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May 28, 2011

Oregon Supreme Court clarifies importance of victim rights at sentencing

As reported in this article from The Oregonian, headlined "Oregon Supreme Court: Victims have right to see sentencing; Beaverton man must be resentenced," the top court in the Beaver state yesterday handed down a very interesting sentencing procedure decision.  Here is the start of the press report:

The Oregon Supreme Court said today that a crime victim’s right to be present at court hearings is so crucial that the sentence of a Beaverton defendant must be thrown out and a judge must resentence him so his victim can be present.

The ruling offers a stern reminder to judges, prosecutors and defense attorneys that they can’t resolve criminal cases while victims are left in the dark — if victims have told prosecutors they want to be kept up to date on the process.  The ruling affects victims of all types of crime — including rapes, assaults, burglaries, car prowls and identity thefts.

“It is a significant victory for victims of crime here in Oregon to make sure their voices are heard,” said Meg Garvin, executive director of the National Crime Victim Law Institute in Portland and a clinical professor at Lewis & Clark Law School.  Garvin said the decision also is gaining national attention because the justices clearly stated what should happen once the victim’s right has been violated.

The right to be told of crucial criminal proceedings — and to speak, if victims wish — was guaranteed by a 1999 voter-approved amendment to the Oregon Constitution. Voters clarified a remedy if those rights are violated in 2008, and lawmakers wrote that into state statute in 2009.  The high court’s ruling is its first on this issue.

This notable ruling is available at this link, and here is key passage from the Court's discussion of the victim's right to the remedy of resentencing after her rights were not respected in the first sentencing of the defendant:

The principles outlined in [US Supreme Court case] DiFrancesco resolve this case.  The victim sought the remedy of resentencing, so the issue is whether double jeopardy barred the trial court from granting that remedy.  The only double jeopardy protection possibly implicated by requiring that defendant be resentenced is the protection "against multiple punishments for the same offense."  Id. at 129 (internal quotation marks and citation omitted).  However, the reasoning of DiFrancesco demonstrates that the prohibition against multiple punishments would not be violated by resentencing in this case.  The imposition of the original sentence is not comparable to an acquittal for double jeopardy purposes, and resentencing defendant with the possibility that his sentence may be increased is not inconsistent with either the history or the policies of the Double Jeopardy Clause.  "The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be." Id. at 137.

The victim was entitled to a remedy by due course of law under [the Oregon Constitution's] Article I, section 42(3)(a).  Her proposed remedy -- vacating defendant's sentence and conducting a resentencing hearing -- was permissible, in that it was not barred by the Double Jeopardy Clause.  Because the remedy could be "effectuated after the disposition" of this criminal proceeding, the victim had not waived her rights under ORS 147.533.  The trial court erred in not granting the victim the relief that she sought.

May 28, 2011 at 10:49 AM | Permalink


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Well, hopefully it doesn't take long for the Oregon courts to get the memo. Seems like a stupid waste for the if they keep messing this up. I do wonder how many states provide such a specific potential remedy rather than a more general victims will have a right to be heard language. And certainly enough resentencings take place that I don't see a double jeopardy issue.

Posted by: Soronel Haetir | May 28, 2011 11:15:50 AM

This decision is a Trojan Horse for lawyer employment and rent seeking, since victims will all need a lawyer to guide them through the legal system, at taxpayer expense. This heinous paper shuffling lends the appearance of virtue to the lawyer profession. It really cares about victims. It cares not a wit. If it ever did, it would set out to reduce the 20 million criminal victimizations a year, by its real client, the criminal. Or when it does, as with the guidelines, it would not make them discretionary.

Posted by: Supremacy Claus | May 28, 2011 10:26:05 PM


It works both ways. Criminal victims (real) and those accused (falsely) are all victims of the "Lawyering Profession".

Your preponderance to execute any 14 year old accused by the system of a significant crime speaks volumes to the limits of your lawyering gotcha arguments. They are tiresome:

Here is the modern template to obtain a conviction:

-Find an unsympathetic defendent
-Manipulate the LE photo-lineup procedure to rig an identification
-Manipulate the actual line-up so that everyone confusing is not included
-Lie to the defendent to get any statement which may be taken out of context
-Do not let the defendent get out of jail to work to his own defense (bail)
-Monitor and selectively provide communications from outside contacts which may be favorable to the government's case.
-Put other defendents who you can manipulate near the defendent under incarceration to get jail-house testimony (snitch)
-Do not follow up other potentially more promising leads as this may become exculpatory evidence which would cause the DA trouble in whether to turn the information over to the defense.
-If any (supposedly physical) evidence is obtained from a crime lab, it will be certified as unassailable even though real scientists know this is horse-puckey
-Prevent the defense lawyer from entering into trial as much incidental evidence as possible to support where and when your defendent really was at the time of the crime
-Obtain at least twelve of the local voting population who were publicly educated (this means they are ignorant and hungry for sound-bites), love CSI and Law & Order (thanks Jerry!) and know a "bad guy when they see him.
Throw as much sh-t against the wall and use that which sticks in your closing arguments

Voila: Instant criminal, instead of beyond a reasonable doubt.

Look at the recent Dallas County exonorees (due to available DNA evidence). If the trends are consistent, this easily means that there are hundreds, if not thousands of people (for whom DNA evidence does not exist) incarcerated who are innocent.

Right Bill!

Posted by: albeed | May 28, 2011 11:20:43 PM

Do you support ending all self-dealt lawyer immunities, all of them, no exception, even legislative immunity if the legislature deviates from legislative standards of due care? The tort liability is not just fair, it will shrink the beast, and end the carelessness of the lawyer. Let each judge, prosecutor, and legislator carry personal liability insurance as everyone else has to. The original justification of Henry of Bratton was that the Sovereign speaks with the Voice of God, unlawful to do under the Establishment Clause, and a psychotic delusion. Where is Bratton, anyway? It is called Brittany today. This clown was also French.

If you do, then you can find a police expert to support you in saying all of the above abuses are outside the professional standard of due police care.

If there are 1000's of people falsely incarcerated, there are millions of criminals loosed on millions of poor people devastating in a wide swath of catastrophic victimization, when no criminal should have reached the age of 18.

Posted by: Supremacy Claus | May 28, 2011 11:34:52 PM

The count of 123 before D is a safety measure. Even if innocent of 3, we are still executing a bad guy with two other violent offenses.

Posted by: Supremacy Claus | May 28, 2011 11:37:15 PM


No government employee, i.e., Legislator, Judge, LE, DA, TSA Agent, anyone, should have absolute immunity when it comes to their oaths of upholding the Constitution of the US. Selected immunity may be appropriate for the senile and brain dead, i.e., the USSC, the Appellate Courts, Bill, Federalist, Kent and the DOJ, if it can be established that they are generally harmless and made a good faith error.

Of course, that is the fox watching the hen-house.

Posted by: albeed | May 28, 2011 11:47:55 PM


Let me properly be able to defend myself, my property and my family via the 2nd amendment. As an intelligent fellow, without numerous hurdles thrown in front of me by gun laws, I would forgoe the current extent of LE (A SWAT Team on every block).

Loughner, Columbine, Virginia Tech demonstrated how vulnerable we are by the "we must depend on government for our protection" crowd. The only thing LE does after the fact is provide a body bag.

However, there were other signs by the individuals who committed these crimes, if assistance from a mental health standpoint were provided and resources which may have been available except for the waste of the "lock them up and throw away the key crowd

I know Bill, that makes me a liberal, you apologist you.

I would rather consider myself an empiricist, under the direction of Twain and Mencken.

Posted by: albeed | May 29, 2011 12:20:35 AM

sounds kind of RETARDED to me! UNLESS they can use the victim's absent is the result of some action on the part of the defendant!

if the state and the court screwed the pooch and didnt' tell them. that's not the defendant's fault in fact i think in most states the defendant would draw ANOTHER charge if they were dumb enough to CONTACT THE VICTIIM!

plus of course this is not a complete rehearing with new evidence. defendant is gonna walk into court and hopefully so will the victim this time. (wonder if the defendant can demand sanctions against the victim if they fail to show up for a court hearing ---now that would be funny!)

then judge is simply going to announce the same sentnece that was imposed before. ANYTHING else would be a double jeopardy problem!

Posted by: rodsmith | May 29, 2011 3:22:29 AM

as for this idiotic statement from the court! How TWO-FACED can you be!

"The imposition of the original sentence is not comparable to an acquittal for double jeopardy purposes, and resentencing defendant with the possibility that his sentence may be increased is not inconsistent with either the history or the policies of the Double Jeopardy Clause. "The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be." Id. at 137."

They have no clue what they are talking about! This is exactly a double jeopardy problem! it's right in their own damn opinion!

"The Double Jeopardy Clause does not provide the defendant with the right to know at any specific moment in time what the exact limit of his punishment will turn out to be."

not sure how the retards figure this isn't a double jeopardy violation

they have ALREADY told him what his sentence is to be!

NOW they want to bring him in and TELL HIM AGAIN with possible a NEW result! sounds a hell of a lot like DOUBLE JEOPARDY to me!

Posted by: rodsmith | May 29, 2011 3:28:26 AM

Torts is to make whole the victim of a good faith error. If it can shown, that the defendant had knowledge of the error and did nothing about it, that is called, malice, and subjects the defendant to exemplary damages.

If an activity is inherently dangerous in its ordinary practice, then strict liability applies. No negligence need be shown, just harm. So if you make dynamite, and your factory wipes out the homes of the neighbors, strict liability applies. The dynamite maker has the burden to take every precaution to prevent harm to the neighbors.

Because the sole tool of the law is punishment, it is inherently harmful and dangerous in its ordinary practice. Strict liability would end government. So, professional standards of due care should apply, not strict liability. Let government regulate itself through the testimony of experts that a deviation took place.

Posted by: Supremacy Claus | May 29, 2011 5:09:55 AM

albeed --

Re: Your post at May 28, 2011 11:20:43 PM

I have to like you in spite of myself (and in spite of you). There are two reasons. First, when you want to be insulting, you're not snarky or smarmy or superior about it. You just come right out with it. This is, in its way, to your credit. Your directness speaks well of you, IMO.

Second, your summary of how convictions are obtained is a wonderfully honest presentation of what many of your allies here actually think, but are too PR-savvy to say out loud. They believe, with considerable good reason, that it would make them look, ummm, a little paranoid (or maybe more than a little), so they smolder in resentment but hold their tongues. Still, eventually the smoldering takes its toll, whereupon there erupts some ad hominem broadside. This doesn't persuade anyone, but it's not designed to. It's designed to make them feel better. Whether it actually does, I don't know. Probably in the short run it does. Everyone likes to let off steam every now and again.

The long run is a different matter. Holding onto resentment bespeaks a personality type unlikely to be helped by letting loose with the occasional "You're a Nazi"-style attack. The problems run deeper.

Anyway, as I was saying, I have to like you in spite of it all. I detect two appealing things in the subtext of your writing.

First, you have a strong libertarian streak. Libertarians are principled people -- unusually so, from my inside-the-Beltway perspective -- and they are, if for no other reason that than, refreshing. I am something of a failed libertarian myself. The model of human nature upon which libertarianism builds is off by just enough so that it just won't work. I know that statement is terribly generalized, but I'll leave it like that for right now.

Second, the tone of your writing here is cynical but not bitter -- an important distinction. A wise man once told me that, if you scratch the skin of a cynic, what you find underneath is a heartbroken idealist. That's more like what I think you are. You lack the arrogant, mean-spirited and crude edges of some of your ostensible pals here.

So I confess that I like you. Sorry!

Enjoy the rest of the weekend at your beach house.

Posted by: Bill Otis | May 29, 2011 10:38:14 AM


I admit also that I respect you because you are so consistent in your beliefs. I have just read the message above as I have been gone for a few days.

Yes, I consider myself a Libertarian more often than any other labeled group. Do not label me a liberal or Demo_rat in any way shape or form. I despise free-loaders and earned everything I have.

I also believe that conservatives should start seriously looking at the criminal laws that have been promulgated over the last several decades. When they will admit that the laws themselves and court interpretations have severely damaged liberty in this country, I will respect them more.

Many federal laws, obstruction of justice laws, resisting LE, sex-offender laws (the new Jim Crow), etc. are just mean and stupid and all it takes is for LE to lie to get a conviction, and yes LE lie all the time (The big blue front)

I also hate references to New York's Finest, New York's Bravest and New York's Strongest as it is perfect propaganda for public unions who have damaged this country beyond repair, not quite as much as Civil Service.

Take care.

Posted by: albeed | May 31, 2011 8:53:36 PM

Sounds like making our broken justice system even more broken by something like this! Come on!!!

Posted by: steveham | Nov 25, 2011 3:10:44 PM

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