(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).
juxtaposition: an act or instance of placing close together or side by side, especially for comparison or contrast, e.g., I have been reading a fascinating book by physicist Lawrence M. Krauss titled A Universe from Nothing, which explores the fundamental nature of the universe, and specifically the intriguing idea that the universe may be a self-replicating system that creates itself from the energy in empty space (yes, it is a mind-blowing concept). Of course, such books almost always explore basic scientific concepts, and give credit properly to the great minds that have come before. One of the great minds of old cited and recognized by Krauss is Johannes Kepler, a German mathematician and astronomer who lived from 1571-1630. When a star burns itself out, and eventually explodes, it is called a supernova and it among the most brilliant and brightest things in the universe. The last supernova in our galaxy, witnessed from Earth, occurred in 1604 and was witnessed by Kepler. This is a man who, a century before Isaac Newton, developed laws of planetary motion accurately. However, the part that caught my attention was a blurb, almost in passing, where Krauss mentioned that Kepler also represented his own mother, successfully, in a witchcraft trial(!!) I was so amazed by this that I had to look it up. Sure enough, Kepler’s mother was accused of being a witch in 1617, spent fourteen months in prison, and was eventually tried and released in 1621, in part to a legal defense drawn up by Kepler. It occurred to me that in this man’s lifetime, we saw exhibited the best of humankind in the form of soaring knowledge in mathematics, astronomy and application of the scientific method; and the worst of humankind in the form of witchcraft accusations fueled by human fear, ignorance, and reliance upon superstition. In the end, the great Kepler conquered them all.
Newlun v. State, 2015 OK CR 7 (April 16, 2015): DUI: This is an appeal from a conviction for felony DUI in a non-jury trial before Judge William C. Kellough (Tulsa County), where Newlun sought to have this felony charge changed to a misdemeanor since it had been more than 10 years since her last (felony) DUI. Judge Kellough rejected this claim, holding that once-a-felon, always-a-felon, but the Court disagreed and construed the DUI statute to allow a misdemeanor charge even after the accused had been previously been convicted of felony DUI.
United States v. Maurice Elon Edwards, No. 14-7028 (10th Cir., March 24, 2015) (Published) (E.D. Okla., Hon. Ronald A. White) (Bacharach, Baldock & McHugh): Constructive Amendment; Hearsay: Edwards was convicted by jury of a single count of Possession of CDS w/Intent. Affirmed over his claims relating to: 1) introduction of an anonymous 911 call that named Edwards (harmless even if there was error); 2) constructive amendment of the indictment; and 3) jury instructions that omitted an essential element (no plain error).
Jeremy Alan Williams v. Anita Trammell, Warden, No. 12-5190 (April 10, 2015) (Published) (N.D. Okla., Hon. James H. Payne) (Hartz, Gorsuch & Phillips): Habeas Corpus (Capital Habeas Cases; Exhaustion; Procedural Default); Aiding and Abetting; Cumulative Error: Denial of habeas relief is affirmed over claims relating to: 1) IAC on a variety of claims (mostly for failure to object to evidence and to impeach witnesses); 2) sufficiency of the evidence regarding malice murder (it was); and 3) cumulative error. NOTE: This case presents some discussion about the relationship between aiding and abetting law and the death penalty, which prompted Judge Gorsuch to write a separate concurring opinion in which he stated that if the OCCA really means to suggest that strict liability offenses can trigger the death penalty, it will face its problems.
United States v. Christian Paetsch, No. 13-1169 (10th Cir. April 8, 2015) (Published) (Briscoe, C.J., Tymkovich & Phillips): Search and Seizure (Roadblocks & Checkpoints): This case puts a new spin on traffic stops when, after a bank robbery, police barricaded 28 motorists when a GPS tracker indicated that the stolen money was within one of the cars. It took officers about 2 and 18 minutes to isolate Paetsch (and he also gave them some probable cause by his actions), and the panel found that this search was reasonable.
United States v. Jesse N. Evans, No. 14-1142 (10th Cir., March 3, 2015) (Published) (Moritz, Porfilio & Baldock): Child Porn; Federal Sentencing Guidelines (Pattern of Criminal Activity): Enhancement in this child porn case for “pattern of activity” is affirmed.
United States v. Jesus Figueroa-Labrada, No. 13-6278 (10th Cir., March 24, 2015) (Published) (W.D. Okla., Hon. Joe Heaton) (Matheson, Phillips & Moritz): Federal Sentencing Guidelines (Safety Valve): In a case that was remanded for re-sentencing, the appellant sought a safety valve reduction, but the district court rejected consideration of it, holding that he had not disclosed prior to the initial sentencing hearing. In this opinion, the panel disagreed and reversed, holding that safety valve consideration is required when the defendant provides information to the Government for the first time on remand, but before the resentencing hearing.
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
United States v. Dennis Moslavac, No. 14-2866 (7th Cir., February 18, 2015): Supervised Release: Revocation of supervised release is reversed because the district court admitted hearsay statements of a child (relayed by a parent) without conducting the balancing of interests required by Rule 32.1(b)(2)(C).
United States v. David Edmond, No. 13-14381 (11th Cir., March 16, 2015): Guilty Plea; Standard of Review (Plain Error): This guilty plea to fraud using access device is vacated when the panel noticed that Edmond pled guilty to a crime for which he was not indicted (there was factual inconsistency in the factual proffer and the plea agreement). NOTE: This issue was not briefed by either party, but noticed by the court sua sponte and corrected via plain error review.
United States v. Jason Anthony Carter, No. 14-5276 (6th Cir., March 6, 2015): Burks Notice and Bad Acts: Drug conspiracy conviction is reversed because the district court allowed in 404(b) evidence in the form of prior drug distribution.
JARROD STEVENSON, OKC, won yet another jury trial up in Kay County, this time in a case involving allegations of Sexual Battery. The jury was out for a whopping 26 minutes before returning a “not guilty” verdict. This is another great win for Jarrod!
A couple of things to do in OKC:
LAKESIDE BARBER SHOP: 7513 N. May Avenue, Oklahoma City, OK (405.843.7637): Sometimes when I let my hair go too long and need a shave, I go to Lakeside and get a nice relaxing straight razor shave and a haircut. Ask for Nick if you get the shave. He is meticulous, uses several hot towel applications and salves, and just overall does a great job at an old-fashioned shave. Other than Nick, one of the personalities at Lakeside is barber Harold Kennedy, who grew up in Spencer, Oklahoma, and had never been on a plane or a ship until World War II, and never set foot on one after. Harold is 90-years-old and began cutting hair the year after my father was born in 1949, and he has been cutting hair at Lakeside since 1954. If I don’t need a shave, and Nick is busy (which he usually is), I always see if Harold is around (I think he only goes in now on the weekend). He will always tell you a good story, and may even pick the guitar while you wait.
RIVERWIND: The proliferation of casinos in Oklahoma has had the effect of bringing in entertainers, especially popular oldies (Willie Nelson, Loretta Lynne, and hair bands from the 80s like Chicago and Air Supply). One of the best venues to see a concert, even if you do not gamble, is the theater at Riverwind in Norman, Oklahoma. I have been there several times, and am always pleased at the size of the place (around 3,000 seats, not too big nor too small), the comfortable seats, the good service at the bar, and the great sound stage. I saw Percy Sledge perform there a few years ago, and I noticed that he passed away recently in Louisiana. What a great performer he was. During his career, he must have sang “When A Man Loves A Women” thousands of times, but on stage he sang it again with gusto, and he looked like he still was having fun and enjoying the performance.
OCDLA ANNUAL AWARD NOMINATIONS
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. One 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. An FBI memo issued in 1936 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 judge on the United States Court of Appeals for the Second Circuit, he issued 112 rulings, and all were upheld by 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 (although accompanied frequently by Justice Brennan) 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:
PO Box 2272
OKC, OK 73101-2272
DEPUTY CHARGED: Robert Bates, the elderly reserve deputy in Tulsa who mistakenly shot a suspect in the back, saying that he thought he was using his Taser rather than his sidearm, has been charged by prosecutors in Tulsa County with Manslaughter (Negligent Conduct). Also, the Tulsa World reports that supervisors were told to falsify the training records of the deputy; and, here is another article detailing some of the personal background of Mr. Bates.
NEW JAIL SOUGHT: Oklahoma County Sheriff John Whetsel is working on obtaining funding for a new county jail.
POLICE SHOOTING: Sand Springs police shot and killed a mentally ill man last week, in an apparently justified shooting.
DISTANCE: The Tulsa Police Department has been publicly distancing itself from the Sheriff’s Office, noting that it does not allow volunteers in high-risk situations.
VENDORS ARRESTED: Three “trusted vendors” at a Tulsa gun show have been arrested for stealing guns.
EMT ARRESTED: An Oklahoma EMT has been arrested and accused of drug trafficking.
MISSOURI EXECUTION: The state of Missouri executed Andre Cole last week. Cole became the third inmate executed in Missouri this year; not to be outdone, the state of TEXAS executed Manuel Garza for the murder of a police officer in San Antonio.
CITIZEN’S GRAND JURY: A grand jury petition circulated by the relatives of a girl that was raped, who say that law enforcement bungled the investigation, actually convened a grand jury and secured an indictment in a case down in Choctaw County.
JUDGE DIES: Retired Associate District Judge William H. “Bill” Mattingly (Osage County) passed away last week at the age of 84.
OKC BOMBING: April 19 marked the 20th anniversary of the bombing of the Murrah Building by Timothy McVeigh. The link goes to an article detailing the volume of case-related documents given to the University of Texas by attorney Stephen Jones; also this article details the recollection of the duties of Judge Allen McCall during the trial of Terry Nichols.
GUNS ALLOWED: The Norman Music Festival, which had sought to ban guns during the event, lost in court as Judge Thad Balkman (Cleveland County) declared the ban illegal.
NITROGEN EXECUTION: Gov. Fallin signed a bill into law that would allow the state to carry out executions by “nitrogen hypoxia” in the event that the current lethal injection regime is declared unconstitutional.
POLICE PRESENCE: The town of Glencoe ceased operating a police department when Chief Geron Loveland retired, however it appears that Payne County may provide a reserve Sheriff’s deputy to conduct patrol duty.
A Grove man who was arrested recently on a drug charge listed his occupation as “self-employed drug dealer.”
THURSDAY, JUNE 25 & FRIDAY, JUNE 26, 2015: The 2015 Patrick A. Williams Criminal Defense Institute & Annual Meeting (including annual awards) will be held at the Renaissance Hotel and Cox Convention Center in Oklahoma City. This program is always top-notch, and this year I am presenting on a case-law update during the Friday session. Hope to see you there!
SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at firstname.lastname@example.org 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!
If you have received this e-mail in error, or no longer wish to receive the weekly newsletter, simply reply to the message, or send a new message, to email@example.com and type in “UNSUBSCRIBE” in the subject line, along with your name and e-mail address and you will be taken off the mailing list.