Coates v. State, 2006 OK CR 24 (Okl.Cr., June 9, 2006):  Jury Instructions: Defense Requested Instructions:  Coates was convicted of Unlawful Distribution of CDS w/in 2,000 feet of a School and sentenced to 10 years.  He raised several claims, one of the most interesting was denial of a jury instruction that would have created a mens rea requirement that he knew he was within 2,000 feet of a school.  This was denied and the Court held that the 2,000 feet requirement acts as an aggravator to enhance the sentence, rather than an element for which a mens rea requirement must be found by the jury.  Something about that holding seems to just water down the State's burden of proof, but the holding is in line with the large majority of other state and federal decisions.  Also, the Court found no plain error by the failure to instruct on the 85% rule.  This is a very strange holding that distinguishes Anderson v. State, 2006 OK CR 6, on the basis that Anderson involved enhancement under the general statute at 21 O.S. 51.1, while this case involved enhancement under the drug statutes found at 63 O.S. 2-401(F).  Very odd distinction, but most likely it turned on the fact that Coates did not request the instruction and thus gets shafted with the plain error standard of review.

D.M.H. v. State, 2006 OK CR 22 (Okl.Cr., June 7, 2006):  Waiver:  Juvenile case where DMH was charged as a juvenile with Attempted Rape by Instrumentation, Assault, and two counts of Intimidation of a Witness.  He as adjudicated delinquent after a bench trial.  The sole issue was whether there was a valid waiver by the juvenile of his right to a jury trial.  Somewhat quirky facts as the record showed that DMH neither requested nor waived jury when his case was called; and the trial court made no record of a valid waiver.  The Court established procedures for waiver of jury trials in juvenile cases, including the requirements that the trial court make a record of the waiver, advise the juvenile of his right to jury trial and to consult with counsel, and the juvenile must waive the right to jury trial in open court "competently, knowingly and intelligently." 

Luke Sinclair v. State, No. F-2004-146 (Okl.Cr., June 8, 2006) (unpublished):  Jury Instructions: Defense Requested Instructions:  Sinclair was convicted at jury trial of Murder in the First Degree and sentenced to LWOP.  He did not request an 85% instruction at trial, but the Court held that since his appeal was pending when Anderson was decided he will get the benefit of that rule; thus his case is remanded for re-sentencing.  This is at least the third unpublished opinion to apply Anderson to cases pending on direct appeal, even cases where the defendant did not request the instruction.  This approach by the Court seems completely arbitrary to litigants like Coates in the case above.

 
Tenth Circuit

United States v. Allen, No. 05-7000 (10th Cir., June 5, 2006) (Published):  Insanity Defense:  Clean opinion holding that the insanity defense is available to a charge of Felon in Possession of a Firearm.

United States v. Espinosa, No. 05-2220 (10th Cir., June 6, 2006) (Published):  Federal sentencing case on quirky facts.  Espinosa entered a conditional plea to a state charge and subsequently committed a federal drug crime.  The timing of his state plea was very unfortunate because it came just in time for the feds to use it as an enhancer to make him a Career Offender.  He argued that the plea was conditional under state law and should not count as a conviction or finding of guilt because the conditional part occurred after he committed the federal crime.  The District Court did not buy it and neither did the panel in the Circuit.

United States v. Hernandez-Castillo, No. 05-2157 (10th Cir., June 6, 2006) (Published):  More federal sentencing insanity in an illegal re-entry case where one of the defendant's priors was a statutory rape charge when he was 18 and the girl was 14, with parental consent, with consent by both him and the girl, and he still supports their now six-year-old child.  California sentenced him to 157-days in jail but the feds considered this a felony crime of violence which jacks up what would otherwise be a range of 6-12 months to 57-71 months and he ended getting the 57 months.  The Circuit was particularly catty to the defense attorney in this case, stating that this case would be a prime example of one that should be reviewed for reasonableness under the advisory Guidelines, but the lawyer did not raise this issue so they did not address it.  Sick.

United States v. Cage, No. 05-2079 (10th Cir., June 8, 2006) (Published):  Federal Sentencing Guidelines; Reasonableness:  More refinement in federal sentencing where the District Court calculated properly a Guidelines range of 46-57 months in a drug case but sentenced Cage to six days.  The Circuit held that this was an unreasonable sentence not justified under the facts of the case.


United States Supreme Court

A couple of nice death penalty winners out of the Court yesterday:


Hill v. McDonough, No. 05-8794 (U.S., June 12, 2006):  Death Penalty:  Many death row inmates around the country have been challenging lethal injection as a cruel and unusual method of execution.  In order to avoid the stringent barriers involved with successive habeas petitions, the inmates have been filing challenges under 42 U.S.C. 1983, alleging a deprivation of civil rights.  In this case, the Supreme Court holds that the civil rights action is a proper way to challenge the execution method, although filing such an action does not automatically result in a stay of execution.

House v. Bell, No. 04-8990 (U.S., June 12, 2006):  Habeas Corpus; Procedural Default:  In the murky world of federal habeas corpus, if a litigant fails to comply with a state procedural rule and the state courts do not address the merits of the claim, the federal courts will follow suit and refuse to address the claim as well.  There are exceptions of course, and one of them is if the Petitioner can show a colorable claim of actual innocence.  In this case, the Court finds that House met this stringent standard by introducing evidence of DNA testing indicating that another person may have committed the crime (or at least he did not do it).  NOTE:  this just means that he gets the federal courts to hear the claims he raised; it does not mean he is innocent and gets to go home.  Still, a good case that gives hope to other Petitioners. 


Other Cases of Note

United States v. Rowlands, No. 05-3425 (3rd Cir., June 9, 2006):  Federal Expungements:  This is a murky area because unlike most states, there is no federal statute governing expungements in federal courts.  This case deals with that issue and the circuit held that expungements are possible but only when the litigant also attacks the underlying conviction.

United States v. Pope, No. 04-51008 (5th Cir., June 6, 2006):  Searches & Seizures; Staleness; Good Faith:  Very nice case where police obtain a search warrant based on stale information.  While executing the warrant, police see evidence of a meth lab and obtain a second warrant.  In this split panel decision, the Circuit held that the first warrant was stale and the second warrant was not saved by Leon because the same cop authored the affidavits.  The majority drew a sharp distinction between police who innocently rely on a search warrant and police who themselves are the cause of a warrants illegality.  Very strong language in this case calling the officer a liar.


Victories

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


I came across this the other day:

"Every fighter's got a plan until they get hit in the mouth." ---Mike Tyson.


I never thought I would consider insights by Iron Mike in the context of criminal cases, but I think he's onto something here.  Remember to stick to your guns and fight plan in the face of adversity, even after that judge denies your motion or overrules your objection.  Tough prize fighters overcome the blows and you can, too.


JAMES H. LOCKARD, OIDS, obtained some daylight for Sinclair in the case reported above.  Sinclair was looking at LWOP but James had the presence to raise the 85% rule on appeal and it worked enough to get Sinclair a re-sentencing.  Good job, James!


JEFF PRICE, Claremore, traveled to Wagoner, Oklahoma, to try a case where his client was accused of First Degree Rape, four counts of Forcible Sodomy, and one count of attempted Rape.  The complaining witness was his thirteen-year-old daughter and the State was able to Burks in testimony from another, adult daughter who testified that client did the same thing to her when she was younger.  The State offered a plea deal of ten in with twenty-five suspended.  Client rejected this offer and went to trial.  The defense theory was that the complaining witness had been manipulated into a story and, once told, could not reverse course.  The testimony was sexually graphic and Jeff defended on testimonial discrepancies by the State's witnesses.  

But before this, he engaged the jury during voir dire by addressing each juror individually.  Jeff reports that he is a firm believer in this technique and advises to avoid the general question approach to the entire array such as, "Does anyone not understand the State's burden of proof?"  He advocates addressing each potential juror directly; and it does not matter that much what they say, the point is to pay attention to them personally, build a rapport, and get them to commit to applying the burden of proof and the presumption of innocence.  Make them acknowledge it and make sure they understand these things. 

Once the jury was seated, Jeff attacked the witnesses who were not particularly prepared by the State.  Some aspects of the daughter's testimony was inconsistent with her allegations, such as when her parents got a divorce she chose to stay with her father---even though she accused him of molesting her during that time and she had a choice with whom to stay.  She also testified that sex toys and other items were at the home but the items were not found police during the search; and she curiously asserted that the pubic hair of the accused was "salt-and-pepper" in color but this was not true.  How to get this awkward fact before the jury without having client drop trou in open court?  Jeff enlisted the jail administrator to take photographs of the "evidence" and, get this, the jail administrator was declared a "pubic hair expert" by the trial judge(!!)  That is a new one on me.  At the trial the parties ended up stipulating that the hair was not salt-and-pepper in color so that fact was before the jury without evidentiary support. 

Jeff also brought out the fact that the older daughter had drug problems and had actually let client baby-sit her infant daughter apparently while claiming that he was a molester of young girls.  Jeff also called other girls who were in contact with client who testified that he did nothing resembling the allegations to them.  He also was able to introduce an Information accusing another individual, a family friend, of being a molester.  The relevance was the date of the accusation because that started the time-line of the complaining witness's allegations.  This turned out to be a key piece of evidence to the jury. 

Client took the stand and straight-up denied the allegations.  The State for some reason did not cross-examine at all concerning the facts of the allegations, but rather focused on some log book discrepancies (client was a truck driver) that are common among all truckers to avoid the drive-time rules (the all doctor their logs to comply with the eight-hour driving rule even though they all drive longer hours). 

The trial lasted three days and the jury retired to deliberate at 6:20 p.m.  The jury did not send any questions out and did not ask to leave and resume deliberations in the morning.  At 11:30 p.m. they returned verdicts of NOT GUILTY on all counts and client walked out of the courtroom.  Jeff was able to speak to some of the jury members and they were persuaded by the lack of emotion of the State's witnesses and the Information filed against the family friend which alleged that the molestation (of another girl) began when she was three years old which, coincidentally, was when the daughter claimed it began in this case.  Just goes to show that even when these cases seem indefensible at first, if you work them hard enough they can be won.

Jeff also relayed to me that he read a book called The Lawyer's Winning Edge:  Exceptional Courtroom Performance by Lisa L. Decaro & Leonard Matheo, and the techniques in the book improved his courtroom performance immensely.  The advice is to make eye contact and other techniques used by actors to make feel others feel comfortable around you and develop credibility.  Terrific win, Jeff!


Hearsay

NOMINEES TO THE FEDERAL BENCH:  President Bush has nominated Tulsa County District Judge Gregory Kent Frizzell to the federal bench in the Northern District.  The nomination has been forwarded to the Senate for confirmation.  Frizzell would fill the seat vacated by Sven Holmes.  Oklahoma City attorney Jerome Holmes had been nominated for the that position but he was nominated instead to fill a vacancy on the Tenth Circuit Court of Appeals.

JUDGE ORDERS "PAPER, ROCK, SCISSORS" as a means to settle a legal dispute.  This is a funny story about a federal judge in Florida who ordered the lawyers in a case to play the children's game and if they could not agree on a neutral site then they would be ordered to play on the courthouse steps.  Too funny.  Bored poker players sometimes play this game, called "Roshambo," for fun during poker tournaments. 

FBI SNITCH TURN OUT TO BE STONE KILLER:  And now the family of one of the victims is suing the Government for shielding him for years while he committed murder.  The Government, of course, is fighting it tooth and nail, but this article is pretty good.

DEATH PENALTY FOR REPEAT CHILD MOLESTERS:  Well, Oklahoma did it.  Gov. Henry signed into law last Friday a bill that makes some aggravated child molesters eligible for the death penalty.  The legal talking heads seem to scoff at the constitutionality of such legislation for the most part, but as I have said here before, the question is very live.  HERE is another article about it.

JUDGE THOMPSON TRIAL UNDERWAY:  The infamous "penis pump" case began yesterday in Creek County.  Clark Brewster should have his hands full with Pattye High.  I will be glad when this embarrassment for our state is over.
 


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.

SEPTEMBER 14, 2006:  The Federal Bar Association presents this program at the Petroleum Club in Oklahoma City featuring Morris Dees, the founder of the Southern Poverty Law Center.  Mr. Dees will give a presentation on the topic, "With Justice for All."  FBA members $20, all others $30.  To sign up, contact Rosene Coleman at 405.609.5320 or at rosene_coleman@okwd.uscourts.gov.  



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