"Judicial Opinions Serve Many Functions, and One of Those Is Journalistic"

"Our opinions are dispatches from the edge—moments, recounted for posterity, of how Oregon’s laws ... and the lives of its citizens, intersect."


A nice formulation in a concurring opinion by Oregon Court of Appeals Judge Bronson James, in a case about the Oregon crime of "interfering with a peace officer" (State v. Bledsoe, decided earlier this month).

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  1. …except, it shouldn’t be? He’s a judge, not a reporter, a cultural historian, or a social worker, and he is almost certainly unqualified to do those jobs. His thinly-disguised accusations of racism and classism do not have anything to do with the case or the law, and his own concurrence freely admits that.

    The case is a sad one – the woman spent 6 months in jail for a petty crime with a maximum sentence of 30 days. But she spent that time in jail because her lawyer – the government appointed defense attorney – kept delaying the trial.

    A better topic to complain about would have been about the injustice of bad public defenders who actions actively hurt the people they are supposedly there to help.
    An even better option would have been to stick to the case in the opinion, and write an article for a journal – or maybe a legal blog.

    1. The case is a sad one – the woman spent 6 months in jail for a petty crime with a maximum sentence of 30 days. But she spent that time in jail because her lawyer – the government appointed defense attorney – kept delaying the trial.

      A better topic to complain about would have been about the injustice of bad public defenders who actions actively hurt the people they are supposedly there to help.

      That’s not right. First, while the fare-beating offense only had a 30-day maximum, the interfering with a police officer offense was a 364-day maximum.

      Second, while some public defenders may be dilatory, this one “kept delaying the trial” because she refused to cooperate with, or even meet with, him.

      1. True about the IPO sentence length. I was looking more at the initial offence.

        But her lawyer kept claiming she had mental problems, including demanding repeated evaluations AFTER she had already been evaluated by a doctor as perfectly sane and competent – something she went to the hospital for a mere 4 weeks into her 27 weeks in jail.
        Yes, she was uncooperative, but I don’t see how that’s a good basis for her own lawyer to deliberately keep her in jail for longer.

        Surely uncooperative people are not regularly kept in jail like this by their own public defenders? It seems like something that wouldn’t be that uncommon. Unfortunately, a quick internet search mostly comes back with results about lawyers refusing clients.

        1. Sadly, legal ethics now permit lawyers to ignore the wishes of their clients if the lawyer determines the client mentally ill…

          I’m somewhat surprised the prosecutor didn’t file a motion to dismiss for “time served.”

      2. What is the ‘interfering’ part about.

        Contempt of cop, sure, but no law on the books for that.
        Skipping a fare, if proved, there is a law.
        Disobeying a lawful order (order by the cop to stop), works just fine, assuming that the cop issued a lawful order.
        So this leaves me wondering, since they did not use the most direct law, was the order to stop lawful?

    2. If you look at his summary of facts, her refusal to cooperate with what began as a failure to stop when asked for a subway ticket led to her being imprisoned for six months without trial. Her own defense lawyer tried to have her committed as insane, greatly increasing her time in pretrial detention.

      The comcurrence points out that under the Supreme Court’s interpretation, the “passive resistence” defence to failing to obey a police order is defeated by movement, which is active. It points out that since nobody can stand rigidly like a statue for any long period, the defense has been interpreted into practical non-existence.

      He argued that this case was the paradigmatic case of what ought to be “passive resistence.,” and yet not only was her defense interpreted away from her in a manner unrecognizable to an ordinary person, but it resulted in her being incarerated for six months without trial for what should have been a minor misdemeanor.

      This is something, he says, that it is the business of courts to notice. Even when the legislature and higher courts force a result, lower courts can at least point out the consequences to ordinary people, and ask the higher courts, legislature, amd the public if this is the result they really want.

      This is what he is describing as their “journalistic function.”

      I agree.

      Not only the right of judges to sometimes point out that a result follows the law, but “justice, not so much.” Sometimes it is their responsibility.

      1. If the judge has criticism of the majority decision, then his dissent/concurrence is a great place for his arguments.
        If the judge has criticism of the law, it seems inappropriate to put it here. Again, he has many other forums to publish his opinions – rather than using the government for his personal purposes.
        If the judge has criticisms about society or policing in general, I do not see how anything could make it appropriate for him to put those into his opinion document.

        As to the ruling in this case, let’s play the same game in the other direction. Instead of bringing up the absurd case of IPO being ‘any movement’, what about the other end of the spectrum – a police officer asks someone to stop and they immediately jump in a car and speed away. Or begins sprinting away at top speed. Or begins walking away faster.

        At which point does to effort to avoid being stopped/arrested become ‘active’? Maybe it’s something a reasonable person (or 12) would need to decide.

        I think the bigger problem is that Oregon decided to carve out an odd exception to the requirement to obey a police officers “lawful orders” under certain circumstances. THAT is what I consider the problematic part of this law.

        1. This is not a purely personal purpose. It is part of the judge’s government function.

          A judge is obligated to strictly follow the law and has limited power to set if aside or override it to reach what the judge considers a just result. But judges have no onligation to like it. And every now and then, it is completely appropriate for judges to point out their view that the law is leading to unjust results.

          A classi.lc example is Perkins v. North Carolina, in which a federal judge in 1964 upheld a 20-30 year sentence for consensual sodomy, including the disparity in sentencing because his accomplice got “only” 5-7 years. He then ended his opinion by asking why, exactly, consensual homosexual acts get a higher maximum prison than second degree murder, robbery, and other violent felonies, and suggesting the legislature reconsider whether it really merited life imprisonment. The legislature responded by quietly reducing the maximum sentence to 10 years.

          This is something appropriate for judges to do occassionally. In both this case and the Perkins case, the judge reached the legally correct result, then asked the legislature to consider whether the legally correct result is really the right one. Judges opinions matter. They see what’s going on practice. They may know more than a private citizen. It is appropriate for legislatures to consider what they have to say.


          1. If the judge were pointing out that IPO or free-riding had an unreasonably harsh punishment, even if just in comparison to other crimes, I wouldn’t have a problem with that.
            If the judge were complaining that the IPO statute is vague, that’s right on topic! Go for it!

            But instead, this judge took several pages to make some questionable complaints about the arrest and charging rates by race and class, and imply that this was because someone (unspecified as to whom) is racist and classist.
            These sorts of general complaints, even if accurate, are what I object to. This sort of op-ed “journalism” is something I do not think belongs is a ruling by the Court.

            1. It seems to me that it’s a reasonable argument to say that the lime between whether a suspect is resisting or merely cooperating a little too slowly is a subjective judgment call with no clear boundaries, and that this makes it an “attitude” crime that can be influenced by biases.

              I also think it’s a reasonable argument that a crime punishable by a year in jail ought to be limited to more objective, specifically defined criteria then this crime has and the general case ought to deserve only a lower sentence, and further, that the defense of “passive resistance” should be defined in a clearer and less limited way permitting less subjectivity and greater uniformity in enforcement.

  2. A bit OT, but I hate the term “peace officer”. These people carry guns and tasers and billy clubs, and use violence to keep people in line. It’s a bit like calling troops fighting in a shooting war “peacekeepers”.

    The Bobbies in Metropolitan London are “peace officers”. At least under current rules of engagement, our police are not and should never be referred to as that in any legal documents.

    1. Imagine the set of balls on the judge that lets you get away with that defense.

    2. In many of these locales, they are compliance officers or tax collectors.

  3. A worthy goal in any reform of criminal law would be to cut way back on all laws that depend so much on the subjective assessment of officers in the field. Resisting arrest, IPO, vagrancy, disturbing the peach, obstruction, …

    IMO those laws should be applicable only when there is a charge of some other crime. And if the other charge is dropped, so must the subjective charge be dropped also.

    Overcriminalization IMO is a major contributor to emotional, unnecessary contacts between police and citizens, that lead to situations like the murder of George Floyd.

    1. But I don’t want my peaches disturbed!

      1. But yes, I agree with your point. Still, for most of these “contempt of cop” offenses, the arrest is the point more than the conviction, so saying that the subjective charge must be dropped if the underlying offense is won’t do much good.

  4. The concurrence’s lengthier summary of the facts indicated that at least a couple of months of the defendant’s 6-month pre-trial detention was due to the defense lawyer. The defense lawyer interpreted the defendent’s wish not to cooperate as insanity, had the defendant evaluated, staying in jail until the evaluation, staying in jail between the evaluation and the hearing, staying in jail while the defense lawyer tried to appeal the results.

    In this case, a defense lawyer should have some sense of the practical interests of a client like this, and go outside the formal school idea of fight to have your client not found “guilty” by any means no matter how much punishment this institutional wish you have inflicts on your client.

    When the cliemt stops caring what the institution thinks of her, you have to honor and work with that rather than helping the institution punish the client for that yet more. That’s what representing the client, not the institution, means.

  5. Big federal case in Philly addressed this subject. David, can you find it?

  6. “The ballpark cost in Ms. Bledsoe’s case would be, very roughly, $55,608, or a little over 22,000 TriMet tickets.”

    That does need to be said….

  7. Arguably related: The Washington state supreme court has ruled that a YouTube blogger with 18,000 followers is not “news media” for the purpose of being entitled to make FOIA requests.


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