OCDW 11.14.16



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).




Billy Clifford Brown, Jr., v. State, No. F-2015-855 (Okl.Cr., November 9, 2016) (unpublished): Prosecutorial Misconduct (Defining Reasonable Doubt): Brown was convicted by jury of First Degree Murder in Tulsa County (the Hon. William Musseman, presiding). The Court affirmed, but there is an interesting discussion about how the prosecutor attempted to define reasonable doubt by distinguishing “beyond a reasonable doubt” from “beyond all doubt, any doubt and a shadow of a doubt.” Prosecutors do this all the time, and the Court has approved some of these efforts in Taylor v. State, 2011 OK CR 8, 248 P.3d 362. In this case, the Court found no reversible error, but stated in a footnote that the State’s argument was “precariously close” to reversible error. NOTE: There is a funny grammar error in the opinion on page 6 where the Court discussed the “jest” (not gist) of the prosecutor’s argument. Freudian slip?

State v. Yolanda Shyra Lewis and Courtney Renee Clayborne, No. S-2015-845 (Okl.Cr., October 28, 2016) (unpublished): State Appeals: This is a conjoint prosecution out of Seminole County involving drug charges. The district court, the Hon. George W. Butner, granted a motion to quash and a companion motion to suppress evidence from a search of a residence. State appealed. The case involved a “suspicious” package flagged by the post office that was addressed to Ms. Clayborne in Seminole, Oklahoma. A drug dog alerted, the package was delivered to the residence (but not opened), and police detained everyone until they secured a warrant. The package contained marijuana. Essentially, Judge Butner found the evidence insufficient to prove that Lewis knew that drugs were inside the package, that the affidavit for the search warrant was insufficient, and that police deliberately falsified information in the affidavit. The Court reversed, finding that Judge Butner abused his discretion. NOTE: Appellate review in these State appeals tends to be a judicial joke, and this case is no exception. The standard of review is abuse of discretion. That is an incredibly high bar to hurdle on appeal; yet, when one reads this opinion, 5-0, it is clear that the appellate judges simply disagreed with the conclusions reached by Judge Butner. That is a much different thing than showing that his decision was unreasonable.




“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.




John Pierotti v. James Walsh, Superintendent, No. 15-1944-pr (2nd Cir., August 24, 2016): Habeas Corpus (Procedural Default): IAC claim that was held procedural barred in the district court is reversed because imposition of procedural bar in this case—that it could have been raised on direct appeal—is not adequate.

Kevin Jones, Jr., v. K. Harrington, No. 13-56360 (9th Cir., July 22, 2016): Interrogations (Fifth Amendment): Denial of habeas relief is reversed on a Miranda claim where police continued questioning after Jones stated, “I don’t want to talk no more.”

In re: Michael Stansell, No. 15-4244 (6th Cir., July 1, 2016): Habeas Corpus (Second or Successive): When the state modified a sentence to include post-release supervision, this constituted a new judgment that made the habeas petition not subject to the rules governing second/successive petitions.




PAT LAYDEN, McAlester, recorded a very good result in a first degree murder case in Pittsburg County—not guilty on murder and shooting with intent to kill. Self-defense carried the day on the principal charges, although the jury was not inclined to let the client walk for possessing a firearm while being a felon. Still, quite a good day for the defense. Nice job, Pat!

SHAWN JEFFERSON & JEFF TREVILLION, OKC, secured Youthful Offender status for their client accused of murder. Terrific result, Shawn and Jeff!

JODIE GAGE, Stillwater, got a demurrer sustained in a lewd molestation case. The Hon. Katherine Thomas granted the demurrer. Nice work, Jodie!

DEADLOCK: The murder trial of former police officer Shannon Kepler ended in a mistrial after jurors deadlocked on the principal charge, but convicted on assorted misdemeanors.




DISBANDED: The Muskogee County Sheriff’s Office has disbanded the drug task force.

EXONERATED: The OCCA denied appeals by the State in the case of two men exonerated in Tulsa.

RETIREMENT: District Attorney Chris Ross (Pontotoc, Seminole and Hughes counties), has announced his retirement.

RIP: Former district judge Thomas Bartheld (Pittsburg County) died last week after an illness. He retired in 2014.

NEW WARDEN: Lexington Assessment and Reception Center has a new Warden—Jeorld Braggs, Jr.

THERAPY DOGS: Children at the Rogers County Courthouse are comforted with a therapy dog.

PROFILE: Interesting profile of Juanita Galindo, an investigator at the Medical Examiner’s Office.

TEXTING & DRIVING: Police in Tulsa have issued an “underwhelming” number of citations for texting and driving—mostly to white women.

OFFICER ACCUSED: A Waurika police officer has been charged with embezzlement and DUI.    




FRIDAY, DECEMBER 16, 2016: The OCDLA presents a seminar on federal and state racketeering.



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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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