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
Amanda 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 has...
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, but...
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, because...
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...
read moreGrey rape, and when no means no.
This issue seems to cycle in and out of the public consciousness, maybe in response to a stupid comment by a politician (remember Todd Akin?), or a heated debate between blogs as summarized in this Slate XX blog entry. Those debates, which I can remember having in a course on the philosophy of sex and love in college, only permit black-and-white answers like “no means no” when they aren’t about real situations with the blurry and contradictory facts that come out of real rape cases. Saying that ‘no’ means ‘no’ isn’t much help when the dispute...
read moreYou can’t go home again - release conditions and no-contact orders
The criminal-justice system is scrupulously protective of some rights, such as the right to counsel or the right to a jury trial. The trial process is as long and involved as it is because of the importance of protecting those rights, especially the ones in the Fourth, Fifth, and Sixth Amendments (including counsel, jury, and confrontation) and Article, Sections 11 and 12 of the Oregon Constitution. The system does a much poorer job protecting those rights that are not central to criminal administration. Trial courts are perfectly happy...
read moreYou should not plead guilty just because you’re guilty.
I can’t count how many times I’ve had a client tell me that “I just want to go in and plead guilty, because I really did do it.” You should resist this temptation, at least until you speak to a criminal defense attorney. I understand why a criminal defendant might feel guilt or remorse and want to just admit everything to the judge. It’s a very bad idea. Most criminal cases are eventually resolved by plea. A significant percentage are nearly unwinnable by the defense, and in those cases defense counsel would advise a guilty plea eventually...
read moreOnly five pages to write your argument? Try this…
My work involves more writing than any other single thing, and I am always trying to learn about good writing. I have a shelf full of writing references, and I watch for good examples. I’m not sure if I think this is a good example, but I am inclined to think that it is. It successfully makes a complex argument, and it is sure to get the judge’s attention. Plus, the judge is not very likely at all to hold the attorney in contempt. Evidently, the attorney asked for leave to file a 55-page brief, and the judge cut it down to five. The five-page...
read more‘Victim’s rights’ should include the right to lenience.
Over the last twenty years, the ‘victim’s rights’ movement has fueled major changes in criminal law. Oregon victim’s-rights law permits a victim to attend judicial proceedings and to obtain information about the process. Further, as a practical matter, the prosecutor will typically consult with the victim about plea-bargaining, at least if the victim wants to be consulted. There’s a listing of the major Oregon victim’s-rights laws at http://law.lclark.edu/live/files/4971-oregon. The push for victim’s rights law came from the right-hand side...
read more
