Judge Lumpkin has been elected by his peers as the Presiding Judge of the Oklahoma Court of Criminal Appeals. He has been on the Court for nineteen years. Judge Charles Johnson has been elected Vice-Presiding Judge. The terms will begin on January 1, 2007.

Seabolt v. State, 2006 OK CR 50 (December 15, 2006): Search and Seizure; Traffic Stops: Seabolt was convicted of Possession of CDS w/Intent to Manufacture (AFCF) and smacked with 45 years. The Muskogee PD stopped Seabolt for failure to signal a left turn. The officer ran the license and began to issue a warning. He also called for a canine because Seabolt appeared "nervous" and also because he recognized the car as one he had seen earlier in the day at a house of suspected drug activity. The canine arrived 25 minutes later and alerted. HELD: the detention was unconstitutionally lengthened beyond the scope of the stop without reasonable suspicion and thus violated the Fourth Amendment(!) NOTE: counsel raised the search and seizure issue at PH and filed a written motion to suppress but for some reason failed to object at trial, thus review was for plain error.


Tenth Circuit

United States v. Begay, No. 05-2253 (10th Cir., December 12, 2006) (Published): Possession of Firearm by Felon: Begay plead guilty to being a felon in possession of a firearm in New Mexico. Unfortunately for him, he had twelve convictions for driving while intoxicated, with at least three of them felonies. The district court considered these "violent felony" crimes under the ACCA and walloped Begay to the tune of 188 months. HELD: felony driving while intoxicated is a violent felony under the ACCA. This is a lengthy and fractured panel opinion (Judge McConnell dissenting) that appears to be a good candidate for en banc treatment.

United States v. Torres-Castro, No. 05-2357 (December 12, 2006) (Published): Search and Seizure; Protective Sweeps: Another firearm possession case (and possession of shotgun shells) but this one presents a search issue. The panel held that an unlawful protective sweep of the defendant's home did not taint his consent to search for weapons or his subsequent post-arrest statements to the police. NOTE: the Tenth Circuit requires that a protective sweep must be performed incident to a lawful arrest; this view is in conflict with other circuits.


United States Supreme Court

Carey v. Musladin, No. 05-785 (U.S., December 11, 2006): Habeas Corpus; AEDPA Deference (Not Met): In a murder trial in California, members of the victim's family sat in the front row of the gallery wearing buttons that displayed the image of the victim. The Ninth Circuit held that the buttons violated Musladin's right to a fair trial and that the decisions of the California state courts rejecting his claim were contrary to or an unreasonable application of clearly established federal law. HELD: the Ninth Circuit is reversed because the state court opinions are not contrary to clearly established federal law. NOTE: the Court did not hold that the buttons worn by the spectators did not violate the Constitution; but rather that no case from the Court has expressly so declared and the lower courts have interpreted the fair trial guarantee in differing contexts. Thus, since there was no clearly established federal law on this point, the state court decision was not in violation of the AEDPA.


OTHER COURT GOINGS-ON:

Cert grants:

Fry v. Pliler, 2006 WL 1992998 (December 12, 2006): This case will resolve a question that has divided the habeas courts for years: whether the Brecht harmless error test (government must prove the error did not substantially influence the verdict), rather than the Chapman test (the government must prove the error harmless beyond a reasonable doubt), applies where the state courts did not find any error, and thus made no harmless error determination in the first instance. The Tenth Circuit has held that Brecht applies. The Court granted cert in a case where the 9th Circuit ruled against the petitioner.

Roper v. Weaver, 2006 WL 2569824 (December 7, 2006): Reviewing an Eighth Circuit habeas grant in a capital case, the question is whether a federal habeas court can invalidate a death sentence based on an unfairly inflammatory closing argument by the prosecutor.

Bowles v. Russell, 2006 WL 2031278 (December 12, 2006): A civil case in which the Court might address whether notice of appeal time limits are non-waivable jurisdictional rules or claim-processing rules that can be waived. The Tenth Circuit has held recently that notice of appeal time limits are jurisdictional.


Other Cases of Note

Nelson v. Quarterman, No. 02-11096 (5th Cir., December 11, 2006) (en banc): Habeas Corpus; Capital Habeas Cases: The en banc Fifth Circuit, in a very contentious and lengthy opinion (166 pages in all with the dissents) vacates a Texas death sentence on the basis that the Texas scheme precluded the jury from giving full effect to mitigating evidence as required by Supreme Court precedent.

United States v. Luong, No. 05-50090 (9th Cir., December 12, 2006): Search and Seizure; Search Warrants; Sufficiency: Sterling search warrant winner affirming the suppression of evidence on the basis that the search warrant was not supported by probable cause and the search was not saved by Leon because the warrant was so lacking in indicia of probable cause that a reasonably well-trained officer could not have relied on it in good faith.


More News on the Lethal Injection Front

The viability of lethal injection as a method of execution has continues to be drawn into question based upon recent events in California and Florida.

A federal judge in CALIFORNIA has ruled that the procedure is intolerable under the Constitution and the opinion has stymied executions in that state for the time being.

Last week, FLORIDA officials botched an execution by inserting improperly the needles into the arms of convicted killer Angel Diaz. It took 34 minutes for Diaz to die. As a result, Gov. Jeb Bush has suspended all executions in the state. More on the botched execution can be found HERE.


Victories

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



CINDY VIOL, OK County PD, scored a huge victory in a ten count Rape jury trial recently before out-going Judge Malcolm Savage. Sounds like a hard-fought case. Good job, Cindy!


RICKI J. WALTERSCHEID, OIDS, gave us the beautiful Seabolt opinion to assist in our traffic stop cases. Thank you, Ricki!


Hearsay

TIPSY COURT REPORTER: Here is an odd opinion from the Oklahoma Supreme Court affirming discipline in a case where a court reporter in Haskell County apparently showed up for work drunk.




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