Local defense lawyers are grinning over a recent Multnomah County circuit court judge's ruling that a state law against running from police violates the Oregon Constitution.
The decision won't set a legal precedent for other cases unless prosecutors appeal and lose. Their decision on whether to appeal has not been made, but if an appellate court upheld the ruling, police statewide could lose the authority to charge suspects fleeing on foot with escape.
This case began June 23, when Portland police spotted 18-year-old Joseph Tyler Thompson, who had a warrant out for his arrest on a misdemeanor harassment charge, and told him to stop. Instead, Thompson ran.
Officers zapped Thompson with a Taser, placed him under arrest and charged him with escape in the third degree, a Class A misdemeanor punishable by as much as a year in jail and a fine of up to $6,250.
That's when Thompson's public defender, Bear Wilner-Nugent, decided to try a novel pretrial tactic to sideswipe the charge.
In criminal court, jurors must decide whether the facts in a case match the elements of an offense. In the case of escape in the third degree, they must decide whether the defendant knowingly escaped from custody (simply being told "you're under arrest" can qualify as an arrest). But Wilner-Nugent argued that the jurors would also have to decide whether the arrest of his client was legal—a matter of law, not fact.
Because the Oregon Constitution requires all matters of law to be decided by a judge—not a jury, Wilmer-Nugent contended—the escape statute presented a "legal double bind" and was unconstitutional. On Dec. 22, Multnomah County Circuit Court Judge Jan Wyers agreed with that reasoning.
Senior Multnomah County Deputy District Attorney Fred Lenzer says his office is mulling an appeal of Wyers' ruling, a decision that must be made by Jan. 22.