Glossip v. State, 2007 OK CR 12 (April 13, 2007):  Death Penalty; State Cases:  Death penalty case out of Oklahoma County AFFIRMED over claims of:  1) improper death qualification during voir dire; 2) insufficient evidence of Murder I; 3) the introduction of irrelevant and highly prejudicial evidence in the form of testimony about tragedies in the victim's life prior to the murder; 4) improper use of demonstrative aids by the prosecution (large posters of notes of testimony); 5) introduction of an "in-life" photograph of the victim; 6) several instances of prosecutorial misconduct in closing arguments; 7) various instances of ineffective assistance of trial counsel; 8) insufficient evidence to support the sole aggravator of murder for remuneration; 9) error in jury instructions on how to weigh the aggravators against the mitigators; and 10) improper introduction of victim impact evidence.  NOTE:  The discussion of the demonstrative aids is noteworthy because defense counsel requested that the posters be made part of the record but Judge Twyla Mason Gray refused.  The Court held this was error and was "troubled" by Judge Gray's failure to permit defense counsel to make a proper record (although the Court deemed the error harmless).  Judges Chapel and A. Johnson dissented on this issue.

Evans v. State, 2007 OK CR 13 (April 12, 2007):  Wiretaps:  Evans was convicted in Lincoln County before the Hon. Paul M. Vassar of Conspiracy to Traffic in Methamphetamine, Unlawful Use of Communication Facility, Conspiracy to Traffic in Marijuana, and Trafficking in Methamphetamine.  He was sentenced to 50 year terms and life on the principal charges.  AFFIRMED over several claims in this summary opinion, the most notable of which involve the use of state wiretaps.  The Court held:  1) wiretaps are not required to be initiated by a written request by the District Attorney but rather the Attorney General; 2) that the application in this case was valid despite the misdescription of the physical address of the Appellant since the order was directed at a correctly identified mobile communications device rather than a physical address; and 3) the State is not required to exhaust every other conceivable investigative tool before seeking a wiretap order.

State v. Sayerwinnie, 2007 OK CR 11 (April 10, 2007):  State Appeals:  This is a quirky opinion involving a State appeal.  Judge Virgil Black, Oklahoma County, suppressed a confession at a Jackson v. Denno hearing.  The State announced intent to appeal.  The Court DENIED the appeal on the basis that the State failed to show that the confession formed a substantial part of the proof of the pending charge and the State's ability to prosecute the case is substantially impaired or restricted absent the suppressed or excluded evidence.  Thus, in the absence of such a showing by the State in this case, resolution of the appeal is not in the "best interests of justice."  

Gordon Fife Franklin v. State, No. F-2005-228 (Okl.Cr., April 5, 2007) (unpublished):  Cruelty to Animals; Excessive Sentence:  Franklin had amassed several prior felony convictions and when the jury found him guilty of Kidnapping, Assault and Battery with a Dangerous Weapon, and Cruelty to Animals, they were not kind and recommended 250 years on each count which Judge Virgil C. Black imposed.  Although the Court found the sentences excessive and modified them to 55 years, the key discussion involved the Cruelty to Animals count.  The evidence showed that Franklin hit a pit bull and caused scratches on its head.  The Court held that this alone is not enough.  The record must demonstrate that the defendant "cruelly" injured the animal.  In this case, the injuries to the dog were minimal and insufficient to support a finding of suffering or the infliction of a high degree of pain, the dog was not incapacitated in any way and was active when the police arrived, and there was no evidence the three minor scratches required medical attention or that the dog was even momentarily disabled.  The victim testified that Franklin hit the dog and pushed it off of the sofa when it threatened him.  This count is REVERSED with instructions to DISMISS.


Tenth Circuit

United States v. Nash, No. 04-6288 (10th Cir., April 9, 2007) (Published):  Confrontation/Cross-Examination:  Nash was convicted by jury of two drug trafficking offenses and related firearms offense.  AFFIRMED over claims of denial of motion for continuance to investigate and a Bruton error in admitting statements by a non-testifying co-defendant, but remanded for re-sentencing on a preserved Booker error.  NOTE:  the panel found a Bruton violation in this case but the panel split 2-1 on whether it was harmless, with Judge McKay penning a spirited dissent on this issue.  This case was briefed and argued by Vicki Mandell-King of the Federal Public Defender's Office in Denver.  I am working with her on a federal capital appeal and she mentioned that she is planning to seek rehearing en banc on this issue which may have a decent chance.  Stay tuned.

United States v. Novosel, No. 06-3251 (10th Cir., April 12, 2007) (Published):  Waiver; Guilty Pleas:  Novosel pled guilty to one count of conspiracy to manufacture and possess more than 100 marijuana plants pursuant to a plea agreement that included a waiver of his right to appeal.  Novosel appealed anyway and in this opinion the panel grants the motion of the Government to enforce the appeal waiver and dismisses the appeal.  The original plea agreement did not contain an appeal waiver, but that was added later with the approval of the parties.  Novosel made the novel argument, based on contract law, that the "pre-existing duty rule" which says that contract modifications not supported by new consideration are not valid, applies to preclude enforcement of the appeal waiver in his case.  He did not prevail, but the panel engages in a good discussion of this topic.

Trammell v. McKune, No. 06-3316 (10th Cir., April 12, 2007) (Publish):  Prosecutorial Misconduct; Brady Issues:  This is a very nice federal habeas winner on a Brady claim.  Trammell was accused of stealing a service station tow truck and using it to steal another vehicle.  His defense was SODDI and framed him.  The prosecution knew this was the theory of defense but failed to disclose physical evidence linking the other dude to the theft of the tow truck.  Thus, Trammells' constitutional rights to Due Process were violated and the petition for habeas corpus is GRANTED.


United States Supreme Court

No new cases.

HERE is an article describing a case before the Court dealing with the legal definition of insanity in the context of capital punishment.  The Court has held that prisoners who are insane cannot be executed, but has not provided a workable definition of insanity.  In this case, the Court takes a look at the Fifth Circuit's attempt in Panetti v. Dretke, 448 F.3d 815 (5th Cir. 2006).  
  

Other Cases of Note

United States v. Luisi, No. 03-1470 (1st Cir., April 10, 2007):  Entrapment:  This case involves Luisi who is described as an admitted member of the "La Cosa Nostra" crime family and who was convicted on three cocaine-related charges.  At trial, Luisi testified and admitted his involvement in the cocaine transactions, but defended on the grounds of entrapment, arguing that the FBI informant tried to induce him to commit the drug crimes and, when he balked, the informant persuaded a boss in Philly to order Luisi to conduct the drug transactions.  The Government was aware of the "serious consequences" Luisi would face if refused to follow the order of the boss.  HELD:  Reversed because, although the District Court instructed the jury on the entrapment defense, its supplemental instruction in response to a jury question "foreclosed the jury from considering the role of the Philly boss in the asserted government entrapment."  This opinion contains a good discussion on the entrapment defense in general and on the concept of "third party entrapment" or "vicarious entrapment."

United States v. Ohayon, No. 05-17045 (11th Cir., April 12, 2007):  Double Jeopardy/21 O.S. 11:  This is an interesting collateral estoppel case.  Ohayon was arrested when he transported bags of drugs from a hotel room occupied by a confidential informant and placed the bag in the trunk of a car.  He was charged with Attempt to Possess with Intent to Distribute MDMA (Ecstasy) and Conspiracy to Possess with Intent to Distribute MDMA.  His defense at trial was that he was unaware of the contents of the bags.  The jury acquitted him of the Attempt count but hung up on the Conspiracy count.  Prior to his re-trial on the Conspiracy, Ohayon moved to dismiss this charge because the acquittal on the Attempt collaterally estopped the Government from re-trying him on the Conspiracy charge.  The District Court agreed and the circuit AFFIRMED.  This is a thorny legal issue and the circuits are split.

United States v. Cohen, No. 06-5594 (6th Cir., April 13, 2007):  Searches and Seizures; Traffic Stops:  The cops received a 911 call where the person hung up without saying anything.  Officers were dispatched to the address.  When they approached the house at 4:56 a.m., which was in a cul-de-sac of five or six houses, they observed a car making a right turn from the cul-de-sac onto the adjoining street.  HELD:  These facts did not provide reasonable suspicion to make an investigatory stop and the grant of the motion to suppress is affirmed.

People v. Vidal, No. S134901 (Cal., April 12, 2007):  Death Penalty; Mental Retardation:  In this capital case, the California Supreme Court held that the trial court did not err by giving less weight to Vidal's Full Scale IQ scores, which were generally above the range considered to show mental retardation, and greater weight to other evidence of significantly impaired intellectual functioning.  The legal definition of mental retardation for purposes of Atkins's constitutional rule does not incorporate a fixed requirement of a particular test score.  NOTE:  Vidal's Full Scale IQ scores were 81, 92, 78, and 77, given over several years.

Brazzel v. Washington, No. 05-36145 (9th Cir., April 12, 2007):  Double Jeopardy/21 O.S. 11:  Brazzel was charged with Attempted Murder but was convicted by the jury of the lesser offense of First Degree Assault.  The State of Washington re-tried him, again alleging Attempted Murder, and again the jury convicted him of the lesser offense of First Degree Assault.  HELD:  the second trial was barred by double jeopardy since the conviction on the lesser charge was an "implied acquittal" to the greater charge.


Victories

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



SCOTT ADAMS, OKC, won a special victory last Tuesday when he headed one of the highest callings of our profession:  the defense of another lawyer in a criminal case.  Mike Gassaway was in the docks on what looked like a bullet-proof case by the State in the form of a sex-for-legal-services set up that was caught on tape.  But neither Scott nor Gassaway flinched (not surprising if you know anything about Gass).  The actual charge was solicitation which, Scott argued, requires the accused to solicit a sex act in exchange for something of value.  The tape clearly showed that the putative "client" made the offer---Gassaway just accepted which, argued the defense, was not a crime.  The cops, of course, helped torpedo their own case by making comments that Gassaway was a "scumbag" and Scott was able to show the jury quite clearly that the cops were intent on setting Gassaway up and orchestrated the entire thing.  Gassaway did not take the stand and was appropriately (if uncharacteristically) contrite after the verdict.  This is another good win for Scott.

C. KENT BRIDGE & TAMALA PHILLIPS, Okla. Co. Pub. Defender's Office, get a tip of the hat for convincing the Court of Criminal Appeals to dismiss the State's appeal after they had persuaded Judge Black to suppress the confession of their client.  I suspect this is very significant since without the confession the complexion of the case will be much different in their client's favor.  Good job, Kent and Tamala!    

CATHY HAMMARSTEN, won a Murder I and Shooting w/Intent to Kill case by convincing Special Judge Doak, OKC, to grant the demurrer(!)  That does not happen very often.  I do not have many details on this, so if anyone wishes to fill in the blanks here, let me know and I can run some more details next week.  Terrific job, Cathy! 


Hearsay

RIP KURT VONNEGUT, Jr.:  Vonnegut died last Wednesday at the age of 84.  In addition to being a successful novelist, Vonnegut was one of the sharpest  social critics of his time.

ENEMY OF THE STATE?:  Urban myths are often presented on the internet as fact, and this story could possibly be a hoax, but it looks legit to me.  This blog post reports that Prof. Walter F. Murphy, McCormack Professor of Jurisprudence at Princeton University, presented a televised lecture back in September, 2006, which was highly critical of President Bush.  On March 7, 2007, he was scheduled to fly on American Airlines to New Jersey to attend an academic conference.  He attempted to check his luggage curbside and was told he could not do it because he was on a Terrorist Watch list.  After having his credentials scrutinized by a TSA official, he was eventually allowed a boarding pass but warned that his luggage would be "ransacked."  On his return flight he had no trouble obtaining a boarding pass but his luggage was "lost."  Prof. Murphy is also a retired Marine colonel, veteran of the Korean War, and was decorated for heroism.

SEX OFFENDERS UNDER THE BRIDGE:  A group of sex offenders have ended up living under a bridge in Florida because restrictive laws governing where they can legally reside have virtually precluded them from living anywhere else.  According to this article, the men must stay at the bridge between 10:00 p.m. and 6 a.m. because a parole officer checks on them nearly every night.  One of them asked the judge to send him back to jail.  Denied.

NEW SPECIAL JUDGE IN ENID:  Enid attorney Paul Woodward was sworn in as a special judge last Friday in Garfield County.  

THE U.S. ATTORNEY FIRING SCANDAL:  This issue appears to be headed for a showdown in Congress.  This article details e-mails at DOJ that appear to contradict the earlier assertion that DOJ had no successor U.S. Attorneys selected prior to the mass firings.  


                      LEGAL CALENDAR        

FRIDAY, APRIL 20, 2007:  A symposium on the legal framework for counter-terrorism measures will be sponsored by the Oklahoma City University School of Law and will held at the Memorial Institute for the Prevention of Terrorism.  John C. Richter, United States Attorney for the Western District of Oklahoma will deliver the keynote address.  Other speakers will examine the nature of modern terrorism and counterterrorism.  For more information contact www.okcu.edu/law, phone 405.208.5335 or e-mail lawnews@okcu.edu.

SATURDAY, APRIL 21, 2007:  The Legal Affair dinner and gala will take place at the Skirvin Hilton Hotel in OKC.  This event is presented by the Oklahoma City University School of Law and will honor its distinguished alumni.  Those receiving awards include OCU Law Professor Alvin C. Harrell, Nona M. Lee, Bob Burke, and Abdul R. Zindani.  The event chairs are James Bass and Kay Bass.  For more information contact lawevents@okcu.edu or phone 405.208.5197.

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.

THURSDAY, JUNE 7, 2007:  Criminal Defense:  Pre-Trial Success.  This program will be held at The Embassy Suites Hotel, 1815 South Meridian, Oklahoma City, OK  73108, phone 405.682.6000.  It is presented by National Business Institute (NBI) and you can register on-line at www.nbi-sems.com.  Tuition is $309 and you can get 7.0 hours of CLE with 1.0 hour of ethics included.  Speakers include:  John W. Coyle, III, Gloyd L. McCoy, W. Devin Resides, Tracy Schumacher, and Steven Stice. 


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