Lynn v. State, No. F-2003-1136 (Okl.Cr., March 21, 2005) (Unpublished):  No relief for Lynn, but COCA recognizes that a convicted felon may assert a justification defense to a charge of felonious possession of a firearm and that felonious possession is not a strict liability crime.  The court cites to the prior unpublished opinion in this case for that proposition and I know of no published case where the court has recognized that a felon may use such a defense.  Nice to know that it is available (the trial court found that Lynn placed himself in the position to have to use the gun so he could not use the defense). 


Tenth Circuit

United States v. Musa, No. 03-3343 (10th Cir., March 21, 2005) (Published):  Bad case reversing a suppression order by the District Court where cops did not have a no-knock warrant, but did not knock anyway, serving the warrant via an eight man search team at 1:22 a.m. by using a battering ram on the front door.  Majority held that cops had sufficient reason for doing it that way over spirited dissent by Judge Henry.

Seegars v. Ward, No. 04-6335 (10th Cir., March 23, 2005) (Unpublished):  Interesting discussion of Oklahoma's parole eligibility calculations.  The repealed sentencing matrix is still used for this purpose apparently.  No relief for Seegars on his ex post facto claim, but worth a look.  

United States v. Moore, No. 04-8078 (10th Cir., March 23, 2005) (Published):  Moore was involved in a domestic dispute which necessitated the police being in his house.  Unfortunately for Moore, the police discovered firearms.  Even more unfortunately for Moore, he had more than three violent felony convictions.  The circuit held that the fact of the priors and whether they are "violent" under the Armed Career Criminal Act do not need to be plead in the Indictment and found by a jury beyond a reasonable doubt.  The panel applied circuit precedent, but recognized the tension between the circuit precedent and the Supreme Court's recent decisions in Booker and Shepard, particularly the concurring opinion of Justice Thomas in Shepard in which he questions the continued validity of the Supreme Court case relied upon by the panel, Almendarez-Torres v. United States, 523 U.S. 224 (1998).  It appears to me that this case is a cert. candidate and the ruling is no longer valid in light of Shepard; but, the panel was unwilling to declare it so without further guidance from the Supreme Court. 


United States Supreme Court

Bell v. Quintero, No 04-386 (U.S., March 21, 2005) (Thomas, J., opinion dissenting from the denial of certiorari):  The Supreme Court did Quintero a favor by denying Warden Bell's cert. petition to vacate the grant of habeas relief.  Justice Thomas, joined by Chief Justice Rehnquist, does not like this result and seems to be irritated by the spate of habeas grants by the Sixth Circuit.  Interesting peek into the jurisprudential mindset of these two Justices, as not even Scalia joins in.

Brown v. Payton, No. 03-1039 (U.S., March 22, 2005):  Complicated capital habeas case where the Supreme Court smacks the Ninth Circuit (again) and holds that the circuit erred in applying the AEDPA in the case, i.e., not enough deference given to the California Supreme Court in construing a jury instruction issue in a capital case (the instruction and argument by the prosecutor may have lead the jury to believe that it could not consider mitigating evidence of religious conversion and rehabilitation that occurred after the crime).

Muehler v. Mena, No. 03-1423 (U.S., March 22, 2005):  Civil rights case where Court held that police may detain in handcuffs the occupants of the premises when executing a search warrant.  Incremental extension of existing precedent; but also incremental erosion of civil liberties.


Other Cases of Note

United States v. Smith, No. 03-13639 (11th Cir., March 18, 2005) (Published):  Winner!!!  Child porn case reversed on Commerce Clause grounds even when not raised below--circuit finds plain error(!)  Smith took photos of teen girl and kept them.  Government tried to establish Commerce Clause jurisdiction through testimony of a VP for Eckerd's Drugs that some of the photos were printed on Kodak paper that Eckerd's received from Rocheser, NY, and processed by equipment that it received from California.  The circuit held this was too tenuous to invoke federal jurisdiction and applied the holding of United States v. Maxwell, 386 F.3d 1042 (11th Cir. 2004) (purely intrastate possession of child porn does not implicate Commerce Clause). 

United States v. Brown, No. 04-3137-cr (2nd Cir., March 22, 2005):  Winner!!!  District Court abused discretion in imposing special condition of supervised release in drug case that Brown could not incur any form of debt without prior approval of the Probation Office.  Good discussion of the law and parameters of special conditions in federal court.

United States v. Brown, No. 04-4353 (4th Cir., March 25, 2005) (Published):  Winner!!!  Suppression Order affirmed and good discussion of Terry stops.  Cops received anonymous phone call that a "short, black male with glasses was carrying a firearm" outside an apartment complex.  Cops arrive at the complex and see Brown, who generally comports with the description, and confront him; one officer has a K-9.  Cops ask, "Excuse me, can we talk to you a minute?" and tell Brown about the phone call; and ask if Brown would consent to a pat down.  He refuses.  Cops testify that Brown had "bloodshot and glassy eyes," there was an odor of alcoholic beverage on his breath, and he admitted that he had been drinking.  Cop testified that she intended to arrest Brown for public intox but a fight occurred in a nearby apartment before she could do so.  Brown was ordered to place his hands on a car hood and when he bent over to do so the gun in his pocket was exposed.  The District Court held that encounter was not consensual (mere submission to authority!) and there was no PC to arrest for public intox because under Virginia law there must be some physical impairment noticed by cops (bloodshot eyes and odor of alcohol not enough!). 

United States v. Moncivais, No. 02-6457 (6th Cir., March 24, 2005) (Recommended for Publication):  Winner!!!  Plain error found on Booker claim where sentence was at the low end of the Guidelines.

Turner v. Bagley, No. 03-3130 (6th Cir., March 21, 2005) (Recommended for Publication):  Winner!!!  Circuit reverses the District Court and grants the habeas petition unconditionally on ineffective assistance of appellate counsel grounds based upon inordinate delay in prosecuting the direct appeal (lawyer no. 5 eventually filed it ten(!) years after conviction).  District Court dismissed for non-exhaustion in state court; and then state court issued an opinion denying relief (after the dismissal).  The circuit reversed, holding that exhaustion is excused because of the delay and the state court decision decided after the habeas petition came too late.  Note:  Turner was actually out on parole when the circuit decided the case. 

Bates v. Bell, No. 02-6436 (6th Cir., March 23, 2005) (Recommended for Publication):  Winner!!!  Capital case where death penalty vacated because of prejudicial prosecutorial misconduct that violated Due Process.  Reminiscent of a Bob Macy closing argument, the prosecutors told the jury that, by allowing Bates to live, they would "become an accomplice" to the murder committed; and that they would have "passively issued a warrant for someone else."    


Case Note:  Composition Bullet Lead Analysis Debunked

New Jersey v. Behn, No. A-2062-03T3 (N.J. App., March 7, 2005) (Unpublished):  This case is very interesting and useful primarily because of the good result and the extensive factual presentation by the appellate court.  The basic issue is whether law enforcement can tie forensically bullet lead from fragments in a homicide victim to a batch of unfired bullets found in the home of a suspect.  The FBI lab concocted some voodoo and claimed that it could.  

The FBI lab's methods have been discredited in other ways I think, but this case is a good primer on the issue, particularly the way the court quotes extensively from affidavits and other evidentiary material.

This issue sticks with me because the FBI presented similar testimony years ago in a murder case in Altus in which I second chaired Bob Wyatt.  The State flew in the FBI lab tech to testify that the bullet fragments found in the deceased were from the same batch as the boxed bullets found in our client's home.  As explained in the Behn case, it was nearly impossible to impeach such testimony because the FBI lab was essentially the only lab that had the data and performed such analysis and they did not share for purposes of peer review. 

The testimony probably did not affect the outcome of our case (client made incriminating statements to several others); but it is disconcerting the way the FBI lab does not allow its methods to be tested and critiqued. 


Victories

"Send lawyers, guns and money, the shit has hit the fan."
  --Warren Zevon, "Lawyers, Guns and Money" (song) (1978)

I have heard of some victories last week, but have been unable to speak to the lawyers who won them.  My general policy is to not post a victory write-up unless I have personally spoken to the lawyer involved and the lawyer has no objection to the write-up or the lawyer has expressed approval for a write-up in some other way, i.e., a friend posts the details on the OCDLA listserv with the lawyer's approval or some such. 

I did post a few early write-ups without talking to the lawyer, e.g., Larry Tedder's victory in Cleveland County that was in the newspaper, but I have reconsidered that and will no longer post victory stories without actually speaking to the lawyer or getting approval in some other way.

So, if any of you  hear of a victory story that needs to be told, or some bit of advocacy that needs to be recognized, please call me or send an e-mail to me so I can contact the lawyer and give him/her the recognition they deserve.  I find out about a lot of them from the OCDLA listserv and from just general office talk since I am right smack in downtown OKC; but a lot of the good victories that happen in rural areas I really have no way knowing about.

I have subscribers in basically all four corners of the State now and more trickle in every day.  Help me keep abreast of the victory stories by contacting me by phone or by e-mail:  jameshankins@ocdw.com; or scroll down to the Submissions section in the fine print below.  Thanks.

 

Hearsay

ARLENE JOHNSON was sworn in on Thursday, March 24, 2005, as the newest member of the Oklahoma Court of Criminal Appeals.

RESTAURANT REVIEW:  I took my wife out this last weekend and we dined at Rococo in Oklahoma City.  It is a newly opened upscale restaurant in a fairly downscale location (2824 N. Penn).  Pricey (expect to drop about a bill+ there) but food extraordinarily good.  I ordered the London broil steak and my wife ordered a Lobster/shrimp/pasta dish, both of which were exceedingly good.  All items are a la carte and add up, but overall well worth it.  

BOBBY FISCHER, the enigmatic American chess champion, has been granted asylum in Iceland and will live there after his release from a Japanese jail where he has been detained for several months at the behest of United States authorities.  In 1992, Fischer played a rematch with Boris Spassky of their famous 1972 World Championship chess match (Fischer won again).  The rematch occurred in Yugoslavia, which, unfortunately for Bobby, was the subject of sanctions by the U.S. and citizens were prohibited from doing business there (Spassky, a French citizen, was unaffected by the sanctions).  Fischer was indicted by a U.S. grand jury and snagged in Japan.  However, it looks like he will be living in Reykjavik rather than being put on trial in the U.S.  HERE is an article about it.  Although Fischer has seemed almost certifiably insane in recent years, I am glad he is not going to end up in federal prison.  Although Fischer provided many brilliant games, the imagination he showed at just thirteen years of age in this game, called "The Game of the Century," is rivaled by few others.  Re-play this game and see if you can fathom moves 11 and 17 (Fischer has the black pieces).  I have read where young Bobby went into the tank and calculated for 45 minutes before making move 11.  Incredible.

ELIE WIESEL will speak at OCU on Wednesday, April 20, 2005 at 8:00 p.m. at the Henry J. Freede Wellness and Activity Center as part of the Oklahoma City University Distinguished Speakers Series.  Mr. Wiesel is a concentration camp survivor who was awarded the Nobel Prize for Peace in 1986.  Admission is FREE.  This is a great thing that OCU does for the public.  I saw Kurt Vonnegut, Jr. when he spoke as part of the series and it was really good.   





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