OCDW 02.08.16



James L. Hankins, Publisher


(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).




Tyrone Stuart Gokey v. State, No. F-2014-691 (Okl.Cr., February 1, 2016) (unpublished): Jurors (Consulting Extra-Record); After-Formers: Gokey was convicted of multiple crimes out of Ottawa County (the Hon. Robert G. Haney, presiding). In this opinion, the Court affirmed but I included it because of the discussion of two issues. First, a juror conducted independent research of Gokey’s criminal record using the DOC web site the night that the defense put on its case-in-chief. The key here is that the juror misconduct occurred prior to the case being submitted to the jury (i.e., prior to deliberations), thus there was no presumption of prejudice—Gokey had to show it and the Court held that he did not. Second, the trial court allowed the State to introduce the Judgment and Sentence documents of his three prior felony convictions, which contained information regarding suspended sentences. The jury actually sent a not asking about probation and parole, but the Court held that any error was based upon speculation. NOTE: Judge Smith dissented, and would grant a new trial on both of these errors.

Jerrell Otis Thomas v. State, No. F-2015-374 (Okl.Cr., February 2, 2016) (unpublished): Double Jeopardy/Section 11: Thomas was tried by jury in Comanche County (the Hon. Emmit Tayloe, presiding), of SWIK and Robbery. The Court affirmed for the most part, but held that the Robbery count must be dismissed because under the facts of the case it amounted to double punishment for a single act in violation of 21 O.S. 11. NOTE: There was no Double Jeopardy error here because the elements of the crimes are different.

Eric Josiah Mardis v. State, No. F-2014-942 (Okl.Cr., February 4, 2016) (unpublished): Juveniles/Y.O.; Confrontation/Cross-Examination: Mardis was convicted by jury in Oklahoma County (the Hon. Glenn M. Jones, presiding), of multiple counts of Lewd Acts and Engaging in a Pattern of Criminal Offenses in Two or More Counties. The Court affirmed the convictions, but found sentencing error when the State was allowed to cross-examine Mardis with facts drawn from a court-ordered Youthful Offender study. The Court held that the contents of the study were neither confidential nor privileged; but were rather simply irrelevant by lacking any probative value (on plain error analysis). For this error, the Court modified the sentences from 100 years, to 50 years (seriously), to be served consecutively—which is 252 years at 85%. NOTE: Judge Lumpkin authored this opinion and the “modification” of the sentences, but Judges Lewis and Hudson dissented to even this “relief.”

Johnny Allen Ross v. State, No. C-2015-473 (Okl.Cr., February 4, 2016) (unpublished): Guilty Pleas: In this case out of Murray County (the Hon. Wallace Coppedge, presiding), Ross pled guilty to drug counts, but wished to withdraw his pleas. In this certiorari appeal, the Court reversed for a proper hearing on the motion to withdraw with conflict-free counsel.


Okla. Sup. Ct. vs. OCCA: The Oklahoman’s Nolan Clay has picked up on the cattiness between the Oklahoma Supreme Court and the Court of Criminal Appeals that has plagued our state since the fallout from the death penalty stay issue from last year. The latest tiff stems from the fact that our two highest appellate courts cannot construe in harmony the legal rules that govern the timely filing of pleadings, which resulted in the published opinion Meyer v. Engle, 2016 OK CR 1, the very first published opinion from the OCCA this year, and which highlights the dysfunction in our courts because each appellate court construes differently the method for calculating filing deadlines. They cannot even agree on something as simple as that; and it makes a real-world difference because a litigant in Meyers was punished for doing it incorrectly (or was it?) The Rules for District Courts of Oklahoma apparently no longer govern district courts in a uniform manner—it now depends upon whether the case is criminal or civil.

Some on the OCDLA list-serv have called for the abolition of the OCCA. I tend to think that would be a good idea. In theory, having a specialized Court to handle only criminal cases seems wise, but I think in practice the experiment has failed. To be sure, the Court disposes of cases timely enough, but five judges is too small a number for real debate, and it appears to me that the repetitious nature of the cases and issues has led to stagnation and the over-use of summary opinions, rather than in-depth, scholarly analysis of the law. The OCCA, at least in the last couple of decades or so, has taken an institutional approach to decide very few published cases, shown a lack of scholarly approach to the opinions it does publish, and its unpublished opinions weave a hodgepodge of conflicting jurisprudential goals which is often confusing to the bench and bar (the Court has actually overruled published opinions in unpublished opinions; and in the fragmented, unpublished self-defense case from last year has implemented substantive and procedural rules governing self-defense cases which remain a mystery as to whether they are actually binding or not—and lawyers ignore them at their peril).

The advantage of a nine-member Supreme Court that handles all cases is that uniformity would be maintained, these petty jurisdictional/procedural squabbles would be avoided, and the quality of legal analysis would surely rise with the contribution of nine Justices with diverse backgrounds, and not just plucked from the District Attorney’s Office or straight from the trial bench. Just look at the Gokey case above to see how jaded judges can be. This is a case where a juror researched on his own the prior record of the accused during the trial, the trial judge allowed unredacted judgments and sentences of prior convictions that mentioned probation, and the jury sent a note asking about probation and parole; yet, the Court (minus the dissent from Judge Smith), found no reversible error, not even as to the sentence, and seemed to chastise Gokey for making arguments that involved “speculation” (one wonders how it could be speculative when the jury sends a note asking about the very thing about which Gokey complained).

The dual-court system has failed, we are in the great minority of states with such a system, and our criminal law would benefit immensely from a single-court system.




No new cases.




“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).


Montgomery v. Louisiana, No. 14-280 (U.S., January 25, 2016): Juveniles/Y.O.; Retroactivity: In this 50-year-old murder case, the Court held that the rule of Miller v. Alabama (mandatory LWOP for juvenile homicide offenders violates the Eighth Amendment) is retroactive for cases on collateral review.

Musacchio v. United States, No. 14-1095 (U.S., January 25, 2016): Sufficiency; Statute of Limitations: Musacchio was a former President of a company who accessed a computer of the company after he resigned. He was indicted under 18 U.S.C. 1030, which criminalizes the intentional access of a computer without authorization or exceeding authorized access; however, the jury was instructed that he had to access the computer and exceed authorization. The Court held that the proper analysis for sufficiency of the evidence is to assess the evidence against the elements of the charged crime, not against the elements of an erroneous jury instruction. Also, the Court held that a statute of limitations defense under the federal statute cannot be raised for the first time on appeal since it is not jurisdictional. NOTE: Justice Thomas delivered the opinion for a unanimous Court.


JUSTICE THOMAS AT ORAL ARGUMENT: Interesting article from The New York Times noting that this term might be the 10-year anniversary of the last time that Justice Thomas last asked a question from the bench during oral arguments before the Court, and offering some insights into the utility and effectiveness of oral arguments.




Israel C. Ramirez v. United States, No. 13-3889 (7th Cir., August 25, 2015): Habeas Corpus (Procedural Default): In a 2255 proceeding, Ramirez sought to attack his sentence under the ACCA, but when the district court denied the motion, post-conviction counsel failed to inform him and he thus did not request a COA in time. He then moved under Rule 60(b) for relief, which was denied on the basis that there is no right to counsel on collateral review. In this opinion, the panel reversed and remanded in light of Trevino and Martinez for the district court to consider the merits.

Willard McCarley v. Bennie Kelly, Warden, No. 12-3825 (6th Cir., September 10, 2015): Habeas Corpus (AEDPA Deference); Confrontation/Cross-Examination): In this case where a psychologist read a statement by a 3-year-old which was not subject to prior cross-examination, the Sixth Amendment violation was not harmless under Brecht.

John Gary Hardwick, Jr., v. Secretary, Florida Department of Corrections, No. 97-2319 (11th Cir., September 18, 2015): IAC; Habeas Corpus (Capital Habeas Cases): Grant of penalty phase relief is affirmed on an IAC claim relating to the fact that trial counsel failed to call any witnesses in mitigation at the penalty phase.

Mark D. Jensen v. Marc Clements, No. 14-1380 (7th Cir., September 8, 2015): Habeas Corpus (AEDPA Deference); Confrontation/Cross-Examination: In this murder case, a wife sent a letter to the police two weeks before her death saying that if anything happened to her then her husband should be a suspect. The state courts held that admission of the letter (error under the Sixth Amendment) was harmless. In this opinion, the panel upheld the grant of habeas relief by the federal district court that the state courts applied the Chapman harmless error standard unreasonably.




MICHELLE ROLLER, OKC, represented a client who was a passenger in a car driven by her father, in which drugs were found. The father was charged, of course, but the State also charged the daughter with Trafficking in Oklahoma County. Michelle negotiated the case with the assistant district attorney and secured a dismissal of the charge. This is a good example of how finesse sometimes wins the day. Nice work, Michelle!




COMMUTATION RULES: Gov. Fallin has shown some progressive tendencies recently when she rejected rules proposed by the Pardon and Parole Board on the basis that they were too restrictive in considering commutation requests.

COURTHOUSE NAMED: The federal courthouse in Oklahoma City (the Western District of Oklahoma), will be named in honor of the late Tenth Circuit Judge William J. Holloway, Jr., during a naming ceremony to be held on February 12, 2016, at 2:00-5:00 p.m.

PRIVACY: A woman has sued prosecutors for disclosing her personal information on-line in court documents available on OSCN (which the article refers to as the Oklahoma Supreme Court Network, but it is actually the Oklahoma State Courts Network).

DISTURBING CHARGES: Four wrestlers at Norman North High School have been charged with raping two other wrestlers on a school bus; also, the city of Anadarko is dealing with a rash of suicides by area youths.

THE COSBY EFFECT: The Washington Post ran an interesting article about the effect that the Cosby case has had on the increased number of reports of old rape allegations, and the way in which law enforcement is responding to them.

FACEBOOK FALLOUT: A post on the Facebook page of the Oklahoma Sheriffs and Peace Officers Association has caused a stir in that it stereotypes young offenders.

SHAWNEE: The city attorney in Shawnee is to be replaced.

CORRECTIONAL OFFICER ARRESTED: A female correctional officer in Lexington has been charged with crimes for having sex with an inmate.

EXECUTION: The state of Georgia executed a death row inmate last week.

DRUG BUSTS: A recent undercover drug bust yielded 46 pounds of meth; and further west, a massive warrant sweep in Cherokee and Adair counties resulted in 48 arrests.

OKLAHOMA FELONS: Interesting article about the state of criminal justice in Oklahoma, including a statement that 8 percent of Oklahomans have a felony record—for many offenses that would not be felonies in most states.

BROKEN ARROW CRIME: The Crime Prevention Specialist for the Broken Arrow PD indicated that the number one crime there is auto burglary; also there is a drug drop-off box there for citizens to dispose of outdated or unused medication, which is checked twice a month and yields 200 pounds of pills.

GUNS ARE OKAY: The tiny town of Okay, Oklahoma, has allowed staff at school to be armed, and has erected signs to that effect.

MORE WOES FOR GIFFORD: Assistant U.S. Attorney Robert Don Gifford, who prosecuted the highly publicized sex crimes trial of a former missionary, has been hit with a VPO application by his estranged wife who has alleged mistreatment.

SEX OFFENDER DATABASE: The Oklahoma City Police Department is participating in a national database that track sex offenders.



U.S. Senator James Lankford is tackling the tough issues of the day—for example, he has introduced legislation to remove Andrew Jackson from the $20 bill; this genius from Norman styled himself a “phone terrorist” and has been charged with multiple counts of stalking when he made threats and posted them on YouTube (what is it about the internet that seems to convince people that what they post there does not count in real life); man who hid meat in his pants led police on a high-speed chase in Sand Springs (insert your own jokes here…hey, is that a porterhouse in your pocket, or are just happy to see me?); a Tulsa man led police on a slow-speed chase, during which he was a gentleman and followed the rules of the road; and finally, police in Ardmore arrested a 22-year-old gentleman last week after he had an altercation with his neighbors—over a dead chicken.



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ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.

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