Ricky Allen Rinker v. State, No. C-2005-608 (Okl.Cr., March 12, 2007) (unpublished):  Guilty Pleas:  Rinker is allowed to withdraw his nolo pleas by application of Ferguson v. State, 2006 OK CR 36 (failure to advise client of the 85% rule renders plea involuntary).


Tenth Circuit

United States v. Helmstetter, No. 06-1045 (10th Cir., March 13, 2007) (Published):  Peremptory Challenges/Batson:  Helmstetter was convicted by a jury of multiple counts of passing, uttering, and possessing counterfeit notes with intent to defraud.  AFFIRMED over claims regarding Batson (the Government struck two Hispanic jurors and offered age, 20 years old, as a reason for the strike), restrictions on cross-examination (drug use of a co-defendant), and restrictions on the defendant's testimony regarding the drug use of a testifying co-defendant.  The panel noted that all courts that have considered the issue have refused to extend the Equal Protection in Batson to age discrimination in the use of preremptory challenges.  NOTE:  concerning the drug evidence, the panel noted that the District Court granted a motion in limine preventing the Government from bringing it up, but made no ruling regarding Helmstetter bringing it up and Helmstetter did not seek a specific ruling nor did he attempt to cross-examine the co-defendant on this issue.  It seems clear from the context of the opinion that trial counsel believed the District Court's ruling precluded him from cross-examination on the drug issue.  However, this is a good example of how nitpicky appellate courts are when there is no aggressive effort to pursue something in the court below.  REMEMBER, if you are trial counsel and you leave any ambiguity concerning an objection or let the trial court "move on" without a specific ruling, it will be used against your client!  You must make a good record.  Do not be in too big a hurry and do not let the Government or the trial Court prevent you from doing so.

United States v. Valenzuela-Puentes, No. 04-2283 (10th Cir., March 15, 2007) (Published):  Insanity/Competency:  Puentes was charged with illegal re-entry from Mexico but was found to be incompetent to stand trial by the District Court.  He was sent to a federal medical center which failed to render him competent.  Puentes was diagnosed with a "psychotic disorder, not otherwise specified" and an IQ in the 1st percentile.  He believed he was employed by the United States government as  "federal runner" and enjoyed dual citizenship and/or was a citizen of "the United States of Mexico" which he believed was a single country comprised of Canada, Mexico, and the United States.  He refused all medication.  The Government moved for an order permitting involuntary medication.  The District Court granted the motion after a hearing pursuant to Sell v. United States, 539 U.S. 166 (2003).  REVERSED and REMANDED for further proceedings.  The panel seemed concerned that the District Court did not articulate the proper standard (clear and convincing evidence) and failed to recognize the conflict in the medical testimony.

Ackerman v. Novak, No. 06-1464 (10th Cir., March 15, 2007) (per curiam) (Published):  Habeas Corpus; Second/Successive:  Ackerman was convicted in a military court martial.  He moved for permission in the Circuit to file a second or successive habeas petition under 28 U.S.C. 2254.  HELD:  DISMISSED as unnecessary since military convictions can be attacked under section 2241 rather than 2254; and, as a matter of first impression, section 2241 cases do not require authorization by the Court of Appeals.

United States v. Ramirez, No. 05-4099 (10th Cir., March 16, 2007) (Published):  Wiretaps:  Multiple defendant case raising multiple issues in a drug conspiracy case.  AFFIRMED in this very lengthy opinion over claims of:  1) illegal wiretaps (with decent discussion of probable cause, necessity, and minimization requirements); 2) illegal traffic stops; 3) miscellaneous evidentiary rulings; 4) sufficiency of the evidence; 5) IAC; and 6) sentencing issues.


United States Supreme Court

No new decisions from the Court.

HERE is a link to the recent certiorari grants/notable cases (all cases, not just criminal cases).

Watson v. United States, No. 06-571 (U.S., cert. granted February 26, 2007):  QUESTION PRESENTED:  Whether mere receipt of an unloaded firearm as payment for drugs constitutes "use" of the firearm during and in relation to a drug trafficking offense within the meaning of 18 U.S.C. sec. 924(c)(l)(A) and this Court's decision in Bailey v. United States, 516 U.S. 137 (1995).  CASE BELOW:  191 Fed. Appx. 326.


Other Cases of Note

United States v. Smith, No. 06-20674 (E.D. Mich., March 8, 2007):  Sex Offender Registration:  Judge Paul D. Borman recognized that other courts have rejected ex post facto attacks on the Adam Walsh Act that make it a crime to travel in interstate commerce and knowingly fail to register; however, he applied the plain language of the statute which uses the word "travels" in interstate commerce to mean present and future tense and thus not applicable to such travels that occurred prior to the implementation of the law on July 27, 2006.  The motion to dismiss is GRANTED. 

State v. Riels, No. 03-06530 (Tenn., March 1, 2007):  Death Penalty:  Interesting capital case out of Tennessee where the death penalty is vacated because the trial court sua sponte held that the defendant, who opted to testify, opened the door to various aspects of cross-examination when he testified that he did not mean for the murder to happen and did not want to hurt anyone.  The trial court called the parties to the bench after this testimony and sua sponte informed them that the defendant had opened the door to cross-examination with his confession (that had been suppressed).  The State did not indicate that it intended to use it.  The Tennessee Supreme Court characterized the statements as the defendant's way of expressing remorse and held that the trial court's sua sponte raising the issue was error.

United States v. Parker, No. 9501500 (N-M Ct. Crim. App., February 28, 2007):  Death Penalty; Mental Retardation:  The U.S. Navy-Marine Corps Court of Criminal Appeals looks at mental retardation under Atkins and, after summarizing the holdings of other courts, establishes the standards for Atkins claims for Courts Martial in the naval services.  The court expressly adopted the SEM and Flynn Effect as part of the scaling process for IQ scores in mental retardation cases.  The SEM stands for the Standard Error of Measurement of five points in IQ scores.  The Flynn Effect is an attempt to explain IQ level increases in industrialized countries and postulates that, as IQ tests get older, populations do not get smarter; rather, they just accumulate more information as common knowledge which results in better scores on older tests. 

State v. Hess, No. 94,318 (Kan. App., March 8, 2007) (Published):  Searches and Seizures; Traffic Stops:  Excellent motion to suppress winner in a traffic stop case where the arresting officer testified that the vehicle proceeded in a straight line close to the lane divider markings.  This "hugging the line" did not provide adequate reasonable suspicion that the driver was driving while impaired.  The officer testified that typical behavior for impaired drivers included erratic driving, fast driving, slow driving, veering, sudden stops, and not signaling.  The driver in this case did none of those things.  NOTE:  the traffic stop was effected based on reasonable suspicion of driving while impaired.    


Federal Sentencing

HERE is an interesting article by Alan Ellis in which he interviews Tess Lopez, a 13-year former U.S. Probation officer in the Northern District of California in San Fransisco.

She gives some practical advice on dealing with federal probation officers and managing pre-sentence investigations in federal court.  In a nutshell, just know that the probation officer gets a very ugly portrait of your client and the crime from the government and you must do everything you can to provide the probation officer with a more balanced presentation of the facts. 

The advice seems obvious and straightforward but it still is the best there is:  find out everything you can about your client as soon as you can so you can apply favorable facts to the sentencing factors under section 3553.

Victories

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



JIM COSBY won a Rape I jury trial recently but I do not have many details. 

JOHN W. COYLE, III, JAMES L. HANKINS, JOHN W. (BILLY) COYLE, IV, OKC, won an (increasingly) rare certiorari appeal for client Ricky Rinker, who has been allowed to withdraw his nolo pleas and proceed to jury trial in the case outlined above.

JEFF SIFERS & CHARLES SIFERS, OKC, laced them up in Beckham County defending a client charged with DUI, DUR, and Straddling Lanes.  The trial judge was the Hon. Floyd Haught and the prosecutor was Gina Webb.  Client had two prior DUIs and two prior drug arrests.  In this case, client refused the State's test.  The centerpiece of the State's case was a 45-minute videotape of the traffic stop and drive to jail which featured client cussing the arresting officer for a good 30 minutes(!)  Charles reports that he filed 22 motions prior to trial and 4 more motions in limine on the day of trial (including one dealing with the refusal jury instruction) and Judge Haught denied them all!  Although Charles conducted voir dire and gave the opening statement, Jeff stepped up and cross-examined the State's main law-enforcement witness.  How do you know if you've done a good job on cross-examination?  When the prosecutor mentions in closing argument that she did not know who testified more, you or the cop witness.  Sounds like Jeff is on the right track.  Although it was a close question, client did not take the stand.  The jury came back with a not guilty on the DUI but guilty on the other two misdemeanors, proving once again there are few lawyers in Oklahoma with a more firm grasp on DUI law than Charles, and now Jeff.  Congrats on a good win!


OTHER:  Mack Martin, Reggie Whitten, both of OKC, Eugene Robinson, Tulsa, and Alan Carslon, Bartlesville, have been inducted into the American College of Trial Lawyers.  This is quite an honor. 


Hearsay

PUERTO RICO JURY REFUSES TO IMPOSE DEATH:  A jury in Puerto Rico refused to impose the death penalty in another federal capital prosecution last October.  Capital punishment is banned under the constitution of the Commonwealth of Puerto Rico and since the death penalty was resurrected by the feds, no jury in Puerto Rico has voted for it.

LAW BLOGS:  This is a link to a good blog site that acts like a search engine to legal blogs, including bogs dealing with DUI issues, Sentincing Law and Policy, and a blog containing contributions by criminal law professors.

NACDL STANCE ON SEX OFFENDER LAWS:  The National Association of Criminal Defense Lawyers has issued a report by its Sex Offender Policy Task Force which, among other things, opposes the death penalty for sex offenders.

OVERVIEW OF THE ADAM WALSH ACT:  Here is a very good overview of the Adam Walsh Act by public defenders Amy Baron-Evans and Sara Noonan.  This memorandum is dated October 19, 2006, and there have been some cases construing the Act since then.

DEATH PENALTY FOR CHILD SEX OFFENSE:  Arguments were presented to the Louisiana Supreme Court earlier this year in the only case in the United States involving the death penalty for child rape that did not result in the death of the child.  The case has been taken under advisement.  In addition to Louisiana, only three other states have laws allowing the death penalty for child rapists:  Montana, Oklahoma, and South Carolina.

THE MCCARTY CASE IN OKLAHOMA COUNTY:  Here is an interesting article from the Oklahoma Gazette on the pending capital case of Curtis Edward McCarty in Oklahoma County.  In this nearly 20 years old case, the State announced in a recent court hearing before Judge Twyla Mason Gray that it had just discovered what appears to be a footprint on the victim and also a plastic bag containing fingernail clippings from the victim.  To his credit, newly elected District Attorney David Prater brought the new evidence to the attention of the court and defense counsel when his office discovered the evidence after taking a fresh look at the case.  McCarty's prior conviction and death sentence were vacated because of the bad faith destruction of evidence by disgraced former OKCPD chemist Joyce Gilchrist.



                        LEGAL CALENDAR         

FRIDAY, APRIL 6, 2007:  The Second Annual Oklahoma Forensic Academy, sponsored by the Criminal Law Section of the OBA, will be held at the Moore-Norman Technology Center, South Penn Campus, 13301 S. Pennsylvania Avenue, OKC, OK  73170.  This program has been approved for 8.5 hours of CLE (1 hour of ethics included).  Moderators are Charles Sifers, Mike Wilds, and Ben Brown.  Registration must be received by 5:00 p.m. on March 30, 2007, and can be sent by fax to Ben Brown at 405.713.7169 (OK County Public Defender's Office) or by mail to Mike Wilds at NSU, 3100 E. New Orleans, C-242, Broken Arrow, OK, 74014.  Tuition is $75 for section members and $90 for non-members.

FRIDAY, APRIL 27, 2007:  Oklahoma Motor Vehicle Law will be presented at Crowne Plaza, 2945 Northwest Expressway, Oklahoma City, OK.  This CLE is presented by HalfMoon, LLC out of Wisconsin (I never heard of it) and features Thomas W. Hosty, John Hunsucker, and Stanley A. Koop.  Looks like a pretty good CLE with an emphasis on traffic laws, DUI, and auto accidents.  This course has been approved for 7.0 hours of CLE and tuition is $239.00.  More information can be obtained at 715.835.5900, e-mail inquiries to doug@halfmoonseminars.com, or by visiting the website (where you can register) at www.halfmoonseminars.com.

 

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