(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).
Daniels v. State, 2016 OK CR 2 (February 10, 2016): Fines; Confidential Informants; Jury Instructions (Shooting w/Intent to Kill): Daniels was convicted by jury in Tulsa County (the Hon. James M. Caputo, presiding), of Murder in the First Degree and Shooting with Intent to Kill. On plain error review, the Court found instructional error in the way that the jury was instructed as to the fine. Shooting with Intent to Kill has no fine provision, therefore a fine is available under the general statute allowing fines in felony cases (21 O.S. 64). However, the error did not require relief. Also, there was no plain error in the trial court failure to instruct on the credibility of a snitch because, although the witness was an informant, he was under no obligation to testify in exchange for leniency, personal advantage, or immunity (and also no IAC for failing to preserve these issues). NOTE: I am mystified as to why the Court chose to publish this case. These issues did not appear to break any new legal ground, and even if they did they were not preserved for proper appellate review. The issue concerning the snitch instruction is interesting, and deserving of a more in-depth treatment than what it got. Judges Smith and Hudson concurred in the result, but did not explain why they did not join the analysis of the majority.
Kenshari Andre Graham v. State, No. F-2014-1100 (Okl.Cr., February 12, 2016) (unpublished): Burks Notice and Bad Acts: Graham was convicted by jury in Comanche County (the Hon. Keith B. Aycock, presiding), of Second Degree Felony Murder. In this appeal, Graham raised a single claim of error when the State introduced evidence of other crimes, namely his participation in a burglary two days after the murder. The Court found admission of this error was harmless as to the conviction, but remanded for re-sentencing since Graham was sentenced to the maximum of life. NOTE: Judges Smith and Johnson concurred in results, but did not explain any further.
Dawaylon Bernard Rainey v. State, No. F-2014-979 (Okl.Cr., February 10, 2016) (unpublished): Jury Deliberations: Rainey was convicted by jury in Choctaw County (the Hon. Gary Brock, Special Judge, presiding), of two counts of First Degree Malice Murder. The Court affirmed, but defense counsel objected to the jury deliberating in the law library and being allowed to have their cell phones. The Court denied this claim because the trial court instructed the jury to turn them off, and also to refrain from looking at the books in the room. NOTE: Rainey also raised a claim relating to suggestive pre-trial identification, and also raised “sub-propositions” under this claim which were deemed waived by the Court under Rule 3.5(A)(5).
Antonio Don Milton v. David Miller, No. 15-6069 (10th Cir., February 9, 2016) (Published) (Matheson, Murphy & Phillips) (W.D. Okla., the Hon. Stephen Friot): Habeas Corpus (COA): Milton’s application for a Certificate of Appealability is denied on claims relating to IAC and whether plea deals were offered and conveyed.
United States v. Mary C. Vernon, No. 14-3279 (10th Cir., February 9, 2016) (Published) (Kelly, Briscoe & Hartz): Sufficiency; Taxes; Jury Instructions (Tax Evasion); Federal Sentencing Guidelines (Loss Calculations): In this tax evasion case, the conviction is affirmed over claims relating to denial of motion for acquittal (sufficiency), jury instructions relating to tax evasion, and proper loss calculations relating to sentencing.
United States v. Jesus Manuel Munoz, No. 15-2048 (10th Cir., February 9, 2016) (Published) (Kelly, Bacharach & Moritz): Supervised Release: In this drug case, Munoz challenged 12 conditions of supervised release, but the panel rejected them all. NOTE: Some of the conditions were objected to at sentencing, some were not, so there is a hodge-podge of the standard of review, but the discussion is instructive nonetheless.
Embry Jay Loftis v. Jerry Chrisman, No. 15-7017 (10th Cir., February 10, 2016) (Published) (Gorsuch, McKay & Bacharach) (N.D. Okla., the Hon. Ronald White): Habeas Corpus (SOL & Equitable Tolling): Loftis was involved in a judicial rope-a-dope in Oklahoma when he was not informed that his post-conviction application had been denied, and he thus missed some filing deadlines, even though the state district court granted him time to file a notice of appeal. The OCCA ultimately gave no effect to the district court’s order granting Loftis time to appeal, and denied his appeal as untimely. In this opinion, the panel found that Loftis had been diligent and that he was entitled to equitable tolling. NOTE: This opinion is a must-read, and details some of the tension between the OCCA and the Tenth Circuit.
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.
JUSTICE SCALIA PASSES: Justice Antonin Scalia died at a ranch in Texas last week, apparently of natural causes.
OTHER CASES OF NOTE
United States v. Michael Gluk, No. 14-51012 (5th Cir., January 25, 2016): Right to Present a Defense; Evidence: Gluk and a co-defendant were convicted of securities fraud relating to “channel stuffing” which is a corporate maneuver whereby uneven earnings are masked by selling products to a co-conspirator to appease Wall Street analysts. The panel reversed on the basis of evidentiary rulings by the trial court for: 1) excluding investigations by the SEC and another entity; and 2) by including evidence of uncharged fraud.
Charles Woods v. United States, No. 15-3531 (8th Cir., November 20, 2015) (per curiam): Habeas Corpus (Second/Successive): In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court invalidated part of the Armed Career Criminal Act as unconstitutional. The issue is whether this is a new rule of constitutional law made retroactive, thus entitling Woods to authorization to file a successive 2255 petition. In this opinion, the panel granted authorization (and note that the Government agreed with Woods on the issue). NOTE: The issue is now before the Supreme Court, so look for that opinion soon before you rely too much on this case, or similar cases.
United States v. Antonio West, No. 14-2514 (7th Cir., December 30, 2015): Evidence; Interrogations (Fifth Amendment); Experts: West possessed an old M1 carbine that belonged to his grandfather and was found in the attic of the family home during a consensual search for a stolen television. The Government then prosecuted West, who has a low IQ and is suggestible, for the ridiculous charge of possessing the firearm as a felon. At trial, West sought to introduce expert testimony on his IQ and suggestibility to assist the jury in assessing the reliability of his confession, to negate the intent element, and to explain the unusual demeanor that West exhibited at trial. The trial court refused to allow this evidence, and the panel reversed and remanded for a new trial.
United States v. Jermaine R. Speed, No. 15-1520 (7th Cir., January 19, 2016): Supervised Release; Standard of Review: Challenges to conditions of supervised release are affirmed, but the panel engaged in an instructive analysis of the standards of review that apply when such challenges are made.
The state of California is, once again, experimenting with what The Washington Post calls an “unprecedented experiment in mass forgiveness.” The opening salvo was instituted back in 2014 with Proposition 47, which made California the first state in the nation to make possession of any drug, including cocaine and heroin, a misdemeanor offense.
But the less obvious, and perhaps more surprising, is the stance of the state on violent crime. These new policies include parole hearings for longtime inmates who committed crime before they turned 23-years-old, recognizing that immaturity at the time of crime—even violent crime—may mitigate toward release and rehabilitation when an inmate is older.
Gov. Jerry Brown has also approved a record number of paroles for prisoners serving life for murder, and others serving life for non-violent offenses. More measures are in the works. Gov. Brown has also supported a ballot measure that would, if approved by voters, grant early release to non-violent offenders who complete rehab programs and demonstrate good behavior.
All of these policies constitute a stark about-face for a state that was synonymous with a “three strikes” law that imprisoned non-violent felons for lengthy periods of time. Perhaps Oklahoma could learn some lessons here, since out state leads in the incarceration of its citizens. As point out in the Hearsay section below, our legislature is taking proactive steps in this area by considering whether to increase the felony threshold for non-violent property crimes from $500.00 to $1,000.00. This is a step in the right direction, but more is certainly needed.
EDITOR’S NOTE: The piece below was authored by Bryan L. Dupler, a long-time attorney here in Oklahoma, previously at OIDS and experienced in death penalty post-conviction appeals, and currently a staff attorney for Judge David B. Lewis of the Oklahoma Court of Criminal Appeals. Reprinted by permission.
RESIST MISGUIDED CHANGES TO JUDICIAL SELECTION PROCESS
by Bryan L. Dupler
February 11, 2016
My fellow Oklahomans should be wary of pending legislation that passed out of legislative committee today, (House Joint Resolution, or HJR, No. 1037), that will needlessly politicize and corrupt the selection and retention of Oklahoma appeals court judges. Our current system of judicial selection and appointment has been around since the Judicial Reorganization Act of 1967, following a Supreme Court bribery scandal that rocked our state government and badly damaged the integrity of our state courts. The nomination and appointment system has proved itself and continues to serve well.
The People have the choice to retain or remove one or more appeals court judges on the Supreme Court and Court of Criminal Appeals in staggered, statewide retention ballots every 6 years. Appellate judges are currently appointed by the Governor after an OSBI background check and selection by a 15 member Judicial Nominating Commission. HJR 1037 will propose that voters amend the state constitution to require election of “all” Justices of the Supreme Court and Judges of the Court of Criminal Appeals on a “nonpartisan” statewide ballot in 2018. After this initial election, the winners will serve 6 year terms, after which up to ⅓ of judges on each of the appeals courts would face electoral contests with their political opponents.
The Judicial Nominating Commission–which will be abolished if this proposed state question is adopted–is a broad-based and bipartisan commission, not dominated by any political interest group, the bar association, trial lawyers, or a liberal conspiracy. Look over the membership and how it’s selected. Read about the application process in which it requires that judicial candidates open their private and professional lives to OSBI scrutiny of their personal, financial, and ethical fitness. Every candidate for judicial office is personally interviewed by the Commission, and its nominees are interviewed by the Governor prior to an appointment.
Appeals courts make difficult and controversial decisions that are unavoidable in a society committed to the rule of law. But I am personally disgusted by claims that our appeals court judges lack basic “competence,” by politicians and detractors who simply disagree with particular court decisions. Research your high court judges and justices! They are distinguished. They are mainstream and moderate. They come from every walk of life. They are committed to public service. Some are decorated veterans. Others are literally legal pioneers: the first African-American and female judges and justices to have ever served on Oklahoma courts of appeal.
Even nonpartisan elections are political, and politically financed. Future campaigns and elections of appeals court judges will inevitably produce more politically-charged courts: more anxious to curry favor with powerful interests, excite public alarm, and posture on controversial issues, than to carefully study, discuss, and render sensible decisions on important questions of law. So if you want cases decided by the laws of electioneering; by judges who owe their loyalty to the campaign-financing power of commercial interests, insurance companies and banks, energy billionaires and industry titans, then by all means support these proposals.
In 48 years of the current nomination, appointment, and retention process, the People of this State have never removed an appeals court judge from office on a statewide retention ballot. Not once. The current selection process, the judges it has produced, the appeals courts it has created, are functioning reasonably well. Who’s asking your approval for a disposable appeals court chosen through the awesome powers of campaign finance? The Masters of the Universe, of course.
Call or write your legislators in opposition to HJR 1037, and vote against this state question should it appear on your ballot. Oklahoma courts will probably never again be plunged into the crude bribery scams of the 1950’s and 1960’s. The new corruption of our courts of appeal will be accomplished by the donor-dining, insider-lobbying, paid-speaking, check-collecting, wink-and-nodding corporate and political influence that already dominates too much of the electoral process. These latest “reform” proposals, I’m sad to say, will get you more of the same.
For your information, I am posting the text of HJR 1037, as well as an article by Cameron professor Phil Simpson that details the history of Oklahoma’s real 1967 court reforms, and a short video about our current judicial selection process.
I myself disagree with our judges and justices on many things. That is the nature of the law, even without the corrupting influence of money and politics. Our courts and judges are not and will never be perfect, but they are not for sale. Oklahoma has come a long way. Let’s don’t ever go back.
OK Court Facts video on judicial selection https://www.youtube.com/watch?v=5obnlKzkyg4
Here’s HJR 1037 http://webserver1.lsb.state.ok.us/2015-1…/…/hjr1037_hflr.rtf
Dr. Simpson’s article: http://ojs.library.okstate.edu/…/O…/article/viewFile/907/816
Judicial Nominating Commission http://www.oscn.net/…/JudicialNominatingCommis…/default.aspx
TONY LACY, Assistant Federal Public Defender, scored an impressive win in federal court recently in front of Judge DeGiusti on a search and seizure issue where he caught the affiant/officer lying on the search warrant affidavit. The officer is Detective Keith Medley of the Oklahoma City Police Department. HERE is a copy of the Order issued by Judge DeGiusti. This generated a flurry of pleadings, including a motion by the Government to RECONSIDER, a RESPONSE by Tony, and an ORDER denying the Government’s motion to reconsider. These pleadings and orders are good reads on the law of search and seizure. Good job, Tony!
FBI RAID: The FBI raided the town of Crystal City, Texas, and arrested nearly every city official on charges of bribery and corruption.
FORMER JUDGE SENTENCED: Former Associate District Judge Craig S. Key (Lincoln County) was sentenced last week to a split sentence of five years DOC and five years of probation on multiple counts of embezzlement.
HOLTZCLAW INTERROGATION: The link goes to the video interrogation of former officer Daniel Holtzclaw. It is instructive and interesting. I was struck how amateurish the interrogators were, and also how they used the same techniques on him as they do with our clients. The goal was to get him to confess, not to find out what happened.
TEXAS PROSECUTOR DISBARRED: A former prosecutor in Texas was disbarred for sending an innocent man to death row.
COLUMBINE: It is hard to believe that the Columbine school shootings happened almost 17 years ago. After such a long period of time, the mother of Columbine shooter Dylan Klebold has finally decided to give an interview with Diane Sawyer concerning her views of her son and the tragedy.
DOC DIRECTOR: New DOC Director Joe Allbaugh confronts issues of low morale and “crumbling” facilities, and also suggested that some prisons need to be closed, and that some parts of the prison system were “not even in the 20th century“; also, Channel 9 highlights the DOC “war on contraband.”
FELONY THRESHOLD: A bill supported by Gov. Fallin may increase the felony threshold for some property crimes from $500.00 to $1,000.00.
GENERAL COUNSEL RESIGNS: The General Counsel to Gov. Fallin, Steven K. Mullins, has resigned amid a grand jury investigation into recent botched executions.
EDITORIAL: The Oklahoman penned a nice editorial about the need for criminal justice reform.
AUDIT: The State Auditor is conducting a probe into the Tulsa County Jail and its handling of client trust funds.
OSCN UPDATE: The Oklahoma Supreme Court has added new counties on-line.
An Owasso man led police on a high-speed chase and was charged with, among other things, choking Samson the police dog (but the dog was not injured); a man squatted inside a Mexican restaurant in Duncan, telling police that he “broke in and ate some tortillas”; a creeper in Edmond has been accused of breaking into a sorority house at UCO—and jail officials found that he was wearing a pair of women’s underwear, which he admitted to taking from the sorority house; an enterprising man from Ketchum committed larceny from a Wal-Mart, by posing as an employee; an employee of a body shot in Sand Springs that worked on police cars “jokingly” posted on Facebook that he should cut the brake lines on the cars; a pursuit in Shawnee ended in a crashed vehicle—that had been stolen from the home of an assistant district attorney; a man in Broken Arrow warned officers to not arrest him because he was “a trained MMA fighter“; this robber of a Waffle House was featured on local news—and was promptly recognized and turned in by his own parents; and finally, a television station in Tulsa has produced a piece on “revenge porn“.
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