Troy Timothy Clawson v. State of Oklahoma, ex rel. Department of Public Safety, No. 104,732 (Okl.Civ., Div. I, August 17, 2007) (Released for Publication):  This is a very suspect opinion on a driver's license revocation.  Although Clawson stipulated that the arresting officer had reasonable suspicion for the traffic stop, probable cause for the arrest, and did not challenge the basic findings of the breath test, the officer's affidavit contained two "scrivener's errors":  1) the date that notice of the revocation was served (the officer wrote in "6/30/06" when he meant to write "9" for the month; and 2) the notary got the date wrong by writing "29" instead of "30".  After a hearing before Judge Lucas in Cleveland County, at which both the officer and the notary testified to these "mistakes", Judge Lucas set aside the revocation based on these errors.  In this opinion, the Court of Appeals reversed, reasoning that the decision of Judge Lucas was erroneous as a matter of law and that it was based on insufficient evidence.  The Court seemed to be most troubled by the fact that Clawson did not object to any other aspect of the case.  The opinion is suspect in my view, just as a matter of appellate practice, because the Court of Appeals seems to completely disregard the careless manner in which the officer and the notary filled out the affidavit and seemed to have simply believed their testimony over the written documents.  This is dubious because, on appeal, if there is evidence in the record supporting the findings of the trial court, the Court of Appeals must affirm (at least that is what they tell us all the time).  Thus, this appears to me to be one of those cases where, no matter what Judge Lucas decided, the Court of Appeals would pretty much have to feel constrained to affirm.  This opinion sets a very bad precedent by allowing the State the opportunity to trot in it's witnesses to "explain" affidavits and notary information. 


Tenth Circuit

Last week was unusual in the Circuit in that there were no interesting published opinions.

HERE is a General Order issued by the Court on August 10, 2007, which outlines the procedures for electronic filing.


United States Supreme Court

No new cases.


Other Cases of Note

United States v. Yida, No. 06-10460 (9th Cir., August 16, 2007):  Confrontation/Cross-Examination:  Very nice case affirming the ruling below that a Government witness, who testified against Yida in a first trial that ended in a mistrial, but whom was subsequently deported, was not "unavailable" under Rule 804; therefore the Government could not use the transcript of the prior testimony against Yida.

Harrison v. Quarterman, No. 04-11188 (5th Cir., August 14, 2007):  1) Ineffective Assistance of Counsel; 2) Habeas Corpus; AEDPA Deference; Met:  IAC winner in a sexual assault case where Harrison's defense was that the complaining witness had engaged in a consensual three-way with him and another man, Mr. West, and that it had gotten "rough and out-of-hand."  For some reason, counsel failed to call Mr. West as a witness to testify to the three-way.


Victories

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



WARREN GOTCHER and GLOYD MCCOY convinced a judge in Pittsburg County that the State had too little evidence to go after the former city manager in McAlester.  Good work, Warren and Gloyd!

ANDREAS PITSIRI, OIDS, was witness to an amazing rebuke of the Tulsa County District Attorney's Office by the Court of Criminal Appeals in a Youthful Offender case a couple of weeks ago.  Assistant District Attorney Mickey Hawkins and his boss, District Attorney Tim Harris stood in the docks before the Court because, according to this ARTICLE by reporter Barbara Hoberock, Hawkins failed to appear at a scheduled court hearing, failed to file a brief on time, and used an incorrect format in the brief he actually filed.  Apparently, Harris tried his hand at damage control but the Court was having none of it, choosing to recess in chambers and then emerge with a decision remanding the case back to the District Court with instructions to reverse the order imposing an adult sentence.  This happened on Andreas's watch and he gets the excellent victory story!


HONORABLE MENTION: 

Although not a criminal trial, CHARLES J. WATTS, OKC, won a huge civil verdict against Avalon Correctional Services recently, convincing the jury that staff was negligent in failing to take an imate to a doctor for what they thought was simply the flu, but what turned out to be a deadly intestinal ailment.  The jury awarded $6 million in compensatory damages and $1.5 million in punitive damages.  Watts was assisted by Freda Cross and Gloyd McCoy in the case. 


Hearsay

SEX OFFENDER MAPS:  This link goes to another one of those interesting maps that plot information about registered sex offenders.  This one  is maintained by the Oklahoma City P.D. and represents the OKC metro.

NOT YOUR EVERYDAY DUI:  A Florida man was charged with DUI last week after crashing his new car---a $400,000 Lamborghini.

OIDS JOB OPENING:  The Capital Post-Conviction Division at OIDS has an opening for an Appellate Defense Counsel who will be responsible for representing death row inmates in state post-conviction proceedings.  Send a resume with cover letter to:  Angie Cole, Personnel Officer, Oklahoma Indigent Defense System, P.O. Box 926, Norman, OK,  73070.

FAST-TRACK TO THE DEATH CHAMBER:  The Attorney General may be able to choose which states may comply with little-used provisions of the AEDPA and are therefore entitled to the truncated legal deadlines in capital cases.  This is not a good thing.  




                   ------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.


OCDW SUBSCRIPTIONS: To subscribe click HERE