OCDW 01.16.17



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).


Even though the weather is bad, I hope everyone enjoys the holiday celebrating the life of the Rev. Dr. Martin Luther King, Jr.




Edward Dean Jackson v. State, No. RE-2016-401 (Okl.Cr., January 11, 2017) (unpublished): Suspended Sentences: In this revocation of suspended sentence case, the Hon. Walter Hamilton, Special Judge out of McCurtain County, revoked in full. The Court reversed because the district court violated the 20-day rule by having the hearing 28-days after Jackson entered a plea of not guilty without securing a waiver.

Hiram Frank Mutters v. State, No. C-2016-140 (Okl.Cr., January 12, 2017) (unpublished): Guilty Pleas; Right to be Present: Mutters entered a blind plea to Child Sexual Abuse in Lincoln County before the Hon. Cynthia Ferrell Ashwood. Although a motion to withdraw his plea was filed timely, Mutters was transported to prison and was thus not present at the hearing on the motion to withdraw, which apparently proceeded without him. The Court reversed because this procedure violated his right to be present, and there was no waiver.




United States v. Nicolas P. Juszczyk, No. 15-3323 (10th Cir., January 3, 2017) (Published) (Lucero, McKay & Bacharach): Search and Seizure (Abandoned Property): A backpack thrown on top of a roof is deemed abandoned, thus police need not have obtained a search warrant.

United States v. Jasonn Gonzales, No. 16-2022 (10th Cir., December 29, 2016) (Published) (Hartz, Murphy & Holmes): Federal Sentencing Guidelines (Loss Calculations): Enhancement is affirmed in this identity theft case even though none of the persons whose identities were stolen suffered any financial loss.

United States v. Emanuel Godinez-Perez, No. 15-3159 (10th Cir., December 22, 2016) (Published) (Tymkovich, C.J., Briscoe & Murphy): Federal Sentencing Guidelines (Relevant Conduct): Sentence in a drug conspiracy guilty plea case is vacated and remanded because the district court erred in failing to make particularized findings regarding relevant conduct attributable to Godinez-Perez.




“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.


However, there was a notable certiorari grant in a Texas capital case that will address issues regarding the analysis of IAC claims involving trial counsel, and appellate counsel, and what those standards are.

Also, another certiorari grant on January 13, 2017, will analyze an issue of IAC claims involving structural error, and whether prejudice must be shown, or is presumed. There is a pronounced split of authority on this question.




Johnny Bennett v. Bryan P. Stirling, No. 16-3 (4th Cir., November 21, 2016) (Published): Prosecutorial Misconduct (Improper Argument): Capital case reversed based upon prosecutorial misconduct in closing arguments where the prosecutor made “racially coded” insults to the 6’6″, 300 lb. black defendant by calling him “King Kong” and other weird comparisons.

Thomas Charles Crangle v. Bennie Kelly, Warden, No. 14-3447 (6th Cir., September 22, 2016) (Published) (per curiam): Habeas Corpus (Statute of Limitations): A state-court order imposing post-release supervision was a new judgment that re-set the one-year statute of limitations clock.

United States v. Sontay T. Smotherman, No. 15-4331 (6th Cir., September 29, 2016): Jurisdiction (Appellate): Appeal in a criminal case is allowed to proceed even though the prisoner filed his notice of appeal one day late, but he complied with the prison mailbox rule.

United States v. Ane Plate, No. 15-13928 (11th Cir., October 5, 2016): Indigents: Sentence in this embezzlement case of 27-months is vacated because the district court imposed prison time because of the inability of the accused to pay restitution.

Albert Leslie Love, Jr., v. Texas, No. AP-77,024 (Tex. Crim. App., December 7, 2016): Search and Seizure (Cell Phone): Capital case conviction reversed based upon warrantless seizure of text messages.




ROB HENSON, Tulsa, represented a client in Tulsa County charged with two rape counts. No problem for Rob, who scored two not guilty verdicts at trial. Nice work, Rob!

BRECKEN WAGNER, McAlester, won a DUI jury trial in LeFlore County last week. The jury was out only five minutes. Good job, Brecken!




APPOINTED: Gov. Fallin has appointed Karen Youngblood to fill an unexpired term on the Board of Juvenile Affairs.

YOUNG JUDGE: District Judge Jeff Virgin (Cleveland County) has become one of the youngest district judges ever at the age of 34. Also, OSCN has profiled two more judges, the Hon. Jason Seigars (Special Judge in Garfield County), and the Hon. Jared P. Sigler (Special Judge in Washington and Nowata Counties). I do not believe in age restrictions on any job if the candidate is otherwise qualified, but judges who are very young and without a broad experience in legal practice make me a little bit wary. Judge Seigars, in particular, causes me some concern. He graduated from law school in 2011, and according to the profile on OSCN, has only been a prosecutor since then. I have no reason to doubt that he will be a fair and good judge, and there is obviously a reason why he was hired by the district judges, but it does raise an eyebrow to appoint someone to the bench with so little experience both in terms of years in practice, and in limited areas practiced.

REPORT ISSUED: The heavy hitters of the Greater Oklahoma City Chamber Criminal Justice Reform Task Force has issued its Report and Recommendation. I did not see much of substance, but there is a recommendation to reduce unnecessary pre-trial detention.

NGRI: Daniel Fears, the accused shooter in Sallisaw who killed two persons and wounded eight others, was found not guilty by reason of insanity, but as the article outlines, it is difficult to be released from the state psychiatric center.

MENTAL HEALTH: The Tulsa County Jail has new facilities focused on inmates with mental health issues, something that would appear to be long overdue.

CHARGED: A former Oklahoma Turnpike Authority employee has been charged with embezzlement.

RIP: Judge John M. Jacobsen, Oklahoma County Juvenile Court, passed away recently, and was remembered fondly by many people.

EXECUTION 2017: The State of Texas has executed the first inmate in the U.S. in 2017. Christopher Wilkins was executed last week. Wilkins killed two men who mocked him after duping him to buy gravel that he thought was crack. Wilkins seems to have been one of those personalities who overreacts with immediate violence at the slightest perceived disrespect, telling jurors at his trial that “I know they are bad decisions, but I make them anyway.”

OSBI NEWS: The OSBI has signed its first contract with a county sheriff’s office in Carter County to investigate officer-involved shootings.

POLICE STATE: The number of people under state supervision has reached an all-time high.

TRANSPARENCY: Oklahoma law enforcement agencies assert that many of their records are private, including budgets.



LAWMAN: The Lost Ogle has some fun with District Judge James M. Caputo.

D.B. COOPER: He is back in the news. A group of amateur sleuths working with the FBI have examined the clip-on tie with an electron microscope and discovered rare elements, indicating that Cooper may have been employed in the new tech industry at the time. The case captures the imagination because, if he survived the parachute jump, he is the one that got away with it.

STREET JUSTICE: A stripper and her boyfriend committed “street justice” by killing her half-brother whom they suspected of child molestation. I suspect that they are going to experience some “courtroom justice” for their efforts.

OFFICER FIFE: Sometimes, cops are the dumbest criminals…a Logan County deputy stole cash out of the center console of the pickup of an acquaintance while on duty and in uniform. The GPS coordinates of the police cruiser place the deputy at the exact scene of the crime at the time the money was stolen.

FACEBOOK FIEND: Apparently, if you admit to criminal activity on Facebook, the police will notice and arrest you.




JANUARY 20, 2017: 2017 Cindy Foley Criminal Defense Basics will be good for 8 hours of CLE (including 1 hour of ethics), and will be presented by a long list of excellent lawyers at the Norick Downtown Public Library.



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