Whetsel v. State, No. PR-2006-1115 (Okl.Cr., February 1, 2007) (unpublished order):  This is the order of the Oklahoma Court of Criminal Appeals in the case where Oklahoma County District Judge Ray Elliott ordered the county sheriff to transport all prisoners in the jail awaiting DOC placement within 30 days of the date of his order; and that all future inmates who have been sentenced must be transported no later than 45 days after completion of the J&S.  Sheriff Whetsel and DOC sought a writ of prohibition to prevent Judge Elliott's order from taking effect.  HELD:  writ DENIED.  Thus, Judge Elliott's order must be obeyed at this point.  It should be noted that the Court of Criminal Appeals denied the writ even though the Oklahoma County Jail is not overcrowded.  Good for Judge Elliott!  I know many of us have clients who languish way too long in the jails awaiting transport to LARC.  Perhaps this order will compel DOC to streamline the current scheme (at least in Oklahoma County).

Earl Andrew Dahl, Jr., v. State, No. F-2005-1282 (Okl.Cr., February 6, 207) (unpublished):  Dahl was convicted of 50(!) counts ranging from Rape by Instrumentation to Forcible Oral Sodomy to Lewd Acts with a Child Under Sixteen.  He was sentenced on the various counts ranging from 7 years to 15 years, all counts ordered to run consecutively(!)  The Court affirmed the convictions, but remanded for a re-sentencing hearing based on a lack of an 85% instruction, holding that the lack of such an instruction "had a substantial influence on the jury's sentencing determination."  NOTE:  the order instructs the District Court to instruct the jury on the 85% rule.  I have never handled a re-sentencing hearing.  Does anyone know how these are done?  It seems exceedingly odd to impanel a different jury and simply discuss the sentence without them hearing the evidence in the trial.  Anyone know how these work?

Mark MacFarlane v. State of Oklahoma, ex rel. DPS, No. 103,752 (Okl.Civ., Div. IV, February 6, 2007) (unpublished):  In this driver's license appeal, an Iowa licensee refused to take the blood alcohol test and the district court ordered revocation.  Bruce Edge, Tulsa, made the enterprising argument that the client was not advised that his non-resident driving privilege would be revoked (as the statute says) but rather was advised only that "your driver's license will be revoked."  He argued that this misinforms the licensee about the effect of a refusal and therefore the refusal was invalid because it was not an informed choice.  The Court rejected this argument but I thought the discussion was worthy of study and if any of you were thinking about raising this issue it does not look promising.  


Tenth Circuit

NOTE:  The Circuit has apparently decided we are not taxed enough with bar dues and other fees; so, it has instituted a $25.00 renewal fee for lawyers who have been admitted to practice before the court for at least three years as of January 1, 2007.  You will be receiving a lovely letter in the mail.  I only hope the three district courts do not follow suit.  We will be nickeled-and-dimed to death if they all start doing it.


United States v. Brakeman, No. 06-2139 (10th Cir., February 5, 2007) (Published):  Brakeman was convicted of various gun and drug counts.  On appeal he raised two claims:  1) the search warrant for his home was invalid because it did not describe the place to be searched with specificity; and 2) a pat-down search was illegal because it extended to a glasses case that was removed from his pocket.  AFFIRMED.  The address on the warrant, for the entire trailer park and another address that was ambiguous could have described two properties.  The Circuit held that the officer's knowledge resolved the ambiguity.  As to the pat-down search, the officer testified that the case could have contained a knife and that even though Brakeman was detained and the case was no longer in his possession "he might have broken free and seized the case; and if he were later released, he would have regained access when [the officer] returned the unopened glasses case to him."  NOTE:  the erosion of the Fourth Amendment has proceeded steadily over the years in traffic stop cases, but this opinion is alarming because it lets the cops slide on a search of a home.  How difficult is it to get the address of a trailer house correct?

United States v. Wilfong, No. 05-6404 (10th Cir., February 6, 2007) (Published):  Wilfong was convicted of identity theft crimes and challenged his sentence.  AFFIRMED over claims of:  1) Sixth Amendment violation for the District Court's calculation of intended loss; 2) application of "leader or organizer" enhancement; 3) enhancement for reckless endangerment (fleeing from the police in a car although he was not the driver); and 4) calculation of his criminal history.

United States v. Leon, No. 06-3195 (10th Cir., February 8, 2007) (Published):  Leon plead guilty to one count of "aiding and abetting the interstate communication of a threat" which, as part of the plea agreement, included a waiver of appeal provision.  Leon appealed anyway, claiming error in the denial of his motion to withdraw his plea and sentencing enhancements.  The Government's motion to enforce the plea agreement waiver provision is GRANTED and the appeal is DISMISSED.

United States v. Medley, No. 05-2383 (10th Cir., February 9, 2007) (Published):  This goes in the "be careful what you wish for" category.  Pamela Medley was convicted on multiple counts of wire and mail fraud.  The District Court sentenced her to 78 months.  She appealed and won a re-sentencing.  She was then promptly sentenced to 97 months.  AFFIRMED over her claims of vindictive sentencing and Booker error.


United States Supreme Court

No new cases to report.


Other Cases of Note

Doe v. Schwarzenegger, No. S-06-2521 (E.D. Cal., February 9, 2007):  Sex Offender Registration:  A federal District Court holds California's "Jessica's Law" which prohibits sex offenders from residing within 2,000 feet of a public or private school or park, and also requires GPS monitoring for parole, is prospective only.  


Case Note---Traffic Stop in the Panhandle 

This week I am going to file an appellate brief in the Oklahoma Court of Criminal Appeals on behalf of a client who was convicted of Possession of CDS (Marijuana) w/Intent to Distribute and Possession of CDS without a Tax Stamp.  In what has become a very familiar fact pattern, client (African-American male) was driving alone in a truck in Texas County.  OHP Interdiction Trooper makes a traffic stop for obstructed tag and for going 45 in a 40.  The Trooper proceeds with the usual chitchat about writing a warning and calls in the license and tag for wants and warrants.  While waiting for the returns, the Trooper runs the dog around the truck, says the dog alerted, and the subsequent search yielded 22 lbs. of raw marijuana.  Fairly typical.  

However, there are several aspects of this case that I found very interesting and on which I would like some feedback.

What constitutes an "alert"?  Trooper Tracy Brown, a very experienced member of OHP used his canine, Baron.  Trooper Brown testified that when Baron detects the odor of contraband he will attempt to get as close to the substance as he can and then "do a double-paw scratch."  But in this case, Baron never did a double-paw scratch(!)  Trooper Brown testified that he "sensed a change in behavior" as he ran Baron around the truck, twice, and rather than let Baron under the truck (for Baron's safety) he "called an alert" without Baron exhibiting the alert behavior. 

Of course, the videotape shows no change in Baron's behavior and no double-paw scratch.  This appears to place virtually unreviewable discretion with the dog handler and Judge Greg A. Zigler held the search was lawful.  As far as I can tell, this presents an issue of first impression in Oklahoma (is a dog alert valid when the dog does not in fact alert by performing the physical action for which it had been trained) and the cases seem to be all over the place but with some strong authority in favor of the client.  Let me know if any of you have dealt with this issue before.

Search before a search?:  The videotape also shows Trooper Brown lowering the tailgate of the truck and directing Baron to jump up into the truck bed to sniff closer to the cab.  This seems to be a "search before the search" to me and also another issue of first impression.

Open Records on Race:  Defense counsel in this case, Jim Loepp, who had the OIDS contract in Texas County, did a very good job in this case with an aggressive and confrontational cross-examination, during part of which he essentially accused Trooper Brown of racial profiling.  Brown denied using race in his profile and stated that the ACLU had sued OHP on this basis and no racial profiling was found.  However, in response to the lawsuit, each warning and field interview is cataloged with the race of the motorist and kept in a database in Oklahoma City.  The data is presented with racial breakdowns in a pie chart.  Trooper Brown testified that his personal stats indicated that his stops were 62% white, 33% hispanic, 6% black, and the rest was "other."

He also testified that these stats are public records and can be accessed by anyone.  I was not aware of this.  If the data is accessible it would probably be a good idea to acquire it in your cases or make it part of a discovery request.  One problem that I see with the data is that it may track stops and not detail the actual searches.  Thus, a trooper could easily stop 10 white persons and issue quick warnings, but then stop black or hispanic males and run the dog around the vehicle.


My Cousin Vinny

I came across this the other day and thought it was hilarious.  How many times has this happened to us?


Vinny: I object to this witness being called at this time. We've been given no prior notice he'd testify. No discovery of any tests he's conducted or reports he's prepared. And as the court is aware, the defense is entitled to advance notice of any witness who will testify; particularly those who will give scientific evidence, so that we may properly prepare for cross-examination. As well as give the defense an opportunity to have the witnesses' reports reviewed by a defense expert, who might then be in a position to contradict the veracity of His conclusions.

Judge: Mr. Gambini?

Vinny: Yes sir?

Judge: That is a lucid, intelligent, well-thought out objection.

Vinny: Thank you, your honor.

Judge: Overruled.

Victories

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


CLEVELAND COUNTY:  I think the entire Cleveland County defense bar deserves recognition for excellent trial work.  Prior to the change in the District Attorney's Office, the State regularly lost jury trials.  The migration of seasoned prosecutors from Oklahoma County into Cleveland County brought a more hard-edged attitude into the courtroom, but apparently with no more success than it had previously.

Since the start of the jury term, there have been four jury trials resulting in three acquittals and only one conviction.  Robert Rennie vanquished former Oklahoma County District Judge Susan P. Caswell in Garvin County and Tracy Schumacher won a sex crimes case in Cleveland County against Rick Sitzman.  If anyone has details on the third acquittal please let me know.  Outstanding work, Cleveland County!   


Hearsay

MORE DNA MADNESS:  The feds now want to take DNA samples of anyone arrested by federal agents, not just those convicted of crimes.  The law has apparently been passed and DOJ wants DNA collection as common as fingerprints.  Most hard hit will be illegal aliens.  There is something very unsettling about this move.

FEDERAL DEATH SENTENCE IN NY:  Ronell Wilson, 24, became the first person in 50 years to receive a federal death sentence in New York.  Wilson was convicted of shooting two police detectives to death.

SPEEDTRAPS SHUT DOWN:  Here is an interesting article about the bankruptcy of the small Oklahoma town of Moffett (in Sequoyah County, right near I-40 on the border with Arkansas).  The article is interesting because it states that 85% of the town's budget came from traffic stops, but on December 12, 2006, the state Department of Public Safety declared Moffett a speed trap town and ordered police to cease issuing tickets on U.S. 64.  I had no idea DPS could do this.  The article says that state law allows a town to be declared a speed trap town if at least 50% of its budget comes from traffic fines.  The population of Moffett is 178.

COCKFIGHTING NEWS:  Six defendants have plead not guilty to felony charges of cockfighting in the great city of Walters, Oklahoma.  Irven Box has his hands full with this case because he apparently represents all six and there is a question whether the activity took place in Indian country.

ADAM WALSH ACT:  President Bush signed into law the Adam Walsh Child Protection and Safety Act on July 27, 2006, the 25th anniversary of Adam's disappearance.  This article contains a good overview of the Act and I suspect we will all need to be familiar with it at some point since our sex offender clients will be required to register in all states now.

FORMER DEATH ROW INMATE WINS SUIT:  A federal jury in New Orleans awarded $14 million to John Thompson, 40, for his 18 years of imprisonment, most of it on death row for killing a hotel clerk in 1984.  He came within weeks of execution on one occasion.  The article states that a defense investigator found a crime lab report that cleared Thompson because the blood type of the robber/killer (found on the pants of the victim) did not match Thompson's blood type.  He was re-tried for the murder and was acquitted.  Particularly sweet for Thompson is that Orleans Parish and "several current and former prosecutors" were ordered to pay him the money.  The jury must have found the prosecutors personally liable.

STRENGTHENING MARRIAGE:  Here is a piece from the Oklahoma Family Law Blog on strengthening marriage written by Leah Ward Sears, Chief Justice of the Georgia Supreme Court.

SALVIA BANNED IN OKLAHOMA:  The herb "Salvia Divinorum" with street names of Salvia, Diviner's Sage and Sister Salvia, is a perennial herb in the mint family native to certain areas of Mexico. According to this article, there has been recent interest, especially with the advent of the internet, among young adults and adolescents to utilize Salvia, by chewing it or smoking it, for its hallucinogenic, psychological and change in perception effects.  Several states including Louisiana, Delaware, Missouri, Tennessee and Oklahoma have already passed legislation banning the sale or possession of it.

GOOD WORKS:  A group of lawyers in Edmond have won a citizenship award.  Winner of the Bank of Oklahoma Small Business of the Year was McAlister, McAlister, McKinnis and Tuggle, PC.  The firm, founded in 1985, recently has created a faith-based, nonprofit legal clinic to provide legal assistance to the homeless and working poor families of central Oklahoma.  Lloyd McAlister, speaking on behalf of his partners, said, "Our firm's mission is to serve God by serving our fellow man. ... Each of us is humbled to receive this honor."  Congratulations and respect to you.

TULSA RACE RIOT SUBJECT OF PLAY:  The Tulsa Race Riot of June, 1921, is the subject of a play in Atlanta called "False Creeds."  The play, written by Darren M. Canady, won the national Kendeda Graduate Playwriting Competition for graduate-student playwrights and will be presented at Atlanta's Alliance Theatre Feb. 9 through March 4. The play is directed by Wendy C. Goldberg, who worked with Canady on the play last summer at the O'Neill National Playwrights Conference in Waterford, Conn., where she serves as artistic director.  

GIULIANI A BIT PRICEY:  This article catalogs Rudolph Giuliani's up-scale speaking engagement fees and perks.  Particularly interesting is the description of his visit to Oklahoma State University:  "He commands $100,000 for a speech, not including expenses, which his star-struck clients are happily willing to pay. In one speech last year at Oklahoma State University, Giuliani requested and received travel on a private Gulfstream jet that cost the school $47,000 to operate. His visit essentially wiped out the student speakers annual fund.  Like other high-priced speakers in the private sector, Giuliani routinely travels in style. Besides the Gulfstream, which is a standard perk on the big-time speakers' circuit, his contract with Oklahoma State called for up to five hotel rooms for his entourage, including his own two-bedroom suite with a preferred balcony view and king-size bed, in the event of an overnight stay. But he did not stay overnight.  The contract also required a sedan and an SUV, restrictions on news coverage and control over whom Giuliani would meet, how he would be photographed and what questions he might be asked."  Seems a bit much, but when you are that much in demand the market will stretch a long ways.



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