(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).
State ex rel. Harris v. 2011 Honda, 2015 OK 11 (March 3, 2015): Forfeiture: The parents of a woman who was caught with drugs in a car were also jointly listed on the title of the car, and asserted an “innocent owner” defense to the forfeiture action. In this issue of first impression, the Court held that the parents are entitled to assert such a defense and are also entitled to possession of the car.
United States v. Gregory Lozado, No. 14-1094 (10th Cir., January 20, 2015) (Published) (Hartz, Matheson & Moritz): Hearsay: Lozado was convicted of felon in possession of ammunition, but sought to introduce a hearsay statement by his brother-in-law claiming ownership of the ammunition. The district court denied admission of the statement and the panel affirmed. NOTE: This opinion contains an extended discussion of the nature of the hearsay statement here, and admissions against interest.
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).
Yates v. United States, No. 13-7451 (U.S., February 25, 2015): Statutory Construction: The Sarbanes-Oxley Act of 2002 was passed to curb securities fraud in the wake of the Enron collapse. Here, the question was whether the Act applies to fish, where a ship captain threw overboard some undersized red grouper after a federal official told him to preserve them because they violated federal conservation regulations. The Act made it a crime to destroy records or “tangible objects” with the intent to impede a federal investigation. The lower courts held that the fish were tangible objects, but the Court reversed, holding that tangible objects under the Act are objects used to record or preserve information.
OTHER CASES OF NOTE
United States v. Armelinda Castillo, No. 13-11007 (5th Cir., February 26, 2015): Federal Sentencing Guidelines (Acceptance of Responsibility): Denial of level reduction for acceptance of responsibility is vacated and remanded to determine whether a challenge to the amount of funds stolen was made in good faith.
United States v. James Raymonda, No. 13-4899-cr (2nd Cir., March 2, 2015): Search and Seizure (Search Warrants; Staleness): A search warrant supported by an affidavit that alleged a single instance of accessing thumbnails of child porn nine months earlier, with nothing else, is unsufficient to support a finding of probable cause to search a house; however, the warrant was saved by Leon. NOTE: This is a great case, even though Leon saved the warrant, because these affidavits always include the boilerplate language about how this type of contraband is horded and kept for long periods of time by pedophiles.
JULIA ALLEN, Tulsa, and co-chair BRIAN ASPEN, won verdicts of Not Guilty for a client charged with two counts of Lewd Molestation in Tulsa County. Nice job, Julia and Brian!
ERIC EDWARDS, Enid, won a DPS appeal by convincing Judge Paul K. Woodward that the police lacked probable cause to believe that the licensee was driving under the influence. A copy of the order can be found HERE. Nice work, Eric!
MARK KANE, Bartlesville, is one of the most active trial lawyers of which I am aware. He is a past recipient of the Clarence Darrow Award for his multiple trial victories, and he is at it once again at the courthouse in Washington County. During the month of February, Mark tried three jury trials(!!!) The first involved a client charged with Lewd Molestation at a local park, which included a videotape of the conduct, but not a good angle and the testimony of the minor complaining witness did not fit with the images on the video. Deliberations were long, a two-meal jury as Mark called it, but the end result was a hung jury that was 11-1 for acquittal.
The second trial was also a Lewd Molestation case involving a stepfather and a 13-year-old girl who was in the midst of a custody battle. This time, the jury was out for 1 and ½ hours before returning a verdict of Not Guilty.
The third trial was Feloniously Pointing a Firearm and A&B w/Dangerous Weapon (a crutch!) The State dismissed this ridiculous case, leaving Mark with an acquittal, a dismissal, and an 11-1 hung jury. Amazing results by one of the best jury trial practitioners around. Terrific work, Mark!
KYLE MCCALLUM, Hugo, represented a man accused of Maintaining a Place where CDS is Kept/Sold. A toddler at his residence had tested positive for methamphetamine. However, a jury in Choctaw County saw the case differently and issued a verdict of Not Guilty. Nice job, Kyle!
FELONY MURDER: The link goes to an interesting article on the use of the felony murder doctrine as applied to a 16-year-old in Indiana, facing 55 years for a killing that he did not commit.
DNA COLLECTION: Legislation is worming its way into the Oklahoma House that would allow the State to collect DNA samples from offenders sentenced to probation.
WATSON APPOINTED: Retired district judge Kenneth C. Watson (Oklahoma County) has been appointed by the Oklahoma Supreme Court to the Oklahoma Pardon and Parole Board.
FALSE CHARGES: A woman who reported being sexually assaulted by former Oklahoma City police officer Daniel Holtzclaw, has herself been charged with reporting falsely a sex crime. Holtzclaw faces a slew of charges, but it appears that these at least are false.
RODEO RETURN?: The prison rodeo at OSP, on hiatus for the last five years, could return.
NIGH NEW P.D.: Rob Nigh, who was supposed to be the interim Public Defender in Tulsa County, has been selected by the district judges to hold the position on a permanent basis. Congratulations, Rob.
RIP JUDGE THOMAS E. BENNETT: Judge Bennett handled social security cases as an ALJ, but I had the privilege of trying several disability cases in his courtroom. I believe that he had been a judge longer than I had been alive. He was always very gracious and fair to me and my clients. RIP. Also, Judge Page Morgan of the Oklahoma City Municipal Court lost her battle with cancer recently and passed away on February 27, 2015.
M.E. STILL NOT ACCREDITED: This, according to state Sen. Greg Treat, is one of the most “embarrassing” things for our state.
DEPUTY FIRED: A Garvin County deputy was fired in light of allegations of domestic violence.
ROBING CEREMONY: A formal robing ceremony was held recently in Tulsa for newly elected district judges Doug Drummond, Sharon Holmes, William LaFortune, and Caroline Wall.
DASH-CAM PROBLEM: An investigation by local media suggests that, although the Tulsa Police Department has installed dash-cams, many of them are not operating properly; on a related note, the city of McAlester has approved the purchase of police body cams. District Attorney Greg Mashburn (Cleveland County) has commented in the media how video has changed the landscape of law enforcement.
CONTEMPT DISMISSED: District Judge Ray C. Elliott has dismissed contempt proceedings against state Mental Health Commissioner Terri White in light of an apology over the delay in treating an offender.
LEGISLATIVE REFORM NEWS: Two bills dealing with criminal justice issues—allowing judicial by-pass of mandatory minimum sentences—have passed through committees.
NEW LIFE: Interesting story of Jesil Wilson, who was imprisoned at the age of 13, and released recently after 17 years to make a new life.
JAIL TOUR: New judges in Tulsa County recently took a tour of the jail.
OFFICER UNDER INVESTIGATION: A police officer in Madill is being investigated by the OSBI for allegedly using excessive force while making an arrest.
COURT DEBT: Nice article about the difficulties that defendants face when trying to pay off court costs.
EXECUTION DELAYED: The state of Georgie was poised to execute a woman last week, but stood down temporarily because the execution drug was “cloudy.” Meanwhile, lawmakers in Oklahoma are passing legislation that would allow execution via “nitrogen hypoxia.”
SHERIFF RETIRING: Woodward County Sheriff Gary Stanley will retire on May 1, 2015.
DISORDERLY CONDUCT: The City of Oklahoma City ordinance banning disorderly conduct has been upheld by federal district judge Joe Heaton against an attack that it is too vague.
PSI IN DEATH CASE: The defense requested a pre-sentence investigation in a capital case down in Stephens County. I have never seen that done before.
FELONY FILINGS: According to the Pittsburg County Court Clerk, felony filings are at a 17-year high.
NEW LAW FIRM: Larry Vickers has opened shop in the town of Vian.
CHICKEN: KFC banned him from the store, but he came back for more. Why? Because he just “wanted some chicken”; a quest “to get high” ended badly for this Oklahoma City man, who was robbed and left bleeding and nearly naked on a street corner; this is more sad than wacky, but it appears that the Oklahoma City School District has the highest suspension rate of African-American students in the nation; this man allegedly assaulted a woman with a subwoofer speaker, and he is now in treble, but it’s not about the bass (you can thank Mark Hoover for those!); a woman in Cherokee County thought people were living in her attic, so she tried to smoke them out, but responders found no people in the attic, only the meth; looks like Oklahoma may allow liquor stores to sell cold, high-point beer; a truck driver traveling through Oklahoma decided it would be more profitable to sell the truck and trailer; an Oklahoma City man has been accused of assaulting a police officer, and his booking photo reveals why you should not do that; prosecutions for bigamy are rare, but it happened recently in Muskogee.
THURSDAY, MARCH 26 (Tulsa University Law Moot Courtroom) & FRIDAY, MARCH 27 (Oklahoma Bar Center), 2015: The Art of War: Prepare Your Criminal Trial Notebook for Battle. This appears to be a good CLE, but there is not much detail on the Bar Association web site as of yet.
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