McHam v. State, 2005 OK CR 28 (Okl.Cr., December 14, 2005):  Interesting opinion dealing with several issues, but most significantly clarifying the law on when lesser-included instructions may be given over the objection of the accused.  McHam was charged with Murder I.  At trial he defended on the basis of self-defense.  At the conclusion of the evidence the State did not request a lesser charge instruction, but the trial court sua sponte gave a heat-of-passion manslaughter instruction over McHam's objection.  The jury found him guilty of the lesser charge and sentenced him to 20 years.  On appeal he argued that his strategy and intention was to go all-or-nothing and the trial court erred in giving the instruction.  HELD:  it was not error for the trial court to give the lesser instruction over the objection of the accused.  The Court stated that the accused may proceed on an all-or-nothing basis, but the trial court is not bound by such a decision.  PROCEDURAL RULE:  In addition, the Court reiterated the rule that in order to challenge the sufficiency of the evidence at trial, the accused must file a motion to quash the Information for insufficient evidence.  NOTE:  this opinion was 3-2, with Judge Lewis and Chapel dissenting.  ALSO NOTE:  in paragraph 11 of the opinion is one of the worst examples of ending a sentence in a preposition that I have ever seen.

McCubbin v. State, No. C-2004-1108 (Okl.Cr., December 9, 2005) (unpublished):  Guilty plea winner where the Court allowed McCubbin a second chance at a hearing to withdraw his plea in what has become a fairly common fact pattern:  client enters the plea, is sentenced, gets buyer's remorse, then gets cross-ways with the trial lawyer.  The Court held that McCubbin was denied his Sixth Amendment right to conflict-free counsel during the hearing to withdraw his plea when he and counsel made divergent statements concerning McCubbin's waiver of his right to jury trial. 


Tenth Circuit

United States v. Cole, No. 04-3402 (10th Cir., December 12, 2005) (unpublished):  Winner!  Instructive case where the Circuit analyzes whether to enforce an appeal waiver provision in a plea agreement and held that the waiver will not be enforced under the facts of the case.

United States v. Alvarado, No. 05-4064 (10th Cir., December 13, 2005) (published):  Guilty plea case where Alvarado reserved a challenge to his motion to suppress stemming from a traffic stop where the sole basis for the stop was a single instance of crossing over the right "fog line" on a Utah highway in violation of a Utah statute that mandates that motorists must drive as nearly as practical inside a single lane.  The opinion does not ever say what a "fog line" is, but it appears to be simply the right line of the roadway (I have never heard it referred to as a fog line).  Terrible decision affirming the District Court's denial of the motion to suppress.  Alvarado was unable to point to any weather or other impediment that would have caused his vehicle to cross the line and argued simply that it is impossible for motorists to remain wholly inside the lines every inch of the way on long interstate road trips.  The Circuit did not buy it.  Ugh.

United States v. Deberry, No. 04-1532 (10th Cir., December 13, 2005) (published):  Not a winner, but excellent discussion of claims of selective prosecution in federal court.  The District Court below ordered discovery on the claim and the Government refused to comply(!)  The District Court dismissed the indictment with prejudice, but the Circuit reversed, holding that the two defendants in this case did not produce enough evidence to meet their burden under the legal test for such claims.


United States Supreme Court

Barry Albert Award

The Oklahoma County Criminal Defense Lawyers Association met last Thursday and awarded that organization's highest award for excellence in the practice of criminal defense, The Barry Albert Award.  The nominees were Scott Adams, John Coyle, and Josh Welch.  All three nominees were very well deserving of the honor, but the Award went to John Coyle.  Congratulations, Johnny!  You deserve it.

The Award is determined by a vote of the membership and we were given the three names prior to the announcement of the Award.  Johnny has had recent acquittals in federal court and state court, and also the huge suppression win of the four hundred pounds of marijuana in Lincoln County (as far as we know from the local lawyers in Chandler, the only time Judge Vasser has ever granted a suppression motion that was case determinative).

Scott has had a lot of success this year, too, including two(!) murder case acquittals, one shaken baby and the other one very recently down in Lawton involving the jail-house snitches.

Josh defended a father and son duo in McAlester recently on lewd acts charges.  When Josh got involved in the cases, the son had already plead to prison time and the father was facing hefty prison time and had confessed both to the police Chief and in writing(!)  When Josh was finished, the father had been acquitted on all charges and the son had withdrawn his plea and re-worked his deal to a deferred sentence. 

Lots of sharp lawyering among these three.  Congrats to all.


Victories

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




TOMMY ADLER, Okla. Co. Pub. Def., has been on a roll lately, this time obtaining a Not Guilty in an Assault w/Intent to Kill case.  I spoke to Tommy at the Oklahoma County Criminal Defense Lawyers Meeting last Thursday and he mentioned that the case involved a homeowner who was attacked in his home.  Fairly gruesome facts in that apparently client apparenlty popped this chap's eye out of its socket during the fight.  Good self-defense case and Tommy said the facts were the best he's ever seen.  The DA was Mike Fisher and Tommy said Mike addressed the jury in the closing and told them he could live with a NG verdict(!)  Tommy was surprised to hear that.  I have never heard a DA say something like that, but he apparently realized the facts were bad, too.  I will have to check, but I think this is three in a row for Mr. Adler(!!!)  Outstanding job, Tommy!

KIMBERLY D. HEINZE, OIDS, works the appellate ropes in the McCubbin case, above, giving Mr. McCubbin an opportunity to withdraw his plea and seek some justice in Judge Caswell's courtroom!  Good job, Kim!

CHERYL RAMSEY, Stillwater, put the State to the test for seven days and at the end of it all she and her client put on their coats and went home.  Oh, did I mention client was charged with Murder in the First Degree (no Bill)?  Payne County, Judge Worthington.  Client 63-years-old and had not so much as a traffic ticket since 1962(!)  The deceased, 33, was a tenant of client's (landlord) property and had been in prison before and was a general scumbag which Judge Worthington allowed Cheryl to illustrate accurately for the jury.  The general facts were that client went to property to collect the rent and deceased ran up to him in a menacing way with a shiny object in his pocket and put his hands in front of him as if he were aiming a gun.  Client took the 30-06 from his pickup (did not even think it was loaded) and fired one shot from the hip and that's all she wrote.  The deceased had a BAC of .09 and the shiny object was a beer can that was in his front pocket.  The cops never photographed the beer can because it was not important.  Cheryl had two experts testify to reconstruct the scene with a critical point being that the deceased had two wounds, one through thumb and the fatal one in the chest that, when aligned, showed that he had his hands in front of him (acting like he had a gun pointing at client) and the bullet went through his hands and into the body.  Client took the stand in his own defense; he was retired iron worker and the former Stillwater Police Chief testified as a character witness(!)  The defense was a little bit self-defense and a little bit accident.  Seven days of trial and the jury was out for eight hours.  The vote was 11-1 in favor of acquittal after two hours and the holdout finally caved.  Good facts to work with, but until that jury says NG you never know folks!  Cheryl, along with Royce Hobbs, are the best I know in Stillwater.  Super job, Cheryl!


Hearsay

DOES CAPITAL PUNISHMENT DETER?  HERE is an interesting paper that suggests that it does (or at least cites to some studies that suggest that it does).  I have not read through it carefully and have not reviewed critically the methodology used in the studies but such a position challenges what I think is a widely accepted view that capital punishment does not deter others from committing capital murder.

DOMESTIC SURVEILLANCE:  The President acknowledged, after the story was leaked by the New York Times, that he has authorized the National Security Agency (NSA) to intercept international communications by American citizens (or at least communications originating here in the US).  It sounds like he is referring to applications to the Foreign Intelligence Surveillance Court, but the article is unclear.  The President was miffed that the highly classified "program" has been exposed to the public.  I would be shocked if such activities have not been going on for years, even before 9.11, but it is unclear whether the President is talking about run-of-the-mill interceptions of domestic communications headed overseas or something more sinister.

CORRUPTION IN LAWTON:  Eight persons have been sentenced in federal court for what is apparently a large scale scam involving "ghost employees" in the Lawton School District.  Noteworthy because two of the persons sentenced to federal prison include a former sheriff's deputy and a former Lawton police officer.

FEWER DEATH CASES IN PENNSYLVANIA:  The number of death penalty cases have decreased in Pennsylvania.  This article offers some reasons for this trend.

TOOKIE GOT THE NEEDLE:  Gov. Arnold Schwarzenneger refused to grant clemency to Tookie Williams and the execution took place at San Quentin last week.  This article is an eyewitness account by a reporter with ABC News.


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