Marquez-Burrola v. State, 2007 OK CR 14 (April 17, 2007):  Death Penalty; State Cases:  Ineffective Assistance of Counsel:  Marquez-Burrola received the death penalty for murdering his wife in what looked like a spur-of-the-moment rage killing along a highway.  Marquez-Burrola thought his wife was unfaithful and he stabbed her to death with a knife.  The crime was discovered quickly when a truck driver saw Marquez-Burrola "driving along the highway with a blood-soaked body in the passenger seat of his car[.]"  Somehow, the State managed a conviction on premeditated murder in this case.  In this appeal, the Court affirmed the murder conviction (Marquez-Burrola was obviously guilty of killing his wife) over claims of competency to stand trial, sufficiency of the evidence of premeditation, first stage jury instructions, the introduction of a pre-mortem photograph of the victim, denial of consular assistance, and first-stage IAC.  HOWEVER, in evaluating a claim of penalty-phase IAC, the Court vacated the death sentence and imposed a sentence of LWOP.  The case was remanded to the District Court for an evidentiary hearing in Grady County before Judge Richard G. Van Dyck.  Although Judge Van Dyck heard compelling mitigating witnesses, many of them from Mexico where Marquez-Burrola was born and raised, he refused to find sufficient prejudice to vacate the death penalty.  The Oklahoma Court of Criminal Appeals disagreed with him and not only vacated the death penalty, but imposed LWOP rather than remand.  This might be explained by the fact that the record contains evidence that Marquez-Burrola suffers from serious mental illness and may not be competent to be executed.

Timmy Eugene Owen v. State, No. F-2006-598 (Okl.Cr., April 13, 2007) (unpublished):  Escape; Prosecutorial Misconduct; Improper Argument:  Owens was convicted by jury of Escape from the Grady County Jail (AFCF) and Assault and Battery Upon a Police Officer (AFCF).  He was sentenced by Judge Richard Van Dyck to LIFE and ten years, respectively and consecutively(!)  The Court affirmed the conviction, but REVERSED and REMANDED the sentence on the basis of prosecutorial misconduct in the way the details of the underlying conviction were presented.  The Court stated in a footnote:  "In a prosecution for escape, it is proper to place before the jury the reasons and grounds for which the appellant is legally incarcerated.  McBrain v. State, 1988 OK CR 261, para. 7, 764 P.2d 905, 907.  Here, the prosecutor properly read the information to the jury, reciting the specific charges which Owen was imprisoned.  The prosecution, however, cannot put forth any additional inflammatory details regarding the allegations for which Owen was imprisoned.  The details of Owen's alleged prior crimes are completely irrelevant to the charges being tried here."

Doyle Blythe v. State, No. M-2006-555 (Okl.Cr., April 12, 2007) (unpublished):  Jury Instructions; Defense Requested Instructions:  Blythe was charged with Feloniously Pointing a Firearm in Pushmataha County.  The jury convicted him of the lesser-included misdemeanor offense of Reckless Conduct with a Firearm and the Hon. Mark R. Campbell sentenced Blythe to six months in the clink.  REVERSED and REMANDED for NEW TRIAL because the trial judge refused to instruct on self-defense.  This opinion contains very good language on the right of the accused to a self-defense instruction, especially in a case like this one where the entire theory of the defense case was self-defense and the jury wrote a note about it:  "However, a defendant is entitled as a matter of law to have his theory of defense clearly set forth in an instruction to the jury, where there is evidence to support it and as long as that theory is tenable as a matter of law.  Kinsey v. State, 1990 OK CR 64, paras. 7-8, 798 P.2d 630, 632.  Even if the defendant's evidence is discredited, and wholly self serving, the jury must be advised of the defendant's theory of defense.  Kinsey, supra; Jackson v. State, 1998 OK CR 39, para. 63, 964 P.2d 875, 891."

State v. Eighteen Thousand Two Hundred Thirty-Five Dollars in U.S. Currency ($18,235.00), No. 104,016 (Okl.Civ.App., Div. III, April 20, 2007) (Released for Publication):  Forfeiture:  Shawn Gandy was stopped by a police officer in the great city of Calera for "an illegal neon light surrounding the license plate of his vehicle."  I have lived in Oklahoma all my life and never heard of the town of Calera.  I looked it up and it is a community of about 1,700 way down in Bryan County, south of Durant.  During the search of the vehicle, the officer found 2.86 grams of marijuana in a cigar box and .21 grams of marijuana loose in a shaving kit packed in an overnight bag.  The money was found on Gandy's person and in a plastic sack in the same overnight bag.  He was given a warning for unauthorized vehicle light and charged with misdemeanor possession of marijuana.  The State sought forfeiture of the money under 63 O.S. 2-503(A)(7) based upon the 2004 amendment which specifically authorized forfeiture of money found in close proximity to ANY AMOUNT of marijuana.  Gandy argued that the State could not forfeit the money based on a charge of simple possession and that even if it could, such a forfeiture would violate the excessive fines clause of the Eighth Amendment.  The trial judge, the Hon. Trace Sherrill, denied forfeiture and the Court of Appeals, in a 2-1 opinion, AFFIRMED.  The Court drew from the Oklahoma Supreme Court's prior decision holding that forfeiture of the vehicle itself based on simple possession is unauthorized.  I would imagine this case is headed to the Oklahoma Supreme Court and I do not like its chances of survival there.  If you have a forfeiture case use this opinion while you still can.


Tenth Circuit

United States v. Goode, No. 06-2093 (10th Cir., April 16, 2007) (Published):  Possession of Firearm by a Felon; Sufficiency of the Evidence:  Goode was convicted by jury of Possession of a Firearm by a Felon.  The gun was found in his car when he was arrested in New Mexico on unrelated charges.  At trial, an ATF Agent testified that the gun was  Llama brand, manufactured in Spain and imported into the United States, and that no firearms are manufactured in New Mexico.  Here is the wrinkle:  18 U.S.C. 922(g) requires that the firearm be possessed "in or affecting commerce."  But in this case, the jury instructions described this element as the weapon moving from one state to another.  The Circuit noted that such a contention is "supported by the law-of-the-case doctrine, which holds the government to the burden of proving each element of a crime as set out in a jury instruction to which it failed to object, even if the unchallenged jury instruction goes beyond the criminal statute's requirements."  Alas, trial counsel inartfully presented his motion for acquittal and the panel reviewed for plain error with a footnote that the opinion was circulated to all active judges who agreed that forfeited claims of insufficient evidence must be reviewed under plain error.  As such, the panel assumed the first three prongs of plain error were met in this case (error, plain and obvious, that affects substantial rights) but refused to grant relief because this was "one of those rare cases in which the defendant's insufficient-evidence claim fails on the fourth element":  it does not seriously affect the fairness, integrity, or public reputation of judicial proceedings.  The panel asserted that there was no miscarriage of justice.  NOTE/RANT:  There you have it folks.  A case where the Court held that the Government failed to prove what it said it would prove to the jury but still refused to grant relief.  This case is a continuation of the circuit's steady progression toward finding creative ways to excuse Government failings in federal criminal cases instead of making the Government do it right the first time.  Particularly appalling to me is that this case involved a GOVERNMENT ERROR but the Court places blame entirely upon defense counsel.  The Government failed to object to the jury instruction which focused its burden of proof and then failed to deliver the proof it promised the jury.  But the Circuit panel (Judges Henry, Hartz, and Holmes) folds the blame back on trial counsel for failing to argue specifically the jury instruction part in his Rule 29 motion for acquittal.  This is a common tactic in the circuit and seems to me not only grossly unfair but also an unseemly way for the Court to excuse Government mistakes at the cost of the Constitution.

United States v. Hudson, No. 06-6199 (10th Cir., April 17, 2007) (Published):  Restitution:  Hudson and co-conspirators sent out faxes advertising a "Microsoft Closeout Sale."  A company in Maryland responded to the fax and placed an order for 537 copies of Microsoft Office 2000 Professional Edition to the tune of $85,383.  When the software arrived, the company became suspicious that it was counterfeit, Microsoft was contacted, and the counterfeit copies were sent to the government.  For his part, Hudson plead guilty and was sentenced in Oklahoma City to one year in prison and ordered to pay restitution to Microsoft in the amount of $321,663.  In this case, he challenged only the restitution order on the basis that Microsoft suffered no actual loss.  HELD:  1) The Tenth Circuit followed the Fourth and Ninth Circuits in holding that an appeal waiver does not extend to restitution orders (the Eighth Circuit has held to the contrary); and 2) since the Government failed to prove that Microsoft suffered any actual loss, no restitution should have been ordered and it is thus reversed and vacated.

United States v. Luke-Sanchez, No. 06-4141 (10th Cir., April 17, 2007) (Published):  Sanchez was snared in a government sting where he exchanged meth for guns.  HELD:  this constituted possession of a firearm in furtherance of a drug trafficking crime under the statute.

United States v. Trotter, No. 05-3487 (10th Cir., April 17, 2007) (Published):  The Trotter brothers were convicted together of distribution and possession with intent to distribute significant quantities of cocaine powder and crack cocaine as well as conspiracy.  AFFIRMED over claims of:  1) search and seizure when a storage unit was searched; 2) sufficiency of the evidence; 3) and various sentencing issues.


United States Supreme Court

James v. United States, No. 05-9264 (U.S., April 18, 2007):  Possession of Firearm by Felon:  In this 5-4 decision, the Court held that the crime of Attempted Burglary, as defined under Florida law, is a "violent felony" for purposes of the Armed Career Criminal Act and thus James is subject to the mandatory 15-year minimum sentence under the Act.  The statute at issue was the "residual clause" of 18 U.S.C. 924(e)(2)(B)(ii) which allows a crime to be characterized as a "violent felony" if it "otherwise involves conduct that presents a serious potential risk of physical injury to another."  The majority held that "attempts" were not excluded and, using the "categorical approach" of prior cases, held that the elements of the offense under Florida law are of the type that would justify inclusion of Attempted Burglary in the residual clause of the ACCA.  THE DISSENT:  Justice Scalia, as he does often, takes the majority to task by arguing that the analysis employed does not provide any guidance to the lower courts and is merely an ad hoc way of disposing of this particular case:  "That gets this case off our docket, sure enough.  But it utterly fails to do what this Court is supposed to do:  provide guidance concrete enough to ensure that the ACCA residual provision will be applied with an acceptable degree of consistency by the hundreds of district judges that impose sentences every day."  Justice Scalia also sees a notice problem since the residual provision is so vague and the Court has yet to provide a workable standard on what conduct will result in a mandatory prison term of 15 years.  According to Justice Scalia, "Years of prison hinge on the scope of ACCA's residual provision, yet its boundaries are ill defined."  My perception is that this state of the law---the ill-defined contours of what a "violent felony" is under the ACCA or what constitutes a "crime of violence" elsewhere in federal law---works decidedly in the favor of the Government because the federal courts have almost uniformly made a policy determination to "err" on the side of incarcerating the accused rather than making the Congress define its terms.  Business as usual I suppose.

ORAL ARGUMENTS IN THE SUPREME COURT:  Very few of us will have the thrill of arguing a case in the United States Supreme Court.  I believe that Burck Bailey and Robert Ravitz from here in OKC have done it; Stephen Jones in Enid, and Dick Burr down in Hugo have also had that experience.

But for many years, such arguments were somewhat shrouded in secrecy.  Now, most of the arguments are recorded and can be heard on-line and also most of them are transcribed and available on the Court's web site.

HERE is the transcript of the argument in the case of Panetti v. Quarterman, No. 06-6407, which is a capital case out of Texas focusing on the meaning of insanity for purposes of executing a condemned prisoner and also some interesting AEDPA issues on what constitutes a second/successive habeas petition.  As you might imagine, Justice Scalia is an active questioner, but Justices Ginsburg, Kennedy and Roberts (C.J.) also wade in. 

These transcripts can be helpful to prepare you for any arguments you might have on similar issues.


Other Cases of Note

United States v. Jones, No. 06-30535 (5th Cir., April 13, 2007):  Possession of Firearm by Felon; "Bad Acts":  Solid case that reverses a conviction of Felon in Possession of a Firearm on the basis that the trial court allowed the Government to introduce evidence of a prior conviction for the same offense in a case where the Government alleged actual possession as opposed to constructive possession.

United States v. Buchanan, No. 04-41354 (5th Cir., April 19, 2007):  Child Porn:  Multiple counts of Receiving Child Pornography Transported in Interstate Commerce by Computer are vacated and remanded with instructions to reinstate only one conviction on the basis that the counts were multiplicitous because the Government failed to allege or prove that Buchanan engaged in more than one transaction in violation of 18 U.S.C. 2252.

United States v. Suarez-Perez, No. 06-1749 (8th Cir., April 18, 2007):  Speedy Trial:  Perez entered a conditional plea to Possession with Intent to Distribute 500 grams or more of methamphetamine.  REVERSED on a Speedy Trial Act claim and remanded to the District Court for a determination of whether the dismissal of the indictment should be with or without prejudice.


He'd Rather Live with Murderers than Fools 

This article was sent to me by my sister and I thought it was interesting.  A convicted murderer in Florida, Paul John Fitzpatrick, was granted a re-trial by the Florida Supreme Court for the 1980 murder of Gerald Hollinger who was found in his home, dead from 41 stab wounds and a cut throat.

At this second trial, Fitzpatrick was again convicted of the murder and the case moved into the penalty phase.  At this point, Fitzpatrick fired his lawyers and showed the jury gruesome crime scene photographs in an effort to receive the death penalty.  His reasoning was that he was much more comfortable on death row than in the general population, he would get more appeals, and since the appellate process takes so long, he would most likely die from old age rather than from the executioner's needle.

The jury voted 8-4 in favor of death, and gave Fitzpatrick his wish, but under Florida law this recommendation is not binding on the trial judge.

Said Fitzpatrick to the judge who would sentence him, in addressing the younger inmates who would bother him in the general population as opposed to life on death row, "It's just a hell of a lot easier doing time with murderers than it is with fools."

Fitzpatrick's gambit failed to pay off dividends however when the trial judge went against the jury's recommendation and sentenced Fitzpatrick to life rather than death, a result he did not want.  Just another day in the American criminal justice system I suppose.


Victories

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



JASON D. CHRISTOPHER, Ada, represented Doyle Blythe at trial but that did not turn out very well.  But things turned out better when Jason did the appeal and now Mr. Blythe will get a proper day in court, this time with a jury instructed on the laws of self-defense.  Terrific job, Jason! 

WILLIAM P. EARLEY, Assistant Fed. Pub. Def. in OKC, convinced the Tenth Circuit that restitution orders survive appeal waivers, a question that was the subject of a circuit split, and saved his client over three hundred thousand dollars.  Not too shabby!

MICHAEL D. MOREHEAD & SANDRA MULHAIR CINNAMON, OIDS, convinced the Oklahoma Court of Criminal Appeals to vacate the death sentence for Mr. Marquez-Burrola in the case reported above.  This is a particularly noteworthy win since there was no first stage defense at all and the evidence presented on appeal was dug up by Michael and Sandra rather than trial counsel.  Very nice work!

ANDREAS T. PITSIRI, OIDS, won a new sentencing hearing for Mr. Owen.  Not too shabby since Owen received Life.  Good work, Andreas!


Hearsay

CENTER on WRONGFUL CONVICTIONS:  This is a good web site by the Northwestern University School of Law in Chicago, Ill., covering the topic of wrongful convictions with a focus on DNA exonerations.  HERE is an article describing the efforts of freed death row inmates and a former prosecutor to halt executions in Pennsylvania.

FROM MAINE TO OKLAHOMA:  The State of Maine plans to ship 125 inmates to private prisons in Oklahoma, although some groups in Maine do not like the idea because it keeps the prisoners away from family and hinders appeals.  No complaints from Oklahoma, of course, since the prison industry here is so financially lucrative.  HERE is another article about this story.



                      LEGAL CALENDAR        

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.

FRIDAY, MAY 4, 2007:  Expungements in Oklahoma.  This is a workshop presented by Kent Morlan and will be held from 12:00 to 1:30 in the Route 66 computer lab located on the first floor of the Downtown Metro Library in OKC.  RSVP to the Oklahoma County Law Library at 405.713.1355.  Judge Virgil C. Black, Oklahoma County, will be present for a Q&A session afterward.    

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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