(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).
I was thinking about the 77 counties in Oklahoma, and how many courthouses I have visited over the years, and I thought I might showcase each county to familiarize myself each week with some counties that I have not visited. So, here goes, in alphabetical order:
ADAIR COUNTY: Located in the extreme eastern part of the state on the Arkansas border, the county seat is Stilwell. It was named after the Adair family of the Cherokee Tribe and has a population of about 22,000. I have never been to Stilwell!
David Paul Duclos v. State, 2017 OK CR 8 (April 11, 2017): Standard of Review (Structural Error); Jury Instructions (Sex Offender Registration): Duclos was convicted by jury in Canadian County (the Hon. Jack D. McCurdy, Special Judge, presiding) of Unlawful Communication with a Minor by Use of Technology (communicating by e-mail and text with a person whom he believed to have been a 14-year-old female, but who was actually a police officer. He was busted at a movie theater. On appeal, he raised a claim regarding the fact that Judge McCurdy presided over his trial and his preliminary hearing (although the parties agreed to have a Special Judge try the case, there was no record that the defense agreed to the same judge that presided over the PH). On plain error review, the Court held this situation was error, but not structural error requiring reversal. Also, the Court continued to hold that the jury is not required to be instructed regarding sex offender registration. NOTE: Judge Smith dissented on the sex offender instruction issue, and has been steadfast in advocating that jurors be instructed regarding sex offender registration. Although she seems to have no support on the Court at this time, this is an issue that should still be preserved and raised in future cases in the event that personnel on the Court changes, or she is able to convince her colleagues to change their minds.
Leandra M. Jackson-Hubbs v. State, No. RE-2016-138 (Okl.Cr., April 11, 2017) (unpublished): Credit for Time Served: In this revocation case out of Tulsa County (the Hon. William J. Musseman, presiding), the refusal of the court to grant credit for time served is affirmed since the defendant could not show that her pre-trial incarceration was the result of her indigence. NOTE: This is an application of the case of Holloway v. State, 2008 OK CR 14, 182 P.3d 845.
Juan Gabriel Cuevas v. State, No. F-2016-112 (Okl.Cr., April 19, 2017) (unpublished): Fines; Waiver (Appellate Issues): Cuevas was convicted by jury in Tulsa County (the Hon. Doug Drummond, presiding) of Trafficking and Obstruction, and was sentenced to 30 years and $250,000.00 fine. The State elected to enhance under title 21, rather than title 63; thus, imposition of the fine under title 63 was error and modified to $10,000.00. NOTE: Cuevas raised a proposition of error regarding evidence of other crimes/bad acts, and also alleged that this evidence was hearsay. In footnote 2, the Court indicated again that its Rules prohibit raising multiple separate issues within a single proposition of error. The State has been aggressively invoking this Rule in appellate briefs, which means that appellate lawyers have to be careful about this. Personally, I think parsing issues out in clearly defined sub-propositions is fine, but this opinion is another one where the Court has mentioned this problem recently, so best practice would be to simply create new proposition headers for each claim, regardless if they are supported by similar facts. This commonly happens when a substantive issue was not properly preserved by defense counsel; so the appellate lawyer will raise the substantive claim, and then also an IAC claim.
DeMarco Mantell Birch v. State, No. F-2016-306 (Okl.Cr., April 13, 2017) (unpublished): Voir Dire; Right to be Present: In this Trafficking case out of Washington County (the Hon. Russell C. Vaclaw, presiding), the sole issue was whether in camera voir dire was acceptable without the accused himself present (defense counsel was present and participated in questioning jurors who had issues that they wished to discuss in chambers). The Court found no error because the accused did not object at the time, and there was otherwise nothing in the record to suggest that he was prejudiced thereby.
United States v. Adaucto Chavez-Meza, No. 16-2062 (10th Cir., April 14, 2017) (Published) (Tymkovich, C.J., Seymour & Kelly): Federal Sentencing Guidelines (Sentence Modification): When a district court grants a modification pursuant to 18 U.S.C. 3582 and states only that the court considered the policy statements contained therein, this is enough explanation to uphold the modified sentence (in this drug case, modified from 135 months to 108 months).
United States v. Gregory D. Jordan, No. 16-3084 (10th Cir., April 18, 2017) (Published) (Lucero & Bacharach): Federal Sentencing Guidelines (Sentence Modification): This case interprets 18 U.S.C. 3582(c)(2) which allows a modification “based on” a range lowered subsequently by the Sentencing Commission; and since the range in this case, which involved a plea agreement, was based on the Guidelines, denial of modification is reversed.
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).
Shannon Nelson v. Colorado, No. 15-1256 (U.S., April 19, 2017): Court Costs: Interesting opinion where the Court held that the accused is entitled to recover court costs and restitution payments if his conviction is overturned and there is no re-trial. Justice Thomas dissented, finding no right on the part of the accused to recover anything.
Marcelo Manrique v. United States, No. 15-7250 (U.S., April 19, 2017): Jurisdiction (Appellate): When a federal court imposes judgment and sentence, but defers entering a restitution amount at that time since the amount is unknown, the accused must file a second notice of appeal to preserve his right to appeal and contest the amended judgment containing the restitution amount.
OCDLA ANNUAL AWARDS
The OCDLA will host its Annual Meeting and Awards Banquet on Thursday, June 29, 2017, (the first day of the Patrick Williams Criminal Defense Institute) at the Sheraton Reed Center in Midwest City.
The deadline for nominations is Friday, June 2, 2017, at 5:00 p.m. The awards and the criteria for each (the Clarence Darrow Award, the Thurgood Marshall Appellate Advocacy Award, and the Lord Thomas Erskine Award) can be found on the OCDLAW web site HERE.
These awards are important and very difficult to earn, so I would urge each of you to take some time out in the coming weeks and give some thought about the lawyers you believe are doing a good job in the areas of trial work, appellate work, and overall contribution to the preservation of constitutional rights of the accused.
THE SIXTH AMENDMENT and JUSTICE SCALIA
Attorney Randy Evers linked this ARTICLE from Bloomberg titled “21,000 Reasons [Justice] Scalia Was Right” which details the fall-out from a lab tech in Massachusetts named Annie Dookhan, who admitted faking test results for prosecutors on a scale that outclasses even our own notorious tech-fake Joyce Gilchrist.
The piece links the Crawford v. Washington, 541 U.S. 36 (2004) decision, authored by Justice Scalia, which put teeth in the Confrontation Clause, and led to the later decision of Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009), which addressed the problem of these government employees drug-techs being able to hide behind their reports without being questioned.
Justice Scalia was a “conservative” Justice, but when it came to enumerated rights in the Constitution, and the Bill of Rights, he was a good an advocate for the defense as we will ever find on the Court. In Neder v. United States, 527 U.S. 1 (1999), the Court held that a jury instruction that omits an element of the offense is subject to harmless error analysis. On this question, Justice Scalia disagreed with his conservative colleagues, concluding that such an error can never be harmless. In his concurring/dissenting opinion, Justice Scalia pointed out that the right to trial by jury is the only right found in both the body of the Constitution (Article III, section 2, clause 3) and in the Bill of Rights (Sixth Amendment), and that when the Court deals with that guarantee, “it is operating upon the spinal column of American democracy.”
I have always found that quote neat, and have used it in legal writing. Justice Scalia also penned one of my favorite cases from the Court, Arizona v. Hicks, 480 U.S. 321 (1987), which held the State to strict rules in searching homes for items in “plain view.” Of course, when legal issues ventured outside of the strict guarantees of the Constitution or the Bill of Rights, Justice Scalia left those matters to the representatives of the people, but he should be given his due for the work he did on the Court for our clients when it mattered.
BRAD WICKER, Ponca City, represented a client charged with conspiracy to bring contraband into a jail, and also bringing contraband into the jail. This is a companion case to defendant Scott Loftis, who is an attorney in the area but against whom charges were dismissed. Brad took the case to the jury, which convicted on the conspiracy county, but acquitted on the substantive count of bringing contraband into the jail. Notable, attorney Cheryl Ramsey was called as character witness for Loftis. Nice work, Brad!
AARON GOODMAN, Tulsa, heard the two word verdict after only 20 minutes of jury deliberations in a case involving a charge of reckless conduct with a firearm. The case was tried in Rogers County against prosecutor Mary Walters. Nice job, Aaron!
MISTY FIELDS, Tulsa, went to Mayes County for a preliminary hearing and ended up winning on a demurrer in a drive-by shooting case. There was an issue regarding the competency of the client, and he finally got his day in court after two years, and it is a good thing he had Misty as a lawyer because the State’s offer was 18-years. It was noted on the list-serv that Musty has lost only one preliminary hearing in Mayes County since January. Terrific work, Misty!
MACK MARTIN & AMBER MARTIN, OKC, secured a very rare Not Guilty by Reason of Insanity verdict recently before Judge Balkman in Cleveland County (Norman) in a First Degree Murder case. The client was accused of stabbing his wife so many times that the wounds could not be counted. Dr. Shawn Roberson assisted with the defense. Great job, Mack and Amber!
Change of Venue: Defense attorney Robert Butler has secured a change of venue for his clients who are accused of committing a heinous murder involving the beating death of a child, from Seminole County to Pontotoc County. Judges for some reason are usually resistant to these motions, so that is some good advocacy by Robert.
JACK E. GORDON HONORED: Claremore attorney Jack E. Gordon has been named among the “Best Lawyers” in America, a fact that members of the defense bar already knew.
DRONES: The Duncan P.D. now has drones, to be used primarily for search and rescue…and not surveillance. Right.
INMATE DEATH: Five jailers at the Oklahoma County Jail have been reassigned pending an investigation into the death of an inmate.
JUDGE DEATH: A municipal judge for the city of Muskogee was found dead in his home last week, apparently of a self-inflicted gunshot wound; also, the investigation continues into the odd death of New York Appeals court judge Sheila Abdus-Salaam, whose body was found floating in the Hudson river a couple of week ago. Judge Abdus-Salaam was the first black woman to sit on the court.
FEMALE INCARCERATION: Dr. Susan F. Sharp, the David Ross Boyd Professor Emerita of Sociology at O.U. will give a lecture about the consequences of high incarceration rates of women on Mary 17, at noon at the Oklahoma History Center, 800 Nazih Zuhdi Drive, OKC.
REVENUE SCHEME: The latest revenue-raising scheme by district attorneys is to use scanners designed to read license plates for stolen vehicles to detect uninsured drivers and send them tickets; and county Sheriffs are reeling from the loss of DOC revenue and trying to figure out a way to stay afloat. In Grady County, the Sheriff is asking for donations to keep the K-9 program going; and, of course, OIDS is chronically underfunded and needs dollars to avoid “another constitutional crisis.”
APPOINTMENT: Retired District Judge C. Allen McCall has been appointed to the Pardon and Parole Board.
ARKANSAS EXECUTIONS: The New York Times ran a piece on the spate of executions in Arkansas; and another article detailing eyewitness accounts. In light of the executions in Arkansas, spirited Ninth Circuit Judge Alex Kozinski shared his thoughts about capital punishment with 60 minutes, including his view that lethal injection masks the violent nature of killing a human, and that firing squads and the guillotine are more honest methods of execution.
JUDGE LEWIS HONORED: Judge David B. Lewis will be honored on May 2, 2017, by the Oklahoma Black Caucus Foundation at the A.C. Hamlin Banquet at the National Cowboy & Western Heritage Museum.
POLICE OFFICER SENTENCED: A former Midwest City police lieutenant has been sentenced by Judge Bill Graves in Oklahoma County to five years in prison for pawning guns and other items to fuel a gambling habit.
WILD CHASE: A Norman man was taken into custody after a “wild police chase”…involving gold carts.
WILD CHASE II: Not to be outdone, a man in Tulsa tried to elude police…on a bicycle.
EASTER SURPRISE: Grass found in a child’s Easter basket in Shawnee turned out to be, well,…grass, as in the smokable variety.
NOT ADVISABLE: An Enid man has been accused of stalking…by making phone calls from jail.
MUG SHOT: A Texas woman was arrested in Pittsburg County for trying to steal a tractor…or maybe for being a zombie by the looks of her booking photo which seems oddly creepy.
FIRST RULE, DON’T TALK ABOUT IT: Robbery, that is…when you rob a Sonic, don’t talk about it.
NO, REALLY OFFICER: That marijuana in my car is for medicinal purposes…all 100 pounds of it.
FIRST RULE OF FIGHT CLUB IS…: Don’t film it and make the video go viral when it is held at Stillwater Middle School.
THURSDAY, JUNE 29th and FRIDAY, JUNE 30th, 2017: 2017 PATRICK A. WILLIAMS CRIMINAL DEFENSE INSTITUTE will take place in Oklahoma City at the Reed Center located at the Sheraton Hotel. The link goes to registration info and more info about the venue.
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