Marlin Virgil Brown v. State, No. F-2006-113 (Okl.Cr., March 28, 2007) (unpublished):  Double Jeopardy/21 O.S. 11:  Brown gets spanked hard in this case, receiving LWOP after being convicted of trafficking, but the case is instructive because, in addition to the crack cocaine he had, there were also 25 Ecstasy pills in the same baggie.  HELD:  the convictions for trafficking the cocaine and also possession of the Ecstasy pills with intent to distribute constituted a single act and the State was precluded from punishing him twice; thus, the Ecstasy count is reversed with instructions to dismiss. 


Tenth Circuit

Ochoa v. Sirmons, No. 06-6349 (10th Cir., April 6, 2007) (Published):  Habeas Corpus; Second/Successive:  The Circuit grants authorization for this Oklahoma death row inmate to file a second federal habeas petition on a mental retardation claim under Atkins.  The federal habeas statute, 28 U.S.C. 2244(b)(2)(A) allows a state prisoner to seek authorization when the Supreme Court makes a new rule of constitutional law retroactively applicable to cases on collateral review (the Supreme Court did so in Atkins).  The State argued that more is required, such as a prima facie showing of mental retardation.  Other circuits have imposed the prima facie showing requirement, notably the Fifth Circuit which services death cases in Texas, but the Tenth Circuit parts company with the other circuits in this case, concluding that the plain language of the statute does not require such a showing.

United States v. Barrows, No. 06-6274 (10th Cir., April 3, 2007) (Published):  Barrows was the treasurer for the city of Glencoe, Oklahoma.  He shared a work space with the city clerk which afforded little privacy and resulted in a situation wherein they could not use the city computer simultaneously.  To remedy this situation, Barrows brought his personal computer to work.  According to the opinion, he connected his computer to the city network, to the other city computer, left it running all the time including when he was not at work, and made no effort to password-protect his computer.  One day, sure enough, there was a problem accessing a file on the city computer.  When Barrows' computer was checked to see if the file was in use and therefore blocking access to the file, it was determined that a file-sharing program was running on Barrow's computer and that there were files with sexually suggestive names.  When some of the files were opened, they were found to contain child pornography.  The Circuit addressed his motion to suppress, asking whether Barrows manifested a subjective expectation of privacy in the computer and whether that expectation is one society is prepared to recognize as reasonable.  HELD:  the search was reasonable and the denial of the motion to suppress is affirmed.  I wonder what this guy was thinking?

Fleming v. Evans, No. 06-6110 (10th Cir., April 3, 2007) (Published):  Habeas Corpus; Statute of Limitations/Equitable Tolling:  The Circuit grants Fleming a COA on whether two claims are time-barred or are subject to equitable tolling, one of them on the basis of egregious attorney misconduct in affirmatively misleading him regarding the pursuit of legal action.

United States v. Holyfield, No. 05-1318 (10th Cir., April 3, 2007) (Published):  Federal Sentencing Guidelines; Booker Cases:  Holyfield (not Evander) was KO'd in federal court when he was convicted by a jury of conspiracy to distribute over fifty grams of crack cocaine and over five kilograms of powder cocaine which, because of his prior convictions, resulted in a mandatory minimum life sentence.  In this appeal, Holyfield challenges his sentence on Sixth Amendment grounds, arguing that a jury must determine the existence of his priors and also that one of the prior overlapped with the instant offense.  The Circuit AFFIRMED the sentence, although noting that in Shepard v. United States, 544 U.S. 13 (2005), Justice Thomas stated that "a majority of the Court now recognizes [the prior conviction rule] was wrongly decided."  That may be true, said the panel, but until the Supreme Court says it is true in an opinion, the panel will continue to follow the applicable precedents.

United States v. Chavez, No. 05-2209 (10th Cir., April 4, 2007) (Published):  Confrontation/Cross-Examination:  In a drug conspiracy case, an FBI agent testified that Chavez's truck was present at the scene of two alleged drug exchanges.  However, the agent knew this, not from personal observation, but by hearing radio surveillance reports.  The District Court initially allowed the testimony, but then reversed itself and held that the testimony violated Chavez's Sixth Amendment right of Confrontation.  The District Court issued a curative instruction directing the jury to disregard the testimony.  Chavez objected and moved for a mis-trial which was denied.  In this appeal, Chavez challenged the ruling of the District Court denying his motion for a mis-trial.  HELD:  AFFIRMED because the error was harmless.

United States v. Herrera, No. 05-2219 (10th Cir., April 4, 2007) (Published):  Insanity/Competency:  After a four-day jury trial, Herrera was convicted of conspiracy to traffic in cocaine.  Four months later, he filed a motion for a new trial asserting newly discovered evidence that would show he had not been competent during trial (based upon undiagnosed and untreated diabetes and other physical ailments).  The District Court denied the motion without an evidentiary hearing.  HELD:  AFFIRMED since the District Court did not abuse its discretion.

United States v. Templeman, No. 06-1129 (10th Cir., April 4, 2007) (Published):  Templeman and three co-defendants were tried before a jury on a charge of retaliation against a witness.  He moved for a mis-trial when one of the pro se co-defendants called him to the witness stand in the presence of the jury.  HELD:  AFFIRMED because there was no prejudice and the District Court did not abuse its discretion.


United States Supreme Court

No new cases.


For Whom the Bell Tolls

I was never familiar with the origin of this phrase and just had some vague knowledge that it was a Hemingway book title.  I did some digging around recently (I can not even recall exactly why) and found that the phrase was taken from a "1624 metaphysical poem" by John Donne."  I was amazed at the profundity of Donne's words in Meditation XVII, the most famous of which are contained in this paragraph:

"No man is an island, entire of itself; every man is a piece of the continent, a part of the main.  If a clod be washed away by the sea, Europe is the less, as well as if promontory were, as well as if a manor of thy friend's or of thine own were.  Any man's death diminishes me, because I am involved in mankind; and therefore never send to know for whom the bell tolls; it tolls for thee."

-----Devotions Upon Emergent Occasions, "Meditation XVII" by John Donne (1624)

Although the above paragraph is the one most quoted, the entire piece is a beautiful exposition of this theme and will enrich your day if you read it.


Other Cases of Note

United States v. Stephens, No. 05-4668 (4th Cir., April 3, 2007):  Sufficiency of the Evidence:  Excellent winner in a federal criminal case on the basis that the Government failed to introduce evidence of a drug conspiracy other than the police-interview statements of the defendant.

In re Mathis, No. 06-20806 (5th Cir., April 2, 2007):  Habeas Corpus; Second/Successive:  The Fifth Circuit allows authorization to file a second habeas petition in a capital case based on a mental retardation claim pursuant to Atkins.

Pierson v. Dormire, No. 06-2545 (8th Cir., April 4, 2007):  Habeas Corpus; Statute of Limitations/Equitable Tolling:  Under the AEDPA there is a one year statute of limitations in which a state prisoner must file a petition for a writ of habeas corpus within one year of the date the state appeal becomes final.  This is usually accomplished when the state supreme court (or highest court of review) either decides the case or denies review.  The Supreme Court allows a litigant 90 days to file a petition for certiorari; thus, the one year generally does not begin until the 90 days has passed.  But what happens when a state prisoner is denied in an intermediate state appellate court and does not seek review in the state supreme court?  Is he entitled to the 90 days he would receive if he did so?  The circuits are split.  The Seventh Circuit says yes.  The Fifth and Tenth Circuits say no.  In this case, the Eighth Circuit agreed with the Seventh Circuit and held that Pierson is entitled to the 90 days and thus his petition was filed timely.

United States v. Heredia, No. 03-10585 (9th Cir., April 2, 2007) (en banc):  Scienter:  The en banc Ninth Circuit revisits the legal definition of "knowingly" in the context of a federal statute that criminalizes the knowing possession of a controlled substance with intent to distribute.  21 U.S.C. 841(a)(1).  Thirty-one-year-old circuit precedent allowed a jury instruction on "deliberate ignorance" which stated:  You may find the defendant acted knowingly if you find beyond a reasonable doubt that the defendant was aware of a high probability that drugs were in the vehicle driven by the defendant and deliberately avoided learning the truth.  You may not find such knowledge, however, if you find that the defendant actually believed that no drugs were in the vehicle driven by the defendant, or if you find that the defendant was simply careless."  The Circuit affirmed the deliberate ignorance interpretation over the dissenting judges who would construe the statute strictly to prohibit actual knowledge of drugs only.

United States v. Moran, No. 05-30215 (9th Cir., April 2, 2007):  Scienter:  Moran and her husband were convicted of multiple counts of conspiracy and fraud surrounding a Ponzi scheme.  The District Court disallowed testimony by Pamela Moran that she had received advice from accountants and legal professionals to the effect that their actions were legal.  The District Court disallowed it on the basis of hearsay and Rule 403.  HELD:  such testimony is not hearsay when it is not offered for the truth of the matter stated and the error was not harmless because it supported a good faith belief in legality defense.

United States v. Snellenberger, No. 06-50169 (9th Cir., April 3, 2007):  After Formers:  A minute order is not a "judicial record" that can be relied upon to establish the nature of a prior conviction.

Robbins v. Sec. for the Dep't of Corrections, No. 05-14992 (11th Cir., April 3, 2007):  Habeas Corpus; Statute of Limitations/Equitable Tolling:  The one year  statute of limitations under the AEDPA is triggered when both the sentence and the conviction become final, such as when a case is remanded for re-sentencing.

People v. Albarran, No. B185547 (Cal. App., April 2, 2007):  "Bad Acts":  Attempted Murder, Shooting at an Inhabited Dwelling and Attempted Kidnapping for Carjacking convictions are reversed because of the erroneous introduction of evidence of gang affiliation.

In re Prescott, No. D047936 (Cal. App., April 3, 2007):  Ineffective Assistance of Counsel:  A trial court in California apparently had a policy in cases where a defendant wanted to withdraw a guilty plea of appointing counsel and then requiring counsel to report to the court whether there was a basis to withdraw the plea.  In this case, defense counsel's report contained communications he had with Prescott.  HELD:  Prescott was denied the effective assistance of counsel and this is one of the rare cases where prejudice will be presumed.

  
Victories

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



JAMES L. HANKINS, OKC:  I was pleasantly surprised to get a victory of sorts out of the circuit in a capital habeas case on whether my client, George Ochoa, may pursue a mental retardation claim in a second habeas petition.  The weight of authority in the other circuits had required the petitioner to show a prima facie case of mental retardation.  The Tenth Circuit panel held this was error since the statute simply required that a determination be made whether the rule relied upon by the petitioner had been made retroactive by the Supreme Court.  There is now a circuit split on this issue but the statute clearly states that the decision by the circuit on a motion for authorization to file a second or successive habeas petition is not subject to rehearing or review by the Supreme Court via certiorari.    

HONORABLE MENTION:  Although not a complete victory story per se, Oklahoma City attorney Bill Smith utilized what the press termed "a legal loophole" to negotiate a good deal for a client charged with two counts of lewd molestation.  The "loophole," otherwise known as the right of the accused under the Sixth Amendment to confront and cross-examine his accusers, was presented to the district court by Smith in the form of the unpublished opinion by the Oklahoma Court of Criminal Appeals in State v. Roley, which stands for the proposition that child hearsay can not be substituted for actual testimony at the preliminary hearing.  In the case of Smith's client, the State presented testimony of persons in whom the minor complaining witnesses confided rather than the actual witness.


Hearsay

CHILD TRACKING IN THE U.K.:  This rather disturbing article details an anti-crime plan unveiled in the U.K. that focuses on the small number of criminals responsible for a disproportionately high number of crimes.  The plan is apparently to identify these criminals when they are children and monitor their behavior.

MORE REGISTRATION MADNESS:  A California congresswoman wants to create a national arsonist registry in the wake of the deaths of five firefighters as the result of a wildfire started by an arsonist.

NOTEWORTHY BLOG:  Denver based criminal defense attorney Jeralyn Merritt generates a blog and also maintains a web site devoted to criminal law issues.  Worth a look.

DEFINITION OF IRONY:  Oklahoma state representative John Trebilcock was arrested last Saturday in Tulsa on a charge of driving under the influence.  He pulled out of a parking lot and was stopped for not having turned on his headlights and arrested at the scene when the officers determined he should not be driving.  The irony part:  Rep. Trebilcock co-sponsored legislation that "cracks down on repeat drunk drivers by requiring an ignition locking device on their cars." 

WOMEN ON THE BENCH IN TULSA:  According to this article, judges are selected from the pool of lawyers, and "there is a significant increase in the number of women who are actively practicing law, particularly in the trial area," District Judge Deborah Shallcross said.  Tulsa County has 33 judges and 13 of them -- almost 40 percent of the total -- are women.  That is approximately double the statewide percentage of women who hold district, associate district and special judgeships.  In Oklahoma County, 10 of 34 district court judges -- 29 percent -- are women. 

ANOTHER DNA EXONERATION:  This one is out of Buffalo, NY, and involves a schizophrenic who spent 22 years in prison for rape.  He was denied parole five times because he would not admit guilt.  The man was convicted on the basis of victim testimony and identification at two police line-ups.


                    LEGAL CALENDAR       


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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