In Re:  Adoption of the 2007 Revisions to the Oklahoma Uniform Jury Instructions, 2007 OK CR 5 (March 27, 2007):  The Court modified several jury instructions and added some more.  If you are in trial be sure to take a look at these changes.  Note that the Court issued OUJI-CR 1-10 which is an extensive Juror Questionnaire to be used, at the discretion of the trial court, as a supplement to, rather than as a substitute for, voir dire.  

Shaynathian Rashaud Hicks v. State, No. F-2005-1058 (Okl.Cr., March 26, 2007) (unpublished):  Indecent Exposure:  Hicks was convicted in Atoka County of several crimes and most were affirmed in this opinion.  However, his conviction for Indecent Exposure was REVERSED AND REMANDED WITH INSTRUCTIONS TO DISMISS on the basis of insufficient evidence.  The Court described the act committed by Hicks as an "inappropriate act of urination."  The Court held that the State failed to prove this act was done "lewdly."  The Court explained that Indecent Exposure is the lewd exposure of the person or private parts in any public place or place where other persons are present to be offended or annoyed; and the element of lewdness required is "an unlawful indulgence in lust, eager[ness] for sexual indulgence," in conjunction with a prohibited exposure.  (citing McKinley v. State, 244 P. 208 (Okl.Cr.1926).  Thus, be alert if you have a client who simply urinated in public and gets charged with Indecent Exposure.  Simply exposing the genitals in public is not enough to convict under the statute.

Charles Arnold Fields v. State, No. F-2005-1094 (Okl.Cr., March 28, 2007) (unpublished):  Pro Se Representation:  Fields was charged with Unlawful Delivery of CDS (AFCF x2) in Tulsa County before the Hon. Gary Snow.  Just prior to jury selection, Fields asked to fire his attorneys and also for a continuance to obtain other counsel.  Judge Snow responded that Fields could either represent himself and have his current attorneys act as standby counsel or proceed with his current attorneys.  Fields never requested to represent himself and was forced to proceed pro se.  HELD:  Reversed and remanded for a new trial because Judge Snow never advised Fields of the inherent disadvantages of self-representation and there was no valid waiver of the right to counsel.  The Court looks at these types of cases with a very critical eye and the reversal here is not surprising.  NOTE:  The very odd aspect of this case is that the jury returned a sentence of "15 years imprisonment to life imprisonment and a $200,000 fine."  An indeterminate sentence which was imposed by Judge Snow(!)  The Court did not reach the question of whether such a sentence is legal since it reversed on the right to counsel issue, but this is the first case I have come across where an indeterminate sentence was imposed. 

Tamara Marine Davis v. State, No. F-2005-1193 (Okl.Cr., March 27, 2007) (unpublished):  Excessive Sentence:  Davis was convicted by jury in Logan County of Accessory (After the Fact) to Felony Murder in the First Degree before the Hon. Donald L. Worthington.  She was sentenced to 40 years.  Davis assisted her husband in disposing of the victim's car and belongings, lied about his movements to law enforcement, and assisted him in fleeing the state.  The conviction is affirmed but the sentence is modified from 40 years to 25 years under the "shock the conscience" standard.  The Court noted that Davis had no prior convictions, tried to discourage her husband from going with the victim and had no part in the robbery/murder and, although she did assist her husband in disposing of the victim's car and belongings, she later assisted the police by providing information and allowing them to search the trailer prior to the arrest.


Tenth Circuit

United States v. Gordon, No. 04-6384 (10th Cir., March 28, 2007) (Published):  Restitution:  Gordon plead guilty to one count of credit card fraud on an account with an "associated loss" of $7,950.98.  The agreement contemplated restitution but did not limit the amount and it also contained a waiver of appellate rights.  The District Court ordered restitution in the amount of $68,698.52, which reflected losses suffered by other persons from six other incidents of fraudulent credit card use by Gordon as reported in the PSR.  HELD:  The waiver provisions of the plea agreement did not apply to the restitution amount and the restitution amount under the statute is tied to the crime for which the defendant was convicted, thus the restitution order is reversed (even though the issue was not preserved below).   NOTE:   Judge Tymkovich dissented and would enforce the plea waiver because, in his view, Gordon actually agreed to pay restitution to the multiple victims.  


United States Supreme Court

No new decisions.

On March 26, 2007, the Court granted certiorari in a child porn case to determine whether the federal statute is overly broad and/or impermissibly vague.  The Question Presented can be found HERE.  The lower court decision is United States v. Williams, 444 F.3d 1286 (11th Cir. 2006).
   

Other Cases of Note

Taylor v. United States, No. 06-60275 (5th Cir., March 29, 2007):  Forfeiture:  Federal forfeiture case remanded for an evidentiary hearing on the issue of whether the DEA provided proper notice of forfeiture of $13,000 in cash confiscated during a traffic stop in Biloxi, MS.  The basic issue is that the DEA escorted the claimant to his home after the traffic stop yet mailed the notice of forfeiture to his mother's home.  This opinion contains a good discussion of federal forfeiture law. 


Victories

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



ALECIA FELTON GEORGE, OKC, won the appellate victory for the pro se Mr. Fields in the case reported above.  I wonder if he will receive another indeterminate sentence at re-trial?  If he does, Alecia may have to bail him out again.  Good work, Alecia!

LISBETH L. MCCARTY, OIDS, shaved 15 years off the sentence of Ms. Davis for her role in a robbery/murder by convincing the Court of Criminal Appeals that their conscience should be shocked.  Way to go, Lisbeth!

HONORABLE MENTION:  Although not an outright victory, OIDS attorneys Larry Jordan and Abbie Fisher, Custer County, tried a Trafficking case recently in which the client was convicted of simple possession and sentenced to three years.  The case began as a classic traffic stop by interdiction officers who found drugs hidden in the vehicle.  The defense centered around the fact that the client had owned the vehicle for only a few days, but the packaging of the drugs evidenced deterioration for a time longer than the client owned the truck.  This is a very clever argument.  It appears that the jury did not buy it completely but bought it enough to compromise on the conviction and sentence. 


Hearsay

FREED OKLAHOMA DEATH ROW INMATE, Greg Wilhoit, addressed an audience of about 40 students at CUNY Law School at Queens College and told his story of how he was arrested and convicted in the death of his wife, Kathy, back in 1985.

JANET RENO, the former United States Attorney General, is on the Board of Directors at The Innocence Project, a non-profit organization that has assisted in exonerating 197 prisoners nationwide through DNA testing.

  


                     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.

MONDAY & TUESDAY, APRIL 9-10, 2007:  The Scholarship of Laurence Tribe.  This silk-stocking production is brought to you by the Tulsa Law Review's Sixth Annual Legal Scholarship Symposium and is sponsored by Crowe & Dunlevy.  Speakers include Mr. Tribe and a host of other law professor luminaries such as Erwin Chemerinsky.  CLE credit is available and the tuition is $150.  To register, contact vicki-jordan@utulsa.edu or call 918.631.2429 or for more information contact lynn-miller@utulsa.edu or call 918.631.2471 or visit the web site at www.law.tulsa.edu/symposium/.
 
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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