(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).
Gene Douglas Graham v. State, No. F-2013-1199 (Okl.Cr., March 24, 2015) (unpublished): Discovery; Right to Present a Defense: Douglas was convicted by a jury in Delaware County (the Hon. Barry V. Denney, presiding) of Lewd Molestation and sentenced to 25 years (but, curiously, Judge Denney suspended all but the first 13 years). REVERSED on the basis that Graham was not allowed to testify about an eviction notice he received that would have given context to an arguably incriminating statement he made to police. The prosecutor objected because the statement was provided in discovery and it was hearsay. The Court held that exclusion of the testimony as a sanction for a discovery violation was an abuse of discretion because a criminal defendant has no obligation to provide a pre-trial disclosure or summary of the defendant’s expected testimony; and, the statement was not hearsay at all because it was not offered for the truth of the matter asserted. Thus, Graham was denied his right to present a defense. NOTE: In my responses to the State’s discovery, I always include a statement that the testimony, if any, of the accused is not discoverable; and it looks like this case supports that position.
Warren Brian Bradley v. State, No. F-2014-46 (Okl.Cr., March 25, 2015) (unpublished): Continuance; After Formers (Enhancement): Bradley was convicted by jury in Garvin County (the Hon. Greg Dixon, presiding) of Possession of CDS (Cocaine Base) in the county jail, AFCF x 2, and sentenced to 30 years. The Court affirmed over several claims, including denial of a motion for a continuance (no compliance with 12 O.S. 668), and admitting judgments and sentences of the priors that showed more than one conviction arising out of a single transaction (the error resulted in modification of the sentence from 30 years to 20 years).
United States v. Bryan Berres, No. 14-7008 (10th Cir., January 21, 2015) (Published) (Lucero, Holmes & Phillips) (E.D. Okla., Hon. Ronald A. White): Multiplicity; Interrogations (Fifth Amendment); Registration of Firearms: Convictions for possession unregistered firearms are affirmed over claims relating to: 1) impossibility to register a flash-bang device because he was a transferee; 2) convictions for unassembled destructive devices were not multiplicitous; and 3) his statements made while at the hospital were admissible because he was not in custody.
David P. Tokoph v. United States, No. 13-2128 (10th Cir., January 26, 2015) (Published) (Gorsuch, Sentelle, Senior Circuit Judge D.C. Circuit, & Murphy): Expungement: Tokoph was sentenced under the now-defunct Federal Youth Corrections Act (repealed in 1984) and sought to have those records sealed and expunged. The panel denied this request, holding ultimately that although there might be inherent equitable power to expunge a criminal conviction, this power does not extend to a valid conviction.
United States v. Timothy G. Cassius, No. 13-1367 (10th Cir., January 27, 2015) (Published) (Lucero, Baldock & Holmes): Federal Sentencing Guidelines (Apprendi Issues): This case deals with drug quantity found by the court (as opposed to the jury) in calculating the Guideline range. Cassius objected on the basis of Alleyne, but the panel rejected his claim, holding that so long as the court does not use its own drug quantity finding to alter the defendant’s statutory sentencing range, the enhancement is consistent with Alleyne.
United States v. Reginald Jerome Wray, No. 14-1086 (10th Cir., January 27, 2015) (Published) (Kelly, Hartz & Matheson): Federal Sentencing Guidelines (Crime of Violence): A conviction under Colorado law for “Sexual Assault—10 Years Age Difference” is not a crime of violence for enhancement purposes.
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. Marco Antonio Flores-Alvarado, No. 13-4464 (4th Cir., March 3, 2015): Federal Sentencing Guidelines (Drug Quantity): Sentence in a drug conspiracy case is vacated because the district court failed to make the required factual findings regarding the drug quantity attributed to Flores-Alvarado.
United States v. Gray, No. 13-1909 (1st Cir., March 13, 2015): Jury Instructions (Malice): A flight attendant was convicted of providing false information regarding a bomb threat on an airplane, but the panel reversed because the jury was instructed improperly that malice meant “evil purpose or improper motive.”
United States v. Estefani Zaragoza-Moreira, No. 13-50506 (9th Cir., March 18, 2015): Destruction of Evidence: The defendant was in Mexico and decided to import drugs through the pedestrian-line, but made herself noticeable by standing out and making noise. Her defense was duress and she sought the videotape of herself coming into the country, which were taped over. In this amazing case, the court reversed because it found bad faith by the Government for the destruction of the tape.
OPINION: EXONERATIONS: WHAT IS THE REAL STORY?
Last week brought another death row exoneration, this one out of Arizona and involving a woman, Debra Milke, who had spent 22 years on death row for the death of her 4-year-old son, who was killed allegedly for insurance money. A detective testified that Milke confessed. Two men are still on death row for their roles in the murder, but Milke is now free because it turns out that the detective—who did not record the confession—was prone to lying under oath and committing other misconduct hidden from the defense by prosecutors.
When I see these stories, which usually take the form of a camera crew following the usually-black inmate out of prison, professing to not be bitter and thanking Jesus for being freed, I am always struck by what I don’t see, and I become more frustrated and angry at the system—the media in particular—for failing to delve into these cases and give us the real story. The relieved face of the freed inmate, beaten down and shuffling from a prison cell to a waiting car, is not the story. The story, the real news story, is how he or she was convicted in the first place. I have rarely, if ever, seen a reporter ask that question or follow up with the people who made it happen. I do not want to see beaten down innocent people shuffling from a prison cell to a waiting car, smiling wryly and saying into the camera that they are not bitter about their experience. I want to see an explanation of why and how such an injustice happened to them, from those in power who made it happen, and some sort of acknowledgment that the system is responsive to the ways in which it is broken.
Where is the camera crew and reporter standing in the judge’s chambers, asking the trial judge how it came to be that an innocent person was convicted of a heinous crime in his/her courtroom? It is not like the judge was a disinterested party, passively watching the proceedings. Perjury was committed in the courtroom, or a prosecutor hid evidence, or a witness lied, or the evidence was lacking, or some other sort of fundamental breakdown occurred in the courtroom during the trial presided over by the judge. There was a breakdown in the process that occurred right under the nose of this person, and I would like to see the trial judges in these cases questioned and held accountable for their roles in allowing (if it can be shown) innocent people to be convicted in their courtrooms; or, at least an explanation as to how it happened and what steps the judge is taking so that it does not happen in the future. Why do we never hear this?
Where is the camera crew and reporter standing in the office of the District Attorney, asking the prosecutor to explain how his/her office employee or courtroom conduct landed an innocent person in prison or on death row? The prosecutor is often the chief culprit in convicting the innocent and hiding exculpatory evidence, but when are these people ever called out and forced to answer for what they do? It happens occasionally, of course, but I hardly ever see any pressure from the media or the Bar Associations to hold these people accountable, and to call them out by name and demand that they explain themselves.
A former prosecutor in Shreveport, Louisiana, A.M. “Marty” Stroud, III, recently penned an open and much publicized letter to The Times in Shreveport, detailing how reckless he was in prosecuting Glenn Ford in 1984 for a murder that we now know that Mr. Ford did not commit, but spent 30 years in prison for it. Stroud is to be commended for voluntarily telling us what we already know, that he was a young prosecutor more interested in his career and getting a conviction in a capital murder case than he was in justice, that he was never really inquisitive at all about other suspects or in learning about the investigation other than facts that convicted Ford, that he relied on racial discrimination in striking black jurors and junk science at trial, that he knew the defense attorney was unprepared and in over his head having never tried a criminal case at all, much less a capital murder case, and that he was simply interested in winning rather than making sure that justice was done.
Stroud also took the State of Louisiana to task for its disgusting stance on Ford’s efforts to obtain compensation from the state for being wrongfully convicted. Yep, the State is fighting that, too. Stroud’s mea culpa and his letter are commendable, but let’s face it, it comes 30 years too late, he will face no consequences for what he did other than having some guilt, and the system will continue churning on as if nothing had ever happened. Why is it that letters like his are the absolute and rare exception rather than the rule? Why aren’t prosecutors immediately called out by name in these exoneration cases and questioned about how the case was tried, what went wrong, and how to avoid such results in the future. Why doesn’t this happen? Where are the consequences for these people?
Where is the camera crew and reporter standing in the police department, asking crooked cops and their supervisors how it came to be that false evidence was presented under oath in court that landed an innocent person in prison or on death row? This isn’t limited to cops, either, because false or misleading testimony comes from medical examiners, lay witnesses (snitches), District Attorney investigators, and other state functionaries who provide the evidence used to convict innocent people and suppress evidence that would acquit. I never see law enforcement held accountable or forced to explain their behavior in these cases. We have sterling examples in our own state: Joyce “Black Magic” Gilchrist and Robert Macy. Gilchrist got fired for fabricating evidence as science, and nothing happened to Macy. Virtually no consequences for outright lying to juries and sending innocent people to prison.
When, if ever, are these people called out by name and forced to answer for their actions? It seems the light is never shined on these people to give an account of how their actions contributed to the conviction of an innocent person. Nor are their supervisors ever called out and forced to take any responsibility for the way in which these people are trained and supervised. It seems we just get rid of some bad apples without ever involving the larger parts of the system for its responsibility in how the system breaks down.
I do not ever want to see an interview about how an exonerated prisoner feels about being unjustly convicted. I can guess how he or she feels about it. That is not news. It is not a story. The story is how it happened. How judges, prosecutors, and law enforcement officers allowed it to happen; and what steps, if any, these people are taking to make sure it does not happen again. That is the story that I would like to see.
ROYCE HOBBS, Stillwater, won a jury trial recently in the courtroom of new Associate District Judge in Noble County, Hon. Nikki G. Leach, and it only took the jury 19 minutes to vote not guilty. The facts are scant, but Royce reports that there was no real police investigation and “Jerry Springer-like” facts. Congratulations, Royce!
LISBETH MCCARTY, OIDS Appellate Division, Norman, was appellate counsel in the Graham case, which explicitly holds that the testimony of the accused is not discoverable pre-trial, and she obtained a reversal to boot because her client was denied his right to present a defense. I always took the position that the State is not entitled to discover any testimony of the accused, but now we have a good case on point (even if it is unpublished; perhaps Lisbeth may consider moving to have it published). Terrific work, Lisbeth!
JARROD STEVENSON, OKC, had a demurrer sustained recently in Kay County by Special District Judge Jennifer Brock in a Trafficking case. The State will not appeal. Another great win for Jarrod!
HOBSON IN DRUG COURT: Former state Senate President Pro Tem Calvin Hobson has been admitted into Cleveland County Drug Court after DUI arrests.
CHILD ABUSE PREVENTION: The month of April is Child Abuse Prevention Month.
FAKE COP: The Chief Investigator for the Oklahoma Department of Veterans Affairs has been fired and charged with perjury after prosecutors alleged that he was actually an ex-convict from New Jersey who has never been CLEET certified.
DEFENSE v. STATE: Defense attorney Misty Fields is in a heated battle with the prosecutor’s office in Mayes County over allegations that the State threatened DHS action against her client.
DA v. JUDGE: Meanwhile, in Creek County, District Judge Joe Sam Vassar has denied several motions by District Attorney Rex Duncan in his heated confrontation with Associate District Judge Patrick Pickerill over whether Judge Pickerill engaged in “sham legal process” in issuing administrative orders that established Drug Court in Pawnee County.
SHERIFF v. COMMISSIONERS: Canadian County Sheriff Randall Edwards has hired excellent attorney Mark Henricksen as outside counsel in his battle with the County Commissioners over the purchase of motorcycles. However, it appears that the matter has been resolved, and the Sheriff is out to purchase the motorcycles.
DUI KITS: Oklahoma City attorney John Hunsucker expounds upon the problem of expired DUI kits.
JAIL UPGRADED: The Tulsa County Jail will expand to include a new wing to house a mental health facility.
NEW WARDEN: Howard McLeod Correctional Center has a new warden, Thomas Sharp.
UNDERSHERIFF RESIGNS: The Delaware County Undersheriff, Carl Sloan, has resigned because of some sort of an altercation with Robert Real, the Delaware County Director of Emergency Management, who was placed on administrative leave.
JAILER ARRESTED: Brian Carney, a Jail Supervisor in Marshall County has been arrested for stealing money from the Sheriff’s Department.
JUVENILE JUSTICE: Construction is to begin on new pods for the Tulsa County Jail as well as a new Juvenile Justice Center.
Chicken caper: a Lawton man became angry at the lack of chicken, so he took matters into his own hands, breaking windows and attacking soda fountains at a Church’s Fried Chicken; an Oklahoma City man was arrested in the street last week after firing gunshots into the air while wearing only a mini-skirt; if you suspect that your car was vandalized in the parking lot, do not claim to be a cop and demand the surveillance video; instead of driving away, just pay the ticket for no seatbelt.
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