Stouffer v. State, 2007 OK CR 4 (February 22, 2007):  Capital post-conviction case where Bigler Jobe Stouffer, II, sought to proceed pro se.  The Court denied Stouffer's request to represent himself in PC.

State v. District Court of Oklahoma County, 2007 OK CR 3 (February 20, 2007):  Juvenile/Youthful Offender:  Odd case in which Oklahoma County juveniles ages 15, 16, and 17 were charged with First Degree Murder.  The Oklahoma County Public Defender's Office moved for certification as either juveniles or youthful offenders.  The quirky part of the case is that Governor Henry signed into law two bills on the same day (and only two minutes apart).  The first one excluded defendants who were older than 14 from being certified as youthful offenders, but the second one retained the provision allowing those over age 14 to seek certification as a youthful offender.  Judge Doak allowed the certification process to continue and the State sought a writ.  DENIED.  The later-enacted statute controls and thus the wayward yutes in Oklahoma County get a shot at youthful offender status because the Governor signed one law two minutes after he signed another.  I suspect that this issue will be hashed out by the legislature in the near future.

Robert Carl Sharp v. State, No. C-2006-571 (Okl.Cr., February 21, 2007) (unpublished):  Guilty Pleas:  Sharp entered blind pleas to three counts of First Degree Manslaughter in Pottawatomie County before Judge Douglas Combs.  Sharp was sentenced to ten years on each count to run consecutively.  He moved to withdraw his plea and Judge Combs apparently did not bother to make sure Sharp was present at the hearing on the motion to withdraw and there was no indication in the record that Sharp waived his appearance.  HELD:  the hearing on the application to withdraw is a critical stage of a criminal proceeding and the accused must be present.  Remanded for a new hearing on the application to withdraw.


Tenth Circuit

Wedelstedt v. Wiley, No. 06-1461 (10th Cir., February 20, 2007) (Published):  Very good BOP classification decision. The panel held that BOP regulations prohibiting transfer of a federal inmate to a Community Correctional Center ("CCC") until ten percent of his sentence remains are inconsistent with clear congressional intent articulated in 18 U.S.C. § 3621(b) (the statute that authorizes the BOP to designate the place of confinement).

United States v. Torres-Laranega, No. 05-2302 (10th Cir., February 21, 2007) (Published):  On a continuing criminal enterprise (CCE) conviction, no plain error in the jury instructions on the "substantial income or resources" element of the offense, and the instructions did not allow the jury to find that the defendant derived his "substantial income" simply by virtue of having been a manager of the scheme.  Evidence was sufficient to prove that defendant obtained "substantial income" from a continuing series of violations as a whole (it is not necessary that the government prove substantial income from each violation).  This opinion contains fine points in CCE proof issues regarding charged violations and direct and circumstantial evidence of income from the enterprise.  The panel rejected what seemed to be a gross vs. net income argument made by the defendant.

Anderson v. Sirmons, No. 04-6397 (10th Cir., February 21, 2007) (Published):  Habeas Corpus; Capital Habeas Cases; Procedural Default; Ineffective Assistance of Counsel:  REVERSAL OF A DEATH SENTENCE of an Oklahoma death row inmate based upon penalty phase IAC because trial counsel focused almost exclusively on the first-stage of the trial and failed to uncover mitigating evidence in the form of family history, mental health history, and drug usage.  The Circuit stated:  "the absence of this readily available mitigation evidence left the jury with no explanation for the murders other than the prosecution's assertion Anderson was "evil." Although the case against Anderson was strong and the murders in this case were horrific, courts have not hesitated to grant relief in similar circumstances where the absence of available mitigation evidence left the jury with a "pitifully incomplete" picture of the defendant.  Had the jury been presented a complete picture of Anderson's background and history, there is a reasonable probability at least one juror would have struck a different balance between the mitigating and aggravating factors."  NOTE:  The panel also noted that Rule 9.7(G) of the Rules of the Oklahoma Court of Criminal Appeals (requiring subsequent post-conviction applications to be filed within 60 days new facts are discovered) is not "adequate" to serve as a procedural bar because COCA itself does not always follow it.

Wickham v. Friel, No. 05-4077 (10th Cir., February 15, 2007) (Unpublished):  Habeas Corpus; Statute of Limitations/Equitable Tolling:  Nice winner from the Circuit on the issue of the one year statute of limitations under the AEDPA involving a claim relying upon discovery of the factual predicate supporting the claim, in this case evidence that social services records indicated that the complaining witness may have been untruthful in her allegations of sexual assault. 


United States Supreme Court

Wallace v. Kato, et al., No. 05-1240 (U.S., February 21, 2007):  The statute of limitations in a Section 1983 civil rights action seeking damages for false arrest runs at the time the claimant becomes detained pursuant to legal process if the arrest is followed by criminal proceedings.

Lawrence v. Florida, No. 05-8820 (U.S., February 20, 2007):  Habeas Corpus; Statute of Limitations/Equitable Tolling:  The one year SOL under the AEDPA is not tolled by a petition for certiorari to the U.S. Supreme Court.

CERT. GRANT:  On Tuesday, February 20, 2007, the Supreme Court granted certiorari in Logan v. United States, No. 06-6911, testing when an individual convicted of misdemeanor crimes is to be treated as a career criminal, resulting in an enhanced sentence.  The case is out of the Seventh Circuit.

Other Cases of Note

Sanborn v. Parker, No. 99-678-C (W.D. Ky., February 14, 2007):  1. Habeas Corpus; Capital Habeas Cases; 2.  Prosecutorial Misconduct; Improper Questions:  Instructive capital habeas case where the court granted sentencing phase relief where the State's psychologist, called in rebuttal to refute the defendant's claim that the murder was committed under extreme emotional distress, gave testimony indicating that the defendant had changed his story to one that supported the defense strategy after meeting with "someone" which was a clear reference to defense counsel.  The State's witness essentially elicited attorney-client information from the defendant and the State utilized the information at trial.

United States v. Manzella, No. 06-3434 (3rd Cir., February 2, 2007):  Federal Sentencing Guidelines:  A district court cannot justify a longer sentence for a defendant based on its reasoning that the longer sentence is necessary for rehabilitative purposes.  In this case, the defendant's sentence under the Guidelines was one month, but the defendant needed a 30-month sentence to be eligible for the 500-hour BOP drug treatment program, which the district court thought necessary and accordingly it imposed a 30-month sentence.  The Circuit relied on a more specific statute, 18 U.S.C. sec. 3582(a), to conclude that imprisonment is not an appropriate means of promoting correction and rehabilitation.  Accordingly, rehabilitation is a factor to be considered when imposing a non-imprisonment alternative sentence.  

United States v. Rajwani, No. 05-10648 (5th Cir., January 16, 2007):  Federal Sentencing Guidelines; Reasonableness:  In a rare reversal of an upward departure, the Fifth Circuit held that a sentence of 120 months -- nearly 3 times the maximum guidelines sentence -- imposed on a defendant convicted of defrauding elderly victims was unreasonable.  The court remanded and commented that any sentence that was more than double the recommended guidelines range would be unreasonable under the facts of the case.


Victories

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



BEN BROWN, OKC Public Defender's Office, smited the State in its efforts to writ Judge Doak into discontinuing Ben's efforts to get his clients certified as youthful offenders.  The facts were really quirky and involved conflicting legislation signed by Governor Henry only two minutes apart.  Ben persuaded the Court of Criminal Appeals that his view was correct!  Terrific work, Ben! 

S. GAIL GUNNING, OIDS, secured a new hearing for Mr. Sharp in his efforts to withdraw his plea.  Very nice, Gail!

JAMES LINGER, Tulsa, won an incredible victory in Tulsa last week by walking his client in a capital murder trial(!!!)  I am told that the last time it happened in Tulsa County was 25 years ago when Larry Oliver and Clancy Smith did it.  I do not recall the last time it happened in Oklahoma County or anywhere else in the State, but cases where the State files a Bill and the client outright walks home at the end of the trial are exceedingly rare.  But James did it.  The crime was a double-murder at a Tulsa hardware store, both victims shot execution-style.  The client was a 35-year-old real estate broker of some means and the State's evidence apparently consisted of an eyewitness and little more.  I spoke to James about this case and he expressed amazement at how weak the State's case was and how brazen the prosecutors were in presenting such shoddy police work.  For example, there were fingerprints on the door at the crime scene that did not match either the victims or the defendant so the cops simply did not investigate further to find out to whom they belonged.  The main part of the defense case was a videotape at an Albertson's store depicting the client the day of the murders and establishing a time-line.  One of the other witnesses claimed to have seen the shooter wearing clothes that had stripes on his sleees/pants.  The client clearly had no stripes on his clothing as evidence in the videotape, yet one of the cops on the stand insisted that he saw some stripes on the video.  Where?  James pressed him.  Where?  Show us.  Of course, the cop could not show the jury and looked silly.  The State's star witness who was the alleged eyewitness had prior felony convictions that James found out about (the State did not tell him) and she testified that the shooter was in the store ten minutes before the shooting, but the time on the video completely refutes her claim that the shooter was the client.  Client did not take the stand and James and the State combined for 4.5 hours of closing arguments before the jury spent three hours deliberating before coming back with a NOT GUILTY.  James said there were just so many inconsistencies and discrepancies in the State's case yet the prosecutors apparently could not see them and appeared stunned when the verdict was read.  This is an amazing victory and congratulations to James and the client for having the fortitude to stand strong in the face of a potential death sentence.

LISA S. MCCALMONT & RANDY BAUMAN, OKC Federal Public Defender's Office, persuaded the Tenth Circuit to vacate the DEATH PENALTY for Oklahoma Death Row inmate Glenn Anderson in the case reported above(!)  Top notch lawyers will do that sometimes, and their efforts are particularly noteworthy because it was a federal habeas case involving a state prisoner.  These cases are notoriously difficult and to win at the Tenth Circuit level is especially noteworthy.  Terrific job Lisa and Randy!

OTHER TULSA WINS:  Good things are happening in Tulsa.  I am informed that acquittals were obtained by Tulsa attorneys Curt Allen, Steve Vincent, and Brian Martin, but I do not have many details.  If any of you know more details please share.  Also, Catherine Doud got a not guilty on a Sexual Battery charge, but a guilty on a lesser-included A & B with 30 days credit for time served.  Not too shabby!
  

Hearsay

DATELINE:  TO KILL A PREDATOR?:  The Huffington Report blogged a story that the popular NBC "To Catch a Predator" show snared "an assistant district attorney in a small Texas town" and, when he was about to be arrested for chatting online with, and planning to meet, a person whom he thought was a minor, he committed suicide with a handgun.

HIGH COST OF INCARCERATION:  The Oklahoma Sentencing Commission has been presented with an analysis of the high cost of the administration of the Oklahoma criminal justice system.  The numbers are fairly startling and were compiled by the Oklahoma Criminal Justice Resource Center.  Also, in a related story, University of Tulsa law professor Charles Adams addressed the Commission about the budget of the Department of Corrections which he described as a "monster" eating up state revenue.

OSBNDDC MAY USE TRACKING DEVICES:  Legislation in Oklahoma may allow the Oklahoma State Bureau of Narcotics and Dangerous Drugs Control to obtain search warrants authorizing the use or installation of tracking devices.   

THIS IS A FREE COUNTRY?:  An appellate court in New York has upheld an 80-year-old law banning dancing by patrons in bars.  The court held that recreational dancing is not a form of expression protected by the federal or state constitutions."  Wow.

GLOYD MCCOY'S SEARCH AND SEIZURE MASTERPIECE:  Gloyd has compiled a monster Search & Seizure handbook (over 640 pages) for the criminal defense practitioner.  Covered topics include Search Warrants, Knock and Talk, Traffic Stops, Canine Sniffs, Inventory Searches, Impounds, Consent issues and more.  Gloyd has priced his work at a reasonable $150.  For more info you can contact Gloyd at Riggs, Abney, Neal, Turpen, Orbison & Lewis, 5801 N. Broadway Extension 101, OKC.

UPCOMING EXECUTIONS:  It looks like Texas is back in full swing on the lethal injection front: 

February, 2007:

22 Newton Anderson (Texas)
27 Donald Miller (Texas)

March, 2007:

6 Robert Perez (Texas)
7 Joseph Nichols (Texas)
20 Kenneth Biros (Ohio)
28 Vincent Gutierrez (Texas)
29 Roy Pippin (Texas)


CLE/UPCOMING EVENTS


WEDNESDAY, FEBRUARY 28, 2007:  Cindy Viol, OKC Public Defender's Office, will present a short CLE in the Public Library, downtown OKC, from 12:10 to 1:00 p.m.  The topic is medical testimony in child sex abuse cases.  Cindy handles these cases almost exclusively at the public defender's office and has probably as much experience in these cases than anyone.  Some of her materials are going to appear in the upcoming issue of The Gauntlet.  If you practice in Oklahoma County you should know who Kathy Hatelid is and how important it is to cross-examine her effectively.  The materials will be on CD and will include SIX COMPLETE TRANSCRIPTS of Hatelid testimony as well as 4 partial/excerpted transcripts.  I will be arguing a case in the circuit that day or I would definitely be going to this.  For more information you can contact Cindy at the PD's office.

THURSDAY, MARCH 1, 2007:  Al Gore, the bestselling author of An Inconvenient Truth and the 45th vice president of the United States, will deliver a presentation on global warming to University of Oklahoma students Thursday, March 1st, in Paul F. Sharp Concert Hall of Catlett Music Center, 500 W. Boyd St. Doors will open at 3 p.m. Gore's presentation will be part of a campus discussion of different points of view on global warming.  For more information call OU Special Events at 405.325.3784.

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