Justice Robert D. Simms passed away on January 31, 2008.  Justice Simms served on the Oklahoma Supreme Court from 1972 to 1999.


Spence v. State, 2008 OK CR 4 (January 29, 2008):  Jury Instructions; Defense Requested Instructions:  Spence was tried by jury in Cleveland County for Murder in the First Degree and sentenced to life imprisonment.  At the conclusion of the evidence, Judge Hetherington found sufficient evidence to warrant a heat of passion instruction (Manslaughter in the First Degree).  Spence objected and wanted to go all-or-nothing.  Judge Hetherington, relying on Shrum, agreed, sustained the objection and granted Spence's wish which, of course, turned out to be disastrous for Spence.  The rub in this case is that McHam was decided six months before Spence's trial and holds that the trial court is not bound by the wishes of a defendant in this regard and may instruct on lesser offenses over the objection of the defendant.  Spence understandably filed a motion for new trial, alleging that Judge Hetherington made a mistake of law by following Shrum when it had been modified by McHam six months before trial (neither the trial court, nor the prosecutor, nor defense counsel were aware of McHam).  As you might suspect, the Court was not impressed with Spence's argument, holding that nothing in Shrum or McHam prohibited the district court from doing what it did in this case and that in any event the district court's decision had no bearing on Spence's decision to go all-or-nothing.  Frankly, I am a little confused why this case was selected for publication since it involves quirky facts that probably will not repeat in future cases.

In Re:  Amendment of the Rules of the Court of Criminal Appeals, 2008 OK CR 5 (January 31, 2008):  This order amends/creates several Rules of the Court.  I have not reviewed it extensively, but some notable changes include filing 10 copies of everything now instead of 7.  Also, it seems that the federal experience of Judge A. Johnson is being felt because the briefs must now contain a statement of the applicable standard of review and citations to the record where the issue was raised (these have been staples in Tenth Circuit briefs for a long time).
   

Tenth Circuit

Alexander v. United States Parole Commission, No. 06-1343 (10th Cir., January 29, 2008) (Published):  This is a truly odd-ball case that likely will never affect any case you have.  It involves the Federal Youth Corrections Act of 1950 which was repealed in 1984.  According to the Court, there are few inmates remaining who were sentenced under the Act and Alexander may be the only one.  The crime was a brutal murder and robbery of four persons committed when Alexander was 17-years-old, and the U.S. Parole Commission hae repeatedly denied him parole despite the fact that Alexander completed successfully his treatment program.  Finally, a District Court ordered the Commission to take into consideration possible conditions of release and to develop a pre-release plan to be followed by BOP.  The Commission appealed this order.  HELD:  The order is affirmed concerning the requirement that the Commission take into consideration possible conditions on release, but reversed as it requires the Commission to set a release date and develop and follow a pre-release plan.

United States v. Chee, No. 07-4057 (10th Cir., January 29, 2008) (Published):  Interrogations/Fifth Amendment:  Chee, a Navajo "medicine man," was convicted of one count of Aggravated Sexual Abuse While Within Indian Country and sentenced to 253 months (he was acquitted of two other counts of the same).  AFFIRMED over claims that his confession violated Miranda (he was not "in custody" even though he confessed at the police station since he was told he was free to leave at any time and not under arrest) and the application of sentencing enhancements as a result of use of force, vulnerable victim, and abusing a position of trust.

United States v. Taylor, No. 06-1449 (10th Cir., January 29, 2008) (Published):  1) Prosecutorial Misconduct; 2) Standard of Review:  During opening statements at Taylor's trial arising out of a fight he initiated on an Indian reservation, the prosecutor urged the jury to convict him in order to "end the cycle of violence" on the reservation.  Defense counsel objected and the District Court issued a curative instruction which was accepted by the defense.  In this appeal, Taylor attacked the sufficiency of the District Court's curative instruction and the panel found no plain error (even though the comment was inappropriate).  The case is really about whether plain error review applied or de novo review.  The majority framed the question of whether a litigant who has received all the relief he requested, in the form of a sustained objection and a curative instruction, should nonetheless be entitled to de novo review of the effects of any lingering prejudice.  Judge Briscoe concurred in the result of affirming the conviction, but would apply de novo review.

United States v. Lozano, No. 06-1424 (10th Cir., January 30, 2008) (Published):  Federal Sentencing Guidelines; Acceptance of Responsibility:  Lozano was a bit player in a drug ring who made some small distributions of crack and was convicted of those, but acquitted on the conspiracy charge.  She was sentenced to 63 months.  She argued for an acceptance of responsibility reduction because the Government insisted that she enter a plea to the Conspiracy charge in addition to the distribution counts.  She refused and went to trial.  The District Court gave her a one point reduction because the decision to go to trial was partly strategic rather than based entirely on her state of mind.  The panel held that although the District Court's approach might be "logical" it is precluded by circuit precedent (holding that the two-point reduction is an all-or-nothing proposition).  Reversed and remanded for re-sentencing.


United States Supreme Court

No new cases.


Other Cases of Note

United States v. Pugh, No. 07-10183 (11th Cir., January 31, 2008):  Federal Sentencing Guidelines; Reasonableness:  This is an interesting opinion on a Government appeal of a sentence imposed in a Possession of Child Porn case.  The Guidelines called for 97-120 months, but the District Court imposed a sentence of five years probation.  The Circuit panel concluded that this sentence was an abuse of discretion, even in light of the recent Supreme Court cases of Kimbrough and Gall.  The panel held that the District Court failed to articulate sufficiently compelling justification to support the variance, and did not give any apparent weight to many other important statutory factors in 18 U.S.C. 3553(a).

United States v. Carl Dowell, No. CIV-06-1216-D (W.D. Okla., January 25, 2008):  Sexually Dangerous Person:  This is an excellent order authored by Judge Timothy D. DeGiusti that denies the government's motion to declare Dowell a sexually dangerous person under the Adam Walsh Act.  It appears that the hearing turned into a "battle of the experts" between Dr. Lela Demby, the Sex Offender Forensic Psychologist for the Bureau of Prisons, and Dr. G. Richard Kishur, a forensic psychologist in private practice in Oklahoma City.  Very interesting opinion.

Green v. State, No. SC06-211 (Fla., January 31, 2008):  Death Penalty; State Cases:  Death sentence vacated on the basis of extensive mental health mitigation presented at trial.
 

Victories

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



None reported.


Hearsay

OKC LAWYER JAILED:  Oklahoma City attorney Derek Smith was jailed last Tuesday, January 29, 2008, by District Judge Twyla Mason Gray.  Smith represented a client charged with domestic abuse and Judge Gray apparently believed that he was dishonest with her about some discussions concerning the victim not testifying in the case.  From the article linked to this story, it looks like Judge Gray accused Smith of advising his client and the complaining witness to not have the witness testify at trial.  Judge Gray held Smith in contempt and ordered him to jail.  Smith was in fact handcuffed and lead out of the courtroom, with his client, by a deputy.

ALABAMA INMATE RECEIVES STAY:  The U.S. Supreme Court issued a stay of execution last Friday to Alabama death row inmate James Harvey Callahan.  I have no indication that it was based upon the lethal injection issue, but it seems likely that is the case.

WESLEY SNIPES TAX CASE:  Last Friday, a federal jury in Florida acquitted actor Wesley Snipes of two major felony tax fraud charges, but convicted him of misdemeanor counts of failing to file.  It appears that Snipes was caught up with some tax protester kooks who were his co-defendants and who were convicted of the more serious charges.




                    ------LEGAL CALENDAR------

MONDAY, FEBRUARY 11, 2008:  Video re-play of Criminal Law Track---2007 Annual Meeting.  This takes place at the Bar Center, 1901 N. Lincoln Blvd and is good for 6 hours of CLE (no ethics).  This one was moderated  by Ben Brown and Charles Sifers and includes Cheryl Ramsey, Jim Hughes, and Cindy Danner. 

TUESDAY, FEBRUARY 12, 2008:  Video re-play of Litigation and Trials in the Digital Age at the Oklahoma Bar Center, 1901 N. Lincoln Blvd.  This re-play is good for 6 hours of CLE (including 1 hour of ethics).  The line-up looks strong for this one, including a session with Judges Friot and DeGiusti from the Western District, and Judge Bryan Dixon from Oklahoma County.



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