No new cases this week. Bad weather closed the court on Friday, but I plan on going to the capitol this week and reviewing the decisions.

FYI, Judge Chapel will be a presenter at a CLE this Friday in Tulsa (see below). You can get an update on the Court of Criminal Appeals straight from the bench.

I am presenting also on the scintillating topic of the nuts and bolts of federal habeas.


Tenth Circuit

United States v. Portillo-Quezada, No. 05-3102 (10th Cir., November 29, 2006) (Published): Conviction and sentence affirmed in a case involving a large-scale meth ring over several claims including: 1) allowing him to appear at voir dire with two co-defendants who were wearing prison clothing (reviewed for plain error); 2) failure to grant a mistrial when the prosecutor suggested at voir dire that his co-defendants looked like drug dealers; 3) allowing the government to present evidence of an uncharged murder on the grounds it was connected to the drug conspiracy (NOTE: this was not 404(b) evidence because it was part of the conspiracy); and 4) imposing an unreasonable sentence. I suspect the fact that when the police searched the apartment and found Portillo-Quezada hiding in a closet dressed in body armor and holding a loaded 9-millimeter, the panel was not too keen to find error here.


United States Supreme Court

No new cases from the Court.

HERE is a very good SCOTUS blog if you like to keep up with Supreme Court goings-on.

Also, HERE is a hilarious case in which the Court granted certiorari last week. The case addresses whether a school board had the right to suspend a then-high school senior for holding a banner that read "Bong Hits 4 Jesus" away from school property while the Olympic torch made its way through Juneau, Alaska, en route to the Salt Lake City Winter Games in 2002. The Ninth Circuit held the student could sue the principal and school board in a 1983 action. If the Court granted certiorari to the Ninth Circuit I think we know where this one is headed, but these look like fun facts.


Other Cases of Note

United States v. Kuchinski, No. 05-30607 (9th Cir., November 27, 2006): Child Porn: Kuchinski was convicted of possession of child porn. He challenged the government's use at sentencing of all the pornographic images found on his computer. He admitted to downloading 110 images; but over 17,000 were found in the "cache files" of his computer. The court noted that when a person visits a web site, the web browser will automatically download that page into the temporary internet files as a time-saving measure if the site is visited again. In this case, there was no evidence that Kuchinski was a sophisticated computer user who could have accessed directly the cache files or that he in fact did so. Thus, it was improper to use the images in the cache against him at sentencing without any other evidence that he exercised dominion and control over them.

United States v. McPhearson, No. 05-5534 (6th Cir., November 27, 2006): Search and Seizure; Search Warrants; Sufficiency: Very nice winner upholding, by a 2-1 vote, the District Court's suppression of a search pursuant to a warrant. The affidavit was insufficient because it just described how the suspect was arrested at his home and had drugs in his pant pocket. No evidence to conclude that there were other drugs in the house. Also, the "good faith" exception did not apply because the affidavit was so bare bones as to preclude any reasonable belief in the search warrant that the affidavit supported(!!) That does not happen very often.


Jones v. Attorney General

Stephen Jones, Enid, is embroiled in what appears to be a particularly pugnacious case with the state Attorney General's Office. There were some recent, front-page, headlines where a lawyer, formerly employed by Jones, accused Jones of "threatening" him regarding his testimony before a multi-county grand jury. I thought it was extremely peculiar that an attorney would offer testimony (voluntarily) to a grand jury regarding a client. Stephen has provided some insights into this situation and his dealings with the AG may assist some of you in the future if you find yourself in a similar situation.

Stephen reports that the Multi-county Grand Jury Unit of the Attorney General's Office violated Rule 3.8(g) of the Oklahoma Rules of Professional Conduct when it sent two investigators to the residence of an attorney who formerly was employed by Jones and who worked on matters relating to clients Brad and Gene Phillips. The investigators wanted the attorney to meet Assistant Attorney General Joel-lyn McCormick at her office the following day and served him a Multi-county Grand Jury subpoena.

Jones wrote the lawyer a letter which was hand-delivered to his house advising him that the attorney-client privilege, the attorney work product privilege and the rule of confidentiality precluded any disclosures by this former attorney-employee concerning his work for the clients. The former employee had told Jones that the investigators questioned him about the work for the clients. Jones quickly wrote a letter to Joel-lyn McCormick immediately to invoke the attorney-client privilege.

She did not respond to his letter and, not receiving any response, Jones contacted Judge Dixon, judge of the Multicounty Grand Jury Unit. Judge Dixon signed an order pursuant to Rule 3.8(g) staying any grand jury appearance. The following day he sustained a motion to quash the subpoena served on the former lawyer. Jones then had another lawyer in his firm deliver a letter to the former employee's residence asking for full information concerning any disclosures of the attorney-client matters or matters covered by the rule of confidentiality.

The former employee considered this contact a "threat" and he notified the Attorney General's office who apparently brought the employee before the Multicounty Grand Jury to hear testimony concerning the alleged "threats." Then, with the encouragement of the head of the Multicounty Grand Jury Unit, the former employee filed a police report which found its way to The Oklahoman which in turn published a story about it, front-page and above-the-fold, on or about November 10, 2006.

Jones has filed other actions relating to this matter which are under seal and obvioulsy could not be disclosed here. To my knowledge, and as far as Stephen knows, this is the first time that the Attorney General's office has attempted to subpoena a lawyer to testify before the Multicounty Grand Jury about matters of his legal representation. This situation is a stark reminder to us all of the duty of confidentiality, and we as defense lawyers should acquaint ourselves with Rule 3.8(g) and be alert to such subpoenas because apparently, judged by this case, the Attorney General's office will not give the courtesy of notification to the former employer.

Victories

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


This is the first time in a while that I have no victory stories to report. Do not be shy about letting me know about your wins, particularly the less flashy wins involving motion practice (motions to suppress in particular).



Hearsay

AN AMERICAN IN IRAQ: A University of Oklahoma forensic scientist, Clyde Snow, testified in Iraq recently at the trial of Saddam Hussein. Mr. Snow has a long track record of investigating government/war atrocities.

IDENTITY VERIFICATION UNIT: OHP is employing some document examiners to train other examiners in the state to review and analyze work papers such as birth certificates, driver's licenses, social security cards and passports.

DOMESTIC SURVEILLANCE: The Inspector General at DOJ is looking into the use by the Department of NSA surveillance information. The surveillance appears to target Middle Eastern terrorists but who knows what the NSA really does. I doubt the Inspector General will find out everything.

PRISON POPULATION ON THE RISE: DOJ reports an increase in the U.S. prison population. Business is good.




UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER)


DECEMBER 7, 2006: Hodgepodge of Criminal Law Nuggets XV, moderated by Paul D. Brunton. This one covers Theories of Defense from A-Z, Defending Computer Crimes, Review of the Court of Criminal Appeals, DPS Update, the Fourth Amendment, Front Burner Issues in Criminal Justice, and The Nuts and Bolts of Federal Habeas Corpus for State Prisoners. Speakers include yours truly, Barry Derryberry, E.X. Martin (out of Dallas), Hon. Charles S. Chapel, Peggy Farish (DPS), Terry Hull, and Jim Drummond. This CLE will get you 6.0 hours (including 1.0 hour of ethics) and will be held on Thursday, December 7, 2006, at the Tulsa County Bar Center, 1446 South Boston in Tulsa. For more info contact the TCBA at 918.584.5243.

DECEMBER 13, 2006 (TULSA) & DECEMBER 14, 2006 (OKC): Powerful Communication Skills: Winning Strategies for Lawyers. This is a one-woman CLE presented in its entirety by Dr. Anita Jacobs, President of The National Center for Effective Speaking in New Jersey. Although not particularly focused on criminal defense, this program is designed to assist lawyers. 6.5 hours approved including .5 hours of ethics. Tuition is $225 and more information can be obtained at the OBA/CLE Office (800.522.8065 or 405.416.7006).



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