Malicoat v. State, 2006 OK CR 25 (June 19, 2006):  In this case, the Court declined to stay Malicoat's execution pending the federal court resolution of whether Oklahoma's lethal injection protocol is cruel and unusual under the Eighth Amendment.  The Court held that Oklahoma's method of execution comports with the Eighth Amendment and set the execution for Tuesday, August 22, 2006.

Higgins v. Branam, 2006 OK CR 23 (June 20, 2006):  Habeas Corpus; State; Concurrent/Consecutive Sentences:  Yes, we do have habeas corpus available in state criminal cases.  Usually, the post-conviction procedures act governs post-conviction actions in state criminal cases.  However, habeas is still available in challenging bond pre-trial and also in challenging the administration of the sentence (as opposed to an attack on the sentence directly).  In this case, a defendant named Hainey was sentenced to 30 years in 1982.  He was released on parole and committed new crimes to which he plead guilty and was sentenced to ten years with all cases to run concurrently with each other and with the 1982 conviction.  DOC for some reason refused to administer the sentences in a concurrent fashion.  Hainey petitioned for habeas corpus relief in the county in which he was being held, Atoka, and asserted that he was entitled to immediate relief if his sentences were administered properly.  Judge Branam agreed and granted the writ.  The State filed a Petition for Writ of Prohibition against Judge Branam (Higgins is the Warden at the prison where Hainey is housed).  HELD:  writ denied.  The trial court has the power to run new cases concurrently with any other existing sentence.

Deitric Benard Pierson v. State, No. F-2004-874 (Okl.Cr., June 21, 2006):  Jury Instructions; Defense Requested Instructions:  Pierson was convicted of Sexual Abuse of a Child and sentenced to Life.  Although he raised several issues, the Court modified his sentence to 30 years because it found plain error under Anderson when the trial court did not instruct on the 85% law.  NOTE:  the Court has refused to find plain error in several of these cases recently by applying harmless error review; so be aware that just because this error may exist in your case, your client may not get any relief if the facts are very bad and the jury sentenced to the maximum.  Frankly, I would have thought that this case would be a candidate for harmless error but the Court has surprised me.


U.S. District Court for the Eastern District of Oklahoma 

Fred Lloyd Holder v. United States, No. CIV-02-556-FHS (E.D. Okla., June 21, 2006):  Ineffective Assistance of Counsel:  Holder was convicted in federal court in Muskogee of committing a murder while the victim was assisting a federal officer and also a separate count of impeding a federal officer in the performance of his duties.  There was no dispute that Holder fired the shot that killed the person.  The issue at trial centered around Holder's self-defense claim.  Judge Seay held that trial counsel was ineffective for failing to call an eyewitness and to utilize available expert testimony.  Very nice win, made even more nice by the fact that Judge Seay had previously denied the claim without an evidentiary hearing and Stephen Jones appealed to the Circuit, got it reversed and remanded for an evidentiary hearing, and eventually persuaded Judge Seay that the claim had merit. 


Tenth Circuit

United States v. Nelson, No. 05-3121 (10th Cir., June 19, 2006) (Published):  Nelson was descended upon by police who had a warrant to search his house, inside of which they found drugs and guns.  After he was advised of his rights, he asked one of the agents what they had found in the house.  The agent replied that they had discovered guns and drugs.  Nelson then stated, "I guess I'm ready to go to jail then."  Convictions affirmed over challenges to his statement, Batson challenges, and the denial of a Franks hearing.

United States v. Red Elk, No. 05-6336 (10th Cir., June 19, 2006) (Unpublished):  Discovery:  I watched Susan Otto argue this case in Denver and it was a real treat.  The Government waited until seven days prior to trial to give notice to the defense that it intended to use expert testimony.  The defense objected and moved to exclude the evidence or for a continuance.  The District Court ordered a portion of the evidence excluded and the Government proceeded via interlocutory appeal.  At oral argument, the Government had absolutely no excuse and the panel says as much in this opinion.  District Court affirmed.  This unpublished Order is a good primer on Rule 16/Discovery disputes in federal courts.

United States v. Patton, No. 05-3169 (10th Cir., June 20, 2006) (Published):  Commerce Clause:  Very lengthy opinion dissecting the Supreme Court's seemingly inconsistent approach to federal criminal jurisdiction under the Commerce Clause.  In this case, Patton was convicted of simple possession of a bullet-proof vest (body armor) in Kansas.  There is a federal statute that makes this a criminal offense when done by a felon which, of course, Patton was at the time of the possession.  The panel affirmed the conviction and the congressional authority to criminalize the conduct but candidly invited the Supreme Court to clarify the analysis under the Commerce Clause.

Welch v. Sirmons, No. 05-6159 (10th Cir., June 20, 2006) (Published):  Habeas Corpus; Capital Habeas Cases:  Oklahoma death inmate denied relief on multiple claims.  Particularly interesting in this case is the issue of victim impact testimony.  The Circuit has held that victims can not recommend a sentence to the jury.  The Oklahoma Court of Criminal Appeals has construed state statutes as allowing this practice.  In Welch's case, all five victim impact witnesses told the jury to sentence Welch to death (and it did).  The Circuit held this was error but was harmless.

United States v. Najer, No. 05-2000 (10th Cir., June 21, 2006) (Published):  Searches and Seizures; Exigent Circumstances:  Police dispatch recieved a 911 call but no one said anything and the caller hung up the phone.  This was repeated multiple times.  The dispatcher sent officers to the mobile home where the call originated.  Officers could see a person inside but no one came to the door.  Finally, Najer answered the door and by this time police entered the residence and found an unharmed woman inside.  During their time inside they also found a shotgun and Najer admitted to having been arrested on cocaine charges and, quite unfortunately for Najer, he had been convicted of a felony.  Najer moved to suppress the shotgun as the fruit of an illegal search.  HELD:  the officers had a sufficient belief that an emergency existed to enter the home.  This is the first case out of the Circuit that applies the Supreme Court's recent decision on this issue.

United States v. Esser, No. 05-3277 (10th Cir., June 21, 2006) (Published):  Searches and Seizures; Search Warrants; No Knock:  Esser was convicted of felon in possession of a firearm after the police executed a search warrant at his home and found guns.  He challenged the validity of the no-knock warrant and the fact that he bore the burden of showing that it was unconstitutional.  Affirmed.  The facts indicate quite convincingly that the no-knock warrant was appropriate.

United States v. Banks, No. 05-8093 (10th Cir., June 23, 2006) (Published):  Banks challenges his convictions on multiple drug and firearm counts.  Banks was in the Air Force and for some reason decided to sell crack cocaine out of an apartment where he housed two others involved in the drug trade.  In due course, an addict went to work for the police and made some buys from the apartment.  As a result, an "authorization to search" was obtained under military Rules of Procedure (Banks lived on a military base) and drugs and guns were found inside the apartment.  Banks raised three issues:  1) he did not possess the gun during or in relation to the drug conspiracy; 2) the search of his home was unconstitutional; and 3) his post-arrest statements should have been suppressed.  The panel rejected all of these claims and affirmed.


United States Supreme Court

Davis v. Washington, No. 05-5224 (U.S., June 19, 2006):  Confrontation/Cross-Examination:  The Court actually decided two cases in Davis, one out of the state of Washington and the other out of Indiana, dealing with the same issue:  what constitutes "testimonial" statements for Sixth Amendment purposes?  Under the Court's prior decision in Crawford, the Court held that the State is prohibited by the Sixth Amendment from introducing "testimonial" statements from witnesses who do not appear at trial and whom the accused has not had a prior opportunity to confront and cross-examine.  Both cases at issue in Davis dealt with domestic abuse.  At trial, neither of the complaining witnesses showed up to testify at trial.  In the first case, Davis, the Court held that a tape recording of a 911 phone call was not "testimonial" and therefore could be admitted even though the woman who made the call did not appear for trial to be cross-examined.  The Court held that such statements were given to law enforcement to assess aid options in an emergency situation, rather than to acquire information into the investigation of past acts that may be crimes.  However, the second case, Hammon v. Indiana, the police responded to a domestic and found the husband and wife at the house.  The police separated the two and took a statement from the wife in the form of an affidavit describing the abuse.  At trial, the wife did not show and the State introduced the affidavit taken by the police on the night of the crimes.  The Court held that the statements in the affidavit were "testimonial" in nature, similar to Crawford, because the police were gathering information about a crime that had already occurred rather than asking questions to deal with an emergency; thus it was a Sixth Amendment violation to admit the statements in the affidavit without providing the accused the right to confront and cross-examine the witness.  These decisions make intuitive sense and were supported by a strong voting bloc with all Justices in agreement except Justice Thomas who would have not granted relief to Hammon.

Samson v. California, No. 04-9728 (U.S., June 19, 2006):  Parole:  Samson was on parole in California and had executed a search waiver as a condition of his parole.  One day, he was walking down the street and a police officer, who recognized him from a prior contact and knew he was on parole, believed that there was an outstanding warrant for Samson.  The officer stopped Samson on the street, called dispatch, and was informed that Samson was in good standing with his parole officer and there were no warrants.  The officer had no reasonable suspicion of any criminal wrongdoing at all, yet he proceeded to pat-search Samson and found some meth on Samson's person.  HELD:  this search was reasonable under the Fourth Amendment because the Amendment does not prohibit a police officer from conducting a suspicionless search of a parolee.  The opinion was decided 6-3, with Justices Stevens, Souter, and Breyer dissenting, arguing that prior cases had extended at least some Fourth Amendment protection to parolees.  Not anymore.

Youngblood v. West Virginia, No. 05-6997 (U.S., June 19, 2006):  Prosecutorial Misconduct; Brady Issues:  This is a Brady case that is really not a Brady case.  Youngblood and a friend of his was charged and convicted of abducting three young women and performing two sexual assaults on one of them.  After his conviction, one of the investigators for the State obtained a letter written by two of the three "victims" which appeared to taunt Youngblood and his friend for being "played for fools" and thanked Youngblood for performing oral sex on the third girl.  The letter directly contradicted the trial testimony of the women and directly supported Youngblood's defense that the sex was consensual.  The investigator of course, refused to take the letter and told the person who showed it to him to destroy it(!)  The trial court denied Youngblood's motion for a new trial and the state court of appeals affirmed but apparently did not analyze the claim under Brady.  The holding by the Supreme Court in this per curiam opinion is to grant certiorari, vacate the opinion, and remand to the state court to conduct a proper Brady analysis.

Dixon v. United States, No. 05-7053 (U.S., June 22, 2006):  Dixon was charged with acquiring a firearm under indictment.  She presented a duress defense at trial, arguing that her boyfriend had threatened to harm her children if she did not buy the guns for him, and requested a jury instruction that the Government must disprove the duress defense beyond a reasonable doubt.  The District Court refused under Fifth Circuit precedent and instructed the jury that she must establish the duress defense by a preponderance of the evidence.  HELD:  Affirmed. The instruction is compatible with Due Process because the existence of duress generally does not contradict any of the elements of the offense and thus the Government must still prove all the elements beyond a reasonable doubt.


Other Cases of Note

United States v. Weber, No. 05-50191 (9th Cir., June 20, 2006):  Conditions of Probation:  Weber was convicted pursuant to guilty plea of possessing child pornography.  The PSR recommended, and the District Court ordered, Weber to undergo testing via penile plethysmograph.  This opinion is lengthy and details just about everything you have ever wanted to know about this procedure.  The Circuit held that, although a District Court generally does not have to articulate its reasons for imposing most conditions of probation, when a condition implicates a particularly significant liberty interest then the District Court must support its decision on the record with evidence that the condition is "necessary to accomplish one or more of the factors listed in section 3583(d)(1)" and "involves no greater deprivation of liberty than is reasonably necessary."  The Circuit remanded to the District Court to make such findings. 
 
United States v. Powell, No. 05-3047 (D.C. Cir., June 23, 2006):  Searches and Seizures; Incident to Arrest:  The police had probable cause to arrest Powell for a misdemeanor committed in their presence, but instead of arresting him immediately and then searching the car incident to the arrest, they searched the car first.  The Circuit characterized the question as:  whether the exception to the warrant requirement under the Fourth Amendment for a search of the passenger compartment of a car incident to a lawful custodial arrest under New York v. Belton, 453 U.S. 454, 460 (1981), applies to a search incident to the possibility of an imminent arrest.  We hold that it does not.  In essence, the search-incident-to-lawful-arrest exception applies only when the arrest is effected prior to the search.


Victories

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



S. GAIL GUNNING, OIDS, won an appellate victory for the loathsome Mr. Pierson, shaving off 15 years of his sentence, which is significant because he must serve it at 85%.  Good work, Gail! 


STEPHEN JONES, APRIL MCCURDY DAVIS, AND BROOKE TEBOW, Enid, secured a new trial for their client in a federal murder case.  Judge Frank H. Seay, Eastern District of Oklahoma, granted post-conviction relief and a new trial in the Holder case discussed above.  This result is evidence of particularly fine advocacy because Judge Seay had denied relief in an earlier order and Stephen had to get that reversed in the Circuit just to get another shot before Judge Seay.  The aggressive approach paid off and Holder will get another chance to present his case before a jury.  Terrific work Stephen, April, and Brooke!


Hearsay

MOSCOW'S "CRAZY CHESS PLAYER" SERIAL KILLER:  Well, it's nice to know that we Americans do not have a monopoly on the serial killers.  The Russians arrested one recently and the incident was reported in the Moscow newspapers like this:  "MosNews is reporting that a serial killer has been detained in Moscow after confessing to killing 61 people. The killer had planned to murder a total of 64 people, one for each of the squares of a chessboard.  Alexander Pichushkin, 32, a shop assistant, has claimed to be the notorious Bitsa Park serial killer, who Moscow police have been tracking down for more than half a year, Kommersant daily reports. Pichushkin, who has already been nicknamed "Crazy Chess Player", said he had initially planned to commit 64 murders, one for each of the chessboard squares. He also said there were three squares vacant, thus admitting to have killed 61.  However the police have found only 14 bodies in the Bitsa Park in the suburbs of Moscow, and the investigators doubt the detainee's testimony, since he cannot remember where he had hidden the rest of the 47 corpses."  How can you blame him, really?  After the first fourteen or so things get muddled.

LAWYER JAILED FOR BEING UNPREPARED FOR TRIAL:  Oklahoma County District Judge Twyla Mason Gray ordered public defender Shawn Jefferson jailed last week after accusing him of not being ready for a scheduled trial.  I am advised that Jefferson was not detained long and that the dust has apparently settled.  Still, that is a very odd sanction in my opinion for something other than directly contemptuous actions.

FORMER-JUDGE LILE ACCUSED OF MISCONDUCT:  The Bar has formally charged disgraced former judge Steve Lile with misconduct.  The Oklahoma Bar Association, in a complaint filed last week, accused the 59-year-old Lawton resident of fraud and abuse of power for allegedly misusing taxpayer funds and improperly intervening in his secretary's legal problems.  Lile could face suspension or disbarment.  In his response, Lile acknowledged that he fathered a child with his secretary, Dawn Lukasik, but denied that his use of taxpayer funds for in-state trips on behalf of his troubled son was deliberate.  He also acknowledged contacting a prosecutor when Lukasik was arrested on a drug allegation but said he didn't try to influence the district attorney.

NEW TENTH CIRCUIT JUDGE:  A new judge will take his seat on the Tenth Circuit.  Denver native Neil Gorsuch, nominated for a seat on the U.S. 10th Circuit Court of Appeals, breezed through his confirmation hearing last Wednesday, with both Colorado senators appearing on his behalf.  Gorsuch was introduced by Sen. Wayne Allard, R-Colo., before the Senate Judiciary Committee.

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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