(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).
Shaun Michael Bosse v. State, 2015 OK CR 14 (Okl.Cr., October 16, 2015): Death Penalty (HAC & Avoid Arrest); Experts (Daubert Hearings); Search and Seizure (Consent); Prosecutorial Misconduct (Improper Argument); Evidence (Visual Aids; Accreditation); Gruesome Photographs: In this death penalty case out of McClain County, the Court affirmed over claims relating to: 1) insufficient Daubert hearing on BATF arson experts; 2) substantive use of his right to refuse consent to search to a warrantless search of his vehicle raised an impermissible inference of guilt (error but harmless); 3) admission of visual aids re DNA tests; 4) admission of gruesome photos; 5) admission of victim impact evidence; 6) challenges to the HAC aggravator; 7) and lack of accreditation of the Medical Examiner’s Office (on plain error review). NOTE: Concerning the use by the State of Bosse’s refusal to consent, the Court stated that there was no controlling authority on this legal issue, but that its use was unconstitutional. Also, as to the admission of victim impact evidence, the Court continues to disagree with the Tenth Circuit as to how to interpret Supreme Court precedent on this issue. Finally, the Court allowed medical examiner testimony even though the lab is not accredited.
Randy Trent Harrison v. State, No. F-2014-134 (Okl.Cr., October 15, 2015) (unpublished): Right to Present a Defense; Character Evidence: Harrison was convicted by jury of First Degree Manslaughter in Oklahoma County (the Hon. Donald Deason, presiding). Harrison was a police officer who was charged and convicted of using deadly force against a citizen which was not authorized. The Court affirmed over Harrison’s claims regarding denial of his right to present a defense with the use of experts on the use of force and character witnesses. NOTE: I included this case because Judges Lumpkin and Hudson dissented on these issues.
United States v. David Michael Faust, No. 14-8011 (10th Cir., August 4, 2015) (Published) (Briscoe, C.J., Holmes & Bacharach): Sufficiency; Jury Instructions (Defense Requested): Faust was convicted of attempted online enticement of a minor. He challenged his conviction on the basis of insufficient evidence of intent to engage in illegal sexual activity, and also the denial of an instruction on specific intent. The panel affirmed.
United States v. Beverly Kim Sanders, No. 14-1296 (10th Cir., August 7, 2015) (Published) (Lucero, Bacharach & McHugh): Search and Seizure (Impoundment; Community Caretaking): After arresting the driver of a vehicle, police auto-impounded the vehicle (which was on private property and not impeding traffic) and found contraband. The district court granted a motion to suppress, and the Government initiated an interlocutory appeal. The panel affirmed, stating: “After surveying Supreme Court and Tenth Circuit precedent as well as persuasive authority from other circuits, we hold that when a vehicle is not impeding traffic or impairing public safety, impoundments are constitutional only if guided by both standardized criteria and a legitimate community-caretaking rationale.”
United States v. Michael Scott Calhoun, No. 14-7077 (10th Cir., August 10, 2015) (Published) (E.D. Okla., the Hon. Ronald A. White, presiding) (Phillips, Baldock & Ebel): IAC: Fraud convictions are affirmed over a “divided loyalties” claim for IAC when Calhoun was represented by a lawyer hired by a bank—who advised him to incriminate himself before a grand jury for the purpose of assisting the bank in its efforts to overturn a multi-million dollar civil judgment related to a criminal scheme. The panel held that Calhoun could not assert an IAC claim because the right to counsel under the Sixth Amendment does not apply to grand jury proceedings.
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.
CLE: The Sixth Annual Barry Albert Memorial Mock Trial: Learning from the Oklahoma Criminal Jury Trial Masters
Year in and year out, this is one of the best CLE events presented, in my opinion (the CDI is the second must-attend). David McKenzie, Assistant Public Defender in Oklahoma County, conceived it and it has been a hit ever since. The idea is to model a mock jury trial as it happens live in front of a lay jury so that attendees can see how it happens in a situation similar to a real trial. David added a twist in that the defense team consists of lawyers who practice criminal defense and all of whom have been awarded the Clarence Darrow Award for trial advocacy (David himself won it in 1997).
Punctuating the proceedings with ethical observations and learning/teaching moments, is Oklahoma trial legend Garvin Isaacs, who offers insights into how the prosecution and defense are doing, live as it happens. Registration is HERE, and below is the list of participants and the fact pattern at issue this year. Mark your calendars for this one!
Barry Albert Memorial Mock Trial:6th Annual Learning from the Oklahoma Criminal Jury Trial Masters
Oklahoma City University Moot Courtroom
800 N. Harvey, Oklahoma City, Oklahoma
NOTE: Pre-registration is required. No walk-ins permitted.
Ethics Advisor and Trial Techniques Presenter
Garvin Isaacs, Garvin A. Isaacs, Inc., Oklahoma City
The Trial of Kristoffer M. Chamberlin
THE FACTS:On August 4, 2010, at 5:18 a.m. the Braum’s store located at 9020 N.E. 23rd Street in Midwest City was robbed of just over $2900.00. The robber came into the store just as the morning shift was coming in to open for breakfast. The robber wore a mask, a hooded sweatshirt and gloves.The robber ordered the employees at knife point to the back of the store where the safe was and demanded that it be opened and he be given all the money.After he got the money he ran from the store into the early morning darkness. One of employees called 911 and the Midwest City Police rushed to the scene.While waiting for the police to get there the employees started to talk. One of them said, “I think the guy who just robbed us was Kris.”The three other employees agreed the robber was Kristoffer Chamberlin, a fellow employee of that very same Braum’s store.
The employees told the police who they though the perpetrator of the robbery was and Midwest City Detectives rushed to Kris’ house.Kris was supposed to be helping the others open the store that morning but called in sick.Kris lived with his girlfriend’s parents near the Braum’s. When they arrived at Kris’ house Kris was present and he told them he had not left the home except for around 7:00 a.m. to get a pack of cigarettes. Kris denied any involvement in the robbery. The police were given consent to search but did not locate the money or the ski mask. The police did notice that a knife was missing from a wooden knife holder in the kitchen. The home had an outdoors shed that was
searched. The police found a gray sweatshirt in the shed but did not see the significance of sweatshirt because the employees said the robber worn a black sweatshirt. The following day the detectives were able to view the security video of the robbery and found the eyewitnesses were wrong and the robber, in fact, did have a gray sweatshirt on.
Kristoffer Chamberlin was immediately arrested and is now on trial for his life.
Richard Anderson, 2008 Clarence Darrow Award Recipient, Oklahoma City
Cindy Viol, 2009 Clarence Darrow Award Recipient; 2007 Barry Albert Award Recipient, Oklahoma City
Tony Coleman (2015 Clarence Darrow Award)
Johnny Albert (1994 Clarence Darrow Award)
Merle Gile (1990 Clarence Darrow Award)
David Autry (1989 Clarence Darrow Award)
Jarrod Stevenson (2012 Clarence Darrow Award)
J. W. Coyle, III (1995 Clarence Darrow Award)
Robert Ravitz (1996 Clarence Darrow Award)
David McKenzie (1997 Clarence Darrow Award)
DNA: Police in Midwest City have used DNA to link a neighbor in connection with the disappearance of an 8-year-old girl that occurred 18 years ago.
DEATH PENALTY: The Texas Court of Criminal Appeals took the rare step of halting a scheduled execution last week on the grounds alleged by the defense that prosecutors had threatened two key witnesses in the case to testify against the accused; however, this did not assist Texas death row inmate Licho Escamilla, who was executed last week; also, the Oklahoma Attorney General has requested “more secrecy” in Oklahoma executions on October 14, 2015, in a filing in a federal lawsuit;
NEW CHIEF: The hamlet of Verden, Oklahoma, finally has a new Chief of Police, James Miller who has been serving as the interim Chief.
LAW ENFORCEMENT CONSOLIDATION: Efforts are under way to consolidate state law enforcement, namely, some of the functions of the Department of Public Safety, the OSBI, and the OBNDDC.
CONFLICT: Board of Corrections member James Matthew Tilly has resigned because of a conflict created by the fact that his wife, prosecutor Megan Tilly, is in charge of the multicounty grand jury that is expected to hear testimony about Oklahoma’s string of recent, controversial executions.
ARREST: An Oklahoma County Sheriff’s Office Investigator has been arrested for domestic abuse.
Actor Randy Quaid and his wife have been drinking heavily from the crazy cup lately, and were finally arrested in Vermont after trying to flee to Canada to avoid charges stemming from an incident where they squatted in a house that they had previously owned; this woman in Florida drove home by the bar shitfaced and decided to live-stream herself on the way home on Periscope—to the horror of other users who called the cops and arrested her; it is never a good idea to fire shots in order to distract police from a traffic stop in Tulsa; and this gentlemen got liquored up in Bartlesville and decided to attack firefighters with a machete.
THURSDAY, NOVEMBER 12 & FRIDAY, NOVEMBER 13, 2015: The sixth annual Barry Albert Memorial Mock Trial: Learning from the Oklahoma Criminal Jury Trial Masters, will take place in mid-November, this year in the moot courtroom at the Oklahoma City University School of Law.
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