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

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?

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

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

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

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

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

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