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Andy Simrin

Andy Simrin’s Answers

5 total

  • Why can't obvious, yet unpreserved, "ineffective assistance of counsel" or "prosecutorial misconduct" be directly appealed?

    It just does not make sense that the ineffectiveness or the misconduct can not be directly appealed. You would think if it were obvious the appellate court might look at it even though no objections were made in a lower court. As a defendant how a...

    Andy’s Answer

    • Selected as best answer

    The short answer is that an appeal is for blaming what went wrong in a criminal case on the judge, while a post-conviction case is for blaming what went wrong on the lawyer(s).

    It's a question of subject matter jurisdiction. A court only has the power that is given to it by the constitution or the legislature that created it.

    In Oregon, the subject matter jurisdiction in a direct appeal is limited to a review of the legal rulings that were made by the trial judge. The Oregon Supreme Court is authorized to review the decisions by the Court of Appeals in most cases, and is authorized to directly review legal rulings by trial judges in limited cases where the appeal goes directly to the Supreme Court.

    An appeals court in Oregon does not have jurisdiction to decide whether the errors or omissions of counsel harmed a defendant's ability to get a fair trial. In Oregon, claims of constitutionally inadequate and ineffective assistance of counsel can only be raised in post-conviction proceedings. A post-conviction case is a trial-level case. If the post-conviction judge makes an incorrect legal ruling, that error can be corrected by appealing the post-conviction judgment.

    A person can challenge their conviction by appealing, by seeking post-conviction relief, or both, but a post-conviction case cannot be pursued while the direct appeal is pending.

    I am an Oregon attorney, and my practice focuses on appeals and post-conviction cases. For more information about those two different kinds of cases, please visit my website at

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  • What should I do if my direct appeal attorney only wishes to argue 4 claims yet 3 add'l. claims are meritable in my opinion?

    My direct appeal attorney has picked up 4 arguements that she feels have merit. However, my trial attorney feels there are 3 other issues, besides the 4 mentioned, that are meritable and even argued them at trial. I do not want to lose any meritab...

    Andy’s Answer

    An appeals attorney does have the responsibility for identifying what he or she believes to be the meritorious issues for appeal. However, attorneys (like everyone else) are not infallible, and it is indeed possible for an experienced appellate attorney to incorrectly dismiss a client's desired issue as non-meritorious. The Balfour system only comes into play when the attorney concludes that there is no issue of merit, and that is not what you have described. If the attorney has filed a merit brief that does not include all issues that the client wants briefed, then the client should ask the lawyer to file a Motion for Leave to File Pro Se Supplemental Brief. The Oregon appellate courts are very generous in ensuring that a litigant have the opportunity to have their day in court and brief the issues that he or she wants presented to the court. During my 20 years of appellate work in Oregon (nearly 1300 appeals), I have filed numerous motions asking for permission for clients to file pro se supplemental briefs, so that they can have the opportunity for themselves to brief issues that I have evaluated and determined have no realistic chance for success on appeal. The Oregon Court of Appeals has never denied a Motion for Leave to File a Pro Se Supplemental Brief that I have filed. On the other hand, an experienced appeals attorney is likely to be far more adept at identifying potential issues of merit for appeal than the client. I am aware of only one case in which a pro se supplemental brief garnered a reversal from the Oregon Court of Appeals. For more information about the Oregon Appeals system, please visit my website at

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  • How can a state appeals court overrule the same state supreme court?

    The Oregon State Supreme court ruled in 1959 and it has never been overturned that the Attorney General for the state of Oregon can not prosecute nor investigate any violation of the criminal statutes of Oregon without a mandate or directive from ...

    Andy’s Answer

    The Oregon Court of Appeals cannot overrule a decision by the Oregon Supreme Court, but it can reach a seemingly inconsistent outcome by distinguishing the decision. The distinction identified by the intermediate court may or may not turn out to be correct. If the Oregon Supreme Court determines that the Court of Appeals got it wrong, the Supreme Court may allow review of the case and reverse the decision by the Court of Appeals. The Supreme Court may also allow review of a case and explain why the Court of Appeals got it right. Whenever there is a difference of opinion between the Court of Appeals and the Supreme Court on precisely the same legal issue, the Supreme Court's opinion is controlling.

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  • My son is in prison and has filed an appeal with the 9th district court in oregon. He was denied.

    He now has to file an argument,What does he do? This appeal was to take off a gun enhancement charge.

    Andy’s Answer

    Because this is a criminal case in the federal court system, he should contact the federal public defender if he is unable to afford to hire a lawyer. The phone number for the federal public defender's office in Portland, Oregon is (503) 326-2123. If he can retain an attorney, or if someone is able and willing to retain counsel for him, I am available to accept his case. My practice is limited to criminal appeals and post-conviction cases, and my office is located in Portland. For more information, please take a look at my website at

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  • I had oral argument today. I checked It says "case submitted" what does that mean? how long until I know the decision?


    Andy’s Answer

    I am an appeals attorney and former research attorney for an appeals court judge in Oregon. After oral argument in an appellate case, the judges will take the case under advisement and issue their decision at a later date. The first step in the decision process after oral argument is for the judges to meet in conference and decide on a projected outcome for the case. Depending on the appellate rules of your jurisdiction, the court could affirm the judgment of the lower court without publishing an opinion to explain its decision, or the judges could decide to publish an opinion that explains why they are reversing or affirming the judgment of the lower court. If the judges decide to publish an opinion, the presiding judge will assign the case to one of the judges on the panel to draft a proposed opinion. The judges on the panel meet periodically to review the draft proposed opinions written by the assigned judges. Once the judges of the appeals court agree on the analysis (or if one decides to write a dissent), the opinion is released publicly, and that is the decision of the court. If the court affirms without opinion, the court could issue its decision within two or three weeks after oral argument. If the court publishes an opinion in a case, it may take several months or even longer for the decision to be issued. One case of mine took 20 months for a decision to be issued after oral argument, but that was highly unusual. There is generally no way to predict how long it will take the appeals court to decide a case after oral argument. A case may be submitted to the appeals court without the attorneys presenting oral argument, and the case is "submitted on the briefs." If oral argument is presented, the case is considered "submitted" to the court for its decision once the oral argument is conducted.

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