Category Archives: Oklahoma Criminal Defense Weekly

OCDW 04.16.18


www.ocdw.com

04.16.18

James L. Hankins, Publisher

 

(with special thanks to Mark Hoover, OIDS, for contributing regularly)

 

“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).

 

No. 38: KIOWA COUNTY: Named for the Kiowa people, the county seat is Hobart. I have not represented a client in Hobart, which brings my county total to 21 out of 38.

 

OKLAHOMA

 

Kirkwood v. State, 2018 OK CR 9 (April 12, 2018): Burks Notice and Bad Acts: Kirkwood was convicted by jury in Tulsa County (the Hon. Kelly Greenough, presiding) of Child Abuse by Injury. The Court affirmed over his claims relating to 404(b) evidence in the form of a domestic altercation with the child’s mother. NOTE: The “bad act” occurred after the offense charged, which is allowed under the precedent of the Court, as pointed out by Judge Lewis in his concurring-in-results opinion. Judge Lewis found error in the admission of the 404(b) evidence because there was no connection between the altercation with the mother and the charged crime of abuse of the child. Also, this is another case where defense counsel litigated the issue pre-trial, but failed to object at trial which did not preserve the issue for review.

 

TENTH CIRCUIT

 

No new cases.

 

UNITED STATES SUPREME COURT

 

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

 

No new cases.

 

OTHER CASES OF NOTE

 

United States v. Steven Dove, No. 14-1150-cr (2nd Cir. March 6, 2018): Constructive Amendment: Drug conspiracy conviction is affirmed, but this opinion contains a strong dissent by Judge Chin, who would reverse on the basis that the indictment was constructively amended. NOTE: I included this case because the dissent has a good discussion of the constructive amendment doctrine, including the fact that such an error is automatically reversible without a showing of prejudice.

United States v. Winifredo Gonzales, No. 16-4318-cr (2nd Cir., March 13, 2018): Guilty Pleas: Judgment is vacated because the district court failed to inform Gonzales of the immigration consequences of his plea.

United States v. Walter Wooden, No. 16-7607 (4th Cir., April 10, 2018): Sexually Dangerous Person: Wooden was committed civilly as a sexually violent predator in 2014, but requested a hearing in 2016 to address whether he should be released. The district court concluded that Wooden was no longer dangerous and ordered his release, and the Government appealed. In this opinion, the panel affirmed in light of the highly deferential standard of review.

United States v. Theresa Helena Campbell, No. 17-50140 (9th Cir., February 28, 2018): Supervised Release: Order revoking supervised release is vacated where, even though 18 U.S.C. 3583(i) extends power to revoke after the term has expired, revocation will not stand if based upon violations which were not alleged prior to the expiration of the period, and are not otherwise factually related to a matter raised in a signed warrant or summons issued before expiration.

United States v. Kenneth R. Douglas, No. 15-1754 (3rd Cir., March 15, 2018) (en banc): Federal Sentencing Guidelines (Abuse of Trust): Douglas was convicted of drug crimes, and because he worked as an airline mechanic at the San Francisco International Airport, the district court enhanced under the “abuse of trust” Guideline of section 3B1.3. In this en banc opinion, the Court vacated the enhancement and clarified the legal standards to be employed.

 

VICTORIES

 

None noted.

 

HEARSAY

 

NOMINATED: President Trump has nominated 37-year-old Oklahoma Supreme Court Justice Patrick Wyrick to the federal bench in the W.D.

INCIDENT: The OSBI has been asked to investigate an incident in Haileyville where the Police Chief and his wife allegedly placed children in a jail cell as punishment for vandalism of his wife’s car.

Y.O.: The 14-year-old boy who shot and killed a 10-year-old boy with a crossbow in Chandler will not be tried as an adult, but rather a Youthful Offender.

ELECTION: The election rundown in Pottawatomie and Lincoln Counties includes the fact that Associate District Judge Dawson Engle has decided not to run again.

ELECTION II: Judge Curtis DeLapp has drawn two opponents for his re-election bid, Bartlesville City Councilman Alan Gentges, and Linda Thomas, the 2017 President of the Oklahoma Bar Association.

ELECTION III: The link goes to the ok.gov web site which has the official candidates for various offices.

ELECTION IV: District Judge Jeff Virgin announced his candidacy for re-election for Cleveland, McClain and Garvin Counties; and District Judge Thad Balkman has also announced his re-election bid.

“SURPRISE BID”: State Rep. Cory Williams has announced his candidacy for District Attorney for Payne and Logan Counties.

NO OPPONENT: Embattled Judge Wallace Coppedge, Marshall County, who has endured a firestorm of controversy over a probated sentence for a rapist, has sought re-election and thus far has no opponent.

COMMUTATION HEARING: Jerome Ersland, the Oklahoma City pharmacist who is serving a life sentence for his part in the death of a robber, will have a commutation hearing before the Pardon and Parole Board on Monday.

POLICE SHOOTINGS: Story states that the majority of officers involved in shootings remain anonymous.

RAPE KITS: Around 100 law enforcement agencies still have not provided information about untested rape kits.

REFFER MADNESS: The Rogers County Sheriff has taken to social media to campaign against the legalization of medical marijuana.

WORST DISTRICT ATTORNEYS: This news story names the three worst prosecutors in the country—and Oklahoma County District Attorney David Prater is on the list.

EXECUTIONS: Interesting article about the impact of an execution on the judge who presided over the trial.

ACTING SHERIFF: Sgt. Jody Helm is now the acting Sheriff in Garfield County.

ARRESTED: A Haskell County deputy has been arrested for bringing in contraband to the jail.

COMPLIANCE: A DEQ Compliance Officer has been added to the staff of the Wagoner County Sheriff.

 

WACKY CRIME

“BARK BANDITS”: Vandals stripping trees of bark is apparently a “thing” in Choctaw County.

TAGGERS: Two women in Chelsea have been charged with felony vandalism for spray painting their names on a train. Is it any wonder why Oklahoma leads the country in putting women in prison? This crime is a felony?

LONG ARM OF THE LAW: An inmate who escaped from Jess Dunn in 1981 has been arrested in Houston. He had been a model employee at an oil company for that past 30 years, but yeah, let’s apprehend him and lock him up here in Oklahoma.

THE RICH: Trashcans are being stolen in Owasso…by rich people.

BEST PROTESTERS EVER: A state trooper describing the teachers protesting at the capitol for better pay and benefits.

 

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.

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