctions .............. 14

Prosecutorial Misconduct | Put a Stop to This! Attacks on Defense Counsel in Final Argument. ............................................ 16

Public Defense | PDSC to Insist Upon Presence of Counsel at First Appearances .................................................... 18

Donors Make the Difference .........................................................28–29

Our Members ........................................................................................... 30

Classified Ads .............................................................................................31

Ken Morrow Award Presentation Gala Event ................. Back Cover

PublisherOregon Criminal Defense Lawyers Association 101 East 14th Avenue, Eugene, OR 97401 t: 541-686-8716 f: 541-686-2319info@ocdla.org www.ocdla.org

Executive Director, EditorJohn R. Potter, jpotter@ocdla.org

StaffTracye May, tmay@ocdla.org Jeff Richards, jrichards@ocdla.orgJennifer Root, jroot@ocdla.orgAlene Sybrant, asybrant@ocdla.org

LobbyistsSubstantive Issues Gail Meyer, glmlobby@nwlink.com Fiscal Issues Justin Martin, jgjmartin@me.com, Nichoel Holmes, nichoel@me.com

Submissions & DeadlinesOCDLA welcomes articles from qualified professionals. Submit articles by email attachment to jpotter@ocdla.org. OCDLA will also consider articles which have appeared elsewhere. OCDLA reserves the right to select and edit material for publication. Articles, announcements, classified and display advertising and other items for publication should be submitted by email to jpotter@ocdla.org by these dates. January/February/March ....................... January 15April/May .................................................... March 15June/July ............................................................May 2

Display AdvertisingDelivered to over 1300 OCDLA members, The Oregon Defense Attorney accepts commercial display advertising. Deadlines are the same as publication deadlines. Call OCDLA at 541-686-8716 for information.Full Page (9.75h x 7.5w) ....................................$6502/3 Page Vertical (9.75h x 4.9375w) ............ $5251/2 Page Horizontal (4.6875h x 7.5w) ......... $4001/3 Page Vertical (9.75h x 2.375w) ............... $2751/6 Page Horizontal (4.5h x 2.375w) .............$150

Classified AdsDeadlines are the same as publication deadlines. Members (up to 100 words, 3x/year) ............FreeNon-members ............................................ 25¢/word

In This IssueTHE OREGON DEFENSE ATTORNEY

©2015 Oregon Criminal Defense Lawyers Association

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November/December 2015 4 The Oregon Defense Attorney

THE VIEW FROM HERE

But Who Will Bell The Cat?

OCDLA Board President Ed Kroll practices law in Hillsboro.

… it appears that

the United States

is the only country

that elects its

prosecutors .

“

”by Ed Kroll

If I were to say, “The machinery of state criminal justice systems is disproportionally controlled by district attorneys,” I doubt I would get much disagreement from the defense community. Unfortunately, the general public probably doesn’t fully understand the power of prosecutors. But, that tide may be changing. Recently, conservative New York Times columnist David Brooks wrote a piece on solving America’s destructive policies of mass incarceration. He took inspiration from John Pfaff of Fordham Law School, whom Brooks found to be “wonderfully objective, non-ideological and data-driven.” In looking at all the factors that contribute to mass incarceration, it wasn’t harsh laws but rather the prosecutors that drove it.

Pfaff suggests that prosecutors have become more aggressive in bringing felony charges. Twenty years ago they brought felony charges against one in three arrestees, but now it’s around two in three. Why? Per Professor Pfaff, the prosecution function is political, and they want to show toughness to raise their profile as they look to get reelected or move to higher office.

Interestingly, it appears that the United States is the only country that elects its prosecutors. Further, says Pfaff, prosecutors are paid by the county and prisons are run by the state, so the financial burden of what prosecutors do (at least in terms of felony incarceration) is not theirs to bear. But it is difficult to prove these theories since “the prosecutorial world is largely a black box.” With a decentralized system of elected prosecutors, changing this behavior is our Everest.

In Oregon, district attorneys and the ODAA are the single greatest barriers to state-level sentencing reform. For definitive proof you need only look at the 2013 bipartisan effort to reform Oregon’s sentencing laws. From that “blue ribbon” commission came a fairly comprehensive set of reforms that was supported by virtually all players in the justice system, except one. The prosecutors.

In the spectrum of elected officials, DAs are simply the most powerful, especially when it involves criminal justice policy. Knowing that, you might reason that there would be quite a scramble to land one of these jobs. Yet there are few contested

elections for DA positions, and voters and the press generally pay little attention to the office. Most DAs choose to step down in the middle of their term, with their hand-picked successor waiting in the wings. The successor puts in for the appointment, and with no other candidates, the Governor’s office must de facto make the appointment.

Without involvement from voters, community organizations, opinion leaders or the media, the immense power that DAs wield goes unchecked. And this power is generally in the hands of white males. When you look around Oregon you see little in the way of ethnic and gender diversity and less in the way of public scrutiny.

What appeared to be a contested election in Multnomah County a few years back fizzled. Well-respected DA Mike Schrunk decided to retire, but instead of stepping down mid-term he chose to let the citizens of Multnomah County have their say in his replacement. Three candidates declared—Sean Riddell, formerly of that office and the DOJ; Rod Underhill, the then-current chief deputy; and Kellie Johnson, then a senior prosecutor then in that office. The first two candidates are white males. Due to many issues that need not be rehashed here, Mr. Riddell dropped out of the race. Ms. Johnson soon followed, leaving Mr. Underhill as the last one standing. Thus, there was no contest, no debate, and no public examination of the district attorney’s roles, policies and practices.

So, what’s the point? The point is that the defense bar is in the best position to challenge the “black box” and to shine a public light on the negative impact of DA policies. It should be our job to make sure the media is asking the right questions: “What do you think is the most effective way to deal with low-level drug offenders? Would the exorbitant cost of prison and jails impact your charging and plea bargaining policies? Are you aware of racial disparities in drug law enforcement? What would you do to minimize these disparities? How would you handle the fatal use of force involving the police? What would you do to reduce the number of juveniles brought into the criminal justice system?” Continued on next page

The Oregon Defense Attorney 5 November/December 2015

Okay, you’re new to criminal and juvenile law. You want to accelerate the learning curve to better serve your clients and to keep yourself in the good graces of the bar. And you’ve been practicing law for five years or less.

Experienced OCDLA members who have volunteered to be mentors would like to help you.

The mentorship/mentee program is not structured or formal — rather it caters to your individual needs. You and your mentor set the schedule, tone and duration of your meetings. Meet in person, by phone or on-line. Get the help you need the way you need it.

To be mentor matched,contact OCDLA:(541) 686-8716 info@ocdla.org

ocdla.org/news-mentor-program.shtml

Your best defense starts here.

Why not take it a step further? Consider running for district attorney or make yourself available for consideration for appointment. Frequently, DAs leave office before their term ends. Sometimes it is unplanned and sometimes it is a strategically planned departure made in the hopes of moving an “heir apparent” into office. In any case, defense lawyer participation can help focus the policy discussion and improve accountability.

Of course, discussing this idea reminds me of the old Aesop’s Fable of belling the cat. All the mice agreed that putting a bell on the cat was a necessity, but none were able to do so.

Is it tough to put yourself in the spotlight and challenge a DA? You bet. But doing so could lead to real change in culture and policy. Maybe you are not ready to take the challenge but can think of someone who is. Talk it up in your county. Identifying and recruiting viable and committed candidates is the first, and maybe toughest, step. There are a number of former prosecutors in our ranks.

Make no mistake – the DAs are well funded and politically connected. But we can be too. Make it a point to introduce yourself to political leaders and the Governor’s office. Talk to OCDLA–PAC chairman David McDonald. Money is a vital ingredient of the political process, and he reports a significant uptick in donations and participation. DA’s or heirs apparent typically draw strong support from law enforcement agencies as well, but in at least some areas, those agencies themselves are losing the public’s trust.

Challenging DAs and fostering change is not impossible. Most recently, former public defender and OCDLA lobbyist John Hummel challenged a sitting DA in Deschutes County and won. DA Hummel has taken a leadership role regarding the recent OSP crime lab irregularities; his previous defense experience is tempering the conversation.

It takes planning, focus, discipline and smart-on-crime messaging to effectively campaign for a DA seat. And it will take more than one new voice and one new perspective to change a culture. But, change can be made and defense lawyers can play a big role. Just think about it.

Attention New Lawyers!

•••Being Better Just Got

Easier Welcome to OCDLA

Mentoring

Upcoming PDSC Meetings• December 10, 1175 Court Street NE, Salem

Upcoming meetings are also posted online.

Upcoming OCDLA Board MeetingsFriday, December 4 8:30 a.m. – 11:30 a.m., The Benson Hotel, Portland

Tentative — Friday, January 2912:00 – 2:00 p.m., tentative conference call regarding legislation

Upcoming meetings are also posted online.

mailto:info%40ocdla.org?subject=http://ocdla.org/news-mentor-program.shtmlhttp://www.oregon.gov/OPDS/pages/pdscmeetingschedule.aspxhttp://ocdla.org/contact-board.shtml

November/December 2015 6 The Oregon Defense Attorney

BOARD PERSPECTIVE

OCDLA Board Member Greg Scholl is an attorney with Metropolitan Public Defenders in Hillsboro.

“

”

Inspiration from a Dead Time in These End Timesby Greg Scholl

You are defending those who deserve it most, and you are defending all of us, and you are defending even yourselves from a haywire, hackneyed system that does more harm than good every day that it continues to lurch along .

Hey. OCDLA. Let’s talk. Let’s get it on. Did you ever suddenly get it? Did you ever notice that something you heard literally a thousand times suddenly became meaningful – almost as if you had taken it for granted, or missed the boat, and for years on end?

That happened to me recently when I heard this song lyric from an old Dead tune:

I’ll tell you where the four winds dwellIn Franklin’s tower there hangs a bellIt can ring from night to dayIt can ring like fire when you lose your wayRoll away, the dewRoll away, the dew

Oh man, this thing hit me hard and I am not ashamed to tell you the tears came fast. A bunch of stuff caught up to me real quick, you know?

Although we had just been kicked hard in the balls by a Lane County jury (sorry to be so crude; there is no other word for it), I was pretty sure I was OK. I’m a tough guy after all, and I have been at this a long time.

But sometimes some little thing sets you off, when in reality you are sad about something else. Maybe every time; I don’t know, and I do not understand my feelings anymore.

As it happened, my amazing co-counsel, Steve Eberlein, and investigator, Meghan Planchon, had already left town. I was 105 miles from my own house and further from my office. And it was suddenly very quiet where I was. And then I remembered my wife and son were thousands of miles away, and even my dogs were boarded at some crazy kennel. I was alone, and my people – they were scattered all over the place. And then I remembered hearing “Franklin’s Tower” the previous night, and before I knew it I was bawling like a baby. What the hell.

I don’t believe I was overwhelmed only by a fast and bad verdict on a tough case. I think, for a moment, I passed into that horrible place where we see some crazy total awfulness that exists in this world, a place where a poor person gets charged with murder and

treated like dirt. Yeah, the facts of the case were bad, but were they really that bad? And, yeah, two wrongs don’t make a right, and how is anybody supposed to deal with this whole crazy situation, and what do I think I am doing here trying to fix this, and why could it not go better, and what did I do wrongly?

And, is there an end to the scary but somehow beautiful heartbreak and fear and loss that seem to be swirling all around me/us/everybody all the time?

You know—standard public defender thoughts made at some random kitchen table in Eugene.

Well—roll away, the dew. This is from the heart, and I am not high on drugs or intoxicated, and in fact I am as sober as a judge. An uptight sober judge, who hates all living things and has lost the only parts of their soul that mattered. Lost the same day they donned the robe, and the wig, and the hood, and the throne, and the noose, and the seal and the gavel, and the power to protect the rich, and the desire to do so. I’m saying it to you—roll away, the dew.

For a short time that morning in Eugene I felt like I lost all my people, and everything was scattered and pointless, and then I got back to Hillsboro to drop off my stupid clothes and all the other crap, and just then my co-workers got an amazing verdict in a capital case, and suddenly I was with my people again. And they are a warlike people, and I love them for that. In part because the war I want to fight is not the same bad war. Is it?

Sometimes I want to open up all the prison doors, release all the monsters and let this society confront exactly what it has created. But more than that, I want to release the monsters in ourselves, to fight in a way that has never been seen before—to save these clients and, by doing so, to save ourselves. I’m ready to pull the pin on another grenade. If you want to make an omelet you have to break some eggs, right? Let’s smash everything. I’m scrambling the jet fighters.

Continued on next page

“War is the remedy our enemies have chosen. I say let us give them all they want.” —Gen. William Tecumseh Sherman

The Oregon Defense Attorney 7 November/December 2015

I’m going to get myself in fighting trimScope out every angle of unfair advantageI’m going to bribe the officials, I’m going to kill all the judgesIt’s going to take you people years to recover from all of the `

damageOur mother has been absent, ever since we founded RomeBut there’s going to be a party, when the wolf comes home — The Mountain Goats

So take arms, my friends—as Malcolm X said, “Sometimes you have to pick the gun up to put the gun down.” If everybody else in this crazy world is going to be a warmonger, why not me too? “To know your enemy, you must become your enemy.” (Sun Tzu)

Good old Sun Tzu. He really had some great ones – let us indulge:

“All warfare is based on deception. Hence, when we are able to attack, we must seem unable; when using our forces, we must appear inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.”

Right? Come on.

“Let your plans be dark and impenetrable as night, and when you move, fall like a thunderbolt.”

Aw, yeah. Fall like a thunderbolt, people.And here is a real doozy: “Move swift as the Wind, and

closely-formed as the Wood. Attack like the Fire, and be still as the Mountain.” Hell yes, OCDLA. Be still as the Mountain.

Defend, defend, defend. Why does everyone want to lock up everybody, especially the poor?

We have to defend them because it is simply the right thing to do, and nobody will say thank you, either, by the way. Or hardly ever. I am thanking you for doing what nobody else has the freaking guts to do. You are defending those who deserve it most, and you are defending all of us, and you are defending even yourselves from a haywire, hackneyed system that does more harm than good every day that it continues to lurch along.

I love the people you are defending and I love you, and I will say it out loud—fear of that love is what goads those disturbed and wrongly motivated individuals down the street, as they rub their hands together over the demise of our clients. As they put the final weaponry in place on the Death Star. Let’s throw a wrench in it! Let’s wreck this place! I’m messing with the plan! Some big old scary people may not like it! I do not care! Hooray!

I care for the person in some damp, dirty prison cell; that is the person I believe in—and those who try to help that person. I want to link arms with you and walk into that blazing firefight and try to put that person back in the home in the valley. Once more into the breach, my friends. This stupid scheme put into place by politicians and phonies is all a big setup anyway. A lie—meant to make people feel better about themselves. A veritable dog-and-pony act, just a puppet show put on by and for the status quo. Screw that.

I don’t understand my feelings anymore—but I know this: I want to share in your affirming flame, and I want it to burn hot and bright and fast and dangerous. You are so beautiful, and you are at your best when things are at their worst.

Back to “Franklin’s Tower.” I’ve heard it so many times, but now I am finally beginning to understand.

In Franklin’s tower the four winds sleepLike four lean hounds the lighthouse keepWildflower seed on the sand and wind May the four winds blow you home again.Roll away, the dewRoll away, the dew

I have said it many times to MPD West, but today I say it to all of you, for the first and only time: Go forth, OCDLA. Go forth into this wide and wicked world. You know who the real bad guys are. Let them see our works and despair.

ASHLAND DOOR PRIZE DONORS

Thank you!

Thanks to the following Ashland area businesses for donating door prizes to the September 18–19 “Much Ado About Trial Strategy” seminar:

• Ashland Hills Hotel & Suites• Caldera Brewery & Restaurant• Liquid Assets Wine Bar• Omar’s Fresh Fish and Steaks

ONLINE JOB SEARCH •

Find a job! Post a job! •

Go to ocdla.org, click Jobs.

https://www.ocdla.org/employment/jobs_newocdla.cfm?http://www.ocdla.org/

November/December 2015 8 The Oregon Defense Attorney

Robin Jones — Sui Generis

IN MEMORIAM [Robin lived] the engaged, committed,

and passionate life of

a champion .

“”

Continued on next page

by Office of Public Defense Services Staff

Robin Jones, an 18-year veteran of the Office of Public Defense Services and its predecessor, the State Public Defender, died suddenly on August 9, 2015.

Prior to becoming an appellate public defender, Robin clerked for Judge George Joseph on the Oregon Court of Appeals and worked briefly for Lindsay, Hart, Neil & Weigler. But it was as an appellate public defender that Robin found her calling and her home.

Senior Deputy Public Defender Meredith Allen recalled:

Sally Avera hired Robin (mid-90’s) in a time of great need. Robin excelled in that extremely challenging environment—low resource, high volume, high pressure. The world was not giving us all the love that it gives us now; this was not the highest prestige job in the state. In memorializing Robin for an event held in her honor on

September 30, 2015, former Chief Defender Peter Gartlan noted:

In the annals of OPDS, Robin was unique−she was sui generis. She had obvious professional qualities that made her a first-rate appellate advocate. She loved to read, think, and talk about the law, and she devoted innumerable hours to improving her writing and editing skills.

More tellingly, Robin was a dogged advocate. To use one of her favorite words and concepts, she strived to be (and was) her client’s “champion”—an unwavering noble knight passionately fighting for each of her clients.

Anyone who speaks of Robin notes that she could be a bit confrontational at times. As Peter noted, “that was but a natural consequence of living the engaged, committed, and passionate life of a champion.”

When Meredith was a new OPDS attorney, Robin was working on a DUII case Meredith had litigated when she worked for a firm in Bend. Meredith was concerned about what Robin would think of her skills as a litigator.

And so I confess to Robin how incredibly anxious this situation makes me and how I’m just terrified that she is going to think that I am a terrible attorney. And Robin

was kind and diplomatic and constructive. She engaged with me about the arguments and that brought me forward as an attorney. She talked and talked and talked about all these different aspects of reasonable suspicion. Ultimately, she cared about that case way more than I did. But that disparity taught me something too, and that is how to find the interest in a DUII reasonable suspicion case, to develop my sense of justice. She cared about justice, selflessly. Her outrage was always about the client and never about herself. Prior to law school, Robin managed a restaurant in Los Angeles

and worked in a jewelry store. While training to be a police officer, she received training on search and seizure law. That training peaked her interest in the law and led her to enroll in law school at the University of Oregon. During law school, Robin studied international law and Russian.

In her career, Robin had 118 published opinions from the Court of Appeals and Supreme Court. Those opinions include: State v. Guggenmos,1 (tips from informants that drugs sales had occurred in house, that the occupants of house harbored “wanted people” there, and that a brown pickup parked outside house might contain drugs were insufficient to support a reasonable suspicion that any of the occupants of the house posed an imminent threat of serious physical injury to the officers, as required to justify a protective sweep of house); State v. Ciancanelli,2 (statute prohibiting “live public show” in which participants engage in “sexual conduct” violated free expression rights under state constitution); and State v. Cocke,3 (warrantless search of other private apartments located in large house to ensure safety of police officers who were processing evidence in common area seized in connection with arrest of tenant of one apartment was not justified under circumstances, at least for purposes of admission of evidence against defendant, who was tenant of one of the other private apartments searched).

Robin was passionate about more than the law. She was passionate about animal rights and feeding those in need. Robin loved animals and, because of that love for animals, chose a vegetarian diet. She was also known to load up her vehicle with

The Oregon Defense Attorney 9 November/December 2015

O N L I N EM E M B E R S O N L YSave $25Until December 15 when you register for the Trial Skills College online.

O C D L A

Criminal Appellate ReviewWeekly update mailed to members, cases organized by subject online.

Library of DefenseInstantly access, from any device, all the cases, creative arguments and resources you need to make the best possible case for your client. Library of Defense.

ListservesCapital Defender — Updates, tips and encouragement for capital defenders. Email info@ocdla.org to join.

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food, when her budget permitted, and deliver that food to the food bank for distribution to those in need. At the office, she maintained a “snack box” in the break room with all proceeds going to the food bank.

In recent years, Robin was able to fulfill her dream of moving to the country and getting a horse. Her horse, Cieve, a seven-year-old registered Friesian mare, and her dogs, Shiloh and Ginger Beer, were her beloved companions.

Returning, again, to the words of Peter Gartlan, “we are better for having known Robin and for having had her on our side.”

Contributions in Robin’s name can be made to the Marion-Polk Food Bank.

Endnotes1 350 Or 243, 253 P3d 1042 (2011).2 339 Or 282, 121 P3d 613 (2005).3 334 Or 1, 45 P3d 109 (2002).

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November/December 2015 10 The Oregon Defense Attorney

Friday Night Dinner Honoring Peter GartlanThe Benson Hotel, Portland • Friday, December 4, 6:00p

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Friday Night Dinner Honoring Peter GartlanThe Benson Hotel, Portland • Friday, December 4, 6:00p

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With: Benson Classic Caesar Salad, Dinner Roll and Dessert

The Oregon Defense Attorney 11 November/December 2015

“His name appears on 220 Oregon Supreme Court opinions, the vast

majority of which he did not brief

or argue, but every one of which he

significantly influenced . ”Peter Gartlan

Ken Morrow Award Dinner & Tribute to Peter Gartlan

Friday, December 4 • 6:00 p.m. Mayfair Ballroom

The Benson Hotel, Portland

KEN MORROW LIFETIME ACHIEVEMENT AWARD

Peter Gartlan: Shaping Oregon Lawby Anne Fujita Munsey

Call OCDLA or visit our website to order tickets to this event.

My first encounter with Peter Gartlan was during my clerkship at the Oregon Court of Appeals. At that time, clerks had the unique experience of sitting in on the judges’ pre- and post- oral argument conferences. Mr. Gartlan had argued a case that day, and all three judges were commenting on what an excellent double jeopardy argument he had made. They voted against him and he lost the case, which left me wondering how a person could garner so much respect from the judges despite a losing argument—and who that person was. Later, when I applied to work at the Office of Public Defense Services, then Chief Judge Deits told me that Pete Gartlan was “the best criminal appellate attorney in the state of Oregon.” At the time, that seemed like high praise. Having worked with him for 15 years, I now know that he is much more.

Peter Gartlan has shaped the law in Oregon since he started at OPDS in April 1988. He has argued hundreds of Court of Appeals cases, 41 Oregon Supreme Court cases, and one United States Supreme Court case. But those numbers do not begin to explain his influence on Oregon criminal law. Peter has a special approach to a case, one which is ideal for an appellate lawyer. To him, cases present legal issues, and legal issues present an opportunity to understand how the law should work. He always preaches getting back to basics. I have been told that early in his career, his evening reading consisted of the likes of Thomas Paine and the Federalist Papers. His work on Supreme Court cases best illustrates his methodology. Give him a case on OEC 404(3) and “prior bad acts” and he does not merely look at the statute and the existing case law for the answer.1 He tries to sort out why the rule exists, where it

comes from, how it works—and if it doesn’t, which is often the reason the Supreme Court gets involved, how to make it work to accomplish its purpose. That process often takes weeks of reading and thinking. Once he has figured out how the law should work, he finds case law to support his position. Then he begins writing, starting with the basics, showing the court the foundations of the legal rule, why his rule of law is correct, and how to get there, all in remarkably clear and deceptively simple prose. And it should be noted that Peter does not simply put words on paper that express his thoughts. That is how it starts. But by the time the brief is filed, each word has been carefully selected for its precise meaning, with due thought to all possible implications. “Crystal clear” and “compellingly persuasive” best describe his briefs. Then comes the oral

argument. Again, a tremendous amount of thought and preparation, culminating in a calm and simple conversation with the court about the ideas in the brief and their consequences for the law as a whole. No raised voice or colorful language (although there may be an occasional unrehearsed joke or pun); just straightforward answers to the court’s questions. As a young lawyer, I used to watch his oral arguments and marvel at the “magic” he spun.

And all that effort was not for naught. The court listened, as reflected in the resulting opinions. Peter did not win every case that he argued, but his ideas and analysis are reflected in those opinions. As an advocate, an attorney is engaged in a dialogue with the court. Sometimes that dialogue stretches over years, even decades. Exploitation law involving consensual searches following an illegal search or seizure by police is a prime example. Starting with State v. Rodriguez,2 Oregon exploitation law took an alarming turn,

2015

Continued on next page

OCDLA Member Anne Fujita Munsey is Senior Deputy Defender with the Office of Public Defense Services.

https://www.ocdla.org/seminars/shop-seminar-2015-ken-morrow.shtml

November/December 2015 12 The Oregon Defense Attorney

which was not righted until Peter litigated State v. Hall.3 The Hall opinion contained a long historical analysis of exploitation law, carefully distinguishing between the concepts of “voluntariness” and “exploitation” when a criminal defendant consents to a search following a police illegality.4 It held that “Article I, section 9, also requires the consideration of the effect of the unlawful police conduct upon the defendant’s decision to consent, even if that conduct did not rise to the level of overcoming the defendant’s free will.”5 Although it seems like a simple concept, recognition and acknowledgment from the court that illegal police conduct affects defendants in subtle ways was a hard-fought battle. The court revisited the exploitation issue in State v. Hemenway,6 where the dialogue continued. Although the court added the Fourth Amendment factors of “the purpose and egregiousness of the illegal police conduct” to the Article I, section 9, attenuation analysis, it did so in the context of the effect upon the defendant, explaining that “police misconduct that is intended to gain a defendant’s consent may well be more likely to substantially affect that defendant’s decision to consent.”7 That dialogue continued through the Unger, Musser, Lorenzo trio of cases that marked Peter’s last personal appearance in the Oregon Supreme Court.8

Peter’s influence on the law does not end with his own litigation. By the late nineties, he was training each attorney who joined the office, a practice that continued when he was promoted to Chief Defender in July 2003. Peter is as gifted a teacher as he is an appellate advocate. He infuses every new attorney with his vision of the law and how it works. He teaches by example and

inquiry, always asking questions, never giving answers. When an attorney presents him with a legal issue, the probing begins: “What is the basis for that rule – constitution, statute, or common law?” “Give me some concrete examples of how the rule would apply in different situations.” And the most deadly—“What about X?” with “X” being the weakest point in your case. He has always held his attorneys to extremely high standards, although not as high as the standards he holds for himself.

In addition, as Chief Defender, Peter personally supervised every Supreme Court case briefed by the Office of Public Defense Services. That included discussing the case with the assigned attorney, suggesting research avenues, helping to formulate a rule of law, editing multiple drafts of the brief, and grilling the person during oral argument moots. His name appears on 220 Oregon Supreme Court opinions, the vast majority of which he did not brief or argue, but every one of which he significantly influenced. He has helped shape Oregon criminal law, and he will continue to do so through the attorneys who developed their own skills under his tutelage over the years.

Endnotes1 See State v. Pitt, 352 Or 566, 293 P3d 1002 (2012). 2 State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993).3 State v. Hall, 339 Or 7, 115 P3d 908 (2005).4 Id. at 20-21.5 Id. at 32 (emphasis added). 6 State v. Hemenway, 353 Or 129, 295 P3d 617, vac’d as moot, 353 Or

498, 302 P3d 413 (2013).7 Id. at 147. 8 State v. Unger, 356 Or 59, 333 P3d 1009 (2014); State v. Lorenzo, 356

Or 134, 335 P3d 821 (2014); State v. Musser, 356 Or 148, 335 P3d 814 (2014).

PETER GARTLAN Continued from page 11

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The Oregon Defense Attorney 13 November/December 2015

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November/December 2015 14 The Oregon Defense Attorney

Probation Revocation Sanctions

APPELLATE PERSPECTIVE

OCDLA Member Dan Bennett is a Senior Deputy Defender with the Office of Public Defense Services, Salem.

by Dan Bennett

One of the most important

questions that can affect

how long your client may

be incarcerated is whether

the trial court may impose

consecutive sanctions .

“

”provided by OAR 213–010–0002 for the violation of each separate term of probationary supervision.

(a) If more than one term of probationary supervision is revoked for a single supervision violation, the sentencing judge shall impose the incarceration sanctions concurrently.

(b) If more than one term of probationary supervision is revoked for separate supervision violations, the sentencing judge may impose the incarceration sanctions concurrently or consecutively.

That rule provides that it is the number of probation violations that determines whether a trial court may impose consecutive sanctions upon revoking probation. If the court finds a single violation, it is limited to imposing concurrent sanctions. But if it finds two or more violations, it may impose sanctions consecutively. (The text of OAR 213-010-0002 appears not to require the court to find more than two violations in order to impose more than two consecutive terms, and no case has ever held that it must. In other words, if the court finds two violations it may impose two, three, or twenty consecutive revocation sanctions.) Thus, even if the state has your client dead to rights on one PV, if you can avoid admitting or being found in violation for additional reasons, it can provide your client a huge benefit.

The rule requiring multiple violations to impose consecutive sanctions applies regardless of the nature of the underlying crimes (with one major new exception, discussed below). The state has argued, for example, that a trial court should be able to impose consecutive sanctions when the original crimes involved separate criminal episodes. The Court of Appeals rejected that argument in State v. Lewis, 257 Or App 641, 645, 307 P3d 560 (2013).

The state may also argue that the limitations on consecutive sanctions may be trumped by a plea agreement. It made that argument in Lewis, but the Court of Appeals found that the defendant had not stipulated to consecutive sanctions when the plea

Continued on next page

Stop me if you’ve heard this one: A defendant is charged with a number of felony counts and is offered a deal that results in probation, but the DA warns that this is the defendant’s Very. Last. Chance. If the defendant screws up ever so slightly, the DA will ask the judge to impose the harshest possible sanctions on him, up to and including reopening Alcatraz as a functional prison.

Maybe in some cases this story has a happy ending. Perhaps some probationers complete their sentences with nary a problem. We don’t see those cases on appeal. The ones we get involve someone getting revoked months, weeks, or sometimes days after being placed on probation. The DA will remind the judge of how the defendant looked her in the eyes and swore that he would complete treatment/meet with his PO/stop stalking the checkout clerk at Safeway. And yet here he is. And then the DA will ask the judge to drop the hammer. This is where you need to know just how large the hammer is.

I. Limitations on the trial court’s authority to impose consecutive sanctions after revoking probation.

One of the most important questions that can affect how long your client may be incarcerated is whether the trial court may impose consecutive sanctions. In the world of felony probation revocation sanctions, the answer to that question involves the interplay of statutes, administrative rules, and constitutional provisions. This article will describe general limitations on the trial court’s authority to impose consecutive sanctions in felony cases, how the Oregon Supreme Court’s recent decision in State v. Lane impacts that authority, and some arguments to make post-Lane.

ORS 137.545(5)(b) provides that the Sentencing Guidelines govern what sanctions a court can impose upon revoking felony probation. It says, “For defendants sentenced for felonies committed on or after November 1, 1989, the court that imposed the probationary sentence may revoke probation supervision and impose a sanction as provided by rules of the Oregon Criminal Justice Commission.” OAR 213-012-0040(2), in turn, provides:

When an offender is serving multiple terms of probationary supervision, the sentencing judge may impose revocation sanctions for supervision violations as

The Oregon Defense Attorney 15 November/December 2015

agreement provided that “Counts 1, 2, and 4 are all separate acts that move him across the grid and warrant consecutive sentences,” and that “[a]ny violation of his probation, especially one that involves the use or possession of alcohol or controlled substances will result in the State seeking revocation and imposition of consecutive prison sentences.”1 The court held that that agreement merely stated that the state would seek to impose consecutive sanctions, not that the defendant had agreed to them. Thus, OAR 213-010-0002 controlled.

The rule requires concurrent terms whenever “more than one term of probationary supervision” is revoked for a single violation. By its terms, the rule should apply even when the probationary terms come from different convictions, and even different counties. The appellate courts have not yet wrestled with that question, but defense attorneys should be advancing that argument.

II. Limits on the limits: State v. LaneUnfortunately, the Oregon Supreme Court recently narrowed

the protection of OAR 213-010-0002 in State v. Lane, 357 Or 619, 355 P3d 914 (2015). Fortunately, the effect of Lane should be quite narrow, and there may be a silver lining to that decision. In Lane, the court considered whether a trial court could impose consecutive probation revocation sanctions when it found only one violation of probation, but the underlying crimes involve separate victims. Why? Because the voters, in their wisdom, added Article I, section 44 to the Oregon Constitution. Section (1)(b) of that provision

says, “No law shall limit a court’s authority to sentence a criminal defendant consecutively for crimes against different victims.” The Court of Appeals had previously held that Article I, section 44, did not apply to probation revocation sanctions, because they were not sentences. The Supreme Court disagreed, holding that Article I, section 44, trumps OAR 213-010-0002 and allows the imposition of consecutive sanctions, even when a defendant commits a single probation violation, when the underlying crimes involved multiple victims.

However, Lane comes with a few upsides. First, it applies only to multiple-victim cases. In all other situations, OAR 213-010-0002 still applies and limits the trial court. Also, Lane does not mandate the imposition of consecutive incarceration sanctions, it only provides the trial court authority to impose them.

In addition, Lane revives a previously rejected defense argument: that a trial court must make the findings required by ORS 137.123 before it may impose consecutive probation revocation sanctions. That statute bars a trial court from imposing consecutive sentences unless it makes certain findings, including generally barring them for crimes committed during a continuous and uninterrupted course of conduct. The Court of Appeals rejected the defense argument that trial courts were required to make the 137.123 findings before imposing consecutive sanctions in State v. Newell, 238 Or App 385, 242 P3d 709, 710 (2010). It held that the

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Continued on page 24.

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November/December 2015 16 The Oregon Defense Attorney

Put a Stop to This!

PROSECUTORIAL MISCONDUCT

OCDLA Member Tony Bornstein is a Federal Public Defender in Portland. He serves on the Publications Committee.

by Tony Bornstein

Counsel should go further, too,

and seek a curative instruction

in which the trial judge,

then and there, tells the jury

that the prosecutor has just

made a wholly incorrect and

improper argument .

“

”

Continued on next page

The scene: A recent Oregon trial; the state’s rebuttal summation. [Speaking to the jury] I will try to be as quick as possible. I was once told that the job of the prosecutor who represents the State is to present the truth of the matter, the truth of what happened here whether it hurts the State or whether it hurts the Defense. Our job is to present the truth…

[Referring to the defendant]1: Mr. Smith’s job, as he did on the stand today, is to try to do everything in his power to make you believe him and ignore everything else that you’ve heard. He lied multiple times.…

[Referring to defense counsel]: Mr. Jones’ job is to poke holes, distract you from everything that you have in front of you, from all the truth that is here.… His job is to hire experts who will point at studies that say [discussing facts helpful to the defense]. So he hires experts to manipulate data, confuse you.

Improprieties abound in this summation. First, the prosecutor vouched for the state’s entire case (twice) and offered her own personal assessment of the evidence of guilt. She also impermissibly attacked the defendant. Whether or not courts, in a given case, sanction a prosecutor’s labeling the defendant a liar, it is not the accused’s “job” to lie. That is (1) wholly untrue, (2) a rank expression of the prosecutor’s personal opinion about the defendant-witness’ credibility, and (3) an impermissible attack on the defendant’s character.

Equally detrimental to a fair trial, the prosecutor attacked defense counsel. That is unquestionably misconduct. Counsel for the defense is a constitutionally venerated position in the criminal justice system. Powell v. Alabama,2 Gideon v. Wainright,3 and other seminal authorities stand for that proposition. The job of defense counsel is not to distract juries from the real issues. It is not to manipulate evidence and it is not to secure unwarranted and inaccurate verdicts. Accordingly, when the state’s argument involves such attacks, defense attorneys should be on their feet, promptly

objecting—and strongly. Counsel should go further, too, and seek a curative instruction in which the trial judge, then and there, tells the jury that the prosecutor has just made a wholly incorrect and improper argument. Where appropriate, counsel should move for a mistrial. There is simply no way the accused can receive a fair and impartial trial—with a fair verdict—when his lawyer has been impugned as a lying, deceptive manipulator of evidence.

The Oregon Court of Appeals reaffirmed this point over 25 years ago. In State v. Lundbom,4 the defendant was on trial for driving under the influence of intoxicants. Defense counsel called an expert to challenge the intoxilyzer results. In summation, the prosecutor argued that the defense’s paid expert “always testified that this machine is inaccurate. That is his job. That is what he is hired to do. With all respect, I’m someone who tells it like it is. He’s a pimp.” Defense counsel objected, but the judge overruled the objection.

The prosecutor then stated that lawyers are called “hired guns all the time and he could use the same language for myself.… So if we’re pimps, so be it.…” Defense counsel again objected, countering, “ I don’t…in any way accept being included in the category of a pimp. That is a personal attack even though he joins himself in that fold.” The court simply told the prosecutor to “Tone it down, please.”

The Oregon Court of Appeals reversed. It found that the trial court committed reversible error in denying counsel’s motion for a new trial after the judge had failed to sustain his objections to the prosecutor’s argument. The court stated:

In this case, the prosecutor’s remarks were not only inappropriate in and of themselves, but highly likely to influence the jury. The essence of his argument was that the jury should find defendant guilty, because his counsel was a “pimp” who knowingly hired a liar. Nothing in the record supports the prosecutor’s characterizing defendant’s counsel, or the expert witness, as “pimps.” Indeed, those

Attacks on Defense Counsel in Final Argument

The Oregon Defense Attorney 17 November/December 2015

statements could only have been calculated to elicit an emotional response from the jury. To attempt to establish a defendant’s guilt by making unwarranted personal attacks on his attorney and the witness is not only unfair, but it impugns the integrity of the system as a whole. Such comments dangerously overshadow what a defendant’s case is really about, and we presume that they prejudice a defendant.

The Ninth Circuit likewise condemns such attacks on defense counsel. In Bruno v. Rushen,5 the court emphasized the constitutional error and harm in arguments of this type. It explained:

[It is not] accurate to state that defense counsel, in general, act in underhanded and unethical ways, and absent specific evidence in the record, no particular defense counsel can be maligned. Even though such prosecutorial expressions of belief are only intended ultimately to impute guilt to the accused, not only are they invalid for that purpose, they also severely damage an accused’s opportunity to present his case before the jury. It therefore is an impermissible strike at the very fundamental due process protections that the Fourteenth Amendment has made applicable to ensure an inherent fairness in our adversarial system of criminal justice. Id. Furthermore, such tactics unquestionably tarnish the badge of evenhandedness and fairness that normally marks our system of justice and we readily presume because the principle is so fundamental that all attorneys are cognizant of it. Any abridgment of its sanctity therefore seems particularly unacceptable.

State appellate courts have likewise disapproved this all-too-common attack. For example, the Nebraska Supreme Court reversed a murder conviction based on such an argument. Delivering his rebuttal summation, the prosecutor began this way:

You know, in 20 years as a prosecutor the hardest thing I think I’ve had to do is sit there with a straight face when a criminal defense lawyer had to look up the definition of “lie” in a dictionary. Why, I thought that was printed on the back of their business cards.

Reversing the convictions, the court stated:

‘In essence, the prosecutor insinuated that defense lawyers are all liars. This is gravely improper.’ As described–U.S. v. Linn, 31 F.3d 987, 993 (10th Cir.1994):

[C]omments by prosecutors to the effect that a defense attorney’s job is to mislead the jury in order to garner an acquittal for his client is not only distasteful but borders on being unethical.... Such comments only serve to denigrate the legal profession in the eyes of the jury and, consequently, the public at large.6

The court also discussed a prior decision from another appellate court in Nebraska. In State v. Wade,7 the state’s appellate court reversed a conviction “because the prosecutor suggested to the jury during closing argument that defense counsel was able to obtain acquittals for guilty defendants. The court explained that such a statement ‘strikes against the underpinnings of our system of criminal jurisprudence’ wherein prosecuting attorneys have a duty to conduct trials in a fair and impartial manner.”8

In conclusion, if you encounter arguments of this type, object and insist on a real ruling from the court. “Counsel, this is argument” is not a ruling. Keep the cases discussed here in your trial notebook. Give the judge copies. Remind the judge what the Oregon Supreme Court announced over fifty years ago:

This court will not sustain verdicts of conviction gained by the tactics used in this case. A person charged with crime must be tried on the basis of proper evidence presented by the rules known to every law school graduate.… The prosecutor is entitled to hit as hard as he can above, but not below, the belt.…

But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.9

Endnotes1 The names have been changed.2 287 U.S. 45 (1932).3 372 U.S. 335 (1963).4 96 Or App 458, 773 P.2d 11 (1989).5 721 F.2d 1193, 1194-1195 (9th Cir. 1983).6 State v. Barfield, 272 Neb. 502, 723 N.W.2d 303 (2006), disapproved

on other grounds, State v. McCulloch, 274 Neb. 636, 742 N.W.2d 727 (2007). The court cited the following state ethics rule: Canon 7, EC 7-37, of the Code of Professional Responsibility (lawyer should not make unfair or derogatory personal reference to opposing counsel).

7 7 Neb. App. 169, 581 N.W.2d 906 (1998).8 In a Texas case, the Court of Criminal Appeals overturned a conviction

based on an argument almost identical to the one quoted here. The prosecutor in that case repeatedly argued that “it’s not important to seek truth and justice under [the defense attorney’s] oath. It is under mine.” Wilson v. State, 938 S.W.2d 57 (Tex Crim. App. 1996) (abrogated on other grounds).

9 State v. Rollo, 221 Or. 428, 438 (1960) (quoting Berger v. United States, 295 U.S. 78 (1934).

November/December 2015 18 The Oregon Defense Attorney

PDSC to Insist Upon Presence of Counsel at First Appearancesby Paul Levy

PUBLIC DEFENSE …a fair determination of eligibility for pretrial

release is not likely to

be reached without

lawyers present to

advocate for detainees .

“

”

Continued on next page

OCDLA Member Paul Levy is General Counsel with the Office of Public Defense Services, Salem. He serves on OCDLA’s education, juvenile and legislative committees.

Ask a judge or lawyer in one of the many Oregon counties where public defense lawyers are routinely present at first appearances1 in criminal cases what they think about that arrangement, and most will likely say they wouldn’t want it any other way. Ask a judge or lawyer in one of the counties where lawyers are not routinely present what they think, and you’ll likely hear it seems just fine.

This disconnect was a theme running through the discussion at the July Public Defense Services Commission (PDSC) meeting following the introduction of a short paper I wrote reviewing recent literature about the presence of counsel at first appearances in criminal cases.2 As detailed in the paper, the statutory and constitutional rights to counsel at first appearance in criminal cases are longstanding, as are the performance standards from both the American Bar Association and the Oregon State Bar that call for attorney advocacy for clients at first appearances. There is, however, more recent research, cited in the paper, that correlates better case outcomes with favorable release decisions at first appearances, and that demonstrates the importance of lawyer advocacy there.

Despite such powerful authority and a longstanding PDSC contract provision requiring the presence of counsel at first appearances, there remain counties in Oregon where defendants appear in court with a judge and prosecutor but no public defense attorney. Judge Elizabeth Welch, a member of the PDSC who has visited a variety of counties as part of her “Plan B” service, observed that judges in some communities can be unaware of what their colleagues are doing in other counties, and simply asking defense attorneys to change local practices may be asking too much without also educating judges about the importance of lawyers at first appearances. Commissioner John Potter urged me to write an article for this publication to help get the word out to a wider audience.

It just so happened that Jennifer Nash, the administrator of the public defense consortium in Benton County, was also at the July meeting. Until just a few weeks before the meeting, lawyers were not present in her county at first appearances for out-of-custody defendants. There had been efforts over the years to change that, but the judges and court staff were resistant, she said. The attitude was, “We’re doing it fine the way we have been and we don’t need to do it any differently.”

But things weren’t fine. People were pleading guilty in criminal cases without understanding the consequences. Judges were imposing unreasonable release conditions. Paperwork was getting screwed up. People were waiving counsel and trying to handle cases on their own. Where lawyers were appointed there was delay in establishing the attorney-client relationship.

So lawyers from her consortium decided to start showing up at first appearances. This was no small matter for a small consortium, and it required a significant time commitment. But very quickly, Jennifer said, judges were saying, “This is great, we really like having a lawyer here.” Rather than causing delay, as the court had feared, arraignments went more quickly, and the court began talking about working with attorneys to make it even more efficient. The District Attorney liked it too, since they were having a problem with pro se defendants. The representation of a client improves as well, she said, when the lawyer is present at the very beginning of the case.

Jack Morris was also at the July meeting, and he noted that when he took over the defense contract in the Gorge, lawyers weren’t present at first appearances. In fact, there wasn’t even a set time for those hearings, but happened whenever it was convenient for the court. Jack had come from the Metropolitan Public Defender in Portland, and he knew the benefits of representing a client from the first court appearance. So he worked to be sure his firm and the consortium that he heads was at every first appearance in the 7th Judicial District.

Nationally, pretrial detention systems that rely largely upon bail schedules have come under increased scrutiny. New York City recently announced it would eliminate bail requirements for many low-risk defendants.3 And the U.S. Department of Justice has intervened in a lawsuit challenging such systems, arguing it not only violates the Fourteenth Amendment’s Equal Protection Clause, but also constitutes bad public policy.4

The Oregon Defense Attorney 19 November/December 2015

2012 Edition — INCLUDES November 2015 Update

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But even with systems, like in Oregon, that by statute5 rely primarily upon individualized judicial assessments of risk of flight and danger to the community instead of upon bail schedules, a fair determination of eligibility for pretrial release is not likely to be reached without lawyers present to advocate for detainees. An unrepresented defendant, uneducated in the considerations relevant to a release decision and likely unaware of valid objections to consideration of impermissible factors, is unlikely to state a good case for release and is at considerable risk of saying something damaging. Not surprisingly, research shows that the presence of counsel makes a difference in whether a person is granted pretrial release.6

When commissioners asked me at the July meeting which counties still did not have public defense attorneys routinely present at first appearances, I told them that I was unsure since our last survey was several years ago. But we intend to find out. I said that when we learned that counsel was not routinely present, we would want to know what plans were underway to change that so that the day will soon arrive when judges and lawyers will regard representation at first appearance as a matter of routine in all Oregon counties. The commission made clear they want to see that day very soon.

Endnotes1 Although commonly called an arraignment, because procedure in

criminal cases varies widely from county to county, I use the term “first appearance” in order to make clear I am referring to the first time a person accused of committing a crime appears in court in connection with the case.

2 My paper, “The Presence of Counsel at First Appearances in Criminal Cases: A Brief Review of Applicable Standards and Other Literature,” is in the agenda materials for the July 30, 2015, PDSC meeting, available at http://www.oregon.gov/OPDS/docs/Agendas/07-30-15.pdf.

3 “New York City to Relax Bail Requirements for Low-Level Offenders,” The New York Times (July 8, 2015), available at http://www.nytimes.com/2015/07/09/nyregion/new-york-city-introduces-bail-reform-plan-for-low-level-offenders.html.

4 “Statement of Interest of the United States, Varden v. City of Clanton,” (February 13, 2015), available at http://www.justice.gov/opa/pr/department-justice-files-statement-interest-clanton-alabama-bond-case.

5 ORS 135.230, et. seq.6 Don’t I Need A Lawyer? Pretrial Justice and the Right to Counsel at First

Judicial Bail Hearings, The Constitution Project (March 2015), available at http://www.constitutionproject.org/wp-content/uploads/2015/03/RTC_DINAL_Cover.png.

https://www.ocdla.org/cart/detail_newocdla.cfm?i=1http://www.oregon.gov/OPDS/docs/Agendas/07-30-15.pdfhttp://www.nytimes.com/2015/07/09/nyregion/new-york-city-introduces-bail-reform-plan-for-low-level-offenders.htmlhttp://www.nytimes.com/2015/07/09/nyregion/new-york-city-introduces-bail-reform-plan-for-low-level-offenders.htmlhttp://www.nytimes.com/2015/07/09/nyregion/new-york-city-introduces-bail-reform-plan-for-low-level-offenders.htmlhttp://www.justice.gov/opa/pr/department-justice-files-statement-interest-clanton-alabama-bond-casehttp://www.justice.gov/opa/pr/department-justice-files-statement-interest-clanton-alabama-bond-casehttp://www.constitutionproject.org/wp-content/uploads/2015/03/RTC_DINAL_Cover.pnghttp://www.constitutionproject.org/wp-content/uploads/2015/03/RTC_DINAL_Cover.png

November/December 2015 20 The Oregon Defense Attorney

Daring Defenses ThaT WorkOCDLA 2015 WINTER CONFERENCE

Benson Hotel, Portland

Friday, december 4Moderated by Paula Lawrence, McMinnville

8a Registration/ContinentalBreakfast(included)

8:45a nShiningaLightonaHiddenProblem:NewDevelopmentsinElderAbuseLawJohn Lamborn, Attorney, Burns (elder abuse credit)

9:45a CopycatCounts:InnovativeChallengesMichael Levine, Attorney, Portland

10:45a Break/DoorPrizes&Refreshments

11a nAppellateUpdateSwimming against the current— Peter Gartlan’s influential cases, then and now.Josh Crowther, Office of Public Defense Services, Salem

12p Lunch(included)

1p LegalComplexitiesWhenRepresentingIndividualswithIntellectual&DevelopmentalDisabilities(acc. justice credit)Jesse Watson, MA, CCSOT, QMHP, Salem

2p nGettingEvidenceWhereYouLeastExpectItintheAgeofElectronicSearchesHow to get an FOIA response in one day, why adverse witnesses are your friends, and how to dig deeper with civil discovery rules.Edie Rogoway, Attorney, Portland

3p Break/DoorPrizes&Refreshments

3:15p nSimpleSolutionstoBradyViolationsEnlisting judges to help uncover Brady evidence through colloquies, standing orders and ethical rules.Jason Kreag, University of Arizona, James E. Rogers College of Law, Tucson, AZ

4:15p Adjournfortheday

6p HolidayDinnerandKenMorrowAwardPresentationtoPeterGartlan(see registration form for tickets).

Saturday, december 5Moderated by Graham Fisher, Portland

8a HotBreakfast(included)

8:30a n MirandaandCoerciveInterrogation:CanIGoHomeNow?Why your juvenile client didn’t really waive her Miranda rights and your client with a mental or developmental disability didn’t really admit to a crime.Marc Brown, Chief Deputy Defender, Office of Public Defense Services, Salem

9:30a SeveranceMotions:Don’tHaveToBeBoring,Don’tHaveToLoseRyan Scott, Attorney, Portland

10:15a Break/DoorPrizes&Refreshments

10:30a nLitigatingAroundtheConfrontationClauseIf cross-examination of a child is not a viable option, what is?Richard D. Friedman, University of Michigan Law School, Ann Arbor, MI

11:30a nHypotheticalsThatWork:EffectiveUseofAdvisoryOpinions(orHowIlearnedtolovethebar)(ethics credit)Helen Hierschbiel, General Counsel, Oregon State Bar, Tigard

12:30p Adjourn

Ken Morrow Lifetime Achievement Award Recipient Peter Gartlan Plus — A special President’s Award to Representative Jennifer WilliamsonnFriday,December4

CLEprogramcoordinatedbyLizWakefield,OCDLAEducationCommitteeChair.(Program subject to change)

The Oregon Defense Attorney 21 November/December 2015

RegistRant infoRmation

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December 4–5, 2015 Benson Hotel Portland, Oregon

u Who can attend?Thisprogramisopentodefenselawyersandthoseprofessionalsandlawstudentsdirectlyinvolvedinthedefensefunction.

u What’s included in the fee?•Twodaysofseminaradmission•Writtenmaterialdownload

inadvance•CLEcredit•ContinentalbreakfastonFriday,

hotbreakfastonSaturday•LunchonFriday•Refreshmentsduringbreaks

u Financial assistance?ContactOCDLAbyNov.24aboutscholarships,paymentplansorcreativepaymentarrangements.

u CancellationsSeminarcancellationsmadebyNovember 25willreceivearefundlessa$25cancellationfee.CancellationsmadeafterNovember25—oncematerialdownloadlinkhasbeenemailed—willreceivearefundlessa$100cancellation/writtenmaterialfee.New No-show Policy:Writtenmaterialsaresentinadvancetoallparticipants.AudiomaterialsintheformofMP3recordingswillbesenttoOCDLAmembersonly;nonmemberswhodonotattendareineligibletoreceivetheaudiorecordingsorarefund.

u CLE Registrationocdla.orgPhone:541-686-8716Fax:541-686-2319Mail:101East14thAvenue,Eugene,OR97401

u CLE CreditOregon–pendingapprovalfor7.5general,1elderabusereporting,1ethicsand1accesstojusticecredit;Washington–pendingapprovalfor8.5credits.OCDLAcertifiesthattheWinterConferencehasbeenapprovedforMCLEcreditbytheStateBarofCaliforniaintheamountof8.5hours,ofwhich1willapplytolegalethics.OCDLAisalsoanapprovedDepartmentofPublicSafetyStandardsandTrainingCLEprovider.ContactOCDLAforinformationregardingotherstates.

u Lodging at the Benson503-228-2000/ 1-888-523-6766 reservations@bensonhotel.comReservationsmustbemadebyNovember 12.AfterNov12roomsmaynotbeavailableatourspecialrateof$139/nightforsingleordoubleoccupancy($225foraBensonJuniorSuite,$235foranExecutiveJuniorSuite).

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Presented by the OREGON CRIMINAL DEFENSE LAWYERS ASSOCIATION

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November/December 2015 22 The Oregon Defense Attorney

An OCDLA quick guide —• snapshots a client’s prison exposure based on their prior convictions and current crimes

• helps calculate how much time your client will receive if convicted

• includes mergers & concurrent/ consecutive sentences

• chart for offenses committed before M57 went into effect January 1, 2012

• handy EXCEL spreadsheet to calculate repeat property sentences on your computer or mobile device

2015 Repeat Property Offender Guide

$20 each, members8 1/2 x 11 inch • double-sided • laminated • color

Order online.

Edited by Brook Reinhard and Brian Walker

Download a CLE

2015•Much Ado About Trial Strategy•House Bill 2320: Juvenile Sex Offender

Registration Changes•Annual Conference: Skills and Thrills•Sentencing for Sophomores• Juvenile Law Seminar: Tips, Tricks and Tools to

Successfully Manage the Complex Practice•Defenses: Playing Offense

2014•Winter Conference: Game of Zones•Sunny Climate Seminar•Juvenile Law Training Academy•Death Penalty Seminar•Search and Seizure Seminar•Education Advocacy for Juvenile Practitioners•Annual Conference: New Laws, New Ideas, New

Strategies•Preserving the Promise of Juvenile Court:

Recognizing and Mitigating Collateral Consequences

•Defending the Modern DUII•Z is for Zealous: Effective Criminal Defense

Advocacy

2013•Winter Conference: The Evidence Code•Death Penalty Defense: The Essential Tools • Juvenile Law Training Academy •Sex Cases Seminar•Annual Conference: Celebrating Gideon• Investigation Seminar: Sources of Information:

Ethically Getting What You Want• Juvenile Law Seminar: Protecting Clients, Finding

Justice, Preventing Atrocities•Hard Time Made Easy: How to Win at Sentencing•Current Issues in Post-Conviction Relief

Procedure & Practice

Specialty Credits• Order access to justice, child abuse reporting

and ethics credits online.Click above to view the seminar program and to order & download your MP3 audio/written material today . 2012 seminars also available .

Written material & MP3 audio downloads available for these seminars:

Join the discussion —• DUII diversion and expungement• forensic opthamologist• extrapolation evidence

The OCDLA members-only DUII Listserve helps practitioners discuss issues such as diversion, motions to suppress, case theories and divergent county policies and practices. To subscribe, email info@ocdla.org with “Subscribe DUII” in the subject line

To sign up, email info@ocdla.org with“Subscribe DUII Listserve” in the subject line.

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The Oregon Defense Attorney 23 November/December 2015

Trial Skills CollegeFebruary 6–7, 2015 • OCDLA Office, Eugene

9th Annual OCDLA

OCDLA, 101 East 14th Avenue, Eugene, OR 97401, (541) 686-8716, info@ocdla.org, ocdla.org

Comprehensive and Fun LecturesCase overview • Theory and theme development • What an actor knows • Voir dire Opening statement • Cross-examination • Closing argument • Demonstrative evidence Integrating theme & theory into each aspect of trial

Guest Lecturer — Keith Belzer, La Crosse, WisconsinIn addition to being a nationally recognized lecturer on trial techniques, Keith also enjoyed a productive career as an actor, director and playwright. He weaves together the best of both worlds in his law practice and his teaching.

Small Group Workshops & Video ReviewAll students use the same hypothetical Assault case (emailed in advance). Students work in small groups on: voir dire, cross-examination (including a special cross-examination workshop to help students assemble their cross-examinations) and closing argument. Exercises are videotaped and reviewed by an instructor during private meetings with each participant. The goal is helpful and supportive feedback that will make any lawyer better.

DemonstrationsMuch can be learned from a lecture on voir dire or closing argument, but there is immea-surable value in observing someone actually doing it. Our faculty will demonstrate each of these major trial skills: voir dire, opening statement, cross-examination and closing argument.

A CHANCE TO TAKE RISKS!The trial college is structured so students learn and practice what they learn. The atmo-sphere is intended to be instructive and positive. Students learn from each other as well as from the instructors. This is the time and place to try something “o