(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. 25: GARVIN COUNTY: Garvin County is just down the interstate from OKC, and the county seat is Pauls Valley. It was named for Samuel J. Garvin, a local Chickasaw rancher, merchant, and banker. Oddly, it seems close to where I practice, but I do not ever recall having a case there, which brings my total to 15 out of 25.
Hunsucker, et al., v. Fallin, et al., 2017 OK 100 (December 19, 2017): DUI: OKC DUI attorneys John Hunsucker, Stephen Fabian, Charles Sifers, and Bruce Edge (Tulsa), sough injunctive and declaratory relief challenging the constitutionality of the Impaired Driving Elimination Act and Gov. Fallin’s executive Order 2017-19, which re-tool Oklahoma drunk driving law in several ways. The Court held that the Plaintiffs had standing and that the Act violated the Oklahoma Constitution’s “single subject” rule.
Parsons v. District Court of Pushmataha County, 2017 OK 97 (December 12, 2017): Insanity & Competency; Jurisdiction (Appellate): Parsons was charged with Murder in the First Degree but found not guilty by reason of insanity, and ordered committed to the Oklahoma Forensic Center. After being treated there, the Board recommended group therapy sessions once a week at an outside facility. The prosecutor objected to this, the district court sustained the objection, and Parsons appealed, first to the OCCA, which transferred the matter to the Supreme Court to decide the jurisdictional question. The Court held that the issue pertaining to the therapeutic visits was a civil matter over which the Supreme Court had jurisdiction; and on the merits, the Court reversed the district court in nixing the recommended visits.
State v. Jeremy Glenn Roberts and Jason D. May, No. 115,393 (Okla. Civ. App., Div. II, December 14, 2017) (Not for Official Publication): Contempt: The Hon. Aaron Duck (Murray County) imposed a monetary sanction on Ardmore attorney Jason May for failing to appear on behalf of a client in a criminal proceeding. In this opinion, the Court reversed that Order on several grounds including lack of notice of the hearing date, insufficient evidence, no finding of willful intent, and lack of a legal basis for the order. NOTE: The opinion also stated that the Court “in no manner approves or condones the action of attorney May in his disrespectful letter to the trial court.” Jason is a fighter down there in Ardmore. I wonder what he said in the letter…lol.
United States v. Mario Ailon-Ailon, No. 17-3178 (10th Cir., November 22, 2017) (Published) (Lucero, O’Brien & Phillips) (per curiam): Bail: Interesting legal issue where Ailon-Ailon was detained by ICE prior to trial, and the Government argued at the bail hearing in the criminal case that he had “fled” for purposes of the Bail Reform Act. The magistrate agreed and recommended bail, but the District Court reversed. Here, the panel reversed, holding that “flee” refers to volitional acts rather than involuntary removal.
United States v. Paul A. Turrieta, No. 16-2281 (10th Cir., November 28, 2017) (Published) (Kelly, Holmes & Bacharach): Federal Sentencing Guidelines (ACCA): Sentence under the ACCA is affirmed over a claim under Johnson (residual clause unconstitutionally vague) where New Mexico residential burglary statute is sufficient under the enumerated offense clause (thus, Johnson does not apply).
United States v. Gabriel Mirabel, No. 16-2188 (10th Cir., November 29, 2017) (Published) (Kelly, Holmes & Bacharach): Search and Seizure (Traffic Stops); Confrontation/Cross-Examination: Drug offense conviction is affirmed over claims relating to: 1) illegal search of automobile (the officer had PC to search the trunk, but went through the back seat and put the armrest down which is where the cocaine was found); 2) restrictions on cross-examination (details of the plea agreement of Government witness, but any error is harmless); and 3) Brady and evidence destruction (error unpreserved, but no bad faith in any event).
United States v. Wayne C. Benton, No. 16-3332 (10th Cir., December 8, 2017) (Published) (Briscoe, Ebel & Matheson): Federal Sentencing Guidelines (Crime of Violence): The offense of aggravated assault with a deadly weapon under Kansas law is a crime of violence for federal sentencing 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. Michael George Iverson, No. 16-51034 (5th Cir., October 31, 2017): Federal Sentencing Guidelines (Obstruction of Justice): The issue is whether the fact that the accused made false statements in order to secure court-appointed counsel constitutes obstruction of justice for enhancement under the Guidelines. This is not a winner, but I included it because the panel noted a circuit split on this issue and the panel joined the majority side. This means the issue might be a good candidate for certiorari review, so if you have this issue percolating in a case, be sure to preserve it in case SCOTUS intervenes.
United States v. Pereneal Kizzee, No. 16-20397 (5th Cir., December 15, 2017): Confrontation/Cross-Examination: Convictions for felon-in-possession of ammunition, firearms, CDS, are reversed when the Government asked a detective questions about an interrogation he had with a different criminal suspect that implicated Kizzee. This was a clear violation of the Sixth Amendment. NOTE: Although a winner, it takes the Court 17 pages to get there over what seem to me to be frivolous arguments by the Government. This is an indication, along with the feeling I get from reading other cases, that confrontation is being watered down along the same lines as search and seizure rights under the Fourth Amendment.
United States v. Benjamin Cornelius Blue, No. 16-4537 (4th Cir., December 12, 2017): Federal Sentencing Guidelines (General): Sentence of 272-months for armed bank robbery and brandishing a firearm during a crime of violence is vacated on the basis that the district court failed to address his non-frivolous arguments in favor of a downward departure.
This is a binge-worthy Netflix show about Marty Byrde (played by Jason Bateman), a money-manager in Chicago seduced by greed who launders large sums for a drug cartel. Things go south in a hurry for Marty with the cartel, his partner, and his wife, and he winds up in the backwoods of the Missouri Ozarks trying to disentangle himself from the trap of his own creation, dragging his family with him along the way, including his estranged wife, Wendy (played by Laura Linney).
Bateman is excellent as the beleaguered Marty, trying to stay one step ahead of the cartel, but soon finds himself having to stay one step ahead of the hillbillies in the Ozarks who turn out to be just as cunning and ruthless as the cartel. Marty and his family get caught in the middle and it is entertaining to see it unfold. The writing is snappy, the acting uniformly good, and there does not seem to be any throw-way characters in this show. Everyone has hidden motives, is dangerous, and often are not what they appear to be. The initial season is an 11-episode run, which is just about right for a weekend binge, and season two has apparently been approved.
With the holidays coming up, if you have spare time to take a breather, start this series and you won’t be disappointed.
DISTURBING POLICE SHOOTING
On January 18, 2016, police in Arizona went to a motel in response to a report that three persons were in a motel room and aiming a gun out the window. The GRAPHIC VIDEO of the event begins when police encounter two of the occupants in the hallway of the motel as they walk out of the room, a woman and a man named Daniel Shaver. Officer Philip Mitchell Brailsford is the officer shouting instructions to the pair and whose point of view we see on the video. A word of warning, it is difficult to watch and disturbing to see what transpires, so if you might be upset watching a shooting then you might want to not watch it.
Shaver was killed, shot to death by Officer Brailsford, who stood trial. The jury returned a VERDICT on December 7, 2017. If you have not already read about this case, I would suggest that you watch the video first and gauge your initial reaction, then read what the verdict of the jury was. I had a strong initial reaction to the video, then went over it again and thought about it from the view of the officer and what information he had, and my thoughts changed. It is a very tragic event, but I don’t know exactly how it could have been prevented.
PRACTICE POINTER—DEFENDANT TESTIFYING
Defense lawyers in general dislike the idea of the client testifying at all in a criminal case, but sometimes the testimony of the accused is required to offer factual support of a motion to suppress.
Luckily, the Supreme Court has assisted us with this problem by holding that, “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” United States v. Simmons, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Thus, if the client must testify in these situations, we at least have some protection from opening up the client’s pre-trial testimony for use by the State at trial. This is a good case to file away in case you have a similar situation, and I know that Tulsa attorney Allen Smallwood used this procedure recently before Judge Glassco and it works.
JOHN HUNSUCKER, STEPHEN FABIAN, CHARLES SIFERS, OKC, and BRUCE EDGE, Tulsa, all DUI lawyers, represented by BRIAN K. MORTON and SONJA R. PORTER, attacked new DUI legislation and were successful in the state Supreme Court in the Hunsucker v. Fallin case featured above. This seems like a collective effort and a good victory for all involved. Congrats John, Stephen, Charles, Bruce, Brian and Sonja!
CRYSTAL JACKSON and MISTY FIELDS, Pryor, represented two women charged with Murder in the First Degree and convinced the Hon. Mark Dobbins (Cherokee County) to reduce the charge to Assault and Battery with a Dangerous Weapon. Terrific work, Crystal and Misty!
Oklahoma County Criminal Defense Lawyers Association: The OCCDLA Christmas dinner was hosted by John W. Coyle, III, at his office downtown, and featured awards to John W. “Billy” Coyle, IV, (The Barry Albert Award), David Lynn (deceased) (The Manchester Lifetime Achievement Award), and the President’s Award went to former Oklahoma County First Assistant District Attorney Scott Rowland, who is currently at his new job as a Judge on the Oklahoma Court of Criminal Appeals. Congratulations Billy, David, and Scott!
UNQUALIFIED: New details have emerged as to why the ABA has deemed federal magistrate Judge Charles Goodwin “unqualified” for the federal bench. During questioning in the Senate, it appears that his work ethic has come under fire, specifically that he sometimes does not go into his office until noon. Judge Goodwin responded that he has a home office and does a lot of work there.
SHORTAGE: There is apparently a shortage of court reporters in Tulsa County.
RESPONSE: Former Judge Tom Landrith (Pontotoc County) and SOAR recovery center have responded to recent criticism about the program, including possible criminal fraud.
ACCUSED: An ex-police officer for North Enid has been accused of stealing fentanyl pain-patches from elderly nursing home patients.
EMPATHETIC JURORS: A jury in Virginia found a 19-year-old maid guilty of stealing jewelry from a home, but then, moved by her plight, took up a collection in order to help her pay the fine that it had just imposed.
SPIKE: There apparently was a spike in drug busts in Oklahoma just prior to the passage of State Question 780.
RETIRED: The Hon. Mark Moore (Blaine County) has retired after 25-years on the bench.
TRANSFERRED: The probation of former reserve deputy Robert Bates, convicted of negligent homicide, was transferred to Florida where he lives, but for some reason was transferred back to Oklahoma.
NO RECORDS: Despite a pledge to clean up problems at the Oklahoma County Jail, Sheriff P.D. Taylor has refused to release records of inmate deaths.
FED TAKEOVER?: There are fears that the federal government may take over DOC.
LOBBER CAUGHT: The past several years has seen an increase in “lobbers” or people who throw packs of contraband over prison fences. Another one was napped in Shawnee, accused of lobbing over the fence at the women’s prison in McLoud.
AGENT OF THE YEAR: Special Agent Mike Dean was awarded the Agent of the Year honor by the OSBI.
CHARGED: Two former jailers at the Oklahoma County Jail have been charged with assault related to an inmate death.
TROOPER INVESTIGATED: An OHP Trooper out of Ardmore is being investigated for “official misconduct.”
K-9 UNIT: The City of Miami has deployed its first canine officer, Niko.
CHARGED: An attorney for the DHS out of Tulsa has been charged with DUI and vehicular manslaughter.
RETALIATION: A drunk patron at a bar in Tulsa was kicked out…so started shooting up the cars of the employees.
NEEDS PRACTICE: A robber in Glenpool produced a gun and demanded money from a store clerk…who proceeded to grab the gun from the robber and rob him back.
LAWTON GRINCH: A thief in Lawton broke into a home, stole Christmas gifts, and poured chocolate milk all over the bedroom. Lawton.
LIQUORED-UP, SORTA: An OKC man was arrested in Tahlequah for public intox…from drinking Listerine.
HEY, IT WORKS!: A woman in Tulsa fired a gun inside a motel to make sure it worked…it did, and so did the response of the police. Reminds me of my firearms instructor years ago when I got my private investigator license. Every time he would drop something, he would look down at it and say, “gravity check…yep, it’s working.”
NOT COOL, BRO: As police were investigating a shooting in Muldrow, an intoxicated man drove through the crime scene!
CURE WORSE THAN THE DISEASE: A manhunt in Shawnee saw a successful escape by the suspect…until he was discovered in a river suffering from hypothermia.
NOTE TO SELF…: Don’t put baby in a laundry bag, tie it to a door handle, take a picture of it, and then share it on SnapChat.
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