R.J.M. v. State, 2006 OK CR 18 (Okl.Cr., May 15, 2006) (Published):  Youthful Offender case.  RJM was 17 years old when he was sentenced to OJA custody for seven years.  The State failed to conduct a hearing prior to RJM's 18th birthday to extend  or "bridge" OJA custody past the age of 18.  RJM argued in this appeal that the State could not do so since he had already turned 18.  RJM had an ally in OJA who recommended release since it had no jurisdiction to keep him without such a hearing being conducted.  All to no avail, however, since COCA ruled that even if such a hearing is not held, the District Court still retains jurisdiction and can hold a hearing at a later time.

Hogan v. State, 2006 OK CR 19 (Okl.Cr., May 15, 2006) (Published):  Capital case affirmed.  Kenneth Eugene Hogan's odyssey through the legal system began back in 1988.  He was tried, convicted, and sentenced to death, but the Tenth Circuit ultimately granted relief and ordered a new trial.  A new trial was had and Hogan was again convicted and sentenced to death for stabbing Lisa Stanley to death in her apartment.  Hogan confessed to the killing but there was a first-stage question whether the death was premeditated or the result of heat-of-passion.  The conviction and sentence was affirmed over several issues, including improper limitations on jury selection, sufficiency of the evidence, the introduction of crime-scene photographs and a "life" photo of the victim, spousal privilege, instruction issues, and various sentencing-phase issues.  The Court did address an issue of first impression raised by Hogan:  the death penalty violates the Establishment Clause of the First Amendment because it advances religion in the sense that the reasons for it are religious-based.  Interesting argument but rejected as the Court found the death penalty statutes punitive.

Jonathan Dwight Harjo v. State, No. F-2004-1261 (Okl.Cr., May 16, 2006) (unpublished):  85% Rule.  First Degree Rape conviction, AFCF, and sentence of 15 years is modified to 10 years because the trial court refused to instruct the jury that Harjo would have to serve the sentence at 85%.

Gilbert Postelle v. The District Court of Oklahoma County, No. MA-2006-0189 (Okl.Cr., April 18, 2006) (unpublished order):  Discovery prior to PH.  This is the unpublished Order dealing with discovery issues at preliminary hearings.  The Oklahoma County Public Defender's Office faxed it to me so you can disregard the fax footer on the pages.  In this Order, the Court reaffirmed that discovery orders by the District Court are not immediately appealable, and audio/video recordings are not encompassed as law enforcement reports under LaFortune for purposes of production prior to the preliminary hearing.  Thus, it seems that the written reports are the only statements we get prior to PH.

Chad Justin Berntson v. State, No. C-2005-211 (Okl.Cr., May 9, 2006) (unpublished):  Specific v. General.  Berntson plead guilty to one count of Possession of Child Porn and one count of Producing Child Porn.  He was sentenced to 10 years each count, concurrent.  Although a guilty plea case, the State conceded error that the Possession count is governed specifically by 21 O.S. 1024.2, rather than 21 O.S. 1021.2 as charged.  The importance to Berntson is of course that section 1024.2 carries a lower penalty.  The Court thus modified the Judgment to reflect a conviction under section 1024.2 and modified the sentence from 10 years to 5 years.  NOTE:  I have recently conducted some extensive research on this topic and it is a powerful defense tool.  Always assess the facts alleged by the State in relation to the statute under which the State has proceeded.  If there is another statute that specifically covers the alleged acts (which is beneficial to your client) the State must proceed under the more specific statute even if the State does not want to do so, i.e., prosecutorial discretion does not trump the legislative intent to punish specific acts under the more specific statute.

Kevin Paul Matthews v. State, No. RE-2005-0315 (Okl.Cr., May 16, 2006) (unpublished):  Revocation of Suspended Sentence.  Somewhat convoluted facts involving an original conviction and suspended sentence and then subsequent crimes, convictions, and extensions of the revocation period.  Matthews was sentenced to two years suspended.  The revocation hearing was held on the very last day and Matthews was ordered to perform community service and a future review date was set.  When Matthews violated laws yet again and was expelled from Drug Court, the trial court revoked the two full years.  COCA vacated this revocation because the trial court had essentially ordered additional suspended time past the term of the original judgment and sentence which it did not have jurisdiction to do (even though this benefited Matthews).


Tenth Circuit

United States v. Al-Haj, No. 05-3187 (10th Cir., May 19, 2006) (unpublished):  Traffic stop.  Motion to suppress denied in this case, but it offers a tight analysis of the controlling legal principles and application of the law to somewhat unusual facts.  A lot of the traffic stop cases begin with a minor traffic infraction.  This one began when a trio of vehicles were following each other closely and the officer had a hunch they were together.  One of the vehicles was stopped for having no visible license plate (but the temporary tag was affixed behind the "extremely dark" tinted rear window).  The officer received permission to search this vehicle and found a large quantity of pseudoephedrine.  Al-Haj was driving one of the other two vehicles in the convoy and when his name appeared in a book found in the first vehicle stopped, police stopped him and his passenger.  The Tenth Circuit found no error.

United States v. Ledesma, No. 05-3163 (10th Cir., May 19, 2006) (Published):  Traffic stop.  This is the published case arising out of the traffic stops described in the Al-Haj case above.  This case focused on the fact that the temporary tag in a van was displayed inside the van but behind heavily tinted glass.  The Circuit held that this violated Kansas law that requires all tags to be in a place to be clearly visible.  Thus, the initial traffic stop was valid, as was the subsequent consent to search.  The interesting issue in this case was the scope of consent.  The driver consented to a search of her "bag and stuff" but the troopers actually moved panels and foam inserts in the walls.  The panel indicated that this exceeded the scope of consent, but upheld the search because during the legal consent search the officers discovered evidence of secret compartments that provided further probable cause to search behind the panels.

United States v. Mancillas, No. 05-3328 (10th Cir., May 18, 2006) (unpublished):  Federal sentencing.  Short opinion setting forth the analysis for federal sentencing and the "reasonableness" inquiry now mandated on appeal.  Noteworthy because the panel re-affirmed the legal proposition that a District Court must clearly state its reasons for sentencing in light of factors in section 3553(a) when a defendant provides facts and argument implicating such factors.  Unfortunately for Mancillas, he did not articulate sufficiently any facts to make the District Court's job more difficult and force it to articulate its reasons for the sentence.

United States v. Sanders, No. 05-8085 (10th Cir., May 16, 2006) (Published):  Federal Sentencing.  Sanders entered a plea to a count of possession of firearms by a felon.  The calculated Guidelines range was 18-24 months.  Sanders argued that under USSG section 2K2.1(b)(2) (the "sporting purposes" exception) his offense level should be 6 rather than 13.  The PSR argued that this exception did not apply because Sanders had made threats to inflict deadly harm upon others which indicated that he did not possess the firearms "solely" for sporting purposes.  An evidentiary hearing was held in which cops testified that Sanders made threats and Sanders denied any threats and testified that he used the rifles only for hunting.  I think you can see where this case is headed.  The District Court held that the "sporting purpose" exception did not apply and the panel Affirmed.

United States v. Harris, No. 04-1536 (10th Cir., May 15, 2006) (Published):  Federal sentencing.  Felon-in-possession case presenting the issue of whether a jury or a judge must decide whether the prior convictions are separate and distinct.  HELD:  the judge can determine this consistent with Apprendi.  This holding follows prior circuit precedent in the Michel case as well as the other circuits.

United States v. Alexander, No. 05-6088 (10th Cir., May 15, 2006) (Published): Miranda/Constructive Amendment.  Assault case where two inmates beat up another inmate.  Alexander invoked his right to remain silent.  His co-defendant did not.  Prison officials placed the co-defendant in an adjoining cell to that of Alexander and the co-defendant talked Alexander into contacting the FBI and making a statement.  The panel held that this was not state action and that Alexander had voluntarily waived his right to remain silent.  Alexander faired no better on his constructive amendment and sufficiency of the evidence claims.  Affirmed.      


United States Supreme Court

The Court issued some new opinions last week but none relevant to criminal law.

Other Cases of Note

This is the first time in a long time that I could not find any defense oriented decisions from around the country in the federal circuits.  Pretty quiet last week.


Book Review by James L. Hankins

Ron Jones (Enid) and I went to Kingfisher last week to conduct a couple of preliminary hearings.  Ron recommended a book titled "Under and Alone" by William Queen.  I bought it that day and thought it was good enough to share.  Queen was a BATF agent who went undercover to infiltrate an outlaw motorcycle gang called The Mongols.  The book is his first-person account of that experience and it is surprisingly good.  There does not appear to be any ghost writer and it shows (too many instances of ending sentences in prepositions) but that fact also makes the book a little more genuine.

Queen informs us that Gov. Jesse "The Body" Ventura was a member of The Mongols back in 1973 after he returned from Vietnam.  Queen also infiltrated the National Alliance, the white-supremacist organization founded and lead by Dr. William Pierce, author of The Turner Diaries which the government claimed later to be the blueprint for the Oklahoma City Bombing.  Queen has a copy of The Turner Diaries inscribed by Pierce. 

As you might expect, The Mongols are some very bad dudes, even by outlaw motorcycle club standards.  Queen's undercover assignment lasted over two years and I think he captures some of the emotional tumult that comes with befriending people, even bonding to a certain extent, and then having to betray them.  I know that I could never do that kind of work and I have always been a little suspicious of people who could.  Queen gives some insights into this dynamic that illustrate just how difficult it is.  One example occurred when the woman who raised him (not his mother, but he considered her his mother) passed away and he went back home to mourn and attend the funeral.  When he returned, not one of his co-workers at ATF expressed any sympathy; yet, nearly all of his associates in The Mongols hugged him, said they loved him, and said how sorry they were that his mom died.  These were people he would eventually send to prison.  That is some powerful stuff.

Queen also does a good job of explaining the mechanics of how motorcycle gangs work and how undercover operations are conducted.  The gangs are very tribal and wear insignia called "patches" to signify "full-patch" membership.  Once a person has achieved his patch, he is accepted by members everywhere (even in other states) and is entitled to the full protection of the gang which can be ferocious.  A person who wants to join is called a "prospect" and a person who just likes to hang around bikers is called a "hang-around."  Queen started as a hang-around, went through the trials of being a prospect, and ended up as a full-patch Mongol by the time the investigation concluded.

Queen falters in some areas, delivering some ill-fitting BATF braggadocio as well as federal-law-enforcement-versus-the-bad-guys schmaltz, but for the most part his book seems genuine enough to enjoy and the schmaltz is met later with what seems to be genuine conflict between his role as federal agent and friend to persons in the gang who are extremely loyal and trusting.

One major criticism of mine is the fact that during this two-and-half year undercover operation, Queen apparently never had to use drugs or resort to serious violence against another person.  He comes close many times and explains how he was able to avoid it, but I do not buy his explanations for the most part because it does not seem plausible that he would be able to avoid these things for so long being around persons described in the book as some of the most aggressive, volatile, and paranoid criminals likely to be encountered anywhere.  It seems to me that he simply left those parts out for obvious reasons.  Queen does explain the procedure and standard used by federal law enforcement when they must use illegal drugs undercover, which is something that I had not read before.  But the ease with which he apparently escapes some of these touchy situations seems to contradict his characterization of the Mongols as bad-to-the-bone bikers (and on that point I do not think he is inaccurate).

In the end, I think the reader accepts this artistic license because the trade-off is more than worth it.  The book is paperback, only about 250 pages, and is a quick, entertaining week-end read.  Check it out.


Victories

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



MARK HOOVER, OIDS, provided us with a good case to put in our arsenal under the "general v. specific" criminal statute category in the Berntson case above.  We appreciate it, Mark!


STUART SOUTHERLAND, Tulsa County PD, shaved some time of Mr. Harjo's sentence on the 85% jury instruction issue.  Five years ain't too shabby when the offender has to actually serve most of it.  Very nice, Stuart!


Hearsay

STAND YOUR GROUND LAW:  Click on the link for the new law.  This is the version signed by the Governor and well worth a look.

FORMER OHP TROOPER who was charged with DUI while operating boat is breathing a little easier because the state dismissed the charge.  This article is kind of funny because it looks like the judge suppressed the breath test which the DA used as the reason to dismiss the case; yet the judge and the DA seem to blame each other for the dismissal.  Here is another good bit of press for DUI guru Stephen Fabian:  "Dancer's attorney in the Cherokee County cases was Stephen G. Fabian Jr. of Oklahoma City, a former legal counsel to the Oklahoma Highway Patrol who has a reputation as the state's leading defender of people charged with driving while intoxicated."

CHESS NEWS:  The MTel Masters tournament is going on in Sofia, Bulgaria.  I am what the chess geeks call a "patzer" which means I am a horrible/low-rated player, but I do like to follow it at the highest levels of play.  I play on-line quite a bit to relax and I recommend that you get acquainted with this ancient and challenging game.  One of the games from last week is particularly beautiful, probably one of the best attacking games of the year.  Click HERE to replay the game (you must have Java).  The players are FIDE World Champion Veselin Topalov, probably the most exciting active player (since the retirement of Kasparov) playing a renewed and determined Gata Kamsky, who took several years off at the peak of his game to complete (gasp!) law school of all things.  Kamsky is slowly getting back into world-class form, and in fact has done quite well in this tournament (beating Anand with the black pieces which is a herculean feat).  But in this game, Gata runs into a buzz saw in the form of a well-prepared and aggressive World Champion who sacrifices the exchange in the middle game and ends it in a tactical flourish.  This is truly one of the best games of the year so far.  If you think you understand this game, try to fathom moves 27. Rxe6 and 41. Bf5, and the final 42. Rxe7+!  Later this year Topalov and Kramnik will play to unify the world chess title, which has been somewhat in disarray over the last several years.  UPDATE:  Topalov won the tournament, just one-half point ahead of Kamsky.  He did it by winning his last four games in a row.  That is virtually unheard of at this level of play.   


UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER):

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, presented 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.




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