No new cases. 


Tenth Circuit

United States v. Huskey, No. 06-3183 (10th Cir., September 18, 2007) (Published):  Federal Sentencing Guidelines:  Huskey entered a blind plea to two drug counts:  Conspiracy to Distribute 50 Grams or More of Methamphetamine and Possession w/Intent to Distribute 50 Grams or More of Methamphetamine.  He admitted to having dealt approximately 12 pounds of Meth over a period of nine months prior to his arrest.  Although the PSR found an advisory Guidelines range of 151-188 months; Huskey's prior drug offenses triggered the mandatory life sentence provision of 21 U.S.C. 841(b)(1)(A).  Huskey was sentenced to life without the possibility of release.  HELD:  AFFIRMED, finding no plain error in counting a Kansas conviction for Attempted Possession of Cocaine as a prior drug conviction, no conflict between the mandatory life term and the 18 U.S.C. 3553 factors, and that his sentence did not constitute cruel and unusual punishment under the Eighth Amendment.

United States v. Holder, No. 06-7071 (10th Cir., September 19, 2007) (Unpublished):  Ineffective Assistance of Counsel:  Holder was a landowner in Oklahoma who had a heated dispute with two men out by his property line.  One of the men, Swift, was a federal employee of the Natural Resources Conservation Service.  The other man, Pickens, argued with Holder.  Both Pickens and Holder were armed and Holder shot Pickens, killing him.  Holder admitted to shooting and killing Pickens, but argued self-defense.  He was convicted of Second Degree Murder and Obstructing a Federal Officer and sentenced to 168 months.  In a 2255 action, Holder alleged IAC because trial counsel did not call the man who was with Holder at the time of the shooting.  Holder asserted that the testimony of this person would have supported his defense.  The trial court initially denied this claim without an evidentiary hearing.  The Circuit reversed and remanded with instructions to hold a hearing.  A hearing was held and this time the district court granted relief.  The Government appealed.  HELD:  AFFIRMED.  In this 2-1 opinion, the panel held that Holder established IAC and prejudice.  Judge Hartz dissented.


United States Supreme Court

No new cases.


Other Cases of Note

Rubio v. State, No. AP-74,852 (Tex. Cr., September 11, 2007):  Confrontation/Cross-Examination:  Capital murder case reversed on confrontation grounds under Crawford v. Washington.  NOTE:  5-4 opinion.

Ex Parte Tommy J. Gillentine, No. 1051370 (Ala., September 6, 2007):  Double Jeopardy/21 O.S. 11; Mandamus:  Gillentine was tried in a capital murder case but the jury convicted him of the lesser offense of Reckless Manslaughter.  The State attempted to prosecute him again for capital murder.  HELD:  Writ of mandamus granted because prosecution on capital murder is barred by double jeopardy.

United States v. Baker, No. 05-6874 (6th Cir., September 17, 2007):  Federal Sentencing Guidelines; Reasonableness.  Baker plead guilty to Possessing an Unregistered Firearm Having a Barrel Length of Less Than 18-Inches.  The Guidelines range was calculated at 27-33 months.  The district court sentenced him to five years probation with house arrest for the first year (the maximum was 10 years).  The Government appealed on the basis that the sentence was unreasonable.  HELD:  The variance is AFFIRMED. 

United States v. Vasquez-Ruiz, No. 06-2180 (7th Cir., September 17, 2007):  Jurors:  This is a quirky case in which Vasquez-Ruiz was on trial in Chicago for insurance fraud.  Nine days into trial, a juror complained to the trial judge that the word "GUILTY" had been written in the notebook she had been using during the trial.  She stated that the anonymous message intimidated her.  The court interviewed the juror to make sure she could be impartial and issued a cautionary instruction.  HELD:  The incident with the juror gave rise to a presumption of prejudice which was not rebutted.  REVERSED.

Harbison v. Little, No. 3:06-01206 (M.D. Tenn., September 19, 2007):  Death Penalty:  Lengthy opinion from a District Court granting injunctive relief to a death row inmate and invalidating the lethal injection protocol in Tennessee because it presents a substantial risk of unnecessary pain.


Victories

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



STEPHEN JONES, APRIL MCCURDY DAVIS, AND BROOKE TEBOW, Enid, secured habeas relief in the Circuit for Mr. Holder in a federal murder case (the opinion is unpublished).  This is a terrific win because the district court denied relief initially without a hearing.  Stephen appealed and the Circuit forced a hearing on the claim which ultimately carried the day.  Fabulous work Stephen, April, and Brooke!

RANDY LONG, Enid, won a trial in Woods County in a case where his client was charged with A & B w/Dangerous Weapon.  A group of teens fought with baseball bats and one of them apparently ended up with brain damage.  Randy's client asserted self-defense and walked out of the courtroom.  Solid work, Randy!

  


Hearsay

ASSISTANT U.S. ATTORNEY, John David R. Atchison, 53, Northern District of Florida, was arrested in Detroit last week on an allegation that he flew there to have sex with a five-year-old girl.  It is difficult to believe that a person in such a position would get ensnared in yet another internet chat-room sting, but that appears to be what happened.  The details of the chat are particularly disturbing.

THE TRIALS OF LAW SCHOOL:  This is an interesting article about an Oklahoma attorney named Heath Morgan who also is an independent film-maker, and his efforts to make a documentary about law school titled "The Trials of Law School."  From the article:  "The film follows 8 1Ls through their first semester at Oklahoma Law School."  The page also has a YouTube link to the trailer.  Looks interesting.

O.J. BACK IN TROUBLE:  Here is a link to the criminal complaint filed by the State of Nevada against O.J.

FEDERAL EXECUTIONS:  This is an interesting link to a list of the persons executed by the federal government.

LETHAL INJECTION GOINGS-ON:  The U.C. Berkeley Law School maintains an excellent web site that collects materials on the lethal injection issue.  It can be accessed by the link above or at www.lethalinjection.org.  Also, the law school sponsors a Death Penalty Clinic and recently received funds to hire an attorney.  The attorney retained is Lisa McCalmont.  Lisa is formerly of the Federal Public Defender's Office in Oklahoma City.  She assisted me in litigating the lethal injection claim of John Boltz before Judge Friot.  When I prepared for that hearing I consulted with Lisa at the P.D.'s Office and quickly found out just how little I knew about the subject.  I believe Lisa to be one of the most knowledgeable persons in the country on the subject of lethal injection litigation.  She can be reached at lsmccal@swbell.net.



                    ------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.   



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