(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).
Reed v. State, 2016 OK CR 10 (May 4, 2016): Jury Instructions (Sex Offender Registration); Trial Procedure (Forensic Interviews); IAC: Reed was convicted by jury of Lewd Molestation in Tulsa County (the William J. Musseman, presiding), and sentenced to 25 years. The Court affirmed over claims relating to: 1) jury access to the DVD of the forensic interview of the victim during deliberations (no plain error); 2) denial of a jury instruction on sex offender registration; and 3) IAC for failing to object and preserve the two claims. NOTE: On the issue of the DVD of the forensic interview, the Court had issued divergent unpublished opinions on this, which prompted the published opinion here. The issue was whether the DVD is simply an exhibit which the jury can view on its own, or whether it’s in the nature of trial testimony which involves bringing the jury back into court with the parties present. The Court held that it is akin to testimony, thus should not go to the jury during deliberations, or be replayed without convening the jury and the parties.
State v. Carl Edward Prince, No. S-2015-771 (Okl.Cr., May 8, 2016) (unpublished): Maintaining Place for CDS; State Appeals: Prince was charged in Garvin County with Possession of Marijuana, Maintaining a Place for Keeping/Selling CDS, and Use of Police Radio. As to the count of Maintaining count, the Hon. Trisha Misak, Special Judge, sustained the demurrer based upon case law requiring proof of more than one isolated incident of activity. The State appealed, and the Hon. George W. Butner affirmed. The State appealed further to the OCCA, which affirmed for a third time. NOTE: Judge Hudson dissented, arguing that the Court’s interpretation of the statute was too restrictive.
Robert Claude McCormick v. David Parker, Warden, No. 14-7095 (10th Cir., May 3, 2016) (Published) (Holmes, Matheson & Moritz) (E.D. Okla., the Hon. James H. Payne): Prosecutorial Misconduct (Brady Cases); Habeas Corpus (Procedural Default): In this habeas case out of Oklahoma, the panel reversed the denial of relief based upon a Brady violation where a witness testified falsely regarding her qualifications as a SANE nurse in a sexual assault case. NOTE: This is a nice win from the Circuit, and a few things are interesting. First, the witness was part of the prosecution team—not a prosecutor or police officer—but her knowledge was imputed to the State, an important part of Brady claims of this nature. Second, in habeas cases the State can assert a procedural default, that is, the failure of the petitioner to follow state law procedures which would result in waiver of the claim. However, procedural default is an affirmative defense that must be raised by the State, and in this case the State did not raise it, thus waived it. Finally, the panel remanded this issue to the district court and basically told the State to raise the defense of procedural default, but for some reason the State did not do it. The panel seemed mystified as to why the State did not assert procedural default, but seemed to have no self-awareness of how unseemly it reads in the opinion for the Circuit judges to be giving legal advice to the State to the detriment of the Petitioner. The result in this case was positive for the Petitioner, but I cannot help by think that it has to be pointed out how the panel advocated for the State.
United States v. Florentino Villanueva, Jr., No. 14-6081 (10th Cir., May 2, 2016) (Published) (Lucero, Seymour & Gorsuch) (W.D. Okla., Hon. Joe Heaton): Search and Seizure (Search Warrants; Neutral Magistrate; Sufficiency; General Warrants): In this felon-in-possession of firearm case, the conviction is affirmed over a claim relating to an attack on a search warrant as not issued by a neutral and detached magistrate, no showing of probable cause, and the warrant was a general warrant.
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).
Ocasio v. United States, No. 14-361 (U.S., May 2, 2016): Conspiracy: Ocasio as a former police officer who participated in a kickback scheme where officers sent damaged cars from accidents to certain car shops. He was charged with obtaining money from the shops under color of law in violation of the Hobbs Act, and also conspiracy to violate the Hobbs Act. He appealed the conspiracy conviction on the basis that he could not be convicted of conspiring with the shop owners to extort money from them under color of law. The Court rejected this argument, upholding the conviction. As Justice Thomas described it in his dissent, the Court held that an extortionist can conspire to commit extortion with the person whom he is extorting. NOTE: Justices Thomas, Sotomayor, and Roberts, dissented.
OTHER CASES OF NOTE
United States v. Malcolm Deandre Copeland, No. 15-50208 (May 2, 2016): Scienter: Copeland was convicted of child sex trafficking under 18 U.S.C. 1591. He appealed on the basis that the statute imposes strict liability as to the age of the victims, and that removal of the scienter requirement violated Due Process. In this opinion, the panel affirmed. NOTE: This is an issue that crops up with some regularity, and this opinion seems to be the prevailing sentiment in the appellate courts. When it comes to the sexual exploitation of children, the courts appear to allow strict liability on the question of age.
State v. Ricardo Juarez Deleon, et al., No. 91185-1 (Wash., May 5, 2016): Evidence (Gang Affiliation): Convictions for assault are reversed based upon the introduction of booking forms indicating gang affiliation and also general gang evidence.
EDDIE WYANT, Enid, a former elected District Attorney in our State up in the northeast, has entered private practice in Enid and last week won a not guilty verdict for a client charged with Attempted Rape. Good job, Eddie!
ARLAN BULLARD, Pauls Valley, scored a nice appellate win in the Prince case, cited above, where he won at the preliminary hearing and the State appealed every step to the OCCA where Alan finally prevailed on an issue relating to the crime of Maintaining a Place for CDS. It must be very satisfying to win three times in a row on the same issue. Nice work, Arlan!
JASON SPANICH, OKC, won a jury trial before the Hon. Bill Graves last week representing a client charged with Pointing a Firearm (and also the lesser included offense). When Jason’s client refused a reduction to a misdemeanor the ADA did not take it very well, and could not understand why the client would not plead guilty. Now we know why, thanks to Jason. Nice job, Jason!
CLOSING: DOC has announced that it is closing 15 inmate work centers across the state, a move that has surprised some lawmakers. The closings are part of a consolidation plan by DOC that has “panicked” some lawmakers and city leaders.
HOMICIDE: The homicide rate in Oklahoma jumped 35% between 2014 and 2015.
FORMER LEGISLATOR CHARGED: A former leader of the State House of Representatives was charged last week with 44 counts related to travel expenses. Gus Blackwell, R-Laverne, is represented by Stephen Jones of Enid.
OFFICER CHARGED: An Oklahoma City police officer, Steven Scott Vassar, has been charged with embezzlement.
JAILER CHARGED: A female Pushmataha County jailer has been arrested for having sex with an inmate. It is alarming how often this happens across the state.
JAILER CHARGED II: A former employee at the Kay County Jail has been accused of stealing $363,000.00 over a five-year period from inmate trust funds.
DISPATCHER CHARGED: A police dispatcher in Yukon has been arrested in a prostitution sting.
ADMINISTRATOR FIRED: The Bryan County Jail Administrator has been fired upon the discovery of love letters between him and an inmate.
NEW JUDGE: Owen T. Evans, who spent six years on the bench at the Worker’s Compensation Court, has been selected as a Special Judge in Tulsa County.
DEBTORS PRISON: The progressive city of Colorado Springs has decided to stop jailing people too poor to pay court costs and fines.
SERIAL KILLER: Interesting piece from The Dallas Morning News titled “Portrait of a Serial Killer” who went undiscovered for 19 years before leading authorities to the bodies.
OIDS: Instructive news piece on cuts in funding for OIDS and the effect it has on criminal justice.
VISITATION: Jail visits have resumed in Pontotoc County after the video system developed problems.
SAD STAT: More than half of the inmates at the Washington County Jail have children at home under the age of 18.
JUDICIAL ALIGNMENTS: Proponents of judicial realignment that will affect Tulsa and Pawnee Counties have characterized the issue as one of voting rights. However, the editors at The Tulsa World believe it is a power grab by the district attorney.
HOME INVASION—NOT REALLY: What was reported as a home invasion in Duncan turned out to be a guy coming home to find his wife in bed…with her boyfriend.
ODOR: A police officer in Enid made an arrest based on the odor of marijuana—not coming from a car, but from a house.
ODD ARREST: A woman in Lawton was arrested last week for breaking into prison.
DOCTOR CHARGED: A medical doctor specializing in women’s health has been charged with a felony for slapping a woman on the buttocks. This is the decision of Muskogee County District Attorney Orvil Loge.
JUDGMENT: The Garvin County Sheriff is “still shaking his head” over an incident where one of his deputies allowed an inmate to dress as a law enforcement officer to facilitate a transport. The original story went viral and the deputy was fired.
THE PADDLER: Odd series of news reports about George “The Paddler” Wallace, a guy who terrorized a town in North Carolina in the mid-1960s by abducting children and paddling them before moving onto murder where he was eventually executed here in Oklahoma. PART I, PART II, PART III, PART IV, and PART V.
STOLEN: A candidate for the Oklahoma House of Representatives was out campaigning recently—and had his car stolen.
THURSDAY, JUNE 23 & FRIDAY, JUNE 24, 2016: The 2016 Patrick A. Williams Criminal Defense Institute & OCDLA Annual Meeting will take place at the Hard Rock Hotel & Casino in Catoosa (Tulsa).
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