"I have lived my life, and I have fought my battles, not against the weak and the poor--anybody can do that--but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall."

 --Clarence S. Darrow, ATTORNEY FOR THE DAMNED  491, 497  (Arthur Weinberg ed. 1957)

 

BRIEF BANK:  This link goes to the USDOJ web site that archives all the briefs filed by the Solicitor General.

The annual meeting of the Oklahoma Criminal Defense Lawyers Association was held on Thursday, November 8, 2007, in Oklahoma City.  The guest speaker was the engaging Christopher Adams, who held a very controversial position as the Georgia Public Defender in capital cases before resigning amid a funding controversy.

AWARDS:

The Lord Thomas Erskine Award:

The winner of the Lord Thomas Erskine Award was JACK POINTER, OKC.  This award recognizes the cumulative efforts of a criminal defense lawyer and is the most prestigious award given by the OCDLA.  Jack is a true warrior for the defense and well-deserving of the award.

The Thurgood Marshall Appellate Advocacy Award:

The Thurgood Marshall Appellate Advocacy Award was presented to co-winners PAULA ALFRED, Tulsa Co. P.D., and KATRINA CONRAD-LEGLER, OIDS in Norman.  Both Paula and Katrina had significant wins in the Court of Criminal Appeals and we felt that both were equally deserving of this award.

The Clarence Darrow Award:

NO ONE was presented with the Clarence Darrow Award for trial work!  This was very surprising since I was under the impression that there were some good trial victories within the last year.  However, OCDLA did not receive a single nomination for this award, which I think is very unusual.  Please remember that no one can be considered unless they are nominated!

The President's Award:

OCDLA President David Ogle honored STEVE PRESSON & ROBERT JACKSON, Norman, for their solid dedication to criminal defense work over the years.  In fact, they did the appeal in the Willard Jackson case featured in this issue!

Finally, the membership present elected ANDREA MILLER as the new OCDLA President.  OCDW presents a special thanks to David Ogle, outgoing President for his good leadership and also welcomes Andrea to the helm.

In Re:  Application of the OBA to Amend the Rules of Professional Conduct, 2007 OK 22 (Okl., April 17, 2007):  The Oklahoma Supreme Court has overhauled the rules of professional conduct in this lengthy Order.  You should all check these out because there appears to be significant modifications to the rules.

The Court heard oral arguments on Tuesday, October 30, 2007, in Logan v. United States, which deals with priors under federal firearms statutes.  HERE is a link to the transcript of the oral argument.

 There was some discussion recently on the OCDLA list-serv concerning whether a sentence may be modified upward at the request of the State via the modification statute (22 O.S. 982a).  I found an unpublished Order that addressed this question and concluded that such sentence modifications "are limited to downward modifications."  The Order can be found at Lloyd Henry Neuville v. State, No. PC-2000-1412 (Okl.Cr., March 20, 2001), and the language concerning sentence modifications can be found at pages 5-6 and footnote 6.

HERE is an interesting Petition for a Writ of Certiorari on the issue of whether the jury must be instructed on the effective date of a criminal statute when some of the alleged criminal conduct occurred prior to the statute and thus would be barred by the Ex Post Facto Clause.

Also, HERE is a list of "Petitions to Watch" prepared by the SCOTUSblog.

Sometimes during plea negotiations in federal cases you need a plausible misdemeanor for your client and to resolve the case with the least exposure.  You might find that federal misdemeanor crimes are difficult to locate.

Well, Thomas Salisbury (Ponca City) has forwarded this paper to us at the OCDLA list-serv and I think it is very handy.  It is titled "Searching for Federal Misdemeanors" and shows you where to find them.  Good luck!

Although there are no new merits opinions from the Court, there was some hubbub recently as the result of a certiorari grant in a Kentucky case that challenges the lethal injection method of execution in death penalty cases.  The case is Ralph Baze, et al. v. John D. Rees, Commisioner, No. 07-5439.  The amended Order granting certiorari and establishing the briefing schedule can be found HERE.  The Petition for a Writ of Certiorari can be found HERE (in MS Word).

In the wake of the certiorari grant in Baze, Oklahoma Attorney General Drew Edmondson requested the Court of Criminal Appeals to stay setting execution dates pending the outcome of the lethal injection case in the United States Supreme Court.  The request was filed in the case of Terry Lyn Short v. State.

Executions have also been delayed in Texas (by the Supreme Court) and Alabama (by the Governor) on this issue.

One of the most repugnant aspects of the law of sentencing in federal criminal cases is the ability of the court to consider "acquitted conduct" during sentencing.  In essence, if the jury acquits an accused of a specific aspect of a crime or of a crime in toto, the sentencing court may still find as a matter of fact that the accused committed the acquitted conduct and enhance the sentence.  The Supreme Court allowed this in the pre-Booker case of United States v. Watts, 519 U.S. 148 (1997) (sentencing court may consider the conduct underlying the acquitted charge so long as the conduct has been proved by a preponderance of the evidence).

Does Watts survive Booker?  The Sixth Circuit is grappling with this question.  One panel has decided that Watts is still good law and that acquitted conduct can still be considered by trial courts.  See United States v. Mendez, 2007 WL 2316498 (6th Cir., August 15, 2007).

However, it seems that another panel reached the opposite conclusion in United States v. White, No. 05-6596 (6th Cir., October 5, 2007).  But here is the kicker:  the panel in Mendez published its opinion before the panel in White.  Thus, even though the majority in White reached the opposite conclusion as the panel in Mendez, the panel in White felt constrained to follow Mendez in order to avoid a conflict in the circuit.  Not surprisingly, the opinion in White "strongly recommended" defense counsel to seek en banc rehearing on this issue, stating that "the three members of the panel will strongly recommend that the full court grant the en banc petition to review this important question."

Thus, if you have such an issue, be sure to file a motion and make a good record in the court below because the issue is "live" again and can be re-urged in the Tenth Circuit.

Child sex abuse cases are among the most difficult we face.  Josh Welch, Ogle & Welch, OKC, recently had a dismissal just before trial in such a case out of Canadian County.  There are several good lessons in this case concerning the acquisition of records and the preparation of the defense.

The client was charged with one count of Child Sexual Abuse on his youngest daughter who was three-years-old at the time of the alleged abuse.  Client was also going through a bitter divorce with a woman with whom he had five children.

The client took a polygraph and passed.  However, the State refused to dismiss in light of this fact, and also in light of the fact that DHS had already investigated and could not confirm abuse.  The case thus proceeded to preliminary hearing where the complaining witnesses testified that client touched her one time, it did not hurt, and no other details.  The story surrounding the "touching" changed on cross-examination.  In addition, the child repeatedly mentioned how this made Mommy feel. 

The oldest daughter testified that she kept a journal of client's activities and that she had seen client with the child on his lap after a bath with his hand moving up and down under a blanket.  This version of abuse was completely different from the story elicited on cross-examination.

Finally, the State presented the testimony of a forensic interviewer.  She testified that the child had no difficulty communicating, but she also had no knowledge of the prior DHS investigation which failed to confirm abuse, the pending divorce proceedings, or that the five children were home-schooled by the mother and lived in a trailer out in the country.  She testified that these facts would be relevant to the interview but she did not consider the interview flawed.  Josh requested the intake notes from the interview which were produced.  They indicated that the child did in fact have a difficult time communicating.

After the preliminary hearing the client was bound over.  Josh pressed for discovery, including the journal kept by the oldest daughter, the notes of the counselor for the child, the medical reports of examination of the child, and the DHS records.  

The discovery documents and other investigation revealed that the mother (and putative ex-wife of client) was very active in the case and in particular was very adamant that if abuse was not confirmed she would lose custody of the children.  In addition, the counselor's notes indicated that the mother's actions appeared to be geared toward keeping the allegations alive rather than helping the child.  Finally, the journal of the oldest daughter did not contain all its entries and was composed in a manner that showed her anger toward client for leaving the family, not for committing abuse on the child. 

When all the evidence was added up, it became apparent that the prosecution was untenable and the case was correctly dismissed.  The lesson for criminal defense practitioners is that acquisition of all relevant documents is essential in preparing the defense.  Specifically, we must be aggressive in acquiring DHS records (by court order), medical records of the purported abuse, counselor notes, notes from the forensic interviewer, and any journals kept by any witness.  These things paint the big picture in many cases and may provide you with the outline for the defense.

THE TRAP:  I have filed two appeals recently in which the trial courts have refused to allow defense witnesses to testify on the basis that defense counsel did not endorse the witnesses prior to trial pursuant to the discovery code.  The Court of Criminal Appeals also addressed this issue in the unpublished Smith case outlined above.  I perceive this to be a serious problem and the subject of some confusion among the defense bar.

In the two cases I filed on appeal and also in Smith, defense counsel argued that the defense witness was a rebuttal witness and therefore no notice to the State was required.  The ambiguity is present when the defense witness is used to rebut testimony from a State witness in the State's case-in-chief.  If your witness is used to rebut a State witness who testified during the State's case-in-chief, your witness will most likely be deemed a witness for the defense case-in-chief and NOT a rebuttal witness.  THIS MEANS YOU MUST ENDORSE THE WITNESS PER THE DISCOVERY CODE AND IF YOU DO NOT THE TRIAL COURT WILL NOT ALLOW THE TESTIMONY AND THE COURT OF CRIMINAL APPEALS WILL AFFIRM THIS RULING.

The confusion stems from the fact that a defense witness who contradicts a State witness appears to be a rebuttal witness.  But the Court of Criminal Appeals does not look at it that way.  The Court has held that such defense witnesses are not true "rebuttal" witnesses, but rather witnesses that must be presented during the defense case-in-chief.  See Short v. State, 1999 OK CR 15, 980 P.2d 1081. 

My reading of the cases is that the Court will consider a rebuttal witness a witness called by the State to rebut a witness by the defense.  The defense is then entitled to present witnesses in surrebuttal.  It is the surrebuttal witnesses that you do not have to endorse prior to trial.  Witnesses that simply contradict the witness testimony of the State's case-in-chief will not be considered rebuttal and you will most likely not be able to call the witness unless you have complied with the discovery code.

Defense lawyers as a group do not like to divulge information to the State unless we must, but if you are gearing up for trial, I suggest you look carefully at Short and Smith because you could run into a buzz saw if you are sandbagging your witnesses.  Trial judges do not like it when we do this.  They will not be persuaded by your argument that your witness is only rebuttal and the Court of Criminal Appeals will agree.  I have seen it in the two appeals I filed, in Smith, and in the research I have conducted on this issue.  Do not fall into this trap!

WHAT TO DO IF YOU ARE IN THE TRAP:  If you find yourself in this bind and the trial court rules that you have violated your discovery obligations, your option at that point is to make a good record of requesting a sanction less than preclusion of the witness. 

Under the discovery code, the trial court has broad discretion to remedy discovery violations.  The State endorses witnesses late all the time and typically the trial judge will let them, but will look at you and ask you how much time you need to interview the witness.  You can do the same thing.  Ask the trial court for a brief continuance so you can make your witness available to the State and provide any written statements you have concerning the witness. 

If the trial court will not continue the trial, argue that the State did in fact have notice of the witness and there is no surprise (which will often be the case since your witness most likely will be known to the police and/or the prosecutor).

Finally, if the trial court lowers the boom and precludes your witness from testifying, you must make an offer of proof in order to show the Court of Criminal Appeals the testimony that would have been offered by your witness, how unfair the trial was without the witness, and how your client was prejudiced by your negligent representation.  :))

Mark Hoover is an excellent appellate attorney at OIDS.  Mark keeps me in check regularly by reviewing the Court's unpublished opinions and sharing his ideas with me on what some of these "shadow" opinions might mean.  In this article, Mark briefs two recent cases and tells you what you need to know.---Ed.     


CASE STUDY #1:  DRUG COURT AND DOUBLE PUNISHMENT

Tara Biggerstaff v. State, No. RE-2006-646 (Okl.Cr., June 12, 2007) (unpublished):  Biggerstaff was terminated from Drug Court in McCurtain County.  The State's Application to Terminate alleged violations that occurred during the eight month span she was in the Drug Court Program.  The Original Record indicated that the court had sanctioned her for the violations alleged in the Application to Terminate.  However, defense counsel did not object to the termination on double-jeopardy or double-punishment grounds.

On direct appeal, the issue was raised as a double jeopardy and double punishment claim.  The Court of Criminal Appeals held that failure to object at the termination hearing waived the issue unless it was fundamental error.  The Court held it was not.  The Court further noted, "Finally, a determination that probation violations have occurred does not constitute a conviction or acquittal upon which jeopardy may attach."  The Court did not specifically address the double-punishment facet of the claim.

PRACTICE POINTER No.1:  In a Drug Court case, always check the D.A.'s Application to Terminate to make sure the alleged violations are not ones for which the participant has already been sanctioned.  If the Application lists both new and previously-sanctioned violations, then it will probably pass muster.  However, if the D.A. is just tired of dealing with the case and files an Application listing violations that were already sanctioned, a timely objection on double punishment grounds may net some results.  Failure to object at the termination hearing  means the double-punishment issue is dead on appeal.


CASE STUDY #2:

Ryan Martin Wonderly v. State, No. C-2005-834 (Okl.Cr., June 8, 2007) (unpublished):  Wonderly entered Alford pleas to 14 counts of sexual acts with a child under 16 in Twyla Gray's courtroom (Oklahoma County) and received concurrent sentences of 35 years to do, with 20 suspended afterward.  He moved to withdraw his pleas, in part, because he had not been advised of the 85% Rule and had not been advised he would have to wear a Global Positioning System (GPS) device upon release.  The 4-1 Court held that these issues were procedurally barred because trial counsel did not specifically raise them in the application to withdraw the plea.

However, in his dissent, Judge Chapel chided the majority for using the Court rules to bar review of some claims.  He wrote, "Generally speaking, our review on certiorari is confined to the issues before the trial court at the time of the motion to withdraw.  However, that is by no means the only review this Court will conduct.  The majority's suggestion otherwise, attempting to narrow this Court's usual scope of certiorari review, is not supported by case law."

Judge  Chapel would have reviewed the claims under the umbrella issue of "the plea was not knowingly and voluntarily entered" because failing to consider such issues, even if they are not specifically raised in the trial court, "would harm the interests of justice."  Additionally, Judge Chapel stated his belief that GPS monitoring "poses a material consequence flowing directly from [the] decision to plead" and would review the claim.  Because Judge Chapel would have granted relief on the 85% issue, he believed the GPS issue was moot in Wonderly's case.  

PRACTICE POINTER No. 2:  It is clear that consideration of any additional Anderson-type issues (GPS monitoring, sex offender registration, etc.) by COCA will begin as issues articulately raised in the district court.  Therefore, if the defense bar is ever going to convince the Court to extend the rule in Anderson to contexts other than the 85% Rule, we must make a solid record in the trial courts.  This means prepare and request jury instructions regarding Sex Offender Registration, GPS monitoring, and any other punishment your client must endure as a result of a conviction.

The Oklahoma Court of Criminal Appeals recently decided that jurors must be instructed on the 85% Rule where it applies in order to more fully inform the jury of the consequences of its sentencing determination and to deter "rounding up" of sentences on the mistaken belief that the accused will be released much sooner than he actually would.  See Anderson v. State, 2006 OK CR 6.  Do the same policy considerations apply in sex-offense cases where the accused, if convicted, must register as a sex offender?

Thus far, the Court has balked at requiring such an instruction.  However, in a recent unpublished opinion, Judge Chapel opined that sex offender registration is not a collateral consequence of conviction but rather involves substantial restrictions upon the liberty of the accused and thus should be considered punitive and part of the sentence.  See Derek Tewinn Edmonds v. State, No. F-2006-220 (Okl.Cr., May 14, 2007) (Chapel, J., specially concurring). 

Edmonds raised the issue on appeal but notably this issue was not raised in the trial court and an instruction was not requested by trial counsel.  Thus, review was for plain error and the Court was unwilling to go down that road in a case where the issue was not preserved properly.

Mark Hoover at OIDS has indicated the issue has been raised in other cases with no good results but Judge Chapel's position may be stronger now in light of the tightened restrictions on sex offenders and where they may live.  One thing is clear:  the defense bar has no chance at this issue unless the Court is presented with a "pristine" case, one in which a written jury instruction is proposed and rejected by the trial court (and preferably with some sort of jury question on this subject).  So, be mindful of this issue the next time you try one of these cases and make a good record.

Very few of us will have the thrill of arguing a case in the United States Supreme Court.  I believe that Burck Bailey, Robert Ravitz, and Charles Cox from here in OKC have done it; Stephen Jones in Enid, and Dick Burr down in Hugo have also had that experience.

But for many years, such arguments were somewhat shrouded in secrecy.  Now, most of the arguments are recorded and can be heard on-line and also most of them are transcribed and available on the Court's web site.

HERE is the transcript of the argument in the case of Panetti v. Quarterman, No. 06-6407, which is a capital case out of Texas focusing on the meaning of insanity for purposes of executing a condemned prisoner and also some interesting AEDPA issues on what constitutes a second/successive habeas petition.  As you might imagine, Justice Scalia is an active questioner, but Justices Ginsburg, Kennedy and Roberts (C.J.) also wade in. 

These transcripts can be helpful to prepare you for any arguments you might have on similar issues.

HERE is an article describing a case before the Court dealing with the legal definition of insanity in the context of capital punishment.  The Court has held that prisoners who are insane cannot be executed, but has not provided a workable definition of insanity.  In this case, the Court takes a look at the Fifth Circuit's attempt in Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006).

On March 26, 2007, the Court granted certiorari in a child porn case to determine whether the federal statute is overly broad and/or impermissibly vague.  The Question Presented can be found HERE.  The lower court decision is United States v. Williams, 444 F.3d 1286 (11th Cir. 2006).

In Kansas v. Marsh, 126 S.Ct. 2516 (2006), Justice Scalia presented a spirited discussion of error rates in felony convictions in criminal cases.  One statistic upon which he relied heavily was taken from Joshua Marquis.  According to Justice Scalia and Marquis:  "That would make the error rate [in felony convictions] .027 percent--or, to put it another way, a success rate of 99.973 percent."  Marsh, 126 S.Ct. at 2538.

D. Michael Risinger, Professor of Law at Seton Hall University School of Law, debunks this statistic in a paper titled Convicting the Innocent:  An Empirically Justified Wrongful Conviction Rate.  As with the typical law school scholarship, Risinger goes footnote crazy which makes the paper more difficult to slog through, but his style keeps it interesting and I think he convinces the reader ultimately that in the context of capital punishment, the error rate is much larger (in the range of 3.3%-5%) than Justice Scalia allows. 

Federal Capital Case News (OCDW 03.26.07)

The Federal Defender Capital Resource Counsel and the Federal Death Penalty Resource Counsel Projects prepare a newsletter on the goings-on in federal death penalty cases.  The most recent newsletter can be seen HERE.

There are some good ideas on the theory of the case as well as good summaries of recent decisions in federal death penalty cases.  The number of Resource Counsel has been expanded and now includes Oklahoma lawyer Dick Burr.

HERE is an interesting article by Alan Ellis in which he interviews Tess Lopez, a 13-year former U.S. Probation officer in the Northern District of California in San Fransisco.

She gives some practical advice on dealing with federal probation officers and managing pre-sentence investigations in federal court.  In a nutshell, just know that the probation officer gets a very ugly portrait of your client and the crime from the government and you must do everything you can to provide the probation officer with a more balanced presentation of the facts. 

The advice seems obvious and straightforward but it still is the best there is:  find out everything you can about your client as soon as you can so you can apply favorable facts to the sentencing factors under section 3553.

I have not handled a DUI case in a while.  While I was perusing some of the posts on the listserv run by the Oklahoma Criminal Defense Lawyers Association, I came across a good post by Stephen Fabian, OKC, who reminds us folks who do not handle these cases all the time that the maintenance records for the machines can be accessed either through an Open Records Act request to the Board of Tests or via on-line at http://www.ok.gov/bot/reqdoc.php. 

Fabian advised that you can order "Maintenance and Repair" records as well and that you must be specific when making requests.  Finally, the BOT will generally work with you on these requests since it was forced to pay Fabian $3,000 in attorney fees one time when it failed to given him all the records so requested.

I am going to file an appellate brief in the Oklahoma Court of Criminal Appeals on behalf of a client who was convicted of Possession of CDS (Marijuana) w/Intent to Distribute and Possession of CDS without a Tax Stamp.  In what has become a very familiar fact pattern, client (African-American male) was driving alone in a truck in Texas County.  OHP Interdiction Trooper makes a traffic stop for obstructed tag and for going 45 in a 40.  The Trooper proceeds with the usual chitchat about writing a warning and calls in the license and tag for wants and warrants.  While waiting for the returns, the Trooper runs the dog around the truck, says the dog alerted, and the subsequent search yielded 22 lbs. of raw marijuana.  Fairly typical.  

However, there are several aspects of this case that I found very interesting and on which I would like some feedback.

What constitutes an "alert"?  Trooper Tracy Brown, a very experienced member of OHP used his canine, Baron.  Trooper Brown testified that when Baron detects the odor of contraband he will attempt to get as close to the substance as he can and then "do a double-paw scratch."  But in this case, Baron never did a double-paw scratch(!)  Trooper Brown testified that he "sensed a change in behavior" as he ran Baron around the truck, twice, and rather than let Baron under the truck (for Baron's safety) he "called an alert" without Baron exhibiting the alert behavior. 

Of course, the videotape shows no change in Baron's behavior and no double-paw scratch.  This appears to place virtually unreviewable discretion with the dog handler and Judge Greg A. Zigler held the search was lawful.  As far as I can tell, this presents an issue of first impression in Oklahoma (is a dog alert valid when the dog does not in fact alert by performing the physical action for which it had been trained) and the cases seem to be all over the place but with some strong authority in favor of the client.  Let me know if any of you have dealt with this issue before.

Search before a search?:  The videotape also shows Trooper Brown lowering the tailgate of the truck and directing Baron to jump up into the truck bed to sniff closer to the cab.  This seems to be a "search before the search" to me and also another issue of first impression.

Open Records on Race:  Defense counsel in this case, Jim Loepp, who had the OIDS contract in Texas County, did a very good job in this case with an aggressive and confrontational cross-examination, during part of which he essentially accused Trooper Brown of racial profiling.  Brown denied using race in his profile and stated that the ACLU had sued OHP on this basis and no racial profiling was found.  However, in response to the lawsuit, each warning and field interview is cataloged with the race of the motorist and kept in a database in Oklahoma City.  The data is presented with racial breakdowns in a pie chart.  Trooper Brown testified that his personal stats indicated that his stops were 62% white, 33% hispanic, 6% black, and the rest was "other."

He also testified that these stats are public records and can be accessed by anyone.  I was not aware of this.  If the data is accessible it would probably be a good idea to acquire it in your cases or make it part of a discovery request.  One problem that I see with the data is that it may track stops and not detail the actual searches.  Thus, a trooper could easily stop 10 white persons and issue quick warnings, but then stop black or hispanic males and run the dog around the vehicle.

The saga of the prosecution of three members of the Duke University lacrosse team has exposed a District Attorney in North Carolina who seems to be completely oblivious to the fact that his career seems destined to end with a disbarment.

Mike Nifong is in deep trouble with the state Bar over what appears to be a completely senseless prosecution buoyed by a witness who is inherently not credible.  Nifong had been accused by the Bar of making misleading and prejudicial comments about the accused athletes in the case.  This is not really surprising.  Prosecutors regularly play hardball in the press, the cops use perp-walks to vilify defendants, and tough prosecutorial tactics are to be expected in high profile cases.

But Nifong has been zinged with more allegations by the Bar which center around, of all things, Brady violations.  Nifong's case rests upon the credibility of the complaining witness.  He has already dropped the most serious allegations of rape because she changed key details of her story.  The players are still charged with other sex offenses and kidnapping.

Now we find out that Nifong had outsourced the DNA results to a private company and the results showed the presence of genetic material on the woman's body and on her underwear but none of it belonged to the three accused lacrosse players.  Nifong had known about these tests that would destroy his case but failed to turn the results over to the defense and also continued to tell the trial judge that he had turned over all evidence that could benefit the defense.

Nifong remains dogged in pursuing the case, although he stepped off the case himself amid the first wave of Bar allegations.  I cannot help but wonder why such a man would still pursue a case he knows he cannot win and in such a manner that would place in serious jeopardy his law license.  We probably will never know the answer but I think it will be instructive to watch this case closely to see if the North Carolina Bar issues a written opinion when it disciplines Nifong.

CERT NEWS (OCDW 01.22.07)

SEARCH AND SEIZURE CERT GRANT:  On Friday, January 19, 2007, the Court granted certiorari to the California Supreme Court in an interesting traffic stop case.  The California Supreme Court held that a passenger in a car is not seized under the Fourth Amendment in a routine traffic stop.  This is the minority view and the court noted that the majority rule (and the one followed by the Tenth Circuit) is that the passenger is seized at the moment the driver submits to the official show of authority.  The case below is People v. Brendlin, 136 P.3d 845 (Cal. 2006). 

HERE is a link to other cert grants by the Court last Friday.

OTHER CERT NEWS:  This came to my attention via Karl Keys and his Capital Defense Weekly:

On January 5, 2006, the Supreme Court granted the cert petition of Texas death row inmate Scott Panetti. Panetti v. Quarterman, 06-6407. The case below is Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006). The question presented is: "Does the Eighth Amendment permit the execution of a death row inmate who has a factual awareness of the reason for his execution but who, because of severe mental illness, has a delusional belief as to why the State is executing him, and thus does not appreciate that his execution is intended to seek retribution for his capital crime?"

Other notable Supreme Court news includes Wednesday's oral arguments on "Texas Day" at the Supreme Court when the Court will hear three different capital cases from Texas; Wednesday, coincidentally, is the 30th anniversary of the resumption of executions with the killing of Gary Gilmore by firing squad). The transcript of the recent oral argument in Schriro v. Landrigan is here.

I argued a capital case before the Oklahoma Court of Criminal Appeals last Tuesday, December 18, 2006.  The case involved a child-abuse murder conviction and death sentence.  Toward the end, the State urged the Court to apply the "greater latitude rule" of Myers v. State, 2000 OK CR 25, to child-abuse murder cases.  The rule in Myers grants greater latitude to the State to introduce evidence of other crimes in sex-abuse cases.

In my case, the State had introduced a prior conviction for child abuse out of California.  The State argued that the rule of Myers should be extended to child abuse murder cases.  Judge Lumpkin told the Assistant AG arguing the case that a majority of the Court had overruled Myers.  The Assistant was surprised to hear this and I was, too, since I was not aware of any published case that had overruled Myers.

I still have not found one.  The only case I can find that seems to support Judge Lumpkin's statement is the unpublished case of Carter v. State, decided June 30, 2006.  I do not read Carter as overruling Myers but Judge Lumpkin seems to think it does and none of the other judges on the bench disagreed with him.

This is another example of the extremely quirky and odd practice of the Court of using unpublished cases, which presumably have no precedential value, to overrule or modify published opinions.  So, if you have a sexual abuse case and the State files a Burks notice and cites Myers, you can counter it with Carter and the comments from Judge Lumpkin.

Last week brought a major development in the conduct of state multi-county grand juries.  If you have any clients affected by such a grand jury or plan to represent such a client you must be aware of this.

In a case out of Oklahoma County, several defendants were indicted and hired, respectively, Mack Martin, Stephen Jones, Garvin Isaacs, and Chris Eulberg.  With that bunch in the pit odds were very good that something beneficial would happen to the defense.  Mack paved the way with this MOTION TO QUASH that was granted last week by Special Judge Roma McElwee.

Mack noticed in the transcripts of the grand jury proceedings that the court reporter had noted the presence of two alternate jurors during the proceedings.  The presence of non-grand jury members or other authorized person under statute is a violation of the Oklahoma Constitution and state statutes.  There is no provision in the law for alternates in the grand jury.  Judge McElwee agreed and quashed the indictments.

In an article that ran in The Oklahoman on Saturday, January 6, 2007, A.G. Drew Edmondson is quoted as saying that "This ruling is contrary to 100 years of grand jury practice in the state."  This is an interesting statement which indicates that alternate jurors are always present before the MCGJ.  If this is the case, then all indictments in all pending (and potentially concluded) cases may be similarly infirm. 

This issue is going to wind its way to the Court of Criminal Appeals most likely, but first the A.G. is going to appeal to District Judge Virgil Black at a hearing set for 4:00 p.m. on January 19, 2007.  If Judge Black upholds the Motion then the appellate court will get a crack at it.  Until then, I would suggest you get those motions drafted and filed.

¶21 Several states have adopted a "greater latitude" approach to the admission of other crimes evidence in sex crimes cases.  See State v. Davidson, 613 N.W.2d 606, 617 n.12 (Wis. 2000).  The Federal Rules of Evidence have also been expanded to include a provision for the introduction, in sexual assault cases, of "evidence of the defendant's commission of another offense or offenses of sexual assault . . . for its bearing on any matter to which it is relevant." Fed. R. Evid. 413.

¶22 In keeping with this "greater latitude" for introduction, the court in State v. Davidson allowed the introduction of a sexual assault on a girl which had occurred ten years prior to the charged offense, also a sexual assault on a young girl. There were just as many differences in the assaults as there were similarities. However the court, following a "greater latitude rule," determined that the evidence was relevant to show motive, as well as common plan or scheme. Davidson, 613 N.W.2d at 620-21.

¶23 Wisconsin's rules of evidence are substantially similar to our own. Wisconsin has a "long-standing principle that in sexual assault cases . . . courts permit a 'greater latitude of proof as to other like occurrences.'" Davidson, 613 N.W.2d at 615 (citations omitted).  However, before admission, the other crimes evidence must conform to certain [17 P.3d 1030] rules such as: (1) whether the evidence is introduced for a proper purpose, Wis. Stat. § (rule) 904.04(2) [same as Title 12 O.S.1991, § 2404(b)]; (2) whether the evidence is relevant pursuant to rule 904.01, and (3) whether the probative value is substantially outweighed by the danger of unfair prejudice, confusion, or delay under rule 904.03. Davidson, 613 N.W.2d at 614-15.

¶24 Our holding today brings our interpretation of Title 12 O.S.1991, § 2404(B), in line with the clear language that the exceptions are not exclusive. The trial court acted properly within its discretion in determining that evidence of the Hames and Fain assaults were probative and admissible. The evidence was properly admitted under current Oklahoma law. Further, the evidence would be admissible under the "greater latitude rule" recognized today for cases

I was out of town during the Bar Convention (attending one of the three funerals in Louisiana in the last 30 days) and missed the annual awards.  I feel really bad about it because these awards are important and meaningful and every criminal defense lawyer should make an effort to attend the presentation.  The awards were given as follows:

The Lord Erskine Award:  Paul Brunton, Federal Public Defender for the Northern District of Oklahoma.  This award is not necessarily awarded annually and is for lifetime achievement and dedication to defense of the citizen accused and Paul clearly a worthy recipient. 

The Clarence Darrow Award:  Jack Pointer, Oklahoma City, who was very busy in trial work this summer, netting two acquittals.  Great work, Jack!  You deserve it.

The Thurgood Marshall Award:  Gail Gunning, OIDS non-cap direct appeals, who demonstrated why she was selected for this award (for appellate advocacy) in the Johnson case above which is an appellate winner in a trafficking case where the client received LWOP(!)

The President's Award:  Deborah Reheard, Eufaula, awarded by Doug Parr for her contributions and work on the Judicial Nominating Committee.

Congrats to you all and also to David Ogle, President-Elect of the Oklahoma Criminal Defense Lawyers Association.

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.

The viability of lethal injection as a method of execution has continues to be drawn into question based upon recent events in California and Florida.

A federal judge in CALIFORNIA has ruled that the procedure is intolerable under the Constitution and the opinion has stymied executions in that state for the time being.

Last week, FLORIDA officials botched an execution by inserting improperly the needles into the arms of convicted killer Angel Diaz.  It took 34 minutes for Diaz to die.  As a result, Gov. Jeb Bush has suspended all executions in the state.  More on the botched execution can be found HERE.

Stephen Jones, Enid, is embroiled in what appears to be a particularly pugnacious case with the state Attorney General's Office.  There were some recent, front-page, headlines where a lawyer, formerly employed by Jones, accused Jones of "threatening" him regarding his testimony before a multi-county grand jury.  I thought it was extremely peculiar that an attorney would offer testimony (voluntarily) to a grand jury regarding a client.  Stephen has provided some insights into this situation and his dealings with the AG may assist some of you in the future if you find yourself in a similar situation.

Stephen reports that the Multi-county Grand Jury Unit of the Attorney General's Office violated Rule 3.8(g) of the Oklahoma Rules of Professional Conduct when it sent two investigators to the residence of an attorney who formerly was employed by Jones and who worked on matters relating to clients Brad and Gene Phillips.  The investigators wanted the attorney to meet Assistant Attorney General Joel-lyn McCormick at her office the following day and served him a Multi-county Grand Jury subpoena.

Jones wrote the lawyer a letter which was hand-delivered to his house advising him that the attorney-client privilege, the attorney work product privilege and the rule of confidentiality precluded any disclosures by this former attorney-employee concerning his work for the clients. The former employee had told Jones that the investigators questioned him about the work for the clients.  Jones quickly wrote a letter to Joel-lyn McCormick immediately to invoke the attorney-client privilege.
 
She did not respond to his letter and, not receiving any response, Jones contacted Judge Dixon, judge of the Multicounty Grand Jury Unit.  Judge Dixon signed an order pursuant to Rule 3.8(g) staying any grand jury appearance.  The following day he sustained a motion to quash the subpoena served on the former lawyer.  Jones then had another lawyer in his firm deliver a letter to the former employee's residence asking for full information concerning any disclosures of the attorney-client matters or matters covered by the rule of confidentiality.

The former employee considered this contact a "threat" and he notified the Attorney General's office who apparently brought the employee before the Multicounty Grand Jury to hear testimony concerning the alleged "threats."  Then, with the encouragement of the head of the Multicounty Grand Jury Unit, the former employee filed a police report which found its way to The Oklahoman which in turn published a story about it, front-page and above-the-fold, on or about November 10, 2006.

Jones has filed other actions relating to this matter which are under seal and obvioulsy could not be disclosed here.  To my knowledge, and as far as Stephen knows, this is the first time that the Attorney General's office has attempted to subpoena a lawyer to testify before the Multicounty Grand Jury about matters of his legal representation.  This situation is a stark reminder to us all of the duty of confidentiality, and we as defense lawyers should acquaint ourselves with Rule 3.8(g) and be alert to such subpoenas because apparently, judged by this case, the Attorney General's office will not give the courtesy of notification to the former employer.

Congratulations to Andrea Miller and Gloyd McCoy for being selected to receive the Thurgood Marshall Appellate Advocacy Award.  Well deserved by both.  Andrea had more published wins in the last year than anyone and Gloyd probably has the most published wins of anyone, ever.

Also, Tony Lacy at the Federal Public Defender's Office in OKC was the recipient of the Clarence Darrow Award.  Tony won three consecutive jury trials in federal court which, as all of you well know, is quite a tall order.

OTHER AWARDS:

Randy Grau, Edmond, was the recipient of the Earl Sneed Continuing Legal Education Award, given annually for outstanding continuing legal education contributions.

Janice Loyd, Edmond, received the Award for Outstanding Pro Bono Service for offering free legal assistance to children and families.

HERE is the OBA web page for other awards presented at the annual meeting.

Last week was a meeting of the OCDLA north in Denver, Colorado.  I argued a case on Tuesday before a panel consisting of Lucero, Kelly, and Tymkovich.  Also there were Steve Presson and Mark Barrett.  Barry Derryberry was down the hall arguing one of two cases he had during the week.

On my way into the courthouse I had the horror-of-horrors happen to me.  I showed my DL to the marshal who took it and eyeballed it for a long time.  He handed it back to me and said, "Your license is expired.  You can't come in here without a valid ID."  Gulp.  I looked at my DL and sure enough, it had expired two weeks ago and I did not realize it. 

Amazing.  My argument was scheduled in thirty minutes and I could just imagine my case being called and me not being there.  I explained the situation to the marshal and he made me wait in the foyer while he obtained authorization from somewhere.  He came back about fifteen minutes later and let me through.  Whew!

My case involved a drug conviction (67 pounds of cocaine) and a traffic stop.  There were some interesting issues and I thought the argument went fine.  I left myself two minutes for rebuttal which came in handy as it always does.  Mary Smith from the U.S. Attorney's Office in OKC argued for the government.

Lucero can be very gruff from the bench but he did not jump on me and luckily I was not blindsided by any questions from the panel.

Steve Presson argued before me on the double jeopardy case he won before Judge Russell a while back.  The State appealed and Steve found himself in a very strange place:  seated at the appellee's table!  One of the assistant district attorneys argued the case for the State and it was obvious he had little experience (if any) in the Circuit.  He was very prepared but talked very fast, trying to cram everything in during his time.  He actually had another prosecutor with him who was going to bat clean-up but he ran out of time without reserving any rebuttal.  When you are up there in the headlights, the time goes by very fast.  You cannot discuss every aspect of your case and if you get bogged down in the questions from the judges it runs out before you know it.

Steve, of course, was an old hand and calmly refuted the State's arguments.  It sounds like Steve has a winner, but I have found that you cannot tell too much from the arguments.

All-in-all, it was a good trip.  Denver is a very nice city with many fine restaurants and other things to do.  If you ever have to go there, I suggest you take your significant other and spend a few days there. 

NOTE:  Preservation of error is a wonderful thing.  When you handle appeals the best thing you ever see is a transcript page where the trial lawyer articulates an objection or a written motion seeking suppression, dismissal, etc. and is followed up by trial counsel and re-urged at trial.  Do not EVER get in too big a hurry during the heat of battle where you fail to object to a possible error.  Preserving the errors in this manner obtains for your client the possibility of appellate review and helps us appellate lawyers out by not having to tap-dance to the "plain error" tune or arguing structural error.  It makes a HUGE difference, folks.

The 85% rule has become a treasure trove for appellate lawyers, resulting in many cases being remanded for re-sentencing, including the cases featured below, or modified by the Court on appeal.  If any of you tried a case, or know of a client who may have this issue but has not appealed it, you might want to think about raising it ASAP.  It is worth a shot.  If you are unclear about how to proceed if, for example, the ten day appeal time has expired, give me a call and I can guide you through it.  Also, Steve Presson in Norman, Gloyd McCoy in OKC, or Andrea Miller in OKC can assist your clients as well with this issue.

Edgar Allen Moore v. State, No. F-2005-1031 (Okl.Cr., November 8, 2006) (unpublished):  Sufficiency of the Evidence; Jury Instructions: Defense Requested Instructions; Curative Instructions:   Moore was convicted by jury in Caddo County of Shooting w/Intent to Kill and KCSP.  He was sentenced to 50 and 5 years, respectively, by the Hon. Wyatt Hill.  HELD:  1) the KCSP count is reversed for insufficient evidence; and 2) the SWIK count is affirmed but remanded for re-sentencing pursuant to the 85% rule.  Good language from the Court on the sufficiency claim.  The Court stated that "mere possession of stolen property is not enough; possession must be supplemented with facts inconsistent with honest possession."  Error was found also in the prosecutor's repeated statements that Moore did not take any action to give the gun back to the owner (improper comment on Moore's right to remain silent) and the single admonition did not cure the error.  Finally, trial counsel requested an 85% instruction when the jury sent a note inquiring about parole eligibility and the trial court refused it.  Thus, the principal count is reversed and remanded for re-sentencing.

Clarence Andre Gatewood v. State, No. F-2005-829 (Okl.Cr., November 17, 2006) (unpublished):  Jury Instructions: Defense Requested Instructions:  Gatewood was tried by jury on a charge of First Degree Murder, but convicted of the lesser offense of Second Degree Murder and sentenced to Life.  Remanded for re-sentencing based upon lack of an 85% instruction pursuant to Anderson v. State.

Thomas Terrill v. State, No. F-2005-527 (Okl.Cr., November 9, 2006) (unpublished):  1) Jury Instructions; Defense Requested Instructions and 2) Prosecutorial Misconduct; Improper Argument:  Terrill went to trial in Pushmataha County charged with First Degree Murder but was convicted of First Degree Manslaughter and sentenced to life.  The Court affirmed the conviction but remanded for re-sentencing on an 85% instruction error and prosecutorial misconduct (evoking sympathy for the victim and closing with "If you take a life, you give a life").  This is another plain error case where the jury sent a note asking about parole eligibility which combined with the prosecutorial misconduct to create the error.

HERE is an update to the U.S. Attorney's Manual regarding the Government's obligations under Brady.  I cannot really see a lot of substance in this revision and anything that begins, "The Department of Justice is proud of the long record of federal prosecutors meeting or exceeding their obligation, pursuant to Brady v. Maryland and Giglio v. United States, to disclose exculpatory and impeachment evidence to criminal defendants in preparation for trial" does not exactly inspire confidence.

HERE is an interesting map of the city of Edmond depicting "Sex Offender Buffer Zones" which are the areas from which sex offenders are prohibited from living.  The map details a surprisingly (at least to me) large area verboten to sex offenders.

I would imagine that the larger urban areas in the state have a similarly large area that excludes sex offenders.  The legislature has gone "registration" crazy lately and it appears the federal government is going to enact (or may have already) similar requirements.  Finding places where these clients can legally live may become difficult.

The ACLU has filed a lawsuit in the U.S. District Court for the Northern District of Oklahoma challenging these requirements in Tulsa.  The lawsuit centers around Tulsa and challenges recent Oklahoma legislation which would place almost all of Tulsa off-limits for sex offenders to live.

No new cases yet from the Court's brand new term, but the Court has been busy listening to the arguments of counsel in the cases where certiorari had previously been granted.  The Court's certiorari practice puzzles me.  I file certiorari petitions with some regularity in the capital habeas cases I have and also in some of the non-cap cases when the clients can afford it.  Trying to figure out what types of issues will catch the attention of four Justices is an arduous task and, I am becoming more inclined to think, a crap shoot.

Now, I like shooting craps, but some of the cases the Court chooses to review do not make sense to me.  For example, the Court last week heard oral arguments in a case from the Ninth Circuit where family members of the victim in a murder case attended the trial wearing buttons that depicted the deceased.  The Ninth Circuit reversed the conviction in the case and the Supreme Court apparently thought this issue was important enough to review out of the 8,000+ petitions the Court receives every year.  I do not understand this.

The case is really about application of the AEDPA deference standard to be applied by federal courts to the decisions of state courts.  The issue is whether, in the absence of a specific Supreme Court case on point---and there is no such case from the Supreme Court regarding buttons---can a federal court of appeals say that a state court decision was contrary to clearly established federal law?  

This, to me, is a marginal issue, and the Court chose a marginal case to address the marginal issue.  The Court's limited resources and time should be spent on deciding the profound issues of the day that affect the administration of justice in the country as a whole; yet, it plucks this "buttons" case from the sludge pile of certiorari petitions, grants certiorari, and schedules oral argument in the case with a full published opinion to follow.

As the Court listened to the oral argument in the buttons case, there remains a true circuit split in the federal courts of appeals whether federal Criminal Justice Act money can be spent on lawyers to defend state death row inmates in state clemency proceedings.  In some circuits the capital prisoner gets counsel and in some circuits he does not, the circuits are split, and it makes a big difference in the administration of the death penalty and also in the administration of thousands of federal dollars; yet, the Court has refused to take this issue for decision, apparently in favor of other issues such as the buttons case.

The grant of certiorari alone is usually the kiss of death to any criminal case out of the Ninth Circuit, but I am dismayed that such a quirky factual issue gets the special treatment of full consideration by the Supreme Court.  There was no circuit split, no conflict among the state courts of last resort, nor any conflicts between the federal courts and the state courts on this issue.  If I was an oddsmaker I would set the line at about 100-1 against that the Ninth Circuit decision survives review in the Supreme Court on this issue.  The Court should probably summarily reverse in a per curiam opinion and turn its attention to something important.  But, that is just my opinion.

On the bright side, do not be shy about recommending a certiorari petition to your clients if they want to pursue the matter because you can tell them, truthfully, that whatever issue they have, it probably has as much a chance at getting review as any other. 

Book Review by Gary Carson

Note:  I have corresponded with Gary for several years over the internet and in person and he is quite an interesting fellow.  He has published books on game theory, focusing primarily on poker, and has authored and published many articles on probability, and game theory on poker and other casino games.---Ed.

Statistics for Lawyers (2nd Ed) by Michael O. Finkelstein & Bruce Levin.

The first edition of this book (1990) was very well received.  Co-authored by a statistician and a lawyer, the book provides both solid law and solid statistical analysis.  Much of the use of statistics in the law is applicable in civil cases, things like assessing damages, identifying causal factors, or proving discrimination often hinge on statistical interpretation.

Other comments the juror made:

I was surprised he was tried. The only thing that got it to court IMHO was a comment he made to the breathalyzer guy saying "my lawyer told me don't do shit and he'll get me off." I think that got the DA interested enough to chase his less senior assistant after it.

NOTE:  I suspect inquisitive jurors like this are few and far between.  I did find his comments regarding the videotape interesting. 

When I began this newsletter, about a year and a half ago now, I never envisioned doing much more than reporting the cases.  However, there are several judicial races going on now and politics is in the air.  I cannot help myself.  There are two judicial races in Oklahoma County that have caught my attention.

Judge Susan Caswell/Bill Graves:  Graves is a staunch conservative and, under other circumstances, it would be difficult to endorse him as a judicial candidate with an eye toward making sure the rights of those accused of crimes are protected.  However, he is running against Judge Susan Caswell, who, as far as I know, is the only sitting state District Judge who has been described by a sitting Judge of the Oklahoma Court of Criminal Appeals as unfit to sit as a judge in any criminal case.  She was soundly rebuked by the Court of Criminal Appeals just last month in the Mitchell case for being so biased in favor of the prosecution that the Court surmised that she had "forgotten, at least momentarily, where she was sitting and what she was wearing."  She is a remnant of the prosecutorial staff created by Bob Macy and apparently learned what she knows about the criminal justice system and the Constitution trying cases with him.

If you have ever wondered what it would be like trying your case if the prosecutor was the judge, you need only try a case in her court.  Graves is the clear choice in this race for the hope of a semblance of fairness and impartiality in the Oklahoma County courthouse.  Evidence of this fact is found in a recent edition of The Oklahoma Observer (June 25, 2006, page 3).  As many of you may know, Frosty Troy is the walking definition of a Yellow Dog Democrat, or in the words of my old boss, Stephen Jones, he is "an unreconstructed FDR Democrat."

Here is what Frosty Troy had to say about the Graves/Caswell race:  "By all means vote for former GOP Rep. Bill Graves for Oklahoma County district judge---supremely preferable to the incompetent, biased Susan Caswell."  That is, of course, a very strong statement; and it is even stronger considering the political backgrounds of Troy and Graves.  Yet, in a race between Caswell and Graves, Troy perceives Graves as the superior candidate.  I think this says a lot about Graves who, at the very least, is likely to apply the law evenhandedly in the courtroom and not blatantly side with the prosecution at every turn.

Judge Vicki Robertson/Patrick Crawley:  Judge Robertson handles primarily a civil docket, so it is somewhat puzzling why Crawley wishes to fill that seat, unless of course he wishes to acquire more criminal cases once on the bench.  Crawley is a former police officer and career prosecutor, having served in the Office of the Attorney General before bouncing back to the Oklahoma County District Attorney's Office where he handles quite a few of the appellate matters.

I have dealt with Crawley on cases and have read many of his written arguments in motions and briefs he has filed.  My opinion is that if he is elected to the bench Oklahoma County defense attorneys will have two "Susan Caswells" with which to deal. 

Judge Vicki Robertson, on the other hand, has a solid reputation for fairness, cool deliberation, and evenhanded application of the law to the facts at hand.  She is unquestionably one of the cream of the crop in Oklahoma County and it would be a very sad day for the rule of law if she were defeated.

John Albert Boltz was put to death last Thursday, June 1, 2006, at OSP.  John was a client of mine for seven years (I was appointed to represent him in federal habeas) and he became the oldest inmate to be exectued in Oklahoma history (he was one month shy of his 75th birthday).

The lethal injection procedure has come under fire recently as evidence mounts concerning the inadequacy of the protocol used in Oklahoma.  Oklahoma uses three drugs and between unqualified personnel administering the drugs and the low dose of the sedative drug, there is a significant risk that the prisoner may experience "conscious paralysis" which means he may be aware and able to feel pain yet be paralyzed and unable to tell anyone.  This creates a situation where the administration of the other two drugs may be felt by the prisoner and without proper aneshesia, the other two drugs are very painful.

The Pardon and Parole Board denied clemency on May 23, 2006, and this lethal injection argument was about the only thing left.  The LI claim was brought as a federal civil rights claim under 42 U.S.C. section 1983 rather than habeas because it attacks the implementation of the sentence rather than the sentence itself; and also the civil rights route avoids some of the very serious procedural hurdles applicable to successive habeas petitions.  

United States District Judge Stephen P. Friot set a hearing on my application for a TRO at 11:30 a.m. the day of the scheduled execution.  The hearing took over two hours and in the end Judge Friot issued the TRO.  The State promptly appealed to the Tenth Circuit.  This is one of the hazards of eleventh hour capital litigation and I had been through it all several times before.  The clerks receive the briefs by e-mail and sometimes a litigant must file a "prospective" or "anticipatory" brief concerning a decision that has not occurred.  I did this in the United States Supreme Court before the Tenth Circuit issued its decision (in the event the Circuit dissolved the stay by Judge Friot).  The Circuit did in fact dissolve the stay and it took the Supreme Court until about 5:45 p.m. to finally deny all relief.  That was the end of the road.

John invited me to witness the execution but I could not make it in time because of the flurry of litigation at the end.  I am firmly convinced that he did not deserve the death penalty.  He in fact stabbed his 22-year-old step-son to death but argued all along it was self-defense.  The attack happened at John's trailer house and I believe that had the Make My Day and the Stand Your Ground laws been in effect at the time of his trial his case may not have gotten past preliminary hearing.

This was a true injustice in my opinion and one of the cases that will stay with me for a long time.  Randy Bauman of the Federal Public Defender's Office assisted me greatly in the end (Randy had represented John way back in state post-conviction) as did Lisa McCalmont, another lawyer in his office who I think is probably one of the foremost experts in the country on the lethal injection claim.  I thank both of you for your efforts and assistance.

RIP, John.

Tucker v. State, 71 P.2d 1092, 62 Okl.Cr. 406 (1937):  "An officer seeking the enforcement of one law should not violate another in order to accomplish his purpose.  Such conduct brings the administration of justice into disrepute and shows a subversion of peace and good order. When the officers searched the car of the defendant and claim to have found the whiskey therein, they did so without any legal authority, and the search and seizure was unlawful and a violation of the defendant's rights as guaranteed him by the laws and Constitution of Oklahoma."

Jones v. State, 166 P.2d 443, 82 Okl.Cr. 91 (1946):  Establishing that a warrantless search of an automobile, not based upon a lawful arrest or probable cause, but mere suspicion, violates the Oklahoma Constitution, article II, section 30 and the remedy is suppression.  In this case, OHP became suspicious of a car parked on a dirt road and stopped the car when it began to drive away.  When the car stopped, the trooper reached in, turned off the ignition, and saw the bottle of whiskey.  The trooper did not establish that the substance was whiskey until after the illegal stop.  Suppressed.

Johnson v. State, 220 P.2d 469, 92 Okl.Cr. 63 (1950):  Traffic stop based upon truck "allegedly drove across the center of the line in the highway" and driver given a warning.  The Court stated:  "It is apparent to us, based on the evidence and the reasonable inferences to be drawn therefrom, that the officers were suspicious that defendant was transporting intoxicating liquor in his automobile. They started following it with the intent to investigate and search the car because of their suspicion.  Defendant was driving at a very moderate rate of speed and the officers followed him for several miles before they forced him to stop by sounding their siren and turning the red stoplight on him.  The fact that defendant might have crossed the center line of the highway a few inches during this drive was merely used as a subterfuge by the officers to cover up their determination to search defendant's car.  The officers did not become aware of the whiskey being contained in the automobile until they discovered it after forcibly stopping defendant. The stopping of defendant's car under the authority of Hoppes v. State, supra, constituted a constructive arrest of the defendant at that time and under the authority of all of the above-cited cases this unlawful arrest could not be used as a basis for making the search which discovered the whiskey."  In addition, the Court noted, "We have absolutely no sympathy for this whiskey man, but if we should ignore the plain language of the Constitution and statutes of Oklahoma and the former decisions of this court in order to make it easier to convict this bootlegger, then such precedent could conceivably be used to harass multitudes of innocent people by subjecting their persons or automobiles to search upon the mere whim or suspicion of the officer."

Holland v. State, 226 P.2d 448, 93 Okl.Cr. 180 (1951):  Bootleggers driving a truck passed a trooper at night.  The trooper was stationary when the truck drove by and pulled out to follow the truck.  The truck then passed the Sheriff's patrol car and it followed also.  When the truck turned off the highway, the Sheriff effected the traffic stop, went to the truck, stepped up on the fender, looked inside the truck and said, "this is a load of whiskey."  The Sheriff testified that the driver was arrested for "reckless driving" when the truck turned sharply off the highway in front of oncoming traffic.  The Oklahoma Court of Criminal Appeals suppressed the evidence on the basis that the traffic stop was "purely a pretense and subterfuge for concealment of the real purpose of searching the automobile."  The Sheriff had testified that he had been waiting for the truck and did not attempt to secure a search warrant.  Notably, the highway patrolman did not cite the driver for a traffic violation.

:  In the extensive changes to the Court's Rules issued recently, we might want to take note that the Court has added quite a few questions to the mandatory plea form (Form 13.10), including questions designed to make sure the Defendant understands if the crime is an 85% crime, is subject to sex offender registration, and has any earned credit restrictions (see the new question 14 on the form).  This is very interesting because it seems to suggest that these things are punitive and part of the sentence and, thus, the Defendant must be aware of them in order to make the plea knowing and voluntary.  This also suggests that JURIES should be made aware of these restrictions on the actual length of incarceration as well in the form of a jury instruction.  In the area of sex offender registration, the Court has been reluctant to hold such instructions mandatory but I am not aware that the Court has been presented with a proper case in which the issue was preserved at trial with a requested instruction.  In Derek Tewinin Edmonds v. State, No. F-2007-220 (Okl.Cr., May 14, 2007), Judge Chapel opined that the issue is "live" in a proper case.

Also, HERE is an interesting chart assigning various sex offenses to a level of registration. 

The Department of Corrections has a neat place on its web site that tracks bills in the Oklahoma Legislature dealing with criminal justice issues.  HERE is the link if you are interested in perusing what is coming down the pike or what has already been passed into law.

Some notable bills/new laws include:  HB1005 (increasing from two hours to three hours the time for blood/breath testing in DUI cases; and making DUI a felony if the violator is involved in an injury accident); HB1567 (creates "guilty but mentally ill" as an optional finding by a jury); SB0981 (provides for forfeiture of motor vehicles used to evade pursuit).

One of the main driving forces behind many of these odd criminal justice bills is Senator Jonathan Nichols.  He was in my law school section and graduated with me in 1993, although I was not friends with him.  But even in law school he was a strange guy, often brooding in class and refusing to participate in the Socratic method which resulted in tension in class a good deal of the time.  He was a prosecutor in Cleveland County for several years and has now become an extremely conservative voice in the state Senate.  When you hear about a strange bill percolating in the legislature that appears to upset current law in the context of criminal justice, there is a good chance this guy is behind it.

I received a phone call last week inquiring about the unpublished case wherein Judge Chapel opines that Sex Offender Registration is punitive in nature and thus might be a subject upon which the jury should be instructed.  His comments were made in his specially concurring opinion in Derek Tewinin Edmonds v. State, No. F-2006-220 (Okl.Cr., May 14, 2007) (unpublished), and are as follows:

"I concur in affirming the conviction and sentence in this case.  However, I am of the opinion that the requirement of registration as a sex offender upon conviction is not a "collateral consequence" of a conviction for sex offenses.  Rather, I believe such registration requirement is a direct consequence of the conviction and since it involves substantial restrictions upon one's liberty, it should be considered punitive and part of the sentence.  In a proper case where an instruction is requested and where the issue is preserved and fully briefed, this Court should then consider whether an instruction is required."

Notice the last part:  in a proper case where an instruction is requested and where the issue is preserved and fully briefed[.]  Clearly, if this issue is going to get any play at all, it will be in a case where a good record is made concerning the effects of registration and where an instruction is requested at trial.

Ideally, I would like to see some some testimony from law enforcement detailing the requirements of registration and showing just how onerous it is in terms of finding a place to live and also the fact that such a person will have a driver's license stamped "Sex Offender" on it.  Hopefully, with a good record in the trial court, the Court of Criminal Appeals will be presented with the full picture of effects of such a conviction.

Oyez! Oyez! Oyez! (OCDW 01.21.08)

The Oyez website has archived the oral arguments in the Supreme Court for a while now, but I have not been back there in some time.  If you have not checked out the site lately, you are in for a treat. 

The site not only has the audio of the oral arguments, but also a scrolling transcript as well as photos of the Justices when they are speaking.  The interface makes it very easy to follow.  HERE is a link to the argument of a couple of weeks ago in the Kentucky lethal injection case, Baze v. Rees.  If you want to read the transcript only, it can be found HERE

The recent decisions re: Gall and Kimbrough are being felt in the federal courts of appeals.  Opinions from the Fourth Circuit and the Eleventh Circuit indicate that the federal appellate courts have gotten the message that the District Court sentence is to stand unless there is an abuse of discretion, even when the sentence is below the applicable Guidelines range.  See United States v. Pauley, No. 07-4270 (4th Cir., December 28, 2007) (sentence of 42-months for possession of child porn affirmed over the Government's appeal when the Guidelines called for 78-97 months); United States v. McBride, No. 06-16544 (11th Cir., December 28, 2007) (sentence of 84-months for distribution of child porn affirmed over Government's appeal when the Guidelines called for 151-188 months).

Pauley in particular contains a very good discussion of the history of federal sentencing both pre- and post-Booker. 

Michael D. Morehead, OIDS Capital Direct Appeals Division, has brought to my attention a possible issue concerning the appellate use of juror questionnaires.  He has a case where the trial judge promised that the questionnaires would be destroyed, except for those of the actual jurors who sat on the case and then only for appellate purposes. 

The problem is that all the questionnaires are arguably relevant to Batson claims and/or cause challenges or other issues.  The Court of Criminal Appeals has not established procedures governing the retention of such questionnaires or how they are to be kept for purposes of the appellate record.  My feeling is that judges do not like to divulge these questionnaires; so, if you have a case where you have used them, it will be up to you to make sure that they are kept for inclusion in the trial record and thereafter included in the record on appeal.  

Probably the best way to handle this issue is to have a hearing and make sure the trial judge knows what you want and can make sure any appropriate protective orders are in place prior to trial so there is no ambiguity about what happens to the actual questionnaires after the trial.

In the continuing effort of the police to crack down on meth manufacturers, I have run across cases in which the police acquire the sign-in logs from pharmacies, such as Walgreens, to determine who is buying pseudoephedrine and in what quantities.  I believe that in the typical case, the Detective just walks in off the street and examines the log.  There may be a way to attack this investigatory method.  A very powerful way.

HIPAA.  The Health Insurance Portability and Accountability Act.  This as a piece of congressional legislation that is an 800-lb. gorilla for hospitals and health care providers because it imposes very stringent regulations on the dissemination of medical information.  The implementation of the regulations are found by the pound in the CFR, but the key point is that entities that receive medical information are behooved to comply with HIPAA because divulging "individually identifiable health information" is a federal crime under 42 U.S.C. sec. 1320d-6(!)

The information in the sign-in logs appear to meet the definition of "individually identifiable health information" under 42 U.S.C. sec. 1320d.  It appears to me that a detective walking into Walgreens and asking to look at the sign-in log does not comply with HIPAA and that the state officer may be committing a federal crime by doing so (and so is the pharmacy).

I have not found any cases on point and the HIPAA regs are nearly as indecipherable and complicated as the IRS code; but, if you have a case like this and want to cause some indigestion at the D.A.'s Office and at the police department, you may want to bring up HIPAA and see what they do.  Also, you may want to contact a HIPAA compliance officer at a local hospital to clear up some of the gray areas.

Let me know if any of you have success with this so I can report on it further.

The Oklahoman reported on Friday, December 2, 2005, that Oklahoma City plastic surgeon Lori Hansen decided to retire from the practice of medicine.  Hansen plead guilty in Oklahoma County in 2002 to two felony counts of obtaining a controlled substance by misrepresentation.  There is no record of it now because she completed her one year deferreds and the record has been expunged.  She decided to retire because she is still on probation with the Medical Licensure Board and tested positive for alcohol which was a violation of the terms and conditions of her probation concerning her medical license.

Her decision to retire probably would not make any newspaper except for one thing:  she is the wife of Oklahoma County District Attorney Wes Lane, who, to his great credit, has stood behind her and appears to be very supportive.  According to the article, Lane acknowledged that his wife's addiction has helped him become a better prosecutor, stating:  

"There is a class of offender that does not possess a criminal heart....Their conduct is driven by an addiction and not an intent to be a criminal.  If they want to help themselves, we want to help them.  If they don't want to help themselves, we're going to protect the public."

I commend Lane for making this statement.  It is true; and it almost certainly applies to Lori Hansen, who I think received a plea bargain in-line with others similarly situated, i.e., no special treatment.

I would, however, offer this small criticism of Mr. Lane:  his recognition of a different "class of offender," as a policy statement, has not percolated through the ranks of his office as far as I can tell.  There are a great number of criminal defendants prosecuted by Mr. Lane's office that fall into the "class of offender" driven by addiction and deserving of the understanding attendant to that particular affliction.  That is not to say that first time drug offenders are being thrown in prison; rather, my sense from Lane's office, and other prosecutorial districts around the state, is that a hard line policy prevails in most drug cases, particularly where meth is involved.  These persons for the most part are addicts going through the same struggle as Lori Hansen.  In my practice it is the rare state-court defendant who manufactures and sells drugs for profit alone and does not have an addiction also.

I hope Mr. Lane follows his own observation and uses the power of his office to institute the perspective that persons addicted to controlled substances need long-term ongoing assistance apart from the prison system, with an eye toward non-DOC placement (e.g., Avalon) as a first suggestion rather than as a fall-back compromise in lieu of prison time.

He said the experience of his wife has made him a better prosecutor.  I hope he really means

I attended a CLE in Tulsa on Friday, June 3, 2005, and was pleasantly surprised by the interest and attention to federal criminal procedure given by Judge Friot (W.D. Okla.).  He has vast experience in civil matters and has apparently become highly interested in criminal cases.  He was the prime mover and moderator of the CLE.

On the topic of federal detention hearings, the presentation was given by Magistrate Paul J. Cleary, who presented a written opinion authored by Judge Friot in the Red Elk case.  This opinion is a primer on the standards of pre-trial federal detention and is particularly interesting because it involves a murder case (on Indian land) in which the Magistrate initially denied bond, but granted it later on Red Elk's motion to re-open the detention hearing based upon the fact that the government had not authorized the death penalty and that the drugs that had field tested positive were analyzed by the FBI lab and came back negative. Judge Friot's opinion is very good and outlines the relevant law in this area on the way to affirming the magistrate's decision to grant bail to Red Elk with conditions.

Magistrate Cleary also provided some nuggets from his personal experiences on the bench in conducting these hearings.  At the hearing, there are only two issues:  1) is the accused a flight risk? and 2) is the accused a threat to the community or a specific individual?  NOTE:  the threat does not have to be physical, it can be economic or some other form of a threat.

The two things that are most important to Magistrate Cleary when making these determinations are:

1.  Does the accused have any respectable family member, or member of the community, who will vouch for him/her?  It is important to find a person or persons who will appear in court and testify live in your client's favor.  Judge Cleary was specific that live testimony is persuasive.  No affidavits or written testimonials.  Get them into court!  He wants to know how the person knows your client, if your client has a place to stay, a job or other means of support, and generally what your client will be doing if granted release.  So, iron out those details beforehand so you can present the evidence at the hearing.

2.  Your client's criminal history.  Probably not much you can do about the criminal history, but obviously if your client does not have any that is a huge plus.  If your client does have criminal history note whether it consists of actual convictions or simply contacts or arrests.

"Regarding the second test, Walton argues...that when adjusted for the "Flynn Effect" and the standard margin of error, his score of 77 actually supports his claim of mental retardation. Pursuant to the Flynn Effect, according to Walton, "as the age of an intelligence test moves farther from the date on which it is normed, the mean score of the population as a whole on that test increases." Reply Brief at 25. And, adjusted for the Flynn Effect, he contends, his IQ score of 77 "indicates a full-scale score of 74." Brief of Petitioner at 61. Ordinarily, of course, a score of 74 would not put Walton within the legal range of mental retardation in Virginia. But, like Walker, he further maintains that, after accounting for the standard five-point margin of error, his score of 74 falls within the required range."

The "Flynn Effect" sounds helpful to MR clients.

Hopefully, you will have found the courthouse and checked in with the clerk's office a half hour prior to the argument time and the clerk can direct you to the courtroom (the clerk will have provided detailed instructions in writing way in advance of the argument date).  When you get to the courtroom, another clerk will be there to get things set up and take care of any last-minute problems.  The tables are marked clearly "Appellant" and "Appellee" so you do not have to guess where to sit (facing the bench, the Appellant sits on the right).

You get 15 minutes.  I have asked for more time in the past, and in death cases they sometimes give more time, but the most I have ever gotten was 20 minutes.  At the podium, there is an electronic timer at eye-level set at 15 minutes and it counts down as you argue; there is also a clock on the reverse side so the judges can see the time also.

The Judges file in, the clerk calls the court to order, and the presiding judge, sitting in the center, will call the case.  It happens pretty fast, so if you are first up, be ready; if you are not first up then you can watch and see how things go.  On Tuesday, I was first up.

You just walk up to the podium, say, "May it please the court," introduce yourself, and start on your spiel.  The clock will be counting down from the moment you open your mouth and from my experience, I would be surprised if you can talk for more than two minutes without being interrupted by a question from the bench, with one minute more likely.  In other words, do not rehearse a speech that lasts 15 minutes--you will most likely not be able to finish it.

It is this dynamic that makes the oral argument both interesting but also stressful:  you will be put on the spot by the judges asking you difficult questions about your case.  For this reason, memorizing a speech will not be useful to you.  Frankly, neither will notes.  If you have to break your presentation and look at notes or take time to look through your brief I think you will just waste time, most likely not find what you need, and irritate the judges.  At that point, you either know your case or you don't and I would just tell the judge if you don't recall some detail and move on.

I prepare with 3x5 note cards that I use to outline the issues and facts and I take the cards up to the podium with me, but I have never actually stopped talking and looked at them.  I saw Michael Tigar do this (prepare with the note cards) during pre-trial proceedings in the McVeigh trial and I like it.  He didn't look at his note cards either when delivering an agument, as I recall.

The time goes by much faster than you imagine.  I mean it zooms.  You will not be able to discuss but a fraction of the legal and factual concepts of your case most likely; and you will be steered away from things you want to talk about to issues the judges want to talk about.

When time gets short, if you are the Appellant, you can reserve some time for rebuttal.  Always do this.  This last argument I had was the first one that I did not reserve time and I am kicking myself for it.  With two minutes left I got involved in a question from Judge Tymkovich and let my time run out answering.  I should have just said I reserve 30 seconds for rebuttal and asked him if he wanted me to continue with the answer.

When you sit down, I am certain that your adversary will say something to the court that needs to be corrected or rebutted.  Use your time sitting and listening to your opponent to make short, pithy replies to the lies...okay, argument...he/she makes so you can respond succinctly with your rebuttal time.   

When your time is up, you collect your stuff off the table, the court will announce that the case is submitted and will call the next case.  The lawyers for the argument after yours will be walking up to take your place.  Get your stuff gathered up quickly, shake hands with your opponent, and get the heck out of Dodge.

Denver is a very scenic and interesting city.  If you must go there anyway for the argument, I would suggest spending an extra day or two in the city with your spouse/significant other.  Lots of good restaurants and things to do there.

Shanbour was charged with Stalking, Blackmail, and attempted Extortion.  District Court denied bail.  Shanbour proceeded via Writ of Habeas Corpus to COCA for an order directing the District Court to establish bail.  COCA granted the writ and wrote a very good opinion that for some reason it decided not to publish.

First, COCA re-affirmed that an original proceeding writ of habeas corpus is the appropriate vehicle to challenge pre-trial bail decisions.

Next, the opinion discussed the contours of the Brill case regarding the denial of bail and the requirements necessary for a District Court to deny bail altogether.  The District Court failed to follow these guidelines--particularly by not preparing written findings of fact and a statement of reasons for the detention.

Finally, the opinion discusses the legal test for when an accused is entitled to bail under the Oklahoma Constitution which allows denial of bail for "violent" offenses, but does not list which offenses are considered "violent."  The Court established the legal test for what constitutes a "violent" offense and concluded that Stalking, Blackmail, and Attempted Extortion are not "violent" offenses, even though they are crimes that may lead to violence; therefore, Shanbour was entitled to a reasonable bail.

Pre-trial diversions in federal court seem to be a rarity now days, but they do happen.  They are similar to a deferred in the state system.  Part of the process is the interview with the federal Probation Officer.  I attended one of these in March of 2004 and took some extensive notes and typed them up.  You can see my notes HERE.

The PO was Tempe Knopp, who I found to be professional and courteous.  If you can work out this sort of deal for a client, the checklist from my notes might be helpful in explaining to the client exactly what will happen at the interview; also, the list of questions is helpful in preparing the client with the answers so the interview goes smoothly.
 
The client usually is most concerned about the Probation Officer telling other folks about the criminal case, particularly employers.  The PO will tell the client that the interview is confidential and employers and others will not be told of the criminal case without the consent of the client.  I hope you find my notes useful.

The case involves a drug detection dog by the name of Razor.  Razor's services were utilized when Matheson's car was stopped for a traffic infraction and Matheson refused to give consent to search.  Razor's handler, Deputy Greco, testified that he followed his normal routine by taking Razor to the driver's side door and quickly walking the dog around the car in a clockwise direction.  Razor did not alert on his first pass.  Maybe he was nervous.  Undeterred, Deputy Greco walked Razor around again, this time more slowly, allowing Razor to "linger at the seams."  This time, Razor "scratched and bit at the edge of the car's hatchback, which Deputy Greco recognized as Razor's alert behavior."

Cops searched and found drug paraphernalia, including syringes and spoons; and in the glove compartment they found hydrocodone tablets, morphine tablets, and methamphetamine.  Prior to Razor's sniff of Matheson's car, he had been certified to detect marijuana, cocaine, and heroin; and was subsequently certified to detect methamphetamine.

On cross, Deputy Greco admitted that he did not maintain a record of Razor's false alert rate and in fact often left the scene after an alert prior to learning whether drugs had been found.  The defense also presented testimony from Razor's trainer who admitted that Razor received no training to discourage him from alerting to "dead scents" which are residual odors of drugs that are no longer present in the car.

The defense also called an expert in animal behavior and veterinarian who critiqued the training procedures used by the cops to train Razor on six grounds:  inadequate training for searching vehicles, no training with small quantities of drugs, failure to plant novel odors during Razor's training searches, Razor was not subject to "controlled negative testing" where all objects or locations have no drugs present (the expert testified this training tests for false response rates and reveals whether the handler or dog is guessing; and the handler should not know whether drugs are present to prevent prompting the dog, even unintentionally), Razor was not given "extinction training" which discourages the dog from alerting to common items associated with drugs such as plastic bags, and there was no evidence that Razor's training included "stimulus generalization" which conditions a dog trained on one class of drugs to detect all drugs in that class.

The expert further criticized the certification of the United States Police Canine Association on the basis that it did not include controlled negative testing, limited the dog's search time to ten minutes (shorter than real world searches), required only a 70% proficiency which the expert deemed inadequate, analyzed the dog and handler as a team rather than focusing on the abilites of the dog, and Razor was not certified to detect meth.

The court held that the fact that the dog had been trained and certified, standing alone, does not provide sufficient probable cause to search; and contrasted Razor's training with the intense training of dogs used by the U.S. Customs Service which keeps records for only thirty or sixty days because the ability of the dog can change over time.

Excellent case to use and study that suggests the following area of cross-examination of the drug dog handler/trainer/expert witness:

1.  What specific drugs is the dog certified to detect?  What specific training has the dog received regarding these specific drugs?

2.  Is a record maintained of the dog's false alert rate?  Success rate?

3.  Does the handler stay at the scene and determine whether the dog alerted to the presence of contraband or whether it was a false alert?  How many times has this occurred?

4.  What are "dead scents"?  Has the dog been trained to detect "dead scents" (residual odors of drugs no longer present) and discouraged from alerting to them?

5.  Has the dog received specific training to search vehicles?

6.  Has the dog received specific training to detect varying amounts of drugs?

7.  Has the dog been subjected to controlled negative testing where no drugs are present during a search?  (Very important because it reveals the false response rate).

8.  Have novel or non-drug odors been planted during a search and a record maintained on the alerts of the dog, if any?

9.  During training searches, is the handler aware of the presence and location of drugs?  (to prevent the handler from consciously or unconsciously prompting the dog to alert).

10.  Has the dog been given "extinction training" to discourage alerting to common items used in packing drugs such as plastic or duct tape?

11.  Has the dog received training in "stimulus generalization" which conditions a dog trained in one class of drugs to detect all drugs in that class?

12.  Were there any restictions on the search time during training (ten minutes in the Matheson case)?

13.  What proficiency rate is acceptable or passing?  (in the case, the USPCA required only 70%).

14.  During the training/certification is the dog evaluated separate from the handler or are they evaluated as a team?  (puts into question the individual ability of the dog to detect drugs).

15.  Was the dog trained and certified to detect the specific drug in your case?

16.  Exactly how is the dog conditioned?  (is he positively rewarded with food or punished).  Is the conditioning administered consistently (or only when he alerts)?

17.  Exactly how does the dog alert?  (scratching?  barking?)  How was this metod determined?

18.  Ask the trainer/handler to admit that a dog's ability can change over time.  What time period?  (U.S. Customs maintains records for only 30 or 60 days because older records are no longer probative of the dog's skill).

19.  What steps are taken to determine if the dog has diminished ability during a given time period?

20.  Has the dog received any additional training since the certification or any regular training?  (U.S. Customs requires annual re-certification training).

Notice anything peculiar about entries (4) and (5) above?  Yep, they approved the same device two times--and left out the one they wanted to approve, the Guth 2100.  This is the officially published reg., approved on July 1, 2004, and became effective ten days after that, on July 11, 2004.  So, since the Guth 2100 is not on the approved list, it is a legal eunuch, incapable of satisfying the needs of approved machines, but very much capable of satisfying the needs of thorough and perceptive criminal defense lawyers.

Charles reports that the rule actually signed by the Governor did list the Guth 2100, but somehow did not make it to the officially published records.  The beauty of it is that the published version above is the controlling, official document.  See 75 O.S. 250.7.

Stephen Fabian paved the way on this issue with Manning v. State ex rel. Department of Public Safety, 2003 OK CIV APP 57 and McCown v. State ex rel. Department of Public Safety, 2003 OK CIV APP 66, both of which deal with the Guth 2100 and hold that if it is not approved formally then tests performed with it are inadmissible.

BOTTOM LINE:  In your DUI cases, check the Officer's Affidavit and see if the Guth 2100 is listed as the simulator.  If it is (and it most likely is), you have an argument, my friend.  Cite the cases above, the regulation, and get it kicked! 

Charles advises that even though he has won recently with this argument (see Victories below), DPS may attack the argument on the basis that the "2100" is really the same device as the "210021" therefore the re gulation validly adopted the "2100."  We will have to see how this plays out, but until it's resolved authoritatively, consider yourself armed and dangerous.

Charles also posted a message on the OCDLA listserv last October in which he relayed a casual DUI experiment conducted at his office (yes, Charles owns several Intoxilyzers).  It seems that two unnamed individuals who had dinner and a wide variety of tasty beverages wanted to see Charles's office at 1:00 a.m. (don't ask) and the machine beckoned.  With fully exhaled blows (nothing left) they tested at .124% and .123%, respectively.

On a second test within two minutes, each blew until the "0" to the left of the decimal point "popped up" on the machine and then they stopped immediately.  The second test yielded .082% and .081%, respectively--clearly a dramatic difference.

Although this specific test was not scientific, Charles advises that there is scientific evidence which supports these results.  To view it, check out the web site of Dr. Michael Hlastala by clicking HERE.   Charles has also taken the Fifth concerning the identities of the two subjects, but reports that one is from California and the other is from Oregon.