The Oregon Supreme Court has agreed to hear a challenge to scientific evidence brought by JDL in State v. Sanchez-Alfonso.  The case involves allegations of intentional physical child abuse.  The state’s medical expert testified:

‘[Defendant] clearly caused [C's] injuries which caused his hospitalization * * * I do not believe this is the whole story. * * *[C] was physically abused by [defendant]. This medical diagnosis is based on [C's] physical exam on Friday May 13, accompanied by review of statements made by [defendant].’”

The case presents multiple issues.  First, is a diagnosis of intentional physical abuse, wherein the diagnosis is that the abuse was perpetrated by a specific individual, admissible scientific evidence under Brown and O’Key?  If such a diagnosis is improper, a second question is presented.  In a diagnosis where a specific individual is “diagnosed” as the perpetrator, can that diagnosis be stricken, or “blue lined” out by a reviewing court, rendering the remainder scientifically admissible?  Finally, can a diagnosis of intentional abuse perpetrated by a specific actor ever be deemed “harmless” error?

The Court of Appeals opinion, from which JDL sought review, can be found here.  JDL’s petition for review is here.  Oral argument is expected in June.

In my practice, I often represent people who have been accused of doing horrible, reprehensible acts.  I firmly believe that people act for what they think are good reasons.  For example, few among us would not kill another human to protect our own children.

In court, I am the advocate for my client.  My personal goal for each and every client is to be the best possible attorney — to be the attorney I would want to have representing me if I were in that particular Defendant’s seat. This can take many different forms and depends a lot on the specific case.  While one case might require a trial with effective cross-examination, another case might best be served with a negotiated resolution, with tact, with grace, with understanding  and sympathy for the damages caused to the victim.

Every negotiated resolution requires varying amounts of artistry, humanity, and sheer bluster.  And it is my experience that the vast majority of cases can be successfully resolved through negotiation.  The most talented and experienced district attorneys know that they do not have a monopoly on the truth.  They know that their case may depend on unreliable civilian witnesses — people who have never testified before and whose testimony while “true” or “honest” — may come across and be believed as “false” or “dishonest” by the jury.  They know that even the best cases for the State can be lost — sometimes  through the assertion of a legal defense such as “defense of self.”  It is this knowledge on both sides: that there exists a certain amount of uncertainty at trial, which drives negotiations.  The State does not want to risk losing.  Meanwhile, the particular defendant does not want to risk losing so badly that s/he becomes subject to a horrible sentence that could have been resolved with a plea deal.  Courts know this too, and if the court did not follow negotiations, then nobody would negotiate.

For those who simply do not understand what we do, I encourage a mental exercise:  Imagine what would a world without criminal defense attorneys and without jury trials would look like.  Anybody could make a complaint to the police, who would view themselves as more of an arbiter of truth than they already are.  Judges would be presented with only one side of a case.  Given that, what would the result be?  Maybe some justice in some cases.  But such a system would be rife with abuse and would be the basis of nothing but the worst form of tyranny.  This is what East Germany looked like before it collapsed.  This is how many states and governments worked, until a wave of push-back we see in the current “Arab spring” movement.  Any and all rivals could quickly be disposed of with a quick complaint to the right government ministry, which after a perfunctory “trial” would move that person out to a re-education camp.  Most Americans would recognize that system as so devoid of freedom we would reach for our arms and foment rebellion and cry, “Give me liberty or give me death!”  As Americans, when we talk about “our freedoms” on our most patriotic of holidays, we include the freedom from the tyranny of our own government as a right so basic — we don’t even have to discuss it.  And the last bastion against that tyranny is the criminal defense attorney who can appeal to a jury of peers, as a stop on the ultimate power of the government.  That is what I do.

Who among us is so pure and good and that we cannot imagine ever having to all upon a criminal defense attorney to assert our rights, or the rights of a loved one?  to plead out to our fellow citizens for sympathy, compassion, understanding and perhaps even mercy? Who hasn’t almost hit a bicyclist with their car?  Who hasn’t had a few too many drinks and done something they regret the next day?

Whatever happens, the consequences will be dealt with and life will go on.  I do my best to advocate for my clients and on the best of days — everybody walks away happy with the result.