Jesse Allen Cheshire v. State, No. F-2004-1229 (Okl.Cr., October 11, 2006) (unpublished):  Confrontation/Cross-Examination:  Cheshire was convicted by a jury of two counts of Child Sexual Abuse and sentenced to eight years on each count.  Judge Willard Driesel of Bryan County ordered the sentences to be served consecutively.  This is another case REVERSED and REMANDED for a new trial on the basis that two social workers were allowed to testify to hearsay by the minor complaining witnesses where neither of the minor complaining witnesses testified at trial.  The Court found a violation of the right to confront and cross-examine and also found that the error was not harmless because the minor complaining witnesses named initially someone other than Cheshire as the perpetrator and subsequently recanted the allegations against Cheshire(?!)  Although there is presumably more to the story than what is contained in the short, summary opinion, it makes me wonder what is going on in Judge Driesel's courtroom that he could allow a conviction under those circumstances.


Tenth Circuit

United States v. Pettigrew, No. 05-2187 (10th Cir., October 12, 2006) (Published):  Interrogations/Fifth Amendment:  Pettigrew was convicted by jury of involuntary manslaughter and other counts stemming from a drunk-driving accident.  The Circuit had originally affirmed, but in this case, the Circuit granted rehearing to address certain sentencing issues and affirmed again.  The prior opinion addressing the Miranda issue (allowing his statements) remains intact (holding that a third inculpatory statement, voluntary in fact, is admissible when the statement was unsolicited and followed a voluntary statement made in violation of Miranda).



United States Supreme Court

No new cases yet from the Court's brand new term, but the Court has been busy listening to the arguments of counsel in the cases where certiorari had previously been granted.  The Court's certiorari practice puzzles me.  I file certiorari petitions with some regularity in the capital habeas cases I have and also in some of the non-cap cases when the clients can afford it.  Trying to figure out what types of issues will catch the attention of four Justices is an arduous task and, I am becoming more inclined to think, a crap shoot.

Now, I like shooting craps, but some of the cases the Court chooses to review do not make sense to me.  For example, the Court last week heard oral arguments in a case from the Ninth Circuit where family members of the victim in a murder case attended the trial wearing buttons that depicted the deceased.  The Ninth Circuit reversed the conviction in the case and the Supreme Court apparently thought this issue was important enough to review out of the 8,000+ petitions the Court receives every year.  I do not understand this.

The case is really about application of the AEDPA deference standard to be applied by federal courts to the decisions of state courts.  The issue is whether, in the absence of a specific Supreme Court case on point---and there is no such case from the Supreme Court regarding buttons---can a federal court of appeals say that a state court decision was contrary to clearly established federal law?  

This, to me, is a marginal issue, and the Court chose a marginal case to address the marginal issue.  The Court's limited resources and time should be spent on deciding the profound issues of the day that affect the administration of justice in the country as a whole; yet, it plucks this "buttons" case from the sludge pile of certiorari petitions, grants certiorari, and schedules oral argument in the case with a full published opinion to follow.

As the Court listened to the oral argument in the buttons case, there remains a true circuit split in the federal courts of appeals whether federal Criminal Justice Act money can be spent on lawyers to defend state death row inmates in state clemency proceedings.  In some circuits the capital prisoner gets counsel and in some circuits he does not, the circuits are split, and it makes a big difference in the administration of the death penalty and also in the administration of thousands of federal dollars; yet, the Court has refused to take this issue for decision, apparently in favor of other issues such as the buttons case.

The grant of certiorari alone is usually the kiss of death to any criminal case out of the Ninth Circuit, but I am dismayed that such a quirky factual issue gets the special treatment of full consideration by the Supreme Court.  There was no circuit split, no conflict among the state courts of last resort, nor any conflicts between the federal courts and the state courts on this issue.  If I was an oddsmaker I would set the line at about 100-1 against that the Ninth Circuit decision survives review in the Supreme Court on this issue.  The Court should probably summarily reverse in a per curiam opinion and turn its attention to something important.  But, that is just my opinion.

On the bright side, do not be shy about recommending a certiorari petition to your clients if they want to pursue the matter because you can tell them, truthfully, that whatever issue they have, it probably has as much a chance at getting review as any other. 


Other Cases of Note

Knock-and-Talks:  Tom Salisbury has reminded me about the power of state constitutions.  The state appellate courts are free to construe state constitutions as providing more protection to citizens and more restrictions on the action of police.  You might be surprised at how many states, and in how many situations, this has been done in published opinions.

One example is the dreaded "knock and talk."  Police pretty much have a free hand at approaching citizens and asking to discuss a case or seek consent to search.  However, when police approach the home of a citizen, some state courts have re-evaluated the federal rule that the police are not required to inform the citizen that he/she may refuse consent.  The federal constitution does not require police to inform the citizen that he/she may refuse consent, but if police attempt a "knock and talk" in certain states without informing the citizen of the right to refuse consent, any evidence obtained will be suppressed.  This is the rule under the state constitutions in:

Arkansas:  State v. Brown, 356 Ark. 460, 156 S.W.3d 722 (2004).

Mississippi:  Graves v. State, 708 So.2d 858 (Miss. 1997).

Washington:  State v. Ferrier, 136 Wash.2d 103, 960 P.2d 927 (1998).

The Oklahoma Court of Criminal Appeals has not confronted this issue as far as I am aware.  If you have a "knock and talk" case be sure to raise this issue in the district court and then again if you must pursue relief in the Court of Criminal Appeals.

United States v. Hoover, No. 05-30564 (5th Cir., October 10, 2006):  Constructive Amendment:  Hoover had a 90% interest in a family-owend car dealership.  FBI Agent Bill Chesser executed a search warrant at the dealership, inquiring about the practice of "double floorplanning" whereby a single car is used as collateral for more than one loan.  Hoover drove there and spoke to Agent Chesser, eventually telling the Agent that one of the employees who complained about the practice was the "one and only person who had raised double floorplanning to him as a[n] issue of the business."  This statement formed the basis for the prosecution of Hoover for false statement to a federal agent (this was one count of a mulit-count Indictment).  The panel reversed and remanded on the basis of "constructive amendment" whereby the jury instructions allowed the jury to convict Hoover on a basis not announced in the Indictment.


Victories

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



PAUL A. "TONY" LACY, Federal Public Defender (W.D. in OKC), last Wednesday, October 11, 2006, put the government to the test and did not even have to wait for the jury to acquit his client because the judge did it for him(!)  Tony's client, a retired Deputy United States Marshal, was charged by Indictment with cockfighting in Indian Country.  The U.S. Attorney's Office for the Western District recused, as did the judges, and Judge Ronald White from Muskogee was assigned the case.  At the conclusion of the government's evidence, Judge White granted Paul's Motion for Judgment of Acquittal.  Tony reports that Judge White gave his client a fair trial and made the proceedings pleasant for everyone, including the jury.  The government's case began to unravel the week before trial when one of the government's witnesses recanted the identification of the client.  That count was dismissed.  By the time of trial, the government's case fell apart further when witnesses did not testify in conformity with their interview reports and the government had no other direct evidence of the client's involvement in the dastardly crime of cockfighting.  Way to go, Tony!  NOTE:  This is the THIRD federal jury trial in a row that Tony has won either by outright acquittal or Rule 29 Motion(!!!)  We need a name for that.  In hockey it is called a hat trick, but I do not know what to call it in the world of criminal defense.  Any ideas?   


STEVEN N. PRESSON, Norman, made sure that the Sixth Amendment rights of Mr. Cheshire were fully protected, even though Judge Driesel did not, in the case reported above.  Nice work once again, Steve! 

ROBERT L. WYATT, IV, AND GLOYD MCCOY, OKC, won a dismissal of a 14-count federal indictment for receipt, distribution and possession of child porn.  The dismissal came as a result of an enterprising suppression issue.  The search originated in Virginia (search of AOL accounts) and extended to Oklahoma based upon the Virginia search.  In a quirky twist of fate for the client, a state court judge apparently issued the search warrant because the full-time federal magistrates were attending a conference.  This is allowed under federal law, but the magistrate must be qualified and must be sworn as a part-time magistrate.  This was not done, Bob and Gloyd, caught it, and the government was left with a void search warrant (the magistrate had no jurisdiction to issue the warrant).  Sharp lawyering!


Hearsay

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ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues are available at www.ocdw.com. OCDW accepts no money from sponsors and Mr. Hankins is solely responsible for its content. OCDW is designed by Patty Hankins and FullPace Web Solutions.