James v. State, 2007 OK CR 1 (January 8, 2007):  "Bad Acts":  Starting out the new year with a bang, the Court jettisoned the "greater latitude rule" which had been used by the State to introduce more easily "other crimes" evidence in child sexual abuse cases.  James was convicted by jury in Tulsa of Rape by Instrumentation and Lewd Molestation.  He was sentenced to 35 years and 20 years, respectively.  The opinion does not go into great detail concerning the nature of the "other crimes" introduced in this case, other than to note that they were thirteen years old, never resulted in a filed charge, and there were "credibility issues."  The Court held that the "greater latitude rule" was unworkable and overruled Myers v. State, 2000 OK CR 25, 17 P.3d 1021, holding that the introduction of "other crimes" evidence in sex cases must be governed by the usual rules of evidence under 12 O.S. sec. 2404(B) and the prior cases of the Court.

Dustin Lee McCormack v. State, No. F-2005-323 (Okl.Cr., January 11, 2007) (unpublished):  Polygraphs:  McCormack was convicted by a jury in Washington County of one count of Forcible Oral Sodomy (he was acquitted on Indecent Exposure) and sentenced to 18 months.  One of the issues raised by McCormack was that the trial judge erred in excluding polygraph evidence at sentencing.  The Court reaffirmed the general rule in Oklahoma that polygraph tests are presumptively unreliable and therefore not admissible for any purpose.  Significantly, the Court noted that McCormack failed to offer any evidence to rebut the presumed unreliability of the polygraph.  This is an interesting statement that may open the door to such evidence if the defendant can show polygraphs are reliable.

Rule 7, Rules Governing Disciplinary Proceedings, 2007 OK 1:  This is the newest offering from the Oklahoma Supreme Court for 2007 and it deals with an amendment to the Rules Governing Disciplinary Proceedings to include deferred sentences.  Thus, even a deferred can get you in trouble with the Bar if it is a crime that would otherwise be punishable in some way.   


Tenth Circuit

Snow v. Sirmons, No. 02-7027 (10th Cir., January 8, 2007) (Published):  Snow is a former Oklahoma death-row inmate (his death sentence was vacated on a mental retardation claim) who advanced IAC and Brady claims in this federal habeas case.  His claims are denied by the panel in this very lengthy and fact-laden opinion.

United States v. Townley, No. 05-8066 (10th Cir., January 10, 2007) (Published):  Federal drug conspiracy case affirmed over claims involving 1) confrontation under Crawford; 2) sentence enhancement by judge-found facts; and 3) criminal history calculation.

United States v. Pursley, No. 05-1428 (10th Cir., January 11, 2007) (Published):  Pursley was an enterprising state prisoner in Colorado who apparently concocted a scheme to get tax refunds for him and his fellow prisoners.  Unfortunately, they did not exactly qualify for the tax money and were subsequently indicted for tax fraud.  His conviction is affirmed over several claims including:  1) interstate detainers; 2) severance; 3) sufficiency of the evidence; and 4) double jeopardy for sentencing for conspiracy and aiding and abetting.

United States v. Fonseca, No. 05-1407 (10th Cir., January 11, 2007) (Published):  Fonseca plead guilty to a federal drug count.  He objected to the District Court's failure to depart downward on the basis that Fonseca, as a middle man, could not have foreseen the high purity of the drugs.  On appeal, Fonseca claimed that the District Court failed to recognize that it had discretion to depart downward.  HELD:  the District Court is presumed to recognize its discretion to depart downward unless it unambiguously states it lacks discretion to grant the departure; since there was no such unambiguous statement in this case, the appeal is dismissed.


United States Supreme Court

United States v. Resendiz-Ponce, No. 05-998 (U.S., January 9, 2007):  Illegal re-entry case where the Government failed to allege an overt act in the Indictment.  HELD:  the Indictment was not defective.  NOTE:  odd confluence of votes in this case where Justice Stevens authored the majority opinion and the lone dissenter was Justice Scalia.  In his dissent, Justice Scalia stated that he would hold the Indictment was not only deficient, but also that a deficient Indictment is structural error.

Burton v. Stewart, No. 05-9222 (U.S., January 9, 2007):  Odd case where the Court granted certiorari to determine whether Blakely was retroactive; but since Burton, a state prisoner seeking federal habeas relief, failed to seek and obtain authorization to file a second habeas petition, the District Court was divested of jurisdiction in the case.


Other Cases of Note

None cited this week.


Victories

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



CHRISTINE D. LITTLE, Tulsa, won the appeal in the James case, summarized above, and delivers the defense bar its first appellate victory of the new year.  Very nice, Christine!



Hearsay

HERE is an interesting web site dealing with court cases and other topical issues for sex offenders.

SEXUALLY DANGEROUS PERSONS:  The federal BOP , as part of the Adam Walsh Act, may now "certify" inmates as "sexually dangerous persons" (SDP).  Certification can occur prior to sentencing, or at any time after the commencement of probation or supervised release and prior to the completion of the sentence.  HERE are the relevant portions of the new law and HERE is the statement of Andres E. Hernandez, Director of the Sex Offender Treatment Program at FCI Butner, N.C., to Congress.



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