Alfred Brian Mitchell v. State, 2006 OK CR 20 (Okl.Cr., May 30, 2006):  Capital Sentencing Winner!!!  Mitchell has been treading water in the appellate courts since 1992 when he was convicted of murdering Elaine Scott, who was alone tending the Pilot Recreation Center in Oklahoma City.  The federal courts vacated his death sentence and the case returned to Oklahoma County for re-sentencing only.  Judge Susan Caswell presided at trial and the state was represented by Assistant District Attorney Richard Wintory.  The opinion criticized the trial court at nearly every turn and ends with a flourish, containing some of the most scathing language directed to a trial judge that I have ever seen in a published opinion.  This is a very lengthy opinion that begins by invalidating the "avoid arrest" aggravator for a variety of reasons and engages in an excellent discussion of the law governing this aggravator.  Next, Judge Caswell's voir dire of prospective jurors is exposed as unfair and one-sided.  The Court noted her inconsistent treatment of potential jurors depending upon whether they would not consider the death penalty or whether they would automatically impose the death penalty.  The Court noted particularly that she refused to allow defense counsel the opportunity to voir dire potential jurors who hesitated about considering the death penalty; choosing instead to question them herself and then excuse them for cause without even a motion from the State.  Finally, the Court addressed the histrionics of Richard Wintory in delivering the State's closing argument, which included screaming at the jury and addressing the accused directly.  The Court stated the following (sans footnotes) which is so good I had to include it despite the length: 

¶100  Even the plain paper pages by which this Court obtains its limited view of this scene cannot fully silence or obscure the emotional crescendo with which this proceeding concluded.  Neither the prosecutor nor the trial court questioned defense counsel's assertions that the prosecutor was standing immediately in front of the defendant, yelling and pointing at him, as he addressed him directly.  And this Court has little doubt that these theatrics continued, perhaps increasing in intensity, each time the trial court refused to limit or prevent them.  Despite the bench conferences, the jury could not have missed the fact that defense counsel was objecting to the confrontational and disrespectful way the prosecutor was addressing the defendant, or the fact that the trial court was adamantly allowing, if not condoning, this behavior.

¶101  We conclude that the manner in which the prosecutor presented his closing argument--yelling and pointing at the defendant as he addressed him directly--was highly improper and potentially prejudicial. There can be little doubt that the content and presentation of this closing argument was carefully calculated to inflame the passions and prejudices of Mitchell's jury.  The prosecutor's conduct allowed him--perhaps more forcefully than words alone could do--to express the utter contempt and disdain that he personally felt toward the defendant and his crime.  This Court concludes that prosecutors should not be allowed to do through their actions and demeanor what we have expressly forbidden them to do with their words, namely, assert their personal opinion about the defendant or the crime.  While we continue to recognize the "liberal freedom of speech" that is appropriate to closing argument, we also recognize that this freedom, like most, remains constrained by the rights of others, including the right to due process and to a reliable capital sentencing.

¶102  Perhaps even more disturbing than the behavior of the prosecutor is the trial court's repeated refusal to in any way constrain or condemn this behavior.  The trial court's stance was, essentially, that the court would allow the State to do as it willed unless defense counsel could produce a case, on the spot, specifically forbidding the challenged action.  This is not the proper role for a trial court judge.  Trial judges are responsible for protecting and upholding the honor, dignity, and integrity of the proceedings held before them.  They are not powerless to control the bad behavior of the parties and attorneys who come before them; nor must they await a specific ruling from an appellate court in order to find a particular behavior improper.  The total failure to constrain this prosecutor, combined with the obvious annoyance displayed by the court that defense counsel was "interrupting the flow" of the State's argument, suggests that the trial judge may have forgotten, at least momentarily, where she was sitting and what she was wearing.

The emphasis above is mine.  I do not recall such strong condemnation from the Court of Criminal Appeals.  The Court not only granted relief by vacating the death penalty and remanding for a new sentencing hearing, it directed specifically that the new hearing must be conducted before a different trial judge(!)  Amazing opinion and result.

NOTE:  I have second-chaired two jury trials with J.W. Coyle in front of Judge Caswell and in my opinion there is an air of oppression of defense counsel from the bench that I have not encountered anywhere else.  COCA exposed her favorite tactic, which is this:  if the defense requests something, she demands a case directly on point immediately or else the defense does not get it; if the State requests somethings, she inquires of the defense if it has a case directly on point holding that the State can not have what it seeks.  The State never has to justify anything it wants, while the defense must justify and show entitlement to everything it wants.  It is disconcerting to be placed on the hot seat all the time by the trial court, not to mention that facial gestures she makes during trial in front of the jury denigrating the defense.  These things are difficult to quantify in the record but they are powerful in their effect.  Last but not least, it should never be forgotten that Judge Chapel, a sitting judge on the Oklahoma Court of Criminal Appeals, has stated in a written opinion that she should recuse herself from all criminal cases because of the appearance of bias.


Tenth Circuit

United States v. Isaac-Sigala, No. 05-2089 (10th Cir., May 30, 2006) (Published):  Drug Case--Sufficiency of the Evidence.  Jury trial convictions for Conspiracy to Possess with Intent to Distribute less than 50 kgs of Marijuana and Possession with Intent to Distribute Less than 50 kgs of Marijuana.  Isaac-Sigala challenged his convictions on sufficiency of the evidence since he was in charge of driving the "scout car" for the smugglers and therefore, he argued, there was only circumstantial evidence that he knew the specific contents of the van that contained the drugs.  Affirmed.  The "scout vehicle" travels in tandem with the "load vehicle" and may travel either ahead or behind on the highway.  The panel found sufficient evidence by which the jury could have found that he had sufficient knowledge of the drug conspiracy to sustain the convictions.

United States v. Prows, No. 05-4164 (10th Cir., June 1, 2006) (Published):  Federal Sentencing.  Odd facts where Prows was convicted of mail fraud by a jury and sentenced to 41 months but the District Court stayed execution of the sentence and placed Prows on five years probation.  HELD:  the District Court has no authority to suspend the execution of sentence under the 1984 Sentencing Reform Act.  Remanded for re-sentencing.  Also, Prows filed a pro se 2255 application alleging IAC which was dismissed by the District Court.  The panel reversed that dismissal, noting that there is no jurisdictional bar to pursuing collateral relief under 2255 while a direct appeal is pending.

United States v. Rockey, No. 05-7006 (10th Cir., June 2, 2006) (Published):  Federal Sentencing.  Jury trial resulted in convictions for Felon in Possession of a Firearm, Possessing a Firearm in Furtherance of a Drug Trafficking Crime, and Possessing a Chemical known to be used in the manufacturing of CDS.  The unfortunate Mr. Rockey got socked with 322 months imprisonment and got no relief in this case.  The panel analyzed the sufficiency of the evidence in support of the conviction for possession of the firearm in furtherance of a trafficking crime and found it sufficient.  The other interesting issue in this case is the application of the Armed Career Criminal enhancement.  Rockey fled from the police and during the chase he pointed a gun (while driving his truck) and fired at the pursuing officer.  There was a special interrogatory at trial and the jury found that the Government failed to prove this beyond a reasonable doubt.  The District Court found this conduct to have occurred under the preponderance of the evidence standard and applied the enhancement.  The panel held that the District Court could do this (so long as it did not apply the Guidelines in a mandatory fashion).

United States v. Rodriguez-Felix, No. 05-2142 (10th Cir., June 2, 2006) (Published):  Eyewitness Identification--Daubert.  Interesting facts where Rodriguez-Felix was convicted of Distribution of Cocaine Base at jury trial largely on the basis of eyewitness identification.  His defense was that the witnesses were mistaken and mis-identified him as the person who participated in the buy.  He sought to present expert testimony on the unreliability of eyewitness testimony and the District Court refused to allow it.  He argued on appeal that he was deprived of his right to present a defense.  The panel here found no error in the District Court's refusal to allow such testimony under Daubert.  No relief in this case, but the panel does articulate the legal analysis of a Daubert challenge and the legal principles that apply.


United States Supreme Court

Garcetti v. Ceballos, No. 04-473 (U.S., May 30, 2006):  This is not a criminal case per se, but it is an interesting fact pattern.  An Assistant District Attorney for Los Angeles County caught a sheriff's deputy lying in an affidavit for search warrant.  He had a streak of honesty and integrity and proceeded to write a memorandum about it for his superiors and eventually was called as a defense witness in the criminal case.  Naturally, he was attacked by his superiors and was the subject of retaliatory measures that impacted his job.  In this case, he alleged that his comments concerning the bogus affidavit were protected by the First Amendment and he was therefore not subject to discipline.  HELD:  the First Amendment does not shield him from retaliation because his comments were made within the scope of his employment as a government employee.  The opinion split 5-4 and would appear to have very far-reaching policy implications, as well as chilling effects, on such actions.  Classic example of the maxim "no good deed goes unpunished."


Other Cases of Note

United States v. Rios, No. 05-50000 (9th Cir., June 2, 2006):  Possession of Firearm.  Rios was found guilty by a jury of conspiracy with several family members to purchase drugs from a pharmacy with fake prescriptions and sell them for a profit.  He was also charged with possession of a firearm (a sawed-off shotgun) in furtherance of the conspiracy.  The shotgun was found in Rios's hotel suite during the execution of a search warrant.  Other than this fact, the only evidence introduced by the Government consisted of "expert" testimony describing the uses of sawed-off shotguns and the characteristics of drug traffickers and how they use such weapons.  The panel held this was insufficient as a matter of law to prove that the possession was "in furtherance" of the conspiracy.  Excellent discussion of the law relating to this topic, including a section on congressional intent and an analysis of the legislative history of the statute. 


The Execution of John Albert Boltz

John Albert Boltz was put to death last Thursday, June 1, 2006, at OSP.  John was a client of mine for seven years (I was appointed to represent him in federal habeas) and he became the oldest inmate to be executed in Oklahoma history (he was one month shy of his 75th birthday).

The lethal injection procedure has come under fire recently as evidence mounts concerning the inadequacy of the protocol used in Oklahoma.  Oklahoma uses three drugs and between unqualified personnel administering the drugs and the low dose of the sedative drug, there is a significant risk that the prisoner may experience "conscious paralysis" which means he may be aware and able to feel pain yet be paralyzed and unable to tell anyone.  This creates a situation where the administration of the other two drugs may be felt by the prisoner and without proper anesthesia, the other two drugs are very painful.

The Pardon and Parole Board denied clemency on May 23, 2006, and this lethal injection argument was about the only thing left.  The LI claim was brought as a federal civil rights claim under 42 U.S.C. section 1983 rather than habeas because it attacks the implementation of the sentence rather than the sentence itself; and also the civil rights route avoids some of the very serious procedural hurdles applicable to successive habeas petitions.  

United States District Judge Stephen P. Friot set a hearing on my application for a TRO at 11:30 a.m. the day of the scheduled execution.  The hearing took over two hours and in the end Judge Friot issued the TRO.  The State promptly appealed to the Tenth Circuit.  This is one of the hazards of eleventh hour capital litigation and I had been through it all several times before.  The clerks receive the briefs by e-mail and sometimes a litigant must file a "prospective" or "anticipatory" brief concerning a decision that has not occurred.  I did this in the United States Supreme Court before the Tenth Circuit issued its decision (in the event the Circuit dissolved the stay by Judge Friot).  The Circuit did in fact dissolve the stay and it took the Supreme Court until about 5:45 p.m. to finally deny all relief.  That was the end of the road.

John invited me to witness the execution but I could not make it in time because of the flurry of litigation at the end.  I am firmly convinced that he did not deserve the death penalty.  He in fact stabbed his 22-year-old step-son to death but argued all along it was self-defense.  The attack happened at John's trailer house and I believe that had the Make My Day and the Stand Your Ground laws been in effect at the time of his trial his case may not have gotten past preliminary hearing.

This was a true injustice in my opinion and one of the cases that will stay with me for a long time.  Randy Bauman of the Federal Public Defender's Office assisted me greatly in the end (Randy had represented John way back in state post-conviction) as did Lisa McCalmont, another lawyer in his office who I think is probably one of the foremost experts in the country on the lethal injection claim.  I thank both of you for your efforts and assistance.

RIP, John.


Victories

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



JACK GORDON and MARY BRUEHL tried a capital case in Rogers County recently.  I am informed that Jack gave second stage closing arguments on Friday, May 26, 2006, at about 11:00 p.m.  The jury returned a verdict of LWOP at 1:30 a.m. (Saturday morning).  I do not have many details about the case, but that sounds like some grueling advocacy.  Very commendable Jack and Mary!

ANDREA MILLER (appellate counsel), GINA WALKER (trial counsel), EUGENIA BAUMAN (trial counsel), and ANTHONY SYKES (trial counsel), all of the Oklahoma County Public Defender's Office deserve recognition for their work in the Mitchell case handed down last week by COCA.  An opinion as critical of the actions of a prosecutor and a trial judge does not get published without trial counsel making an excellent record and appellate counsel presenting the issue in a persuasive manner.  That opinion is one of the gems of the year so far.  Very nice work to you all!


Hearsay

NEW DISTRICT JUDGE:  This was posted on the OSCN:  On May 26, Governor Brad Henry appointed Sheila A. Condren as Associate District Judge for the 12th Judicial District in Rogers County. She succeeds J. Dwayne Steidley, who was appointed to the new district judgeship in the 12th Judicial District in March.  The governor praised Condren, calling her an ideal choice.  "Sheila Condren has the legal mind, courtroom experience and sound temperament to be an excellent jurist," Gov. Henry said. "She is a judge of consummate professionalism and integrity, and I know she will be a true asset to the bench."  Condren has served as a Special Judge for the 12th Judicial District for six years and has been an attorney for 19 years. She graduated from Kansas State University in 1984 and earned her law degree from the University of Tulsa College of Law in 1987.  The governor selected the Owasso resident among three candidates whose names were submitted by the Judicial Nominating Commission.

GOVERNOR'S RACE:  State Rep. Jim Williamson-(R) announced that he will run for Governor.  He will join Rep. Ernest Istook and Tulsa businessman Bob Sullivan in the Republican primary.

JUDGE THOMPSON TRIAL:  The trial of former Creek County Judge Donald D. Thompson is about two weeks away.  This is the infamous "penis pump" case that has attracted so much attention locally and nationwide. 


UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER):


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 Oklahoma criminal defense.  HERE is a schedule; HERE and HERE is the brochure that I received; and HERE is a registration form.  I have joined the list of presenters this year (I will be delivering the COCA update) and I think the entire seminar will be first-rate as always.  See you there!

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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