Not every attorney error requires reversal

Yesterday, the Oregon Court of Appeals handed down decisions in two cases involving arguments that the criminal defense lawyer at trial had made an error serious enough to require that the underlying convictions be overturned. The cases had dramatically different results.

In the first case, State v. Lowell, the court overturned Mr. Lowell's conviction for Rape in the Third Degree (commonly referred to as statutory rape) for the reason that the investigating detective, in response to questions put to him by the prosecution, by the way, testified that he felt the underage victim was telling the truth about her accusations and that the defendant in his interview concerning the charges was being untruthful with him in his denial of engaging in sexual intercourse with the girl.

It has long been axiomatic under Oregon law that a trial witness is prohibited from commenting on the credibility, or lack thereof, of another witness. Even though the defense attorney at trial did not object to this testimony, the Court of Appeals ruled that its admission at trial was "plain error;" Error so obvious and prejudicial that it required reversal even in the absence of the normally required objection by trial counsel. Mr. Lowell was awarded a new trial based not on his defense lawyer's apparent error at not objecting to the testimony in question, but rather the trial court's failure to prevent the admission of the testimony.

In the second case, State v. Dries, The court was asked to overturn Mr. Dries' conviction for theft in the first degree - by way of receiving stolen property. Oregon law since 1973 has required that for a person to be convicted of theft by receiving, they must actually know or have a belief that the property they are receiving is stolen.

In the Dries' case, the trial judge gave an erroneous instruction to the jury that allowed the jury to convict him if it found he knew or should have known, that the property in issue was stolen. The language of the jury instruction would allow conviction based not on what Mr. Dries himself knew or believed (what the law unquestionably requires) but rather on what someone else (i.e. a reasonable person) should have known under the circumstances.

In Mr. Dries' case, unlike in Mr. Lowell's, Mr. Dries' attorney even objected to the instruction given by the judge. The attorney even asked the judge to instruct the jury that they should convict only if they found either Mr. Dries knew, or believed, that the property had been stolen.

Despite the fact that his lawyer objected to the instruction given, and even requested a more accurate instruction, the court of appeals refused to reverse Mr. Dries' conviction on the theory that his lawyer's objection, while it requested the proper instruction, did so for an imprecise reason. Quite simply, Mr. Dries' lawyer was not specific enough in giving the court a reason to give the jury instruction which the law actually required.

So, one person finds his appeal successful and is awarded a new trial, despite the fact that he and his lawyer never objected to the evidence upon which his reversal was founded. Another unluckier soul, finds his conviction based on an erroneous jury instruction, upheld simply because the court of appeals felt his lawyer wasn't precise enough in his reasons for asking the judge only what established Oregon law since 1973 required.

Justice they say is blind. In Oregon at least it also appears to be arbitrary. Depending not only on the skill, or lack thereof, of the defense attorney, but of the panel of judges one draws on appeal. All the more reason to make sure that if you are charged with a criminal offense in Oregon you retain counsel with the experience necessary to guard against your appeal coming down to a few rolls of the judicial bones.


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