Pavatt v. State, 2007 OK CR 19 (May 8, 2007):  Death Penalty; State Cases:  Highly publicized murder case out of Oklahoma County AFFIRMED over claims of:  1) denial of change of venue; 2) double jeopardy as a result of being convicted of both Murder I and Conspiracy to Commit Murder I; 3) jury selection issues; 4) insufficient evidence to convict; 5) denial of the right to present a defense (that someone else admitted to committing the crime); 6) admission of gruesome crime scene photographs; 7) hearsay and personal opinion as to guilt evidence; 8) improper prosecutorial argument during closing arguments at the penalty phase; 9) improper victim impact testimony; 10) improper comment by one of the defense mitigation witnesses; 11) ineffective assistance of counsel during second stage opening statements; 12) sufficiency of the evidence on aggravating circumstances; and 13) cumulative error.

Jerome Monroe v. State, No. F-2006-352 (Okl.Cr., May 7, 2007) (unpublished):  Jury Instructions; Defense Requested Instructions:  Monroe was convicted in Tulsa County of Murder in the First Degree and sentenced to LWOP.  The Court affirmed his conviction over several claims, but remanded for re-sentencing because his jury was not instructed on the 85% rule.

Chad D. Fourkiller v. State, No. C-2006-1192 (Okl.Cr., May 8, 2007) (unpublished):  Guilty Pleas; State:  Fourkiller moved to withdraw his pleas to various crimes entered before the Hon. Thomas S. Landrith in Pontotoc County.  At the hearing to withdraw his pleas, he alleged ineffective assistance of counsel.  His lawyer testified at the hearing.  The trial court denied the motion to withdraw pleas.  The Court reversed and remanded for a new hearing on the motion to withdraw pleas as it will almost every time when the accused is not provided with a different lawyer under these circumstances.


Tenth Circuit

United States v. Butler, No. 06-5027 (10th Cir., May 7, 2007) (Published):  Justification Defense: In this felon-in-possession-of-a-firearm case, the circuit affirmed over a claim that the trial court refused to instruct the jury on the defense of justification.  Although such a defense is available, prompt surrender of the firearm appears to be the only course of action no matter how uncomfortable the alternatives.

United States v. Cardenas-Alatorre, No. 06-2101 (10th Cir., May 8, 2007) (Published):  This is another horrible traffic stop out of the circuit.  A sheriff's deputy in New Mexico stopped Cardenas-Alatorre along Interstate 40 because a license plate frame obscured a portion of the license plate.  During the contact, the deputy noticed the scent of air fresheners which, as we all know by now, are actually "masking agents" used by drug runners and also that Cardenas-Alatorre was really nervous.  The deputy returned the driving documents along with a citation for the obscured tag, but engaged Cardenas-Alatorre in conversation, obtained consent to search, and found drugs in the car.  The main issue on appeal was whether the statute prohibiting obscured tags is vague.  In the end, the panel dodged the constitutionality of the statute question, and held instead that even assuming the statute is unconstitutionally vague, the officer acted reasonably in this case. 
 

United States Supreme Court

No new decisions.


Other Cases of Note

Workman v. Bredesen, No. 07-5562 (6th Cir., May 7, 2007):  This opinion addresses a district court's stay of execution in a 25-year-old capital murder case.  Lethal injection has come under fire recently as a potentially cruel and unusual punishment and the district court entered a temporary restraining order so Workman could pursue the claim.  Unfortunately, the circuit vacated the order and allowed the execution to proceed primarily because Workman waited until the last minute to raise the claim.

United States v. Esquivel-Ortega, No. 05-30355 (9th Cir., May 8, 2007):  Sufficiency of the Evidence:  Convictions for conspiracy to distribute cocaine and heroin and possession of cocaine with intent to distribute are reversed on the basis that the Government failed to produce sufficient evidence to convict.  This is an instructive case because Esquivel-Ortega was a passenger in a vehicle that contained drugs.

United States v. C.M. (a juvenile), No. 05-50585 (9th Cir., May 8, 2007):  Juvenile/Youthful Offender:  Title 18 U.S.C. sec. 5033 of the federal Juvenile Delinquency Act requires police to process a juvenile with a myriad of procedural safeguards such as immediately advising the juvenile of his/her rights, immediately advising the parent/custodian of the juvenile's rights, comply with any request by the juvenile to speak with his or her parents, and bring the juvenile before a magistrate "forthwith."  The police did none of these things in this case, C.M. was locked in a holding cell for nearly ten hours, and the panel concluded that these violations were not harmless.


Victories

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



PAULA J. ALFRED & SHENA BURGESS, Tulsa Co. P.D., won a re-sentencing for Mr. Monroe in the case reported above.  Monroe got zapped with LWOP, so a re-sentencing is quite a welcomed sight.  Paula did the appeal, but Shena deserves to be mentioned, too, because as trial counsel, she requested the 85% instruction prior to the Court's decision in Anderson.  Good job Paula and Shena!

TODD BURLIE & FERA SHOKAT won a huge "not guilty" in Kay county in a rape case.  Good win in a tough case, Todd and Fera!

PERRY HUDSON & MARNA FRANKLIN heard the Hon. Twyla Gray utter the word "dismissed" in the case of Curtis McCarty last week.  McCarty had been in litigation over accusations of capital murder for about 20 years.  His case was tainted by Joyce Gilchrist to such a degree that eventually even the death machine in Oklahoma County was forced to say no mas.  This must be a very gratifying win for Perry and Marna.  Outstanding! 

RICKI J. WALTERSCHEID, OIDS, secured a new hearing for Mr. Fourkiller on his quest to withdraw his pleas.  Solid work, Ricki!


Hearsay

MAN FREED after 18 years incarceration on a speedy trial claim(!)  Apparently, the Michigan judicial system forgot about Buxton Heyerman when an appellate court reversed his conviction in 1987.  After the reversal, nothing was done and he was never returned to the county for a new trial.

A "VICTIM BUTTONS" bill has been pending in the Oklahoma legislature and I believe Gov. Henry has signed it, although I have not confirmed that yet.  This is the first such law in the nation and allows persons to wear buttons to court that depict photos of murder victims.  This bill was in response to a Supreme Court case that seemed to uphold the practice.

JURY PRAXIS nationwide is more varied among the states than you might imagine.  This is a very interesting article describing a national report that examines jury practices from state to state. 



                    ------LEGAL CALENDAR------

WEDNESDAY, MAY 16, 2007:  The Court Services Bureau (Oklahoma County), what it is and what it does.  This is a FREE CLE presentation of one hour to be held at noon at the Jury Assembly Room at the Oklahoma County Courthouse.   

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.

THURSDAY, JUNE 28, 2007 & FRIDAY, JUNE 29, 2007:  The Patrick A. Williams Criminal Defense Institute.  This high quality CLE is sponsored by the University of Oklahoma College of Continuing Education and will be held at The Marriott in OKC.  I am scheduled to deliver the Court of Criminal Appeals Update on Thursday.  Contact Susan Dubbs in Norman at 1.800.522.0772 x.2891, or at 405.325.3386 or at sdubbs@ou.edu for more information.    



SUBSCRIPTIONS: To subscribe click HERE