Oklahoma
I was in Denver arguing cases all last week and did not get a chance to review the opinions from the Oklahoma Court of Criminal Appeals. I should get caught up this week. No published opinions were issued last week, but I know of a few unpublished cases that are interesting and I will include those next week.
Tenth Circuit
United States v. Andrews, No. 04-3010 (10th Cir., May 8, 2006) (Published): Federal Sentencing-Plain Error Found. Interesting case that was remanded to the District Court for re-sentencing on a bank robbery conviction, the District Court sentenced higher, and now, in this opinion, the case is once again reversed and remanded for re-sentencing, this time on the basis of "non-constitutional" Booker error where the District Court treated the Guidelines range as mandatory. Andrews was initially convicted of murder and served 22 years in prison before being paroled and committing the bank robbery. However, at sentencing Andrews apparently had huge support in the community and the District Court made on-the-record statements that it would depart from the low end of the range if it could do so. Thus, this is one of the relatively rare cases where the panel found plain error (since the Booker issue was not raised below) and remanded for re-sentencing.
United States v. Bedford, No. 05-1108 (10th Cir., May 8, 2006) (Published): Federal Sentencing. Odd case where Bedford was convicted on a guilty plea of possessing crack. His sentence was enhanced for obstructing the administration of justice because he ate the crack he was convicted of possessing in an effort to conceal the crime. Affirmed. The lesson from the case is: do not try to eat the evidence (or at least if you do try it, make sure you do not vomit it back up in front of the arresting officer).
United States v. Michel, No. 04-2214 (10th Cir., May 10, 2006) (Published): Federal Sentencing; Sufficiency of the Evidence; Rule of Lenity. This is the case of the co-defendant of Laughrin who's case was reversed recently in a good opinion on a suppression issue. Michel and Laughrin were riding in a car driven by Laughrin and the police stopped the car solely on the basis that Laughrin's DL had been suspended at some time in the past. During the traffic stop, a sawed-off shotgun was found in the car. Michel was the passenger and went to jury trial on charges of felon in possession of a firearm and was found guilty and sentenced as an armed career criminal. He did not file a motion to suppress, presumably on the basis of lack of standing. His claim that the Government presented insufficient evidence to convict is denied because he was in the car and the evidence supported the jury's finding of constructive possession; however, on the specific convictions for possessing an unregistered sawed-off firearm and for possessing the same gun that did not have a serial number, the panel reversed, holding that the extra elements of these crimes had not been sufficiently proven by the Government. As to the enhancement at sentencing, the panel held that whether the prior convictions are separate and distinct is a fact that can be found by the trial court and need not be plead in the indictment and found by a jury. Finally, Michel made an enterprising argument that, since it is sometimes difficult to determine whether offenses are separate and distinct for enhancement purposes, the enhancement is unconstitutionally vague and the rule of lenity counsels that he should receive the benefit of the vagaries of the law. Nice try, but no dice.
United States Supreme Court
No new opinions last week.
Other Cases of Note
United States v. Zapete-Garcia, No. 05-1352 (1st Cir., May 8, 2006): Federal Sentencing--Reasonableness. Nice, tight opinion outlining the federal sentencing process post-Booker and remanding for re-sentencing in this case that involved a conviction for counterfeit immigration documents that carried a Guidelines range of 0-6 months but an imposed sentence of 48 months(!) Remand because there was no sufficient explanation of such a huge disparity.
The "Stand Your Ground" Law
Last Friday, May 12, 2006, Gov. Henry signed into law the "Stand Your Ground" legislation which greatly boosts the law of self-defense in favor of the person being attacked. HERE is an article about the new law that lists the highlights. Also HERE.
HERE is a copy of the enrolled HB 2615 which contains the new legislation (for some reason the version signed by the Governor isn't showing up at Secretary of State's website yet). With respect to the use of force by a person inside his/her home, the legislature implemented strong presumptions that the person had a reasonable fear of injury or death when using defensive force against a person entering the home.
The new law also encompasses the use of force in carjackings and other situations. The legislature has been busy lately but this is really a change with which you should be familiar.
Trip Report (Back to Denver)
The Tenth Circuit was hopping last week with lawyers from all over sweating bullets under questioning from the panels. Oral arguments were set everyday last week among multiple panels. I argued two cases, a capital case on Tuesday and a non-cap on Friday.
I think both went well. I was able to reserve some rebuttal time in the capital case which I used and needed; but the questioning from the bench in the non-capital case forced me to use all my time with no rebuttal. As most of you should know by now, my best advice on these arguments is to always save some rebuttal time if you can because your adversary will always make an argument or statement of fact that should be rebutted. My only consolation was that the questioning from the bench went on nearly six minutes over my allotted time so I think the panel was interested in the issue (and the panel was very good, consisting of Seymour, Henry, and Ebel).
Memorable moment: during orientation prior to the judges coming out, usually fifteen minutes prior to argument time, one of the clerks comes into the courtroom and discusses how the clock works, how to reserve time, and answers any questions. On Tuesday, Doug Cressler came out, looked around the room, grinned, and said, "Everyone ready to bleed in the saddle today?" I thought that was cute.
Other items: I sat in on an en banc argument involving civil liability of prison guards. The issue was not that scintillating, but all the judges in one room listening to a case is neat to watch. Also, the case where Justice Opala sued his colleagues on the Oklahoma Supreme Court was argued while I was there but I did not get to see it.
Others making an appearance last week included Barry Derryberry, Susan Otto, and Kristi Christopher (Fed. Pub. Def.). Good luck to everyone.
Victories
"Send lawyers, guns and money, the shit has hit the fan."
--Warren Zevon, "Lawyers, Guns and Money" (song) (1978)
There may have been some last week but I was out-of-pocket for the most part. I will try to get caught up on those this week. As always, if you know of any good acts of advocacy, let me know by e-mail or phone call.--Jim.
Hearsay
PHONE RECORDS, everyone's phone records, have apparently been added to what would be the world's largest database at the NSA. The database was created with the cooperation of the telecommunications companies with some apparently heavy-handed tactics by the feds who wanted the data to track phone call patterns, but did not have a warrant or any other sort of official or court-sanctioned authorization. All the phone companies fell in line except Qwest, who declined to participate because of privacy concerns.
NEW JUDGES in Garfield and Grant counties. Gov. Henry has appointed Dennis Hladik as District Judge for Garfield and Grant counties; and Tom Newby as Associate District Judge for Garfield County (Enid).
BRETT BURNS, First Assistant District Attorney in Chickasha, is running for the top job for the Sixth District which includes Caddo, Grady, Stephens, and Jefferson counties.
UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER):
MAY 16, 2006: PROF. ERWIN CHEMERINSKY: The Federal Bar Association is very pleased to announce an annual lecture series in honor of Judge William J. Holloway, Jr. The inaugural lecture will take place at the new Oklahoma History Center, 2401 N. Laird Avenue, Oklahoma City, on May 16, 2006, from 5:00 p.m. to approximately 8:00 p.m. The evening will include complimentary wine/beer/soda and dinner catered by Cheever's. The galleries at the museum will also be open to all attendees. The inaugural lecture will be delivered by Professor Erwin Chemerinsky. F.B.A. members may reserve a place for themselves and a guest for $45.00 per person. For nonmembers and their guests, the price is $55.00 per person. We ask all attendees to reserve a space (or spaces) and to mail their payment no later than May 9, 2006. Reservations can be made by calling or e-mailing Angela Jackson. Her telephone number is 235-9621, and her e-mail address is in the "cc" above. To pay, please make your check payable to the "Federal Bar Association" and mail it to Lynn Howell at Day Edwards, 210 West Park Avenue, Suite 2900, Oklahoma City, Oklahoma 73102. Because we will need to guarantee all of the reserved places, we will be unable to provide refunds for cancellations received after May 9, 2006.
MAY 18, 2006: PERCEPTIONS IN THE COURTROOM: A VIEW FROM THE BENCH AND THE BAR: May 18, 2006, at the Bar Center in OKC. This is not geared specifically to criminal practice, but the speakers include John W. Coyle, III, on the topic "Dealing with Difficult Judges: Are There Any?"; Clark Brewster on "How Lawyers Talk to Juries"; Bob Ravitz on "How Judges Talk to Juries and What a Judge Can Say Post-Trial"; and also Judge Noma Gurich (OKC) and federal Magistrate Valerie Couch (W.D. Okla.). Register online at www.okbar.org or call the OBA/CLE Office at 800.522.8065 or 405.416.7006. This one is for 6 hours (including 6 hours of ethics).
MAY 18, 2006: Oklahoma City University School of Law will honor Distinguished Women in Law at the "Legal Affairs" dinner and gala. The event will honor two former OCU School of Law professors, Marjorie Downing, who taught from 1972 to 1997, and Nancy Kenderdine, who taught from 1977 to 2005. Proceeds from the event go toward scholarships in their names. Presenters are Lawrence K. Hellman, Richard E. Coulson, Von R. Creel, Brooke S. Murphy, C. Wesley Lane II, and Judges Carol M. Hansen and Marian P. Opala. Marianne Vannatta is mistress of ceremonies. Mack K. and Vicky Martin are event chairs. For more information, e-mail lawevents@okcu.edu or phone (405) 208-5197.
MAY 23, 2006: TRIALS OF THE CENTURY: Tulsa on May 23, 2006 at the Crowne Plaza Hotel, 100 E. 2nd St. and in OKC on May 24, 2006, at the Bar Center. 6.5 hours (1 hour of ethics included). Tuition is $225 early or $250 at the door. The program is presented by Todd Winegar and highlights aspects of the O.J. trial, the Scopes trial, Leopold and Loeb, the Lindbergh Kidnapping trial, Nuremberg, the People v. Clarence Darrow, and the Clinton impeachment trial.
MAY 23, 2006: MOCK ORAL ARGUMENT: I received this e-mail describing an interesting event: On May 23, 2006, from 3:30 to 5:00 p.m., the Federal Bar Association will sponsor a mock oral argument on whether Roe v. Wade and Planned Parenthood v. Casey should be overruled. The judicial panel will consist of three Tenth Circuit Judges: Chief Judge Deanell Tacha, Judge Stephanie Seymour, and Judge Monroe McKay. The attorneys presenting the arguments will be Burck Bailey and Steve Balman. The oral argument will take place at the United States Courthouse in Oklahoma City. The program will qualify for one hour of C.L.E. credit, and a reception will immediately follow the program in the jury assembly room of the federal courthouse. At the reception, the Federal Bar Association will have complimentary wine/beer/soda and hors d'oeuvre. For F.B.A. members, the cost of the program/reception is $20.00. For nonmembers, the cost will be $30.00. In the event that you are not currently a member of the Federal Bar Association and would like to join, I am enclosing a form for membership. The mailing instructions are on the form. R.S.V.P.s will be accepted until May 16, 2006. To R.S.V.P., please call or e-mail Angela Jackson. Her telephone number is 235-9621, and her e-mail address is above in the "cc". Attendees may pay at the door, but prepayment is always appreciated. To prepay, please make your check payable to the "Federal Bar Association" and mail to to Lynn Howell at Day Edwards, 210 West Park Avenue, Suite 2900, Oklahoma City, Oklahoma 73102.
JUNE 29, 2006 & June 30, 2006: Patrick A. Williams Criminal Defense Institute at Southern Hills Marriott, Tulsa, Oklahoma. Another very good program has been put together for what has become the premier CLE for criminal defense. HERE is a schedule, but I do not have any information on how to register.
JULY 7, 2006: The Federal Bar Association presents: DNA Evidence--From the Crime Scene to the Courtroom--Identifying Issues in DNA Cases, presened by guest speaker Jennifer Friedman on July 7, 2006, from 10:00 a.m. to 12:00 p.m. in courtroom 302 of the United States Courthouse. Ms. Friedman has been a member of the Los Angeles County Public Defender's Office for nineteen years and has tried more than 100 jury trials. The program is for two hours of CLE credit. Contact Angela Jackson for details at 405.235.9621 or at Angela.Jackson@mcafeetaft.com. Click HERE for the application form for the FBA.
JULY 27, 2006: OCDLA DEATH PENALTY SEMINAR: This will take place Thursday, July 27--Friday, July 28, 2006, at Oklahoma City University. The times and registration info will be available soon. Speakers include: Rob Ravitz, Rob Nigh, Brian Hermansen, Dick Burr, Vicki Werneke, Cynthia Hartung, Sid Conway, Lee Ann Peters, Wendi Hobbs, Randy Bauman, Creekmore Wallace, Jack Gordon, Mark Henricksen, Lanita Henricksen, Brenda McCray, Sandra Collett, Kim Marks, Jim Fowler, Scott Braden, and Lisa McCalmont.
