State v. Ryan Layne Short, et al., No. S-2005-890 (Okl.Cr., December 19, 2006) (unpublished):  Searches and Seizures; Traffic Stops:  This is a summary opinion in a state appeal out of Tulsa.  It is in the nature of summary opinions that the facts are sometimes unclear, but from reading the opinion and discussing this case with one of the lawyers, Bruce Edge out of Tulsa, it involved a simple traffic stop based upon "impeding traffic" under 47 O.S. 11-804.  The testimony from the officer was that the vehicle was not speeding but was going faster than the posted minimum (although it was traveling in the "fast" lane).  Special Judge Carlos J. Chappelle sustained the motion to suppress at the preliminary hearing.  The State appealed and the Hon. Rebecca Brett Nightingale reversed.  Upon the finding of probable cause, the defendants were bound over in front of judge Caroline E. Wall.  She overruled the renewed motions to Quash and Suppress, but then, on the motions to reconsider, she reversed course and granted the motions(!!!)  The State appealed and the Court held that she did not abuse her discretion in holding the initial traffic stop illegal.

Dawaylon Houston v. State, No. F-2005-313 (Okl.Cr., January 25, 2007) (unpublished):  This is a ghastly opinion involving a search and seizure issue.  The cops in Ardmore, 5 to 6 of them wearing bullet-proof vests, were at the door of a residence to conduct a knock-and-talk.  While at the door, they noticed the odor of burning marijuana along with an associated "smoke cloud."  They entered the residence without a warrant and secured the residence and the occupants while a warrant was obtained.  The search was upheld.  When an opinion contains a statement like this one:  "While Appellant was handcuffed and his freedom of movement restricted, his detention fell short of an actual arrest" you know it is going to be bad.  SIGNIFICANTLY, the Court was operating under plain error review which might explain the apparent divergence between this case and State v. Cannon.  This was a 3-2 opinion, with Judges Chapel and C. Johnson dissenting.


Tenth Circuit

United States v. Sinks, No. 05-2170 (10th Cir., January 23, 2007) (Published):  Sinks was convicted of possessing stolen explosive materials and being a felon in possession of explosives.  The circuit held that a claim challenging an indictment for failure to charge an offense (failure to allege an interstate commerce element) is not waived when there is no objection prior to trial, but review is for plain error only and that standard was not met here.  The panel noted that generally the failure to allege an element of an offense is not jurisdictional, but there is a circuit split on whether the failure to allege an interstate commerce element provides an exception to this general rule (it does not in the Tenth Circuit).

United States v. Hall, No. 05-1205 (10th Cir., January 23, 2007) (Published):  Severance; Sufficiency of the Evidence:  Large-scale drug conspiracy conviction.  Hall raised several issues:  1) failure to suppress wiretap evidence based on inaccurate/misleading statements in the application; 2) failure to sever the trials; 3) error in the admission of co-conspirator statements; 4) denial of new trial based on juror misconduct (overhearing defense counsel discuss the case and telling other jurors about it); 5) variance in the conspiracy count; 6) prosecutorial misconduct; 7) sufficiency of the evidence of the possession count (this was a winner on appeal); and 8) various sentencing issues.  The panel reversed the possession count based on insufficient evidence and remanded for re-sentencing because the District Court did not explain sufficiently its deviation from the Guidelines calculation.

United States v. Robertson, No. 05-7020 (10th Cir., January 23, 2007) (Published):  Robertson was convicted of "conspiracy to use an interstate commerce facility in the commission of a murder-for-hire."  The panel affirmed over a claim that the District Court failed to include an element of the offense (specific intent that a murder be committed) and improper juror contact by a state deputy clerk.  Concerning the instruction issue, the panel found error, but since there was no objection at trial, there was no plain error.


United States Supreme Court

Cunningham v. California, No. 05-6551 (U.S., January 22, 2007):  Cunningham challenged California's method of sentencing by judge-found facts which can increase the maximum sentence imposed.  This, of course, violates the Apprendi/Blakely/Booker line of cases.  The California Court of Appeals, relying on precedent from the California Supreme Court, attempted to distinguish the California sentencing scheme in a manner consistent with Supreme Court interpretations of the Sixth Amendment, but the U.S. Supreme Court held that California's system was essentially the same as the federal system and the judge-found facts in this case, where the guidelines are not advisory but mandatory, violates the Sixth Amendment.  


Other Cases of Note

United States v. Arnt, No. 05-50124 (9th Cir., January 25, 2007):  LaTasha Arnt stabbed her husband during a domestic dispute on a military base in Turkey.  The husband died.  The District Court instructed the jury on Murder and Voluntary Manslaughter, but failed to instruct on Involuntary Manslaughter and Arnt's theory of the case as an accidental death.  HELD:  reversed and remanded for new trial because of failure to instruct on Involuntary Manslaughter.  This case contains a very good discussion of when lesser instructions are mandated and also the standards on appeal when such issues arise.
      

Victories

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


BRUCE EDGE, Tulsa, & STUART SOUTHERLAND, Tulsa Co. P.D., earn the only victory story this week with the tremendous suppression win in the Short case.  This is one of only a handful of cases where a court held that the initial traffic stop was unlawful; AND the case was won essentially on a motion to reconsider before a judge that had rejected previously the claim.  As Bruce said, this is a good example of what can happen when you never give up.  Great job Bruce and Stuart! 


The Strange Self-Destruction of a DA 

The saga of the prosecution of three members of the Duke University lacrosse team has exposed a District Attorney in North Carolina who seems to be completely oblivious to the fact that his career seems destined to end with a disbarment.

Mike Nifong is in deep trouble with the state Bar over what appears to be a completely senseless prosecution buoyed by a witness who is inherently not credible.  Nifong had been accused by the Bar of making misleading and prejudicial comments about the accused athletes in the case.  This is not really surprising.  Prosecutors regularly play hardball in the press, the cops use perp-walks to vilify defendants, and tough prosecutorial tactics are to be expected in high profile cases.

But Nifong has been zinged with more allegations by the Bar which center around, of all things, Brady violations.  Nifong's case rests upon the credibility of the complaining witness.  He has already dropped the most serious allegations of rape because she changed key details of her story.  The players are still charged with other sex offenses and kidnapping.

Now we find out that Nifong had outsourced the DNA results to a private company and the results showed the presence of genetic material on the woman's body and on her underwear but none of it belonged to the three accused lacrosse players.  Nifong had known about these tests that would destroy his case but failed to turn the results over to the defense and also continued to tell the trial judge that he had turned over all evidence that could benefit the defense.

Nifong remains dogged in pursuing the case, although he stepped off the case himself amid the first wave of Bar allegations.  I cannot help but wonder why such a man would still pursue a case he knows he cannot win and in such a manner that would place in serious jeopardy his law license.  We probably will never know the answer but I think it will be instructive to watch this case closely to see if the North Carolina Bar issues a written opinion when it disciplines Nifong.


Hearsay

DRUG DEALER REGISTRATION?:  There is legislation percolating in the U.S. House that would require "drug dealers" to register.  Our esteemed law makers call the legislation "The Clean Town Act of 2007" and apparently believe that such a law would be useful in some way.

FIRST BLACK WOMAN JUDGE IN TULSA:  Wilma Palmer, a Tulsa attorney, was hired last Wednesday as a special judge.  She will become the first black woman to join the district court bench in Tulsa County.  Palmer was appointed by judges in the judicial district which encompasses Tulsa and Pawnee counties.  She will fill a vacancy created by the December resignation of C. Michael Zacharias.  An attorney since 1989, Palmer has a general law practice with experience in domestic, probate, civil and criminal matters. She also has served as general counsel for the Tulsa Housing Authority.  She has a bachelors degree and a law degree from the University of Tulsa.

GRIDER CONVICTED:  Kyle Grider was convicted last Friday in Oklahoma County of second degree murder in the death of an OKC policeman.  He was sentenced to 45 years.  This is an interesting case and one that I tried to follow but I was involved in a trafficking trial last week.  My trial was on the same floor of the courthouse and I can tell you that there was a heavy presence of police officers in the gallery.  I am curious on what theory the State supported a Second Degree Murder conviction.  The officer died when he lost control of his car while chasing Grider who fled on a motorcycle.  The case is also notable because the jury apparently left the courtroom to visit the accident scene.

FORMER DA RICHARD GRAY INDICTED:  I have not seen much press coverage of this indictment here in central Oklahoma, but in the northeast part of the state, up in Tahlequah, a grand jury indicted a former elected District Attorney on charges of embezzlement of drug money.

LIBBY TRIAL:  "Scooter" Libby is on trial in D.C. for lying to FBI agents about the disclosure of CIA agent Valerie Plame's identity to Robert Novak.  Defense opening statements suggest that Libby is a scapegoat being prosecuted to protect Karl Rove. 

FIRST PRINCIPLES FROM MAYBERRY:  John Hunsucker posted this on the OCDLA listserv and I thought it was a true gem.  It is a clip from The Andy Griffith Show and shows Andy's reaction when Opie informs him that he had put a bug in a jail cell and taped the conversation between lawyer and client.

NORTH CAROLINA EXECUTIONS HALTED:  North Carolina law requires the presence of a physician at executions.  However, the North Carolina Medical Board has taken the stand that "physician participation in capital punishment is a departure from the ethics of the medical profession" and may threaten physicians with licensing problems if they participate. 



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