(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. 31: HASKELL COUNTY: Named for the first Governor of the State of Oklahoma, Charles N. Haskell, the county seat of Haskell County is Stigler. I recall appearing in Stigler one time to do a plea for another lawyer, but I will count it, which brings my total to 18 out of 31.
Thompson v. State, 2018 OK CR 5 (February 15, 2018): Waiver (After-Formers); After-Formers; Double Jeopardy: Thompson was convicted by jury in Haskell County (the Hon. Brian C. Henderson, presiding) of Manslaughter in the First Degree (Failure to Stop at a stop sign) and a misdemeanor count of Failure to Stop at a Stop Sign. The Court affirmed, and apparently published this opinion, because the State failed to attach the second page alleging prior convictions to subsequent amendments of the Information. Thompson filed a motion to quash the second page at trial, but the Court held that Thompson had waived the issue because he had entered a plea at the arraignment without filing a motion to quash. The Court did, however, reverse the misdemeanor conviction under 21 O.S. 11 (the State conceded error). NOTE: The Court “warned” prosecutors that best practice is for the State a second page with each subsequent Information, and again urged prosecutors to follow the advice of the Court. This is troubling to me. The Court should not be in the business of offering advice to prosecutors, and again prosecutors have no incentive at all to follow this advice because there are no consequences if they do not.
Smith v. State, 2018 OK CR 4 (February 15, 2018): Search and Seizure (Search Warrants-Sufficiency; Franks): Smith was convicted by jury in Wagoner County (the Hon. Thomas H. Alford, presiding), of Possession of CDS in the Presence of a Minor (AFCF x 2) and Possession of Paraphernalia. The Court affirmed over claims relating to: 1) denial of a motion to suppress (the affidavit in support of warrant was sufficient and no showing of deliberate or reckless false statements; 2) error to bifurcate the trial on the misdemeanor count (assuming it was error, there was no plain error because no objection). NOTE: The Court continues to use a hybrid “abuse of discretion” and de novo standard of review, a bizarre mish-mash standard that seems to employ contradictory legal rules. The Court has been all over the map in the standard of review on legal issues, especially on suppression issues.
Brown v. State, 2018 OK CR 3 (February 15, 2018): Pro Se Representation (Death Penalty): Capital case out of Oklahoma County (the Hon. Ray C. Elliott, presiding) where the Court affirmed the convictions, but vacated the death penalty in claims relating to: 1) Pro se representation (sufficient waiver of counsel at first stage, but insufficient at second/penalty phase, thus death penalty vacated); 2) restrictions on specific pro se requests (about subpoenas and witnesses); 3) a Brady claim (a mental health report of a witness was not material to the case); 4) an odd claim about a coercive “pizza lecture” by the trial judge that compelled a quick verdict; and 5) cumulative error. NOTE: Justice James Winchester and Cleveland County District Judge Lori Walkley sat on the panel. Although I have seen Supreme Court Justices sit in on cases, I do not recall seeing a district court judge specially appointed in a criminal appeal.
Robert Charles Bates v. State, No. F-2016-476 (Okl.Cr., February 15, 2018) (unpublished): Jury Instructions (Culpable Negligence): Bates is the Tulsa Reserve Deputy convicted of Second Degree Manslaughter in Tulsa County (the Hon. William J. Musseman, presiding). In this opinion the Court affirmed, but I included it because it details the legal requirements of Second Degree Manslaughter by “culpable negligence” and rejected an enterprising argument that the legal standard should be different for police officers.
Kiwane Hobia v. State, No. F-2016-1039 (Okl.Cr., February 15, 2018) (unpublished): Confrontation/Cross-Examination: Hobia was convicted by jury in Pottawatomie County (the Hon. John Canavan, Jr., presiding) of First Degree Felony Murder and Second Degree Felony Murder. In this opinion, the Court affirmed but it includes a troubling discussion of a police interrogation where a detective questioned Hobia with accounts allegedly provided by a co-defendant (essentially hearsay statements by the co-defendant). Hobia objected at trial and requested redaction of those parts of the interrogation, and the State conceded error on appeal (but argued harmless error). However, the Court seemed to approve of this tactic on the basis that it was an interrogation technique designed to elicit a response from Hobia, and therefore was not offered for the truth of the matter asserted (and therefore not hearsay). The Court also covered all the bases by deeming it harmless in any event. Judge Rowland penned a specially concurring opinion, finding no error. NOTE: I have noticed that the Court and the State seem to latch onto this “not offered for the truth of the matter asserted” argument in particularly dubious situations to save a case from a Sixth Amendment attack, and this seems like one of them.
Johnny Frank Martin v. State, No. RE-2016-929 (Okl.Cr., February 15, 2018) (unpublished): Suspended Sentences (Finality): Revocation order out of Payne County (the Hon. Stephen Kistler, presiding) is reversed because the State introduced judgments and sentences of other crimes as the basis to revoke without proving that those judgments and sentences were final. NOTE: The win is luke-warm because the Court remanded for a re-hearing on the motion to revoke rather than simply reversing the revocation order.
Joseph Tunley Jr., v. State, No. F-2017-241 (Okl.Cr., February 15, 2018) (unpublished): Waiver (Right to Jury Trial): Tunley was convicted at a bench trial in Oklahoma County (the Hon. Bill Graves, presiding) of Assault and Battery w/Deadly Weapon. Reversed and remanded for new trial because of an insufficient record of waiver of the right of jury trial.
State v. Hon. Kenneth Adair, No. MA-2017-1059 (Okl.Cr., December 6, 2017) (unpublished): Judicial Bias: Intriguing order where the State brought a mandamus action against Judge Adair seeking to recuse him from all future criminal cases and civil forfeiture cases. The Court denied this request, and the facts are interesting. NOTE: As to the civil aspect of the relief sought, the Court referred that issue to the Supreme Court.
No new cases.
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.
OTHER CASES OF NOTE
John Uranga, III, v. Lorie Davis, Director, No. 15-10290 (5th Cir., January 12, 2018): Jurors: Interesting situation where, at a sentencing hearing, a juror learned that Uranga had caused damage to the juror’s lawn during a car chase. Although the juror professed to not be influenced about this revelation, the panel held that this was sufficient for a finding of “implied bias” and granted habeas relief on sentencing.
United States v. Adam Daniel Shepherd, No. 15-50991 (5th Cir., January 26, 2018): Guilty Pleas; IAC: 2255 motion is granted and guilty plea found involuntary by IAC (failing to tell Shepherd that he was not obligated to register as a sex offender in Texas).
BOBBY LEWIS and JAMIE D. PYBAS, OIDS, secured vacatur of the death penalty in the Brown capital case appeal featured above. Capital case wins in the OCCA are few and far between. Nice work, Bobby and Jamie!
ERRATA: Last week we reported that Johnny Albert and Christopher Bridge were geared up for trial when the State dismissed on day one. Mr. Bridge has informed me that he had previously withdrawn and that it was actually Johnny and Dustin Phillips geared up for trial. We need to give a shout out to Dustin!
ANNOUNCED: Current Associate District Judge Stephen R. Pazzo, Jr., has announced his candidacy for the position of District Judge in Rogers County (Judicial District 12). Also, criminal defense attorney Misty Fields has also announced her candidacy for the position. This is a judicial race to which we should pay close attention and consider supporting Misty.
ANNOUNCED II: Special District Judge Douglas Kirkley has announced his candidacy for District Judge for District 15 (Adair, Cherokee, Muskogee, Sequoyah, and Wagoner Counties).
ANNOUNCED III: Tulsa County District Attorney Steve Kunzweiler has announced his bid for reelection.
ANNOUNCED IV: Associate District Judge Dennis N. Shook (Wagoner County) has announced that he will seek re-election.
COMMUNITY POLICING: The OKC PD has received a grant from the state Attorney General’s Office for more community policing on the south side of OKC.
FED C.O.s UNHAPPY WITH POTUS: FCI El Reno officers are reportedly unhappy with the President over a decision to move prisoners to private prisons.
BODY CAMS: OKC PD has full body-cam implementation.
REVIEW: District Attorney Richard Smothermon is conducting a Sentencing Review Project to determine the impact of State Question 780 on inmates in prison.
RESIGNED: A Broken Arrow police detective has resigned from the department in the wake of mishandled evidence in the Bever case.
PRIVATE COUNSEL: Gable-Gotwals has been hired by DOC to represent the agency in a multi-million dollar lawsuit after the Attorney General’s Office withdraw.
REFORM: Oklahoma Watch provides a scorecard for criminal justice reform. Also, Oklahoma County District Judge Tim Henderson and Oklahoma County Public Defender Robert Ravitz noted that a way to relieve prison overcrowding is to make prison a last resort for probation violations.
ROUNDUP: A meth ring in Carter County resulted in the arrests of 17 persons.
RIP: Former Judge Robert L. “Bob” Bailey, 95, of Norman passed away a couple of weeks ago.
QUESTIONABLE TACTICS: Sand Springs police, in an attempt to crack down on auto theft, have developed a program where drivers who are not typically out between 1:00 a.m. and 5 a.m. may place stickers on their vehicles, which allows officers to stop those vehicles during those times without probable cause. I suppose whether such a sticker establishes probable cause will have to be determined by a court.
HIRING FREEZE: DOC has implemented a hiring freeze after budget bill fails.
CHARGED: Garfield County Sheriff Jerry Niles and three others have been charged with First Degree Manslaughter in the death of an inmate.
STAND YOUR GROUND: Lawmakers are seeking to expand the Stand Your Ground law to cover places of worship.
GRANDSTANDING: Lawmakers are grandstanding in the case of a rape defendant given probation, and are seeking the removal of Judge Wallace Coppedge.
CHARGED: A prison employee in Cushing has been charged with bringing contraband into the prison.
HEP C: Only a handful of inmates ever get treatment for hepatitis C because the cost of the treatment is $30,000.00.
“UNRULY WOMAN”: An “unruly woman” dropped trou at the Comanche County courthouse last week.
SKILLED: A handcuffed suspect still managed to steal an OHP cruiser and is still at large.
DARWIN: A teen in Watonga was shot by a friend…while the two were playing “quick-draw” with a loaded gun.
BAD-TO-WORSE: A school teacher, who is also a disbarred attorney connected to the Irish Mob and on a deferred sentence…has been arrested for gun possession.
SHORTEY POLICE INTERVIEW: NewsOK has released the police interview with former Sen. Ralph Shortey.
“SUICIDE ADVICE”: A father in Inola has been arrested for giving his 12-year-old son advice on how to commit suicide.
NOT-SO-GOLDEN YEARS: A retired deputy from California has been arrested…for hauling 60 pounds of marijuana through Oklahoma.
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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