OCDW 06.15.15

 

(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).

 

 

Earnest Eugene Padillow v. State, No. F-2014-22 (Okl.Cr., June 9, 2015) (unpublished): Contempt: Padillow was convicted by jury of several rape counts in Tulsa County (the Hon. William J. Musseman, presiding), and sentenced to LWOP. The case is notable because Padillow attacked his defense lawyer during the trial, in the presence of the jury, and was thereafter excluded from the courtroom and cited for direct contempt of court. In this opinion, the Court affirmed the principal convictions over Padillow’s claims relating to denial of his right to attend court and to testify (waived by his disruptive behavior), but reversed the conviction for contempt because this was imposed at sentencing without an opportunity to be heard.

State v. Julio Juarez Ramos & Isidro Juarez Ramos, Nos. S-2013-509 & S-2013-510 (Okl.Cr., June 9, 2015) (unpublished): State Appeals; Self-Defense: This is a lengthy opinion dealing with a State appeal in a murder case out of Woodward County (the Hon. Ray Dean Linder, retired, presiding). Earlier in the litigation, Judge Linder had suppressed statements to the police based upon non-compliance with the Vienna Convention on Consular Relations, but the Court reversed that decision in a published opinion (State v. Ramos, 2013 OK CR 3). Judge Linder again suppressed the statements, this time in Miranda grounds, and the case became more complicated still when Judge Linder granted a motion to dismiss the charges based upon the Stand Your Ground law. The State appealed. The Court held: 1) that such a pre-trial order is appealable by the State solely as a reserved question of law (meaning that the defendants win!); 2) prosecution is allowed upon a showing of probable cause to believe that the use of force was unlawful; 3) the accused must assert immunity prior to trial or the immunity is waived (and at the hearing, the defendant need only show, by a preponderance of the evidence, that the use of force warrants immunity); 4) a defendant may seek pre-trial appellate review of denial of immunity (via writ of prohibition); 5) the factual determination by the district court that the entry was unlawful is not reviewable as a reserved question of law; 6) the statute applies to the defendants here, even though they are not citizens; and 7) the fact that the defendants may have been in the country illegally is not the sort of criminal conduct that would vitiate immunity. NOTE: The Court issued a series of fractured opinions in this case, with Judge Smith concurring in the result (she believes that either party is entitled to appellate review); Judge Lumpkin concurred in affirming the judgment but dissented “to the advisory dicta set forth in the Opinion”; Judge Johnson specially concurring (emphasizing the right of the accused to assert immunity pre-trial and to appeal); and Judge Hudson concurred in part and dissented in part (echoing Judge Lumpkin’s concern about addressing issues not raised and creating an interlocutory appeals process in Stand Your Ground cases).

State v. David Payne, No. PC-2015-164 (Okl.Cr., June 4, 2015) (unpublished): DNA: In this post-conviction order (from remand), the Court affirms the order by the Hon. Gerald Neuwirth granting Payne’s request for DNA testing pursuant to the newly enacted Post-Conviction DNA Act, over the State’s objections that laches applied, that the testing would not undermine the conviction, and that the trial court erred in ordering the evidence sent to a private lab. NOTE: Judges Lumpkin and Hudson dissented on the basis that the testing would not affect the conviction.

SCHOLARSHIP: Oklahoma’s own Bryan Dupler, currently the judicial assistant to Presiding Judge David B. Lewis on the Court of Criminal Appeals, has authored an essay that appeared recently in The Journal of Appellate Practice and Process, titled Sweeping Down the Plain: A Modern Rule For Direct Review in Oklahoma Criminal Appeals. Dupler advocates a novel mode of appellate review that involves abandoning plain error analysis in favor of a hybrid involving application of Strickland which deals with IAC cases. NOTE: I have always advocated discarding plain error analysis. There are three actors in a criminal trial drama: the trial judge, the prosecutor, and the defense lawyer. Only one of these three—the defense lawyer—is a true advocate. The trial judge has a duty to see that the law is followed and that the proceedings are fair; similarly, the prosecutor, although nominally an advocate for the State, nevertheless has an ethical duty to see that justice is done and that the truth is presented. Yet, whenever trial error occurs, only one of these actors is punished for not doing something about the error or objecting to it—the defense lawyer (or, more accurately, the accused). This has never made sense to me. What about the duty of the trial judge to make sure that the law is followed? If there was an error, but no one noticed it, why is the trial judge not held to any responsibility? Or the prosecutor? Why is it that the defense is always made to explain the failure to object or notice trial, or even constitutional, errors? Plain error review is a scourge of appellate practice, in my opinion, designed to make it easier to affirm convictions in an arbitrary way by singling out the defense lawyer for punishment when errors occur at trial, even though he/she shares responsibility with the prosecutor and the trial judge to notice and correct such errors. End of rant.

 

 

Douglas Stewart Carter v. Alfred C. Bigelow, Warden, No. 12-4203 (10^th Cir., June 2, 2015) (Published) (Kelly, Lucero & Moritz): Habeas Corpus (Capital Habeas Cases): Instructive opinion where the panel held that the district court abused its discretion in refusing to allow Carter to supplement his habeas petition with claims based upon newly discovered evidence of prosecutorial misconduct and suppression of evidence.

United States v. Ronald R. Ullmann, No. 14-3148 (10^th Cir., June 9, 2015) (Published) (Lucero, Matheson & Bacharach): Supervised Release: Condition of supervised release that prohibited computer and internet usage is overbroad; however, the district court modified it orally which saved the condition, so the panel affirmed.

United States v. Timothy John Vanderwerff, No. 13-1227 (10^th Cir., June 10, 2015) (Lucero, Hartz & Holmes): Plea Bargains; Guilty Pleas: An apparently maverick district court judge in Colorado refused to accept a guilty plea because it contained an appellate waiver. All parties, including amicus, urged reversal, and the panel did in fact reverse because the judge abused his discretion. NOTE: The opinion is interesting because the district court critiques the plea bargaining process, and the panel defends it.

 

 

“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.

 

 

Bruce Carneil Webster v. Charles A. Daniels, Warden, No. 14-1049 (7^th Cir., May 1, 2015) (en banc): Habeas Corpus (Second/Successive); Death Penalty (MR): This is a complicated case where the en banc Seventh Circuit split 6-5 on an important issue of habeas law (federal) whether the savings clause of 2255 allows additional evidence of mental retardation. The majority held that it does. NOTE: This is a very unusual case where Webster lost in the Fifth Circuit, but somehow won in the Seventh Circuit (Webster is in Indiana on federal death row; thus, this is how it ended up in the Seventh Circuit).

United States v. Michael R. Walli, No. 14-5220 (6^th Cir., May 8, 2015): Scienter; Sufficiency: An elderly nun and two Army veterans cut through fences at the Department of Energy to protest the making of weapons. The Government charged them with misdemeanor trespass, but when they exercised their right to a jury trial, the Government upped the ante to a sentence of up to 20 years when it charged them with violation of the Sabotage Act which was enacted during World War II. On appeal, the panel held that the defendants lacked the intent required to violate the Act as a matter of law.

United States v. Nakia Phillips, No. 14-2118 (8^th Cir., May 6, 2015): Supervised Release: This is another case where a condition of supervised release that restricts use of computers and the internet is vacated.

United States v. Joseph Pirsoko, No. 14-3402 (6^th Cir., May 21, 2015): Discovery: In this child porn case, Pirsoko sought discovery and analysis of the computer software used by the Government to download files from his computer (the program is called ShareazaLE). In this opinion, the panel denied discovery, but the analysis is interesting.

 

 

KEN SUE DOERFEL, Lawton, teamed up with the Innocence Project in New York, to pursue DNA testing in an old murder case out of Comanche County. The State has fought it all the way, but the OCCA finally rebuffed the State in the Payne case featured above, and will allow the testing to occur. Good work, Ken Sue!

JAMES L. HANKINS, OKC, and THOMAS ZYNDA, Anadarko, ended an almost six year post-conviction odyssey last week in Anadarko (Caddo County) for our client Michael Nolte. I have represented Nolte in state post-conviction since 2009, Tom helped me for the last year as local counsel, and this ORDER granting post-conviction relief is enough to allow our client to discharge his sentence and get out of prison. Nolte and three others broke out of a jail in Illinois in the late 1980s, they eventually hi-jacked an RV and made it to Oklahoma. The owner of the RV was killed. The State turned two of the co-defendants and Nolte was sentenced originally to death. He won a re-sentencing to LWOP, and in prison he stayed until we did DNA testing that undercut the State’s theory of the case (it turns out that the co-defendants who turned against Nolte were the actual killers, not Nolte as the State asserted all along). This case progressed through two elected District Attorneys, three evidentiary hearings, a denial of relief, an appeal and remand, me getting fired mid-way through it, then re-hired to do the appeal and some more hearings, and Nolte rejecting an offer of straight life, which I advised him to take as it was the smart move. He stood steadfast, and last week Judge Van Dyck signed the order, over the State’s objection, changing the conviction from Murder in the First Degree to Murder in the Second Degree and modifying the sentence from LWOP to 45 years—a sentence that Nolte can easily discharge with his accumulated credits. This has been one of the most arduous and satisfying cases that I have done in my career. As soon as the paperwork is processed in a couple of weeks, I look forward to having dinner with my client and his wife.

NEWELL WRIGHT & JAMES LOCKARD, OIDS, did a nice job on appeal in the Ramos case featured above, which clarified the law significantly in cases involving a defense under the Stand Your Ground law. Good work, Newell and James!

 

 

POLICE POWER: A new law has “tweaked” the statutory powers of police chiefs.

COURTROOM CANINES: Mayes County now has two dogs trained to assist hesitant witnesses. Meanwhile in Osage County, the Sheriff is investigating—the dogcatcher.

PIMP DEFENSE: Federal judge James Payne has granted a new trial to an accused of drug crimes, noting that his attorney explained to the jury that his client handled large sums of money because he was a pimp, not a drug dealer.

LATE TO COURT: A man was late to court—so he stole a police officer’s car to get there on time. It didn’t work out so well.

LOCKDOWN: Prison violence may be escalating. Officials estimate that 200-300 inmates were involved in a prison brawl at Cimarron Correctional Facility in Cushing. However, one correctional officer has the solution—give the inmates a joint twice a day! No more fights, increased canteen sales, and no more black market. And speaking of cannabis, a new law allowing Oklahomans access to oils extracted from cannabis plants has led to other issues, such as how do physicians obtain such oils in a state where it is illegal to grow marijuana.

PROSECUTOR DISBARRED: A prosecutor in Texas has been disbarred for withholding evidence and using false testimony that sent a man to death row.

JUVENILE COMPETENCY: A new law allows competency evaluations for juveniles.

ESCAPEE CRASHES: An inmate who escaped from Jackie Brannon Correctional Center in McAlester crashed the motorcycle he stole in Sand Springs.

DIRECTOR RESIGNED: The Director of the Oklahoma City Municipal Courts has resigned over an unspecified personnel matter.

UAB: Interesting article from The Washington Post about the Aryan Brotherhood.

DRUG COURT: Judge Tom Landrith’s take on drug court in Pontotoc County.

RETIRED: A deputy with the Carter County Sheriff’s Office has retired after 33 years on the job.

QUESTIONS FOR SHERIFF: Wagoner County Sheriff Bob Colbert has been accused of falsifying training records.

WHEN YOU HAVE TO GO: A woman in Cherokee County apparently could not wait, so she urinated on the floor at Bob’s Mini Mart in Peggs.

GOOD DAY FOR GOLF: Thieves who stole a credit card in the mail used it to go golfing.

OIDS: This article states that OIDS picked up over 4,400 more cases this fiscal year over last year.

 

 

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 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. 164^th St., Edmond, OK 73013.

OKLAHOMA CRIMINAL DEFENSE WEEKLY

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.

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