(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).
Ronnie Burnett Jones v. State, No. F-2015-16 (Okl.Cr., May 24, 2016) (unpublished): Peremptory Challenges: Jones was convicted by jury in Tulsa County (the Hon. William C. Kellough, presiding), of one count of Murder in the First Degree, and two counts of Shooting with Intent to Kill (AFCF x 2). Four eyewitnesses who knew him testified that he was the shooter; Jones testified at trial and denied it. The Court affirmed, but the discussion of a Batson claim (related to the racially-motivated use of peremptory challenges) is in-depth and instructive on that topic.
State v. Marco Callejas, No. S-2015-972 (Okl.Cr., May 20, 2016) (unpublished): State Appeals; Search and Seizure (Traffic Stops): Callejas was charged with Possession of CDS w/Intent and Possession of a Firearm (AF Juvenile Conviction) in Tulsa County (the Hon. James Caputo, presiding). Prior to trial, Callejas filed a motion quash for insufficient evidence, and to suppress for lack of probable cause. Judge Caputo granted the motion to suppress, and the State appealed. At issue here is a municipal ordinance regarding driving within a single lane. The officer construed the ordinance as requiring the driver to “hesitate” before changing lanes, i.e., the driver cannot signal and continuously cross into another lane. The Court rejected this view, finding that the ordinance was neither ambiguous nor unclear. However, the key aspect of this case is how Heien v. North Carolina, 135 S.Ct. 530 (2014), affects the analysis. Heien allows a traffic stop made by an officer who makes a reasonable mistake of law in interpreting a statute or ordinance. The OCCA held that Heien does not apply here because the ordinance was neither ambiguous nor unclear (“Surely the State is not arguing that officers cannot be sure how to enforce routine traffic ordinances in the absence of written, published judicial guidance.”) NOTE: This is an important opinion from the OCCA construing Heien.
United States v. Clifton Brett Bennett, No. 14-1384 (10th Cir., Mary 26, 2016) (Published) (Tymkovich, C.J., Baldock & Hartz): Child Porn: Bennett pled guilty to child porn charges and was sentenced to 57-months. Both Bennett and the Government claim that the district court got it wrong. The Government claimed that a prior conviction of misdemeanor sexual exploitation of a child “relates to” child pornography—that thus triggered a 10-year mandatory minimum. The panel agreed. Bennett also appealed a condition of supervised release that requires him to undergo mandatory testing for sexual attraction to minors. As to this claim, the panel dismissed without prejudice because the claim was not ripe. NOTE: As to the issue regarding the enhancement, Judge Hartz dissented on the basis that the definition of “child pornography” under Colorado law is more broad that the definition in the federal enhancement statute.
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).
Scott Kernan, Secretary, v. Antonio A. Hinojosa, No. 15-833 (U.S., May 16, 2016) (per curiam): Habeas Corpus (Procedural Default): Summary denial of a habeas petition by the Supreme Court of California was “on the merits” for AEDPA purposes. This brief opinion deals with the “look-through” provisions of Ylst.
Brandon Thomas Betterman v. Montana, No. 14-1457 (U.S., May 19, 2016): Speedy Trial: Betterman pled guilty to bail jumping and waited in jail for 14-months awaiting sentencing (for “institutional delay”). He argued that his Sixth Amendment right to a speedy trial was violated. The Court held that the speedy trial right does not apply when the accused has already pled guilty. The Court was unanimous.
Timothy Tyrone Foster v. Bruce Chatman, Warden, No. 14-8349 (U.S., May 23, 2016): Peremptory Challenges: This is a capital case out of Georgia on a Batson claim (discriminatory use of peremptory challenges by the State), where an open records act request by Foster produced the case file from the prosecutor’s office showing notes that support purposeful discrimination by the State during jury selection. However, based upon this new evidence, the Georgia Supreme Court denied a Certificate of Probable Cause to appeal. In this opinion, the Supreme Court reversed. NOTE: Justice Thomas, the lone African-American on the Court, dissented.
OTHER CASES OF NOTE
United States v. Jehoni Kierre Williams, No. 14-11131 (5th Cir., May 9, 2016): Plea Bargains: As part of a plea agreement, the Government promised to recommend a sentence at the bottom of the Guidelines range. It did not do so. In this appeal, the panel vacated and remanded with instructions to allow Williams to withdraw his plea or be re-sentenced.
JASON EDGE, Tulsa, won a nice victory in the trial court in the Callejas case featured above, and then won again when the State appealed, securing for us a nice appellate win on an important issue of law governing traffic stops. Nice work, Jason!
WALKAWAY: An inmate walked away from William S. Key Correctional Center at Fort Supply over the weekend.
RIP JUDGE OWENS: The Hon. Charles L. Owens, Oklahoma’s first appointed African-American district judge, has passed away at the age of 86. He was appointed to the bench in 1968, by Gov. Dewey Bartlett. I never appeared before Judge Owens, but he presided over the trial of my first client, Roger Dale Stafford, and his wife, Verna Stafford. Stephen Jones hired me out of law school, and my first legal case was to draft a brief to the Tenth Circuit for Roger. During that research, I read the sentencing transcript of Verna, who testified against Roger in both the murders of six employees of the Sirloin Stockade restaurant in Oklahoma City (Roger was represented by Public Defender Robert Ravitz in that case), and also the murders of the three members of the Lorenz family in McClain County (for which Stephen had been appointed by Judge West in the federal court). During the sentencing, I recall that Judge Owens told Verna that he was worried about her soul, and that he sure hoped that she would address that situation because “one of the hottest corners of Hell has your name on it.” That was a dramatic thing for a new lawyer to read, and impressed upon me just how deeply those crimes affected our state. RIP Judge Owens.
BATES JUROR REGRET: One of the jurors in the Robert Bates case out of Tulsa has expressed regret over the guilty verdict, and has asked the judge for probation. Also, the press has covered the fact that the defense investigator has contacted jurors.
DUI/DPS: This article from The Tulsa World claims that drunk drivers are allowed to keep their driver’s licenses because of DPS delays. Also, this article details that unlicensed drivers are a problem as well.
CELL PHONE DOG: A canine officer named Riley and his handler from Enid have become the first in the country to be certified to detect cell phones (mainly in prisons).
JAILED: This press report states that a man in Muskogee was jailed because he failed to hire counsel for his child sex abuse case.
OPEN LETTER: The link goes to an open letter to the Hon. Conrad Hafen, the Louisiana judge who made headlines last week for having a public defender handcuffed in court for continuing to argue for her client.
INVESTIGATION: District Attorney Craig Ladd, Ardmore, has requested that the OSBI investigate Sheriff Milton Anthony for reasons that are not entirely clear.
FALSE REPORT: A woman in Enid was arrested for making a false claim of rape against a police officer.
BIG BUST: An Oklahoma County Sheriff’s deputy found nearly 100 pounds of marijuana during a traffic stop in I-40.
CHIEF RESIGNS: The Chief of Police in the town of Vian has resigned.
CHIEF DIES: The Colcord Chief of Police died recently while cutting firewood.
CAPTURED: A fugitive from Washington on the run since the 1980s has been captured in Shawnee.
CORRECTIONAL OFFICER ARRESTED: A prison guard in Lawton has been arrested for bringing in contraband to the prison.
CONTRABAND: Jail officials in Claremore are concerned about mail; apparently some mail has been soaked in drugs for use by inmates.
GRACE PERIOD: District Attorney Angela Marsee has announced a grace period for persons with outstanding warrants for probation violations.
GRAND JURY REPORT: The link goes to the grand jury report detailing the problems with Oklahoma’s execution methods.
BURNING RUBBER: As my co-editor Mark Hoover described it, it’s not a good idea to mash the gas pedal in your car, peel out and burn rubber in a small town like Waynoka…when you have no license…or insurance…and you’re drunk.
BASEBALL BAT v. GOLF CLUB: That’s how they roll in Chickasha.
BASEBALL BAT v. FISTS: In Ada, the baseball bat always wins.
THE BULLFIGHTER: A Tahlequah man was arrested at a grocery store as he pretended to be a bullfighter (the mug shot made me laugh for some reason). Alcohol was involved.
THAT WAS FAST: An ex-convict in Stillwater was arrested for DUI—exactly one day after being released from prison.
THAT WAS TOO SOON: An inmate at the Oklahoma County Jail escaped on Sunday—one day before he was scheduled to be released.
WILD WEST: A Tulsa man was arrested after breaking a beer bottle over another man’s head, and then shoot a gun in the air.
OUCH: An inmate in Tulsa broke his neck and pelvis while “leaping” from the sink to his bunk.
EWWW: A thief broke into a home in Bryan County—and used the victim’s toothbrush.
TRIBUTE MURAL: A tagger in Pauls Valley has been recognized by the police for his art (check out the graffiti).
A TRUE ROMANTIC: A Chickasha man named Jimmy Last Chance Butler (?) eluded police until he returned to Paw Paw’s Hamburgers so that he could kiss his wife before being arrested.
BAD LUCK: A victim of a carjacking has been arrested on an outstanding arrest warrant.
SLINGSHOT: A felon in Tulsa was arrested for shooting cars and houses—with a slingshot.
THURSDAY, JUNE 23 & FRIDAY, JUNE 24, 2016: The 2016 Patrick A. Williams Criminal Defense Institute & OCDLA Annual Meeting will take place at the Hard Rock Hotel & Casino in Catoosa (Tulsa).
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