Smith v. State, 2006 OK CR 38 (Okl.Cr., September 15, 2006):  Battered Woman Syndrome:  Pearl Smith was charged with Murder in the First Degree in Cherokee County for shooting her abusive husband to death.  At trial, Smith presented a general self-defense theory as part of the defense case.  The jury found her guilty of Murder in the Second Degree and imposed a 28-year sentence.  REVERSED AND REMANDED because trial counsel was ineffective for not securing an expert to explain Battered Woman Syndrome to the jury.  Trial Judge:  Hon. Darrell Shepherd.

Townsend v. State, 2006 OK CR 39 (Okl.Cr., September 21, 2006):  Child Neglect:  Townsend was apparently a babysitter who failed to seek medical attention for a child she was sitting.  At a bench trial, she was convicted of Child Neglect (AFCF) and sentenced to 35 years by the Hon. George Butner in Seminole County.  COCA affirmed in this opinion, holding that the statutes criminalizing child neglect apply to persons responsible for the child and this includes babysitters.  

Charles Anthony Willingham v. State, No. F-2005-281 (Okl.Cr., September 15, 2006) (Unpublished):  Excessive Sentence:  Willingham was convicted in Grady County of four counts of lewd molestation and sentenced by Judge Richard G. Van Dyck 60-years total per the jury's recommendation (all counts running consecutively).  Willingham raised several claims, but gets relief on only one:  the sentences shocked the conscience of the Court and were thus modified to run concurrently (resulting in a 20 year sentence rather than a 60 year sentence).

Leroy Mitchell, Jr., v. State, No. F-2005-874 (Okl.Cr., September 19, 2006) (Unpublished):  Confrontation/Cross-Examination:  Pithy opinion that reverses a conviction (at a bench trial before the Hon. Doug Gabbard in Atoka County) for Rape in the First Degree and a 5 year sentence on the basis of a violation of the Confrontation Clause and also on the basis that the trial court failed to make a reliability determination regarding the hearsay statements of the minor complaining witness.  As is sometimes the case with these Summary Opinions, the facts are sketchy, but it appears that the State did not present the testimony of the child, but rather the testimony of investigating police officers who conveyed statements of the child.

Maretha Kerezman v. State of Oklahoma, ex rel. Department of Public Safety, No 102,978 (Okl.Civ., Div. IV, September 19, 2006 (not for publication):  DUI: DPS Administrative Hearings:  In this DPS case, Kerezman was stopped for driving erratically and, although she did not have any odor of alcohol on her breath, the officer determined that she was driving under the influence of something and arrested her.  She refused to take a blood test.  She claimed to not understand the consequences of a refusal because the officer would not provide clarification beyond the words on the form.  The appellate court upheld the revocation in this case and forcefully made the point that an officer is not required to "clarify" anything beyond a plain explanation of the reason for the test, the yes or no decision whether to take the test, and the revocation of the DL for refusing to take the test.


Tenth Circuit

United States v. Sells, No. 04-5167 (10th Cir., September 19, 2006) (Published):  Searches and Seizures; Search Warrants; Severability:  Complex analysis of the "severability" doctrine which allows a court to excise the invalid portion of a search warrant and avoid suppression of evidence in the event the valid portion comports with the Constitution.  The Circuit panel affirmed the District Court's opinion which severed the valid portions of the warrant and ordered partial suppression. 

United States v. Herula, No. 05-1091 (10th Cir., September 21, 2006) (Published):  Herula  plead guilty to seven counts of wire fraud in Colorado as well as two counts of fraud (wire and bankruptcy) and one count of money laundering in a case out of the District of Rhode Island that was transferred to Colorado.  The sentence imposed was a whopping 188 months.  Herula challenged the sentence as unreasonable under Booker.  AFFIRMED.  The panel addressed a "grouping" of counts issue and held, in accordance with other circuits, that sec. 5G1.2's analysis of multiple counts must be read back into Chapter 3, Part D's grouping calculation.  In a footnote, the loss level is said to be almost $65 million which accounts for the stiff sentence.

United States v. Mitchell, No. 05-2052 (10th Cir., September 22, 2006) (Published):  Procedural trap case where a Notice of Appeal was filed late.  Mitchell's counsel filed a motion for an extension which was based on "excusable neglect" because of counsel's heavy workload and involvement with other matters.  The District Court granted the Motion, but in this opinion the Circuit held that these reasons do not constitute excusable neglect as a matter of law and dismissed the appeal for a lack of jurisdiction.


United States Supreme Court

No cases yet from this term which starts in a couple of weeks.

 
Other Cases of Note

United States v. Andrews, No. 05-4065 (8th Cir., September 22, 2006):  Searches and Seizures; Traffic Stops:  Pithy opinion affirming a suppression motion on the basis that the officer lacked probable cause to make a traffic stop for following too close because the District Court determined that the officer's testimony was not credible on this point(!!)

United States v. Carter, No. 05-6129 (6th Cir., September 18, 2006):  Conditions of Probation:  Conviction for Felon in Possession of a Firearm resulted in a period of supervised release containing a condition that mandated sex-offender treatment.  Carter objected on the basis that sex-offender treatment was reasonably related to the firearms charge and that his prior sexual offenses in 1988 were too remote in time and not clearly of a sexual nature to support such a condition.  Held:  the special condition is vacated. 

United States v. Gunter, No. 05-2952 (3rd Cir., September 11, 2006):  Federal Sentencing Guidelines:  Gunter was convicted of Possession of Cocaine Base (Crack) with Intent to Distribute and sentenced to 295 months.  The District Court opined that it could not impose a sentence below the applicable Guideline range for offenses involving crack cocaine.  Specifically, Gunter argued that there exists a disparity between sentences imposed for crack cocaine and those imposed for powder cocaine (if Gunter possessed powder his range would have been 111-123 instead of 295-353 months).  He argued that Booker allowed the District Court to sentence below the Guideline range in this area and the Circuit agreed.  Thus, the 100:1 crack-powder cocaine discrepancy is apparently not legally binding on a sentencing court (at least in the Third Circuit).


Practice Pointer--Computer Monitors

Charles Foster Cox described his computer set-up recently on the OCDLA list-serv as the greatest thing since sliced bread.  Charles set up two 19-inch flat panel monitors rather than just one.  I have this set-up also and echo his sentiments.

If you have two monitors you can purchase a videocard very inexpensively (mine was about $90) that will allow you to hook up both monitors to your CPU at the same time.  The effect is really cool.  Both monitors sit on your desk, side-by-side, but conceptually it's one big monitor---the mouse glides smoothly back and forth between the screens. 

This allows you to view multiple applications at the same time rather than opening/closing the window when you use one screen only.  It is incredibly convenient for using Westlaw on one screen and writing your brief/motion on the other.  Mine is set-up at home where I do the bulk of my research and writing but I think I might set up a second monitor at the office as well.  If you perform any significant amount of computer work in your practice (and nowadays we all do) you will like the way this works.


Victories

Send lawyers, guns and money, the shit has hit the fan.

--Warren Zevon, Lawyers, Guns and Money (song) (1978)


Yonder come Ms. Rosie
How in the world did you know?
By the way she wears her apron
And the clothes she wore
Umbrella on her shoulder
Piece of paper in her hand
She come to see the Guv'ner
She want to free her man, oh

--Credence Clearwater Revival, The Midnight Special (song) (1969)


SANDRA MULHAIR CINNAMON, OIDS, won a new trial for Pearl Smith in the "Battered Woman Syndrome" case reported above.  Very nice work, Sandra, particularly since the case involved a remand for evidentiary hearing.  Those involve a lot of work and effort and it looks like it paid off here.

ALECIA FELTON GEORGE, OKC, knocked 40 years off the sentence of the despicable Mr. Willingham which, in our business, is a good result!  Good work, Alecia!

JAMES L. HANKINS, OKC, secured a win in a forfeiture case in Enid last week.  This was one of those cases that we all have periodically where there will most likely be no record of the good job you do other than a satisfied client and one page, perfunctory dismissal order.  Enid police stopped a car while at the same time other officers were executing a search warrant.  Client and her mother were in the car and cops seized $3,500.00 in cash from client.  Client was charged in a criminal case with drug offense (conspiracy with boyfriend) and the State filed Notice of Forfeiture on the money.  Boyfriend pleads to manufacturing, charges dismissed against my client, leaving the forfeiture case.  In my Answer, I alleged unconstitutional stop and "innocent owner" since the money came from the mother in a legitimate way that could be proved with bank records.  I attached these records and outlined client's position to the DA, Melissa Redway (who spends time in Grant County as well as Garfield County).  Mellisa and I discussed the case the afternoon before the hearing and she announced that the State would dismiss the action.  Eminently reasonable decision by the DA and good result for the client.

BOBBY G. LEWIS, OIDS, won a new trial for Mr. Mitchell in the case reported above.  Superb appellate work, Bobby!     
 
JAMES R. WILLSON, Lawton, won a Court Martial trial last week.  The client, with 29-years in the service, was accused of multiple counts of sexual assault and conduct unbecoming an officer while stationed in Iraq.  Client apparently pushed the envelope on this one, refusing non-judicial punishment and retirement, and made the very good decision to hire James.   

Hearsay

JUDGE RESIGNS AMID CONTROVERSY:  An Oklahoma County Special Judge, Michael Chionopoulos, apparently was not that honorable because he resigned last Thursday after the District Judges voted to replace him.  He was accused of bizarre behavior for a judge in family law cases such as ordering "an attractive stripper" in a child-custody case to deliver personally to him the results of a drug tests every Friday after which he took her into his office and closed the door, telling another woman going through a divorce, "I wish I would have met you before I met my wife," and acting "too familiar and flirty" with the female attorneys who appeared before him by, for example, calling them on their cell phones late at night.

FEDERAL JUDGE TAKES SENIOR STATUS:  U.S. District Judge Tim Leonard has taken senior status.  This creates an opening in the federal judiciary in the Western District.  The new judge will be recommended to President Bush by Oklahoma Senators Jim Inhofe, R-Tulsa, and Tom Coburn, R-Muskogee.

OKLAHOMA COUNTY DA POLITICS:  The Oklahoman reported on Saturday, September 23, 2006, that Oklahoma County District Attorney Wes Lane has suspended Assistant District Attorney Cindy Truong for not following office policy and also for trying to thwart his re-election bid.  Truong had sued Lane in federal court after finding out that she was not paid as much as the other prosecutors in the office.  In his letter suspending her, Lane apparently accused Truong of providing to his political opponents a recording of statements he made to an FOP meeting.  Lane's statements can be found HERE on a web site maintained by the "Video Vigilante" Brian Bates.  On the recording, Lane makes comments about how he would have to be on "crack" to charge a police officer at this time.

CLUTTER HOME FOR SALE:  The farm house that was the scene of the infamous murders of members of the Clutter family in Kansas is for sale.  The murders inspired Truman Capote to write "In Cold Blood."  Thanks to Danny Lohmann at OIDS for finding this.



   UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER)



SEPTEMBER 29, 2006:  The Federal Bar Association's First Annual Golf Tournament will take place at SilverHorn Golf Club in Oklahoma City.  The tournament will be a four-person scramble and the cost for FBA members is $50 per person.  For non-FBA members the fee is $60.  Click on the link to see the entry form and other info.

OCTOBER 13, 2006 (OKC) & OCTOBER 20, 2006 (TULSA):  Criminal Defense Oklahoma Style:  A Look at the Basics of Criminal Defense in Oklahoma.  This event is co-sponsored by the Oklahoma Criminal Defense Lawyers Association and features what appears to be a back-to-the-basics program.  Speakers include program moderator David Ogle, Derek Chance, Mack Martin, David McKenzie, Kent Bridge, John Hunsucker, Shena Burgess (Tulsa), and Bruce Edge.  You can register on-line at www.okbar.org.  Tuition is $150 and it is good for 6 hours including 1 hour of ethics. 

OCTOBER 27, 2006 (OKC) & NOVEMBER 3, 2006 (TULSA):  White Collar Crime.  This looks to be geared toward federal practice and is moderated by soon-to-be Judge Jerome Holmes and Daniel G. Webber, Jr.  Particularly interesting is the panel discussion of post-Booker sentencing strategies with Mack Martin, John W. Coyle, III, and Paul Antonio Lacy (OKC program only) and Paul Brunton (Tulsa program only).  Also, Robert L. Wyatt, IV, will present a section on the state multi-county grand jury as it applies to white collar cases.  You can register on-line at www.okbar.org.  Tuition is $150 and it is good for 6 hours including 1 hour of ethics. 

NOVEMBER 15, 16, & 17, 2006:  OBA Annual Meeting at The Crowne Plaza Hotel, Tulsa, Oklahoma.

NOVEMBER 29, 2006 (OKC):  Mastering Jury Selection Skills for Criminal Attorneys.  This program features John W. Coyle, III, Stephen Jones, Gloyd McCoy, and Doug Parr.  Location:  Holiday Inn Hotel & Suites, 6200 N. Robinson, Oklahoma City, OK  73118.  Presented by NBI and more info can be found by calling 800.930.6182.  Tuition is pretty steep at $309 but this one looks worth it.  CLE:  7.0 hours of ethics (including 1 hour of ethics). 

NOVEMBER 30, 2006 (OKC) & DECEMBER 1, 2006 (TULSA):  Crimes Against Minors--Protecting the Defendant's Rights.  This looks like a good one featuring Brian T. Hermanson, Creekmore Wallace, Harry Krop, Ph.D. (ethics discussion of forensic analysis in a sex abuse case), Deborah Reheard, Scott Adams, Jack Dempsey Pointer, and Garvin Isaacs.  You can register on-line at www.okbar.org.  Tuition is $150 and it is good for 7.5 hours including 1 hour of ethics. 

DECEMBER 13, 2006 (TULSA) & DECEMBER 14, 2006 (OKC):  Powerful Communication Skills:  Winning Strategies for Lawyers.  This is a one-woman CLE presented in its entirety by Dr. Anita Jacobs, President of The National Center for Effective Speaking in New Jersey.  Although not particularly focused on criminal defense, this program is designed to assist lawyers.  6.5 hours approved including .5 hours of ethics.  Tuition is $225 and more information can be obtained at the OBA/CLE Office (800.522.8065 or 405.416.7006).


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