In Re:  Privacy and Public Access to Court Documents, 2008 OK 23 (March 11, 2008):  Privacy Redactions:  All attorneys should note the privacy redactions required by the Oklahoma Supreme Court in all pleadings EFFECTIVE JUNE 10, 2008.  Also, the Supreme Court has ordered all the clerks to remove the pleadings from OSCN.  We will have access only to the docket sheets now.  COMMENT:  What a truly horrible decision to take down the pleadings.  Redactions make sense in order to protect privacy rights and thwart identity thieves, but taking down the pleadings in toto seems ill-conceived and heavy-handed to me.

Ochoa v. Bass, 2008 OK CR 11 (March 12, 2008):  1. Immigration; 2) Habeas Corpus; State:  Judge Bass, in Oklahoma County, sentenced two Spanish-speaking defendants.  During the proceedings, Judge Bass questioned Ochoa (and another Petitioner Robles) about their legal presence in the country.  As a result of this line of questioning, Judge Bass entered orders committing each Petitioner to the custody of the county sheriff.  Judge Bass viewed these orders as his duty under HB 1804 and ordered the Sheriff to contact immigration authorities.  The court GRANTED the writs of habeas corpus in this case, holding that once Sheriff Whetsel notified ICE officials about the issue, and ICE filed an "Immigration Detainer--Notice of Action" it had 48-hours to assume custody under 8 C.F.R. sec. 287.7(d).  When the 48-hours elapsed, the State had no authority to hold them:  "While it may seem inappropriate to release illegal immigrants and thereby indirectly permit them to continue in their illegal status, there is no independent state authority allowing Petitioners' continued state detention.  If the federal government fails to apply federal law and take custody of Petitioners within the time limit set by federal regulations, then the state authorities must release Petitioners."  NOTE:  The Court held that Judge Bass could ask the questions because they are relevant to sentencing; however, the Court stated that a "trial judge probably ought not to ask such questions" and in any event HB 1804 does not require such questions.

Jeffrey L. Jinks v. State, No. C-2007-829 (Okl.Cr., March 13, 2008) (unpublished):  Excessive Sentence:  Jinks entered a guilty plea (blind) in Stephens County to one count of Child Sexual Abuse.  Prior to sentencing, Jinks filed a motion to withdraw his plea.  This was denied and Judge Joe H. Enos sentenced Jinks to 20 in and 15 suspended (35 total).  The Court denied the motion to withdraw the plea (5-0), but modified the sentence to 5 in and 15 out (20 total), by a vote of 3-2 (Judges Lewis and Lumpkin dissenting).  The reasons given why the 35 year sentence "shocked the conscience" of the Court were that the impetus of the court's sentence was protection of the public rather than the offense committed, Jinks had no priors, had mental problems, and had borderline intellectual functioning.


Tenth Circuit

United States v. Thompson, et al., No. 06-4232 (10th Cir., March 12, 2008) (Published):  Taxes:  This 75-page opinion affirms the various convictions of three defendants on conspiracy and tax counts.  You have to wade through 28 pages of complicated facts in order to get to the part where the panel affirms the convictions and sentences over claims of:  1) Sufficiency of the evidence; 2) statute of limitations defenses; 3) the Government's use of "summary charts" (no abuse of discretion); 4) the forced testimony of counsel before the grand jury (no prejudice); 5) denial of severance; 6) refusal of several defense-requested jury instructions (including theory of the defense and lesser crime instructions); and 7) sentencing issues.

United States v. Rodriguez-Enriquez, No. 07-2033 (10th Cir., March 10, 2008) (Published):  Federal Sentencing Guidelines; Crime of Violence:  The panel described this appeal as concerning "whether a conviction for assault two (drugging a victim) under Colorado law is a crime of violence under United States Sentencing Guidelines sec. 2L1.2(b)(1)(A)(ii)."  The panel held that it is not because the elements of the crime do not require the use, attempted use, or threatened use of physical force.

Kilgore v. The Attorney General of Colorado, No. 07-1014 (10th Cir., March 11, 2008) (Published):  Habeas Corpus; Statute of Limitations/Equitable Tolling:  In this federal habeas case, the federal district court ordered Kilgore to provide documentation and further information in order to evaluate exhaustion and statute of limitations issues.  Kilgore failed to do so and the court sua sponte dismissed his petition.  HELD:  Reversed.  "We hold that a sec. 2254 petitioner does not bear a heightened burden of pleadings timeliness in his application.  Consequently, the court may not dismiss the petition sua sponte simply because it lacks sufficient information to determine whether the application has been timely filed.  A petition's untimeliness must either be plead by the government as an affirmative defense, or be clear from the face of the petition itself."

United States v. Olsen, No. 06-4307 (10th Cir., March 11, 2008) (Published):  Joinder:  Olsen attacked his convictions for 15 counts of perjury based upon severance of counts and also raised a sentencing claim attacking the district court's finding of a sentencing fact by only a preponderance of the evidence.  AFFIRMED. 

United States v. Perrine, No. 06-3336 (10th Cir., March 11, 2008) (Published):  Child Porn:  In this child porn case, the panel AFFIRMED over Perrine's motion to suppress and his claim that dismissal was warranted based upon outrageous government conduct.  This is a "chat room" case and describes in pretty good detail how police track down the identities and addresses of the folks engaged in the chat.  Concerning the suppression issue, the panel rejected Perrine's challenges to the way in which his IP address and physical address were acquired under state law and also under the Fourth Amendment.  The panel stated, "Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation."  As to Perrine's claim of outrageous Government conduct, his claim goes like this:  he was on probation for yet another child porn charge, the police seized his computer and were supposed to "clean" all the images of child porn from it and return in to him.  However, he claims that when the police returned his computer, they had failed to "clean" it and it still contained all the child porn.  He argued that this was like the Government giving heroin back to an addict.  Do I really need to tell what the panel thought of this argument?

United States v. Rodriguez-Rivera, No. 06-3386 (10th Cir., March 11, 2008) (Published):  Waiver/Guilty Pleas:  Rodriguez-Rivera plead guilty to Possession w/Intent to Distribute 5 Kilograms or More of a Mixture of Cocaine and was walloped with 235-months.  In this appeal, the panel enforced the appeal waiver in the plea agreement.


United States Supreme Court

No new cases.


Other Cases of Note

United States v. Alvarado-Valdez, No. 99-40370 (5th Cir., March 12, 2008):  Confrontation/Cross-Examination:  Straightforward confrontation winner based on Crawford when a Government witness fled to Mexico and the Government was allowed to introduce his statements through a law enforcement official who conducted an interrogation of the witness before he fled.

Michel v. United States, No. 06-13982 (11th Cir., March 11, 2008):  Habeas Corpus; Statute of Limitations/Equitable Tolling:  Michel submitted an unsigned 2255 motion to the district court within the one-year statute of limitations.  However, the court clerk did not file it until a signed copy was presented.  The signed copy was filed after the SOL had run and the district court dismissed it as time-barred.  HELD:  REVERSED because this situation is controlled by the specific Rules governing 2255 appeals.

United States v. Hudspeth, No. 05-3316 (8th Cir., March 11, 2008) (en banc):  Confrontation/Cross-Examination:  This is a horrible decision from the en banc Eighth Circuit applying Georgia v. Randolph.  When the police found child porn on Hudspeth's computer at his business, they Mirandized him and sought permission to search his home.  He refused.  Despite this refusal, police went to his home anyway and eventually obtained consent from his wife (not telling her that her husband had refused).  The en banc court held that the wife's consent was valid, distinguishing Randolph because that case involved an objecting co-tenant who was physically present, whereas Hudspeth was not physically present at his home.  Ugh.  An absolutely atrocious decision with specious reasoning.  I hope the Supreme Court takes this one to clarify Randolph.

United States v. Rodriguez, No. 07-10217 (9th Cir., March 10, 2008):  Interrogations/Fifth Amendment:  Instructive case involving the rule of Davis v. United States which held that police are not required to stop questioning when a suspect makes equivocal or ambiguous assertions of his right to remain silent.  In this case, the panel held that the "clear statement" rule of Davis applies only after police obtain an unambiguous waiver of Miranda.  This is a very good case and a subtle distinction that may arise in our cases.


Victories

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


MARK P. HOOVER, OIDS, convinced the Court of Criminal Appeals that its conscience should be shocked by the sentence meted out to the hapless Mr. Jinks.  In 85% crime land, there is a huge difference between a 20 and a 5.  Good work, Mark!

JOAN L. LOPEZ, OKC, won a nice victory in the Court of Criminal Appeals on a rare state habeas corpus claim.  Very nice, Joan!
 


Hearsay

AGE OF CONSENT:  ABC News reporter John Stossel is investigating the issue of age of consent across the country.  There is some interesting stuff on his web site.

HB 2957:  This is a nifty bill that would mandate that if the Governor does not act on a parole recommendation by the Pardon and Parole Board within 30 days, the recommendation shall take effect.   



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

THURSDAY & FRIDAY, MAY 15 & 16, 2008:  The Oklahoma Criminal Defense Lawyers Association and the Oklahoma County Criminal Defense Lawyers Association presents THE SEX CRIME ACCUSATION---FIGHTING FOR YOUR CLIENT'S LIFE.  This CLE will be held at The Marriott Hotel, 3233 N.W. Expressway, OKC, OK (1.800.228.9290) and a seminar rate of $109 is available.  The seminar has been approved for 15 hours of CLE (including 1 hour of ethics).  A registration form and program can be found HERE.  This looks like it is shaping up to be a very good treatment on sex offense issues.  Presenters include yours truly.  I will deliver an update on COCA and legislative goings-on along with David Ogle on Thursday.  Other presenters include:  Cynthia Viol, Andrea Miller, David Smith, Jamie Vogt (Forensic Interviewer from Tulsa and for-hire expert that David and Josh have used before), Stanley G. Schneider (Houston, TX), Jamie Farrell (SANE nurse), Dr. Richard Kishur (the OKC sex offender evaluation guru), Robert A. Manchester, Inspector Les Little, Mary Long (OSBI who will discuss DNA issues), Tracy Schumacher, Jack D. Pointer, Julia Summers (Fed. PD here in OKC who will discuss the federal civil commitment law and presumably the case in which she persuaded Judge DeGuisti that her client was not a "sexually dangerous person"), and Jelpi Pichou (New Orleans).  Also, on Friday afternoon there will be panel discussion of the issues in YOUR cases (you can submit your problems to us by April 21).  Some of these luminaries as well as Tony Lacy will try to solve some of the practical problems that arise in real cases.  This one should be good.

TUESDAY, JUNE 3, 2008:  Update to Oklahoma's Immigration Law.  This is an OBA/CLE webcast seminar.  It has been approved for two hours of CLE (0 ethics).  Cost is $100 and you can register on-line at:  www.legalspan.com/okbar/webcasts.asp.  Questions?  Call 405.416.7006.  Particularly relevant to us is a discussion of HB 1804.



SUBSCRIPTIONS: To subscribe click HERE