Quillen v. State, 2007 OK CR 22 (June 14, 2007):  Merger:  Quillen was charged with First Degree Murder by Child Abuse, but convicted by an Oklahoma County jury of the lesser offense of Second Degree Felony Murder (with Child Neglect as the underlying felony).  In this appeal, she challenged her murder conviction on the basis that the "merger doctrine" prevented the State from using a felony murder theory since the underlying felony caused the death.  The Court agreed and vacated the murder conviction and imposed a conviction for Child Neglect.  The basic idea here is that under a felony murder theory, the felony must be separate from the act that causes the death.  Otherwise, there would be no limit on the felony murder statute since any death resulting from a felony could be charged as felony murder.  This is an interesting case on this topic and resulted in a 3-2 decision in which Judges Lumpkin and Lewis read the plain language of the statute to encompass the charge in this case.  Also, the majority noted that the merger doctrine has been around in Oklahoma since Jewell v. Territory, 4 Okla. 53, 43 P. 1075 (Okla. Terr. 1986).

Beverly Michelle Moore v. State, No. F-2006-63 (Okl.Cr., June 11, 2007) (unpublished):  Jury Instructions; Defense Requested Instructions:  Moore was convicted of Murder in the First Degree in Oklahoma County and walloped with LWOP.  In this appeal, she gets relief via the 85% Rule since her jury was not given this instruction.  This case has the magical ingredient for relief:  a jury note asking the trial judge if there were any "guidelines that determine the minimum time a prisoner will serve with [a] Life Sentence."  Thus, Moore was able to show plain error and her sentence was modified to Life with the possibility of parole.


Tenth Circuit

United States v. Holly, No. 05-7130 (10th Cir., June 12, 2007) (Published):  Jury Instructions; Sexual Assault:  Holly was the Sheriff of Latimer County.  He was also apparently having a lot of sex with female inmates under his charge.  The feds swooped in and charged him with fourteen criminal counts including five counts of deprivation of civil rights under color of law involving aggravated sexual abuse.  In this opinion, the panel found error in the jury instructions defining aggravated sexual abuse and reversed four counts.  The panel found no error in the trial court's definition of "force" but found error in the jury instruction that defined "fear."

United States v. Guerrero, No. 05-3299 (10th Cir., June 14, 2007) (Published):  Ineffective Assistance of Counsel:  Guerrero proceeded pro se in this appeal, contending that he directed his attorney to file an appeal after his guilty plea but the attorney failed to do so.  He inartfully plead the claim, not raising it in his verified motion but raising it in an unverified memorandum.  Since both documents were filed timely under the AEDPA, the panel directed the district court to allow Guerrero to file an amended section 2255 motion and determine whether the allegations are true.


United States Supreme Court

Bowles v. Russell, No. 06-5306 (U.S., June 14, 2007):  Filing Deadlines:  Bowles is a prisoner in Ohio serving a sentence of 15 years to life for Murder.  After he exhausted his state appeals, he proceeded to the federal courts in habeas corpus.  His petition was denied.  He thus had 30 days to appeal.  He did not do it.  However, the federal rules allow the district court to reopen the time to file notice of appeal for 14 days.  Bowles filed a motion to do that and the district court granted the motion, setting explicit filing deadlines in a written order.  Bowles filed notice of appeal in compliance with the court's written order; HOWEVER, the deadline set by the district court was outside the 14 days allowed under the Rules.  HELD:  Bowles is SOL because the filing deadlines for the notice of appeal in civil cases are mandatory and jurisdictional.  No apparent exceptions.  The Court overruled precedent allowing for exceptions in "unique circumstances" and simply shrugged at the inequity here, saying that if Congress wishes to grant the Court the power to allow late filings then it should authorize such a power.  This is a terrible day for justice and a particularly appalling whipsaw of Bowles, who was simply following the order of a federal district judge.  Particularly chilling is an account in footnote 4, which details a letter sent by the Court clerk to a lawyer who had filed a certiorari petition one day late on behalf of his death row client who was scheduled to be executed(!)  The conservative 5-4 majority on the Court is definitely making things difficult for the individual.

Fry v. Pliler, No. 06-5247 (U.S., June 11, 2007):  Habeas Corpus; AEDPA Deference:  This case involves an esoteric question in federal habeas review of state court decisions concerning the standard of review for harmless error.  The harmless error standard on direct appeal is governed by the Chapman standard which requires the government to prove the error was harmless beyond a reasonable doubt.  However, in habeas proceedings, the Court has imposed a standard less favorable to the petitioner and saddles the petitioner with the task of showing the error had a "substantial and injurious effect" on the verdict pursuant to Brecht.  The AEDPA requires federal courts to give deference to state court opinions.  But which standard applies if the State appellate court does not apply Chapman in the first instance?  HELD:  The Brecht standard applies no matter what the state court does.


Other Cases of Note

United States v. Virden, No. 06-12279 (11th Cir., June 12, 2007):  Searches and Seizures; Traffic Stops:  The DEA in Columbus, Georgia, planned to execute search warrants on nine properties and had them under surveillance.  On the morning of the planned search, a car drove from one of the locations under surveillance.  It was followed to a gas station where officers accosted the driver,  frisked him, and detained him.  While the drug dog was on the way, the target of the search was in the area so the police hid the driver in a police car (although he was not under arrest).  When the drug dog was unavailable, the police simply took the keys and drove the car to the drug dog where it alerted to the trunk and drugs were found.  HELD:  the trial court's suppression order is AFFIRMED and the inevitable discovery doctrine does not save the search.

United States v. Stephens, No. 04-30185 (5th Cir., June 14, 2007):  Speedy Trial:  Convictions and sentences for armed bank robbery are reversed based on violation of the Speedy Trial Act.


Victories

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



STEVEN M. PRESSON & ROBERT W. JACKSON, Norman, saved Mrs. Moore life imprisonment without the possibility of parole in the unpublished case noted above.  Solid appellate work guys!

GINA WALKER, OKC P.D., went to trial last week in Oklahoma County before Judge Tammy Bass-Lesure, representing a client charged with trafficking as the result of a COMIT traffic stop.  Client was a passenger.  The bulk of the drugs were found in the trunk, but marijuana, meth and paraphernalia were found throughout the interior of the car.  After four hours of deliberations, the jury found NG on Trafficking, NG on Possession of Marijuana, but guilty of misdemeanor Possession of Paraphernalia.  That's pretty darn good for someone in the docks facing 4-life.  Great job, Gina!


Hearsay

DUKE LACROSSE DA RESIGNS:  District Attorney Mike Nifong abruptly resigned from his position as District Attorney last week during his ethics trial before the state bar in North Carolina.  He reportedly broke down in tears after admitting that he got "carried away" in the lacrosse case.  A lawyer for one of the falsely accused lacrosse players was not impressed, characterizing Nifong's theatrics as an "obvious cynical ploy to save his law license, and his apology to these people is far too little and comes far too late."  UPDATE:  Nifong is apparently going to be disbarred.  This appears to be one of the rare occasions when a prosecutor has faced severe consequences for misconduct (including an egregious Brady violation).  

ADAM WALSH ACT:  This link goes to a nice legal analysis of the Adam Walsh Child Protection and Safety Act.  The analysis was compiled by the Congressional Research Service for members and committees of Congress.

"ENEMY COMBATANTS":  The Fourth Circuit Court of Appeals has ruled that the President may not declare civilians "enemy combatants" and order them detained indefinitely by the military.  The person at the center of this case is Ali al-Marri, a citizen of Qatar who had lawfully entered the United States when he was detained.  The divided appeals court stated that the government may either charge him with a crime, deport him, or hold him as a material witness in connection with a grand jury investigation, but that indefinite detention was unconstitutional.


                           -----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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