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Rojem v. State,
2006 OK CR 7 (Okl.Cr., February 24, 2006): DEATH PENALTY VACATED! Rojem had been through the state and federal appellate process for 20 years before finally being granted habeas relief by the feds. This opinion deals with errors in the re-sentencing hearing and COCA vacates and remands yet again on the basis of I) biased jurors who should have been excused for cause (a former jailer, a person who had "intense" discussions about the case and was unsure he could set them aside, and a woman whose young daughter was victimized by her husband and the DA put away); and II) the trial court's discovery sanction of excluding two defense witnesses. The Court appears to put teeth in the legal principle that questions or doubts regarding juror impartiality must be resolved in favor of the accused. Plus, Rojem was able to point to some prejudice in the case because a juror who actually sat was unacceptable to the defense. NOTE: the Court also addressed the issue of whether Rojem should be able to introduce DNA results of hairs in the event such results are exculpatory but appeared to hold that such guilt/innocence facts are not proper in a sentencing hearing. This view appears in-line with the Supreme Court's opinion in Oregon v. Guzek, decided two days prior to Rojem.
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State v. Muldowny,
871 So.2d 911 (Fla. App. 2004): Florida DUI case where the defendant sought through discovery "to inspect and copy and potentially use at trial or hearing the operator's manuals, maintenance manuals, and schematics of the intoxilyzer." The Court held that the defendant is entitled to these things and since the State refused to provide them, suppression of the test results was an appropriate sanction. Although the opinion does not mention the computer source code specifically, I think it is encompassed by the request. I do not know how Oklahoma courts have dealt with such discovery requests but I think a powerful argument could be made that an accused in Oklahoma is entitled to these things. This puts a lot of pressure on the maker of the machine because some of the information requested is propriety trade secrets that they would be loathe to divulge.
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Gilbert Postelle v. The District Court of Oklahoma County,
No. MA-2006-0189 (Okl.Cr., April 18, 2006) (unpublished order): Discovery prior to PH. This is the unpublished Order dealing with discovery issues at preliminary hearings. The Oklahoma County Public Defender's Office faxed it to me so you can disregard the fax footer on the pages. In this Order, the Court reaffirmed that discovery orders by the District Court are not immediately appealable, and audio/video recordings are not encompassed as law enforcement reports under LaFortune for purposes of production prior to the preliminary hearing. Thus, it seems that the written reports are the only statements we get prior to PH.
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United States v. Red Elk,
No. 05-6336 (10th Cir., June 19, 2006) (Unpublished): Discovery: I watched Susan Otto argue this case in Denver and it was a real treat. The Government waited until seven days prior to trial to give notice to the defense that it intended to use expert testimony. The defense objected and moved to exclude the evidence or for a continuance. The District Court ordered a portion of the evidence excluded and the Government proceeded via interlocutory appeal. At oral argument, the Government had absolutely no excuse and the panel says as much in this opinion. District Court affirmed. This unpublished Order is a good primer on Rule 16/Discovery disputes in federal courts.
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United States v. Martinez,
No. 04-4179 (10th Cir., July 26, 2006) (Published): Discovery: Rule 16 discovery issue arose during trial when two cops interviewed client but only one made a written report. The panel held that a mistrial was not an appropriate remedy in the case (shocker).
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United States v. Nevels,
No. 06-1240 (10th Cir., June 6, 2007) (Published): 1. Discovery; 2. Federal Sentencing Guidelines; Juvenile Convictions: Nevels shot and killed an intruder in his house in Denver, Colorado, and called 911 to report it. Although the State charged him with First Degree Murder and Possession of Firearms by a Felon, these charges were dismissed when the feds picked up the case and charged Nevels with two Possession counts as an Armed Career Criminal since he had two prior juvenile delinquency adjudications and one adult felony conviction. After a four-day trial he was convicted and sentenced to 300 months. The panel AFFIRMED over his claims of: 1) the Government's endorsement of a witness three days prior to trial; 2) testimony from the Government's crime-scene reconstruction expert (no plain error since Nevels asserted self-defense at trial); and 3) the Government's use of his juvenile record to enhance under the ACCA (good discussion of the mode of analysis governing this issue). NOTE: The panel discussion of pre-trial discovery in federal criminal cases is worth a look so you can see just how little the Government must produce to the defense.
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Hamill v. Powers,
2007 OK CR 26 (June 28, 2007): Discovery: Hamill was charged in Bryan County with First Degree Rape. In this Mandamus proceeding, Hamill petitioned the Court to order the Hon. Rocky L. Powers to permit a psychological evaluation of the complaining witness by an expert chosen by the defense. WRIT GRANTED BY A UNANIMOUS COURT(!!!) The Court stated: "In cases such as this one, where the complainant's mental state bears directly on an essential element of the offense, and the State intends to offer its own expert testimony on the issue, due process requires that the accused be afforded the opportunity for pretrial investigation of substantially similar quality." This is a very progressive opinion in which the Court joined other jurisdictions which have held that the trial court has inherent authority to order a psychological or psychiatric evaluation of the complaining witness in a criminal prosecution. The Court construed the Oklahoma Discovery Code to grant such authority to the trial courts and suggested that if the complaining witness refuses the defense evaluation then the trial court may preclude the State from using its evaluation.
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United States v. Wright,
No. 06-3063 (10th Cir., November 6, 2007) (Published): 1) Conspiracy; 2) Discovery; and 3) Jurors: Wright went to jury trial on a charge of Conspiracy to Distribute and to Possess with Intent to Distribute more than 50 Grams of Cocaine and was sentenced to 210 months. Wright and others were basically running a crack house and the cops conducted some controlled buys and obtained a search warrant for the house. Wright challenged the sufficiency of the evidence to prove the conspiracy. The panel AFFIRMED, penning an opinion with a clarification of the "buyer-seller relationship" principle that applies to large conspiracies (although it did not help Wright in this case). There is also a decent discussion about the production of the notes of the case agent after she referred to them on the stand during trial. The panel found no Jencks Act violation and no Brady violation. Finally, after the trial was over, the jury foreman appeared to be very upset and approached defense counsel in the hallway. The trial judge saw this and squelched any contact pursuant to a local rule prohibiting counsel from contacting jurors without court approval. The trial judge met with the juror in chambers and subsequent denied the defense motion to contact the juror on the basis that it would not lead to any evidence admissible under Rule 606(b). The spineless panel held this was not an abuse of discretion, noting somewhat cattily that defense counsel did not request a record to be made of the judge's interview.
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United States v. Nacchio
No. 07-1311 (10th Cir., March 17, 2008) (Published): Discovery: This is an epic, 74-page opinion reversing the convictions of Joseph Nacchio, the former CEO of Qwest Communications International, Inc., of 19 counts of insider trading, although the panel split 2-1, with Judges Kelly and McConnell in the majority and Judge Holmes dissenting. The basis for the reversal was the order of the District Court refusing to allow Nacchio to present an expert witness. The District Court found the disclosures by the defense under Rule 16 to be inadequate and constituted an abuse of discretion and a denial of the right of the defendant to present a defense. NOTE: The majority opinion is a pretty stern rebuke of the District Court which was obviously hostile to the defense. The remand came with instructions that the case be assigned to a different trial judge.
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