(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).
Steven Wayne Shutler v. State, No. RE-2014-732 (Okl.Cr., August 26, 2015) (unpublished): Indigents: This is a case out of Garfield County where the Hon. Paul Woodward passed sentencing several times in a revocation matter in order to allow Shutler to make restitution payments. Shutler did not make the payments, his probation was revoked, and in this opinion the Court affirmed. I included it because it contains a nice summary of the cases and legal standards governing imprisonment of citizens for non-payment.
William Buck Rodgers v. State, No. F-2014-427 (Okl.Cr., August 18, 2015) (unpublished): Self-Defense: Rodgers was convicted by jury in Creek County (the Hon. Douglas W. Golden, presiding) of Murder in the First Degree. The Court affirmed over several claims, including a claim of immunity under the Stand Your Ground Law, which the Court found waived because it was not asserted pre-trial (either before trial opens or a dispositive plea is entered). N.B.: This is a particularly appalling application of waiver rules because there is no published authority from the Court as to when such claims must be raised, and the Court cited a Kansas case for the proposition of waiver. The opinion was authored by Judge Johnson, with all judges either concurring or concurring in the results. It thus appears that all judges were complicit in depriving Rodgers of his day in court by applying a waiver for which he had no notice.
Jimmy Watson Jones v. State, No. F-2013-754 (Okl.Cr., August 21, 2015) (unpublished): Jury Instructions (Sex Registration): Jones was convicted by jury in LeFlore County (the Hon. Jonathon K. Sullivan, presiding) of Rape by Instrumentation. The Court affirmed over several claims, including one relating to a requested jury instruction on sex offender registration. The Court rejected the claim, but I included this opinion because Judge Smith specially concurred, stating that she urged juries to be instructed on sex offender registration. So, there is at least one voice on the Court receptive to the idea.
E.A.F. v. State, No. J-2015-353 (Okl.Cr., August 27, 2015) (unpublished): Judicial Bias; Juveniles/Y.O.: EAF was charged as a Youthful Offender in Tulsa County (the Hon. William D. LaFortune, presiding) with First Degree Robbery. EAF was 17 years and 9 months and 18 days at the time of the offense, and Judge LaFortune granted the State’s motion for adult sentencing. However, Judge LaFortune took it upon himself to instruct his deputy to check the jail records of EAF’s behavior, without notice to either party, and discovered bad conduct; whereupon he announced that he was re-opening the hearing and directed the State to subpoena the jail records. The Court reversed, holding that Judge LaFortune abandoned his role as a neutral magistrate (and in fact violated the Code of Judicial Conduct), and remanded with instructions that a new hearing be conducted before a different judge.
In Re: Adoption of the 2015 Revisions to the Oklahoma Uniform Jury Instructions—Criminal (Second Edition), No. CCAD-2015-2 (Okl.Cr., August 26, 2015): The Court adopted revised and new instructions on subjects such as contempt, witness intimidation, child abuse and neglect, child sexual abuse, rape and other sex crimes, arson, larceny of domestic animals, defense of another, and a verdict form for insanity cases.
Austin N. Shoptaw v. State of Oklahoma ex rel. Department of Public Safety, No. 113,405 (Okla. Civ. App., Div. II, August 27, 2015) (Released for Publication): DUI (DPS): Shoptaw was arrested for APC and refused the test, resulting in loss of his license. In an appeal to the district court, the Hon. James B. Croy (Oklahoma County) vacated the revocation because, although the arresting officer provided notice of the revocation to Shoptaw, it was done with an invalid affidavit; and although a supplemental affidavit was filed to cure the original one, Shoptaw was not served with or given notice of the supplemental affidavit. The DPS appealed and the panel affirmed Judge Croy.
United States v. Ryan Ridens, No. 14-3221 (10th Cir., July 10, 2015) (Published) (Hartz, Baldock & Tymkovich): Federal Sentencing Guidelines (Crime of Violence): A former conviction for burglary under Kansas law qualified as a violent crime under the ACCA.
Keynon Michael Owens v. Anita Trammell, Warden, No. 13-5066 (10th Cir., July 7, 2015) (Published) (Tymkovich, Gorsuch & Phillips) (N.D. Okla., Hon. Claire v. Eagan): Double Jeopardy; Habeas Corpus: Oklahoma tried Owens successfully, twice, for first degree felony murder. The first trial ended in a guilty verdict for felony murder, but an acquittal of the underlying armed robbery. The OCCA reversed, and a second trial resulted in a conviction for felony murder—a charge that Owens argued was already decided in his favor in the first trial. The OCCA denied relief, as did the federal district court, and in this convoluted opinion the circuit panel followed suit, holding that the decision of the OCCA was not unreasonable under federal law.
United States v. Elizabeth D. Kupfer, No. 13-2138 (10th Cir., July 7, 2015) (Published) (Briscoe, C.J., Baldock & Bacharach): Federal Sentencing Guidelines (Obstruction of Justice); Jury Instructions (Tax Evasion): In this tax evasion case, the conviction is affirmed over claims relating to the jury instructions, but the sentence is vacated because the district court enhanced based upon the fact that Kupfer failed to report her crime. The panel held that this was error, and that an enhancement for obstruction of justice cannot be had when the accused fails to report her crime.
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. Negron Sostre, No. 10-1974 (1st Cir., June 25, 2015): Public Trial: Multi-defendant drug conspiracy cases are reversed where the trial court excluded the public from jury selection.
United States v. Parker, No. 13-4989 (4th Cir., June 25, 2015): Prosecutorial Misconduct (Brady): Convictions for illegal gambling are reversed because the Government failed to divulge evidence of impeachment of one of its witnesses.
United States v. Sergio Patrick Rodriguez, No. 14-10122 (9th Cir., June 24, 2015): Scienter (Laser Pointers): This is a case where the accused and his family were playing around with a laser pointer at night and aimed it at aircraft. Rodriguez was convicted of both aiming a laser pointer at an aircraft, and also attempting to interfere with the safe operation of an aircraft, receiving five years for the former and fourteen years for the latter. The scienter requirements are different for each. The panel found that the statute governing aiming a laser pointer at an aircraft is designed for “knuckleheads” like Rodriguez (yes, the opinion says this!), but the more serious offense requires some intent to actually interfere with the aircraft, and since there was no evidence of it in this case, that conviction is reversed.
MERLE GILE, OKC, won a not guilty verdict recently in Grady County representing a client charged with eight counts of possession of child porn.
ROB HENSON, CHARLES GRAHAM & ISAIAH PARSONS, Tulsa, won a huge motion to suppress in a traffic stop case that yielded enough meth for a Trafficking charge. They convinced Judge Cliff Smith that the police extended impermissibly the duration of the traffic stop in order to conduct a drug dog sniff. Terrific work, Rob, Charles & Isaiah!
ROYCE HOBBS, Stillwater, employed one of the best defenses we have—self-defense—and convinced the jury that the two complaining witnesses who were stabbed deserved it! Nice win, Royce!
JASON MAY, Ardmore, won a jury trial recently for a client accused of unlawful possession of CDS. Jason puts the State to the test often, and he prevailed in this case. Nice work, Jason!
ATTORNEY SPEAKER: OKC’s own William Campbell was the keynote speaker at the annual convention of the Oklahoma Rifle Association in Midwest City recently. Bill spoke on the issue of “constitutional carry” and how it relates to Oklahoma law.
SHERIFF OF THE YEAR: Tillman County Sheriff Bobby Whittington has been selected as the Sheriff of the Year by the Oklahoma Sheriff’s Association; also, Beckham County Sheriff Scott Jay will not seek re-election.
COMMUTATIONS: The Oklahoma Pardon and Parole Board implemented some policy changes to the way it handles commutation applications.
NUISANCE: Del City officials have shut down the night club “Fantasy Island” as a public nuisance.
CHARGE DISMISSED: A murder charge has been dismissed against a former sheriff deputy who supervised reserve training.
CLEMENCY DENIED: The Pardon and Parole Board denied clemency for Oklahoma death row inmate Benjamin Robert Cole, by a vote of 3-2.
CHIEF RESIGNS: The police chief in Fairview has resigned suddenly.
JNC ISSUES: The Judicial Nominating Committee has some problems, created when it sent two names to Gov. Fallin, who rejected both. The A.G. is investigating.
JAIL ASSAULT: A nurse at the Tulsa Jail alleges that she was sexually assaulted by a detention officer.
TRAFFIC CONTACT: The police department in Jones has set a minimum number of “traffic contacts” at five per officer per shift.
RECORDING POLICE: Interesting article about the dangers of recording police. Apparently, not all courts are on board that citizens have a right to do this.
ADA MOVES: Jessica Ward, former assistant district attorney in Kay County, has been hired by the Fred Boettcher Law Group.
LABOR COMMISSIONER KILLED: In a sad episode, State Labor Commissioner Mark Costello has been stabbed to death at a Braum’s on North May Avenue by his estranged son.
DRONES: The City of Stillwater purchased a drone for “emergencies” whatever that means.
ESCAPE THWARTED: Sheriff John Whetsel discovered an elaborate escape plan by inmates at his jail.
GILCHRIST DIES: Disgraced former police chemist Joyce Gilchrist has died in Texas in June of this year, never charged with a crime and never apologizing to the innocent people she sent to prison.
WACKY CRIME: Burglar gets caught, knocks himself out when he ran into a tree branch; a Claremore man used a fake dating profile to stalk his ex-wife; three-stooges-like scuffle ended up with a suspect shooting himself in the leg; a suspect arrested for murder in Carter County killed himself in his jail cell; a grandmother in Delaware County has earned a fine for contempt when she called a basketball coach accused of molesting a teenager a “rat bastard”; a sign for “Sensations” strip club violates state law (keep it classy, Mayes County!); former Subway pitchman Jared Fogle is in deep trouble regarding child porn, and now his foundation appears to be a sham; Tyson-Holyfield II at the Beckham County Jail where an inmate apparently bit off the ear of another inmate during a scuffle.
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