Harris v. State, 2007 OK CR 28 (July 19, 2007):  Death Penalty; State Cases: Death penalty case out of Oklahoma County which was remanded for re-sentencing before Judge Virgil C. Black.  In this opinion dealing with the re-imposition of the death penalty, the Court AFFIRMED over several claims including:  1) the lack of a cautionary instruction on jury note-taking (no plain error); 2) failure to make a complete record for appeal; 3) the trial court instructing the jury on certain word definitions ("probability" and "possibility"); 4) failure to follow statutory procedure in handling jury questions (error but harmless); 5) victim impact evidence in recommending a sentence; 6)  insufficient evidence to support the continuing threat aggravator; 7) failure to instruct on the 85% Rule (not applicable since the crime occurred prior to Anderson; 8) the jury instructions limited the ability of the jury to consider his mitigation evidence (harmless error in this case, but the Court held that the instructions on this issue, OUJI-CR 4-78, should be modified); 9) IAC claims in failing to determine whether Harris was mentally retarded prior to trial; and 10) cumulative error.

Gilbert Vega, Jr., v. State, No. F-2006-110 (Okl.Cr., July 19, 2007) (unpublished):  Jury Instructions; Defense Requested Instructions:  Vega was convicted of Felony Murder (while in the commission of Attempted Robbery with a Firearm) in Oklahoma County and sentenced to LWOP.  The Court remanded for re-sentencing on an 85% Rule error (this case was tried before Anderson).  There is also a good discussion of the State's use of demonstrative exhibits.

Jeremy Dion Nicholson v. State, No. M-2006-370 (Okl.Cr., July 18, 2007) (unpublished):  Immunity; Double Jeopardy/21 O.S. 11:  Nicholson found himself in the uncomfortable position of being forced to testify at the trial of his co-defendant in the courtroom of Judge Twyla Mason Gray in Oklahoma County.  He refused and was slapped with six counts of contempt at six months each to run consecutively.  In this opinion, the Court affirmed the conviction because Nicholson was granted use immunity but vacated five of the convictions because there was only one act of contempt rather than six.  Particularly disturbing is the assertion that Judge Gray suggested to the State that the use immunity angle would assist the State in order to further the prosecution of the co-defendant.  According to Judge Chapel's dissent, "the judge was affronted that someone would refuse to testify.  She then set about to get that testimony for the State by suggesting the State agree not to use the testimony in the future."  This was not enough to carry the day for Nicholson, but it shows what happens in Judge Gray's courtroom.


Tenth Circuit

United States v. Contreras, No. 06-4144 (10th Cir., July 18, 2007) (Published):  Federal Sentencing Guidelines; Obstruction of Justice:  The opinion states:  "This case considers a matter of first impression for this circuit:  whether [the Guidelines] enhancement for obstruction of justice [sec. 3C1.1] applies when a defendant's obstructive conduct occurred during the prosecution of state charges preceding the federal indictment, but both federal and state charges were based on the same underlying conduct.  We hold that, in this case, it does."  According to the panel, seven other circuits have considered the issue and six have held that obstruction of the state proceeding does qualify for the enhancement and only one circuit has held otherwise (United States v. Perez, 50 F.3d 396, 398 (7th Cir. 1995).


United States Supreme Court

No new cases.

HERE is an interesting article profiling attorney Donald Verrilli, Jr., who has argued 10 cases before the Supreme Court, some of which involved pro bono work on capital cases. 


Other Cases of Note

United States v. Jenkins, No. 06-50049 (9th Cir., July 17, 2007):  Selective Prosecution:  This is an unusual case in which an indictment was dismissed on the basis that there was an appearance of vindictive prosecution.  Jenkins had been stopped twice crossing the border with Mexico while driving a car containing undocumented aliens.  However, she was never charged.  She was stopped a third time at the border, but this time as a passenger in a car that contained drugs.  She was subsequently charged with importation of marijuana.  During the trial on the drug charge, she testified in her own defense that she had no knowledge of the drugs because she had been paid before to smuggle aliens, not drugs.  As a result of this admission, the government secured an indictment against her for smuggling aliens during jury deliberations on the drug case.  The District Court held this had the appearance of a vindictive prosecution since the Government could have indicted Jenkins earlier on the smuggling charge but did not; and only did so when she testified.  The Ninth Circuit AFFIRMED (although this is probably one of those opinions that you will find only in the Ninth Circuit).



Victories

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



KIM CHANDLER BAZE, OIDS, won a re-sentencing hearing for the hapless Mr. Vega.  Quite a turn of events for him since he was stuck with LWOP before Kim got involved in the case.  Good work, Kim!

LISBETH L. MCCARTY, OIDS, persuaded the Court to invalidate 5 of the 6 counts of contempt imposed by Judge Gary on Mr. Nicholson in the case outlined above.  Very fine work, Lisbeth!

ANDREAS T. PITSIRI, OIDS, gets some belated kudos for his work in the Duenas-Flores case outlined last week.  Bill Baze has brought to my attention that Andreas conducted the extensive evidentiary hearing and drafted the supplemental briefing in the case.  Good team effort and way to go, Andreas!


Hearsay

DRUG TRAFFICKERS?  JUST SHOOT'EM!:  These were the sentiments of Oklahoma Senator Tom Coburn during a Senate Judiciary Committee hearing on the use of deadly force by Border Patrol agents.  During the hearing, Coburn asked what's wrong with shooting traffickers after they've been told to stop.  It was explained to the Senator that the Supreme Court has already ruled that using deadly force in that manner is illegal and also that agents have no way of knowing for sure if the fleeing person is a trafficker.  Ain't y'all proud?

ATV HELMET LAW:  Gov. Henry signed a law requiring persons under age 18 to wear a crash helmet while riding an all-terrain vehicle on public lands.  You might want to note this law for future reference since someone will most likely want to challenge it in the future either outright or in the context of a criminal or civil case.

L.E. RADER CENTER UNDER FIRE:  The juvenile detention facility in Sand Springs is being inspected thoroughly by the Justice Department in the course of litigation apparently brought by the feds in response to some problems at the facility.  If any of you have clients there you might want to check out this article.

GITMO DETAINEES SEE RAY OF LIGHT:  This article is an interesting explication of a case out of the D.C. Circuit argued by P. Sabin Willett, Boston, in which the court ordered the Government to stop stonewalling and produce information on the detainees at Guantanamo.

 

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