Jackson v. State, 2006 OK CR 45 (Okl.Cr., November 2, 2006): Death Penalty; State Cases and Interrogations/Fifth Amendment:  Capital case out of Tulsa, from a re-trial, in which Jackson was convicted of Murder in the First Degree, Arson in the First Degree, and Injury to a Minor Child. He was sentenced to death on the principal charge and the Court affirmed in this opinion over several claims including: 1) jurors talking about the case during voir dire; 2) a Miranda issue in which the Court recognized a "rescue doctrine" exception to the Miranda rule, similar to the public safety exception recognized by the Supreme Court (in Jackson's case, police asked about the whereabouts of a minor child who was missing); 3) failure to give lesser-included instructions; 4) various penalty phase instruction claims; 5) sufficiency of the evidence regarding aggravators ("avoid arrest" and "great risk of death to more than one person"); 6) various evidentiary rulings: 7) the introduction of victim impact evidence; 8) vagueness of the aggravators; and 9) cumulative error.

Kendall Dewayne Carr v. State, No. F-2005-1150 (Okl.Cr., October 30, 2006) (unpublished): Jury Instructions; Allen Charge:  Convictions for Robbery by Force or Fear and False Personation (AFCF) are reversed and remanded for a new trial in this 3-2 decision on the basis that the trial court failed to give a proper Allen instruction (deadlocked jury instruction) by failing to inform the jury to not surrender their honest convictions and not to find a fact or concur in a verdict, which in good conscience any of them did not support.  There was no objection at trial but the Court found PLAIN ERROR on this issue. The standard instruction on this issue is OUJI-CR 10-11 and it thus appears that deviation from this instruction is fertile grounds for reversal. Trial judge: Hon. Lori M. Walkley (Cleveland County).

Steven Antonio Wooden v. State, No. F-2005-391 (Okl.Cr., November 1, 2006) (unpublished): Judges/Bias/Recusal; Concurrent/Consecutive Sentences: Wooden was convicted of Robbery with Firearms in two separate cases (tried together) and sentenced to 30 years on each case, to run consecutively.  The trial judge articulated throughout the case adherence to an unwritten courthouse policy of running sentences consecutively when the accused opts for a jury trial. Held: it was error for the trial judge to refuse to consider the imposition of concurrent sentences if Wooden exercised his right to a jury trial. This abuse of discretion, combined with the failure to instruct on the 85% rule, was remedied by modifying the sentences to 20 years and running them concurrently. Trial Judge: Hon. Twyla Mason Gray (Oklahoma County).

Tenth Circuit

Kikumura v. Hood, No. 06-1110 (10th Cir., October 31, 2006) (Published): In this habeas action, a federal prisoner attacked the method by which the Bureau of Prisons calculates good conduct time. The prisoner does not prevail but this opinion contains a good discussion of this issue.

United States v. Graham, No. 05-8115 (10th Cir., November 3, 2006) (Published): Guilty Pleas: After jury trial had commenced, Graham decided that the better part of valor would be to plead guilty pursuant to plea agreement which encompassed waiver of the right to appeal and a sentence of 25-years. In this appeal, the circuit affirmed over Graham's motion to withdraw his plea and over a claim that his objection to the weight of the drugs as listed in the PSR should allow him to withdraw the plea.

United States v. Hopson, No. 06-5012 (10th Cir., November 2, 2006) (Unpublished): Amber Hopson plead guilty to the theft of government property, a misdemeanor, and was sentenced to five year's probation and ordered to participate in a program of mental health treatment. HELD: the magistrate abused his discretion in ordering the mental health treatment because that condition was not reasonably related to the offense or any other relevant sentencing factor.

United States Supreme Court

HERE is an update to the U.S. Attorney's Manual regarding the Government's obligations under Brady. I cannot really see a lot of substance in this revision and anything that begins, "The Department of Justice is proud of the long record of federal prosecutors meeting or exceeding their obligation, pursuant to Brady v. Maryland and Giglio v. United States, to disclose exculpatory and impeachment evidence to criminal defendants in preparation for trial" does not exactly inspire confidence.

Victories

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

BARRY DERRYBERRY, FPD in Tulsa, won a pleasant victory for Amber Hopson in federal court, releasing her from onerous conditions of probation. Another win for Barry D.!

ROBERT JACKSON AND STEVE PRESSON, Norman, won relief for Wooden and Carr in the unpublished cases featured above. A very nice daily double for the boys from Norman!

DUI MADNESS

There has been some fine advocacy in the DUI/blood test area lately. In alphabetical order:

DANNY L. LITTLEFIELD, Jr., Pryor, represented a client charged with DUI Manslaughter. His client's blood was drawn by a paramedic. Danny challenged the blood draw as not authorized by statute. He found that the Board of Tests passed an "action" in 2001 that authorized paramedics to withdraw blood, but for some reason the Board failed to follow through with the rule-making process by publishing the action in the Oklahoma Register or sending a certified copy to the Secretary of State. The results? Judge Goodpaster in Mayes County suppressed the blood evidence (a .12).

CHRISTINA MIZIRL, OKC, won an acquittal last Thursday, November 2, 2006, in Oklahoma County by creating a reasonable doubt that her client was driving the car involved in the wreck---even though her client apparently told the police that he was driving(!!)

MIKE O'BRIEN, OKC, won an outright dismissal of a DUI in OKC Municipal Court last week. Client was under age 21 and had the odor of alcohol on his person at the scene of a wreck. BAC was .02. Mike won by arguing that City Ordinances do not have a "Youth DUI" provision, therefore there is no crime.

CHARLES & JEFF SIFERS, OKC, share some of their fine advocacy in recent cases. The details of these cases were provided to me by Charles himself and I think have some good tips and lessons on how to aggressively defend DUI cases (from one of the very best):

Fun in Municipal Court: Charles was hired by two clients in separate DUI cases in Bartlesville Municipal Court (a court not of record) earlier this year. One client was a first-time offender from Texas. The other client was a local with a class B CDL and a previous non-alcohol felony conviction. The Municipal Court in Bartlesville does not have a prosecutor. The arresting officer simply testifies before the Judge and acts as a de facto City Attorney. The judge informed Charles, almost proudly, that there was no plea bargaining in his court on DUI's; and since there was no chance of jail time, the options were to plea to the charge and receive a fine or have a bench trial. Charles opted for a bench trial in both cases. As you might expect, the trials proceeded in a somewhat different manner regarding the rules of evidence and the burden of proof like one would expect say, in a federal courtroom. Charles lost both cases.

What to do? File an appeal in the District Court and set them for trial. This action forced an actual lawyer to represent the City who moved ex parte to have the appeals stricken and called Charles, complaining about the appeals. Seems such things are never done in that neck of the woods. Charles informed the City Attorney that he was not going to settle for DUI convictions for his clients. Two weeks ago, Charles received a letter from the City Attorney offering a proposed J & S for these appeals that showed the trials had been done, a finding of not guilty to the DUI occurred, and a finding of guilt to Reckless Driving with no probation, etc. Both clients accepted. As for the license revocation administrative hearings, Charles tried both of them, winning the hearing on the client with the CDL and losing the other hearing, but securing the work permit.

Driver's License Checkpoints: About a year ago, a prior client was stopped at a "DL checkpoint" in south OKC. The client (wisely) hired Charles again.  Charles won the District Court appeal of his license revocation.  Judge Croy stopped just short of ruling the roadblock unconstitutional in his nine-page written opinion, but he did rule that the client's refusal was coerced and set aside the revocation of the license. What to do in the criminal case?  Charles filed a motion to dismiss and to suppress the refusal in the criminal case based upon collateral estoppal/issue preclusion, using the Order and the transcript of the license appeal. Charles also filed an alternative motion to dismiss, arguing the unconstitutional seizure in the roadblock, based upon the evidence contained in this Driver's License Appeal transcript.

The criminal case ended up before Judge Glen Jones. The ADA (of course) did not respond in time and argued that he had not had sufficient time to respond to the motions.  Judge Jones permitted briefing on these motions and gave the ADA time to file a Response Brief.  Jeff Sifers (recently minted lawyer) drafted the Reply and argued the motions before Judge Jones the week before last.  At the end of his verbal ruling which took close to an hour, Judge Jones (following much of Jeff's arguments) granted the alternative motion to dismiss. The bottom line:  license returned, criminal case dismissed, prosecutor livid.

The Fine Print:  Also, two weeks ago, Charles appeared before Judge Gray in Oklahoma County representing a client charged with a second felony DUI. Charles noticed that the Second Page listed two previous felony DUI convictions dated May 30, 1996. Charles moved to dismiss the case because the client could NOT legally be convicted within 10 years of his previous conviction (this argument, based upon a careful reading of the statutes, has been highlighted in the pages of the OCDW thanks to Charles). The State, represented by the same ADA who was defeated in the DL checkpoint case above, wanted to brief the issue.  Judge Gray announced that the State "was wrong on the law" and ruled that the case should only be filed as a misdemeanor. She then gave the State the opportunity to amend the existing case to a misdemeanor OR re-file as a misdemeanor. Charles objected and said that any amendment would still retain the felony case number(!) Judge Gray agreed and dismissed the case, telling the State that if it still wanted to pursue the case, it had to re-file it under a misdemeanor case number.

"PAY IT FORWARD": The Oklahoma Trial Lawyers Association donated money to the cheerleaders at Claremore High School who plan to use the money to purchase holiday meals for the less fortunate and to assist the elderly in nursing homes. Very nice thing to do.

"THE INNOCENT MAN": Here is a particularly good review of John Grisham's new book, "The Innocent Man," which chronicles the wrongful conviction of Ron Williamson in Ada, Oklahoma.

TATTOO YOU: The recent legislation legalizing tattoos in Oklahoma became effected last week. I am sure you are all thrilled that you can legally get some ink now.

RETENTION BALLOT: Here is a good article on the "election" of appellate judges in Oklahoma. There actually is no "election" of course, but rather a "retention" ballot which asks the voting public if certain judges should be retained in office. Up for retention in the Supreme Court are: Steven W. Taylor, Marian P. Opala, Yvonne Kauger, Tom Colbert, and James E. Edmondson. This article states that Oklahomans have never voted not to retain a judge.

UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER)

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).