OCDW 06.08.15

 

(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).

 

 

Sonja Jean Worthington v. State, No. M-2013-282 (Okl.Cr., May 27, 2015) (unpublished): Assault and Battery: Worthington was convicted by jury in Washington County (the Hon. John Gerkin, Special Judge, presiding) of misdemeanor Assault and Battery. She was sentenced to a $1,000.00 fine. Worthington was actually a police officer in Bartlesville who was convicted of assaulting a suicidal patient that she transported to the mental hospital (the patient was handcuffed and she shoved him down, climbed on him, then slapped him and placed him a headlock). NOTE: The opinion is interesting because it illustrates the legal concept that police are not exempt from the criminal laws, and also because there appears to be no jury instruction on the reasonableness use of force. This latter claim was raised, although couched as IAC, but the Court rejected it.

Gregory John Wilson v. State, No. M-2013-1049 (Okl.Cr., May 26, 2015) (unpublished): Waiver (Jury Trial): Wilson was convicted at a bench trial in Marshall County (the Hon. Gregory L. Johnson, presiding) of the misdemeanor crime of Domestic Abuse Assault and Battery. The Court reversed because there was no valid waiver of Wilson’s right to a jury trial. NOTE: Judge Lumpkin dissented, citing fairly strong evidence in the record that Wilson elected to have a bench trial, but the Court has traditionally been very strict construing waiver in these situations.

Gabriel Brian Solis v. State, No. C-2014-270 (Okl.Cr., June 2, 2015) (unpublished): Guilty Pleas; Judicial Bias: Solis entered a blind Alford plea to Child Abuse/Enabling Child Abuse in Oklahoma County before the Hon. Cindy H. Truong, who promptly sentenced him to 80 years in prison at 85%. The case was actually remanded once for a proper hearing with conflict-free counsel, but Judge Truong denied the motion to withdraw. In this opinion, the Court remanded for resentencing “or any other proceedings” before a different judge because Judge Truong was not fair and impartial (and also IAC because counsel should have asked her to recuse). NOTE: Judge Truong was also in the news for severe judicial behavior recently when she sent seven defendants to jail for showing up late for the docket.

Jeffery Alan Patton v. State, No. F-2014-310 (Okl.Cr., May 29, 2015) (unpublished): Double Jeopardy: Patton was convicted by jury in Mayes County of several drug and firearm counts. In this opinion, the Court affirmed for the most part, but did find a section 11 violation where Patton was convicted of both possession of a firearm (AFCF) and possession of a firearm during the commission of a felony. The Court found one act of possession which could not support two convictions.

State v. Christopher D. Knight, No. S-2014-564 (Okl.Cr., May 27, 2015 (unpublished): State Appeals; Search and Seizure (Consent): This is a State appeal on a suppression motion that was granted by the Hon. Lee Card (Carter County). Basically, police in Ardmore intercepted Knight as he was walking down the street and questioned him, finally getting consent to search Knight’s person, and meth was found in his pocket. The Court affirmed, finding that the encounter was not consensual and the search was therefore invalid. NOTE: Judge Hudson dissented. His dissent is notable because he seems to pay no attention to the standard of review, choosing instead to analyze the legal issues de novo. While he disagreed with the way Judge Card handled the issue, the standard of review is whether Judge Card abused his discretion. I suspect that Judge Hudson might pay more attention to that in the future when he becomes more accustomed to being an appellate judge.

 

 

“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).

 

Elonis v. United States, No. 13-983 (U.S., June 1, 2015): Scienter; Jury Instructions: Elonis posted rap lyrics on Facebook which threatened his ex-wife and others. He was actually arrested and convicted of doing this. In this opinion, the Court reversed, holding that the jury instructions contained merely a negligent standard (i.e., whether a reasonable person would view the words as threats) which cannot support such a conviction. NOTE: Nine courts of appeals had approved of this standard (the Ninth and the Tenth Circuits being the outliers), but the Court did not actually say what the appropriate standard is, leaving it to the lower courts to sort it out first.

 

 

JASON D. MAY, Ardmore, scored a nice win on a suppression motion before Judge Card, and then followed up and won it on appeal in the Knight case featured above. Very nice work, Jason!

STEVEN M. PRESSON, OIDS, secured a new trial for his client on appeal in the Wilson case, featured above, based upon no record of a valid waiver of the right to jury trial. Good job, Steve!

THOMAS PURCELL, OIDS, also won in the OCCA in the Solis case featured above. This win is especially nice since he called out Judge Truong for being vindictive and prejudiced against his client, for the first time on appeal, and prevailed. Good job, Thomas!

BRIAN RAYL & ROB NIGHT, Tulsa County Public Defender, secured a Not Guilty by Reason of Insanity in the case of a man who fatally stabbed his mother. Great job, Brian and Rob!

ALLEN M. SMALLWOOD, Tulsa, and CHERYL RAMSEY, Stillwater, obtained an acquittal recently in Payne County where the client was accused of first degree rape. It was a long, tough, six day trial. Congratulations Allen and Cheryl!

 

 

NEBRASKA: It has been a rollercoaster ride for the death penalty in Nebraska. The legislature approved a bill that abolished the death penalty. However, Gov. Pete Ricketts vetoed it. The legislature overrode the veto, and it appears that Nebraska is the first conservative state to abolish capital punishment in 40 years.

CLERK MOVING: The rent is apparently too high for the court clerk in Ponca City, and the Supreme Court refused to fund it anymore; so, the clerk’s office is moving to a different building.

FAMILY JUSTICE CENTER: District Attorney Richard Smothermon is seeking a single-point for treating child victims, called the Family Justice Center.

OOPS: The Attorney General’s Office failed to appear at the initial court appearance of an ex-county commissioner charged with embezzlement in Rogers County. The AG simply had the wrong court date.

JURY MANAGEMENT: Logan County will soon begin electronic jury management, making the process easier and more convenient.

LEASE LOST: Oklahoma City attorney Joi E. McClendon has lost the lease on her office building because of her logo which depicts scales of justice and gavels in the shape of skull and crossbones.

D.A. vs. JUDGE: Things are heating up in Pittsburg County between the District Attorney’s Office and Special Judge Matthew Sheets.

COURT VANDALISM: A man in Enid has been accused of breaking windows and lights at the courthouse.

BODY CAM VIDEO: Gov. Fallin has signed into law a bill that governs the public release of body cameras worn by law enforcement.

PRO SE: The defendant in the Reliable Pharmacy murder is having a tough time representing himself.

OKC MUNICIPAL COURT: Two top administrators at the Oklahoma City Municipal Court have been placed on leave pending an investigation into “personnel matters.” Also, an audit found that an employee of Republic Parking stole nearly $420,000.00 between 2012 and 2014.

MORE FEES: Logan County will add another $10.00 to the ticky tacky fees that attach to a civil filing, this one goes to fund courthouse security. Other counties are sure to follow.

POLICE SHOOTINGS: Looks like Oklahoma leads the country in the rate of police shootings.

OSBI PROBE: The OSBI has opened a probe into the Tulsa County Sheriff’s Office.

BOARD OF CORRECTIONS: Alva businessman Todd Holder has been appointed to the Board of Corrections.

DOWNWARD DEPARTURES: Nice story about the new law that allows judges to lower sentences in some criminal cases.

SHERIFF’S SON ARRESTED: The son of the Sheriff of Love County has been arrested for selling meth.

FEDS vs. JAIL: The feds are seriously considering a lawsuit over conditions at the Oklahoma County Jail.

DESERT SNOW: The lingering effects of the involvement of Desert Snow personnel in apprehending drug traffickers may result in dismissals.

 

 

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!

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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