Daniel Hawkes Fears v. State, No. F-2004-1279 (Okl.Cr., January 26, 2007):  This is an unpublished order denying the State's petition for rehearing.  Fears was convicted by jury of multiple counts, including two counts of Murder in the First Degree, as the result of a crime spree in Sequoyah County.  The main opinion reversed the convictions and remanded with instructions to enter a verdict of not guilty by reason of insanity.  Although rehearing was denied, the opinion reveals a very contentious issue.  Judges Lumpkin and A. Johnson dissented, with Judge A. Johnson pointing out quite correctly the absurdity of deciding a case of first impression that purports to overrule existing law but designating the opinion as not for publication.     


Tenth Circuit

United States v. Gaines, No. 06-7043 (10th Cir., January 30, 2007) (Unpublished):  Remand for an evidentiary hearing on the issue of competency to enter a guilty plea.  This case is from the Eastern District of Oklahoma.  The BOP issued a letter to the Court questioning the credibility and accuracy of the psychological evaluation performed by Dr. Thomas Patenaude.  The District Court took no action, but the Circuit remanded for an evidentiary hearing on the issue.

United States v. Walker, No. 05-2287 (10th Cir., January 31, 2007) (Published):  Searches and Seizures; Protective Sweeps:  Felon in possession of a firearm case where the District Court denied the motion to suppress.  HELD:  reversed and remanded for a determination of whether exigent circumstances would have allowed the police to search the house for victims in need of immediate aid.  The case started with an anonymous call to 911, saying that two men had guns and were threatening to kill each other.  A Deputy arrived at the house ten minutes later and observed no cars or people near the house.  He knocked on the door (first opening a storm door to get to the wooden door) and his knocks opened the door.  While he did that he yelled that he was a Deputy and when the door was open he heard a voice say, "Yeah, and I got a goddamn gun."  The deputy and other officers immediately entered the home.  The panel held that opening the storm door was not a violation of the Fourth Amendment and that exigent circumstances justified entry into the house (the occupant saying that he had a gun justified the officers defending themselves by dealing with the occupant).  However, the panel found the corresponding sweep of the entire house unjustified on the record and remanded for such a determination by the District Court.


United States Supreme Court

No new cases from the Court last week.


Other Cases of Note

United States v. Knellinger, No. 3:06cr126 (E.D. Va., January 25, 2007):  Child Porn:  In this federal child porn case, the Adam Walsh Child Protection and Safety Act requires that the child pornography remain in the custody of the United States or the Court, so long as the defendant has "ample opportunity for inspection, viewing, and examination" of the evidence at a Government facility.  Knellinger requested a mirror image copy of his hard drive and the government refused.  The Court held that Knellinger was entitled to a mirror image copy for use by his experts because of the testimony that it would not be practical for the experts to move all their equipment to a government facility.

Davis v. Coyle, No. 02-3227 (6th Cir., January 29, 2007):  Habeas Corpus; Capital Habeas Cases:  Capital state habeas case reversed when defendant was not allowed to present evidence of his good behavior in prison during the five years from his initial death sentence to his re-sentencing hearing.
    

Victories

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


Something must be in the water in Duncan.  The Duncan Banner reported the two victory stories below, both of which appear to be the result of good lawyering and courageous judges:



RICHARD O'CARROLL, Tulsa, represented a special education teacher who was accused of aggravated assault and battery.  Richard argued that a developmentally disabled child is not "incapacitated" under state law.  Special Judge Carl LaMar agreed and dismissed the case at PH.  The State appealed to Comanche County District Judge Charles Allen McCall.  McCall indicated that he may have ruled differently if he was the PH judge, but he nevertheless upheld the dismissal.  The State is mulling over a decision whether to appeal to the Court of Criminal Appeals or re-file the case as a misdemeanor.  Terrific advocacy, Richard!  

JOHN STUART, represented a woman charged in Duncan with Murder in the Second Degree.  The case centered around allegations that the client caused the death of a child by neglect.  Stuart convinced District Judge Joe Enos that the child neglect statute, which uses the word "and" to connect the elements, requires a showing of all the listed elements.  The Murder II count was dismissed and the client entered a plea to Manslaughter in the Second Degree.  Good job, John!


Hearsay

STATES vs. FEDS:  The federal Real ID Act (to take effect in 2008) places requirements on the states in issuing IDs, including running the names through a national immigration database.  The states do not seem too thrilled with this idea and the legislatures of several states have passed resolutions refusing to implement the act.  HERE is another article on this topic.

BUBBAWORLD:  This is a blog-style web site that features timely news and commentary regarding Oklahoma stories.  The name notwithstanding, the site looks pretty good.

VIDEO VIGILANTE:  The video vigilante and his wife were charged in Oklahoma County with pandering.  Newly-elected District Attorney David Prater has shown his good judgment by recusing and placing that tar-baby case in the lap of Kingfisher Assistant District Attorney Bryan Slabotsky.

POLICE CHIEF TICKETS HIMSELF:  A police chief in Kewaskum, Wisconsin, drove past a school bus that was stopped with its flashers going.  When he realized his mistake he wrote himself a ticket for $235 and paid it the next day, costing himself four points on is driving record.

SENTENCING WEB SITE:  Sentencing Law and Policy is a pretty good site on sentencing issues.

HOW BLOOD/ALCOHOL WORKS:  I thought this article was interesting.  It discusses aspects of blood alcohol content.

NEW JUDGE IN TULSA FEDERAL DISTRICT:  Last Thursday, the U.S. Senate confirmed by unanimous vote Gregory Kent Frizzell to the federal bench in Tulsa.



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