OCDW 01.29.18

 

(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. 29: HARMON COUNTY: Harmon County is located in the southwest corner of Oklahoma, and the county seat is Hollis. It is sparsely populated, second only behind Cimarron County. Harmon County was carved from adjacent Greer County in 1909, and is named for Judson Harmon, the then-Governor of the State of Ohio. I have never been to the courthouse in Hollis, which brings my total to 17 out of 29 counties in which I have represented clients.

 

 

Kevin Bernell Warrior v. State, No. F-2016-519 (Okl.Cr., January 24, 2018) (unpublished): Motion for New Trial (OCCA): This is an outstanding Order from the OCCA granting a motion for a new trial, after remand for an evidentiary hearing (before the Hon. James M. Caputo in Tulsa County), based upon newly discovered evidence (ballistics tests). NOTE: In some procedural circumstances, a motion for a new trial must be filed directly in the OCCA. Also, the Order commended the trial court and counsel for professional actions in this case, but Judge Dana Kuehn issued a hand-written concurring-in-result statement objecting to such language as “unnecessary.”

Kevin R. Short v. State, No. M-2017-63 (Okl.Cr., January 25, 2018) (unpublished): Sufficiency (Verbal Abuse by Caretaker): Short was convicted by jury in Tulsa County (the Hon. William Musseman, presiding) of the crime of Verbal Abuse by a Caretaker (a crime that I did not know existed). The Court affirmed, but I included the opinion because it discusses the proof necessary to support a conviction for this crime.

 

 

No new cases.

 

 

“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.

 

 

United States v. Rick Allen Jones, No. 17-15869 (9^th Cir., December 15, 2017): Federal Sentencing Guidelines (ACCA; Crime of Violence): Denial of a 2255 motion is reversed because an Arizona armed robbery crime does not qualify as a violent felony under the ACCA.

United States v. Enrique Martinez Mathews, No. 16-11191 (11^th Cir., October 30, 2017): Federal Sentencing Guidelines (Acceptance of Responsibility): District court erred in concluding that it lacked any legal authority to grant an acceptance-of-responsibility reduction (the district court has discretion that it may choose to not exercise, but it did have the authority).

United States v. Robert McLamb, No. 17-4299 (4^th Cir., January 25, 2018): Child Porn: Denial of a motion to suppress is affirmed, but I included this opinion because it details how the FBI infected a Dark Web child porn server with a Network Investigative Technique (“NIT”) which is software that was used to defeat the Tor anonymity software.

United States v. Jorge Mercado-Flores, No. 15-1859 (1^st Cir., September 22, 2017): Jurisdiction (Trial Court): District court imposed sentence, but then 24-days later the district court decided that the federal statute did not apply in Puerto Rico and dismissed the case. The Government appealed, and in this opinion the panel affirmed, noting that the district court lacked jurisdiction to change the judgment.

 

 

JOI MISKEL and ANGELA SINGLETON, OKC, secured yet another not guilty verdict in a First Degree Murder trial (and Attempted Robbery) in Oklahoma County, the second acquittal in a murder trial for the two of them this month(!!) and apparently against the same prosecutor. Amazing job, Joi and Angela!

MICHAEL MOREHEAD, RHIANNON SISK, and Investigator JOLENE PERHAM, OIDS, represented a client on appeal and found out some newly discovered evidence, presented it to the courts, and secured a nice Order in the Warrior case (featured above) granting the motion and ordering a new trial. Terrific work, Michael, Rhiannon, and Jolene!

 

 

Back in the mid-90s, Judge Clifford Hopper in Tulsa decided to change the standard jury instruction on the presumption of innocence to “presumed not guilty” rather than “presumed innocence.” The OCCA eventually found that this was reversible error, but by that time Judge Hopper had used the instruction in multiple trials. In the end, 43 cases were reversed by the OCCA because of Judge Hopper’s ill-conceived decision to change the basic instruction. Judge Hopper acknowledged that he was “leaving bitter” from the bench in the wake of his legal error.

Attorney Ray Denecke has pointed out to me a similar problem that we see regularly from prosecutors when explaining to jurors the presumption of innocence: “the defendant is presumed innocent until the State proves him guilty beyond a reasonable doubt.” We have all heard that statement from the State during voir dire or closing arguments. Ray pointed out to me that the presumption of innocence is not dependent on an element of time, but rather is an element of proof. Saying that the accused is presumed innocent until the State proves it implies that the client is guilty and the State just has to prove it. Worse, sometimes defense lawyers say the same thing.

More precise is to say that the accused is presumed innocent unless the State proves it beyond a reasonable doubt. I think this is a good point, and a good practice pointer for the defense bar to think differently than the State on the presumption of innocence. I doubt that this is an error on par with the disaster wrought on Tulsa County by Judge Hopper, but it might be a good idea to use this precise language at trials and object to the use of imprecise language used by the State.

 

 

A FIRST: Jamie Starling has become the first woman to earn the rank of lieutenant with the Claremore Police Department.

JAIL TROUBLE: The Oklahoma County Sheriff is fighting efforts by county commissioners to create a trust to run the jail.

MISDEMEANOR DRUG COURT?: Interesting article on why Oklahoma has no drug court for misdemeanor cases.

OJA GOALS: The Oklahoma Office of Juvenile Affairs is focused on rehabilitation rather than incarceration.

REFLECTIONS: Tulsa County District Attorney Steve Kunzweiler reflects on his first year in office.

CONCERNS: The Christian Science Monitor explores whether the reduction of drug crimes in Oklahoma to misdemeanors may reduce participation in substance abuse programs.

MOB: A mob in Tulsa threw rocks at police cars during a slow-speed chase.

RETIRED: K-9 Officer “Tyson” has been retired from the Claremore Police Department.

CIVIL VERDICT: A federal jury sided with a veteran Oklahoma City Police Officer who claimed retaliation when he reported suspicions about a police captain to a federal prosecutor.

CHEMICAL CASTRATION: A lawmaker from Poteau, Rep. Rick West, has introduced a bill to allow chemical castration of sex offenders after release from prison.

COMMISSION: The Oklahoma Opioid Commission has issued its recommendations.

GUN TRENDS: Federal statistics on guns traced to crimes in Oklahoma.

RAPE KIT CRISIS: Despite a mandated deadline by Gov. Fallin, the Tulsa Police Department has announced that it cannot test all of the rape kits that it has before the then-deadline of December 30, 2017, so Gov. Fallin has extended the deadline to February 15, 2018.

COLLECTIONS: Cleveland County is looking for new ways to collect outstanding debt for fines and court costs.

PROSECUTIONS DOWN: Advocates say that since State Question 780 (reducing drug possession to misdemeanors) felony filings are down 26%.

NEW APPROACH: Former state district judge William C. Kellough has penned an essay advocating four steps to improve the criminal justice system.

 

WACKY CRIME

OUCH!: A kidnapping victim in Bartlesville lost part of a toe.

BAD PLAN: A robber in Catoosa planned to “melt” a safe to open it…but succeeded only in setting the restaurant on fire.

BAD PLAN II: A teenager is accused of posting child pornography to social media in an attempt to blackmail school administrators in Midwest City.

IT’S A RECEIPT…OF SORTS: A man in Broken Arrow walked out of a Wal-Mart with a coffee maker and pet supplies, and when asked for a receipt, he pulled out a gun and said, “Here’s your receipt, now shut up.”

BAD JUDGMENT: A Kansas man has been punished for getting liquored up and crashing his car…into a gate at the federal courthouse in Muskogee.

SMOOTH…CREEPY, BUT SMOOTH: A robber in Oklahoma City asked a woman for her phone number…as he was tying her up.

 

 

THURSDAY, FEBRUARY 1, 2018: One-hour CLE at noon at the Norick Library downtown (Fourth Floor) with speaker the Hon. Ray Elliott titled Ethics in the Courtroom—How to Handle Recusals and Other Issues.

THURSDAY MARCH 29 & FRIDAY MARCH 30, 2018: OCDLA and the Vital Projects at the Proteus Fund present a FREE CLE program titled Killing the Culture of Death: Litigating Juvenile Life Without Parole and Death Penalty Cases. The seminar is good for 12 hours of CLE (including 1 hour of ethics).

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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