Bland v. State, 2007 OK CR 25 (June 22, 2007):  Death Penalty; State Cases:  Jimmy Dale Bland is scheduled to be executed on Tuesday, June 26, 2007.  In this post-conviction proceeding, Bland argued that his execution would amount to unconstitutional cruel and unusual punishment since he has advanced lung cancer and less than one year to live.  The Court rejected this contention and DENIED the application but the stances of the individual judges are worth noting.  Judge Lumpkin authored the majority opinion, but could muster only two special concurrences from Judges C. Johnson and A. Johnson, both of whom viewed this issue as one for clemency rather than the court system because terminal illness does not present any legal authority for invalidating a death sentence (although, as Judge Chapel pointed out in his dissent, the Pardon and Parole Board already rejected Bland's plea for mercy on this basis by a 5-0 vote).  Judges Chapel and Lewis dissented and would hold that execution of a terminally ill prisoner who will die of natural causes within a matter of months violates the Constitution.  Interesting issue.

Andrew v. State, 2007 OK CR 23 (June 21, 2007):  Death Penalty; State Cases:  Brenda Andrew is currently the only woman on death row in Oklahoma and her conviction and death sentence is AFFIRMED in this opinion over several claims including:  1) failure to grant a change of venue; 2) multiple evidentiary issues involving Brenda Andrew's behavior toward her husband and affairs she had; 3) introduction of hearsay statements of the deceased; 4) introduction of co-conspirator hearsay (statements of James Pavatt); 5) evidence of other crimes and bad acts; 6) the introduction of irrelevant and unduly prejudicial evidence; 7)  improper interrogation; 8) improper lay opinion testimony that she was guilty of the murder; 9)  denial of the right to call witnesses and present a defense (error found but harmless);  10) several IAC issues; 11) several jury instruction issues (one on jail-house informants and another on flight);  12) insufficient evidence to support HAC and improper instruction on the "remuneration" aggravator; 13) prosecutorial misconduct; and 14) cumulative error.  NOTE:  Judge Chapel dissented and would have granted a new trial on several issues; and Judge A. Johnson was very troubled by the evidence used by the State to smear Andrew as a "bad woman" and would have vacated the death sentence and remanded for a new sentencing hearing.

Robert Earl Richardson v. State, No. C-2006-649 (Okl.Cr., June 21, 2007) (unpublished):  Guilty Pleas:  Richardson entered a guilty plea to Shooting with Intent to Kill before the Hon. George W. Lindley in Jefferson County.  Richardson was sentenced to 20 years in prison on April 2, 2002.  At the conclusion of the sentencing hearing, Richardson moved to withdraw his plea (and later filed a written motion to withdraw his plea).  His motion remained ignored for nearly four years because no one would writ him out of prison to attend the hearing.  He pursued a writ of mandamus to get a hearing and the Court ordered Judge Lindley to hold a hearing.  Motion denied.  HELD:  Richardson is allowed to withdraw his plea because he was not advised that the 85% Rule applied to his case.

Andrew Deon Bowie v. State, No. C-2006-1110 (Okl.Cr., June 19, 2007) (unpublished):  Guilty Pleas:  This is yet another case where the client got cross-ways with trial counsel, client alleged IAC regarding the plea, and the trial court did not appoint conflict-free counsel to conduct the hearing on the motion to withdraw the plea.  HELD:  remanded with instructions to appoint new counsel on the application to withdraw the plea.


Tenth Circuit

Banks v. United States, No. 06-5068 (10th Cir., June 18, 2007) (Published):  Searches and Seizures; DNA Collection:  The federal DNA Analysis Backlog Elimination Act of 2000, which requires all convicted felons to submit DNA samples for inclusion in a national database, is consistent with the Fourth Amendment even though the collection of DNA is performed in the absence of any individualized suspicion of criminal wrongdoing.

United States v. Balderama-Iribe, No. 04-4316 (10th Cir., June 19, 2007) (Published):  Mandatory life sentence for federal drug trafficking is AFFIRMED.  The claim on appeal centered around the prosecutor's misstatement of the punishment range but review was for plain error.

Magar v. Parker, No. 06-6369 (10th Cir., June 19, 2007) (Published):  Habeas Corpus; COA & Procedural Default:  Magar, an Oklahoma inmate, challenged the imposition of prison discipline which cost him some earned good behavior credits.  Magar exhausted his remedies through DOC and when he was denied there he proceeded to federal court via a writ of habeas corpus.  The District Court dismissed the case and Magar sought a Certificate of Appealability in the Circuit.  Unfortunately for Magar, Oklahoma amended its statutes at the time of his case and gave inmates such as him the right to judicial review of loss of earned credits.  Thus, Magar's claim was procedurally defaulted because he did not exhaust his state remedies and he could not show cause and prejudice sufficient to excuse the default.

Gradiz v. Gonzales, No. 06-9534 (10th Cir., June 20, 2007) (Published):  Immigration:  Although this is an immigration case, it is noteworthy for the purpose of advising clients in criminal cases who may also have immigration issues.  Gradiz, from Honduras, had been living in the U.S. illegally since 2003, but married a U.S. citizen and had a child.  While his petition for legal residency was pending, he caught a drug case in Wyoming.  In the drug case, he plead nolo and received a deferred sentence.  Based upon this, the Department of Homeland Security ordered removal on the ground that he had been convicted of an aggravated felony.  The Circuit upheld the removal order and the determination that even a nolo plea that resulted in a deferred sentence under state law is still a "conviction" under federal law.


United States Supreme Court

Brendlin v. California, No. 06-8120 (U.S., June 18, 2007):  Searches and Seizures; Traffic Stops:  This is a rare opinion from the Court that stands firm on Fourth Amendment grounds in a traffic stop case, holding that when police make a traffic stop, a passenger in the car, like the driver, is seized for Fourth Amendment purposes and so may challenge the constitutionality of the traffic stop.  The decision was unanimous.  NOTE:  the car had a temporary tag and the police stopped the car to make sure that the tag matched the car, although the police admitted later that there was nothing unusual about the tag or the way it was affixed to the car.

Rita v. United States, No. 06-5754 (U.S., June 21, 2007):  Federal Sentencing Guidelines; Reasonableness:  Rita sought a sentence below the Guidelines range (33 to 41 months) on the basis of his physical condition, likely vulnerability in prison, and military service.  The District Court sentenced Rita to 33 months and the Fourth Circuit affirmed, holding that a sentence imposed within a properly calculated Guidelines range is presumptively reasonable.  In this case, the Supreme Court held that a court of appeals may apply such a presumption of reasonableness.  However, the Court characterized such a presumption as "non-binding" and applicable only on appellate review, not in the District Court.  NOTE:  as Barry D. observed on the OCDLA list-serv, this opinion is very nuanced and, like Chase's ending to The Sopranos, could be read to mean just about anything the reader would like.  I get the feeling this issue will be litigated for years to come. 


Other Cases of Note

United States v. Walters, No. 05-51634 (5th Cir., June 21, 2007):  Federal Sentencing Guidelines; Reasonableness:  Walters was in the Air Force but was quickly found by his superiors to be mentally unstable and essentially forced out.  This did not sit well with Walters, so he sent a mail-bomb Unabomber-style to one of his sergeants which did not kill the sergeant but inflicted some serious wounds.  Walters was convicted of several federal offenses including Use of Destructive Device, Assault on a Federal Officer, and Causing Damage to a Federal Building.  The Guidelines called for 30 years for use of the bomb.  The District Court sentenced Walters to 262 months on the other counts and 720 months (60 years) on the bomb count.  The District Court, in articulating the reasons for the sentence, simply stated that the offense was bomb-related and 60 years was needed for specific deterrence.  HELD:  the sentence is vacated because the District Court simply articulated factors inherent in all bomb-related crimes and not specific facts relating to this particular defendant and his actions.  The panel stated that although the District Court had discretion to depart from the Guidelines, "the degree of departure in this case is substantial, and there must be more than mere lip service to the sec. 3553(a) factors to justify such a departure."

Warshak v. United States, No. 06-4092 (6th Cir., June 18, 2007):  Searches and Seizures; E-Mail:  This is an interesting case involving a federal criminal investigation of the target's e-mail account by a court order to the Internet Service Providers.  The District Court issued an injunction in favor of the citizen and the circuit AFFIRMED with a slight modification, holding:  The district court correctly determined that e-mail users maintain a reasonable expectation of privacy in the content of their e-mails, and we agree that the injunctive relief it crafted was largely appropriate, although we find necessary one modification.  On remand, the preliminary injunction should be modified to prohibit the United States from seizing the contents of a personal e-mail account maintained by an ISP...pursuant to a court order issued under 18 U.S.C. 2703(d), without either (1) providing the relevant account holder or subscriber prior notice and an opportunity to be heard, or (2) making a fact-specific showing that the account holder maintained no expectation of privacy with respect to the ISP, in which case only the ISP need be provided prior notice and an opportunity to be heard."


Practice Pointers by Mark Hoover

Mark Hoover is an excellent appellate attorney at OIDS.  Mark keeps me in check regularly by reviewing the Court's unpublished opinions and sharing his ideas with me on what some of these "shadow" opinions might mean.  In this article, Mark briefs two recent cases and tells you what you need to know.---Ed.     


CASE STUDY #1:  DRUG COURT AND DOUBLE PUNISHMENT

Tara Biggerstaff v. State, No. RE-2006-646 (Okl.Cr., June 12, 2007) (unpublished):  Biggerstaff was terminated from Drug Court in McCurtain County.  The State's Application to Terminate alleged violations that occurred during the eight month span she was in the Drug Court Program.  The Original Record indicated that the court had sanctioned her for the violations alleged in the Application to Terminate.  However, defense counsel did not object to the termination on double-jeopardy or double-punishment grounds.

On direct appeal, the issue was raised as a double jeopardy and double punishment claim.  The Court of Criminal Appeals held that failure to object at the termination hearing waived the issue unless it was fundamental error.  The Court held it was not.  The Court further noted, "Finally, a determination that probation violations have occurred does not constitute a conviction or acquittal upon which jeopardy may attach."  The Court did not specifically address the double-punishment facet of the claim.

PRACTICE POINTER No.1:  In a Drug Court case, always check the D.A.'s Application to Terminate to make sure the alleged violations are not ones for which the participant has already been sanctioned.  If the Application lists both new and previously-sanctioned violations, then it will probably pass muster.  However, if the D.A. is just tired of dealing with the case and files an Application listing violations that were already sanctioned, a timely objection on double punishment grounds may net some results.  Failure to object at the termination hearing  means the double-punishment issue is dead on appeal.


CASE STUDY #2:

Ryan Martin Wonderly v. State, No. C-2005-834 (Okl.Cr., June 8, 2007) (unpublished):  Wonderly entered Alford pleas to 14 counts of sexual acts with a child under 16 in Twyla Gray's courtroom (Oklahoma County) and received concurrent sentences of 35 years to do, with 20 suspended afterward.  He moved to withdraw his pleas, in part, because he had not been advised of the 85% Rule and had not been advised he would have to wear a Global Positioning System (GPS) device upon release.  The 4-1 Court held that these issues were procedurally barred because trial counsel did not specifically raise them in the application to withdraw the plea.

However, in his dissent, Judge Chapel chided the majority for using the Court rules to bar review of some claims.  He wrote, "Generally speaking, our review on certiorari is confined to the issues before the trial court at the time of the motion to withdraw.  However, that is by no means the only review this Court will conduct.  The majority's suggestion otherwise, attempting to narrow this Court's usual scope of certiorari review, is not supported by case law."

Judge  Chapel would have reviewed the claims under the umbrella issue of "the plea was not knowingly and voluntarily entered" because failing to consider such issues, even if they are not specifically raised in the trial court, "would harm the interests of justice."  Additionally, Judge Chapel stated his belief that GPS monitoring "poses a material consequence flowing directly from [the] decision to plead" and would review the claim.  Because Judge Chapel would have granted relief on the 85% issue, he believed the GPS issue was moot in Wonderly's case.  

PRACTICE POINTER No. 2:  It is clear that consideration of any additional Anderson-type issues (GPS monitoring, sex offender registration, etc.) by COCA will begin as issues articulately raised in the district court.  Therefore, if the defense bar is ever going to convince the Court to extend the rule in Anderson to contexts other than the 85% Rule, we must make a solid record in the trial courts.  This means prepare and request jury instructions regarding Sex Offender Registration, GPS monitoring, and any other punishment your client must endure as a result of a conviction.


Victories

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


KATRINA CONRAD-LEGLER, OIDS, did some fine appellate work in last weeks Quillen opinion involving the merger doctrine.  Not only did Katrina convince the Court that the merger doctrine operated to preclude the murder conviction (which dropped the sentence from 45 to 15), but I am told that this was one of the rare non-capital cases where the Court granted oral argument.  Outstanding, Katrina! 

LISBETH L. MCCARTY, OIDS, won a nice result for Mr. Richardson by convincing the Court of Criminal Appeals to allow him to withdraw his plea in Jefferson County.  Perhaps justice awaits Mr. Richardson.  Good job, Lisbeth!

ANDREAS T. PITSIRI, OIDS, secured a new hearing for Mr. Bowie in his quest to withdraw his pleas.  Terrific work, Andreas!

STEVE STICE, Norman, was able to secure a dismissal of the charges in a Second Degree Rape case in Cleveland County on the basis of lack of speedy trial.  This is quite a feat because if you read through the appellate opinions it is clear that no one ever gets relief in state court on speedy trial claims.  Way to go, Steve!

 
Hearsay

WHY THE WAR ON DRUGS CAN NOT BE WON:  This is amazing.  In March of 2007, the DEA and Mexican authorities raided a home in Mexico City and recovered $207 million in cash(!!)  The DEA described this event as the "largest drug-cash seizure in history."  I checked on snopes.com to make sure this was not an urban myth and it checked out as true.  The amount of cash found in the home is staggering and the person responsible has apparently slipped away.

.50 BAC?:  A Washington woman was arrested for DUI last month and scored a .50 BAC two hours after her arrest (by blood test).  Wow.  I ran this little ditty by Charles Sifers who said he recalled seeing .41, .43. and .47 in some of his cases, but not one .50 or higher (which will typically produce death in most people).  Charles advised that there are still ways the blood test could be inaccurate, but still, what a whopper of a BAC reading.

JUDGE NOT:  This link goes to an interview conducted by Psychology Today with former Judge Sol Wachtler.  Wachtler's story is fascinating.  He was Chief Judge on the New York Court of Appeals, but unbeknownst to most people, he suffered from mental problems and depression which resulted in his erratic stalking of a woman and her teen-aged daughter.  He was arrested, convicted, and sent to prison for a 13-month term (during which he was stabbed by another inmate).  I was in law school when all this occurred and just happened to be researching the issue of stalking.  Wachtler is very candid and contrite and offers some interesting insights into the criminal justice system by a man who has literally seen it from top to bottom.




                         -----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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