In Re:  Privacy and Public Access to Court Documents, 2008 OK 23 (Okl., March 25, 2008):  Privacy Redactions:  The Court apparently succumbed to the hue and cry following its initial order issued March 11, 2008, and has, in this order, withdrawn its previous order "to give the issue further study and consideration."  NOTE:  The Court seems split on this issue since the order withdrawing the prior order was by only a 5-4 vote.

Littlejohn v. State, 2008 OK CR 12 (Okl.Cr., March 26, 2008):  Death Penalty; State Cases:  Oklahoma County death penalty case in which the death sentence is vacated based on a claim of IAC for failure to investigate and present available mitigation evidence.  Remanded for re-sentencing.

Robert Larue Jones v. State, No. F-2006-1339 (Okl.Cr., March 27, 2008) (unpublished):  Alibi:  This is an instructive case dealing with the defense of alibi.  Jones was tried by jury in Oklahoma County before the Hon. Virgil C. Black on a charge of Robbery with a Firearm (AFCF).  He was convicted and sentenced to 50 years.  At trial, Jones filed properly his notice of intent to offer alibi and requested an instruction on his theory of the defense.  Judge Black refused to instruct the jury on this defense because the only evidence presented was the testimony of Jones himself (it appears that Judge Black was skeptical of the story of Mr. Jones).  REVERSED and REMANDED for a new trial.  The Court stated:  "The evidence of the defense may come from any source and should not be weighed by the trial court."  Jones was entitled to an instruction on alibi and the failure of the trial court to so instruct was reversible error.

Jermaine Darnell Neugent v. The Honorable Twyla Mason-Gray, No. HB-2008-177 (Okl.Cr., March 19, 2008):  Bail; State:  Neugent was charged in Oklahoma County with several drug counts.  Bong was set at $20,000.00 and posted by Neugent.  He failed to appear at a PHC and his bond was doubled.  He was later arrested and returned to custody of the Sheriff.  He appeared before Judge Hall who again set the bond at $40,000.00 and this was posted by Neugent.  Thereafter the State filed a motion for detention without bond and a hearing was set before Judge Gray who granted the motion.  In this proceeding for a writ of habeas corpus, the Court granted the writ and directed Judge Gray to reinstate the $40,000.00 bond on the basis that neither the State's motion for detention nor Judge Gray's findings at the Brill hearing offered any new evidence known to the State since the bond was set by Judge Hall; thus, the procedural requirements of Brill were not met.  NOTE:  The Court directed Judge Gray, or her representative, to file a response but none was filed.  Also, defense counsel, Cindy Viol, filed a good brief that raised quite a few issues in this case.  A copy of the brief can be found HERE.  Although the Court granted relief on one ground, the brief might give you some other ideas if this issue comes up in one of your cases.

Jeffrey Leroy Carpenter v. State, No. RE-2006-1322 (Okl.Cr., March 18, 2008) (unpublished):  Youthful Offender:  Carpenter plead guilty to Rape in Ottawa County before the Hon. Robert E. Reavis, II, and was sentenced to 7 years with all but the first three suspended.  The State moved to revoke, alleging that Carpenter failed to register, failed to pay probation fees, and failed to pay fines and costs.  Revoked in full.  Here is the kicker:  Carpenter was charged originally, and found to be for the duration of the case, a Youthful Offender.  Thus, the original sentence as an adult, which apparently was imposed by the trial court sua sponte and without objection (???) was illegal and plain error.

James A. Sherfield v. State, No. F-2006-699 (Okl.Cr., March 12, 2008) (unpublished):  Experts:  This is an intriguing case involving the bane of many a defense lawyer in Oklahoma County:  physician's assistant Kathleen Hatlelid.  She is notorious for being a State shill in sex abuse cases because she often gives expert testimony to the effect that she diagnosed "sexual abuse by history" which means that she spoke briefly to the complaining witness who told her there was abuse.  That is it.  Trial judges in Oklahoma County actually allow here to get away with this nonsense.  In this appeal, the relevant discussion is at page 5.  The Court appears to hold that, in a case in which there is no physical evidence of abuse, it is error for her to testify to "sexual abuse by history."  Judge Chapel's dissent illustrates the point in more detail and is worth a read.  The Court's analysis is somewhat confusing on this point because in the first sentence it cites two published cases upholding such testimony; but then it proceeds to engage in a harmless error analysis(?)  Judge Chapel pointed out that in the published cases, there were was also physical evidence supporting her diagnosis, whereas in Sherfield's case there was none.  The Court found that the error was harmless, so a tough break for Sherfield, but there is some good language for us in possibly objecting to such testimony.

     
Tenth Circuit

United States v. Nacchio, No. 07-1311 (10th Cir., March 17, 2008) (Published):  Discovery:  This is an epic, 74-page opinion reversing the convictions of Joseph Nacchio, the former CEO of Qwest Communications International, Inc., of 19 counts of insider trading, although the panel split 2-1, with Judges Kelly and McConnell in the majority and Judge Holmes dissenting.  The basis for the reversal was the order of the District Court refusing to allow Nacchio to present an expert witness.  The District Court found the disclosures by the defense under Rule 16 to be inadequate and constituted an abuse of discretion and a denial of the right of the defendant to present a defense.  NOTE:  The majority opinion is a pretty stern rebuke of the District Court which was obviously hostile to the defense.  The remand came with instructions that the case be assigned to a different trial judge.

United States v. Sanchez, No. 06-2329 (10th Cir., March 17, 2008) (Published):  Searches and Seizures; Pat Downs:  Two cops in Albuquerque were standing by their patrol cars when they were flagged down by an unknown woman.  The woman was "excited" and relayed that she had seen a man wearing a gray ski shirt hitting a woman in the face at an intersection a block away.  The officers drove to the intersection and, although they did not see a man striking a woman, they did see two cars pulling quickly away from a home.  Neighbors pointed at the two vehicles as if to indicate "that's them."  Both vehicles were stopped.  In one vehicle the sole occupant had a concealed handgun and this information was relayed to the officers detaining the other vehicle.  In the other vehicle, in which Sanchez was a passenger, officers patted down all occupants, finding .22 caliber pistol underneath the driver's seat "but closer to the reach of a person in the backseat, where Sanchez had been sitting."  Sanchez, unfortunately, was a convicted felon and for this particular bit of stupidity, he is now serving 180 months in prison.  In this appeal, the panel AFFIRMED the denial of the motion to suppress, finding that the stop was lawful at its inception and the limited pat-down searches were reasonable.

United States v. Hernandez-Hernandez, No. 07-2028 (10th Cir., March 21, 2008) (Published):  Scienter:  Hernandez-Hernandez, a Mexican citizen who had twice been deported, was in Mexico and drank alcohol and smoked reefers until he blacked out.  When he awoke, he had miraculously been transported to the United States and claimed to have had no idea how he got here.  He was arrested for illegal re-entry.  In this opinion, the panel AFFIRMED the conviction over his claim that the District Court erred in disallowing evidence of the alcohol and drug use, thus preventing him from presenting a defense.  The panel reasoned that such evidence was not relevant since the intent element of the crime is general and Hernandez failed to show that the acts that resulted in his presence in the United States were unintentional.

Yellowbear v. Wyoming Attorney General, No. 06-8064 (10th Cir., March 21, 2008) (Published):  Habeas Corpus; Second/Successive:  This is a convoluted habeas corpus case.  Yellowbear was charged in Wyoming state court with a murder that he alleged occurred in Indian Country.  He thus contested the state court's jurisdiction by bringing a habeas action in federal court under 28 U.S.C. sec. 2254.  However, he should have brought it under 28 U.S.C. sec. 2241 and he did not exhaust state remedies.  The District Court dismissed and he appealed.  The Circuit construed it as a 2241 petition but did not grant a COA because of the failure to exhaust.  While awaiting trial, he pursued the issue in the Wyoming state courts and exhausted his state court remedies.  He then filed a proper 2241 action back in the federal District Court which was dismissed under the abstention doctrine (basically to go through the appeals process).  Yellowbear was found guilty and sentenced to life.  NOW, poor Yellowbear, who filed a 2241 motion, must actually proceed under 2254(!)  HELD:  Reversed and remanded for the District Court to permit Yellowbear the opportunity to recharacterize his petition as one under 2254.  NOTE:  The panel described the difference between the two statutes as:  2241:  A vehicle for challenging pre-trial detention or for attacking the execution of a sentence.  2254:  A vehicle for attacking the validity of a conviction and sentence.

United States v. Cervantes, No. 06-4172 (10th Cir., March 24, 2008) (Published):  Federal Sentencing Guidelines; Safety Valve:  Cervantes plead guilty to one count of Possession of Meth with Intent to Distribute and was sentenced to the statutory minimum of 120 months.  He appealed the District Court's denial of his request for a "safety valve" adjustment.  AFFIRMED because Cervantes failed to satisfy his burden of showing the District Court that he had provided complete and accurate information to the Government.

United States v. Rangel, No. 06-2161 (10th Cir., March 26, 2008) (Published):  Prosecutorial Misconduct; Presenting False Testimony:  This is a very interesting case out of New Mexico in which Rangel was convicted by jury of Possession of 5 Kilograms of Cocaine w/Intent to Distribute.  He raised several issues, but the one discussed in this appeal is whether the Government knowingly relied upon perjured testimony by the case agent.  The panel found enough merit to the allegations to ABATE the appeal and allow Rangel to pursue the matter in a 2255 claim in the District Court(!)  The DEA Agent made several inconsistent statements throughout his preliminary hearing testimony, his DEA-6 report, and his trial testimony, which was also rebutted by several witnesses present on the bus where the arrest occurred.


United States Supreme Court

Snyder v. Louisiana, No. 06-10119 (U.S., March 19, 2008):  Peremptory Challenges/Batson:  This is yet another winner on a Batson claim in a capital case out of the Court.  Also, only Justices Scalia and Thomas dissented.

Medellin v. Texas, No. 06-984 (U.S., March 25, 2008):  Vienna Convention:  In this case involving a death row inmate's assertion, filed in Texas state court, that the state violated the Vienna Convention, the Court held that neither the ruling from the International Court of Justice in Avena nor the President's Memorandum indicating that United States would discharge its obligations under the Vienna Convention, pre-empts a state from imposing a procedural default and dismissing a petiton as successive and abuse of the writ.  The Court stated:  "While a treaty may constitute an international commitment, it is not binding domestic law unless Congress has enacted statutes implementing it or the treaty itself conveys an intention that it be 'self-executing' and is ratified on that basis."  The opinion is an 89-page monster.


Other Cases of Note

United States v. West, No. 06-6109 (6th Cir., March 26, 2008):  Searches and Seizures; Search Warrants; Sufficienty:  Excellent winner holding that two affidavits for search warrants were "bare bones" and lacking in facts sufficient to establish probable cause (and one was not only "bare bones" but showed clear reckless disregard for the truth); and, neither were saved by Leon.  NOTE:  2-1 split opinion.

Downs v. McNeil, No. 05-10210 (11th Cir., March 24, 2008):  Habeas Corpus; Statute of Limitations/Equitable Tolling:  One-year statute of limitations under the AEDPA does not bar the federal habeas petition here because of equitable tolling by "egregious attorney conduct."

United States v. Davenport, No. 06-30596 (9th Cir., March 20, 2008):  1. Child Porn; 2. Double Jeopardy/21 O.S. 11:  Convictions for both Receipt of Child Pornography and Possession of Child Pornography, based upon the same acts, violate double jeopardy because Possession is a lesser-included offense of Receipt.


Victories

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



DAVID AUTRY, OKC, scored a nice appellate win for Keary Littlejohn who was sentenced to death in Oklahoma County.  As a result of David's fine advocacy, Littlejohn's death sentence was vacated and the case re-manded for re-sentencing.  Another good result for David!

FAUSTINE ELIZABETH CURRY, OK CO P.D., won a new trial on appeal for the alibi-challenged Mr. Jones in Oklahoma County.  Terrific work, Faustine!

MARK P. HOOVER, OIDS, makes an impressive second straight trip to the Victories section for winning the appeal for Jeffrey Carpenter in the Youthful Offender case above.  Very impressive work, Mark!

CYNTHIA A. VIOL, OKC, won the habeas case on appeal for Mr. Neugent and also gave us some ammo to combat Kathleen Hatlelid in the Sherfield case as well.  Cindy is one of the most experienced attorneys in child sex abuse cases in the state.  Good work, Cindy!
 

Hearsay

ROOTBEER KEG PARTY BUSTED:  This is a funny little story in which a teenager in Wisconsin threw a keg party---only the keg was full of rootbeer.  The cops were summoned because of a traffic complaint, but conducted "nearly 90" breath tests on the teens at the party.  I wonder if any of the cops thought to just go to the keg and make sure it was actually beer.  Guess not.

PRESIDENTIAL PARDONS/COMMUTATIONS:  Last Tuesday, President Bush issued presidential pardons to 15 persons and 1 commutation.  President Bush has issued a total of 157 pardons in his seven years in office, which is among the fewest for any President (President Truman granted the most pardons at 2,031).




                    ------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