(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).
Billy Wayne Engles v. State, 2015 OK CR 17 (December 18, 2015): Statutory Construction (Vague): Engles was convicted by jury in Bryan County (the Hon. Rocky L. Powers, presiding) of loitering at a school after conviction of a sex offense. The issues raised in this appeal were all waived because no objections were made at trial (except one), but the opinion appears to be published because the Court did address whether 21 O.S. 1125 is unconstitutionally vague, albeit under plain error review, and determined that it is not.
Kenneth Daniel Welch v. State, No. F-2014-1093 (Okl.Cr., December 17, 2015) (unpublished): Interrogations (Fifth Amendment): Welch was tried by jury and convicted of First Degree Robbery, AFCF, in Carter County (the Hon. Dennis Morris, presiding). Welch sought suppression of his statements which were made after he had been apprehended at gunpoint, handcuffed, and being taken to a patrol car. The State argued that Welch was, although not free to leave, under investigative detention rather than a formal arrest, and thus Miranda did not apply. The Court rejected this argument, holding that even if he was not under formal arrest, the investigative detention in this case was the functional equivalent; thus, Miranda was required. However, the Court denied relief because the error was harmless. NOTE: This is a good case on this topic because the State makes this sort of argument frequently in interrogation cases.
United States v. Wilbur Ernesto Castillo, No. 14-4129 (10th Cir., December 15, 2015) (Published) (Matheson, Ebel & McHugh): Federal Sentencing Guidelines (Crime of Violence): In this illegal re-entry case, a California conviction for robbery was properly considered a crime of violence for sentencing purposes.
United States v. Toby Martinez, No. 14-2203 (10th Cir., December 16, 2015) (Published) (Briscoe, Ebel & Bacharach): Restitution: Martinez was ordered to pay restitution in a criminal case through monthly installments. Later, the district court allowed the Government to garnish the retirement accounts of Martinez, which exceeded the installment amount. The panel found that this was error.
Neil Feinberg v. Commissioner of Internal Revenue, No. 15-1333 (10th Cir., December 18, 2015) (Published) (Gorsuch, Holmes & Moritz): Extraordinary Writs; Privileges: This is an interesting case involving a marijuana business in Colorado seeking a writ of mandamus to the Tax Court. The panel noted that the DOJ has instructed prosecutors to not charge businesses there with drug trafficking even though it is illegal under federal law, but the IRS still considers it drug trafficking and is not treating it like a legitimate business. The IRS issued discovery requests seeking admissions as to the nature of the business (wanting to them to admit to being traffickers in marijuana), the Feinbergs invoked the Fifth, but the Tax Court ordered compliance. They sought mandamus relief in the Tenth Circuit which denied the request, but the opinion is interesting.
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. Jason Simmons, No. 13-6273 (6th Cir., August 14, 2015): Public Trial: In this drug conspiracy case, the district court excluded three co-defendants from the courtroom during the testimony of a witness on the ground that the witness might be intimidated by the presence of the co-defendants. The panel reversed because the district court did not make findings sufficient to justify violation of the right to a public trial.
United States v. Jeffrey P. Taylor, No. 14-3790 (7th Cir., August 6, 2015): Probation (Conditions): Taylor was convicted transferring obscene material to a person under the age of 16. The panel found error in conditions of probation banning him from viewing legal adult pornography, and a complete ban on knowing contact with minors as overly broad.
United States v. Michael Anthony Weaver, No. 13-3097 (D.C. Cir., September 4, 2015): Search and Seizure (Exclusionary Rule): The panel phrased the issue this way: This appeal requires us to answer a question left unresolved by the Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006): Whether the exclusionary rule is applicable when law enforcement officers violate the Fourth Amendment’s knock-and-announce rule while executing a warrant to arrest a suspect found at home (Hudson involved execution of a search warrant, and the Court held that the exclusionary rule did not apply). In this split 2-1 decision, the panel found that the exclusionary rule DID apply to an arrest warrant, and reversed the denial of a motion to suppress. NOTE: This seems like a case likely to snake upward to en banc review and ultimately to the Supreme Court.
United States v. Brian Wilbourn and Adam Sanders, No. 13-3715 (7th Cir., August 26, 2015): Search and Seizure (Traffic Stops): Warrantless traffic stop illegal, and passenger had standing to suppress.
PARDON AND PAROLE BOARD CRITIQUE
The Oklahoma Pardon and Parole Board has devolved, in my opinion, into a quasi-judicial joke with the appointment of a gaggle of ex-cops and prosecutors voting on the release, or sentence reduction, of prisoners.
As a reminder, the current members of the Board are: Vanessa Price (ex-OKC police officer); Patricia High (ex-prosecutor under Bob Macy in Oklahoma County); Robert “Brett” Macy (ex-OKC police officer and son of ex-District Attorney of Oklahoma County Robert Macy); Hon. Thomas C. Gillert (ex-prosecutor for 14 years in Tulsa County and retired district judge); and William Latimer (a 20-year veteran of the Tulsa Police Department, then Attorney General investigator of Medicaid Fraud).
Thus, if you are a prisoner in the State of Oklahoma, you have to prepare your case for parole, clemency or a commutation for presentation to a group of people consisting of three ex-police officers and two ex-prosecutors. As bad as that is on its face, it gets even worse. Freddie M. Johnson, 64, a prisoner in Oklahoma serving time for the 1998 murder of his girlfriend, has alleged in a lawsuit that Board Member Patricia High has taken the view that she will not vote to parole a murderer no matter what the circumstances. After he was denied parole by a unanimous vote, even though the investigative report showed substantial extenuating circumstances, Johnson sought a new hearing before an impartial Board. This was denied by Oklahoma County District Judge Don Andrews, on the basis that there is no constitutionally protected right to parole. Thus, it appears that no matter how biased Board members are against parole, there appears to be little that an inmate can do about it.
If the intent of stacking the Board with career law enforcement/prosecutorial professionals was to curb the release of Oklahoma prisoners it seems to have worked. The Oklahoman has reported that the current Board has reduced drastically the number of paroles recommended to the Governor (from 36% with the prior Board, to 9% with the current Board). It therefore appears that the use of incarceration as a public safety tool will continue to be used aggressively in our state.
HON. GEORGE W. BUTNER, Seminole County, is not a criminal defense lawyer, but deserves some recognition for his handling of a sentence in a case where Steven Wayne Clark pled guilty to texting while driving which resulted in colliding his car into two state troopers who were working an accident on I-40, killing Trooper Nicholas Dees and injuring Trooper Keith Burch. The courtroom was packed with troopers, the widow of Trooper Dees wanted life in prison, and the prosecutors wanted 20 years. In the face of that, Judge Butner sentenced Clark to a split sentence of 5 in and 7 out, stating that he was tempering justice with mercy. I have appeared before Judge Butner before, and have seen him grant motions to suppress and otherwise exercise independent judicial thought and judgment apart from the will of the prosecutors, and this case is another example that there are very good judges in our state who apply the law with integrity.
AARON K. GLOVER, OKC, represented a client charged with child abuse in Oklahoma County. Prosecutor Janet Brown, who had not interviewed the 13-year-old complaining witness (the son of the accused) offered a five-year deferred which was rejected. Prior to the preliminary hearing before Judge Doak, she offered a two year deferred on a misdemeanor. The client still rejected it because he did nothing wrong. The preliminary hearing commenced, the witness testified that his dad was a good man who never tried to hurt him, but was only trying to keep him from hurting himself, and Judge Doak properly granted the demur. Nice job, Aaron, and kudos to a courageous client!
Oklahoma County Criminal Defense Lawyers Association: The OCCDLA had its Christmas party and awards presentation on December 10, 2015, downtown at the law office of J.W. Coyle, III, where the 2015 Robert Manchester Lifetime Achievement Award was given to Charles F. Cox; and the 2015 Barry Albert Award for Excellence in Advocacy was given to Randy D. Evers. Congratulations Charles and Randy!
MISSOURI TROOPER CHARGED: A state trooper in Missouri arrested a 20-year-old man for boating while intoxicated, handcuffed the man and placed a life vest on him, and while transporting the man via boat back to a patrol zone office, the man fell out of the boat and drowned because the life vest was not secured properly. The trooper has been charged with involuntary manslaughter.
40-YEAR FUGITIVE CAUGHT: U.S. Marshals in Ohio arrested a man in Puerto Rico who has been on the run since 1975 for a parole violation stemming from a Manslaughter conviction.
PROFILING: Investigation has shown that police in Oklahoma do not use racial profiling.
POLICE CHIEF RESIGNS: A shooting in the town of Colbert, Oklahoma, has resulted in the resignation of two officers, including Chief Jeff Goerke; also, the police chief in Forest Park has also resigned amid conflict with the mayor and town leaders.
PRATER vs. ACCUSED: A 19-year-old defendant charged with robbery tried to make a break for it from the Oklahoma County courthouse and was subdued by District Attorney David Prater and other lawyers.
DRUG SWEEP: A large-scale drug sweep was conducted recently in Carter County (Ardmore), resulting in arrests of 11 persons and law enforcement seeking 24 more.
DUI LOOPHOLE: A drunk driver hit a car earlier this year owned by the wife of Rep. Mike Sanders (R-Kingfisher). Sanders did some digging around and discovered that courts not-of-record that handle DUI cases allow repeat offenders to avoid felony charges. The article stated that Oklahoma is the only state with such a system; so, we should probably look for the legislature to do something about this in the near future.
DEATH PENALTY: The link goes to an interesting article on the history of the death penalty in Oklahoma.
PRESIDENT NOMINATES TWO OKLAHOMANS: President Obama has nominated two lawyers to be federal judges in the Western District of Oklahoma: Suzanne Mitchell, a magistrate judge in Oklahoma City, and Scott L. Palk, Assistant Dean for Students at OU Law School. The nominations were necessary because judges David L. Russell and Stephen P. Friot have taken senior status.
OJA RESIGNATIONS: The Executive Director of the Office of Juvenile Affairs, Keith Wilson, and Chief of Staff Jim Adams are resigning, apparently based upon concerns over budget cuts and possible consolidation with another state agency. Janelle Bretten, Chief of Programs, has been named interim Director.
UNCLAIMED PROPERTY: The link goes to an interesting article detailing how the Tulsa County Sheriff is using unclaimed property laws to bypass forfeiture rules to retain seized property.
PUBLIC DEFENDER: Interesting article with the Colorado State Public Defender and how he runs his agency.
A Texas man was unhappy with his bill at a motel in Alva, so he decided to drive his truck through the lobby; someone decided to take pot shots at motorists along I-40 near Hydro, killing two persons; police in Tulsa are looking for a burglar who breaks into apartment and steals…bras;
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