OCDW 06.22.15



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).





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!





No new cases.




United States v. Antonio Esquivel-Rios, No. 14-3162 (10th Cir., May 27, 2015) (Published) (Briscoe, C.J., Seymour & Kelly): Search and Seizure (Traffic Stops; Exclusionary Rule): Traffic stop in Colorado based upon a “no return” when officer ran a temporary tag, so officer stopped car. It turns out that “no return” was not indicative of any criminal wrongdoing; so, there was a Fourth Amendment violation. However, the panel held that the exclusionary rule did not bar the evidence because there was no police misconduct to correct.

United States v. Dejuan Leshae Hill, No. 13-5074 (10th Cir., May 22, 2015) (Published) (Hartz, Phillips & McHugh) (N.D. Okla., Hon. James H. Payne): Variance; Joinder; Evidence (Gang Affiliation): In this multi-defendant conspiracy case involving a series of robberies, allegedly gang-related, convictions are affirmed over claims relating to: 1) variance in the conspiracy count (there was a variance, but harmless); 2) misjoinder of defendants; and 3) evidence of gang affiliation. NOTE: Concerning the variance, the judges split 2-1, with Judge McHugh dissenting on the basis that the variance was sufficiently prejudicial.




“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).


Brumfield v. Cain, Warden, No. 13-1433 (U.S., June 18, 2015): Mental Retardation; Habeas Corpus (Supreme Court Cases): In this death penalty habeas case, Brumfield sought to raise a claim of mental retardation under Atkins, but was denied by the lower courts in Louisiana. In this opinion, the Court found the lower courts reached its decision based upon an unreasonable determination of the facts.

Davis, Warden, v. Ayala, No. 13-1428 (U.S., June 18, 2015): Peremptory Challenges; Habeas Corpus (Supreme Court Cases; Harmless Error): In this capital case out of California, the trial judge handled several Batson challenges in a way that excluded the defense from hearing the reasons proffered by the State. The lower court held that this was error, but harmless; the Ninth Circuit reversed, finding reversible error. In this opinion, the Court reversed, holding that the error, if any, was harmless.

Ohio v. Clark, No. 13-1352 (U.S., June 18, 2015): Confrontation: Teachers at a pre-school asked a 3-year-old boy about marks on his body, and the boy identified Clark as his abuser. The child’s statements were introduced at trial, but the boy did not testify. In this opinion, the Court held that the introduction of the statements did not violate Crawford because they were not “testimonial” in nature, meaning that they were elicited for the purpose of stopping a threat of abuse, not in gathering evidence against Clark.

McFadden v. United States, No. 14-378 (U.S., June 18, 2015): Scienter: McFadden was convicted of selling “bath salts” which contained a chemical composition similar to a controlled dangerous substance, i.e., an analogue. At trial, McFadden requested a jury instruction that he must know that the substance was an analogue; however, this was rejected in favor of a general intent instruction that McFadden need only to have intended to sell the substance and that it be consumed by humans. In this opinion, the Court reversed, holding that the Government must prove that the defendant knew he was dealing with a substance regulated under the Controlled Substances Act or Analogue Act.




People v. David Rivera, No. 20 (N.Y. Ct. App., May 5, 2015): Privileges (Physician-Patient): Rivera sought treatment from a psychiatrist, to whom he admitted sexually abusing an 11-year-old relative. The psychiatrist notified authorities and testified at River’s subsequent criminal trial to the admissions made by Rivera. In this opinion, the Court reversed, holding that this violated the physician-patient privilege.

Stephen D. Comstock v. Stefanie Humphreys, Nevada Attorney General, No. 14-15311 (9th Cir., May 12, 2015): Prosecutorial Misconduct (Brady Cases): Comstock was convicted of possessing stolen property—a ring owned by Randy Street commemorating his national wrestling championship. Comstock argued that he found the ring outside of Street’s apartment where Street had likely lost it. The jury rejected this defense. However, Street had actually told police and prosecutors that he may have lost the ring as Comstock claimed. None of this was reported to the defense, so the Court found a Brady violation.

United States v. Richard Carl Brown, No. 13-10354 (9th Cir., May 13, 2015): Counsel of Choice: In this child porn case, Brown sought to fire his retained counsel and be appointed a public defender. The trial court denied this request, and Brown was found guilty. The panel reversed on the basis of mis-application of circuit precedent about this situation. NOTE: The rule is lax in the Ninth Circuit, but I do not know if this is the national standard or a quirky west coast rule.




ADAM BANNER & NATALIE CHRISTIE, OKC, won a not guilty verdict in Oklahoma County for a client charged with computer crimes. The State apparently had a confession as well as testimony from corporate counsel from Love’s Stores, but the jury was out less than 30 minutes! Nice work, Adam and Natalie!

ELLIOTT CRAWFORD, KEEGAN HARROZ, and DAVID BEDFORD, OKC, won a not guilty verdict in federal court (W.D. Okla.) recently in a drug case. The jury was out three hours, and the Government’s case against the client was weak, particularly since most of the objectionable contraband was found on a co-defendant. Nice work, Elliott, Keegan, and David!

BRANSFORD SHOEMAKE, Pawhuska, got a perjury case “tossed, hard” at preliminary hearing where District Attorney Rex Duncan charged a candidate for Cleveland City Council with perjury for claiming to have never been convicted of a felony (he had a deferred years ago). Good job, Bransford!




ATTORNEY SHOOTS CLIENT: Oklahoma City attorney Jay Silvernail shot and killed his client over the weekend, although the details are a little sketchy at this point.

HEAD SHOPS: Law enforcement, with seemingly nothing better to do, are apparently getting aggressive in investigating local head shops that sell pipes and other “drug paraphernalia.”

INMATE HOUSING: Released-inmate housing gets a boost in Enid.

MAYORS OBJECT: The mayors of Tulsa, Sand Springs, and Owasso have expressed concern over improper jail funding at the Tulsa Jail.

JUDGE vs. DA: The dispute between the District Attorney’s Office in McAlester and Special Judge Matthew Sheets is headed to court in the form of a motion by the District Attorney for Judge Sheets to recuse himself in all cases in which the D.A. is involved (which would be all of them in criminal cases). The hearing on the motion is set for July 6, 2015, at 9:00 a.m. and it should be entertaining.

INTERNAL INVESTIGATION: The Owasso Police Department is conducting an internal investigation into whether excessive force was used against the driver of a vehicle who led police on a chase.

OFFICERS CLEARED: District Attorney David Prater has cleared two Edmond police officers who used deadly force in two separate incidents recently, both of which appear to be suicide-by-cop.

TULSA COUNTY: A group circulating a petition to empanel a grand jury to investigate Tulsa County Sheriff Stanley Glanz is alleging harassment.

UNDERSHERIFFS ARRESTED: Two Undersheriffs in Delaware and Craig Counties were arrested and charged with burglarizing the home of the estranged wife of one of the Undersheriffs; also, a different officer in Craig County has been charged with larceny of livestock.

HUNTER NAMED: Attorney General Scott Pruitt has named Mike Hunter as First Assistant Attorney General.

D.A. REX DUNCAN vs. EVERYONE: District Attorney Rex Duncan (Pawnee County) is battling everyone, including Associate District Judge Patrick Pickerill over drug court orders; a recusal in the case of a former officer accused, but not charged of domestic abuse; defense lawyers (Bransford Shoemake) in a perjury case that was “tossed, hard” after PH for lack of evidence; and a former assistant fire chief in Cleveland who was charged with 29 counts of falsely performing a notarial act for which he accepted a two-year deferred, but racked up over $10,000.00 in court costs alone for all those misdemeanor counts.

MAYOR vs. CITIZENS: The only police officer in the city of Verden cannot respond to calls after 10:00 p.m., so efforts are underway to remove the mayor.

JUVENILE DEVELOPMENTS: Attorney Kathryn A. LaFortune notes the changes in the law regarding competency determinations in juvenile cases.

FUGUITIVES: Interesting article noting some of the 99 persons who have escaped from DOC.



PARKING SPACE BRAWL: Two men were booked into jail after fighting each other over a parking space, as you do; also, this defendant in Garvin County took the stand in his post-conviction hearing and decided to show everyone a razor blade that secreted in a bandage on his hand “in case things didn’t go his way.” Things did not go his way; meanwhile in Shawnee, meth heads have created a crime wave that was intercepted when one of them stole a cell phone—and then proceeded to call his accomplices; a prankster in Rogers County has caught the attention of the FBI for making more than 40 prank phone calls to 911, often in the form of free-style rap; and an Oklahoma City man claiming to be a celebrity chef has been indicted in Philadelphia for fraud.




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. 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.

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