I know a lot of lawyers who don’t like what they do. I’m not one of those. I find the law endlessly fascinating, and I’m always noticing new issues and problems. Some of those turn into blog postings here or at libraryofdefense.ocdla.org, or tweets. Some of them are just waiting for the right case.
You can see posts for selected categories by clicking on an item in this list, or scroll down to see my most recent posts.
- Appeals
- Collateral Consequences
- Criminal Law
- DUII
- Forensic Science
- Miranda
- Non-English Speakers
- Search & Seizure
- Sex offenses
- Trials
Review of Typography for Lawyers by Matthew Butterick
My job title is ‘lawyer,’ but the majority of my work is writing. When lawyers show up in TV or movies, the focus is usually on trials. Trials make for good drama, and, because they’re theatrical and visual, they make for a good show. Part of being a good trial attorney certainly involves good public speaking and improvisation. But even trials involve a lot of written motions, and appeals and post-conviction actions are mostly conducted in writing. An appeal often has a short oral argument before a panel of judges, but the really...
read moreOregon’s bail requirements violate the constitutional right to bail
Historically, bail referred to a deposit of money or property with the court to ensure attendance at a future court date. That’s it. It included a promise to appear in court, but no other promises, and did not permit seizure of bail other than for failure to appear, so bail could not be applied to fines, costs, violation of a release agreement or unrelated judgments. Modern bail includes various other requirements, and those requirements may violate Oregon constitutional guarantees. Article I, section 14, of the Oregon Constitution,...
read moreShould rapists have parental rights?
I just saw this article from the Courthouse News Service about the ugly fallout of the rape, and resulting pregnancy, of a 14-year-old girl. The 20-year-old rapist has been convicted and placed on probation for 16 years. He has also been ordered to admit paternity and to initiate proceedings in family court, apparently to set child support and maybe even visitation. The victim brought suit, asking the Massachusetts courts not to force her to participate in legal proceedings involving her rapist. It is deeply troubling to order a 14-year-old...
read moreWe will never know what George Zimmerman did
In light of the not-verdict, there are a lot of opinions floating around about George Zimmerman. I haven’t got one; I don’t know what happened that night, and neither do you. I felt more sympathy for Trevon Martin than for Mr. Zimmerman; the latter came across as a disappointed, wannabe police officer, and I’ve had a lot of clients who bore a close resemblance to Mr. Martin. But Mr. Zimmerman is not guilty because I, as a half-hearted observer of the case, found him unsympathetic. The only person who really knows what happened was Mr....
read moreWould you rather trust Edward Snowden or the NSA?
As you know, unless you’re living under a rock, Edward Snowden is a former National Security Agency contractor who released records relating to the NSA’s PRISM project. Although PRISM’s scope remains obscure, it appears that the NSA has been mining all sorts of data from big tech and communications companies. That data surely includes so-called ‘metadata,’ which is information about phone calls and e-mail messages, such as the sender and recipient. Response to Mr. Snowden’s revelations has been mixed; the data sought is not...
read moreAmanda Knox haters, juries, and altruistic punishment
As part of my (aspirationally) regular routine of reading appellate court rulings, law-review articles, and the like, I also look for resources on non-legal topics that bear on my practice, such as rhetoric, psychology, decision theory, and group dynamics. The ongoing kerfuffle about Amanda Knox’s prosecution has led me to a non-legal tidbit that trial lawyers should know about: an anthropological concept called ‘altruistic punishment.’ Altruistic punishment is a visceral desire to see a perceived wrongdoer punished, even if the punisher...
read moreOregon’s age of consent needs to be changed.
Oregon’s sex-crime laws, which appear with other “person” crimes in Chapter 163 of the Oregon Revised Statutes are a bewildering mess. In addition to rape and sodomy (sex without consent) there is sexual abuse (sexual touching without consent) unlawful sexual penetration (just what it sounds like) child-pornography offenses, and contributing to the sexual delinquency of a minor. Some of those offenses make sense as they are. Rape and sodomy are of varying degrees of seriousness depending on the victim’s age and whether there was force,...
read morePay parity for public defenders should have been passed a long time ago.
Public defenders in the federal system are paid roughly the same as their counterparts at the US Department of Justice, but state-level public defenders are not, and the pay disparity, is substantial. HB 3463 proposes pay parity for public defenders. That is the right thing to do, both as a matter of constitutional law, sound policy, and justice. Public defenders are not as politically popular as police officers, prosecutors, and jails and prisons, but all of those things are necessary expenses in order to prosecute crimes and punish...
read moreOregon’s restitution laws need reform
Over the last ten years or so, the legislature has changed the statutes relating to restitution. Restitution refers to a criminal defendant’s obligation to pay the victim for the economic harm caused by the crime. Restitution was once intended to be primarily a part of the punishment, and the judge had the discretion to impose reduced restitution, or no restitution. Now, restitution is intended to compensate the victim, and the court is required to impose all the victim’s financial costs as restitution. I think that’s a bad policy,...
read moreSenator Crapo’s alcohol problem
In Oregon, and in most states, driving with a blood-alcohol level of .08% or higher is driving under the influence of intoxicants, or DUII. The .08% is defined, semiofficially, by federal law, and it represents a balance between increasing public safety (a low number would capture more drivers) and individual autonomy (if the number is too low, no one could have a few drinks at dinner and still drive home). It’s probably necessary to have a single figure for everyone, but in fact the .08 figure is too high for people who don’t...
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