OCDW 04.13.15



James L. Hankins, Publisher


(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).




Tammy Ober v. State of Oklahoma, ex rel. Department of Public Safety, No. 111,990 (Okla. Civ. App., Div. II, April 6, 2015) (Released for Publication): Expungement/Sealed Records: Ober was a teacher and a coach, and she sought to seal her DUI record (the civil part), which was granted by the Hon. Tom A. Lucas (Cleveland County). In this opinion, the Court reversed, holding that she did not proffer good enough reasons, and also explicating on the law of sealed records.




United States v. Jose Herrera, No. 13-1527 (10th Cir., April 6, 2015) (Published) (Gorsuch, Sentelle, Senior Circuit Judge of the D.C. Circuit, sitting by designation & Murphy): Search and Seizure (Search Warrants; Franks v. Delaware): The district court granted a motion to suppress in a drug case (GPS tracker on a car) based on Franks (lies or reckless disregard for the truth in the affidavit), but in this opinion the panel reversed on the basis that the district court misapplied Franks. NOTE: This is a good primer on the law regarding Franks attacks on search warrants. Particularly helpful is the discussion regarding a hearing. The Government argued that the district court erred in even granting a hearing, but the panel dismissed that by holding that a hearing is always permissible, just not always required.

United States v. James William White, No. 14-7031 (10th Cir., April 6, 2015) (Published) (Kelly, Lucero & McHugh) (E.D. Okla., Hon. Ronald A. White): Sex Offender Registration; Supervised Release: Conviction for failing to register is affirmed over claims relating to violations of the Commerce Clause, the Tenth Amendment, and the Ex Post Facto Clause; but the sentence is vacated because the district court treated White as a Tier III sex offender. NOTE: There is a good discussion of whether White can be prohibited from visiting his grandchildren as a condition of supervised release. The analysis is a little bit different than if they were his own children, but the panel discussed it a little bit for the remand.

United States v. Brian Hicks, No. 14-1069 (10th Cir., March 6, 2015) (Published) (Briscoe, C.J., Holmes & Bacharach): Speedy Trial: Conditional plea to a drug count is reversed because of a violation of the Speedy Trial Act (but no violation of Sixth Amendment). NOTE: In cases involving the Speedy Trial Act, the case is reversed and remanded to the district court to make a determination whether dismissal is with or without prejudice; in contrast, a violation of the speedy trial right under the Sixth Amendment is with prejudice, which is why they are more rare.

Naif Al-Yousif v. Travis Trani, Warden, No. 14-1084 (10th Cir., March 6, 2015) (Published) (Hartz, Matheson & Moritz): Habeas Corpus (SOL and Equitable Tolling; AEDPA Deference): Habeas petitioner wins in the district court on a Miranda claim even though his petition was not timely (equitable tolling applied), but in this opinion the panel reversed on the basis equitable tolling did not apply (counsel was not mislead by an erroneous docket entry on the internet) and the state court is entitled to deference on the merits.

United States v. Marcos Garcia-Ramirez, No. 14-1383 (10th Cir., February 18, 2015) (Published) (Briscoe, C.J., O’Brien & McHugh) (per curiam): Appeals Waiver: In this guilty plea case, the panel granted the motion of the Government to enforce the appeals waiver, clarifying the circumstances where the Court will proceed to the merits, but those circumstances do not exist here.




“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.




Roger L. Wheeler v. Thomas L. Simpson, Warden, No. 11-5707 (6th Cir., February 20, 2015): Death Penalty (State Cases/Other; Death Qualification): In this 2-1 opinion, the Court grants habeas relief to a Kentucky death row inmate on the basis that the trial judge excused improperly a juror who could have considered all punishment ranges. NOTE: Before citing this case in the future, I would make sure that SCOTUS does not reverse it in a per curiam opinion, like the Court is wont to do to these types of opinions, especially opinions out of the Sixth and the Ninth Circuits.

United States v. Kendall Woodall, No. 14-2704 (8th Cir., April 3, 2015): Supervised Release: Woodall pled guilty to failure to register as a sex offender. In this opinion, he contested a condition of supervised release that prevented him from consuming alcohol and frequenting bars, and the panel agreed!

United States v. Joseph Symington, No. 14-10482 (11th Cir., March 25, 2015): Guilty Pleas: Symington pled guilty to avoid an enhancement under the ACCA (15 year min), but the district court found the enhancement applied; however, the district court erred in not allowing Symington to withdraw his plea.

United States v. Sealed Juvenile, No. 14-30357 (5th Cir., March 13, 2015): Juveniles: This opinion deals with an issue of first impression involving conditions of supervised release in a federal juvenile case, such as search issues and access to the internet. The panel affirmed almost all of them, but modified somewhat a condition that required the juvenile to get permission every time he/she accessed the internet.




None noted.




Below are descriptions of the awards, the deadline for nominations, and instructions on how to nominate your peers for outstanding work in criminal defense:


The Clarence Darrow Award

Clarence Darrow was born in Ohio in 1857. After being admitted to the bar in 1878, he became a small-town lawyer for nine years.

During WWI he defended anti-war activists and was critical of The Espionage Act that was used to stifle anti-war activities. You need only mention the names of his famous cases to realize his impact on criminal defense; the Scopes Monkey Trial, the Scottsboro 9 and the Leopold-Loeb Murder Trials. A 1936 FBI memo to Clyde Tolson, aide-de-camp to J. Edgar Hoover, gave Mr. Hoover some quotes that Clarence Darrow had made in an article entitled Attorney for the Defendant. It was suggested that Mr. Hoover could use these quotes in speeches to point out how unscrupulous criminal lawyers stimulate disrespect for law and influence crime conditions.

The award recognizes the efforts of an individual who has, during the year, exemplified the zealous criminal defense advocacy that befits the namesake of the award “Clarence Darrow”. It is in the deeds and spirit of Clarence Darrow that this award is given each year for the zealous criminal defense advocacy by an individual attorney. The only qualification requirement is that the event(s) upon which the nomination is based must have taken place during the current year.


The Thurgood Marshall Appellate Advocacy Award

Thurgood Marshall, the grandson of a slave, was born in 1908 in Maryland . In 1930, he was denied admission to the University of Maryland Law School due to the fact that he was black. This event was to direct his future professional life.

In 1934, he began his association with the NAACP and dismantled school segregation in his 1954 victory of Brown vs. Board of Education of Topeka . He later desegregated graduate schools with his victory in McLaurin vs. Oklahoma State Regents. As a Justice for the Court of Appeals for the 2nd Circuit, he made 112 rulings that were all upheld before the United States Supreme Court. As Solicitor General for the United States , he won 14 of 19 cases argued before the United States Supreme Court. In 1967, Thurgood Marshall was the first African American appointed to the United States Supreme Court. He was often the lone voice of dissent against the death penalty and always spoke for voiceless Americans in his opinions. He died in 1993.

The Marshall Award recognizes outstanding appellate advocacy in the spirit and in the footsteps of the great attorney, judge and justice


The Lord Thomas Erskine Award

Lord Erskine was a Scotsman, the third son of the 10th Earl of Buchan, educated at Edinburgh and Cambridge and called to the bar in 1778. He was a strong advocate and defender of popular liberties and constitutional rights. His defense of Thomas Paine cost him his post of attorney general to the Prince of Wales.

The award is given to honor a member of the criminal defense bar who has over the years steadfastly placed the preservation of personal liberties over his or her own personal gain or reputation. The award is a cumulative year award and is not limited to any particular activities in any given year.



Awards eligibility period is from June 1, 2014 to June 1, 2015.

Cutoff date for nominations is June 5, 2015 @ 5:00pm.


The awards will be presented at the OCDLA’s Annual Meeting held during the Patrick A. William‘s Criminal Defense Institute on June 25th, 2015 in Oklahoma City. There will be food and drinks served during the awards presentation.


Please send nominations to:


Mail:     OCDLA

    PO Box 2272

    OKC, OK 73101-2272


Email: bdp@for-the-defense.com

Fax: 405-212-5024




DNA CASE: A man convicted of a 1997 murder has challenged his conviction based upon the new DNA Act.

AWARENESS: District Attorney Matt Ballard kicked off a campaign to focus on Sexual Assault Awareness Month.

INMATE MEDICAL BILLS: Oklahoma County is being sued for over half a million dollars’ worth of unpaid medical bills for inmates.

DEPUTY PROBLEM?: The shooting of a suspect in Tulsa by a reserve deputy who claimed to have mistaken his gun for a Taser has raised questions about Sheriffs allowing donors to be reserve deputies; also, I don’t think law enforcement are doing themselves any favors by trying to portray the elderly deputy as a “victim.”

PUSH PROBLEMS: Things are dire financially in Pushmataha County and could potentially result in the closing of the jail; and things are not much better in Mayes County, where Judge Terry McBride has sought funding for the Clerk’s Office from County Commissioners.

JONES REFLECTS: Enid attorney Stephen Jones reflected on the Oklahoma City bombing case in a recent speech at the Rotary Club in Tulsa; also, the architect of the Murrah Building remembered that day as well.

EXECUTION NEWS: Oklahoma could be the first state ever to allow nitrogen gas to be used as a method of execution.

TEXAS EXECUTION: Convicted killer Kent Sprouse, 42, was executed in Texas last week.

DEPUTY CHARGED: A former Oklahoma County deputy has been charged with petty larceny in taking a wallet from a lost-and-found box at Penn Square Mall.

LIGHTNING: The Claremore Police Department was struck by lightning last week.

RECORDING vs. INTERFERENCE: Interesting article on when the right of the public to record police turns into interference with their duties.

NEW JUDGES: The Sequoyah County Times interviewed new judges Kyle Waters and Matt Orendorff.

PAROLE PROTEST: District Attorney Jason Hicks is organizing a protest of the parole of Arthur Parks, who was convicted of murdering a police officer in 1985; also in Stephens County, the court clerk has issued more than 400 summons for potential jurors for the upcoming jury term.

BODY MIC ACCESS: A bill that would allow public access to police body microphones and cameras has passed an initial step in the state Senate.



A man in Lawton ended up with no thumbs after being shot during a bar fracas; things got ugly in a panhandler turf war when one of them pulled a machete in a fight over a disputed corner; a misdemeanor warrant has been issued for a teacher and coach in Miami, Oklahoma, who showed students in class how to roll a joint, complete with a photograph that was plastered on social media with the caption, “My teacher taught us how to roll joints in class.”; perhaps topping the drunk guy who went joyriding on the Zamboni last year, this guy upped the ante when he went for a ride on a 1,500 pound drum roller.



SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at jameshankins@ocdw.com 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: ©2005-2015 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!


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