Eizember v. State, 2007 OK CR 29 (July 26, 2007):  Death Penalty; State Cases:  Eizember's crime spree ended up costing him multiple felony convictions as well as a death sentence, all of which are affirmed in this lengthy opinion over claims including:  1) failure to excuse two jurors who were biased in favor of the death penalty (note the excellent manner in which trial counsel preserved this issue; and also that Judges Chapel and A. Johnson would have vacated the death penalty on this issue); 2) an allegation that voir dire concerning parole tainted the jury panel to not consider straight life; 3) the admission of "bad acts" including an affair, an uncharged burglary, and other uncharged crimes committed by Eizember during his crime spree; 4) failure to instruct the jury during the first stage about the 85% Rule; 5) improper less crime instruction (error but harmless); 6) sufficiency of the evidence of the "great risk of death to more than one person" aggravator; 7) sufficiency of the evidence of the "heinous, atrocious, or cruel" aggravator; 8) multiple IAC claims; and 9) cumulative error. 


Tenth Circuit

United States v. Brown, No. 05-2319 (10th Cir., July 24, 2007) (Published):  Searches and Seizures; Investigative/911:  This is a Felon-in-Possession of a Firearm case, but the central appellate issue was the reasonableness of the investigatory search made by Albuquerque police pursuant to a 911 call made by an anonymous caller.  Under the facts, the panel held that the search was reasonable.

United States v. Barrett, No. 06-7005 (10th Cir., July 25, 2007) (Published):  Death Penalty; Federal:  This is a lengthy opinion affirming the federal death penalty in a case out of the E.D. of Oklahoma.  Barrett is the guy who killed Trooper David Eales during the execution of a search warrant back in 1999.  The panel AFFIRMED over claimes involving:  1) challenges to the search warrant (reviewed for plaine error); 2) challenges to the Indictment (sufficiency, multiplicity, and improper joinder of offenses); 3) improper admission of victim impact evidence; 4) juror misconduct in making contact with one of the Trooper witnesses; 5) a Batson challenge; 6) numerous claims regarding the constitutionality of the Federal Death Penalty Act; 7) failure to follow the "Petite Policy" of foregoing federal prosecutions when the state has prosecuted; and 8) cumulative error.

United States v. Saenz, No. 06-1071 (10th Cir., July 25, 2007) (Unpublished):  Guilty Pleas:  Saenz pleaded guilty to Conspiracy to Distribute or Possess with the Intent to Distribute 500 or more Grams of Cocaine.  Saenz is on a mission to withdraw his plea and, in this order, the panel reversed and remanded with instructions for the District Court to grant Saenz an evidentiary hearing on his claims concerning the voluntary nature of his plea.


United States Supreme Court

No new cases.


Other Cases of Note

United States v. Lopez-Vanegas, No. 05-15021 (11th Cir., July 26, 2007):  Jurisdiction:  Extremely intersting case where the Government spent two months in trial convincing the jury that the defendants conspired to ship huge amounts of cocaine from Columbia to Venezuala to Saudi Arabia and then to France for distribution throughout Europe.  Unfortunately for the Government, the Eleventh Circuit held that such an agreement does not constitute a crime against the United States(!)  Convictions and sentences VACATED.

United States v. Poynter, No. 05-6508 (6th Cir., July 26, 2007):  Federal Sentencing Guidelines; Reasonableness:  Poynter pleaded guilty to Traveling in Interstate Commerce for the Purpose of Engaging in Illicit Sex With Two Minors.  The guideline range was 188-235 months, but the District Court imposed a sentence equal to the statutory maximum of 720 months (a 206% upward variance from the Guidelines' upper range).  The Circuit vacated this sentence because the reasons articulated by the District Court supporting this sentence could apply to any offender guilty of this crime.

United States v. Rodriguez, No. 05-3069-cr (2nd Cir., July 24, 2007):  Prosecutorial Misconduct; Brady Issues:  Instructive case where the Government failed to take notes of, and failed to disclose, previous lies of its witnesses.  These lies were not recorded, but the Government was aware of them.  "When the Government is in possession of material information that impeaches its witness or exculpates the defendant, it does not avoid the obligation under Brady/Giglio to disclose the information by not writing it down."  REMANDED to the District Court to make a materiality and prejudice determination.

Vasquez v. Jones, No. 04-2274 (6th Cir., July 24, 2007):  Confrontation/Cross-Examination; Habeas Corpus; AEDPA Deference Met:  The State's key witness was questioned by the defense at preliminary hearing, but failed to show up for trial.  The transcript of the preliminary hearing was introduced, but the trial court disallowed any impeachment of the witness with his criminal record.  In this federal habeas case, the Sixth Circuit granted relief based on Confrontation Clause grounds.


Victories

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



Sad to say, my box does not contain any victory stories this week.  This is the first time in a while there is no good news to report on local criminal defense goings-on.  If some good stuff happened and I do not know about it, always feel free to contact me and tell me.  The office number is 405.232.9800 and my cell is 405.476.0418.


About Town

SHAKESPEARE IN THE PARK:  These outdoor plays were held for a long time at a beautiful park in Edmond.  However, it has relocated to downtown OKC by the Crystal Bridge.  Last Friday, my wife and I went to a production of Cyrano De Bergerac which, although not a Shakespeare play, was very good nonetheless.  The new stage and outdoor theatre is very small and contains stadium seating which, to me, made it better because we were closer to the actors and could better see facial expressions and hear dialogue.  On the minus side, my wife liked the old park locale better because it was "more romantic" and more conducive to spreading out picnic-style (patrons typically take food and wine to these things).  Also, it was very hot until the sun went down because of the structural wind block.  Still, although on balance I probably prefer the old park locale, these plays are timeless and very entertaining and, at only $10, are a bargain.  Check it out.

THE MELTING POT:  This is a restaurant located in OKC in Bricktown, 4 E. Sheridan Ave., phone 405.235.1000.  It is upscale and the thing that sets it apart from the pack is the "melting pot" way of presenting the food.  Each table has its own built-in hotplate.  The waitress prepares a pot with fondue (basically melted cheese) and the menue items are all based around foods that can be boiled in the melting pot right on your table.  The waitress prepares the liquid seasoning with the flavor you select from the menu and then brings out the raw food to your table.  You have to cook it yourself.  We had beef, chicken and some seafood as well as vegetables.  It was surprisingly good and an interesting experience.  This place is a terrific date restaurant because there is something intimate (although not too much so if you are on a first date) about cooking your own food at the table in that manner.  If you go there, be prepared to spend a lot of time and shell out about a buck and a half for two (probably two bills if you get a bottle of wine). 

NONNA'S EURO-AMERICAN RISTORANTE AND BAR:  Nonna's is also located in Bricktown at 1 Mickey Mantle Dr., phone 405.235.4410.  We went there last Friday, just before the play.  I was really impressed with this place and I am glad to see Bricktown featuring some nice places like this.  If you go there, be sure to spend some time before dinner having some drinks in the Purple Bar upstairs.  The food was excellent and so was the service, although it is a little on the pricy side.  Dinner for two will set you back about one and half bills.


Hearsay

LAW ENFORCEMENT BEHAVING BADLY:  The Oklahoman reported last Friday, July 27, 2007, that an investigator in the Creek County District Attorney's Office was arrested last Thursday on a complaint that he violated a protective order obtained by his wife.  Ed Willingham, Jr., is accused by his putative wife of entering her home and standing "at the edge of her bed and touch[ing] her foot."  Elsewhere, a former Kay County Sheriff's Deputy, Michael Wade Kent, 51, was indicted last Thursday by a federal grand jury in Oklahoma City on charges of trying to arrange a sexual encounter with a 14-year-old girl in Pennsylvania who, as it shockingly turns out, was actually an undercover federal agent.

PROBLEMS IN NATIVE AMERICA:  Here is an interesting article on the (sometimes) neglected or unkown world of lawlessness on tribal lands in Oklahoma, particularly concerning the sexual assaults on women.

IMMIGRATION GOINGS-ON:  The wave of anti-immigration laws passed by municipalities may have run into a legal snag.  A federal judge in Pennsylvania has invalidated such a law on the basis of federal pre-emption and Due Process. 

HUGE VERDICT FOR WRONGFUL CONVICTION VICTIMS:  A federal judge in Boston awarded a total of $101.7 million to four men who spent decades in prison as the result of corrupt FBI agents.

BARDO STABBED IN PRISON:  Robert John Bardo, the disturbed man who stalked and killed actress Rebecca Schaeffer in 1989, was stabbed in prison.  He was not killed.  Bardo's killing of Schaeffer was the catalyst for the wave of "stalking" legislation in California and then throughout the United States.  I published a law review article on Oklahoma's then-new stalking law and did a lot of research on the topic, including Bardo's case.



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

THURSDAY & FRIDAY, AUGUST 23 & 24, 2007:  Criminal Defense in the Death Belt III, presented by the OCDLA.  This one is good for 14 hours of CLE (including 1 ethics) and has some good names on the roster including:  David Smith, Gary James, David Autry, Cindy Viol, Janet Chesley, Dick Burr, David Lane (out of Colorado speaking on the wildly successful "Colorado Method" of capital jury selection), and Danalynn Recer (speaking on the representation of foreign nationals).  Cost is $125 for OCDLA Members, $160 for non-Members, and $100 for public defenders.  The Registration form is linked above.  If you have questions contact Brandon Pointer at 405.239.2595.
 


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