Not a whole lot of good news to report, but I did find two cases worth noting:

Ray v. State, No. F-2003-991 (May 6, 2005) (Unpublished):  Manufacturing AFCF conviction affirmed and Ray gets the life sentence, but the Court was generous and vacated the $50,000 fine on the basis that the State did not clearly elect whether it was proceeding under the general enhancement statute or the enhancement under title 63.

Satterlee v. State, No. F-2004-16 (April 29, 2005) (Unpublished):  Multiple rape and sodomy convictions affirmed, but case notable for three reasons.  First, the Court stated that a trial court may instruct the jury pursuant to the specific provisions of 21 O.S. 13.1 that the defendant must serve at least 85% of his sentence before becoming eligible for parole(!)  Note that the Court decided recently in March of this year in the Elton case that it is not error for a trial court to refuse such an instruction; but here is good language from the Court stating that giving such an instruction is not error.  Second, the dissent from Judge Chapel is particularly powerful.  It involves the introduction at trial of a particularly graphic and nasty home-made porn tape depicting Satterlee and his wife.  The problem is that Satterlee was accused of crimes against his son, not his wife, and the sex tape is just an hour long depiction of consensual sex acts with his wife (no crimes).  The tape evidence sounds incredibly prejudicial and only marginally probative, if at all.  Third, new-Judge Johnson concurs in the opinion by Lumpkin.  Chapel makes a compelling case in dissent but was apparently unable to persuade her to join in.   

Tenth Circuit

Lots of action from the Circuit last week, but most of it bad:

United States v. Ambort, No. 03-4243 (10^th Cir., May 3, 2005) (Published):  Tax fraud case affirmed over "good faith" defense issue and no plain error found under Booker.

United States v. Porter, No. 04-4009 (10^th Cir., May 3, 2005) (Published):  Guilty plea in drug case affirmed over claims of denial of substitution of counsel and Booker; plea waiver of appellate rights enforced.

United States v. Serrano, No. 04-2090 (10^th Cir., May 3, 2005) (Published):  Felon in possession of firearm case affirmed over several imaginative claims, such as government interference in the right to present a defense (by advising defense witnesses of their rights and they subsequently get lawyered up and refuse to testify) and Booker (no plain error found).

United States v. Sierra-Castillo, No. 03-2123 (10^th Cir., May 3, 2005) (Published):  Illegal re-entry sentence affirmed over Booker plain error claim.

United States v. Tedford, No. 04-7079 (10^th Cir., May 3, 2005) (Published):  Appeal and affirmation of federal probation revocation.  The Circuit holds that Booker does not apply to these (in accord with the Eighth Circuit).

United States v. Windrix, No. 04-5016 (10^th Cir., May 3, 2005) (Published): Conspiracy to manufacture meth convictions affirmed over several search and seizure and other claims, but remanded pursuant to preserved Booker error.  The opinion contains a particularly nasty ruling from the Circuit regarding a traffic stop.  Drug dog alerts.  Cops arrest Windrix on the spot and take him to jail for four hours while they obtain a warrant.  Circuit held that even if the four hour detention was unlawful, the evidence was not uncovered by exploitation of the arrest, but rather by the PC of the drug dog; so, no suppression under Wong Sun.  Ghastly.

United States v. Payton, No. 04-8954 (10^th Cir., May 4, 2005) (Published):  Drug conspiracy convictions affirmed and no Booker plain error.

United States v. Serrano-Dominguez, No. 04-1398 (10^th Cir., May 4, 2005) (Published):  Illegal re-entry into the U.S. conviction affirmed on Booker claim.  Notable because the District Court entered an alternative sentence (the same) free of Booker error and the Circuit therefore did not have to guess if there was a probability of a different sentence; therefore, no remand.

United States v. Souser, No. 04-1101 (10^th Cir., May 4, 2005) (Published):  Winner!!!  Guilty plea case on one count of making false statement to the government.  Issue is whether Souser must, as a condition of her probation, inform her employer of her criminal history.  In the district of Colorado it is an unwritten policy that all probationers must inform their employers of the criminal history.  Not anymore.  The Circuit quashed the blanket policy and mandated that such a condition of probation (employer notification) can be imposed only by applying strict findings under the Guidelines.

United States Supreme Court

No new opinions. 



Other Cases of Note

United States v. Pugh, No. 03-3241 (6^th Cir., May 3, 2005): Winner!!!  Armed bank robbery conviction reversed on confrontation/cross-examination grounds when out-of-court statement identifying the defendant was introduced at trial.  Good application of Crawford.  Note:  the Circuit noted carefully that Crawford proscribes only testimonial statements used as hearsay, i.e., for the truth of the matter asserted; it does not bar the general hearsay exceptions.   

United States v. Jaimes-Jaimes, No. 03-2871 (7^th Cir., May 4, 2005):  Winner!!!  Excellent discussion of principles regarding waiver of issues on appeal (meaning you get no appeal) as opposed to forfeiture (which allows for plain error review); but notable for holding that the state crime of "discharging a firearm into a vehicle or building" is not a "crime of violence" for purposes of federal enhancements under the Guidelines because the elements of the crime must require the use or attempted use of force against a person.  Very important to know this if you work in federal court. 

United States v. Weatherspoon, No. 03-10551 (9^th Cir., May 6, 2005):  Winner!!!  Single count of felon in possession of firearm reversed on basis of prosecutorial misconduct consisting of vouching and invoking societal alarm.  Fractured opinion with result that would probably occur only in the Ninth Circuit, but still good discussion of the issue. 

Case Note:  Atkins/Ford Issues in Capital Habeas

The Fourth Circuit issued an opinion on April 28, 2005, discussing in-depth a capital habeas petitioner's claims of insanity under Ford and mental retardation under Atkins.  The case, Walton v. Johnson, is notable because the panel, in a split decision, remanded for an evidentiary hearing on these issues despite the fact that Walton's tested IQ scores were 90 and 77 at the time of his 18th birthday.  Walton argued that statistical margin of error and the "Flynn Effect" may skew IQ results.  From the opinion: 

"Regarding the second test, Walton argues...that when adjusted for the "Flynn Effect" and the standard margin of error, his score of 77 actually supports his claim of mental retardation. Pursuant to the Flynn Effect, according to Walton, "as the age of an intelligence test moves farther from the date on which it is normed, the mean score of the population as a whole on that test increases." Reply Brief at 25. And, adjusted for the Flynn Effect, he contends, his IQ score of 77 "indicates a full-scale score of 74." Brief of Petitioner at 61. Ordinarily, of course, a score of 74 would not put Walton within the legal range of mental retardation in Virginia. But, like Walker, he further maintains that, after accounting for the standard five-point margin of error, his score of 74 falls within the required range."

The "Flynn Effect" sounds helpful to MR clients.

Rocky Mountain High

I argued a capital habeas case before a Tenth Circuit panel in Denver on Tuesday, May 3, 2005.  Immediately after my argument, Robert Jackson presented the case for another capital habeas client, with Steve Presson assisting him at counsel table.  The panel consisted of judges Tacha, O'Brien, and Tymkovich.  These proceedings are exceedingly nerve-wracking, at least for me, and since not everyone gets to do them, I thought I would make a quick-and-dirty list of how it goes down in case you find yourself staring up at three black robes.

Hopefully, you will have found the courthouse and checked in with the clerk's office a half hour prior to the argument time and the clerk can direct you to the courtroom (the clerk will have provided detailed instructions in writing way in advance of the argument date).  When you get to the courtroom, another clerk will be there to get things set up and take care of any last-minute problems.  The tables are marked clearly "Appellant" and "Appellee" so you do not have to guess where to sit (facing the bench, the Appellant sits on the right).

You get 15 minutes.  I have asked for more time in the past, and in death cases they sometimes give more time, but the most I have ever gotten was 20 minutes.  At the podium, there is an electronic timer at eye-level set at 15 minutes and it counts down as you argue; there is also a clock on the reverse side so the judges can see the time also.

The Judges file in, the clerk calls the court to order, and the presiding judge, sitting in the center, will call the case.  It happens pretty fast, so if you are first up, be ready; if you are not first up then you can watch and see how things go.  On Tuesday, I was first up.

You just walk up to the podium, say, "May it please the court," introduce yourself, and start on your spiel.  The clock will be counting down from the moment you open your mouth and from my experience, I would be surprised if you can talk for more than two minutes without being interrupted by a question from the bench, with one minute more likely.  In other words, do not rehearse a speech that lasts 15 minutes--you will most likely not be able to finish it.

It is this dynamic that makes the oral argument both interesting but also stressful:  you will be put on the spot by the judges asking you difficult questions about your case.  For this reason, memorizing a speech will not be useful to you.  Frankly, neither will notes.  If you have to break your presentation and look at notes or take time to look through your brief I think you will just waste time, most likely not find what you need, and irritate the judges.  At that point, you either know your case or you don't and I would just tell the judge if you don't recall some detail and move on.

I prepare with 3x5 note cards that I use to outline the issues and facts and I take the cards up to the podium with me, but I have never actually stopped talking and looked at them.  I saw Michael Tigar do this (prepare with the note cards) during pre-trial proceedings in the McVeigh trial and I like it.  He didn't look at his note cards either when delivering an agument, as I recall.

The time goes by much faster than you imagine.  I mean it zooms.  You will not be able to discuss but a fraction of the legal and factual concepts of your case most likely; and you will be steered away from things you want to talk about to issues the judges want to talk about.

When time gets short, if you are the Appellant, you can reserve some time for rebuttal.  Always do this.  This last argument I had was the first one that I did not reserve time and I am kicking myself for it.  With two minutes left I got involved in a question from Judge Tymkovich and let my time run out answering.  I should have just said I reserve 30 seconds for rebuttal and asked him if he wanted me to continue with the answer.

When you sit down, I am certain that your adversary will say something to the court that needs to be corrected or rebutted.  Use your time sitting and listening to your opponent to make short, pithy replies to the lies...okay, argument...he/she makes so you can respond succinctly with your rebuttal time.   

When your time is up, you collect your stuff off the table, the court will announce that the case is submitted and will call the next case.  The lawyers for the argument after yours will be walking up to take your place.  Get your stuff gathered up quickly, shake hands with your opponent, and get the heck out of Dodge.

Denver is a very scenic and interesting city.  If you must go there anyway for the argument, I would suggest spending an extra day or two in the city with your spouse/significant other.  Lots of good restaurants and things to do there.

Victories

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

GARVIN ISAACS, Oklahoma City, won an acquittal in a well-publicized jury trial on Wednesday, May 4, 2005, in Sooner country, Norman, Oklahoma, while representing a Nebraska football player charged with aggravated assault and battery on an OU "RUF/NEK" that occurred during pre-game drills.  The jury deliberated just under three hours and the client did not take the stand.  Garvin argued that the injuries were inflicted accidentally by another player and that the State's witnesses testified on the basis of "suggestion and guesswork."  Another great victory in a hostile environment.

BRIAN HERMANSON, Ponca City, got some justice in Stillwater on Friday, April 29, 2005.  Client arrested when cop ran his tag and it came back reported stolen (the tag).  At preliminary hearing the State put on the actual owner of the tag.  Here is where it gets interesting.  Brian had some evidence that client was actually a victim of stolen tag also and was driving a truck owned by his brother's company and did not have to pay for his tag at all (no motive to steal one).  The brother's testimony was key, but how to get it in at PH when magistrate shall terminate it upon finding of PC?  Just do it, brother.  Brian made an offer of proof first, convincing the judge that his evidence was critical to the PC determination and the judge allowed the brother to testify and ended up sustaining the demurrer with no announcement by the State of appeal.  Lesson:  don't assume you can't present evidence at the PH and if you have such evidence make the judge understand that it is important to the question of PC.  Terrific work.

Hearsay

EXECUTION:  The State plans to execute death row inmate George James Miller, Jr., this Thursday.  Miller was convicted of stabbing a motel clerk in Oklahoma City and pouring acid onto the face and down the throat of the clerk.  The clerk apparently wrote the word "Jay" in his own blood before he died and the State submitted evidence that the clerk knew Miller by that name.  Miller is represented by Robert Jackson, Norman.

LIGHTER SIDE:  For those of you outside the OKC metro, we have a solid, independent weekly news mag called The Oklahoma Gazette.  It contains, among other things, a section every week called News of the Weird and in the most recent issue (May 4, 2005), I found this gem:  Career criminal George Kaminski, 53, told a reporter in Pennsylvania that he was concerned over his current prison assignment because of the lack of clover.  He has apparently collected, over a ten year period, 72,927 four-leaf clovers at various prisons to which he has been assigned.  He is reportedly aghast to learn that a man in Alaska claims to have acquired 76,000 and has applied to Guiness for recognition as a record holder.  Kaminski lamented, "The guy's got the whole world.  I have two or three acres."  It's good to have goals.



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