(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).
Byrin Carr v. State, No. M-2016-268 (Okl.Cr., April 27, 2017) (unpublished): Pro Se Representation: This case out of Garfield County (the Hon. Tom L. Newby, presiding) saw Carr charged with misdemeanor counts of Threatening to Perform an Act of Violence and Resisting Arrest, and requesting stand-by counsel at his trial, but Judge Newby denied it. The jury convicted, but in this opinion the Court reversed on the basis that Judge Newby did not clearly explain the dangers of self-representation to Carr. NOTE: I represented Byrin in this appeal and raised a second issue of insufficient evidence, which the Court did not address in light of the reversal. I have filed a Petition for Rehearing since a win on insufficiency of the evidence results in dismissal with prejudice (not a new trial).
Jerry Lee Swift, Jr., v. State, No. F-2015-760 (Okl.Cr., April 26, 2017) (unpublished): Search and Seizure (Traffic Stops); Standard of Review: This is a Trafficking case out of Cherokee County (the Hon. Darrell Shepherd, presiding) where the jury convicted and recommended a sentence of 15 years/$50,000.00 fine. The Court affirmed, but I included this opinion because it contains a tight discussion and analysis of the law governing traffic stops, prolonging stops by police officers to get a drug dog at the scene, and what reasonable suspicion is required to do so. NOTE: The Court also seems to be applying a rational standard of review in recent suppression cases (facts for clear error and law de novo).
Charles Gustaves Johnson, Jr., v. State, No. F-2015-879 (Okl.Cr., April 28, 2017) (unpublished): This is a murder case out of Tulsa where the Court affirmed the convictions and sentences, but it is noteworthy because of the use of the n-word in the lead opinion, authored by Judge Lumpkin, and the comments by concurring Judges Lewis and Hudson. Judge Lewis, the only African-American on the Court, concurred in the result but chastised Judge Lumpkin for using the n-word on several occasions in the lead opinion, even though the word was used repeatedly by the defendant in his confession to the police. Judge Hudson defended the use of the n-word in his concurring opinion. NOTE: This is the first opinion I remember where one Judge penned the lead opinion and the other four concurred in the result. I must say that I tend to agree with Judge Hudson on this topic. The facts in criminal cases are often unpleasant or in this case offensive, but I think that watering down facts to suit social sensibilities is a mistake in judicial opinions. This is a process where the State is adjudicating the freedom of a citizen. Whatever uncomfortable facts are part of that process should be stated in full. The exchange between the judges registered on local media HERE.
State v. Robert Charles Redhat, No. S-2016-595 (Okl.Cr., April 27, 2017) (unpublished): State Appeals: This is a short Order dismissing a State appeal on motion of the defendant. The case originated out of Blaine County where the State had accused the client of Manslaughter in the First Degree (DUI), but it took so long to prosecute that Judge Paul Woodward dismissed the case on Speedy Trial grounds, and also spoliation of evidence. The State appealed, but the Court dismissed on motion of the accused on the basis that the Court lacked jurisdiction on these claims. NOTE: The Court issued an Order directing the State to respond to the motion to dismiss, but the State failed to file any type of response. Also, this case contains a good practice pointer in appellate cases to always make sure that the State has jurisdiction to appeal. The grounds for State appeals are surprisingly narrow, and the State must satisfy a few requirements in order to be heard on appeal, and the Court typically will hold the State to its burden of showing that it has a right to the appeal.
United States v. Raymond Alcorta, No. 15-3129 (10th Cir., April 10, 2017) (Published) (Kelly, Hartz & Matheson): Sufficiency; Hearsay (Co-Conspirator): Drug conspiracy convictions affirmed over claims relating to sufficiency of the evidence and the admission of recorded jailhouse statements of co-conspirators.
United States v. Harold Creighton, No. 15-8118 (10th Cir., April 11, 2017) (Published) (Hartz, Baldock & Holmes): Prosecutorial Misconduct (Vindictive Prosecution): Life sentence for drug trafficking is affirmed over a claim of vindictive prosecution.
United States v. Kenneth Theis, No. 16-3058 (10th Cir., April 11, 2017) (Published) (Briscoe, Lucero & Hartz): Statutory Construction (Sexual Exploitation of Minor); Allocution: Theis was convicted attempted sexual exploitation of a minor when he was recorded his girlfriend’s eleven-year-old take showers, but he defended on the basis that he was merely a voyeur (no causal relationship between the accused and the sexual conduct of the minor). The panel rejected this claim, along with a challenge to the sufficiency of the evidence and denial of the right to allocution (no objection at trial; no plain error).
United States v. Percy Holcomb, No. 16-2077 (10th Cir., March 23, 2017) (Published) (O’Brien and Bacharach): Federal Sentencing Guidelines (Retroactivity): District court did not err in applying Guidelines range that resulted in ineligibility for relief; no ex post facto violation because the Commission is authorized to determine the retroactivity of its amendments, and this does not usurp the judicial function.
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.
NEW JUSTICE: The Hon. Neil M. Gorsuch has been sworn in as the 101st Associate Justice of the United States Supreme Court.
OTHER CASES OF NOTE
United States v. Raymond Roger Surratt, Jr., No. 14-6851 (4th Cir., April 21, 2017) (en banc): Jurisdiction (Appellate—Mootness): This is a case involving a federal life sentence for a drug crime which was commuted by the President. The majority opinion dismissed the appeal as moot over a spirited dissent on this topic.
OCDLA ANNUAL AWARDS
The OCDLA will host its Annual Meeting and Awards Banquet on Thursday, June 29, 2017, (the first day of the Patrick Williams Criminal Defense Institute) at the Sheraton Reed Center in Midwest City.
The deadline for nominations is Friday, June 2, 2017, at 5:00 p.m. The awards and the criteria for each (the Clarence Darrow Award, the Thurgood Marshall Appellate Advocacy Award, and the Lord Thomas Erskine Award) can be found on the OCDLAW web site HERE.
These awards are important and very difficult to earn, so I would urge each of you to take some time out in the coming weeks and give some thought about the lawyers you believe are doing a good job in the areas of trial work, appellate work, and overall contribution to the preservation of constitutional rights of the accused.
JAMES L. HANKINS, OKC, and ERIC EDWARDS, Enid, secured dismissal of a State appeal out of Blaine County involving a First Degree Manslaughter (DUI) charge in the Robert Charles Redhat case featured above. Eric did the heavy lifting in the district court, making a good record and convincing Judge Paul Woodward to dismiss the case on Speedy Trial and Spoliation of evidence grounds. The State appealed, which is where I came in, and after I replied to the State brief it occurred to me that the Court did not have jurisdiction to hear such an appeal. I filed a motion to dismiss for lack of jurisdiction, the Court ordered the prosecutor in Blaine County to respond, but he failed to respond at all. The Court issued an Order of dismissal, and we have a happy client who has this legal nightmare over for good in the criminal justice system.
JAMES L. HANKINS, OKC, secured a reversal on appeal for Byrin Carr in the case featured above. Byrin is a colorful character Enid whom I had represented before as stand-by counsel. He represented himself before a jury in Enid, and requested stand-by counsel but this request was refused by Judge Newby.
JIM KEE, Duncan, represented a client in Stephens County charged with six counts of child neglect and endangerment, which proceeded to jury trial because the best offer was 45 years w/20 to serve at 85%. The jury found the client guilty, but recommended sentence of 2 years and fine only with a recommendation of treatment only. It was noted that Jim Kee has had not guilty verdicts in each of the last six decades. Jim has been defending criminal cases since the 1960s. Keep up the good work, Jim!
MARNY HILL, Assistant Public Defender in Tulsa, secured a not guilty verdict in a Child Abuse murder case in Tulsa County last week, although the details are sketchy. Nice work, Marny!
SUCCESS: Uplifting profile of a former inmate at the Bill Johnson Correctional Center addressing a graduating class.
OCU: The link goes to an article on the building housing the Oklahoma City University School of Law.
COMMUTATIONS: Gov. Fallin has commuted several more sentences for offenders serving life without parole for drug offenses.
DOC MED: The article discusses the state of co-pay fees imposed on inmates at DOC.
K-9: Caddo County has acquired its first K-9 Unit.
PUBLIC INTOX: The OSU college newspaper details what to expect after an arrest for public intoxication.
OKARCHE: The new police chief in Okarche is critical of his predecessor.
JUDICIAL VACANCY: Three applicants are in the running to fill the judicial seat vacated by District Judge Mark Smith in Comanche County: Don Herring, Scott Meaders, and James Willson.
NEW CSI VAN: The Lawton Police Department has a new CSI van.
RIP RACEHORSE HAYNES: Colorful defense attorney Richard “Racehorse” Haynes passed away last week at the age of 80.
OVERCROWDING: The DOC population continues to surge over capacity.
BACKLOG: Gov. Fallin has created a task force to address the backlog of rape kits that need to be tested.
EXONERATED: District Attorney David Prater has exonerated a Bethany police officer in a fatality shooting that occurred on February 10, 2017.
CRASHED: A juvenile in Lawton crashed a stolen vehicle…into a police car.
THE SHAKING: Could be caused by Parkinson’s as the driver said…or the fear of being stopped by the cops with meth in the car.
IMPERSONATION: An Atoka man has been arrested for impersonating a CASA worker.
DISTURBING MUGSHOT: A 19-year-old in Ardmore pled guilty to second degree murder, but her mugshot is oddly disturbing because she looks much younger.
THURSDAY, MAY 4, 2017: The OCCDLA presents a lunchtime CLE on the topic of “Cross-Examination of a Witness” with speaker Johnny Albert. The luncheon will be located on the 4th Floor of the Norick Library across the street from the county courthouse in Oklahoma City.
THURSDAY, JUNE 29th and FRIDAY, JUNE 30th, 2017: 2017 PATRICK A. WILLIAMS CRIMINAL DEFENSE INSTITUTE will take place in Oklahoma City at the Reed Center located at the Sheraton Hotel. The link goes to registration info and more info about the venue.
SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at firstname.lastname@example.org and include the e- mail address to which you want the issues to be delivered. I am sending out the issues for free now to whoever wants to receive them. Submissions of articles, war stories, letters, victory stories, comments or questions can be sent to Mr. Hankins via e-mail or you can contact him by phone at 405.753.4150, by fax at 405.445.4956, or by regular mail at James L. Hankins, TIMBERBROOKE BUSINESS CENTER, 929 N.W. 164th St., Edmond, OK 73013.
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.
COPYRIGHT STATEMENT & DISCLAIMER: ©2005-2017 by James L. Hankins. All rights reserved. OCDW hereby grants free use of these materials for any non-commercial purpose provided that proper credit to the OCDW is given. In the event that copyrighted works are included in an edition of the OCDW such works may not be reproduced without the consent of the copyright holder because under federal law the OCDW has no authority to allow the reproduction of the intellectual property of others. For purposes that go beyond “fair use” of the copyrighted material under federal law, the permission of the copyright holder must be obtained. If you are a copyright holder and object to any portion of an issue of the OCDW, please contact the publisher, James L. Hankins, at the contact information above (located under the SUBSCRIPTIONS AND SUBMISSIONS section). Finally, the materials presented in this newsletter are for informational purposes only, and are not, nor intended to be, legal advice or to create an attorney-client relationship. You should consult an experienced attorney licensed in your jurisdiction for legal advice applicable to the specific facts of your case. Cases are summarized in each weekly issue as they are issued and filed by the respective court, and are thus subject to being withdrawn, corrected, vacated, and/or modified or reversed without notice. Always conduct your own research!
If you have received this e-mail in error, or no longer wish to receive the weekly newsletter, simply reply to the message, or send a new message, to email@example.com and type in “UNSUBSCRIBE” in the subject line, along with your name and e-mail address and you will be taken off the mailing list.