Anthony Paul Free v. State, No. F-2006-1086 (Okl.Cr., February 25, 2008) (unpublished):  "Bad Acts":  Free was convicted by a jury in Tulsa County of Lewd Molestation, after former conviction of a similar offense, and sentenced to mandatory LWOP.  Free raised one issue on appeal:  it was error for the State to introduce evidence of his prior acts of child sexual abuse twenty years earlier in Arkansas.  One issue was all it took, though, because the Court REVERSED and REMANDED for a new trial.  The trial court allowed the evidence under the then-existing "greater latitude rule" pursuant to Myers v. State.  While Free's case was pending on direct appeal, the Court overruled Myers in James v. State.  The Court held that the prior crimes had "no visible connection" to the charged crime because the gender of the victims was different and the acts were different; also, the prior acts were too remote in time to offer any probative value at trial.  The Court stated:  "Other crimes evidence should not be admitted where its minimal relevancy suggests the possibility the evidence is being offered to show a defendant is acting in conformity with his true character....The minimal relevance of the other crimes evidence in this case suggests that this evidence is only being offered to show propensity, an improper reason for admission under our statutes."  NOTE:  This appears to be exactly the reason why the legislature enacted the new rules of evidence in 2413 & 2414.  In a footnote, the Court recognized these additions to the Oklahoma Evidence Code, but appeared to suggest that these new evidentiary provisions do not apply to this case because they were enacted effective April 30, 2007.  Thus, it remains unclear to me exactly how a relevancy and an unfair prejudice analysis applies under the new evidentiary provisions since the Court appeared to conduct an analysis under 2404 only.  NOTE:  The Court noted that the mandatory LWOP sentence is found at 21 O.S. 51.1a, but 21 O.S. 1123 has its own enhancement which is inconsistent with 51.1a.  However, in light of the reversal of the conviction, the Court chose to "not delve into this morass."  NOTE:  This was a 3-2 opinion.  Judge Lumpkin dissented based on the new 12 O.S. secs. 2413 & 2414.  Judge A. Johnson concurred in part and dissented in part, agreeing that it was error for the trial court to admit the evidence, but holding that it was harmless; and, as to the sentence, she seems to see no tension between 51.1a and 1123 on this point and would hold that since 51.1a applies, and mandates LWOP, the error could not have affected the sentence even if it inflamed the passions of the jury.

Bradley W. Ise v. State, No. M-2005-375 (Okl.Cr., February 22, 2008) (unpublished):  Guilty Pleas:  Ise got tagged by a jury in Love County with a bunch of misdemeanors:  Reckless Driving, Leaving the Scene of an Accident, Failing to Register a Vehicle, and Failing to Carry Security Verification.  The jury imposed jail time and fines.  REVERSED and REMANDED for new trial because the State, during cross-examination of Ise when he took the stand, questioned him about his prior guilty plea to the charges (that he was allowed to withdraw when he hired counsel).  Trial counsel for some reason did not object, but the Court found plain error anyway that was reversible.  NOTE:  The Court reversed with instructions to dismiss the count of Failing to Register a Vehicle since Ise was a resident of Kansas who bought his vehicle in Texas.  The Court found that, while either Kansas or Texas might be able to prosecute him on this basis, Oklahoma statutes apply only to those vehicles purchased in the state of Oklahoma.

State v. Patricia Campbell, No. SR-2007-134 (Okl.Cr., February 21, 2008) (unpublished):  Demurrer/Motion for Directed Verdict:  This case deals with reserved questions of law pursued by the State.  Campbell was charged with Second Degree Felony Murder by Child Neglect.  However, Judge Enos in Stephens County sustained her demurrer and allowed her to plea to the lesser crime of Second Degree Manslaughter(??)  The Court held that the trial court had authority to do this.  It appears that the trial court sustained the demurrer but was going to instruct the jury on the lesser crime.  The Court held this was proper under Shrum as long as the lesser crime is supported by the evidence at trial.  I would think there would be some double jeopardy issues there, but the Court held:  "Thus, we answer that the trial judge has the authority to sustain a demurrer and hold a defendant to answer for a lesser crime than that charged in the information."  Also, there was an issue of whether the Child Neglect statute must be read in the disjunctive since the Legislature phrased it in terms of a list of things proscribed followed by "and" after each.  The Court held that the "and" meant that all must be present.  However, the Legislature has since amended the statute in this regard so the issue will not come up again in this context. 


Tenth Circuit

United States v. Mitchell, No. 05-2052 (10th Cir., February 29, 2008) (Published):  1. Filing Deadlines; 2. Appellate Jurisdiction:  In this federal criminal case, Mitchell's lawyer filed the notice of appeal one day late.  He filed a motion for an extension of time to file the notice of appeal due to excusable neglect (which was itself filed out of time) which was granted by the District Court.  The Government never raised the issue of appellate jurisdiction.  However, at oral argument, the circuit raised the jurisdictional issue sua sponte and dismissed the appeal.  The case came back to the circuit from a remand by the Supreme Court in light of Bowles, which held that court-issued (as opposed to statute-based) federal procedural rules are not jurisdictional, but rather are inflexible claim-processing rules.  Since FRAP 4(b) is such a claim-processing rule, the circuit had to decide whether it could sua sponte dismiss when the Government did not object.  HELD:  The panel may raise a time bar sua sponte.  However, such power is "limited and should not be invoked when judicial resources and administration are not implicated and the delay has not been inordinate."  In this case, a one-day delay did not satisfy this test, thus the panel proceeded to the merits which, unfortunately for Mitchell, ended up in a rejection of his suppression motion.  Judge Lucero filed a DISSENT in which he agreed that the panel had the power to consider sua sponte an untimely filed notice of appeal even when the issue has been forfeited by a party, but he would apply well-established standards of "good cause" and "excusable neglect" neither of which were, in his view, satisfied in this case by counsel's "garden-variety mea culpa."

United States v. Ibarra-Coronel, No. 06-2183 (10th Cir., February 28, 2008) (Published):  Waiver/Guilty Pleas:  Coronel entered into a plea agreement pursuant to Rule 11 to a single count of Conspiracy to Distribute one kilogram or more of Heroin.  At the plea hearing, the magistrate mistakenly informed her that the maximum penalty was 120 months, when in fact 120 months was the minimum (with a maximum of life).  The panel held that, under the facts of the case, the appeal waiver was enforceable and thus the appeal was dismissed.

United States v. Maldonado-Lopez, No. 07-2195 (10th Cir., February 27, 2008) (Published):  Federal Sentencing Guidelines; Crime of Violence:  Under the Guidelines, "three or more convictions for misdemeanors that are crimes of violence" enhance a sentence for Unlawful Entry by four levels.  In this case, Lopez had three prior misdemeanor convictions for harassment under Colorado law.  Because the statutory definition was broad enough to include violent as well as non-violent acts, the categorical approach was not applied and the District Court was able to review some of the documents in the cases.  The panel held that, as to one of the convictions, the judgment used by the District Court was insufficient to provide an appropriate factual basis from which the court could find that Lopez had committed a crime of violence.  Thus, left without the requisite three convictions, the enhancement was applied improperly and the case was remanded for re-sentencing.

State of Oklahoma v. Pope, No. 07-6093 (10th Cir., February 26, 2008) (Published):  The Oklahoma Attorney General brought an enforcement action against Pope concerning the use of automated telephone dialing systems.  In that litigation, Pope challenged a portion of the federal Telephone Consumer Protection Act as unconstitutional.  It is unclear which party prevailed in the federal district court below, but in this appeal, the panel vacated the judgment below because the United States Attorney General was not given notice of the challenge under Fed. R. Civ. P. 5.1.

United States v. Fields, No. 05-7128 (10th Cir., February 25, 2008) (Published):  Death Penalty; Federal:  This is a federal capital case that is affirmed on direct appeal.  It involved the "sniper" killings of two campers at the Winding Stair Campground in the Ouchita National Forest on July 10, 2003.  Fields plead guilty and thus a host of penalty phase issues were raised (by myself and Vicki Mandell-King of the Federal Public Defender's Office in Denver), as well as a very complex jurisdictional argument.


United States Supreme Court

No new cases.


Other Cases of Note

United States v. Alexander, No. 06-1867 (6th Cir., February 26, 2008):  Federal Sentencing Guidelines:  Alexander entered a guilty plea to a charge of Sexual Abuse of a Minor.  The District Court departed upward from the Guidelines range but failed to provide notice of the variance as required by Rule 32(h).  Sentence vacated and case remanded for re-sentencing.  NOTE:  This was a 2-1 opinion and involved plain error review since no objection was lodged in the trial court.

United States v. Hughes, No. 07-2213 (8th Cir., February 25, 2008):  Searches and Seizures; Pat Downs:  Police in Kansas City were dispatched to an apartment complex on a call of "suspicious parties on the property."  When the police arrived, they saw Hughes, another black male, and a female standing across the street near a bus stop.  All three were summarily frisked and questioned about what they were doing in the area.  Some live rounds of ammunition were found in the pocket of Hughes and he was subsequently prosecuted.  There were no facts indicating that Hughes was committing or about to commit a crime.  The legal issue was whether a Terry frisk can be justified to investigate a previous misdemeanor (possible trespass onto the apartment property in this case).  Three other circuits have addressed the issue.  The Sixth Circuit held that this is not allowed; whereas the Ninth and Tenth Circuits have refused to apply a per se standard in favor of a case-by-case balancing of the interests of the government and those of the individual.  Here, the Eighth Circuit goes along with the Ninth and Tenth Circuits, holding:  "To determine whether a stop is constitutional, this court must balance the 'nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion.'"  Under the facts of this case, the search was not reasonable and the denial of the suppression motion is REVERSED.


Victories

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



VINCENT ANTONIOLI, now at the D.A.'s Office in Logan County, was able to work some appellate magic during his time in private practice much to the delight of Mr. Ise, who now will get a new trial on his misdemeanor charges in Love County.  Very nice, Vincent!

STEPHEN GREUBEL, Tulsa County P.D., won a huge appellate victory for the touchy-feely Mr. Free, avoiding mandatory LWOP and affording him a new trial(!)  Pretty salty, Stephen!

STEVE HIGHTOWER, Tulsa, represented Kenneth Dominick Johnson in a capital murder case in Tulsa County last week.  Johnson was convicted of murdering three persons, including a 10-year-old girl.  The jury recommended LWOP and rejected the State's efforts to impose the death penalty.  These are very tough cases and takes sharp lawyering skills to achieve a sentence other than death.  Good job, Steve!
 


Hearsay

BRIEF BANK:  This link goes to the USDOJ web site that archives all the briefs filed by the Solicitor General.

DRUG INFORMATION PORTAL:  This is a useful link that goes to the web site of the National Library of Medicine (maintained by the United States National Institutes of Health).  The web site is a simple search window (like Google) and you just type in the name of a drug and it retrieves detailed information about it.  Pretty cool.

MCMAHAN INDICTMENT:  The link goes to the grand jury Indictment of Oklahoma State Auditor and Inspector Jeff McMahan and his wife, Lori.  
  


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


THURSDAY, MARCH 6, 2008:  The Western District in OKC will hold demonstrations on its electronic case filing system beginning March 6, 2008, and continuing until June 4, 2008.  The schedule is as follows (all starting times are 9:00-10:30 a.m.):  March 6 & 27, April 3, May 8, and June 4, 2008.  The tuition is $20 and 2 hours of CLE credit is available.  Be sure to bring your photo ID or else you cannot enter the federal courthouse.  Contact Anne Ross at 405.609.5031 for details.

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.



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