Brumfield v. State, 2007 OK CR 10 (March 20, 2007):  Manufacturing; Double Jeopardy/21 O.S. 11; State Constitutions:  Brumfield was tried by jury and convicted of Aggravated Manufacturing (Meth) and Unlawful Possession of CDS (Meth) in Pushmataha County.  He was sentenced to 20 and 2 years, respectively.  This case was apparently published because of the "vagueness" argument raised by Brumfield in which he argued that the word "mixture" in the Aggravated Manufacturing statute rendered the statute void for vagueness.  This argument is rejected.  The testimony at trial was that there was a jar found in the home that contained a two-layer liquid that did not mix:  one layer on top described by OSBI criminalist Marty Wilson as an aqueous layer; and a second layer on bottom described as an organic/oil layer that contained the meth.  HELD:  1) the weight of ALL THE LIQUID IN THE JAR COUNTS TOWARD THE WEIGHT CALCULATION THAT TRIGGERS THE AGGRAVATED PART OF THE MANUFACTURING STATUTE; and 2) the conviction of Possession of CDS (the liquid used in the manufacturing) violated section 11 and Count II was reversed and remanded with instructions to dismiss (the State conceded this claim).  NOTE:  Other issues were raised in the case but none were properly preserved.  Particularly odd in the opinion is an extensive discussion of the knock-and-announce rule and whether the exclusionary rule applies under STATE LAW in light of Hudson v. Michigan.  The opinion engaged in a lengthy discussion of the issue, noting the Oklahoma Supreme Court's decision in Turner v. City of Lawton, and just when you get to the part where the Court is supposed to hold that Oklahoma law provides greater protection than the Fourth Amendment, the Court decides that since trial counsel did not object to the search AT TRIAL (even though the issue was contested vigorously in pre-trial motions), the issue is waived and the Court does not reach it.  Judge Lumpkin, in a concurring in part/dissenting in part opinion, noted the "eight pages of dicta" on this issue and stated rather pithily that the dicta "is as pertinent to our appellate jurisdiction as my own thoughts on, say, pop culture."  I must say that I agree with him.  I can see no reason for the Court to engage in such an in-depth discussion of the issue and then just summarily reject it on waiver grounds(???).  However, the discussion on the knock-and-announce issue does provide a BLUE PRINT for others to attack such searches on state law grounds and for the love of Pete, ALWAYS REMEMBER THAT YOU MUST OBJECT AT TRIAL TO SEARCH ISSUES EVEN IF YOU LITIGATED THEM IN PRE-TRIAL MOTIONS. 

Lookingbill v. State, 2007 OK CR 7 (March 20, 2007):  Roadblocks/Checkpoints:  Lookingbill was convicted at a bench trial before Judge Richard B. Darby, Greer County, of Possession of CDS (Meth & Marijuana), Possession of Paraphernalia, and Transporting an Open Container of Beer.  The evidence against Lookingbill was acquired by the Oklahoma Highway Patrol at a driver's license checkpoint in rural Greer County.  Two troopers concocted the idea "over lunch" and Lookingbill was caught in the checkpoint stop and ultimately arrested when one of the troopers noticed an open beer in plain view inside the vehicle.  The Court addressed first the odd question of whether Lookingbill could even appeal this case since he received a deferred sentence.  The Rules of the Court of Criminal Appeals do not specifically recognize such an appeal (when the deferred is imposed after a bench trial or a jury verdict).  The Court held that there is a right to appeal under these circumstances and proceeded to analyze the properly preserved (with pre-trial motion and objection at the bench trial) search and seizure issue.  The Court upheld the checkpoint in this case but implemented some procedural requirements in future cases:  "We hold, therefore, that law enforcement agencies operating checkpoints for constitutionally sanctioned purposes (e.g., to ensure that drivers are licensed) should have written standards for the conduct of such operations and policies in place to ensure compliance with those standards.  In future cases, where the constitutionality of a checkpoint is challenged by a motion to suppress evidence, the prosecution will be required to introduce into evidence the agency guidelines governing the operation of the checkpoint at issue.  In order to be constitutional, the operation of a vehicle checkpoint must meet three overarching standards:  1) the operation must be rationally related to the stated public purpose; 2) the operation must be carried out in accordance with agency guidelines limiting officer discretion and assuring all motorists are treated equally; and 3) the operation must be planned and carried out in a manner that minimizes invasion of motorist privacy.  Specific factors to be considered in determining if those standards are met include:  1) the stated purpose of the operation; 2) the approval of superior officers; 3) the degree of compliance with the established agency standards; 4) the time, location, and duration of the checkpoint; 5) the steps taken to inform motorists of the reason for the stop; and 6) the duration of the individual stop.

Shaun Lee Gessel v. State, No. RE-2006-262 (Okl.Cr., March 21, 2007) (unpublished):  Suspended Sentences:  Revocation winner on the grounds of insufficient NOTICE.  The State filed an application to revoke based on a new crime of Assault & Battery with a Dangerous Weapon.  Although the opinion is unclear, it appears that just prior to the start of the hearing, the State filed an Amended Application to revoke which alleged several technical violations (failure to report, failure to pay restitution, failure to complete drug/alcohol assessments).  During the hearing, the State called the probation officer who testified to the technical violations but gave no testimony on the new criminal charge.
 

Tenth Circuit

United States v. Acevedo, No. 05-4284 (10th Cir., March 22, 2007) (Unpublished):  Federal Sentencing Guidelines:  In this unpublished Order and Judgment, the panel reversed and remanded the case for re-sentencing on the basis that the District Court did not articulate specific reasons justifying an upward departure.  NOTE:  Acevedo did not object on this basis at the sentencing hearing and under Tenth Circuit precedent the issue was not preserved.  The panel granted relief on plain error analysis, concluding that meaningful appellate review was not possible without proper findings by the District Court.


United States Supreme Court

Last Tuesday, March 21, 2007, the Court heard oral arguments in Fry v. Pliler, No. 06-5247, which involves an esoteric issue of federal habeas corpus procedure:  if constitutional error occurs in the state courts but the state courts do not analyze it, does a federal habeas court apply the "beyond a reasonable doubt" harmless error standard of Chapman v. California or the "substantial and injurious effect or influence in determining the jury's verdict" of Brecht v. Abrahamson?  There is a circuit split on this issue.

I filed a certiorari petition in a capital case raising this issue just after the Court granted certiorari in Fry.  If the Court sides with the inmate and holds that Chapman applies, it could mean a re-sentencing or possible vacatur for my client, whom I represent along with Bob Wyatt.  We are keeping our fingers crossed.


Convicting the Innocent

In Kansas v. Marsh, 126 S.Ct. 2516 (2006), Justice Scalia presented a spirited discussion of error rates in felony convictions in criminal cases.  One statistic upon which he relied heavily was taken from Joshua Marquis.  According to Justice Scalia and Marquis:  "That would make the error rate [in felony convictions] .027 percent--or, to put it another way, a success rate of 99.973 percent."  Marsh, 126 S.Ct. at 2538.

D. Michael Risinger, Professor of Law at Seton Hall University School of Law, debunks this statistic in a paper titled Convicting the Innocent:  An Empirically Justified Wrongful Conviction Rate.  As with the typical law school scholarship, Risinger goes footnote crazy which makes the paper more difficult to slog through, but his style keeps it interesting and I think he convinces the reader ultimately that in the context of capital punishment, the error rate is much larger (in the range of 3.3%-5%) than Justice Scalia allows. 

Federal Capital Case News

The Federal Defender Capital Resource Counsel and the Federal Death Penalty Resource Counsel Projects prepare a newsletter on the goings-on in federal death penalty cases.  The most recent newsletter can be seen HERE.

There are some good ideas on the theory of the case as well as good summaries of recent decisions in federal death penalty cases.  The number of Resource Counsel has been expanded and now includes Oklahoma lawyer Dick Burr.


Victories

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


The victory stories are somewhat thin this week.  I would like to remind all of you that, in addition to trial wins, I would like to see more winning motion practice with copies of the winning motions and transcripts of the arguments if available.  I can scan those into .pdf files and upload them easily on the web site so all can see and learn from them.



Hearsay

FORMER JUDGE LILE "STUPID":  Steve Lile, the disgraced former Judge of the Oklahoma Court of Criminal Appeals, was on the hot seat last week before a disciplinary panel at the Bar Association.  It has been reported that Lile admitted last Monday that he filed state travel claims and office expense claims that were "misrepresentations" as well as "actions that gave the impression, because of his position, that he was seeking special treatment for his son, Loran Michael Wilson, in drug-related cases and in prison."  Lile stated, "I was plain stupid.  I wasn't thinking straight."  He blamed a failing marriage, guilt over his son's trouble, and chronic depression for his behavior, noting that he is now divorced and raising his three daughters.  He asked for a public censure as punishment.  It is difficult not to have some sympathy for someone struggling with personal problems, but I must note the irony of this person seeking mercy from a tribunal when he was so dismissive of the plight of others that came before him regularly when he was on the bench.  He probably will receive only a public censure, but at the risk of piling on, I will note that Lile was one of the worst judges in the modern era of the Court.  He was unresponsive to injustice, unimaginative in his opinions, lacked any spark of originality or conviction in his jurisprudence, and made little, if any, discernible effort to promote the progress of the law in this state.

THE BLACK WIDOW:  This news article exposes a fascinating tale of a 62-year-old woman dubbed "The Black Widow" because she apparently has a habit of marrying wealthy men, running up as much debt as she can, and then killing them.  She is suspected of killing husband number three, Alan Rehrig, in Oklahoma City back in December, 1985.  Fascinating story.

LETHAL INJECTION:  The lethal injection protocol used by most states that allow capital punishment have been under steady attack by condemned inmates.  This article is a pretty good primer on how things now stand around the country.  The central civil suit in Oklahoma, pending before Judge Friot in the Western District, has been stayed for various reasons, most notably of which is that sentencing relief was granted to one of the plaintiffs by the Tenth Circuit.     
 


                        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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