Michael WcWhirt v. State, No. F-2005-105 (Okl.Cr., June 15, 2006) (unpublished):  Jury Instructions; Defense Requested Instructions:  McWhirt was found guilty by jury in Tulsa on nine counts ranging from kidnapping to multiple sexual offenses and was sentenced from ten years to life on all counts, all counts running consecutively.  In fact, the jury was so impressed with McWhirt's criminal prowess that they sentenced him to the max on all counts.  The crimes appear to have been an abduction with rape and other horrible sex crimes resulting.  This case was on appeal at the time Anderson (the 85% rule case) was decided and the Court recognized that plain error had occurred in this case.  However, the Court stated that under the circumstances of the case, "the instructional error had no substantial influence on the outcome and requires no relief."  This is the first post-Anderson case where the Court found plain error but did not grant at least partial sentencing relief.

Pat Lee Richardson v. State, No. F-2005-362 (Okl.Cr., June 16, 2006) (unpublished):  Excessive Sentence:  Richardson was convicted at a non-jury trial of First Degree Manslaughter and sentenced to 35 years.  The Court held that under the facts of the case, the sentence shocked the conscience of the Court and modified the sentence to 20 years.  The facts are set forth in more detail in Judge Lumpkin's dissent, which was joined by Judge A. Johnson, and appears that Richardson just stabbed a guy to whom he owed money after the guy demanded payment.  I cannot help but wonder that there is something more in the record of this case that would justify this result.

Timothy Purcell Teafatiller v. State, No. F-2005-366 (Okl.Cr., June 9, 2006) (unpublished):  Spoliation/Destruction of Evidence:  Teafatiller was tried by jury in Pushmataha County, found guilty of Possession of Concealed Drug, and sentenced to 6 years.  The case was reversed and remanded because either the OSBI or the Sheriff's Office destroyed the evidence (the drugs) prior to trial without notice to the defense or the prosecution.  Very nice language concerning the constitutional right of an accused to examine and test the evidence against him.

Adan Ramos, Jr. v. State, No. F-2005-363 (Okl.Cr., June 16, 2006) (unpublished):  Waiver:  Ramos was convicted at a non-jury trial of Robbery by Force or Fear and sentenced to 10 years.  This case is reversed on the basis that there is no record of Ramos waiving his constitutional right to a jury trial and the State confessed the error.     


Tenth Circuit

United States v. Aranda-Flores, No. 05-4140 (10th Cir., June 13, 2006) (Published):  Federal Sentencing Guidelines:  Guilty plea to a charge of Transporting Illegal Aliens.  However, he fell asleep while driving, crashed into a car and killed the driver, and also killed one of the illegals in the car he was driving.  The District Court enhanced six levels on the basis that the conduct was reckless and resulted in the death of a person.  The Circuit reversed on the basis that the actual conduct---falling asleep while driving---is not reckless per se, but merely negligent.

Lee v. Crouse, No. 04-8116 (10th Cir., June 13, 2006) (Published):  Interrogations/Fifth Amendment:  Lengthy, split-decision in a state habeas case where Crouse plead guilty to sexual assault but at sentencing he declined to take a psychological test to determine future dangerousness.  The trial judge drew adverse inferences from this denial and enhanced the sentence over his objection that the Fifth Amendment prevented the court from doing so.  Habeas corpus is a different animal, and the question is whether this action by the state court was a violation of clearly established law.  Judge Briscoe hates criminal defendants in any event, so the holding was unsurprising after a canvass of the case law:  "Considering [the case law], we conclude it remains unanswered by the Supreme Court whether a sentencing court in a non-capital case may, for purposes other than determining the facts of the offense of conviction, draw an adverse inference from a criminal defendant's refusal to testify or cooperate."  Thus, no relief.

In re:  Special Grand Jury 89-2, No. 04-1193 (10th Cir., June 15, 2006) (Published):  Very lengthy opinion in which grand jurors investigating the Rocky Flats Nuclear Weapons Plant in Colorado apparently wish to expose some of the things that occurred before the grand jury but can not do so because of the secrecy requirements of Rule 6.  The opinion deals with several issues such as whether this is a criminal case or a civil case for purposes of the Notice of Appeal, Article III justiciability, standing, and whether ancillary proceedings about the grand jury proceedings are also covered by Rule 6.  The Circuit held that the appellants have overcome these procedural hurdles and remanded to the District Court to make a decision on the merits.


United States Supreme Court

Hudson v. Michigan, No. 04-1360 (U.S., June 15, 2006):  Searches and Seizures; Search Warrants; Manner of Execution:  The Supreme Court nominees of President Bush are exerting their influence on the Court in a big way, trifling with the exclusionary rule in this Fourth Amendment case that produced a lengthy, 5-4 split on the Court.  There was no question that the police violated the Fourth Amendment by failing to "knock and announce" prior to breaking in.  The only question was whether such a violation must result in suppression of the evidence under the exclusionary rule.  The Court held that it did not.  Very troubling case and foreseeable result of the two new Justices on the bench.
 

Other Cases of Note

United States v. Lucas, No. 05-2165 (8th Cir., June 16, 2006):  Searches and Seizures; Search Warrants; Neutral Magistrate:  Lucas escaped from prison in Nebraska and was arrested subsequently under the authority of a warrant issued by the Nebraska Director of Correctional Services as allowed by state statute.  The Circuit held this warrant did not meet Fourth Amendment requirements that a warrant issue by a detached and neutral magistrate and the good faith exception did not save the warrant.  NOTE:  the issuing authority need not be either a judge or an attorney; just a neutral and detached person.


Ask Marilyn (Well, Maybe Not)

The Sunday paper contains a supplement titled Parade Magazine which in turn contains a section authored by a person named Marilyn vos Savant who, as it turns out, is listed in the Guinness Book of World Records as having the world's highest IQ.  Usually the questions posed to Marilyn, or at least the ones she chooses to publish in the magazine, are word/math puzzles or other innocuous problems.  

Yesterday, I read her response to this question:  "If you were on a jury and shown convincing evidence against the defendant, then later told to disregard that evidence because it had been obtained illegally (for example, without a search warrant), would you still allow the evidence to influence your decision?  Would you advise your fellow jurors to do the same?"

Her response:  "I would let the evidence---either against or in favor of the defendant---influence my thinking, because I believe my duty is to find the truth, not to hold law-enforcement officers to legal standards.  However, I wouldn't advise fellow jurors one way or the other, because I don't believe that would be part of my duty."  (emphasis hers). 

The question was sent in by a Brit so it may have practical use under British law.  Here, of course, the judge would just exclude such evidence and the jury would not hear about it unless there was a zinger of an evidentiary harpoon; but, I thought her answer was interesting.  I also wonder how she would reconcile the judge's instruction to follow the law rather than search for the truth.  It goes to show how powerful the urge is to find the truth in criminal trials and thus underscores our job to educate jurors about the Government's burden of proof and the presumption of innocence.  


Victories

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




Appellate wins are featured this week:



S. GAIL GUNNING, OIDS, prevailed upon the Court to find its conscience shocked on behalf of Mr. Richardson in the case reported above and, voila, the Court found itself in shock and shaved 15 years off his sentence.  Another very nice appellate notch in Gail's belt!

JUDITH L. JOHNSON, OIDS, won an outright reversal on destruction of evidence grounds for Mr. Teafatiller.  Terrific win and a good, tight opinion on this issue.  Thank you, Judith!

STEVEN M. PRESSON, Norman, secured the new trial for Mr. Ramos because there was no waiver of the right to jury trial.  This was a back-to-the-basics win with a nice, tight opinions.  Thanks, Steve!



Hearsay

JUDGE THOMPSON TRIAL:  CourtTV has not allowed this case to go unnoticed.  It also appears that there are some appellate matters that may be resolved today in the Oklahoma Court of Criminal Appeals.  Here is an excerpt from the linked article:  "Lisa Foster, Thompson's court reporter for 18 years, also testified in a preliminary hearing that she witnessed her former boss shave his scrotum with a disposable razor on the bench in open court."  How is that even possible?  I mean really, how could you even do that? 


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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