Andrew v. State, 2007 OK CR 36 (September 10, 2007):  Rehearing denied over several claims; however, the Court corrected a factual allegation in the original opinion that was not supported by the evidence.  This was sharp lawyering by defense counsel because the case is headed to federal court and if the facts are not corrected, Andrew will be stuck with them for purposes of federal habeas review.  Still, relief denied.    

Terry Dewayne Wakefield v. State, No. F-2006-1095 (Okl.Cr., September 11, 2007) (unpublished):  Ex Post Facto:  Wakefield was convicted of, inter alia, Assault and Battery--Domestic Abuse (AFCF x 2) and sentenced to ten years.  However, the statute under which he was convicted was not in effect at the time he committed the crime.  The Court held that the jury should have been instructed that the punishment range was up to one year in the county jail and/or up to a $3,000 fine.  HELD:  Sentence MODIFIED to one year in the county jail.  NOTE:  This case is an excellent example of an issue that is very easy to overlook, both at the trial level and on appeal.  

Delbert L. Gibson v. State, No. F-2006-854 (Okl.Cr., September 13, 2007) (unpublished):  1. "Bad Acts"; 2. After Formers:  Gibson was convicted in Oklahoma County of two counts of Lewd Molestation (AFCF x 2) and sentenced to LWOP on both counts.  Gibson raised four claims, two of which warrant discussion.  First, he challenged the State's use of a twenty-year-old prior incident of fondling used by the State in its Burks notice.  The district court admitted this prior crime under the then-valid greater latitude rule, since overruled in James v. State, 2007 OK CR 1.  The Court held introduction of this prior crime was error:  "There was no particularly distinctive modus operandi linking the instant offenses with the prior molestation.  The only things the offenses appear to have had in common were that they all generally involved the fondling of young girls.  As such, the prior molestation suggested nothing more than a general propensity to commit such acts, which is not a legitimate use of other-crimes evidence in the guilt phase of a trial."  This is quite a holding in light of the new changes in the evidence code allowing such evidence, but the Court made no mention of them.  Although the Court found error, it held the error was harmless.  Second, the State alleged two prior sex-related felony convictions in an effort to trigger the mandatory LWOP provisions of 21 O.S. 51.1a.  The two priors were a 1986 Oklahoma conviction for Lewd Molestation and a 1989 Kansas conviction for rape.  The problem is that 21 O.S. 1123, the Lewd Molestation statute, also contains a punishment provision (that applies when the prior is Lewd Molestation); and also, the exact nature of the Kansas conviction was unclear from the record.  The Court held ultimately that the general enhancement provision of 21 O.S. 51.1(B) applied (not less than 20) because Gibson had two prior felony convictions (one of which was not Lewd Molestation) and MODIFIED the sentence to twenty-five (25) years.

Tenth Circuit

United States v. Smith, No. 06-3239 (10th Cir., September 11, 2007) (Published):  Waiver:  Smith pleaded guilty to one count of Possession w/Intent to Distribute Five Grams or More (Crack).  Pursuant to her agreement, Smith waived her right to appeal her sentence.  She was sentenced 151 months when the District Court rejected her safety valve request.  HELD:  Waiver enforceable, appeal dismissed.  The panel offered guidance to the District Courts when informing defendants of their appeal rights after a plea. 


United States Supreme Court

No new cases.

HERE is the Petition for a Writ of Certiorari filed by Patrick Kennedy, the only person in the U.S. under a sentence of death for child rape.  He seeks review of the opinion of the Louisiana Supreme Court upholding his death sentence.


Other Cases of Note

United States v. Becker, No. 06-1274 (2nd Cir., September 13, 2007):  1. Confrontation/Cross-Examination; 2. Retroactivity:  In this federal securities fraud case, a District Court's grant of habeas relief on cross-examination grounds pursuant to Crawford is AFFIRMED.  The panel held:  1) Crawford applied (and was not precluded by law of the case) because it was decided after his direct appeal was decided but before his time to petition the Supreme Court for certiorari had expired; and 2) the introduction of the plea allocutions of co-conspirators violated Crawford and was not harmless.

United States v. Brock, No. 05-6621 (6th Cir., September 6, 2007):  Conspiracy:  The panel posited this question:  "May the payor of a bribe to a state official conspire with that official to extort property from himself in violation of the Hobbs Act?"  Answer:  "We hold that he cannot, and we thus reverse the convictions[.]"

Garner v. Mitchell, No. 02-3552 (6th Cir., September 11, 2007):  1. Interrogation/Fifth Amendment; 2. Habeas Corpus; Capital Habeas Cases:  Capital habeas winner based upon a finding that Garner did not knowingly and intelligently waive his Miranda rights before police questioning.  This was a 2-1 decision with a strong dissent.

United States v. Hearn, No. 06-5854 (6th Cir., September 11, 2007):  Confrontation/Cross-Examination:  Convictions for Possession w/Intent to Distribute and Possession of a Firearm in Furtherance of Drug Trafficking are REVERSED because the Government used statements of confidential informants to prove intent to distribute in violation of Hearn's right to confront and cross-examine his accusers.

United States v. Ross, No. 07-1215 (7th Cir., September 11, 2007):  Federal Sentencing Guidelines; Reasonableness:  Post-Rita case remanded for re-sentencing when the District Court applied a presumption of reasonableness to a within-the-Guidelines sentence.

United States v. Yah, No. 06-3736 (8th Cir., September 11, 2007):  Prosecutorial Misconduct; Breach Plea Agreement:  Sentence vacated when the Government failed to recommend a sentence at the low end of the Guideline range as it agreed.

United States v. Comstock, No. 5:06-HC-2195-BR (E.D. N.C., September 7, 2007):  Civil Commitment:  District Court holds that the civil commitment provisions of the Adam Walsh Act are unconstitutional. 


Drug Stamp Case

A drug tax statute has been declared unconstitutional in Tennessee.  I have not found the opinion yet, but a news article about the case can be found HERE.

According to the article, a carpenter named Steven Waters challenged the statute when state revenue agents tried to seize his home after a drug sting.

A county judge ruled the statute unconstitutional on the grounds that it violated the Fifth Amendment right against self-incrimination.  However, the appellate court affirmed on different grounds, stating:  "Because it seeks to levy a tax on the privilege to engage in an activity that the Legislature has previously declared to be a crime, not a privilege, we must necessarily conclude that the drug tax is arbitrary, capricious, and unreasonable, and therefore, invalid under the constitution of this state."


Victories

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



MARNY HILL, Tulsa P.D., convinced the jury to acquit her client, who had been sitting in jail for a year, in a sex case.  Bravo, Marny! 

LINDA H. MCGUIRE, Edmond, had a very sharp eye in the Wakefield appeal, catching that the statute was not enacted when the crime was committed.  Very nice, Linda!

CAROLYN MERRITT, OKC P.D., saved the loathsome Mr. Gibson from LWOP by convincing the Court that legal errors in sentencing precluded such a sentence.  The result was an interesting case for us to read and a good result for the client.  Super job, Carolyn! 

NOTE:  There were also some victories in federal court last week, but I do not have much detail.  I will try to find out more about those this week.


Hearsay

BIG POT BUST:  An OHP traffic stop yielded more than a half-ton of marijuana along I-44 last week.  The drugs were found inside a motor home heading eastbound on Turner Turnpike near Stroud.  Sounds like a new case for somebody.

EDMOND COPS BUSTED:  Charges have been filed against a current Edmond police officer, Andrew Andrade, and a former officer, Christopher Caplinger, alleging that they conspired to bribe another officer to fail to appear at a DPS hearing in order to save the driver's license of an airline pilot accused of drunk driving.

DUI--SOFTWARE CODE ORDERED & REVEALED:  DUI attorney Lawrence Taylor posted on his DUI Blog that the New Jersey Supreme Court forced the manufacturer of the Draeger AlcoTest 7110 to reveal the source code.  Experts analyzing the code for New Jersey defense attorney Evan M. Levow concluded that the code is not unique or proprietary (refuting the claim of trade secret) and has several serious deficiencies.

CASE ON SEXUALLY DANGEROUS PERSON COMMITMENTS:  This link goes to a web site with a decent outline of cases on the topic of civil commitment of sexually dangerous persons. 

NY DEATH ROW DOWN TO ONE:  The New York Court of Appeals heard arguments last week in a case involving the state's lone death row inmate.  The Court invalidated the death penalty law in 2004, but prosecutor's have argued that the Court's decision should not apply to the case of John Taylor, who murdered five workers at a Wendy's in Queens.  

BAD COPS:  This goes to an interesting site, www.badcopnews.com, which apparently catalogues news stories involving police officers breaking the law or getting arrested.  It is organized by state and has a very active page for Oklahoma.



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

WEDNESDAY & THURSDAY, NOVEMBER 7 & 8, 2007:  OBA Annual Meeting 2007.  You can register for the various CLE sessions by using the REGISTRATION FORM.  Also, HERE is the schedule of events.  Looks like some good stuff.   




                


SUBSCRIPTIONS: To subscribe click HERE