OCDW 08.07.17

 

(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).

 

No. 12: CHOCTAW COUNTY: Located way down south, the county seat is Hugo, Oklahoma. The name is purportedly derived from the word Chahta, the name of the mythical founder of the Choctaw people. I have ventured down there before, which brings my county total to 9 out of 12.

 

 

Brad Michael Nehring v. Hon. Paul K. Woodward, No. MA-2017-752 (Okl.Cr., August 2, 2017) (unpublished): Motion to Quash; Extraordinary Writs: This is the second writ victory in the last few months on the subject of whether a motion to quash the Information is legally cognizable under Oklahoma law in a misdemeanor case. In a prior unpublished writ Order, the Court had held that it is. Judge Woodward in Enid refused to follow that opinion, so another writ was pursued, and the OCCA once again held that an accused in a misdemeanor case has the right to present evidence on a motion to quash and to have the trial court rule on the merits of the motion.

 

OCCA VACANCIES

The OCCA has two vacancies on the five-member Court at this time, and the JNC has received several applications for each position:

District #1:

Ruth Addison, Robert Alderson, Becky Baird, Martha Rupp Carter, Brian Crain, Dana Kuehn, Linda Morrissey.

District #4:

Lee Cohlmia, Albert Hoch, Jr., Richard Kirby, Lou Kohlman, Keven McClure, Michele McElwee, M. Andrea Miller, Thomas Prince, Scott Rowland, Jarrod Stevenson, Cindy Truong, Joseph Young.

 

 

United States v. John Doe, No. 17-604 (10^th Cir., August 4, 2017) (Published) (Kelly, Lucero & Moritz): Prosecutorial Misconduct (Breach Plea Agreements): Doe entered a plea to drug charges, but decided to cooperate. Part of the plea agreement was that the Government would use its discretion in deciding whether to file a substantial assistance motion, which it did not do. Is such a discretionary act even reviewable? The answer is yes, but the issue has divided the Courts of Appeals, and there is even an intra-circuit split in the Tenth. NOTE: This one may get en banc consideration at some point.

United States v. Matthew Williams, No. 16-3220 (10^th Cir., August 4, 2017) (Published) (Tymkovich, C.J., Matheson & Moritz): Sufficiency: In this lengthy and complicated opinion, the panel affirmed convictions for band fraud and aggravated identity theft over his claims of insufficiency of the evidence.

 

 

“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.

 

 

In re: Grand Jury Subpoena, No. 16-10181 (5^th Cir., July 19, 2017): Grand Jury; Enjoining State: The feds initiated a criminal investigation for Medicare fraud, but the company initiated a state court civil suit seeking to prevent executives from using company funds to pay for lawyers and to prevent them from removing electronic devices. The U.S. moved for a protective order to enjoin the state proceeding until the conclusion of the federal criminal investigation. The district court granted the motion, and the panel affirmed.

Carlos Poree v. Kandy Collins, No. 14-30129 (5^th Cir., July 28, 2017): Insanity and Competency: After being acquitted by reason of insanity of murder in Louisiana, Poree sought habeas relief under 28 U.S.C. 2254 seeking release from a transitional center. The panel seemed “troubled” that the state court seemingly failed to follow Louisiana law in denying relief, but under AEDPA the panel concluded that the state court decision was not contrary to clearly established Supreme Court law. NOTE: In included this case because it contains a good discussion of the controlling law in this area, which legal vehicle applies (2254 or 1983?), and Judge Higginbotham dissented in a good opinion expressing the contrary view in favor of Poree.

United States v. Sheldon Silver, No. 16-1615-cr (2^nd Cir., July 13, 2017): Statutory Construction; Jury Instructions: A New York politician was convicted of “honest services” fraud, but after he was sentenced the Supreme Court clarified the definition of an “official act” in this area; thus, his jury was not instructed properly and the conviction was reversed and remanded for a new trial.

United States v. Brandon J. Rock, No. 12-3032 (D.C. Cir., July 18, 2017): Supervised Release: In this distribution of child porn case, the panel affirmed the 172 sentence, but vacated two conditions of supervised release: subjection to penile plethysmograph testing, and notification of the probation officer of any significant romantic relationship in which he may become involved.

United States v. J.C.D., No. 15-2520 (1^st Cir., May 31, 2017): Juveniles & YO: Published opinions in federal cases involving juveniles are uncommon. This one deals with a 17-year-old charged with carjacking who was prosecuted as an adult. The juvenile appealed that decision, and in this opinion the court affirmed. I included this opinion because it has a good discussion of the standards in federal juvenile cases.

 

 

 

A new article to be published in the Seattle Journal for Social Justice is titled, The Reid Interrogation Technique and False Confessions: A Time for a Change. The technique was developed by John Reid, a former police officer in Chicago, back in the 1950s and has been the standard in law enforcement since that time.

However, one of the leading private agencies in the world engaged in police training, Wicklander-Zulawski & Associates has announced that it will no longer teach the technique after doing so for nearly 30 years, driven mainly by the specter of generating false confessions. This article is a very interesting read, including footnote 11, which states that the case that made John Reid’s reputation in the 1950s “eventually resulted in an exoneration based on a false confession” that was extracted by Reid after a nine-hour interrogation. That’s how they rolled back in the 50s.

 

 

JAMES L. HANKINS, OKC, and ERIC N. EDWARDS, Enid, once again had to writ a district court judge to coerce a ruling on a motion to quash in a misdemeanor case. Eric uses motions to quash in misdemeanor cases regularly with good results, but Judge Woodward in Garfield County refused to consider it. The OCCA held that this was error, and issued a second unpublished Order on this issue (the Nehring order featured above).

 

 

MYSTERY SOLVED: A 40-year-old murder mystery was solved recently when authorities announced that a 16-year-old boy who hitchhiked to Chicago in 1976 was the 24^th victim of serial killer John Wayne Gacy.

FOURTH TRIAL(!!): Prosecutors in Tulsa plan to try Shannon Kepler, the former police officer accused of murdering his daughter’s boyfriend, for a fourth time, after the first three trials ended in mistrials. There seems to be something oppressive about this, but the trial court denied a motion to dismiss and set the trial for October 9.

JUVY: Interesting article about the juvenile offenders in Oklahoma who may benefit from a Supreme Court case that disrupted mandatory LWOP in such cases.

SUSPENDED: Garfield County Sheriff Jerry Niles, indicted recently for the death of an inmate at his jail, has been suspended with pay.

TEXT MESSAGE CONVICTION: This story details the conviction of a teenaged girl for “causing” the death of her boyfriend who was committing suicide and she urged him to do it via text message. She was nowhere near the physical location. I find this very disturbing that a court could find criminal culpability of a death simply from text messages, even if they are vile and encouraging.

HONORED: District Attorney Emily Redman (Bryan, Atoka, and Coal counties) was presented with the David Moss Memorial Award for Outstanding District Attorney at a recent meeting of the Oklahoma District Attorneys Association.

VISITATION LIMITATION: The Tulsa County Jail is limiting in-person jail visits to two days a week, down from six, in an effort to push video visits.

BAD BEAT: A death row inmate in Alabama sought compensation for “30 years of Hell” after being imprisoned and then exonerated, and a state senate committee approved a compensation package for him—but the legislature never got around to debating the bill or voting on it before the session expired. So, he gets bubkes.

GOOD BEAT: Former Oklahoma death row inmate Yancy L. Douglas settled his lawsuit with the state for an undisclosed amount recently. Douglas was represented by OKC attorney John W. Coyle, III.

NEW TOOL: The OSBI has acquired a new forensic tool that can detect blood at crime scenes.

NOT DONE: Charges were dismissed against Joy Hofmeister and four others for campaign violations, but Oklahoma County District Attorney David Prater says that the case is not yet over.

DONE: Meanwhile in Carter County, the District Attorney has dropped embezzlement charges against the Director of the Gene Autry Museum.

E-CIGS: The Tulsa County Jail and other jails around the state may start selling e-cigarettes to inmates, which would address several problems at once.

WEAVER TO RUN: Former Director of the OBNDDC Darrell Weaver is running for a state senate seat in District 24.

HEARING: Oklahoma death row inmate Darrell Wayne Frederick will get an evidentiary hearing on his claims of IAC trial/appellate counsel.

INVESTIGATION: A former executive assistant to Gov. Fallin, Travis Brauer, is under investigation for taking an “up-skirt” photo of a female protester.

NEW CHIEF: The new Chief of Police for Oklahoma State University is Leon Jones.

NEW SHERIFF: Thomas McClendon will serve out the term of Sheriff in Harper County.

NEW POSITION: The municipal court in Oklahoma City has a new Community Relations Coordinator to assist litigants in resolving their cases.

 

WACKY CRIME

 

CLEAN THIEF: A metro man is wanted for stealing…vacuum cleaners.

WELCOME TO OKLAHOMA!: Police made a drug bust…at the Oklahoma Welcome Center.

IT AIN’T AUSTIN, BUT…: Lawton continues with its “keep it weird” motif, this time when “Batman” fired BBs at three persons.

MEANT TO BE: A man named Brandon Weed was charged recently in OKC on a charge of trafficking…see if you can guess.

COUNTERFEIT: Interesting article about counterfeit products made in China, which produces nearly all of the world’s fake products.

TRAFFIC COP: A woman was arrested in Bricktown after she jumped into the water of the canal and stopped water taxi traffic. Alcohol may have been a factor.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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