The holidays slowed down the Court's opinion output considerably.  I went to the capitol last Friday and found only one opinion laying on the table, the published Cox case summarized below.  I expect the Court to crank up production in the coming weeks. 


Cox v. State, 2006 OK CR 51 (December 29, 2006):  Guilty Pleas; Statutes of Limitations:  The Court ends the year on a winning note for the defense in this guilty plea case which is instructive on several issues.  Cox plead guilty to Child Sexual Abuse in Garfield County in front of Judge Ronald G. Franklin.  Cox was sentenced to 20 years with all but the first fifteen years suspended.  First, Cox raised the issue of the statute of limitations which was not raised below.  The Court characterized such a claim as "jurisdictional" but then proceeded to treat is distinctly from subject matter jurisdiction, holding that waiver will not be presumed from a silent record and, since Cox was silent below, he did not waive it.  The Court also held that statutes of limitations are prospective only and can not extend a prior limitations period that had not expired.  Also, the Court held there was no factual basis for the plea under King because the plea form did not admit all the elements of the crime charged. 


Tenth Circuit

Walck v. Edmondson, No. 05-6273 (10th Cir., January 4, 2007) (Published):  Double Jeopardy:  This is a very nice opinion affirming the habeas grant by Judge Russell out of the Western District where he enjoined the State from further prosecution of Walck on double jeopardy grounds.  The trial had started, two witnesses were sworn and gave testimony, then the key witness, who was then eight months pregnant, went into labor.  The State moved for a mis-trial and the defense objected.  This opinion provides a very good blueprint and discussion of federal court intervention into pending state criminal prosecutions.

United States v. Smith, No. 05-3474 (10th Cir., December 20, 2006) (Published):  Stipulations:  Conviction affirmed over the proper use of stipulations, which can presented to the jury in the instructions.

Hamilton v. Jones, et al., No. 06-6381 (10th Cir., January 4, 2007) (Published):  This opinion deals with the end-stages of an Oklahoma death penalty case.  The panel denies Hamilton's motion for a stay of execution (scheduled for Tuesday, January 9, 2007) in this civil rights case attacking the Oklahoma lethal injection protocol.  This issue has gotten some play around the country but no in Oklahoma or the circuit.

United States v. Guerrero, No. 06-3123 (10th Cir., January 2, 2007) (Published):  The panel described this case as a traffic-stop search and seizure case without the traffic stop.  Guerrero and a friend stopped at a gas station and caught the attention of some cops eating lunch nearby.  One of the cops became suspicious and asked Guerrero some questions, the typical questions that would occur during a road-side traffic stop, but they occurred at the gas station.  As you might expect, the panel held that the cops had reasonable suspicion and that the subsequent consent to search was valid.

United States v. Lake, No. 06-3140 (10th Cir., January 5, 2007) (Published):  Sufficiency of the Evidence:  Lengthy opinion reversing wire-fraud and other white-collar convictions from Kansas on sufficiency of the evidence grounds.


United States Supreme Court

No new cases.


Other Cases of Note

United States v. Korey, No. 05-3840 (3rd Cir., January 4, 2007):  Conspiracy:  Instructive case reversing a conspiracy conviction based on defective jury instructions.  The Government's theory was that Korey accepted cocaine if he would kill a person and the jury was instructed that it must find a conspiracy if this was proved.  This was error because the instruction did not require the government to prove unanimity of purpose for the conspiracy (to distribute cocaine) because Korey could have simply accepted the cocaine for himself.



"Greater Latitude Rule" Still Viable? 

I argued a capital case before the Oklahoma Court of Criminal Appeals last Tuesday, December 18, 2006.  The case involved a child-abuse murder conviction and death sentence.  Toward the end, the State urged the Court to apply the "greater latitude rule" of Myers v. State, 2000 OK CR 25, to child-abuse murder cases.  The rule in Myers grants greater latitude to the State to introduce evidence of other crimes in sex-abuse cases.

In my case, the State had introduced a prior conviction for child abuse out of California.  The State argued that the rule of Myers should be extended to child abuse murder cases.  Judge Lumpkin told the Assistant AG arguing the case that a majority of the Court had overruled Myers.  The Assistant was surprised to hear this and I was, too, since I was not aware of any published case that had overruled Myers.

I still have not found one.  The only case I can find that seems to support Judge Lumpkin's statement is the unpublished case of Carter v. State, decided June 30, 2006.  I do not read Carter as overruling Myers but Judge Lumpkin seems to think it does and none of the other judges on the bench disagreed with him.

This is another example of the extremely quirky and odd practice of the Court of using unpublished cases, which presumably have no precedential value, to overrule or modify published opinions.  So, if you have a sexual abuse case and the State files a Burks notice and cites Myers, you can counter it with Carter and the comments from Judge Lumpkin.


MC Grand Jury Happenings

Last week brought a major development in the conduct of state multi-county grand juries.  If you have any clients affected by such a grand jury or plan to represent such a client you must be aware of this.

In a case out of Oklahoma County, several defendants were indicted and hired, respectively, Mack Martin, Stephen Jones, Garvin Isaacs, and Chris Eulberg.  With that bunch in the pit odds were very good that something beneficial would happen to the defense.  Mack paved the way with this MOTION TO QUASH that was granted last week by Special Judge Roma McElwee.

Mack noticed in the transcripts of the grand jury proceedings that the court reporter had noted the presence of two alternate jurors during the proceedings.  The presence of non-grand jury members or other authorized person under statute is a violation of the Oklahoma Constitution and state statutes.  There is no provision in the law for alternates in the grand jury.  Judge McElwee agreed and quashed the indictments.

In an article that ran in The Oklahoman on Saturday, January 6, 2007, A.G. Drew Edmondson is quoted as saying that "This ruling is contrary to 100 years of grand jury practice in the state."  This is an interesting statement which indicates that alternate jurors are always present before the MCGJ.  If this is the case, then all indictments in all pending (and potentially concluded) cases may be similarly infirm. 

This issue is going to wind its way to the Court of Criminal Appeals most likely, but first the A.G. is going to appeal to District Judge Virgil Black at a hearing set for 4:00 p.m. on January 19, 2007.  If Judge Black upholds the Motion then the appellate court will get a crack at it.  Until then, I would suggest you get those motions drafted and filed.


Victories

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



KIMBERLY D. HEINZE, OIDS, won the last defense-friendly appellate decision of 2006 in the Cox case summarized above!  Thank you, Kim!

MACK MARTIN, OKC, set off potential shock waves in the conduct of Multi-County Grand Juries in Oklahoma when he exposed the fact that alternates have apparently been allowed to sit in on proceedings.  Mack won round one but the State is going to take it upward and onward.  Terrific lawyering, Mack!

STEVE PRESSON, Norman, followed up his win before Judge Russell with a victory in the circuit in the Walck case on the double jeopardy issue.  Fine lawyering, Steve!


Hearsay

LETHAL INJECTION FALL-OUT:  An appellate court in Maryland has halted executions by lethal injection so a legislative panel can review the manual that establishes the protocol for such executions.  Maryland joins Missouri, Florida, and California in halting lethal injections in the wake of a botched execution in Florida and other concerns.

OKLAHOMA EXECUTION:  The concerns over lethal injection in other states have not resonated in Oklahoma.  Last month, the Pardon and Parole Board denied clemency to Corey Duane Hamilton, convicted in the August 17, 1992, robbery of a fast-food restaurant in Tulsa in which four employees were murdered.  Hamilton is to be executed on Tuesday, January 9, 2007.

OKC BOMBING:  A recently released congressional report has criticized the FBI's handling of the investigation.




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