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| Victories 2006 |
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CINDY VIOL,
OCDW 12.18.06, OK County PD, scored a huge victory in a ten count Rape jury trial recently before out-going Judge Malcolm Savage. Sounds like a hard-fought case. Good job, Cindy!
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S. GAIL GUNNING,
OCDW 12.11.06, OIDS, scored a nice win for James G. Willeford in the guilty plea case reported above. It is always odd when the Court grants relief in a guilty plea case by modifying the sentence rather than allowing the defendant to withdraw the plea. Another good win for Gail!
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STEVEN M. PRESSON,
OCDW 12.11.06, Norman, provided us with a good published opinion on the multiple punishment issue in the Carl Tyrone Lewis case and, more important to his client, cut 15 years of the sentence. Super job, Steve!
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DAVID SLANE,
OCDW 12.11.06, OKC, walked a client on a charge of misdemeanor Obstructing an Officer last week in Oklahoma County before the Hon. Glenn Jones.
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PAULA J. ALFRED,
OCDW 11.27.06, Tulsa PD, secured a re-sentencing for Christopher Cornell Roy in the reported decision above. This is another good win for Paula, and particularly appropriate since she is the lawyer who got the ball rolling on this issue in the Anderson case. Terrific work, Paula!
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JAMES L. HANKINS,
OCDW 11.27.06, OKC, helped out Mr. Terrill on a re-sentencing in his case. The 85% rule continues to be a very good appellate weapon in the wake of Anderson, although navigating the vagaries of plain error is sometimes a challenge.
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WILLIAM (BILL) EARLEY,
OCDW 11.20.06, OKC Assistant Federal Public Defender, won an acquittal recently on a two count indictment charging his client with Assault on a Federal Officer (FBI Agent) and Attempting to Escape from Arrest. I do not have many details on this case, but sounds like another super win for the FPD!
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BARRY DERRYBERRY,
OCDW 11.06.06, FPD in Tulsa, won a pleasant victory for Amber Hopson in federal court, releasing her from onerous conditions of probation. Another win for Barry D.!
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DUI MADNESS
There has been some fine advocacy in the DUI/blood test area lately. In alphabetical order:
DANNY L. LITTLEFIELD, Jr., Pryor, represented a client charged with DUI Manslaughter. His client's blood was drawn by a paramedic. Danny challenged the blood draw as not authorized by statute. He found that the Board of Tests passed an "action" in 2001 that authorized paramedics to withdraw blood, but for some reason the Board failed to follow through with the rule-making process by publishing the action in the Oklahoma Register or sending a certified copy to the Secretary of State. The results? Judge Goodpaster in Mayes County suppressed the blood evidence (a .12).
CHRISTINA MIZIRL, OKC, won an acquittal last Thursday, November 2, 2006, in Oklahoma County by creating a reasonable doubt that her client was driving the car involved in the wreck---even though her client apparently told the police that he was driving(!!)
MIKE O'BRIEN, OKC, won an outright dismissal of a DUI in OKC Municipal Court last week. Client was under age 21 and had the odor of alcohol on his person at the scene of a wreck. BAC was .02. Mike won by arguing that City Ordinances do not have a "Youth DUI" provision, therefore there is no crime.
CHARLES & JEFF SIFERS, OKC, share some of their fine advocacy in recent cases. The details of these cases were provided to me by Charles himself and I think have some good tips and lessons on how to aggressively defend DUI cases (from one of the very best):
Fun in Municipal Court: Charles was hired by two clients in separate DUI cases in Bartlesville Municipal Court (a court not of record) earlier this year. One client was a first-time offender from Texas. The other client was a local with a class B CDL and a previous non-alcohol felony conviction. The Municipal Court in Bartlesville does not have a prosecutor. The arresting officer simply testifies before the Judge and acts as a de facto City Attorney. The judge informed Charles, almost proudly, that there was no plea bargaining in his court on DUI's; and since there was no chance of jail time, the options were to plea to the charge and receive a fine or have a bench trial. Charles opted for a bench trial in both cases. As you might expect, the trials proceeded in a somewhat different manner regarding the rules of evidence and the burden of proof like one would expect say, in a federal courtroom. Charles lost both cases.
What to do? File an appeal in the District Court and set them for trial. This action forced an actual lawyer to represent the City who moved ex parte to have the appeals stricken and called Charles, complaining about the appeals. Seems such things are never done in that neck of the woods. Charles informed the City Attorney that he was not going to settle for DUI convictions for his clients. Two weeks ago, Charles received a letter from the City Attorney offering a proposed J & S for these appeals that showed the trials had been done, a finding of not guilty to the DUI occurred, and a finding of guilt to Reckless Driving with no probation, etc. Both clients accepted. As for the license revocation administrative hearings, Charles tried both of them, winning the hearing on the client with the CDL and losing the other hearing, but securing the work permit.
Driver's License Checkpoints: About a year ago, a prior client was stopped at a "DL checkpoint" in south OKC. The client (wisely) hired Charles again. Charles won the District Court appeal of his license revocation. Judge Croy stopped just short of ruling the roadblock unconstitutional in his nine-page written opinion, but he did rule that the client's refusal was coerced and set aside the revocation of the license. What to do in the criminal case? Charles filed a motion to dismiss and to suppress the refusal in the criminal case based upon collateral estoppal/issue preclusion, using the Order and the transcript of the license appeal. Charles also filed an alternative motion to dismiss, arguing the unconstitutional seizure in the roadblock, based upon the evidence contained in this Driver's License Appeal transcript.
The criminal case ended up before Judge Glen Jones. The ADA (of course) did not respond in time and argued that he had not had sufficient time to respond to the motions. Judge Jones permitted briefing on these motions and gave the ADA time to file a Response Brief. Jeff Sifers (recently minted lawyer) drafted the Reply and argued the motions before Judge Jones the week before last. At the end of his verbal ruling which took close to an hour, Judge Jones (following much of Jeff's arguments) granted the alternative motion to dismiss. The bottom line: license returned, criminal case dismissed, prosecutor livid.
The Fine Print: Also, two weeks ago, Charles appeared before Judge Gray in Oklahoma County representing a client charged with a second felony DUI. Charles noticed that the Second Page listed two previous felony DUI convictions dated May 30, 1996. Charles moved to dismiss the case because the client could NOT legally be convicted within 10 years of his previous conviction (this argument, based upon a careful reading of the statutes, has been highlighted in the pages of the OCDW thanks to Charles). The State, represented by the same ADA who was defeated in the DL checkpoint case above, wanted to brief the issue. Judge Gray announced that the State "was wrong on the law" and ruled that the case should only be filed as a misdemeanor. She then gave the State the opportunity to amend the existing case to a misdemeanor OR re-file as a misdemeanor. Charles objected and said that any amendment would still retain the felony case number(!) Judge Gray agreed and dismissed the case, telling the State that if it still wanted to pursue the case, it had to re-file it under a misdemeanor case number.
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JAMES DENNIS,
(OCDW 10.30.06) OIDS in Sapulpa, won an acquittal in a case with peculiar facts. Get this: the client caught a thief trying to siphon gas out of his car, at night, in the client's driveway. Client fired a warning shot with a .410 shotgun and a second shot a little closer that caught thief in the pattern with some pellets in the backside. The prosecutor, Pamela Hammers in Creek County, declined to charge the thief and the accomplice, but charged the client with shooting with intent to injure(!?) James ran into some judicial hostility from Judge Douglas Golden but prevailed anyway. Creekmore Wallace reported that he saw a little bit of the testimony, as well as jurors chewing and spitting tobacco who were very disinclined to convict under the circumstances. Terrific advocacy, James!
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MARNA FRANKLIN,
(OCDW 10.30.06), Oklahoma County PD, won a NG in a Murder I case in Oklahoma County before Judge Black last week. I do not have many details, and client is still on the hot seat for a possession of firearm AFCF, but he is out of the woods on the principal charge thanks to Marna's tenacious advocacy. Way to go, Marna!
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ALECIA FELTON GEORGE,
(OCDW 10.30.06), OKC, won a re-sentencing for Daniel Allen Moore . Quite a significant development since Moore received LWOP by the jury. Maybe he will fare better on re-sentencing, and if he does, it will be thanks to Alecia. Good job, Alecia!
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JAMES L. HANKINS,
(OCDW 10.30.06), OKC, won a remand for an evidentiary hearing in the Hammon case out of the Tenth Circuit. Published wins in the circuit are an (increasingly) rare treat and Glen Hammon really deserves his day in court where I think he will win on the merits.
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ANDREA D. MILLER,
(OCDW 10.30.06), Oklahoma County PD, gave us a good, albeit unpublished case, Merrick v. State, to use in child porn cases where the State prints out images and charges each image as a separate count. The Court in Merrick held that the statute does not allow this. Very nice work (again), Andrea!
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STEVE STICE,
(OCDW 10.30.06), Norman, represented a client charged with misdemeanor "threatening a violent act." Steve convinced Judge Gaston that the statute was unconstitutionally vague(!) Case dismissed and the State will not appeal. Complete victory for the client. Good job, Steve!
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PAUL A. "TONY" LACY,
(OCDW 10.16.06), Federal Public Defender (W.D. in OKC), last Wednesday, October 11, 2006, put the government to the test and did not even have to wait for the jury to acquit his client because the judge did it for him(!) Tony's client, a retired Deputy United States Marshal, was charged by Indictment with cockfighting in Indian Country. The U.S. Attorney's Office for the Western District recused, as did the judges, and Judge Ronald White from Muskogee was assigned the case. At the conclusion of the government's evidence, Judge White granted Paul's Motion for Judgment of Acquittal. Tony reports that Judge White gave his client a fair trial and made the proceedings pleasant for everyone, including the jury. The government's case began to unravel the week before trial when one of the government's witnesses recanted the identification of the client. That count was dismissed. By the time of trial, the government's case fell apart further when witnesses did not testify in conformity with their interview reports and the government had no other direct evidence of the client's involvement in the dastardly crime of cockfighting. Way to go, Tony! NOTE: This is the THIRD federal jury trial in a row that Tony has won either by outright acquittal or Rule 29 Motion(!!!) We need a name for that. In hockey it is called a hat trick, but I do not know what to call it in the world of criminal defense. Any ideas?
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STEVEN N. PRESSON,
(OCDW 10.16.06), Norman, made sure that the Sixth Amendment rights of Jesse Allen Cheshire were fully protected, even though Judge Driesel did not. Nice work once again, Steve!
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ROBERT L. WYATT, IV, AND GLOYD MCCOY,
(OCDW 10.16.06), OKC, won a dismissal of a 14-count federal indictment for receipt, distribution and possession of child porn. The dismissal came as a result of an enterprising suppression issue. The search originated in Virginia (search of AOL accounts) and extended to Oklahoma based upon the Virginia search. In a quirky twist of fate for the client, a state court judge apparently issued the search warrant because the full-time federal magistrates were attending a conference. This is allowed under federal law, but the magistrate must be qualified and must be sworn as a part-time magistrate. This was not done, Bob and Gloyd, caught it, and the government was left with a void search warrant (the magistrate had no jurisdiction to issue the warrant). Sharp lawyering!
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JAMES L. HANKINS,
(OCDW 10.09.06) OKC, secured the new trial for Wesley Wayne Dodson up in Enid. In sex cases involving children, always look for vouching issues if you are doing the appeal since this is often a fruitful appellate issue. Many times, cops and prosecutors simply cannot keep themselves from doing it, and since such cases often come down to a credibility determination between the complaining witness and the accused, improper vouching is key to the conviction and you can usually show prejudice. Also, the juror issue was interesting because the juror flatly stated that she could not be fair concerning the punishment yet Judge Michael, who I know to be a very good and conscientious judge prior to his retirement, refused to grant the motion of the defense to excuse her.
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ANDREA MILLER,
(OCDW 10.09.06) Oklahoma County Public Defender's Office, obtained relief in two published opinions last week(!!) In Jiminez, she took the long road to get the client the belated benefit of his plea bargain which had the practical effect of shaving seven years off his sentence; and in Carter, a client who received LWOP will get a second bite at the apple at a re-sentencing. Terrific work, Andrea!
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BOBBY G. LEWIS,
(OCDW 10.02.06), OIDS, assisted sodomizer Ryan Van Winkle in avoiding a double punishment, saving Mr. Van Winkle an extra five years in the clink. I like the opinion by the Court on this issue, even though the Court did not publish it. Good job, Bobby!
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SANDRA MULHAIR CINNAMON,
(OCDW 09.25.06), OIDS, won a new trial for Pearl Smith in a "Battered Woman Syndrome" case. Very nice work, Sandra, particularly since the case involved a remand for evidentiary hearing. Those involve a lot of work and effort and it looks like it paid off here.
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JAMES L. HANKINS,
(OCDW 09.25.06), OKC, secured a win in a forfeiture case in Enid last week. This was one of those cases that we all have periodically where there will most likely be no record of the good job you do other than a satisfied client and one page, perfunctory dismissal order. Enid police stopped a car while at the same time other officers were executing a search warrant. Client and her mother were in the car and cops seized $3,500.00 in cash from client. Client was charged in a criminal case with drug offense (conspiracy with boyfriend) and the State filed Notice of Forfeiture on the money. Boyfriend pleads to manufacturing, charges dismissed against my client, leaving the forfeiture case. In my Answer, I alleged unconstitutional stop and "innocent owner" since the money came from the mother in a legitimate way that could be proved with bank records. I attached these records and outlined client's position to the DA, Melissa Redway (who spends time in Grant County as well as Garfield County). Mellisa and I discussed the case the afternoon before the hearing and she announced that the State would dismiss the action. Eminently reasonable decision by the DA and good result for the client.
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JAMES R. WILLSON,
(OCDW 09.25.06), Lawton, won a Court Martial trial last week. The client, with 29-years in the service, was accused of multiple counts of sexual assault and conduct unbecoming an officer while stationed in Iraq. Client apparently pushed the envelope on this one, refusing non-judicial punishment and retirement, and made the very good decision to hire James.
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JOHN W. COYLE, III, and BILLY COYLE,
JOHN W. COYLE, III, and BILLY COYLE, OKC, 09.06.,won an acquittal for a former Lawton policeman, Anthony Aguilera, accused of Assault and Battery with a Dangerous Weapon. Aguilera, since fired, shot a suspect in the back during a drunk-driving stop. The suspect survived. In 2001, Aguilera shot and killed another suspect described in the press as "an unarmed drunk man" but Johnny was able to keep that out. Another trial win for JW, who has tried close to two hundred jury trials in this state. Congrats, Johnny!
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NOTE: I am aware generally of two other victory stories but have very little detail. The first involves Doug Friesen who won a jury trial last week in front of Judge Savage in Oklahoma County in a child molestation case. The second involves David McKenzie in a murder trial before Judge Twyla Mason Gray in which she apparently granted a demurrer and dismissed the case(!!) If anyone has more details on these cases I would like to hear about them.
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AMOS E. BLACK, III,
09.06, Black, Zynda & Black Law Office, Anadarko, OK, secured the second bite at the apple for Jason Lee Davis. Something tells me that Mr. Davis might perhaps reconsider his decision to represent himself. Nice work, Amos!
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JAMES L. HANKINS,
09.06,OKC, shaved 20 years off the sentence for Charles Earl Lindsay. I am still sort of miffed that the Court did not reverse outright and remand for a new trial since Lindsay did not as a matter of law commit the crime of Robbery with an Imitation Firearm, but what are you gonna do?
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JUDITH L. JOHNSON,
09.06,OIDS, gave us some good published law in the Ferguson case to use in certiorari appeals. Thank you, Judith!
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DAVID OGLE & DEREK CHANCE,
09.06, Ogle & Welch, OKC, represented a client in Oklahoma County charged with Robbery. The State alleged that a woman employed at a store in a mall had to use a see-through purse to prevent theft. The woman apparently had some petty cash visible in the purse and was standing in line at a store. Client was standing by her and grabs the purse and falls down. The defense was that client had an epileptic seizure and no intent to steal. The rec got steadily better from Assistant DA Sam Chavers, including a deferred on the morning of trial that was rejected by the intrepid client (he must have hunkered down and raised the Black Flag). The State called eight witnesses and rested. During the break, Chavers apparently believed the defense theory of the case and dismissed the case(!) Terrific result because jeopardy had attached and client was truly not guilty. This was the first trial for Derek on the dark side (he's a transplant from the Oklahoma County DA's Office) and David reports that he did very well. Congrats David and Derek!
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JOSH WELCH & DAVID OGLE,
09.06, Ogle & Welch, OKC, got the mojo working against the Attorney General's multi-county grand jury unit in the Moyers case. This is one of my favorite cases of the year so far because they won it at the district court and on appeal on an issue for which there is virtually no state court authority (selective/vindictive prosecution). David told me they are considering moving to publish this case and I think they should. Terrific job, Josh and David!
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CINDY BROWN DANNER,
08.06, OIDS, rebuffed the State last week when it tried to get by a PH without calling the complaining child witnesses in the Roley case. Also instrumental in protecting the record in the case was trial counsel James Dennis, out of the OIDS Sapulpa Office. Excellent work Cindy and James!
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ANDREA DIGLIO MILLER & EMMA VICTORIA ROLLS,
08.06, Okla. Co. Public Defender's Office, won a re-sentencing in the Coddington case, giving Mr. Coddington a shot at living a while longer. Capital case victories always deserve some praise. Terrific job Andrea and Emma!
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LEE ANN JONES PETERS,
08.06, OIDS, secured some relief for Kenneth Rawlins down in Love County in one of his cases (which makes a difference when the sentences are running wild). Even more amazing, she convinced the Court to overrule a published opinion in an unpublished opinion! More amazing work from Lee Ann!
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PAUL ANTONIO LACY,
08.06, Federal Public Defender's Office (OKC), won a federal jury trial in May in a counterfeiting case and then won another one last week(!) In the first one, the client had received some coins from his father but it turned out the coins were not genuine old, rare, gold coins. However, mere possession of counterfeit money is not a crime; the person must possess with the intent to defraud. In this case, the Secret Service contacted client about selling the coins and during these conversations all parties knew about the coins being fake and client made no effort to hide that fact. Client testified that he just tried to sell fake coins, as fake coins, which is not a crime. In the second case, client and a bunch of his friends printed some bills in their apartment for the purpose of playing craps because the money, even fake, made it more exciting. Tony reports that he was pleasantly surprised when some government witnesses collapsed and told mis-matched and contradicting stories--clearly off-script and divergent from what was in the police reports. Apparently one of the kids went off the reservation so to speak and tried to purchase something with the fake money, but the craps story apparently carried the day. Excellent trial work by Tony and he told me that more federal cases such as these should probably be tried. Good work, Tony!
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STUART SOUTHERLAND,
08.06, Tulsa Co. P.D., defended Deangelo Favors admirably and rebuked the State's appeal, based upon what appears to be a very good record preserved by Aaron Goodman at the P.D.s Office. Very nice, Stuart and Aaron!
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ROBERT L. WYATT, IV, AND GLOYD MCCOY,
08.06,OKC, represented the irrepressible Gregory Vincent Hunt at trial and on appeal, resulting in a reversal of 106 counts of federal forgery and money laundering! Hunt has remained free on bond throughout two trials and two appeals and it appears that the potential state charges may be barred by the statute of limitations. Hunt should go buy a Powerball ticket. A+ work Bob and Gloyd!
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HONORABLE MENTION: The Oklahoma Criminal Defense Weekly.
08.06, Charles Sifers called me last week and relayed the following: An attorney in Oklahoma County was arguing a motion before Judge Black in a DUI case, asserting that the felony charge should be a misdemeanor since the ten years had passed with no "conviction" in the present case. The attorney was holding a copy of the Weekly and reading from an article on this topic. I wrote the article based upon observations made by Charles. Motion granted and young man saved from felony conviction!! Cool.
Here's the article: Another DUI Practice Pointer
by James L. Hankins
This comes from Charles Sifers (OKC) who has let me borrow his legal observation regarding the 10 year requirement under DUI law whereby the State can enhance an otherwise misdemeanor DUI into a felony if the offender has a prior.
Here is the trick: the statute, 47 O.S. 11-902(C)(2), allows the enhancement only if the prior DUI conviction occurred within 10 years of the date that the client was convicted of the second one.
The clear, unambiguous language of the statute requires an actual conviction to take place within 10 years of the prior conviction; not an arrest, not a charge: a conviction. There is some ambiguity concerning what constitutes a conviction, but the most conservative approach would seem to deem the date of the guilty plea the "conviction" pursuant to State ex rel. Lane v. Bass, 2003 OK CR 3.
This means that if you are in a position to continue your case for trial or disposition after the 10 years then you can file a motion to amend the charge to a misdemeanor. Charles reports that the Oklahoma County DAs Office agrees with this reading of the statute, but cautions that the legislature may close this loophole at some point, so use it while you can.
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DAVID B. AUTRY,
08.06, OKC, secured a re-sentencing in federal court for the loathesome Mr. Scott. Good work, David!
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JOHN DAVID ECHOLS,
08.06, Tulsa, put the kibosh on anticipatory search warrants in our state in the Dodson case. Very nice, John!
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STUART SOUTHERLAND,
08.06, Tulsa County P.D., scored a nice appellate win in the Franks case reported above. Solid work, Stuart!
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KATRINA CONRAD-LEGLER,
07.06, OIDS, secured a new trial for the hapless Ms. Pettit, who represented herself and ended up with LWOP. Got some justice there, Katrina. Good job!
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GLOYD MCCOY,
07.06, OKC, prepared to defend his client in the United States Supreme Court...he then awoke from that dream and drove to Edmond Municipal Court where he tried a possession of marijuana case before a judge: Not Guilty. His co-ed client went to a house to do some computer research (since she did not have a computer). Unfortunately for her, the police executed a search warrant while she was there and found some recreational drugs. Gloyd convinced hizzoner that the client had no dominion and control over the offending substances. Terrific result for a young lady who will not have to explain a drug conviction for the rest of her life.
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JAMES L. HANKINS,
07.06, OKC: I received some good news in my mailbox last week in the form of the opinion in the Duncan case, reversing and remanding for a new trial. I would like to point out the efforts of trial counsel in the case, Maria Tasi Blakely, Hugo, OK. I do not know Ms. Blakely personally, but I read a great many trial transcripts and can tell rather quickly when trial counsel is "fighting" for the client. In the Duncan case, she was definitely a "fighter" in protecting the record and filing motions. I think he has a good shot at winning a re-trial.
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JUDITH L. JOHNSON,
07.06, OIDS, convinced COCA to shave 30 years off the sentence of Mr. Whitmore for possession of a small quantity of meth. Very nice, Judith!
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GLOYD MCCOY,
07.06, OKC, made sure that the conscience of the court was shocked enough to modify the sentences of Mr. Hubbard in Nowata County. Good job, Gloyd!
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ROB NIGH,
07.06 Tulsa, did a fine job both at trial and on appeal in the Fears case. Extraordinary opinion on the insanity defense and, with over fifty pages of opinion, it is a mystery to me why the Court did not publish the case, particularly when it appears to have overruled a published opinion(!?) Terrific advocacy, Rob!
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BILL ZUHDI,
07.06, OKC, secured the appellate win for the hapless Mr. West. I do not recall ever seeing a 45 year sentence for DUI. Good work, Bill!
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KIMBERLY ADAMS,
07.06, McAlester, scored a terrific appellate win in the Carter case above and vanquished the formidable "greater latitude rule" in sex cases. Fabulous appellate victory, Kimberly, and move to get this case PUBLISHED!
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IRVEN R. BOX,
07.06, OKC, knocked off 15 years at 85% for the hapless Ms. Burns in a guilty plea case reported above. This is a very unusual result (straight modification of sentence without being allowed to actually withdraw the plea). Good job, Irven!
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CAROLYN L. MERRITT,
07.06, OKC Pub. Def., won a reversal for Mr. Miller in a murder case in the Oklahoma Court of Criminal Appeals. Very nice, Carolyn!
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STEVE NASH,
07.06, OKC, heard three "not guilty" verdicts in Judge Bass's courtroom a couple weeks ago. I do not have much detail other than his client was charged with two counts of lewd acts and one count of forcible sodomy. Great job, Steve!
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JAMIE D. PYBAS,
07.06 OIDS, secured the appellate win in the Dunkle case above, a smooth reversal on a Murder I conviction. Jamie truly is one of the best appellate minds in the State. Congrats, Jamie!
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TRACEY SCHUMACHER,
07.06, Norman, apparently went to war with prosecutor Victoria Gillispie in hard-fought jury trial in which Tracey's client was accused of rape by instrumentation of his three-year-old daughter. After a week long trial, the Cleveland County jury found the client not guilty last Monday. Client and his putative/estranged wife were locked into a bitter divorce and custody dispute and the allegations arose under these circumstances. According to the newspaper article, Tracey's defense theory was that the mother of the child used the child "as a pawn in the divorce." Terrific victory, Tracey!
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CHARLES FOSTER COX,
02.06, OKC, got relief for his client the less stressful way---by convincing Judge Tammy Bass-Jones to GRANT his motion to quash after prelim(!) Charlie re-upped for the ol' OCDW newsletter so maybe he can shed some more light on the subject, but from what I understand from the OCDLA listserv, client and another person are suspects in a string of purse snatchings. Police spot them and given chase. Client is driving and has a passenger (the other suspect). Client's car crashes. Client stays in car and is arrested at the scene. Passenger flees, takes off running up an embankment, crosses I-35, and ultimately ends up drowning in a canal. The State charged Client with Murder II, arguing that client and passenger were principals in the crime of attempting to elude. Charlie convinced her-honor that only the driver can attempt to elude and therefore there was no legal connection between the two; so the felony-murder rule did not apply. This is some mighty sharp lawyering, especially in light of the recent case of Dickens v. State, 2005 OK CR 4(!)
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MARNA FRANKLIN,
02.06, Oklahoma County Public Defender's Office, recently moved to OKC from Tulsa, where she worked the trenches at the Tulsa County Public Defender's Office. How is she adjusting to Oklahoma County, you ask? How about by winning two jury trials in consecutive months(!!) Both involved charges of Possession of CDS and one had facts you will not believe. CASE #1: Tried a couple of weeks ago (verdict the Tuesday before last). Client was a passenger in a car being driven in a "high crime" area. Cops stopped the car, saw "furtive" movement by client and found a crack pipe and a rock in the backseat floorboard (behind client's passenger side seat). Client had three priors for KCSP, UUMV, and some other innocuous felony, and took the stand, claiming that he was merely scratching his leg and did not know the pipe or the dope was there since it wasn't his car. Not guilty! This case was tried before Judge Tammy Bass-Jones. CASE #2: This was another Possession of CDS case tried before Judge Susan Caswell and a not guilty verdict rendered on December 6, 2005. Check out these facts: Client was hanging out at someone's house and the someone did not want him there anymore, so the someone calls the cops. Client did not budge. He just stayed there till the cops came. Shockingly, the cops discovered that client had an outstanding arrest warrant and arrest him on the spot. During the search incident to the lawful arrest, the cops discovered a rock of crack cocaine in his shirt pocket(!) The arrest and the search were iron-clad, no way to attack those, so the evidence comes in and client did not testify. How do you approach such a case, much less win it??? Well, what Marna did is attack the police investigation and argue to the jury that client was at the house, knew that homeowner had called the cops and that they were on the way, he thus had every opportunity to get rid of drugs if he knew they were there. This is a case where the cops had such a slam dunk of a case that they apparently failed to follow up on the basics: they did not seize the shirt to show the jury, other persons were present at the house and were not interviewed (that may have been surprised when the cops showed up and put the rock in client's shirt pocket without his knowledge), and essentially did nothing other than arrest client and seize the crack. This is what Marna argued in closing and essentially the jury found a reasonable doubt that client had knowledge of the dope. Amazing facts to take to trial, much less actually win. I have dismissed the so-called "CSI effect" where jurors watch crime shows on television and expect the State to present sophisticated forensics as part of the evidence, but maybe there was some of that going on here. This reminds me of a cross-examination I did of the investigating officer in a lewd acts case I tried with Ron Jones in Enid several years ago. While I was preparing it I made a list of what the cop actually did. Then I made a list of what he did not do. The more you sit there and think about, the more specific things you can think of for a cop to do in an investigation and when the list gets long enough, it sounds like the cop really did not do much of anything. Perhaps there may be something to this CSI effect. Interesting.
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JOSH T. WELCH,
02.06, Ogle & Welch, OKC, also got some painless relief for his client via a Motion to Dismiss on the basis of VINDICTIVE PROSECUTION(!), in Oklahoma County no less. Some background is necessary to appreciate this win. Client was Indicted in state court on 71 Counts in a complex Tax Commission case, including a RICO count and a conspiracy count. A plea deal is worked in which the A.G. dismissed 70 Counts and client plead to the conspiracy count and got ten years. Ten months into this sentence, Josh files a Motion to Modify before Judge Tammy Bass-Jones (a one year review) arguing that client needs some drug treatment that he is not getting while incarcerated. T-Bass grants the motion and modifies the sentence one and half years in and eight and half years out which essentially sets client free when given credit for time served (this was done to get client into private treatment facility). A.G. is incensed at this turn of events and subsequently drafts and files a 26-Count Information alleging crimes which were technically different from those in the original 71 Count Indictment but which were known to the A.G. all the while. The Assistant made statements to the media essentially admitting that the reason for filing the Information was because Client had asked for, and received, the sentence modification. The A.G.'s theory was that Client had breached his plea agreement by trying to serve less than the 10 years. T-Bass did not buy it and dismissed with prejudice on the basis of vindictive prosecution since there was no provision in the plea agreement that Client waived his right to seek a one-year review. Essentially, the State did not deny that the new case was in retaliation for the modification; and the Court held that State could not punish Client for exercising a legal right to which he was entitled (which is supported by many cases). Very nice win here for Josh. The State gave notice of intent to appeal, but whether it will go through with remains to be seen. NOTE: The A.G. will most likely require a waiver of the right to seek a one year review in future plea agreements. The Court took into account that the Oklahoma County D.A.'s Office makes waiver of such reviews part of the plea agreement and the A.G. did not do so in Josh's case.
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JACK FISHER,
02.06, Edmond, exposed some really slimy tactics in the Oklahoma County District Attorney's Office in the Powell case. It looks like that case took some serious digging to come up with the information, but in the end it spells a new trial for Powell, at least until the circuit takes a look at it. But until then, very tenacious advocacy, Jack!
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STEPHEN J. GREUBEL,
02.06,Tulsa County Public Defender's Office, saved Mr. Cleon Johnson some time when he convinced the Court of Criminal Appeals to reverse the Arson charge. Even though the other Counts stuck, all the counts were ordered to be served consecutively and thus Stephen saved Cleon some real time in the pokey. Good work, Stephen!
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S. GAIL GUNNING,
02.06, OIDS, returns to victory lane in the Collier case which resulted in complete relief for Collier in a trafficking case on a chain-of-custody issue(!) Very nice!
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LARRY TEDDER,
02.06, OKC, secured a NG in a First Degree Robbery case last Wednesday in Oklahoma County but I do not have many details and was unable to contact Larry about it. OCDLA listserv reports that Larry's client was stopped nearly immediately after the robbery within the vicinity of the place that was robbed and had cash and checks from the place in his pocket. Defendant apparently testified even though he had priors consisting of burglary, distribution of CDS, and robbery(!!) Larry brought this out in voir dire and was apparently able to mitigate it. If anyone has any more details let me know. Sounds like a good one.
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BRUCE EDGE,
02.06, OKC, sent in a good story of his representation of a nineteen-year-old kid who came to him with two pending cases of statutory rape and forcible sodomy, respectively. Client had signed a confession in the first case and had already waived PH with first lawyer. Bruce entered the case, was able to convince the Court to remand the first case for PH and got it dismissed(!) DA angry now and pushes the second case to trial. Bruce shows up armed and ready with charts and a four inch stack of motions in limine. Case gets resolved by dismissal of felony and plea to contributing with a deferred. Thus, nineteen-year-old client who is in the National Guard has a chance at life now. Nothing really flashy here and this story does not really fit into the Victory section because I look for outright trial wins, appellate wins, or case-terminating motions wins to highlight here. But I think it's a good story, and a reminder to us all that basic preparation and readiness to fight for a client goes a long way toward getting good results. I do not think Bruce is alone in this because some of my most satisfying "Victories" and greatest feats of advocacy have been performed in cases that go essentially unnoticed and unreported--except for that satisfied client and sometimes angry ADA. So, I included this story to tell you all that I know there is good work done out there every day and if you have a good one like Bruce's story, go ahead and send it in.
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KEVIN ADAMS,
01.06, Tulsa, was hired after jury trial that resulted in a conviction and, at sentencing, convinced the judge that the statute of limitations had been violated in a lewd acts case and got the thing dismissed(!) You would think if ever there was a happy client it was that guy! Super job, Kevin.
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KATRINA CONRAD-LEGLER,
01.06, OIDS, works the magic in THREE CASES this week(!!!) She obtained plea withdrawals for Libera and Watkins, and also got a 45-year sentence modified to 20-years for the hapless Ms. Tanner. Three positive results for clients in appellate cases within a few weeks. Damn fine appellate work, Katrina!
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LEE ANN JONES PETERS, OIDS, JAMES D. REEDY, Norman, and RON JONES,
01.06, Enid, deserve recognition for the terrific result in the Milligan case that resulted in a suppression winner in the Court of Criminal Appeals. Jones and Reedy tried the case and preserved the issue so there were no procedural problems; and Jones-Peters brought it home on appeal. Great job to all!
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RICK RICE,
01.06, Midwest City, won an acquittal in a one-day DUI trial before Judge Glenn Jones in Oklahoma County a few weeks before Christmas. Charles Sifers reported this and I do not know much about it nor do I know Rick. Charles reported that Rick was particularly aggressive in attacking the field sobriety tests administered by the officers in the case and won the NG even though there was apparently other evidence that would have clearly supported a "one word" verdict as Charles said.
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JOHN HUNSUCKER,
01.06, OKC, joining the accomplishment of Thomas Mortensen below, won an acquittal in a misdemeanor DUI case in Oklahoma County last Wednesday, January 11, 2006. I was unable to interview John about the case, but Stephen Fabian reports that client was arrested by OHP who testified to the usual DUI suspects: odor of alcohol, bloodshot eyes, and admission of drinking. There was little or no evidence that client's driving was affected or other physical manifestations of drunkenness. John brought in experts from Texas (Walden and Platt, former Texas Highway Patrol SFST instructors) to give testimony regarding SFSTs and how they were administered by the arresting officer. Outstanding, John!
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GEORGE MISKOVSKY, III,
01.06, OKC, won acquittals last Friday in Oklahoma County for a client charged with Murder in the First Degree, Arson, and Conspiracy to Commit a Felony (Robbery with a Dangerous Weapon). According to an article in The Oklahoman, George's client was charged with two other men. One man was convicted and received LWOP and the other is scheduled for trial this year. I have not interviewed George about the details, but the paper indicated that it came down to a witness credibility issue. Very nice, George!
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THOMAS MORTENSEN,
THOMAS MORTENSEN, 01.06, Tulsa, won a misdemeanor (six person) DUI jury trial last week(!) Two day trial. Client left a bar in Tulsa and took off driving 70 MPH while cop pursued. Cop followed for about a mile before activating lights. Thomas reports that when client was arrested he refused to take any SFSTs, refused the breath test, and just told the arresting officer, "Just take me in." Client had had surgery on his leg one year prior to the arrest and walked with a limp. The officer never asked client if he had any medical conditions that would cause the limp and insisted that the limp was "gait ataxia" which I think is a fancy way of saying that client walked with a limp because he was drunk. Thomas reports that the arresting officer was a DRE and testified to the usual DUI symptoms. Client attempted to take the stand, got so far as giving his name, before he had a panic attack in open court and in front of the jury(!) The trial court recognized it and called a recess. How to win the case?
1. Impeach cop: Thomas acquired the X-rays and medical reports regarding client's leg surgery (and the State stipulated to them). When cop took stand, Thomas asked if the fact that client had leg surgery would have changed his opinion about the limp being gait ataxia. Answer, "No." Eye rolling by the jury. Also, cop testified that client was weaving during the drive, but did not put anything about weaving in his written report.
2. Good closing: Thomas took a page from Gerry Spence (in voir dire and closing) and explained to the jurors that the burden of proof is not a sword that guilty criminals use to go free, but rather is an important tool to help jurors decide cases so they do not have to guess about the outcome(!) Thomas said he watched Spence's CDs and they are incredibly helpful. During closing, Thomas hammered this home this concept and also the fact that the cop would not even consider the surgery as being a factor in the case. Inexplicably, one of the jurors was a medical doctor who worked at the same hospital as the doctor that treated client and the State left this person on the jury. Thomas asked the jury who were they going to trust, a cop bent on making an arrest or a respected medical doctor?
3. A little luck: Cop administered HGN test and Thomas filed a motion to exclude it. The State did not respond and apparently conceded this issue and did not mention this evidence.
FINAL NOTE: Thomas was mortified when he spoke to the alternate juror while the jury was deliberating and discovered that the alternate would have voted to convict, stating that she did not believe that the defendant had proved he was not drunk(!!) She said this even after Thomas had spent a lot of time explaining the State's burden of proof and the presumption of innocence during voir dire. This is a good lesson that you can never over-explain these concepts because sometimes they jurors just do not get it.
Fabulous work, Thomas
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CINDY BROWN DANNER,
01.06, OIDS, steamrolled the State in the Golden case and convinced the Oklahoma Court of Criminal Appeals to overrule prior case law and establish structural error in a class of cases that very easily could have been held to be subject to harmless error review; and I must stress that this is not just appellate mumbo-jumbo, but rather a very significant change in the law and a major shift (in my opinion) in the mode of analysis employed by the Court for the better of the criminal defense bar and also for the better of the criminal law of this State generally. Very nice work, Cindy!
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ROBERT JACKSON & STEVE PRESSON,
01.06, Norman, orchestrated the reversal of the 6,000 year sentence for the unfortunate Mr. Cheadle. Talk about working something reasonable out of some very bad facts! Another nice effort from the boys in Norman!
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STUART SOUTHERLAND,
01.06, Tulsa Public Defender's Office, obtained complete relief on appeal for the hapless Mr. Watson. Good law on the "Make My Day" statute and a solid win resulting in complete dismissal and exoneration. Terrific job, Stuart!
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SCOTT ADAMS,
01.06, OKC, secured a dismissal of the case against the "Video Vigilante" (the guy that tapes the prostitutes in OKC and also recorded one of the police beatings that made national news a while back). The Oklahoman ran a good article on the case Saturday, January 21, 2006, but was unclear on the reason. I believe (although I have not verified this with Scott) that Scott filed some sort of motion to quash, the State did not respond, and Judge Elliott deemed the motion confessed under Rule 4 of the Rules for the District Courts(!) Seem like the Rule worked in Scott's favor in Oklahoma County and to the client's detriment in Washington County in the article above. The State announced that it will appeal, so we might actually get some appellate guidance on this issue in the near future. But in the mean time, terrific result by Scott!
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W. CREEKMORE WALLACE,
01.06, Sapulpa, ventured into federal court to represent a fellow charged with multiple counts of conspiracy to manufacture and distribute meth possession of a firearm in the commission of drug trafficking and a few counts of simple possession of a firearm AFCF. Creek conceded one or two of the counts of simple possession of a firearm by a felon but contested everything else that would have resulted in beau coup years in the federal penitentiary for the client. Client testified and the government's case consisted of mainly snitch testimony and no product was found or introduced at trial. The jury acquitted Creek's client of all the counts to which Creek did not concede (and I would not have put it past Creek to win those, either). A little dose of justice in Tulsa, federal style, from one of the best! Congrats, Creek!
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STEVE STICE,
01.06, Norman, exposed the State's decision to file bum cases in the great metropolis of Purcell in McClain County last week. The events took place last July 4th, with a little drinkin', a little partyin', and of course the obligatory factions of angry persons who wanted to fight. As it sometimes happens in these cases, the factions ended up at a residence with one faction inside a pickup truck driven by Steve's female client and the other faction outside looking to engage in fisticuffs with the occupants of the pickup truck. Client ends up trying to actually avoid the confrontation (the folks outside the truck wanted to punch the living crap out of the folks inside the truck) and drive away but ends up striking and running over aggressive agitator in the driveway. Agitator is injured (client actually ran him over with the truck(!), the restitution piles up into the five figures with medical bills, the witness statements vary wildly, no amicable resolution to be had, so it's off to jury trial. Client charged with A&B w/Dangerous (the truck). Client has no priors and took stand in support of the defense of no intent/accident and that she was actually trying to flee from the complaining witness and his buddies who wanted to fight. CW and buddies of course had a vastly different story, complete with client driving fast and skidding, but this was refuted by the cop who confirmed no skid marks and a very low impact speed. Jury out less than thirty minutes. Steve modestly told me that the State's case wasn't very strong but it is light years from the State's case not being strong to the twelve in the box saying "Not Guilty." It doesn't just happen (as you all well know), it takes hard work and dedication. Terrific work, Steve!
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KATRINA CONRAD-LEGLER,
01.06, OIDS, secures a spectacular win for the presumably grateful Mr. Graves in the case reported above. Graves will get a second chance and it appears that the appellate court has even hinted that a motion to suppress should win here. Graves may be a very lucky man; certainly lucky to have had Katrina work on his appeal! Terrific work, Katrina!
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LISBETH L. MCCARTY,
01.06, OIDS, obtained another bite at the apple for Mr. Pelican in the certiorari winner reported above. You might say she wrote the Pelican Brief (get it? The Pelican Brief?...ugh, sorry). I hope Mr. Pelican appreciates your efforts Lisbeth because we sure do. Fine work!
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STEVE PRESSON & ROBERT JACKSON,
01.06, Norman, persuaded the en banc Tenth Circuit to pay counsel to represent death row inmates in State clemency proceedings! Fine piece of advocacy since a panel had rejected this very claim in a prior opinion that was later vacated. Most of us who do this work would generally represent the client anyway but now it is nice to actually get paid for the time and effort. Terrific work guys!
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THOMAS PURCELL,
01.06, OIDS, raised a boatload of issues (13!) in the Daniel case, reported above, but only needed one to get the case reversed and remanded for a new trial! I'm sure that Judge Caswell will be quite ecstatic to try that case for a third time! Very well done Thomas!
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BURCK BAILEY,
01.06 OKC, is well-known to many of us and is without a doubt one of the "top guns" in the Oklahoma legal community. I do not think Mr. Bailey practices much criminal defense and normally patent cases involving questions of civil procedure do not make it into the hallowed halls of the Victories section of the Oklahoma Criminal Defense Weekly. However, Mr. Bailey, as a representative of our fair State to the larger legal community, took off for Washington, D.C., last year to argue a case on November 2, 2005, before the United States Supreme Court. Last Monday, January 23, 2006, the Supreme Court issued a written decision in the favor of Mr. Bailey's client(!) The opinion deals with esoteric civil rules (CLICK HERE if you really want to read it) but any time an Oklahoma lawyer goes to the highest court in the land and wins the case, complete with a written opinion for posterity, well, that is a heck of an accomplishment. Congrats to Burck Bailey!
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