No new cases last week.  In fact, there were just three unpublished Summary Opinions sitting on the table at the clerk's office, all affirmed and otherwise unremarkable. 


Tenth Circuit

United States v. Pruitt, No. 06-3152 (10th Cir., June 4, 2007) (Published):  Federal Sentencing Guidelines; Reasonableness:  The panel described Pruitt as a "42-year-old woman with three prior convictions for selling illegal drugs and a criminal history spanning two decades."  In this case, she plead guilty to Distribution of Five or More Grams of Methamphetamine and was sentenced to 292 months (the low end of the Guidelines).  The panel AFFIRMED this monstrous sentence over her claim that it was unreasonable.  This is another example of how harsh federal criminal sentencing can be.  A close examination of Pruitt's criminal history reveals that she is little more than a very small-time street dealer.  The panel acknowledged this, but deferred to the District Court's imposition of sentence.  NOTE:  Judge McConnell, in a lengthy concurring opinion, noted quite explicitly that his review of the hundreds of appellate cases affirming sentences leaves little doubt that the "rebuttability" of the presumption of reasonableness of a within-the-Guidelines sentence is "more theoretical than real" and he thought that, in light of the resources devoted to such appeals, the Court should be "more candid in acknowledging this."  In other words, a within-the-Guidelines sentence (like Pruitt's) is virtually impervious to being rebutted as unreasonable.  He characterized the sentence in this case as one that "comes as close as a within-Guidelines sentence could come to being substantively unreasonable" and cited Pruitt's non-violent, petty drug conviction past criminal history.  He also pointed out that a person convicted of second-degree murder, but with no priors, would face a range of 235-293 months.  In the end, he likened the appellate process of attacking a within-Guideline sentence as being similar to the "snipe hunts" of his youth as a Boy Scout---a search for something that does not exist.

United States v. Nevels, No. 06-1240 (10th Cir., June 6, 2007) (Published):  1. Discovery; 2. Federal Sentencing Guidelines; Juvenile Convictions: Nevels shot and killed an intruder in his house in Denver, Colorado, and called 911 to report it.  Although the State charged him with First Degree Murder and Possession of Firearms by a Felon, these charges were dismissed when the feds picked up the case and charged Nevels with two Possession counts as an Armed Career Criminal since he had two prior juvenile delinquency adjudications and one adult felony conviction.  After a four-day trial he was convicted and sentenced to 300 months.  The panel AFFIRMED over his claims of:  1) the Government's endorsement of a witness three days prior to trial; 2) testimony from the Government's crime-scene reconstruction expert (no plain error since Nevels asserted self-defense at trial); and 3) the Government's use of his juvenile record to enhance under the ACCA (good discussion of the mode of analysis governing this issue).  NOTE:  The panel discussion of pre-trial discovery in federal criminal cases is worth a look so you can see just how little the Government must produce to the defense.  


United States Supreme Court

Uttecht v. Brown, No. 06-413 (U.S., June 4, 2007):  Death Penalty:  In this 5-4 decision, the Ninth Circuit is reversed yet again, this time in a capital case involving the state trial court's exclusion of a juror after finding that the juror's views of the death penalty would significantly impair his duty as a juror.  The juror gave ambiguous answers regarding his views on capital punishment and the Supreme Court held that the opinion of the state appellate court did not apply unreasonably Supreme Court precedent in finding the excusal of the juror proper.  It should also be noted that this case is not very strong because defense counsel did not object to the excusal at trial.  This case is really about federal court deference to state court decisions under the AEDPA rather than a foray into new legal rules governing capital case juror qualifications.

Oklahoma Death Row Inmate Denied:  The Court last week denied certiorari in the case of Oklahoma death row inmate Patrick Murphy.  Murphy was sentenced to death in McIntosh County for the 1999 murder of George Jacobs.    


Other Cases of Note

People v. Sedlock, No. 77 (N.Y.Ct.App., June 5, 2007):  Charging Documents:  Sedlock was a funeral director and a scoutmaster for a Boy Scout troop.  One of the members of his troop accused him of Forcible Touching which is a misdemeanor under New York law.  The accuser was 18-years-old when he made the allegation to the police, telling them that he had been touched inappropriately over the years.  The charging document accused Sedlock of committing the crime "from December 2002 through June 2003" which is a period of seven months.  Sedlock moved to dismiss on the basis that the time frame was so expansive that he could not prepare his defense.  HELD:  REVERSED with instructions to dismiss on the basis that the charging document failed to give proper notice sufficient to allow Sedlock to prepare his defense.  NOTE:  There appears to be very good case authority from the New York Court of Appeals on this issue.

State v. Copeland, No. E2002--1123-SC-DDT-DD (Tenn., May 23, 2007):  Eyewitness ID/Line-Ups:  Capital case in which the Tennessee Supreme Court held that the trial court erred in prohibiting the accused from offering expert testimony regarding eyewitness testimony (and overruling precedent on this issue). 


Recommended Expert

JAIME G. VOGT, MS, LPC, is an expert in the field of child forensic interviews.  She can assist in evaluating the interview methods used by the police and/or other forensic interviewers in child sexual abuse cases.  Vogt does business as Forensic Consulting & Counseling, LLC.  A pamphlet can be found HERE.  She can be reached at:  5551-B South Lewis Avenue, Tulsa, OK, 74105, phone 918.749.7175 and e-mail at mentalhealth2@cox.net. 

She is recommended by Josh Welch at Ogle & Welch, P.C. (405.232.9800).  Josh is using her in a case set for trial this week and reports she is reasonably priced, professional, and knowledgeable on this topic. 


Hearsay

LIFETIME INTERNET BAN REVERSED:  A Pennsylvania man who exposed briefly the naked rear end of his 3-year-old daughter over a webcam.  He was sentenced to 5 years and 11 months in prison and one of the conditions of supervised release was a lifetime ban from the internet.  An appellate court vacated this condition as too broad.

FLORIDA EXECUTION TEAMS READY:  The Florida Department of Corrections is ready to begin executions again since the moratorium on executions was lifted last month. 

OKLAHOMA WINE:  Here is an interesting article on the wine industry in Oklahoma.  According to the article, Oklahoma was home to the largest wine industry in the country prior to Prohibition.      
    


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


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.



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