Observations of an Oregon Lawyer (by Eugene attorney C. Michael Arnold)

Citizens are safer today because of GPS ruling

2012-01-23T10:17:00.001-08:00

http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

In today's opinion in united states v. Jones, the Supreme Court unanimously ruled that common-law trespass rules govern the plain meaning of the fourth amendment. There is no need to analyze using the "reasonable expectation of privacy test" when a trespass analysis can be applied. This is a throwback to earlier styles of analysis that predate the 21st century jurisprudence of the Supreme Court.

By Mike Arnold, attorney at Law
Eugene, Oregon
(dictated from my iPhone)

Beware of redacting PDF files - the curse of the cut and paste

2012-01-18T10:25:00.000-08:00

A federal judge wrote an opinion with redacted information about Apple which was subject to an order to seal. However, when anyone copied and pasted the text, the redacted info showed up. The perils of technology and a lesson for folks outside the legal field.

One way we prevent redacted info from being viewable is to print the page and then scan it back to PDF. It's a primitive solution but is pretty much idiot proof.

Mike Arnold,
Attorney at Law
Arnold Law Office, LLC
Eugene, Oregon

Can a officer stop a driver for hitting a deer?

2012-01-10T15:47:00.001-08:00

http://www.registerguard.com/web/updates/27440837-55/marijuana-trooper-car-deer-police.html.csp.

A driver hits a deer with his car. He doesn't stop. Officer observes the collision and then pulls them over for hitting the deer not stopping.

Interesting issue. Is there an affirmative duty to pull over if you hit a deer? I suppose it is property damage of the king's traditionally speaking. In essence all wildlife is the property of the state of Oregon.

Of course if the driver was driving carelessly or recklessly the officer could've pulled him over for that.

(Dictated into my iPhone and not reviewed.)

Imprisoned while innocent, released when guilty

2012-01-10T14:55:00.001-08:00

In domestic violence cases in Lane County Oregon, people are typically jailed while they are presumed innocent and then released with alternative sanctions after they are convicted. The system as set up coerces defendants into pleading guilty when they are completely innocent or guilty of a lesser offense but overcharged by an overly zealous and paternalistic prosecutor.

The reason that this system is perpetuated in the status quo is due to an arm of the court called pretrial services. They apparently have secret marching orders from someone, presumably in the judiciary, that urges them to keep the presumed innocent domestic violence defendants incarcerated.

In a case last year a client of mine had bail set at $1.6 million meaning he had to post $160,000 cash to be released pretrial. Of course he was significantly overcharged which caused the unreasonably high bail. Ultimately he ended up with one count against him with a probationary sentence.

The purpose of bail is supposed to be to secure someone's attendance at court. However in Lane County the purpose of bail is to keep people in jail in order for them to be more likely to settle their case. It is a perversion of the process.

Most recently while representing an alleged victim of domestic violence we learned that pretrial services won't even accept bail posted by an alleged victim. Of course this case was dropped before the bail needed to be posted. Rest assured in the future this system will be involved in a lawsuit if they keep someone in jail one extra day due to the paternalistic policy of refusing bail by the alleged victim.

The system of keeping people locked up ignores the situation that the alleged victims are in. Often the primary income earner will lose his job if he doesn't get released. This is paternalism at its worst.

Clio instead of TimeSlips and Time Matters falls short for managing associates

2011-09-27T11:09:00.000-07:00

Clio appears to be a wonderful web based program but it cannot tell you how much money an associate attorney has actually collected. It can only tell you what they billed. They are hoping to have this report capability by the end of the year. They seem to be going more for the sole practitioner or small partnerships. Hopefully they will grow a bit because they have some great capabilities.

Mike Arnold,
Managing Partner
Arnold Law Office, LLC
Eugene, Oregon

KVAL Writes about Dismissal of Rape Charges

2011-09-13T11:53:00.000-07:00

When news of false charges hits the internet, only a dismissal and aggressive public relations can help mitigate a damaged reputation.

http://www.kval.com/news/129477103.html

Rape charges dismissed after two long years

2011-09-08T12:40:00.000-07:00

Corvallis Gazette Times reported on this story. One quote really summarizes this ordeal:

It's amazing that someone's accusing words can rally law enforcement so steadfastly against an innocent man. Perhaps Corvallis Police Department needs to attend some classes regarding how common it is for someone to falsely accuse another of rape. They never make the national statistics because there's no standard for memorializing this. One law enforcement officer once told me that 90% of the rape calls he gets turn out to be a false accusation that they quickly figure out. God forbid you are one of the innocent that they don't "figure out."

The Albany Tribune reported: "Eugene attorney C. Michael Arnold said, 'No government prosecutor would want to try this case to a jury of twelve taxpayers.'”

Choice Overload: Why judges make the easy decision when tired and hungry

2011-04-13T11:30:00.000-07:00

It turns out that judges make decisions just like everyone else. Just after a lunch or snack break, judges were less likely to make the "default decision." The longer they go and the more fatigued they get, the more likely they will make the easier decision. This Discovery Magazine article discusses the research.

Lane County Settles Lawsuit with Creswell Student for False Confession Case

2011-01-29T08:08:00.000-08:00

The Settlement

The Eugene Register Guard reports that Lane County has agreed to accept a judgment against itself for $20,000, to settle the lawsuit against it and a former deputy sheriff for violating a Creswell Middle School student’s rights by coercing him to falsely confess to shooting a neighbor’s dog.

The lawsuit was filed by the father of Levi Dunn on his son’s behalf in February 2010. It named Creswell School District and two employees as well as Lane County and a then-deputy sheriff.

In December, Creswell and its two named employees agreed to accept a judgment against itself for a total of $22,000.

The Lawsuit

In particular the lawsuit alleged that the middle school employees and the deputy interrogated 12-year-old Levi in the principal’s office until he falsely confessed to shooting a two-year-old female boxer named Rosie, which was shot and killed on January 21, 2008. The suit also alleged that the no one ever told Levi’s father that Levi was a suspect until after the interrogation and false confession.

During the interrogation, the lawsuit alleged, that “Levi held strong to the truth and even tried to ‘pinkie swear’ that he did not shoot the dog” but that the deputy “continued his attempts to force a confession.” Meanwhile, it alleged, that the Creswell Middle School employees “did not protect this vulnerable student.” During this meeting, it alleged, that Levi told the defendants that “the dog was nice and not mean” and that “he did not know anything about the dog shooting until someone knocked on his door and told him about it.”

The suit alleged that the “deputy repeated his questions” and Levi continued to repeat his answers even asking “multiple times to be able to leave to return to class.” The suit alleged that he was not allowed to return to class

Ultimately, the suit alleged that Levi eventually broke down and told the deputy what he wanted to hear, admitting to shooting the dog under continued pressures by the defendants. That same day, the suit alleged, the deputy and the CMS campus supervisor “paraded [Levi] through the public to his home and publicly had him demonstrate the pellet gun for all the neighbors to see.”

The suit went on to accuse the deputy of disregarding evidence that the pellet taken from Rosie’s body could not have been fired through the “smooth-bored barrel” of Levi’s pellet gun. Levi’s attorney C. Michael Arnold said that “this entire debacle could have been nipped in the bud early in the investigation if the deputy had eye-balled the pellet, which was clearly fired from a rifled barrel and not from a kid’s Pumpaster pellet gun. Anyone who has seen two episodes of CSI could have figured that out with the naked eye.”

This mistake was compounded, according to the lawsuit, when the deputy later ignored the state police ballistics report which concluded that Levi’s pellet gun did not fire the fatal bullet, leaving juvenile defense attorney Richard Mullen to force its release and secure a belated dismissal.

The Importance

Levi's Attorney C. Michael Arnold said that Levi and his father chose to file this lawsuit for two reasons: to clear Levi’s name, since he was still being picked on and called “dog killer” even after the juvenile case against him was dismissed; and to deter law enforcement from engaging in these misguided interrogation tactics in the future.

According to Arnold, “There are clear guidelines set by the Oregon Attorney General on how to interview a child witness, to protect the child from being unduly influenced and making statements that aren’t true. Child witness statements are even video recorded. Why aren’t these same guidelines in place for children accused of crimes? Aren’t child suspects as vulnerable to influence as child victims?”

The answer is “yes,” says Arnold, which is why Levi would only settle his case if a judgment was entered against the defendants. This allows for future victims of heavy-handed interrogation tactics to have definitive proof that this issue has been resolved in favor of another child, giving them a leg up in research and investigation. Typically, lawsuits are settled with a release of claims and a dismissal of the lawsuit, Arnold stated. Both the district and county could have attempted to negotiate a dismissal and a release of claims. However, here a judgment will be entered similar to what would have happened if the case went to trial and Levi won any of his claims.

Arnold explains, “From our perspective this case settled the way it did for the same or similar amount of damages as if we went to trial and prevailed with a jury. A judgment is in place and Levi’s name is cleared. And, the defendants had to pay a considerable sum of money, which hopefully will have a deterrent effect on other government agencies who engage in this sort of conduct at the expense of citizen rights and at the expense of the truth. The message should be clear: ‘Obtaining false confessions may make an investigation quick and easy, but it will eventually catch up with you.’”

Arnold’s law firm has also placed a model school district policy on their website to encourage parents to lobby their district’s policy committee to draft policies that protect their children. It can be found at http://www.arnoldlawfirm.com/.

Oregon Child Support and Military Allowances as Income

2010-04-04T19:32:00.000-07:00

A recent Oregon Court of Appeals case (Stokes v. Stokes) held that military housing allowances (BAH) and food allowances (BAS) are counted as income when calculating child support, even though they are not included as income for tax purposes.

Mike Arnold,
Attorney at Law
Arnold Law Office, LLC

Eugene family law lawyer Jacy Arnold named one of Oregon's best attorneys under the age of 40

2009-11-22T19:55:00.000-08:00

In November 2009, Jacy Arnold, Arnold Law Office's managing partner, was named by Law and Politics' "Super Lawyers" rankings as an Oregon Rising Star in Family Law. Only 2.5 percent of Oregon attorneys are given the honor.

Only three lawyers in the entire county were recognized among the best Oregon lawyers under the age of 40. Morgan Diment of Diment & Walker was also recognized in family law and Loren Scott of Muhlheim Boyd for bankruptcy.

Methodology: Law & Politics performs the polling, research and selection of "Super Lawyers" in a process designed to identify lawyers who have attained a high degree of peer recognition and professional achievement. Super Lawyers' "Rising Stars" is a comprehensive and diverse guide to outstanding attorneys, representing a wide range of practice areas, firm sizes and geographic locations. The selection procedure includes peer nominations, a blue ribbon panel review process and independent research of candidates.

How do you protect your business website from plagiarism?

2009-10-23T06:53:00.000-07:00

You've spent hours developing unique content for your website or you've paid a pretty penny to a website developer to create unique copy. Why did you do this? You knew that Google's algorithm rewards those with unique and relevant content with a higher ranking. Why didn't you plagiarize someone else's site that was performing well? Well, you knew that it was morally and legally wrong, and you knew that if your site was not unique, Google would rank it lower.

Now that you're performing well on Google, your competitors will notice this and may attempt to duplicate your success by stealing your intellectual property. Take steps to prevent this from happening.

Ignorant, Lazy, or Cheap: Why steal website content?

Some people are just plain naïve and think that if it's on the web, it's public domain.

Everyone else feigns naivety, but steals your content because it's cheap, quick and easy. They are either too lazy to spend the countless hours developing content or lack the knowledge and experience in your field or the skill set to generate copy from brain to computer screen on their own.

These copyright violators also know that there's another option to developing their own content. They could pay a copywriter knowledgeable in your business to create unique content. They are just too cheap to do so. This is theft at its finest.

The ounce of prevention.

1. Always place a copyright notice on your website. The HTML code for "©", the little "c" with a circle around it, is "&copy". This will hopefully deter others from thinking it is part of the public domain.

2. Periodically search key phrases in Google. You can pull out whole sentences with quotes around it to see if someone is copying verbatim. However, you also need to search for fragments with quotes and whole sentences without quotes, to see if they are plagiarizing the 7th-grade-term-paper way (by mixing up the words and clauses or by using synonyms).

You can also add key phrases or image names to Google Alerts to let you know immediately when someone steals your content. Many plagiarizers are too lazy to change the file name of your images which easily show up in a google search.

3. Pay a service to monitor your copy for you. Copyscape is the most popular alternative to this. Remember, you get what you pay for in this world, and a little protection up front is worth much more than that pound of cure down the road.

The pound of cure.

If you come across someone who has stolen your intellectual property, research who they are and then contact them immediately. Go to whois.net to see who owns their domain name and who the contacts are. Most people, upon a phone call or a professional, non-accusatory email, will feign naivety and agree to immediately remove the content.

Others require more threatening letters or require you to contact their website host. Remember, the law is on your side. If all else fails, contact a lawyer to threaten litigation. If you are successful in copyright infringement litigation, you are entitled to damages and may be entitled to attorney fees.

by C. Michael Arnold
Attorney at Law
Arnold Law Office, LLC
Eugene, Oregon, USA

To visit Arnold Law Office on Facebook, click here.

How consistent are sentences in Lane County for major crimes?

2009-10-16T09:19:00.000-07:00

Consistency in sentencing is important. The local print media does a fair job in reporting on individual cases but typically fails to report how a given case fits in with other recent similar cases. Here's a snapshot of some of Lane County's recent high profile sentences.

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5.8 yrs. - What does it take to get 70 months in prison?

The Russian Armed Robbers - 2009

Crimes: 2 take-over style armed robberies of a Junction City market and a Coburg coffee kiosk.
Plea deal: faced Robbery I and at least 140 months, pleaded to two Robbery IIs.
Firearm: one sawed off shotgun in the clerks faces.
Victims: Multiple clerks and customers including a 10-year-old girl who watched her mom have a shot gun in her face.
Likely Motive: funding meth habit
Criminal History: 1 defendant had prior Burg 1, UUV, Forg 1, and other crimes.
Number of Perpetrators: 3
Judge: No discretion in sentence; stipulated prison term.
Prosecutor: Lane
Defense Attorneys: Jeffery M. Jones (retained); Ferder (retained); Rainwater (appointed)
News Reports: R-G

------------------------------------------
11.6 yrs - What does it take to get 140 months?

The Mazzi/Beaudet Jewelry Simulated Armed Heists - 2009

Crimes: 6 takeover-style armed robberies with a toy gun; robbed Mazzi's Restaraunt four times; robbed Beaudet's twice.
Plea deal: faced at least 360 months (30 years) and California, Nevada, and the Feds agreed not to pursue at least four other similar robberies.
Firearm: air pistol or BB gun.
Victims: Multiple clerks and customers feared being executed.
Likely Motive: Gambling debts. Likely greed and thrill.
Criminal History: none; model student.
Number of Perpetrators: 1
Judge: No discretion in sentence; stipulated term.
Prosecutor: Schwartz
Defense Attorney: Deal (appointed)
News Reports: R-G 1/2/09; 1/3/09.

17.5 yrs - What does it take to get 210 months?

ATM Carjackings - 2009

Crimes: 3 women kidnapped and ordered to drive to ATMs and then their addresses were stolen as threats to victims.
Plea deal: faced 43+ years; Agreed to a range of 70-210 months.
Firearm: none but one threatened and purportedly hidden.
Victims: Three women over five days.
Likely Motive: funding heroin habit
Criminal History: minimal.
Number of Perpetrators: 2
Judge: Cindy Carlson.
Prosecutor: Lane
Defense Attorneys: Coit (retained); Arnold (retained); Volmert (appointed)
News Reports: R-G

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20 years - What does it take to get 240 months?

Eugene's Deadliest Drunk Driving Accident in History - 2009

Crimes: Runs read light at 92 mph killing two adults and two children and critically injuring another child while 0.21% BAC.
Plea Deal: pleaded to indictment - Manslaughter I x 4; Assault 2; Reckless Driving. According to the news reports, court had discretion to impose 46 years.
Victims: four deaths; one critically injured child.
Likely Motive: left the bar angry
Criminal History: unknown
Number of Perpetrators: 1
Judge: Billings
Prosecutor: Vill.
Defense Attorney: Cascagnette (appointed); Koenig (appointed on limited basis)
News Reports: KVAL; RG; Fox

---------------------

22.7 yrs - What does it take to get 272 months?

Romania Chevrolet SUV Ecosabotage - 2001

Crimes: set fire to three SUVs while under federal domestic counter terrorism surveillance with one security guard present. Also, attempted to set fire to Tyree Oil Co.
Plea deal in 2001: none. Bench trial. Convicted of Arson I x 3; Attempted arson I x unlawful possession of a destructive device x 2; unlawful manufacture of a destructive device; criminal mischief I; attempted criminal mischief I.
Plea deal in 2008: Oregon Court of Appeals ruled that crimes should have merged. Resentenced to 10 years.
Victims: SUVs were salvageable. Original prosecutor argued risk to fire fighters and night watchman.
Likely Motive: political/environmental
Criminal History: none.
Number of Perpetrators: 2
Judge: Velure (2001); Billings (2008)
Prosecutor: Tracy (2001); Hasselman (2008)
Defense Attorneys: Barnes (retained 2001); Regan (retained resentencing after appeal)
News Reports: EW; RG

Apparently a state other than Oregon has an over-protective DHS

2009-09-29T19:44:00.000-07:00

A Michigan mom has run afoul with Department of Human Services for letting the neighbor kids wait for the bus inside her house. Once again a state's child protective services attack a parent at the expense of children. It's guaranteed that DHS would be after the neighbor parents for neglect if they left the children alone. You can't win with DHS, even in Michigan.

Click here to read the AP article, "State to mom: Stop baby-sitting neighbors' kids."

Mike Arnold,
Attorney at Law
Arnold Law Office, LLC
Eugene, Oregon

Oregon's Measure 11: One size doesn't fit all in Mandatory Minimum Sentences

2009-09-25T07:04:00.006-07:00

Yesterday the Oregon Supreme Court decided State v. Rodriguez/Buck, a landmark case regarding mandatory minimum Ballot Measure 11 sentences.

Trial judges must now consider the defendant's individual circumstances and criminal history, the harm to the victim, and specific facts of the case when sentencing defendants. If a mandatory sentence "shocks the conscience" in a given situation, then the sentence as applied is unconstitutional and a lesser sentence must be imposed.

The court framed the issue and the facts here:

These two criminal cases, which we consolidated for argument and disposition, require us to interpret and apply the requirement in Article I, section 16, of the Oregon Constitution that "all penalties shall be proportioned to the offense."

Veronica Rodriguez touched a 13-year-old boy when, standing behind him in a room with 30 to 50 other people, she brought the back of his head into contact with her clothed breasts for about one minute.

Darryl Buck touched a 13-year-old girl when the girl, who was sitting next to him while she was fishing, leaned back to cast her fishing line, bringing her clothed buttocks into contact with the back of his hand and Buck failed to move his hand; that happened one or two more times.

When they stood up, Buck brushed dirt off the back of the girl's shorts with two swipes of his hand. Each of those touchings was unlawful because a jury in Rodriguez's case and a judge in Buck's case found that they had been for a sexual purpose -- a fact that brought the physical contact within the definition of first-degree sexual abuse. ORS 163.427(1)(a)(A). Rodriguez and Buck were both convicted of that crime.

Courts must use the following factors when considering a mandatory sentence:

1. A comparison of the "penalty" and the "offense." The court noted the lack of proportionality in the Sex Abuse in the First Degree statute by recognizing that "Measure 11 imposes the same, mandatory prison term for a 50-year-old man forcing a 13-year-old girl to engage in prolonged skin-to-skin genital contact with him and a 19-year-old forcing the same 13-year-old to touch his clothed buttock for five seconds."

2. The penalties for related offenses. The court determined it was unreasonable that the touching by Rodriguez and Buck mandated the same sentence as if they had anally sodomized the victims that they briefly touched, had sexual intercourse with the children that they briefly touched, or had they "'penetrate[d] the vagina, anus or penis [of children under the age of 14] with any object other than the penis or mouth.'"

The court also noted that Buck and Rodriguez would get a greater sentence under Sex Abuse I than a person charged with Sex Abuse II who "touched the victim's vagina and penetrated the victim's anus with his fingers...where the defendant (a nurse in a psychiatric hospital) stood next to the bed of a bipolar, sedated patient with his pants open and an erect penis and indicated that he wanted the patient to perform oral sex on him, and the patient complied." Clearly the conduct of a nurse should warrant a greater sentence then the brief touching in Buck and Rodriguez. However, Measure 11 mandates otherwise. Hence, it is not proportionate and is unconstitutional at times.

3. Criminal history. It might not be proportionate to treat a repeat offender the same of someone who has never been arrested.

With that being said, this case illustrates the power of unelected government employees of the District Attorney to charge someone with a Measure 11 crime to coerce them into accepting a more appropriate lesser charge. Innocent people with absolute defenses often choose to plead guilty to lesser offenses to alleviate the risk of a guilty trial verdict that sends them to prison for 70 or 75 months. If the appropriate non-Measure 11 crime is charged in the first place, a trial can happen to flesh out the facts.

Hiking with a concealed handgun in Oregon: Legal or Not?

2009-09-10T14:34:00.000-07:00

Many Oregonians mistakenly believe that there is an exception for hiking on public lands with a concealed weapon. If you are hiking with a concealed firearm, without a concealed handgun license, you'd better have current hunting tags, a shooting club card, or a fishing pole and be prepared to prove such at a jury trial.

The safer bet is to get a CHL, even if you never plan to carry on a day-to-day basis. Many Oregonians get a CHL just for transporting firearms or to be safe on a hiking trail. ORS 166.250 is the statute that prohibits carrying a concealed firearm on your person or readily accessible within a vehicle.

ORS 166.260 sets forth the exceptions:
(1) ORS 166.250 does not apply to or affect:
* * *
(h) A person who is licensed under ORS 166.291 and 166.292 to carry a concealed handgun.
* * *
(2) [Except for convicted felons], ORS 166.250 does not apply to or affect:
(a) Members of any club or organization, for the purpose of practicing shooting at targets upon the established target ranges, whether public or private, while such members are using any of the firearms referred to in ORS 166.250 upon such target ranges, or while going to and from such ranges.
(b) Licensed hunters or fishermen while engaged in hunting or fishing, or while going to or returning from a hunting or fishing expedition.

Mike Arnold,
Attorney at Law
Arnold Law Office, LLC
Eugene, Oregon

Jury Duty: keeping the powers of the Western world in check for millennia

2009-08-30T08:36:00.000-07:00

Jury duty in Oregon is really where the rubber meets the road in our representative democracy. Jurors have been keeping the powers of the Western world in check for millennia. It's the one place where a citizen's vote can have the most impact on government and on justice - even more so than the "ballot box" (also known in Oregon as "your dining room table.").

If you end up serving on a jury, 90% of the time you will be hearing criminal case. Civil cases rarely get tried due to the great expense for the parties. Most civil trials are personal injury cases. Occasionally, you may be reporting to jury duty on the day that a new grand jury is being selected.

Criminal Jury Trials in Oregon, USA

Jury duty is perhaps the most sacred of all citizen responsibilities. The government with all its power and resources has accused a fellow citizen of a crime and is attempting to strip him of his liberty. In America, a person is innocent unless proven guilty beyond a reasonable doubt. This keeps the government in check. If the government only proves that it's more likely than not that a person is guilty but does not convince the jury beyond a reasonable doubt, the only possible verdict is a verdict of not guilty. Perhaps, proof lesser than proof beyond a reasonable doubt might cut it in Afghanistan or communist China. But here in American and the State of Oregon, our jurors are duty bound to hold the prosecution to the highest of standards, and assume that the defendant is innocent.

Civil Justice

What do Oregonians do when they have a dispute that cannot be resolved? If you listened to talk radio or the propaganda of the insurance industry, they would have you believe that ordinary citizens shouldn't have access to the civil justice system. What's the alternative? Harmful, irresponsible actions would be left unchecked and the injured parties would be left uncompensated.

The jury system is the best of all possible systems. One possible system is that when you are wronged by someone else, you go and take what you think is fair compensation by force. Of course, we live in a civilized society, and the jury system is the fairest way for parties to access justice. Often people ask, "Why should we be giving money for pain or loss of life?" I always remind them that pain or a loss is the worst harm in any civil case. If the jury had a magic wand, we'd ask them to wave it and make the plaintiff whole again. Instead, the only form of compensation that we have is monetary compensation. That's fair and it's the law.

by C. Michael Arnold,
Attorney at Law
Arnold Law Office, LLC

Photo of the Lane County Courthouse (summer 2009 by Mike Arnold)

Common Media Mistakes with Legal Terminology

2009-08-24T15:30:00.000-07:00

Language is the art and words are the tools of both the legal industry and the news media. Precision in language is often necessary to properly communicate what is intended. Subtle differences in word choices can sometimes make huge differences in the content. Precision in language is vital in both the law and in the media.

Below are some of the incorrect or imprecise word choices the media makes. Some may simply be technically incorrect with no impact on communication and others may subtly affect the public’s point of view or mental imagery.

Opening Arguments - If you are hearing one, then the opposing counsel forgot to object or the arguing lawyer is an excellent trial lawyer. Attorneys make opening statements at the beginning of the case and closing arguments at the end. Argument is impermissible in opening statements and will result in an “argumentative” objection. The purpose of an opening statement is to tell the jury what the evidence will show. The trick to lawyering is to make that statement as argumentative as possible without drawing a sustained objection.

Summation – A “summation” is an antiquated way to refer to a closing argument in a trial. The word “summation” creates an impression in the reader that the lawyers are simply summarizing, although the word literally means to argue points and conclusions. The term closing argument, usually shortened to “closing” is what you always hear in Oregon courts. For the reader, “closing argument” creates a better image of the tough arguments that the attorneys are making.

If you are hearing a summary and not an argument, you are the only one listening – everyone else is asleep, including the jury.

The jury found him innocent – Wrong. Juries don’t find criminal defendants innocent. A jury has two choices: not guilty or guilty. Everyone is presumed innocent under our constitution through the whole trial. By the media using this term incorrectly, they are changing around in the mind of the public the presumptions and burdens that form the basis of our justice system. For instance, a person can be found not guilty even if the jury is not convinced of a person’s innocence.

Innocent plea entered – That has never happened. Just like juries don’t find a person innocent, a person doesn’t plead innocent at his arraignment. He enters a plea of not guilty. He is always presumed innocent unless proven guilty.

Jury Selection – A correct term but a bit of a misnomer. We don’t actually select a jury. In fact, we don’t get to pick a single juror. It’s more of a jury de-selection, where we get to strike a number of jurors for cause or for giving us a bad vibe. The traditional term is voir dire, which literally means “to see the truth” and correctly interpreted as “to speak the truth,” actually summarizes the process better. We hear the jurors speak the truth and then we deselect some of them.

Innocent until proven guilty – Wrong. You are innocent unless proven guilty. “Innocent until proven guilty” gives you only one possible outcome: guilty. Writing that makes a guilty finding a foregone conclusion.

by C. Michael Arnold,
Attorney at Law
Arnold Law Office, LLC

Photo: The Lane County Courthouse as seen on a sunny summer day in 2009.

Oregon Product Liability Law - a brief primer

2009-08-24T14:25:00.000-07:00

Oregon has basically adopted §420A of the Restatement (Second) of Torts through ORS 30.900-30.920. To prevail in a strict products liability claim, a plaintiff must prove the following:

The defendant was engaged in the business of selling the product.

The product was in a defective condition that was unreasonably dangerous to the plaintiff when the product left the defendant’s hands; and

The product was intended to and did reach the plaintiff without substantial change in the condition in which was sold.

By defective condition, it is meant that at the same time the product left the hands of the seller, it was in a condition that was not contemplated by the ultimate consumer and was unreasonably dangerous to the plaintiff.

A product may be in a defective condition in the following ways:

By design of the product itself;

By flaw arising from the manufacturing process; or

By the absence of adequate warnings or instructions.

To determine if the product is unreasonably dangerous, Oregon uses the consumer expectation test: “A product is unreasonably dangerous when it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases the product with the ordinary knowledge common to the community as to its characteristics." ORS 30.920(3).

Additionally, a defendant is liable for damages if the above is proven even if the defendant “exercised all possible care.” ORS 30.920(3); Restatement (Second) of Torts §420A comments g-h (1965).

To prove these things, an engineer is required to explain to the jury how and why the product is defective. Oftentimes, plaintiffs have to spend thousands and thousands finding exemplars of the product and then put them through tests. These are very expensive cases to try.

by C. Michael Arnold,
Attorney at Law
Arnold Law Office, LLC

Photo: A defectively designed scooter with a broken weld.

Planting Fabricated DNA Evidence at Crime Scene Now Possible

2009-08-19T08:31:00.000-07:00

Once the gold standard of forensic investigation, DNA testing has now been put into question by Israeli scientists. The NY Times reports that Israeli scientists were able to take someone's blood, extract the DNA-containing white blood cells and then introduce another's amplified DNA extracted from hair. They sent the DNA sample to a top-notch American forensics lab, and guess what? It fooled them.

This means that planting fabricated DNA evidence at a crime scene is now easier to do than planting a fingerprint. Scary stuff.

by C. Michael Arnold,
Attorney at Law
Arnold Law Office, LLC

Unanimous Juries: Inconvenient Constitutional Guarantees versus Efficient Dictatorship

2009-07-06T14:13:00.000-07:00

Oregon is one of only two states that allow non-unanimous juries in criminal trials. In today's New York Times article ("In Two States, a Lower Bar for Conviction"), Clatsop County DA Josh Marquis points out that it's simply more efficient to ignore the jury holdouts and avoid a hung jury with Oregon's 10-2 jury rule.

He is absolutely correct. It turns out that preserving our constitutional rights isn't very efficient. Despite that, our Constitution protects us from the government in several inefficient ways. For instance, the government can't take property without due process. It would definitely be easier if the government could take your home without those pesky imminent domain proceedings.

And surely it would be easier if the government could take away your guns; it's much more efficient to police the public when they are unarmed.

Our state and federal constitutions are here to protect individuals from the government. Sometimes that's inconvenient for the government. Too bad. Harry Truman said it best at a lecture at Columbia University in 1959: "Whenever you have an efficient government you have a dictatorship."

Photo: The Jury by John Morgan, an 1861 painting of a Britsh Jury

by C. Michael Arnold,
Attorney at Law
Arnold Law Office, LLC

The Jury System Works Again: Federal Jury Vindicates EPD Officer Accused of Racial Profiling

2009-06-25T14:14:00.000-07:00

by MIKE ARNOLD, Eugene, Oregon -- Karen McCowan at the Register-Guard reported this morning that Eugene Police Ofc. Wayne Dorman was vindicated by a federal jury after an hour of deliberations regarding allegations of racial profiling.

This is another example of the civil justice system working properly. Folks can have a disagreement, in this example over race. If they cannot resolve it, they have a jury figure it out. Don't be conned by the insurance industry and special interests who claim that the the jury system is broken.

The plaintiff chose federal court over state court, which gave him a jury pool from as far south as the southern Oregon coast, as far north as Salem, and as far east as Bend. He chose this over a Lane County jury, which would have had a substantially higher percentage of potential jurors from the city of Eugene.

Consequently, this case wasn't simply the community of Eugene or Lane County deciding this dispute. It was a fair jury from a huge geographic section of the state who heard the facts and made their decision. Case closed.

by C. Michael Arnold,
Attorney at Law,
Eugene, Oregon
Arnold Law Office, LLC

Sonia Sotomayor is a right wing conservative fascist!

2009-05-26T11:41:00.000-07:00

She is Pro-Life (Center for Reproductive Law and Policy v. Bush), pro big-business and anti-privacy (Leventhal v. Knapek), and pro-racism/anti-black (Pappas v. Giuliani)!

You can certainly pick isolated cases and say she's a supporter of just about anything, or you can honestly represent her judicial work as a whole. Beware of the talking heads and sound-bite journalism.

by C. Michael Arnold, Attorney at Law,
Eugene, Oregon Arnold Law Office, LLC

Many Oregon Insurance Arbitration Clauses Violate State Law

2009-05-18T19:14:00.000-07:00

The link below is to a bulletin of a national insurance industry periodical. It warns insurance companies that the Oregon Insurance Commission is on the look out for violations of Oregon law regarding arbitration clauses in insurance policies.

In Oregon, an insurance policy cannot require that an insured submit to arbitration without the insured's consent. The state of Oregon has a long-time respect for the right to trial by jury. Article I, section 17 of the Oregon Constitution provides: "In all civil cases the right of Trial by Jury shall remain inviolate."

Insurance Journal: Oregon Warns Insurance Industry About Arbitration Clauses

by C. Michael Arnold, Attorney at Law,
Eugene, Oregon Arnold Law Office, LLC

Oregon's Raft and Kayak Tax Likely to Drown in Committee

2009-04-09T14:03:00.000-07:00

According to Rep. Terry Beyer’s office (House Transportation Committee Chair), they have heard from “a lot of constituents, non-constituents, and even people from Washington” all opposed to Oregon House Bill 3447. It doesn’t sound like it’s going to even get a hearing and will thus drown in Committee.

Word about this potential boater tax travelled quickly through the Oregon and Washington online whitewater communities. Well done!

by C. Michael Arnold, Attorney at Law,
Eugene, Oregon Arnold Law Office, LLC
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This is a follow-up on last Friday's blog: Oregon's Proposed Raft and Kayak Tax

Photo: The author's dog on the Coast Fork Willamette after the author paid gas taxes but prior to paying the post-boating beer tax.

Oregon's Proposed Raft and Kayak Tax

2009-04-03T09:29:00.000-07:00

Oregon House Bill 3447 would require Oregonians to buy nonmotorized boat permits for their rafts and kayaks.

The biennial fee would be $50 for one boat or a maximum of $300 if you own a play boat, creek boat, inflatable kayak, raft, and cat (5 or more boats is $300 total). The maximum penalty for failing to display a permit would be $90.

Apparently this is Oregon's attempt to pay for House Bill 2220, which would require check stations to examine boats for aquatic invasive species. HB 2220 doesn't provide for any funding, thus this tax on Oregon's rafters and kayakers.

Whitewater boating is not cheap to do safely. The above photo is the author's wife rafting the middle McKenzie River at higher water.

This bill would tax our family $150 after we already injected thousands of dollars into the Oregon economy purchasing all of the gear, not to mention the hundreds of dollars in gas money and the resulting gas tax traveling around Oregon to rafting destinations.

I challenge the legislature to produce any evidence of a whitewater kayak or raft ever transferring an invasive species. Ever seen a zebra mussel attached to the bottom of a creek boat? I haven't.

Oregon's whitewater boaters do more to protect our creeks and rivers than almost any other group. Visit http://www.oregonkayaking.net/ for an example of Jason Rackley's efforts.

This bill originated in the House Rules Committee. I contacted Vice-Chair Chris Edwards' (D-Eugene/Santa Clara) office and learned that it was referred to the Transportation Committee, where Terry Beyer of Springfield is the chair. This committee has until April 17th to hear all of its bills.

Please call (503-986-1412) or email Terry Beyer's office and tell them to bury this in committee. It should never see the light of day. Call Rep. Beyer's office and say, "Please stay out of our rafts and kayaks by drowning House Bill 3447!"

Click here to find your Oregon legislator.

by C. Michael Arnold, Attorney at Law,
Eugene, Oregon Arnold Law Office, LLC

DUII Arrests May Soon Be Expungible

2009-03-15T09:51:00.000-07:00

Current law does not allow traffic arrests to be expunged like other crimes. However, a new bill that just passed the Oregon House may change that. This will protect those clients who were wrongfully arrested when no charges were filed, the case was dismissed, or a jury acquitted them at trial.

Under current law, the arrest shows up on a driving record and has hampered many people from jobs where driving is a requirement.

The Albany Democrat Herald reports: Law to Clear False DUIIs Advances

by C. Michael Arnold, Attorney at Law,
Eugene, Oregon Arnold Law Office, LLC

Justice Delayed = Justice Denied: Oregon courts to close on Fridays

2009-03-01T10:39:00.000-08:00

As a huge insult to the separation of powers, the Oregon legislative branch is cutting funding to the judicial branch. March 13 through the end of June the courts will be closed on Fridays. Lengthy delays can be expected in civil matters such as landlord/tenant disputes, divorce, child support and child custody cases.

This means that children will not have certainty on where they will be living. Landlords won't be able to get rid of tenants who are damaging their homes. Victims of frivolous stalking and restraining orders will have a delayed chance to get a hearing, allowing abusers of the system to continue using the system to steal custody away from another parent. Taxpayers will learn firsthand the value of the justice system and the impact of justice denied.

Attorneys advising clients on the risks of trial are now having to advise clients on the chances of even getting a trial in a reasonable time. During a settlement conference last Tuesday, the settlement judge informed me and my client of an email he just received from the Chief Justice discussing the budget crunch through the end of June. We had a June date for a jury trial. With a client who has already had to endure three years of financial problems waiting for compensation, the uncertainty of actually getting a trial was worse than the uncertainty of a particular trial result. To him and his family, justice delayed any further than it has already been delayed is truly justice denied.

Oregonian article: State budget crunch prompts Oregon courthouses to close Fridays beginning March 13
Eugene Register-Guard article: Oregon courts may find savings in four-day week

Landlubbing Law Enforcement to Determine Class III Whitewater

2009-02-22T09:16:00.000-08:00

The Oregon State Legislature is considering a bill (HB 2079) that would require all boaters to wear life jackets in Class III whitewater. Great idea but they don’t say who will determine what particular stretch of water is Class III versus Class II.

David Molina, the administrator of the House Veterans and Emergency Committee, stated that law enforcement on the ground will determine if it’s a Class II versus Class III at a given water level. This is unacceptable. Most Oregonians don’t trust government employees to determine areas within their expertise and will be hard pressed to trust them outside of their range of experience. Unless a law enforcement officer has been on the river as a decision-maker (not a passenger in a commercial trip) in a paddle- or oar-powered boat, he is not qualified to classify a given rapid.

Sure, there are rapids around the state where there is agreement on a rapid's classification. However, there are plenty of rivers and creeks that do not have much exposure or general agreement on their classification. A prudent boater would wear a life jacket on many of those waterways during the rainy season but would feel comfortable floating them in the summer without one. As water levels change, so does a rapids’ class.

The Illinois River in southern Oregon is a great example. At different water levels during the rainy season there are stretches that vary between Class III and IV. However, that same river in the summer is a trickle where you might find backpackers in inflatable kayaks next to swimmers. The vagueness of this legislation does nothing to protect river users from capricious implementation.

Even experienced river guides will have different opinions about how to classify a given stretch of the river. I have heard hardened whitewater guides debate what class a given rapid is at a given water level. If you put four experienced whitewater guides together (commercial or private), you’ll get five different opinions, ranging from 2+ clear to 4- given varied water conditions.

That’s because rating whitewater is largely in the eye of the beholder. Despite this, the State Legislature wants to put that determination in the hands of local law enforcement with questionable whitewater rafting or kayaking experience.
Keep in mind that the Oregon State Marine Board did NOT propose this legislation and it’s questionable if this bill would even save lives. A large percentage of fatalities in Oregon occur in flat water and less scary river sections where folks are lulled into a false sense of safety. If the legislature is serious about saving lives they should consider a requirement of life jackets on all moving water.

It is truly rare to ever see a rafter or kayaker without a PFD in Class III whitewater. Occasionally, you’ll see fishermen in private drift boats without them, but even them usually put them on when running Class III. Personally I would like everyone to wear a life jacket, because not wearing one puts experienced boaters in other boats at risk when they may need to save the careless.

For photographic evidence of the legislature attempting to legislate a solution to a non-problem, take a look at rafters at the McKenzie’s most popular Class III rapid. You will hardly ever see a photograph of someone not wearing a life jacket here: http://www.martinsrapids.com/.

The photo to right
is an example of Class III whitewater on the Siuslaw River after a June storm. A life jacket is necessary after a downpour. However, in the summer it's a trickle where it is perfectly safe to lounge around in an inflatable raft without needing the government to tell you to wear a PFD. As some of my more cynical Libertarian whitewater friends have said, "Let personal responsibility and Darwin work this out."

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Here's video of the author guiding R2 down Husum Falls (Class V) on the White Salmon River in Washington:

Yes, life jackets should be required on Class IV/V. I require them in my boat without the help of the government.

Oregon bill may prohibit cell phone use while driving

2009-02-20T07:39:00.000-08:00

A pair of Oregon House bills will attempt to prohibit handheld cell phone use for all drivers. Currently driving while on a handheld phone is only prohibited for drivers under the age of 18.

The potential law (HB 2038 or HB 2377) would give law enforcement the ability to stop a driver even when they are driving perfectly safely.

These are worthless bills. The Careless Driving law already makes it illegal to drive in a manner that endangers persons or property. Leave safe drivers to their cell phones. Ticket those that are a hazard under the Careless Driving statute.

Crime labs need major reform: independence from law enforcement recommended

2009-02-19T08:29:00.000-08:00

The real world certainly doesn't work like the CSI TV franchise. Underfunding and missed deadlines may cause sloppy work. Victims and defendants both suffer. It turns out that crime lab workers are just like everyone else. It's no surprise that overworked and underpaid workers beings at the crime labs may cut corners like underpaid and overworked workers in other fields. They aren't immune. Check out this article calling for reforms.

Reuse, Recycle, Render: Proposed Oregon law makes horse abandonment a felony

2009-02-17T18:21:00.000-08:00

The Oregon legislature is considering a bill making it a felony to release a horse into the wild. Here's an Oregonian article on that.

Proponents have suggested alternatives to wilde release, such as hay banks to assist those who can no longer afford the care of their horse. What the legislature is missing is the real problem: Oregon is in a rendering crisis.

Urban legislators with a disconnect from the farm have to ask this question: now that there are no rendering operations left in Oregon, what are farmers and horsemen supposed to do with old, infirm, and unwanted livestock? If you are renting a horse stall, you may not have land for burial.

A .45 and a backhoe or irresponsible abandonment shouldn't be the only two answers. Instead, Oregon should stay true to its environmental roots: Reuse, recycle, render.

Until the legislature deals with our rendering crisis, the problem of horse abandonment will continue. Adding another criminal law only serves to make politicians look tough on crime and does nothing to fix the underlying problem.

Additional Links:

Dead Animal Disposal in Oregon - OSU Extension Service
Disposal of Dead Livestock - DHS Public Health Division

Preventing Abuse: Balancing stalking orders against abuse of the judicial system

2009-02-16T20:51:00.000-08:00

A stalking protective order (SPO) may be obtained when a person is subjected to repeated and unwanted contact that coerces them or causes reasonable apprehension regarding personal safety. SPOs are a vital tool in preventing abuse and protecting persons, particularly women, from contact that places them in fear.

These unwanted contacts can include crimes committed by a party, such as assault or physical harassment, following or waiting for a person outside their work, school, or home, or making legitimate threats of serious and imminent personal violence.

To obtain an SPO a party can fill out a petition to be presented before a judge ex parte (without the other party being notified). This allows a safe avenue for a person to obtain a protective order.

Unfortunately, this uncontested scenario is ripe for abuse. To obtain a SPO all a person has to do is fill out a form alleging two or more alarming contacts.

Although petition signed under penalty of perjury and the respondent is entitled to a hearing, there are immediate consequences to the respondent regardless of the final outcome. First, there is a court finding of probable cause that the respondent is a stalker. Second, collateral consequences often occur with employment. Many employers don’t want to retain an employee that has been found by the court to be a stalker. Third, it immediately affects a person’s right to carry a concealed firearm.

In Lane County there is a culture of people who abuse stalking orders, using them as a tool to aid in an uncomfortable yet non-threatening breakup (e.g., lovesick telephone calls), to get even with a neighbor or a boyfriend’s ex, or to gain advantage in a custody case. This sort of abuse undermines the legitimate claims. Fortunately, SPOs are civil matters that afford considerable opportunities for preparing for trial and defending against frivolous claims (respondent’s request that the petitioner pay attorney fees, depositions, requests for production, etc.)

Terminating the "Permanent" Stalking Protective Order
The Court of Appeals decided Edwards v. Biehler in 2005. Because of this opinion, respondents subject to SPOs of unlimited duration can now file a motion to terminate. SPOs can be terminated if the court finds that the criteria for issuing the order are no longer present, because the petitioner no longer continues to suffer "reasonable apprehension" due to the past acts.

This is a very important case. Before this case, permanent SPOs were often worse than most criminal convictions, since many criminal convictions can be expunged after three years. Clients would pour substantial sums of money into fighting these cases, because they didn't want to forever be known as a stalker. Now this option is available if respondents lose.