Hamill v. Powers, 2007 OK CR 26 (June 28, 2007):  Discovery:  Hamill was charged in Bryan County with First Degree Rape.  In this Mandamus proceeding, Hamill petitioned the Court to order the Hon. Rocky L. Powers to permit a psychological evaluation of the complaining witness by an expert chosen by the defense.  WRIT GRANTED BY A UNANIMOUS COURT(!!!)  The Court stated:  "In cases such as this one, where the complainant's mental state bears directly on an essential element of the offense, and the State intends to offer its own expert testimony on the issue, due process requires that the accused be afforded the opportunity for pretrial investigation of substantially similar quality."  This is a very progressive opinion in which the Court joined other jurisdictions which have held that the trial court has inherent authority to order a psychological or psychiatric evaluation of the complaining witness in a criminal prosecution.  The Court construed the Oklahoma Discovery Code to grant such authority to the trial courts and suggested that if the complaining witness refuses the defense evaluation then the trial court may preclude the State from using its evaluation.

Jackson v. State, 2007 OK CR 24 (June 25, 2007):  Death Penalty; State Cases:  Three counts of First Degree Murder and death sentences out of Comanche County are AFFIRMED over several claims including:  1)  death penalty voir dire; 2) the introduction of videotapes containing nearly twenty hours of police interviews with Jackson spread out over nine days; 3) the introduction of gruesome photographs; 4) victim impact testimony; 5) prosecutorial misconduct; 6) insufficient evidence supporting the "great risk of death to more than one person" aggravator; 7) the "murder committed for the purpose of avoiding arrest or prosecution" is vague and overbroad; and 8) cumulative error.


Tenth Circuit

United States v. Spear, No. 06-1296 (10th Cir., June 26, 2007) (Published):  Federal Sentencing Guidelines; "Abuse of Trust":  Spear worked as a clerk in the United States Citizenship and Immigration Services Bureau in Denver, Colorado.  Among other things, her job included processing immigration applications and collecting fees.  She was arrested and prosecuted for taking the fees and trashing the applications (sixteen counts of embezzlement).  She plead guilty and at sentencing the Government urged two enhancements:  vulnerable victim and abusing a position of trust.  The District Court denied the vulnerable victim enhancement but applied the abuse of trust enhancement.  HELD:  the District Court erred in applying the "abuse of trust" enhancement because Spear lacked the substantial discretionary authority required for this enhancement.

United States v. Romero, No. 06-2052 (10th Cir., June 29, 2007) (Published):  Federal Sentencing Guidelines:  Back in 2001, Romero, a Mexican national, plead guilty in New Mexico state court to Armed Robbery and Conspiracy to Commit Armed Robbery.  He was deported in 2003.  In 2005, he was again taken into custody in the United States and admitted that he had illegally re-entered.  The District Court sentenced Romero to 57 months (the low end of the Guidelines range).  At sentencing, Romero's counsel appeared to raise a "cultural assimilation" claim, arguing that he will again be deported to a country he does not know since he came to the U.S. at age 8-months.  However, there was no objection on this basis to the District Court's sentence and the panel held that the issue was waived and, upon plain error review, no relief was required.  The purpose of this case was to harmonize circuit authority on the question of whether defendants must object to procedural errors at the sentencing hearing.  They do.


United States Supreme Court

Panetti v. Quarterman, No. 06-6407 (U.S., June 28, 2007):  1) Insanity/Competency; 2) Habeas Corpus; Second/Successive:  This is another 5-4 opinion in a capital case in which the Court addresses a claim by a Texas death row inmate that he is insane; and therefore not subject to execution.  The opinion is lengthy and worthy of study, but the Court concluded:  1) the Fifth Circuit applied a too restrictive legal test for insanity (although the Court did not impose a definitive test); and 2) the AEDPA bar on "second or successive" applications does not apply to Ford (insanity) claims brought in an application filed when the claim is first ripe. 

NO MORE "BONG HITS FOR JESUS":  The Court allowed school authorities in Alaska to confiscate a banner proclaiming "BONG HiTS 4 JESUS" that was unfurled by students during the Olympic Torch Relay as it went through Juneau.  One of the students was actually suspended over the deal.  Not entirely unexpected since the Ninth Circuit ruled against the school officials, but still, the old fuddyduddys on the Court do not seem to have a sense of humor.  The case is Morse et al. v. Frederick, No. 06-278 (U.S., June 25, 2007). 


Other Cases of Note

Barton v. State, _ S.E.2d_, 2007 WL 1775565 (Ga. App., June 21, 2007):  Child Porn:  Barton was convicted of possessing images of child pornography when his wife provided authorities with his laptop computer.  The images were found on the hard drive, but in the temporary internet file folders which, the evidence showed, is a storage place to which the computer saves files without any affirmative action of the user.  HELD:  the mere existence of pornographic images in the cache files of an individual's computer is insufficient to constitute knowing possession of those materials absent proof that the individual either 1) took some affirmative act to save or download those images to his computer; or 2) had knowledge that the computer automatically saved those files.  Convictions REVERSED.  NOTE:  this is a good case that cites other cases on this topic.

United States v. Tapp, No. 05-30222 (5th Cir., June 28, 2007):  1) Filing Deadlines; 2) Ineffective Assistance of Counsel:  Tapp, a federal prisoner, filed a 2255 habeas petition alleging that trial counsel was ineffective for failing to file timely a notice of appeal.  The kicker here is that Tapp waived his right to appeal.  In this case, the Fifth Circuit joined other circuits (including the Tenth Circuit) in holding that Supreme Court precedent still allows an IAC claim on this issue because if the prisoner can show by a preponderance of the evidence that he requested an appeal, prejudice will be presumed and the petitioner will be entitled to file an out-of-time appeal.

United States v. Poindexter, No. 05-7635 (4th Cir., June 28, 2007):  1) Filing Deadlines; 2) Ineffective Assistance of Counsel:  Oddly enough, it appears the Fourth Circuit decided the same issue on the same day as the Fifth Circuit in the Tapp case above:  "We hold that an attorney renders constitutionally ineffective assistance of counsel if he fails to follow his client's unequivocal instruction to file a timely notice of appeal even though the defendant may have waived his right to challenge his conviction and sentence in the plea agreement."

United States v. Proctor, No. 05-3132 (D.C. Cir., June 19, 2007):  Searches and Seizures; Impound:  Officers arrested Proctor on a DUI and impounded the vehicle he was driving.  During the roadside inventory search, they found a firearm in the trunk.  This was unfortunate for Proctor since he was a convicted felon and he was subsequently convicted at a jury trial for felon in possession of a firearm.  HELD:  Reversed on the basis that the officers failed to follow standard procedure during the impound, thus the search was unconstitutional.

United States v. Littlejohn, No. 05-3081 (D.C. Cir., June 19, 2007):  Voir Dire:  This is an interesting case where a criminal conviction is reversed on the basis that the District Court asked compound questions to the jury panel which violated the rights of the accused under the Sixth Amendment to "a full and fair opportunity to expose bias or prejudice on the part of the veniremen."

United States v. Sumlin, No. 05-51720 (5th Cir., June 15, 2007):  "Bad Acts":  Sumlin was convicted by jury of unlawful Possession of a Firearm by a Felon and sentenced to 24 months.  REVERSED because the District Court erred in admitting the testimony of the arresting officer regarding the unproven extrinsic bad act by Sumlin of transporting drugs. 


Victories

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


NONE REPORTED.



Hearsay

JUSTICE LAVENDER TO RETIRE:  Oklahoma Supreme Court Justice Robert Lavender is retiring from the bench after 42 years.  He turns 81 in July and will retire August 1, 2007.

MORE ON SEX OFFENDER LAWS:  This article chronicles the plight of Nancy Phipps who is battling with the effects of being labeled a sex offender.  Phipps received a five year deferred in 2002 for flashing and soliciting an undercover officer.  This makes her a sex offender.  She now must live with pretty much all the other sex offenders in town because of the restrictions on residency.  The sad part is that Phipps now has a 16-year-old daughter who now must be forced to live among the sex offenders as well.

JUDICIAL NOMINATING COMMISSION APPOINTEE:  Dan Little, Madill, was elected to represent District 3 of the Oklahoma Bar Association.  He will serve a six-year term on the Commission which consists of 13 members.

SCOOTER:  I. Lewis "Scooter" Libby, the former Chief of Staff to Vice President Cheney, became federal inmate No. 28301-016 last week. 

NBC's TO CATCH A PREDATOR:  This is an interesting article on how the popular NBC show ended up fizzling out in Murphy, Texas, where one of the 25 men caught in the sting was a prosecutor from a neighboring county and committed suicide when police came to arrest him and the prosecutor in the county where Murphy sits declined to prosecute the others because of problems in the way the sting was set up.

FALLOUT FROM THE KELSEY SMITH-BRIGGS CASE:  Former Lincoln County (Chandler) Associate District Judge Craig Key defended himself publicly last week for returning 2-year-old Kelsey to her mother where she died a short time later from suspected child abuse.  Key wrote a book about the case titled "A Deadly Game of Tug of War:  The Kelsey Smith-Briggs Story."   

FEDERAL JUDICIAL NOMINATION:  Oklahoma City attorney Timothy D. DeGuisti has been nominated by President Bush to replace U.S. District Judge Timothy Leonard who his taking senior status.




SUBSCRIPTIONS: To subscribe click HERE