Wood v. State, 2007 OK CR 17 (April 30, 2007):  Death Penalty; State Cases:  Oklahoma County capital case AFFIRMED over claims of:  1) insufficiency of the evidence of felony murder; 2)  error in the bifurcation process; 3) the aggravating circumstances were not charged in an information or indictment; 4) failure to instruct the jury that it must find that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt; 5) failure to instruct on the meaning of life imprisonment and life imprisonment without parole; 6) the "continuing threat" aggravator is vague; 7) the "heinous, atrocious or cruel" aggravator is vague, unsupported by the evidence, and the instruction given was erroneous; 8) a challenge to the "great risk of death to more than one person" aggravator; 9) a general challenge to the constitutionality of the death penalty; 10) ineffective assistance of counsel in failing to protect the record with objections and failing to investigate and present mitigation evidence; and cumulative error.

Pickens v. State, 2007 OK CR 18 (May 4, 2007):  Guilty Pleas:  In Ferguson v. State, 2006 OK CR 36, 143 P.3d 218, the Court held that failure to advise a defendant of the 85% rule when it applies to a sentence makes a guilty plea invalid as not knowing and voluntary in a negotiated plea or plea bargain case.  In Pickens, the Court extended this rule to cases where the defendant enters a blind plea.  Thus, Pickens is entitled to withdraw his plea. 


Tenth Circuit

United States v. $252,300.00 in United States Currency, More or Less, No. 06-3164 (10th Cir., April 30, 2007) (published):  Forfeiture:  In this federal forfeiture case, the panel illustrates just how far it will go to justify seizing cash from a citizen on the most flimsy of evidence.  In this case, a Kansas highway patrolman stopped a truck driver and his passenger for a traffic violation on I-70.  The trooper obtained consent to search the truck and trailer.  During the search, he came upon a locked compartment under the sleeper bed in the back of the cab.  Inside, the trooper found two sealed cardboard boxes, both addressed to "Mabel Smith."  One contained $60,000 in cash and the other contained a locked briefcase which contained $191,000 in cash (both driver and passenger disclaimed these items and claimed to not know the lock combination).  The driver and passenger gave conflicting stories about the money and a drug dog alerted to the money.  On appeal, the claimants asserted that the Government failed to establish by a preponderance of the evidence a substantial connection between the currency and a controlled substance.  The panel analyzed the following factors:  1) driver's nervousness (minimal probative value); 2) inconsistent statements by driver and passenger regarding the money (significant probative value); 3) concealment of the currency (not particularly significant since people conceal large amounts of cash); 4) known drug route (given no credit since it's of no consequence that a truck driver was driving on an interstate highway); 5) currency amount and wrapping (significant probative value); 6) lack of evidentiary support for source of cash claims (entitled to considerable weight); and 7) odor of marijuana on the currency (strongly probative since the troopers could detect the odor in addition to the dog).

United States v. Velarde, No. 06-2126 (10th Cir., May 1, 2007) (Published):  Prosecutorial Misconduct; Brady Issues:  In a sexual abuse of a minor case, Velarde was convicted almost entirely on the testimony of the complaining witness (no other witnesses and no corroborating medical evidence).  He moved for a new trial three years later on the basis of a Brady claim, alleging that the Government failed to disclose that the minor complaining witness falsely accused her school teacher and the school's vice principal of touching her inappropriately.  Velarde learned of these accusations from a teacher at her school.  The teacher claimed to have told an FBI agent about it prior to trial.  The FBI agent denied it.  The District Court denied the motion for new trial without holding an evidentiary hearing.  HELD:  the court erred in denying discovery on the issue.


United States Supreme Court

Scott v. Harris, No. 05-1631 (U.S., April 30, 2007):  This is a civil rights action brought by a motorist who was injured when the cops wrecked him during a high speed chase.  The Court held that since the motorist initiated the chase and it posed a substantial and immediate risk of serious physical injury to others, the officer's attempt to terminate the chase by forcing the motorist off the road was reasonable and he is entitled to summary judgment.  NOTE:  the Court decided to include the videotape of the chase on the web site (but I thought it was dark and difficult to follow).

CERTIORARI GRANT:  The Court has agreed to hear an interesting case out of Texas.  In 2004, the International Court of Justice ordered a review of cases in which Mexican nationals had been sentenced to death in the United States in violation of the Vienna Convention (which mandates that foreign nationals must have access to their consulate and to legal counsel).  President Bush ordered hearings in these cases, including one involving a death row inmate in Texas, but the Texas Court of Criminal Appeals ruled that the President overstepped his authority.
 

Other Cases of Note

Baugh v. State, No. SC04-21 (Fla., April 26, 2007):  Sufficiency of the Evidence:  In a sexual battery of a minor case, the minor accused Baugh of making her perform fellatio.  However, at trial, she completely recanted her story.  Thus, the only direct evidence of guilt was her out-of-court statements.  In this 4-3 decision, the Florida Supreme Court held that the statements were not sufficiently corroborated to sustain the conviction.  NOTE:  this is a strong case since there was some facially strong corroborating evidence such as the fact that Baugh tried to commit suicide after he was confronted and he also made the statement to the child's mother that he wanted the child to perform fellatio on him while the mother watched.


Practice Pointer--Child Porn Cases 

The internet has made downloading child pornography enticing to those persons inclined to view such things and they always seem to find new and creative ways of getting caught doing it and subsequently end up in your office looking for some legal help.  Typically, these cases involve a very large number of images (a thousand + is not uncommon) and a computer.

In the typical case, several legal issues present themselves such as search and seizure issues, whether the images depict actual children, and whether the images were knowingly downloaded by the client.  I have filed some appeals in these types of cases lately and there are two points that I want to impress upon you to consider when you defend these cases in the trial court so you can object and make a good appellate record.

FIRST, make sure your client is charged under the most specific statute governing the possession of child pornography.  There are several statutes banning such possession and it makes a huge difference to your client under which specific statute the State proceeds because the punishment ranges vary.  See 21 O.S. 1021(4) (computer download punishable by 30 days to 10 years and or $500-20,000 fine); 21 O.S. 1021.2 (0-20 years and/or $0-20,000 fine); 21 O.S. 1024.2 (0-5 years and/or $0-5,000 fine).

The State most likely will charge your client under 21 O.S. 1021.2 because it criminalizes the possession of child pornography and imposes the most lengthy potential sentence (up to 20 years).  You must object to this.  In such cases, where two statutes govern the same criminal act, the more specific statute applies because legislative intent trumps prosecutorial discretion.  State v. Franks, 2006 OK CR 31, 140 P.3d 557. 

The Court of Criminal Appeals has held that a possession charge is properly brought under 21 O.S. 1024.2 (up to 5 years) rather than 21 O.S. 1021.2 because it is the more specific statute.  The State conceded error in such a case.  See Bernston v. State, No. C-2005-211 (Okl.Cr., May 9, 2006).  So, if your client is charged under 21 O.S. 1021.2, file a motion to quash or amend the Information and attach a copy of Bernston so the trial judge can read it.

SECOND, the State will most likely find hundreds, if not thousands, of images on your client's computer; or, there may be a CD containing hundreds or thousands of images.  Typically, the State will pick the worst images of the bunch, print those off, and charge your client with discrete counts based on those images.  It is not unusual to see a defendant charged with anywhere from 10 to 50 counts (or more) based upon the selective extraction by the State of specific images on your client's computer.

Your defense to this is to file a motion to quash the Information and move to consolidate all these counts into one count of possession.  The argument is that, based upon the statutory definition of "child pornography" in 21 O.S. 1024.1, a CD or a computer hard drive, even if containing multiple images, is a single cache for which only one act of possession may lie.  Use Merrick v. State, No. F-2005-569 (Okl.Cr., October 19, 2006) as your authority.

These issues are not covered by published authority from the Court of Criminal Appeals.  That is why you must use unpublished cases and make a good record so we can persuade the Court to issue a good published decision.


Catch Him If You Can

The Steven Spielberg movie "Catch Me If You Can" is based on the life story of Frank Abagnale, Jr., who, from the ages of 16 to 21, wrote a prodigious $2.5 million in hot checks.  In the movie, he was portrayed by Leonardo DiCaprio, with Tom Hanks as the dogged FBI agent who eventually tracked him down.

The Oklahoman ran a story on Abagnale on Sunday, April 22, 2007, which revealed that he is based in Tulsa, Oklahoma, and still teaches FBI agents the ins-and-outs of document fraud.  According to the article, Abagnale's proudest moment was when his son graduated from the FBI academy "where Abagnale has taught for 32 years."

The movie is very good and his life story appears to be very interesting.  During part of the interview he stated that he was very lonely during the time he was committing crimes, living in hotels most of the time and missing the things that most teenagers get to do.  He also said that he always knew he would get caught, but he did not have it in him to just walk in and turn himself in.  

The article stated that he runs his own security consulting business and I suspect he may be available to consult with defense lawyers in an appropriate case.


Victories

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



BILL J. BAZE, OIDS, scored a well-earned appellate victory in the Pickens case, extending the rule of Ferguson to blind pleas.  Well done, Bill! 


Hearsay

OLD SPARKY:  Nebraska is the only state to utilize the electric chair as the sole means of execution.  Last week, the Nebraska Supreme Court issued a stay in a capital case because it will determine whether electrocution is cruel and unusual punishment (in another case).  The last execution in Nebraska was in 1997.

TULSA DUI:  Attorney Bruce Edge got some ink last week in the wake of a DUI-related accident in Tulsa that injured a Tulsa policeman. 
 
LETHAL INJECTION:  HERE is an interesting article detailing comments by Dr. Jay Chapman, the one-time Chief Medical Examiner in Oklahoma and the creator of the formula used in lethal injections as methods of execution.  He advocates some changes in the lethal injection protocol.  HERE is an article about Tennessee death row inmate Phillip Workman, who is scheduled to be put to death by the method devised by Dr. Chapman.

SHAKEN-BABY SYNDROME:  This article details some of the legal aspects of this medical condition, including an assertion that a judge in Florida barred the use of the phrase "shaken-baby syndrome" on the basis of undue prejudice.  


                         ------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. 



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