01.28.08

"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)

Oklahoma

Brown v. State, 2008 OK CR 3 (January 23, 2008): Double Jeopardy/21 O.S. 11: Brown was tried in Oklahoma County in front of now-dethroned judge Susan Caswell on 100 counts of Possession of Obscene Material involving a child under 18. The jury sentenced him to only six months on each count, but her honor thought it was just that each count should be served consecutively. As with almost all of these cases, the child porn was found scattered on various media, including a computer hard drive and several CD-ROM discs. The State argued that the 100 counts were supported by the existence of 88 images and 12 video clips regardless of the number of media storage units on which they were collected. The Court had previously ruled in an unpublished opinion (Merrick v. State, No. F-2005-569) that the statute is worded in such a way that the storage media of the images is the prosecutable unit that applies in these cases. The Court affirmed the rule of Merrick in this case and this time is was published. In Brown's case, the State presented evidence of only nine storage media (the hard drive and 8 CDs); thus, the Court REVERSED counts 10-100 as being in violation of 21 O.S. 11. NOTE: Trial counsel did not raise this issue below but the Court still granted relief.

Matter of the Expungement of the Record of Buechler, 2008 OK CIV APP 1 (Okl.Civ.App., Div. III, January 11, 2008): Expungement: This case deals with the question of whether a person who has been denied an expungement can allege new facts and petition again. The Court answered "yes" under the facts of the case in which Buechler alleged in his first petition that the dismissal of the charges against him within a year would affect his job prospects (the district court denied this petition); but in the second petition he gave examples of how his arrest record has hindered his employment prospects and also affected his ability to purchase firearms. The district court had dismissed this second petition on the basis of res judicata, but the Court of Appeals reversed. NOTE: This opinion distinguished the opinion of the Court of Criminal Appeals in Knight v. State, 2002 OK CR 19.

Tenth Circuit

Jenkins v. Currier, et al., No. 07-6113 (10th Cir., January 23, 2008) (Published): Arrest: This case is not a criminal case per se, but it is an interesting civil rights case brought by a prisoner pursuant to 42 U.S.C. 1983. Jenkins pled guilty in 2003 to two drug counts in Oklahoma state courts, which were ordered to be served concurrently with his then-existing federal sentence. However, in May, 2004, when Jenkins served his federal time, he was erroneously released to the street rather than being transferred to the custody of the state. Oklahoma officials apparently figured out that he was supposed to be serving state time and in February, 2005, Jenkins was arrested and taken into custody without a warrant or any type of hearing at all. He was never taken before a judge or given any sort of opportunity to be heard before simply being taken to LARC for processing. Jenkins filed suit claiming that his Fourth Amendment rights were violated by the way in which he was arrested. The District Court dismissed the complaint and the Circuit panel affirmed, likening his arrest to that of a parolee or escapee. Notably, Jenkins did not allege any other sort of circumstances that would render his arrest unreasonable (e.g., like contesting his identity, intrusion into his home, etc.)

United States v. Mendez, No. 06-3282 (10th Cir., January 24, 2008) (Published): Hearsay: Mendez was convicted of multiple counts involving Firearm/Ammunition Possession as well as Maintaining a Residence for the Purpose of Distributing CDS. These crimes occurred in Wichita, Kansas, and the evidence was obtained via a search warrant and subsequent search of his residence. He gave statements to the police, essentially admitting guilt. Mendez raised three issues on appeal and the Circuit denied all three and AFFIRMED. Mendez argued first that the Government relied upon "crude stacking of inferences" to prove possession of two shotguns and that he was an illegal alien; second, that his Confrontation Clause rights were violated by the introduction of hearsay (the results of the ICE database check; a drug ledger found inside the residence; and statements of a confidential informant); and third, that the Government violated Brady by failing to turn over field notes. Most of these claims seem rather weak and it appears to me that the panel published this opinion because of the holding that the findings from the ICE database search do not constitute hearsay.

United States Supreme Court

No new cases.

Other Cases of Note

United States v. Mowatt, No. 06-4886 (4th Cir., January 25, 2008): Searches and Seizures; Exigent Circumstances: Mowatt was convicted of various drug/weapons offenses stemming from a warrantless search of his apartment. A security guard complained about loud music and the odor of marijuana at Mowatt's tenth-floor apartment building and police were dispatched there. When police persisted in demanding that the occupants open the door, Mowatt opened the door slightly and asked if they had a warrant. When they said "no" he told them to leave, but of course they did not and one of them tried to grab Mowatt, Mowatt smacked his hand away, and then the police barged in and secured Mowatt and the apartment. HELD: Police-ordered opening of the door by Mowatt was a search that was not supported by exigent circumstances; thus, the search was unlawful.

State v. Zidel, No. 2006-549 (N.H., January 18, 2008): Child Porn: Zidel worked as a photographer at a camp for children fifteen years of age and younger. His job was to take photographs to be used to make an end-of-the-year summer video yearbook for the children. He gave three CDs to the camp director for this purpose. Unfortunately, one of the CDs contained images "depicting heads and necks of minor females superimposed upon naked adult female bodies, with the naked bodies engaging in various sexual acts." The camp director notified the police and Zidel was convicted of possession of child pornography. HELD: Simple possession of these morphed images is protected by the First Amendment under Ashcroft and the convictions are REVERSED.

Harper v. State, No. S07A1460 (Ga., January 8, 2008): Searches and Seizures; Search Warrants; Sufficiency: This is a search warrant winner in a murder case in which the State sought the death penalty. The affidavit detailed statements by an informant who claimed that Harper admitted to the crime; however, the Court found the affidavit deficient: "The defect in the affidavit is that it presents the third party informant as being a family member, a truthful person, and someone without a motive to lie when the person who spoke to the informant had absolutely no way of knowing to whom he was speaking. In this case, unlike other cases where an anonymous tipster's information has been corroborated, the information contained in the affidavit failed to proved any reason under the totality of the circumstances known to officers to believe that the information was from a credible source."

In re: Dewitt McDonald, Jr., No. 06-4120 (6th Cir., January 10, 2008): Habeas Corpus; Second/Successive: McDonald is granted permission from the Circuit to file a second habeas petition based on newly discovered facts(!) This is a rarity in habeas corpus praxis but the facts alleged by McDonald fit the bill. McDonald was convicted of multiple counts, including murder, primarily on the strength of the State's star witness, Krista Harris. However, Harris has since alleged by affidavit that the prosecutor in the case threatened her with false criminal charges to not only deliver perjured testimony against McDonald, but also to engage in non-consensual sex with the prosecutor; and, the allegations were corroborated by an affidavit from the prosecutor's brother.

United States v. Reaves, No. 06-5073 (4th Cir., January 8, 2008): Searches and Seizures; Investigative/911: Traffic stop based solely on an anonymous 911 phone call is unconstitutional because the tip was not corroborated sufficiently in its assertion of illegal conduct.

Pending/Enacted Crime Bills

The Department of Corrections has a neat place on its web site that tracks bills in the Oklahoma Legislature dealing with criminal justice issues. HERE is the link if you are interested in perusing what is coming down the pike or what has already been passed into law.

Some notable bills/new laws include: HB1005 (increasing from two hours to three hours the time for blood/breath testing in DUI cases; and making DUI a felony if the violator is involved in an injury accident); HB1567 (creates "guilty but mentally ill" as an optional finding by a jury); SB0981 (provides for forfeiture of motor vehicles used to evade pursuit).

One of the main driving forces behind many of these odd criminal justice bills is Senator Jonathan Nichols. He was in my law school section and graduated with me in 1993, although I was not friends with him. But even in law school he was a strange guy, often brooding in class and refusing to participate in the Socratic method which resulted in tension in class a good deal of the time. He was a prosecutor in Cleveland County for several years and has now become an extremely conservative voice in the state Senate. When you hear about a strange bill percolating in the legislature that appears to upset current law in the context of criminal justice, there is a good chance this guy is behind it.

Jury Instructions: Sex Offender Registration

I received a phone call last week inquiring about the unpublished case wherein Judge Chapel opined that Sex Offender Registration is punitive in nature and thus might be a subject upon which the jury should be instructed. His comments were made in his specially concurring opinion in Derek Tewinin Edmonds v. State, No. F-2006-220 (Okl.Cr., May 14, 2007) (unpublished), and are as follows:

"I concur in affirming the conviction and sentence in this case. However, I am of the opinion that the requirement of registration as a sex offender upon conviction is not a 'collateral consequence' of a conviction for sex offenses. Rather, I believe such registration requirement is a direct consequence of the conviction and since it involves substantial restrictions upon one's liberty, it should be considered punitive and part of the sentence. In a proper case where an instruction is requested and where the issue is preserved and fully briefed, this Court should then consider whether an instruction is required."

Notice the last part: in a proper case where an instruction is requested and where the issue is preserved and fully briefed[.] Clearly, if this issue is going to get any play at all, it will be in a case where a good record is made concerning the effects of registration and where an instruction is requested at trial.

Ideally, I would like to see some testimony from law enforcement detailing the requirements of registration and showing just how onerous it is in terms of finding a place to live and also the fact that such a person will have a driver's license stamped "Sex Offender" on it. Hopefully, with a good record in the trial court, the Court of Criminal Appeals will be presented with the full picture of effects of such a conviction.

Victories

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

DAVID AUTRY, OKC, represented Mr. Brown on appeal and gave us all a very good published opinion concerning the interpretation of the child-porn possession statute. This is another terrific win for David!

JULIA SUMMERS, Fed. Pub. Def. OKC, (I am told) has received a favorable ruling out of the Western District in a "Sexually Dangerous Person" civil commitment case. The case may be the first one in the country to be "tried" via an evidentiary hearing. I will try to obtain the written order this week and post it in the next issue. But, sounds like terrific advocacy from Julia!

Hearsay

ANOTHER DNA EXONERATION: This one is out of Colorado and involves a man convicted of the 1987 murder of Peggy Hettrick. The DNA results "point to" a suspect that was investigated and cleared during the initial investigation. The exonerated inmate, Tim Masters, had been imprisoned for eight years.

NO GUNS IN THE WORK PLACE: Judge Kern in Tulsa (N.D.) has issued a permanent injunction against an Oklahoma law allowing employees to keep guns locked in their cars on company property. The decision appears to rest on federal preemption since the federal Occupational Health and Safety Act has provisions in conflict with the state law.

------LEGAL CALENDAR------

MONDAY, FEBRUARY 11, 2008: Video re-play of Criminal Law Track---2007 Annual Meeting. This takes place at the Bar Center, 1901 N. Lincoln Blvd and is good for 6 hours of CLE (no ethics). This one was moderated by Ben Brown and Charles Sifers and includes Cheryl Ramsey, Jim Hughes, and Cindy Danner.

TUESDAY, FEBRUARY 12, 2008: Video re-play of Litigation and Trials in the Digital Age at the Oklahoma Bar Center, 1901 N. Lincoln Blvd. This re-play is good for 6 hours of CLE (including 1 hour of ethics). The line-up looks strong for this one, including a session with Judges Friot and DeGiusti from the Western District, and Judge Bryan Dixon from Oklahoma County.

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OCDW

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