(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).
Austin Lee Olinger v. State, No. F-2016-209 (Okl.Cr., April 4, 2017) (unpublished): Appellate Briefs: This is a murder case out of Pottawatomie County, but I include it at the suggestion of appellate counsel, Raymond Denecke, who pointed out footnote 2 of the opinion, which criticized him for failing to include the official OCCA paragraph citation form (he used the Westlaw page cites from the Pacific Reporter). Ray indicated that the Court’s Rules are a little bit ambiguous in this regard, couching such citations as permissive rather than mandatory. So, as a practice pointer, it would be a good idea to include the paragraph cites in appellate briefs.
I have been involved with several extraordinary writ cases recently, and an odd circumstance happened last week when three of them were decided in the same week. We won two and lost one, which is a pretty decent result as far as writs go:
Alex E. Brown v. Hon. Cindy H. Truong, No. MA-2016-1103 (Okl.Cr., April 4, 2017): Bail: Skip Kelly represents a client charged with Accessory to First Degree Murder in Oklahoma County (which carries a maximum sentence of 45 years). The Hon. Cindy Truong denied bond according to the bond schedule, at a hearing on the matter, but she otherwise made no specific findings and did not prepare a written Order justifying the denial of bond. Skip sought a writ and got me involved in the case, and the OCCA eventually, after ordering Judge Truong to prepare a written Order, granted relief with instructions to Judge Truong to set a reasonable bail. NOTE: Judge Hudson dissented, finding that there was no abuse of discretion. Also, although the petition was styled and filed as a writ of mandamus, in pre-trial bail hearings the proper vehicle is to file a writ of habeas corpus (one of the few instances where a state court action for a writ of habeas corpus is proper). Finally, the Court’s decision in Brill outlines the standards and law governing decisions to deny bond in a criminal case. District courts must make specific findings in a written order, and it is not uncommon for district courts to fail to do this.
Audry Nicole Howard v. Hon. R.L. Hert, No. MA-2017-70 (Okl.Cr., April 6, 2017): Quash: Enid attorney Eric Edwards has had a lot of success with motions to suppress and motions to quash in misdemeanor cases. Although the statutes allow a motion to quash after a preliminary hearing in a felony case, no statute authorizes explicitly a motion to quash in a misdemeanor case. In this case out of Payne County involving a client charged with misdemeanor Assault and Battery, Special Judge R.L. Hert held a hearing and ruled on Eric’s other motions (suppress, dismiss, etc.), but held that a motion to quash in a misdemeanor case is not authorized under Oklahoma law, despite published authority indicating that it is. In this writ of mandamus action, asking the OCCA to direct Judge Hert to consider and rule on the merits the motion to quash filed by Eric, the Court agreed and issued the writ. NOTE: The Court held that the accused has the burden of producing evidence in support of a motion to quash in a misdemeanor case. This is a solid opinion giving the defense an extra tool to attack the State’s case in misdemeanor cases.
Matthew Allen Kupczynski v. Hon. Glenn M. Jones, No. PR-2017-333 (Okl.Cr., April 4, 2017): Continuance: This writ was out of Oklahoma County against Judge Glenn Jones in a Manslaughter case where the State dumped key discovery on attorney John Hunsucker with less than 10 days to go before trial. We sought prohibition for a continuance in order to prepare and deal with the late discovery. Judge Jones made some allowances against the State, but nothing of substance, in essence there was no punishment for the State’s evidentiary ambush, but the OCCA refused to interfere with the trial schedule. Writ denied. NOTE: This type of discovery dump, either a few days before trial, or on the day of trial, is not unusual in criminal cases; however, the OCCA is resistant to any attempt to stop a trial on this basis in most cases. This case was settled with a plea shortly after the writ was denied, so it worked out anyway.
United States v. Los Rovell Dahda, No. 15-3236 (10th Cir., April 4, 2017) (Published) (Lucero & Bacharach): Fines; Search and Seizure (Wiretaps): Convictions from a marijuana ring are affirmed over claims relating to: 1) sufficiency of the evidence of the conspiracy; 2) variance; 3) denial of suppression of wiretap evidence; 4) jury instructions on maintaining a drug house; 5) lack of a jury finding on a quantity of marijuana; and 6) imposition of a fine that exceeded the statutory maximum (this was the only claim found to be meritorious). NOTE: Judge Gorsuch was on the panel, but did not participate in the decision.
United States v. Roosevelt Rico Dahda, No. 15-3237 (10th Cir., April 4, 2017) (Published) (Lucero & Bacharach): Federal Sentencing Guidelines (Drug Quantity): Like the case above, dealing with another member of the marijuana conspiracy, the panel affirmed over several claims, but found merit in a sentencing issue where the district court miscalculated the amount of marijuana attributable to Roosevelt.
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).
Levon Dean, Jr., vs. United States, No. 15-9260 (U.S., April 3, 2017): Federal Sentencing Guidelines (Sentence Calculation): Dean was convicted of multiple robbery and firearms counts, with the firearm count involving a mandatory minimum to run consecutively to other counts as a matter of law. Dean urged the sentencing court to consider the mandatory minimum sentences in calculating the sentences on the other counts. The district court thought it could not do it that way, and the Eight Circuit affirmed. In this opinion, the Court reversed, holding that 18 U.S.C. 924 does not prevent a sentencing court from considering the mandatory nature of the sentence in calculating the sentences for other counts.
NEW ASSOCIATE JUSTICE: The Senate last week confirmed Judge Neil Gorsuch of the Tenth Circuit Court of Appeals as the newest Associate Justice of the United States Supreme Court.
OTHER CASES OF NOTE
United States v. Martez Dickson, No. 16-1039 (7th Cir., February 27, 2017): Supervised Release: In this felon-in-possession case, two conditions of supervised release are vacated, one that required Dickson to remain in “the jurisdiction” and another that required Dickson to notify third parties of risks occasioned by his criminal record.
Terry D. Dixon v. Renee Baker, Warden, No. 14-16644 (9th Cir., February 2, 2017): Habeas Corpus (Stay and Abeyance): Dismissal of habeas petition is reversed and remanded with instructions to enter a stay while Dixon pursues his unexhausted claims in state court.
United States v. Charles Glenn Perkins, No. 15-30035 (9th Cir., March 13, 2017): Search and Seizure (Search Warrants; Franks v. Delaware): Conviction for child pornography is reversed based upon a search warrant where the affiant was reckless in omitting material information in violation of Franks. NOTE: This was a 2-1 split opinion.
United States v. Travis Job, No. 14-50472 (9th Cir., March 14, 2017): Search and Seizure (Probation and Parole): Denial of motion to suppress is reversed where search of car and home based solely on the fact that the person was on probation for a non-violent offense was unlawful because officers were unaware of the search waiver.
FEDERAL AND STATE SENTENCES
Problems may sometimes arise when a client is sentenced to prison terms in both the state system and the federal system simultaneously. Practitioners must pay attention when the plea deal calls for concurrent sentences because if the paperwork is not worded properly, your client could end up serving time in state prison thinking that he is getting credit for a federal sentence when he actually is not.
I have dealt with this situation before and it is more complex than you might think. Luckily for us, appellate guru par excellence Barry Derryberry at the FPD in Tulsa has circulated this handy MEMORANDUM that explains some of the nuances of competing federal/state sentencing, examines some common situations that arise, and offers some guidance on how to solve sentencing problems for our client.
THE KILLING (2011-2014)
Detective dramas are a staple of television because they often offer interesting glimpses into the criminal justice system, feature unsettling crimes, and can tell a compelling story with a comprehensible ending. HBO entered this foray with the True Detective series, which I consider the gold standard in this genre. Netflix has been busy producing its own original content, and if you explore Netflix like I do, then you know that it can be hit-or-miss both in the movie selection and the series selections. One of the hits in my opinion is The Killing which ran four seasons from 2011-2014.
I just discovered it, so I might be behind the times on this one, but if you have never heard of it, then check it out. It features the city of Seattle as the backdrop for homicide detectives Sarah Linden (played by Mireille Enos) and Stephen Holder (played by Joel Kinnaman). Linden is an aloof, single mother trying juggle her obsession with work while raising her son; Holder is an oddball, recovering addict wannabe hipster. The two of them are paired to investigate the murder of teenaged girl in the first season. Although there are four seasons, the viewing is irregular. The first murder case covers two entire seasons; the second covers season three; and the series ends with a 6-episode long season four.
The acting is uniformly good, and it is refreshing to see characters in these shows sometimes tell the cops to get the hell out of their house unless they have a warrant, or to clam up during interrogation and demand a lawyer. I found it difficult to figure out Holder, but he will surprise you; so will some of the other supporting cast members. In season three, Peter Sarsgaard makes an appearance as a condemned prisoner, and delivers a superb performance, as does Bex Taylor-Klaus playing the street-kid Bullet.
The Killing is based upon a Danish series, was produced by AMC before it was cancelled, and then Netflix picked it up for the final seasons. The one thing this series delivers is twists. I tend to like shows like this that try to fool the audience and deliver a twist (or more than one) at the end. The Killing does this in a stylish manner. Although the stories are interesting, the acting is uniformly good, and the production value is high (the shots of Seattle are nice), there are drawbacks. The series is relentlessly morose. I was trying to think back and remember any laughs or light-hearted scenes and I could not think of any. The entire series is heavy, so be ready for that.
Also, the first two seasons cover one murder case. This is way too long for one case, and it does drag some in the second season. Season three is just about perfect, covering one case to conclusion. It is sometimes easy to forget that series like these are designed to be watched weekly, not binge-watched as is the popular thing to do. Binge-watching a series like this over a weekend is a good way to de-stress, though, and it is neat to watch a cliff-hanger and be able to cue up the next episode. Overall, The Killing is good television and worth the time.
CHRISTOPHER LIEBMAN, Guymon, secured some justice in the panhandle from a six-member jury in a misdemeanor case involving an allegation of negligent homicide (car wreck). Good work, Christopher!
APRIL SEIBERT, Tulsa, secured a not guilty by reason of insanity in a case out of Tulsa County from Judge William LaFortune. The client will not be released until her mental health is restored, but this is a hard-fought result in a case where the client will receive the help she needs instead of prison. Nice work, April!
BILLY COYLE and EVAN KING, OKC, tried a case to a jury in the courtroom of the Hon. Glenn M. Jones in Oklahoma County. The client was charged with A&B w/Deadly which included two gunshots and four pistol whips to the “victim” but self-defense was the order of the day, and the jury had no problem returning a verdict of not guilty. Terrific work, Billy and Evan!
JAY SILVERNAIL, OKD, won a not guilty verdict last week for a client accused of felon in possession of a firearm. Good job, Jay!
JOI MISKEL (formerly McClendon), OKC, won a not guilty verdict for a client accused of felon in possession of a firearm. Nice work, Joi!
ERIC EDWARDS, Enid, and JAMES L. HANKINS, OKC, pressed the right of the accused to attack a misdemeanor charge via a motion to quash in Payne County. Judge Hert held that there was no such right, but the OCCA disagreed in the Howard writ case featured above.
SKIP KELLY and JAMES L. HANKINS, OKC, litigated the right of the accused to have a reasonable bond set in a criminal case in the Brown case featured above, which resulted in the OCCA granting a writ and directing the Hon. Cindy Truong to impose a reasonable bond in the case of a client charged with accessory to murder.
BILL BELICHICK: A news report said that the head coach of the New England Patriots, Bill Belichick, was served with a subpoena to testify at the criminal jury trial of a former player, Aaron Hernandez, who is on trial for double-murder, but that Belichick failed to appear in court. I wonder what the circumstances are, because Coach Belichick might find himself in hot water if that is the case.
PROMOTION: Lori Adams, the Evidence and Property Custodian at the Duncan Police Department, has been promoted as a Crime Scene Investigative Technician.
OJA: The Office of Juvenile Affairs reports that over the last five years, officials have used pepper spray in 52 incidents involving 62 children.
POLICE DATA INITIATIVE: The Norman Police Department has become the first law enforcement agency in Oklahoma to join the Police Data Initiative, which allows the public to see more data about what the police department does.
RIP: Long time attorney Kevin Pate has passed away. Kevin worked at OIDS for almost 20 years, and continued practicing criminal defense until he died. RIP, Kevin.
SEX CRIMES: District Attorney Orvil Loge (Muskogee County) has doubled down on sex crimes, resulting in an uptick of sex offense prosecutions.
FIT COP: Norman police officer Casey McCallister has been named the most fit cop in America, for the second year in a row.
DRUG LAWS: The Legislature made efforts to tinker with the State Questions that passed last November that would reduce most drug possession cases to misdemeanors, but those efforts appear to have been abandoned, at least for now.
NEW DIRECTOR: Mark Myers has been named the new Director of Communications of the DOC.
FEMALE SHERIFF: The first elected female Sheriff in Nowata County, Sheriff Sandy Hadley, plans to deal with the budget and also make women proud.
MISSTATED FACTS: Interesting article claiming that there is a “pattern” of misstated facts in the opinions of Judge Easterbrook from the Seventh Circuit.
HEY MAN, NICE SHOT!: A robber in Tulsa tried to steal another man’s Air Jordans…and gets shot in the groin for his trouble. Ouch.
SKIMMERS: Gas station skimmers have committed fraud on the credit cards…of the Bryan County Sheriff.
HOT QUESADILLA: An OKC police officer is suing Taco Bell over claims that the convicted felons preparing his food made his quesadilla so spicy that it burned his throat and resulted in time off work.
CRIMINAL MASTERMIND: A man in Chickasha stole a truck from a driveway, and might have gotten away with the crime…if he had not been wearing an ankle monitor that had a GPS monitor.
DISAPPEARING ACT: An armed robber in Tulsa disappeared…into the ceiling.
DRUG RAID: A drug raid in Ardmore netted arrests of…senior citizens.
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