State v. Franks, 2006 OK CR 31 (Okl.Cr., July 26, 2006):  Specific v. General:  This is one of my favorite cases of the year.  Franks shoplifted at Dillard's in Tulsa.  Unfortunately, he had several prior convictions for shoplifting.  The State charged him with the felony of Petit Larceny, AFC Petit Larceny.  Franks filed a Motion to Quash which asserted that the appropriate charge was the more specific crime of larceny of merchandise from a retailer, second offense, which is a misdemeanor.  The trial court agreed and the State appealed.  HELD:  Affirmed.  Prosecutorial discretion to choose which charges to bring must yield to the legislature's determination of specific legislation governing criminal acts.  NOTE:  The trial court treated the Motion to Quash as timely because, although a defendant's plea at the arraignment usually waives challenges to the Information, Franks stood mute and did not enter a plea (the court entered the not guilty plea for him). 

Dodson v. State, 2006 OK CR 32 (Okl.Cr., July 26, 2006):  Searches and Seizures; Search Warrants; Anticipatory Warrants:  Intriguing case holding "anticipatory search warrants" unlawful under Oklahoma statutes.  A drug interdiction officer used a dog at FedEx and the dog alerted to a package that contained drugs.  Cops drafted a search warrant application to search upon delivery of the package (a cop posed as the FedEx driver and delivered the package).  The warrant was issued contingent upon delivery of the package.  This was an illegal anticipatory search warrant.  NOTE:  Such warrants do not violate the United States Constitution (there is a SCOTUS opinion directly on point) nor do they violate the Oklahoma Constitution; rather, the holding was based on state statutes.  The Court made an effort to encourage the Legislature to look at this issue, so this opinion may be short-lived.


Tenth Circuit

United States Supreme Court

Still quiet in D.C.


Other Cases of Note

United States v. Brathwaite, No. 05-10384 (5th Cir., July 31, 2006):  Interrogations/Fifth Amendment:  Old fashioned Miranda winner where police arrested Brathwaite during a sting and at the scene asked him, "Where are the guns?"  No warnings were given and he told the police where the guns were stored in his house.  NOTE:  Only the statements are suppressed; the guns are not per recent SCOTUS authority.

Getsy v. Mitchell, No. 03-3200 (6th Cir., August 2, 2006):  Death Penalty:  Enterprising decision in a 2-1 opinion vacating the death penalty under unusual facts and on the basis that the death penalty was imposed in an arbitrary manner in violation of Furman.  The case was a murder-for-hire initiated by a man named Santine.  Santine hired Getsy and two others to commit the murders and Getsy was the trigger-man.  The other two plead out in exchange for dismissal of the Bill and Santine and Getsy went to trial.  Santine was 35-years-old and clearly the more culpable of the two; yet, the jury acquitted him of the "murder for hire" part which made him ineligible for the death penalty so he was sentenced to life.  Getsy was 19-years-old and his jury found the "murder for hire" part and sentenced him to death.  The majority found that the inconsistent jury verdicts and the comparative culpability of the principals made the death penalty unconstitutional as applied to Getsy.

United States v. Washington, No. 06-1220 (8th Cir., August 1, 2006):  Searches and Seizures; Traffic Stops:  Solid winner out of Nebraska where the police officer stopped a car for "vision obstruction" when he noticed that the windshield had a long crack.  The Nebraska statute prohibits hanging things in cars that obstruct the driver's clear view of the road, but the court held, and the government conceded, that driving with a cracked windshield does not violate the statute.  Thus, the officer made a mistake of law and effected the stop with no legal justification.  Motion to suppress should have been granted.


Victories

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



JOHN DAVID ECHOLS, Tulsa, put the kibosh on anticipatory search warrants in our state in the Dodson case.  Very nice, John!

STUART SOUTHERLAND, Tulsa County P.D., scored a nice appellate win in the Franks case reported above.  Solid work, Stuart!



Hearsay

JEROME A. HOLMES, Crowe & Dunlevy, was confirmed by the Senate on July 25, 2006, to take a seat on the United States Court of Appeals for the Tenth Circuit.

COMPENSATION FOR WRONGFUL CONVICTIONS is tough to come by.  This article is interesting and discusses a California case where an inmate served eight years in prison before DNA evidence exonerated him of a rape conviction, as well as a similar Oklahoma case involving former inmate Arvin McGee who was awarded civil damages of $14.5 million.   I never heard of this case.  Anyone have any details?

THE GARFIELD COUNTY BAR ASSOCIATION raised money recently for 27 air conditioners for those in need in the Enid area.  Kudos to the lawyers who helped out.

OKLAHOMA LAWYERS have volunteered to assist in the legal defense of an Algerian detainee at the Guantanamo Bay Naval Base in Cuba.  The lawyers mentioned in the article were Craig Hoster with Crowe & Dunlevy (Tulsa) and Terry West, Shawnee.  Kudos to both of them.

EXECUTION BY THE CHAIR:  A condemned inmate in Virginia was executed recently by electrocution.  Apparently, Virginia law allows the inmate to choose the execution method and Brandon Wayne Hedrick chose to go out old school. 



UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER):

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.  

SEPTEMBER 29, 2006:  The Federal Bar Association's First Annual Golf Tournament will take place at SilerHorn 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.




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