Carter v. State, 2006 OK CR 42 (Okl.Cr., October 3, 2006):  Jury Instructions; Defense Requested Instructions:  Carter was only 17-years-old when he committed the murder for which he received LWOP (the opinion does not give any additional facts).  In this appeal, the Court affirmed the conviction, but reversed the sentence and remanded for a re-sentencing hearing based upon error in the trial court failing to instruct the jury on the 85% law.  The Court clarified that an error of this type is instructional error and thus reversal is not automatic unless there is a showing of a miscarriage of justice or a substantial violation of a constitutional or statutory right.  Significantly, the jury in this case sent a note specifically seeking clarification of the parole issue ("Can you clarify life?  What is the minimum # of years served before coming up for parole?) and the question was not answered by the trial court, other than the pro forma response of "you have all the law and evidence that is proper for you to consider."  Hon. Twyla Mason Gray (Oklahoma County). 

Jiminez v. State, 2006 OK CR 43 (Okl.Cr., October 3, 2006):  Plea Bargains; Ineffective Assistance of Counsel:  Jiminez was convicted by jury in Oklahoma County of several counts including Burglary in the Second Degree, Possession of Burglar's Implements, Possession of Paraphernalia, and Possession of False ID, all after former conviction of a felony.  He was sentenced to 12 years on the main charge by the Hon. Patricia Parrish.  On appeal, he alleged that his trial counsel was ineffective for failing to convey to him a plea offer from the State of five years on the main charge with everything else running CC.  The plea offer was open for a two week period prior to trial.  For some reason, trial counsel waited until the day of trial to convey the plea offer to the client, the client indicated that he wanted to accept the offer, but the prosecutor refused to accept a plea at that point because the State was ready for trial.  HELD:  trial counsel was ineffective for failing to convey the plea offer in a timely manner and he was also prejudiced because there was a reasonable probability that he would have accepted it.  The Court affirmed the convictions but modified the sentence to five years which effectively gave Jiminez the benefit of the plea bargain. 

Wesley Wayne Dodson v. State, No. F-2005-97 (Okl.Cr., October 4, 2006) (unpublished):  Jurors; Vouching:  Dodson was tried by jury in Garfield County, convicted of two counts of Rape in the First Degree (of his two step-sons), and sentenced to 50 year terms to be served consecutively.  REVERSED AND REMANDED for new trial on the basis of:  1) trial court's failure to excuse a biased juror for cause (the juror had a prior experience with sexual assault and stated that, although she could be fair in determining guilt/innocence, if she was convinced that Dodson was guilty he "would get no mercy from me"); and 2) improper vouching by the police officer (he testified that in his opinion the minor complaining witnesses were not untruthful).  Trial judge:  Hon. John Michael (retired).  NOTE:  this case is a good example of the importance during voir dire of making sure that the juror can be fair in the sentencing process as well as the guilt/innocence determination.   


Tenth Circuit

United States v. Abdush-Shakur, No. 05-3147 (10th Cir., October 4, 2006) (Published):  Speedy Trial: Abdush-Shakur was an inmate at Leavenworth and was convicted of both Attempted Murder and Possession of a handmade Knife by an Inmate in the stabbing of a correctional officer.  He was sentenced to 240 months.  The Circuit affirmed over his claims of:  1) denial of Speedy Trial; 2) exclusion of expert witness testimony on prison environments; 3) denial of his Rule 17(c) request for production of document relating to his prior altercations with the correctional officer; and 4) a Batson claim.

United States v. Nelson, No. 06-6071 (10th Cir., October 6, 2006) (Published):  Nelson plead guilty to a drug offense in federal court.  He did not file a direct appeal.  He later filed a section 2255 Petition alleging a Booker error.  The District Court denied it because Booker was not retroactive.  Nelson did not appeal this denial.  Ten months later, he filed a pleading pro se titled "Motion for Leave to Supplement Record Pursuant to Fed. R. Civ. P. Rule 15(a) & (b)."  In this pro se appeal, the Circuit construed Nelson's Motion as a successive Petition under section 2255 and thus the District Court did not have subject-matter jurisdiction in the case without prior authorization from a Tenth Circuit panel.  However, the panel treated Nelson's Notice of Appeal as a request for such authorization and denied that request.  The final insult was to deny Nelson's motion to proceed in forma pauperis which means presumably that he will have to pay to hear this bad news.              


United States Supreme Court

The Court is back in session but no new opinions yet.


Other Cases of Note

United States v. United States District Court for the Eastern District of California, No. 06-72498 (9th Cir, October 3, 2006):  Mandamus:  The Government alleged that two couples, one in California and another in Texas, transported their own children across state lines for ritualistic sexual abuse.  The defense moved for a bench trial on the basis that the only viable defense was to attack the intent element and the facts were so inflammatory that a jury would not be able to consider such a defense.  The District Court agreed!  However, the Government objected (of course) to the bench trial and the Ninth Circuit granted the Government's petition for a writ of mandamus and directed the District Court to set the case for jury trial.

DelGarza-Alzaga v. State, 2001 OK CR 30 (Okl.Cr., October 23, 2001):  Traffic Stops:  Oldie but a goodie.  Cop made a traffic stop, without a warrant, based upon information obtained from a "confidential informant" that "a woman matching Appellant's description, and driving a vehicle of certain description, arriving at an apartment at a certain time, would be carrying cocaine."  The Court found that this information was more "purely identifying information" rather than the predictive information needed to support probable cause.  The Court held:  "Without a more sufficient record of the informant's reliability, independent police corroboration, and/or other suspicious circumstances, we cannot find the officers' actions in stopping Appellant reasonable."


Victories

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



JAMES L. HANKINS, OKC, secured the new trial for Mr. Dodson up in Enid.  In sex cases involving children, always look for vouching issues if you are doing the appeal since this is often a fruitful appellate issue.  Many times, cops and prosecutors simply cannot keep themselves from doing it, and since such cases often come down to a credibility determination between the complaining witness and the accused, improper vouching is key to the conviction and you can usually show prejudice.  Also, the juror issue was interesting because the juror flatly stated that she could not be fair concerning the punishment yet Judge Michael, who I know to be a very good and conscientious judge prior to his retirement, refused to grant the motion of the defense to excuse her.

ANDREA MILLER, Oklahoma County Public Defender's Office, obtained relief in two published opinions last week(!!)  In Jiminez, she took the long road to get the client the belated benefit of his plea bargain which had the practical effect of shaving seven years off his sentence; and in Carter, a client who received LWOP will get a second bite at the apple at a re-sentencing.  Terrific work, Andrea!


Hearsay

DOMESTIC SURVEILLANCE:  The House passed a piece of legislation called the Electronic Surveillance Modernization Act recently (Thursday, September 28, 2006).  The bill allows the President to utilize warrantless surveillance following an "armed attack," a "terrorist attack," or if the President perceives an "imminent threat of attack."  A similar measure is stalled in the Senate but this just sounds bad.  In a related story, the Sixth Circuit has allowed the government to continue its domestic surveillance program in light of a ruling by U.S. District Judge Anna Diggs Taylor (E.D. Mich.) that the program is unconstitutional.   

MORE ON REP. MARK FOLEY:  Disgraced former Representative Mark Foley's congressional page scandal still has legs, continues to be a huge albatross for the GOP, and also has Oklahoma ties.  One of the congressional pages apparently is working on Ernest Istook's gubernatorial campaign here in Oklahoma and has retained Enid attorney Stephen Jones who is "reviewing" the matter.  The entire affair has become a distraction for Istook, who is trailing in the polls behind Gov. Henry.  DOJ is investigating Foley, including delving into the records kept at his congressional office.   
 
GRISHAM EXPLORES OKLAHOMA CASE:  Novelist John Grisham's first foray into non-fiction explores the 1982 rape-murder of Deborah Sue Carter in Ada.  The case garnered a measure of national attention when DNA evidence exonerated the two persons tried and convicted of the murder, one of whom, Ronald Williamson, was sentenced to death.  The DNA evidence matched another man, Glen Gore, who was a witness for the State in the original trial.  Gore has subsequently been convicted of the crime and was sentenced to LWOP.  Grisham's book, titled "The Innocent Man," comes out this week.

HUGE BUST:  Federal prosecutors in Oklahoma City obtained a huge indictment recently that accused 21 members or associates of the Walnut Gangster Crips of 85-counts of conspiracy, drug, and gun-related crimes.  Lawyers for everyone!

TSA ATTORNEY WILL NOT BE CHARGED:  The feds will not pursue any criminal charges against Carla J. Martin, an attorney for the Transportation Security Administration, who violated a court order during the trial of Zacarias Moussaoui by coaching witnesses and lying to defense lawyers.  I do not find it suprising that she will not be charged criminally, but I wonder if she has received any sanction at all.

TROUBLES IN CHICKASHA:  The tension between District Attorney Bret Burns and the Grady County Sheriff appears to be holding steady.  Burns made overtures to the Sheriff and four deputies in an apparent attempt work the case out through a plea bargain but it looks like there will be no plea bargain in the matter, at least at this point.

PRISON OVERCROWDING--CALIFORNIA STYLE:  Gov. Arnold Schwarzenegger declared a state of emergency in California's prison system, which is bursting at the seems like everywhere else.  California may now enter contracts with other states, including Oklahoma, to house inmates.  I guess that is one thing we have here in Oklahoma---plenty of space to lock people up.

 


UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER)


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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