Hello Hello
[Hola! (Hello!)]

I'm at a place called Vertigo
[Donde esta? (where are you?)]

                  ---U2


Bono must have been at the Court of Criminal Appeals lately because the State appealed questions of law in two cases and lost both of them!  Gives me vertigo.
 

State v. Deangelo Favors, No. S-2005-1067 (Okl.Cr., August 18, 2006) (unpublished):  Confrontation/Cross-Examination:  Favors was charged in Tulsa County with several counts, among them Shooting w/Intent to Kill and Kidnapping.  At the PH, the complaining witness, Roberta Verner, testified that Favors committed the crimes.  The defense wanted to call another witness, Iesha Huggins, to testify that Verner had lied and that the crimes never occurred.  The PH magistrate refused to allow the testimony of Huggins and Favors was bound over.  When the time for trial arrived, neither Verner nor Huggins were available.  The State sought to use the PH transcript of Verner's testimony and the defense sought a material witness warrant for Huggins.  Presented with this problem, Judge P. Thomas Thornbrugh held that Verner was unavailable to testify, but the fact that the magistrate had not allowed the defense to call Huggins at the PH, and Huggins could not be secured as a defense witness at trial, rendered the use by the State of Verner's testimony at the PH inadmissible as a violation of the defendant's right to confront his accusers(!)  The State appealed and COCA affirmed Judge Thornbrugh.      

State v. Michael Ray Roley, No. S-2005-702 (Okl.Cr., August 23, 2006) (unpublished):  Confrontation/Cross-Examination:  Roley was charged in Creek County with Child Abuse.  The State did not present either of the child complaining witnesses at the PH, choosing instead to present testimony from a cop and a social worker relaying statements by the children evidencing abuse (over objection).  The PH magistrate made no finding that the children were unavailable to testify.  Judge April Sellers White sustained the defense Motion to Quash(!)  COCA affirmed, holding that the constitutional right to confront accusers does apply at the PH and that the probable cause determination at PH must be based upon competent evidence, i.e., evidence that is admissible properly under the Constitution and the rules of evidence.  The State sought a rule in child abuse cases that would allow the child to not testify at PH and the Court rejected this idea.      
 
Kenneth Lee Rawlins v. State, No. F-2004-866 (Okl.Cr., August 17, 2006) (unpublished):  Jury Instructions/Lesser-Included Instructions:  The Rawlins brothers were tried in three separate cases way down in Love County.  They were accused of Shooting with Intent to Kill, but Kenneth Rawlins was ultimately convicted in one case of Assault and Battery with a Deadly Weapon when the trial judge, Hon. John Skaggs, instructed the jury on this crime as a lesser-included offense.  The appellate court affirmed two of the cases but reversed and remanded for a new trial the third case, holding that Judge Skaggs committed error when he instructed the jury, over objection by the defense and without a request from the State, that Assault and Battery with a Deadly Weapon was a lesser-included offense of Shooting with Intent to Kill.  Here is the bit of intellectual dishonesty by the Court that is very puzzling:  the Court purported to overrule Elder v. State, 1988 OK CR 96, 755 P.2d 690, on this issue(?!)  Rawlins is an unpublished case that purports to overrule a published decision on a rule of law.  Sometimes the Court just does things that cannot be explained in a rational manner and this appears to be one of them. 

Coddington v. State, 2006 OK CR 34 (Okl.Cr., August 16, 2006):  Death Penalty; State Cases:  Coddington became trapped in the clutches of drug addiction which lead eventually to a prodigious robbery spree and murder to obtain money for drugs.  He had priors and confessed which resulted in a conviction for murder and a death sentence.  However, problems arose in the penalty phase.  Coddington's mother was incarcerated in federal prison in Texas and was in ill health.  The parties traveled to Texas to take her videotape deposition before she died.  At trial, the State objected to the use of the actual videotape and wanted the transcript of the deposition read to the jury, over defense objection.  The Court held that in capital sentencing proceedings the Oklahoma statutes, archaic statutes passed in 1910, governing such proceedings, must give way to the rights of a capital defendant to present mitigation evidence.  The statutes appear to say that "reading" the testimony to the jury is the way such evidence is to be presented at trial, but of course, there were no such things as videotapes in 1910.  REVERSED and REMANDED for a new sentencing proceeding.  Trial Judge:  Hon. Jerry Bass (Oklahoma County).

Hooper v. State, 2006 OK CR 35 (Okl.Cr., August 18, 2006):  Death Penalty; State Cases:  Hooper's capital case has been through the state and appellate process before the Tenth Circuit eventually remanded for a new sentencing hearing.  At this point, however, Hooper essentially volunteered for the death penalty, choosing to waive a jury at his re-sentencing, the right to present mitigating evidence, and the right to direct appellate review.  Hooper was found competent to waive these things and the case resulted in a predictable imposition of the death penalty again by Judge Edward C. Cunningham in Canadian County.  Not much good news from this opinion but if you represent a "volunteer" this case outlines the strict procedures in such cases.


Tenth Circuit

United States v. Schuler, No. 05-8067 (10th Cir., August 14, 2006) (Published):  Mail fraud case where Ms. Schuler engaged in an enterprising scheme to target persons in a demographic likely to have bad credit.  The scheme, advertised in the classified sections of such stellar publications as The Star, The Weekly World News, and the National Enquirer, promised unsecured credit cards but did not deliver.  Her multiple convictions are affirmed in this case over several claims, most notably a sufficiency of the evidence claim in which the Circuit analyzed the elements of federal mail fraud.

United States v. Zhang, No. 05-3341 (10th Cir., August 14, 2006) (Published):  Possession with intent to distribute ecstasy conviction is affirmed over a sufficiency of the evidence claim.  Ms. Zhang was speeding and weaving on I-70 in her Lexus.  She was pulled over, was nervous, consented to a search, and when it came time to check some packages in the trunk she jumped into the car and took off, eventually crashing the car and injuring her passenger.  I am not really sure why this case was published other than a decent discussion of "flight" evidence used to establish circumstantial evidence of guilt.

United States v. Bruce, No. 05-2150 (10th Cir., August 15, 2006) (Published): Jury Instructions; Lesser-Included Instructions:  Bruce got into a nasty domestic dispute with his girlfriend and mother of his four children and beat her up severely in a trailer house in New Mexico.  He was indicted and convicted of two counts of Assault with a Dangerous Weapon with Intent to do Bodily Harm and one count of Assault Resulting in Serious Bodily Injury.  The Circuit affirmed his convictions over a claim that he was entitled to a lesser-included instruction, but reversed a special condition of supervised release that involved consent to search his person and property while on probation because the District Court did not give Bruce proper notice of imposition of the condition.  The opinion contains a good discussion of lesser-included offense instructions in the federal system.

United States v. Copeman, No. 04-7099 (10th Cir., August 16, 2006) (Published):  Copeman proceeded pro se for the return of property seized in connection with is federal criminal prosecution.  Unfortunately for him, the property is in the custody of state authorities and the Circuit in this opinion limits the use of "constructive possession" by the federal government for purposes of persons seeking the return of property under Fed. R. Crim. Proc. 41(g).  The Circuit basically told Copeman that he has an adequate remedy at law within the state courts and the federal District Court did not err in denying his post-conviction motion for the return of property.

United States v. Hernandez-Garduno, No. 04-2224 (10th Cir., August 21, 2006) (Published): This case actually involves three separate illegal re-entry convictions in which each defendant had a prior conviction for third-degree assault which is a misdemeanor under Colorado law but may be a crime of violence for sentencing purposes in federal court.  The opinion trudges the morass that has become federal sentencing and the seemingly disparate definitions of a "crime of violence" and a "felony" under the Guidelines.  Ultimately, the Circuit remanded all three cases for re-sentencing.

United States v. Cordova, No. 05-6093 (10th Cir., August 22, 2006) (Published):  In this revocation of supervised release case, the Circuit holds that the accused is not entitled to an indictment by a grand jury, to a jury trial, or to fact finding using the beyond a reasonable doubt standard.

United States v. Gruber, No. 04-7101 (10th Cir., August 22, 2006) (Unpublished):  An FBI agent chased a suspected bank robber on foot and the two of them eventually ended in a stand-off between a car, each visible to the other from the waist up.  The FBI agent drew down on Gruber and told him to keep his hands up.  Gruber did so at first but then dove down, was shot in the neck, and when they rolled him over there was a handgun under his body.  The FBI agent at no time saw the handgun during the encounter.  Under these facts did Gruber "use" the handgun to resist the arrest?  The split panel says "no" because there was no evidence of affirmative, active use of the gun by Gruber.

United States v. Paredes, No. 05-4081 (10th Cir., August 22, 2006) (Published):  37-month sentence for various fraud counts is affirmed over claims of improper enhancement for relocation of a fraudulent scheme, reasonableness, and Booker issues.

United States v. Knox, No. 06-2007 (10th Cir., August 24, 2006) (Unpublished):  Federal Sentencing Guidelines; Juvenile Convictions:  This case is instructive regarding the use of juvenile convictions to enhance sentences under Guidelines.  Juvenile firearms convictions were used to enhance in this case and the Circuit panel found not error.  Good discussion of the legal rules governing such matters.

United States v. Garcia, No. 05-4031 (10th Cir., August 25, 2006) (Published):  Conditional plea in a drug case involving a search issue.  Garcia was present at an apartment when police entered, with consent of one of the renters, to check on a child.  The police had conducted surveillance on the house and noticed what appeared to be drug transactions and gang involvement.  Garcia, who made no threatening gestures nor sported any gang tattoos was patted down and drugs were found on his person.  The circuit found reasonable suspicion under the facts of the case and this conclusion seems reasonable.


United States Supreme Court

No new cases.


Other Cases of Note

United States v. Jenson, No. 05-50683 (5th Cir., August 23, 2006): Searches and Seizures; Traffic Stops:  Solid traffic stop winner where a denial of a Motion to Suppress was reversed and remanded with instructions to enter judgment of acquittal.  Jenson was stopped for speeding at 11:00 p.m.  The trooper testified that it took between 30 seconds and one minute for the van to come to a complete stop.  Inside the van was Jenson (the driver) and two others.  All license checks were returned clear.  Jenson was nervous even though he was getting only a warning ticket.  Two minutes after the license checks cleared, the trooper asked Jenson for permission to search the van which was granted.  However, prior to searching the trooper told Jenson that he would need to conduct a pat-down frisk and at this time Jenson became upset and complained of harassment.  The trooper drew down on Jenson and conducted the frisk anyway which revealed a gun which was bad for Jenson because of his prior felony conviction.  A bag of marijuana was also found in Jenson's sock when they arrived at the jail.  The Circuit held that although the initial stop for speeding was lawful, the subsequent actions of the trooper, including the request to search and the pat-down of Jenson, were not reasonably related to the circumstances justifying the stop.  In addition, the Circuit held that the consent was not valid because there was no evidence that it was an act of free will since Jenson was not told he was free to leave and there was no evidence that his driver's license was returned to him. 

In Re:  James Lee Henderson, No. 06-40320 (5th Cir., August 23, 2006):  Habeas Corpus; Second/Successive:  The Circuit allows Henderson leave to file a successive habeas petition on a mental retardation claim under Atkins.  

Bell v. Bell, No. 04-5523 (6th Cir., August 25, 2006): Prosecutorial Misconduct; Brady Issues:  Old-fashioned Brady winner in a non-capital habeas case where the prosecution did not reveal that, in a murder case, the State's key witness approached the prosecutors looking for a favor, the prosecutor dismissed four cases against the witness, and the prosecutor wrote a letter to the parole board on behalf of the witness.  This case contains a good discussion of "tacit agreements" between prosecutors and State witnesses.


Victories

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



CINDY BROWN DANNER, OIDS, rebuffed the State last week when it tried to get by a PH without calling the complaining child witnesses in the Roley case.  Also instrumental in protecting the record in the case was trial counsel James Dennis, out of the OIDS Sapulpa Office.  Excellent work Cindy and James!

ANDREA DIGLIO MILLER & EMMA VICTORIA ROLLS, Okla. Co. Public Defender's Office, won a re-sentencing in the Coddington case, giving Mr. Coddington a shot at living a while longer.  Capital case victories always deserve some praise.  Terrific job Andrea and Emma!   

LEE ANN JONES PETERS, OIDS, secured some relief for Kenneth Rawlins down in Love County in one of his cases (which makes a difference when the sentences are running wild).  Even more amazing, she convinced the Court to overrule a published opinion in an unpublished opinion!  More amazing work from Lee Ann!

PAUL ANTONIO LACY, Federal Public Defender's Office (OKC), won a federal jury trial in May in a counterfeiting case and then won another one last week(!)  In the first one, the client had received some coins from his father but it turned out the coins were not genuine old, rare, gold coins.  However, mere possession of counterfeit money is not a crime; the person must possess with the intent to defraud.  In this case, the Secret Service contacted client about selling the coins and during these conversations all parties knew about the coins being fake and client made no effort to hide that fact.  Client testified that he just tried to sell fake coins, as fake coins, which is not a crime.  In the second case, client and a bunch of his friends printed some bills in their apartment for the purpose of playing craps because the money, even fake, made it more exciting.  Tony reports that he was pleasantly surprised when some government witnesses collapsed and told mis-matched and contradicting stories--clearly off-script and divergent from what was in the police reports.  Apparently one of the kids went off the reservation so to speak and tried to purchase something with the fake money, but the craps story apparently carried the day.  Excellent trial work by Tony and he told me that more federal cases such as these should probably be tried.  Good work, Tony!  

STUART SOUTHERLAND, Tulsa Co. P.D., defended Mr. Favors admirably in the case outlined above and rebuked the State's appeal, based upon what appears to be a very good record below preserved by Aaron Goodman at the P.D.s Office.  Very nice, Stuart and Aaron! 


A NOTE ABOUT CONFIDENCE AND RESOLVE:

The Greg Hunt case issued by the Tenth Circuit recently and showcased in the last issue is a good example of how a client with resources, resolve, and lawyers with these things can vindicate his rights in the federal system.  I represented Greg briefly in both his criminal case and parallel civil proceedings stemming from the bankruptcy of the Co-op and he simply never flinched in the face of the federal prosecution.  He was convicted at a jury trial, lost on direct appeal but won on habeas, was re-tried and re-convicted, and then prevailed on direct appeal in the Tenth Circuit in a way that precludes re-trial:  all the while remaining free on bond.  The case is extraordinary and shows us all that citizens can prevail and that the Constitution does in fact work if we remain strong and confident in the face of the prosecution.

The lawyers who populate the Victories section of this weekly have found themselves charged with representing clients in these tough circumstances and, for whatever reasons, have simply stiffened their backs and refused to back down.  I think all of us, from time to time, should embrace this attitude and really take heart that there are many of our brothers and sisters in the law who have cleared the path.  Whether it is the righteous indignation of Garvin Isaacs, the cunning of Stephen Jones, the obstinance of David Autry to concede anything to the State, or the gunslinger mentality of J.W. Coyle, these lawyers and others like them have shown us that hard work, steely resolve, and a little luck is the pathway to success. 

I particularly like Coyle's attitude in approaching cases.  Many times I have heard him walking down the hallway with one of us trying to convey the State's plea offer in a case and he interrupts every time with, "I don't care what the State's plea offer is, what is justice in this case?"  Sometimes these cases are generated by a truly innocent client or, more often I suspect, government conduct which simply must be exposed and addressed.  When these cases come along, the client needs a lawyer who is willing hoist the black flag in a figurative sense as articulated by the American journalist and social critic H.L. Mencken (1880-1956):  "Every normal man must be tempted, at times, to spit on his hands, hoist the black flag, and begin slitting throats." 

The reference to the Black flag was generated originally, as far as I know, by the sixteenth century playwright Christopher Marlowe who described the tradition of his character, Tamburlaine the Great, in laying siege to cities by vesting his encampment in white, signaling that surrender would be met with mercy, then with red on the second day to show his anger and resolve that he would spare women and children only; but on the third day, with no capitulation by the target city, all was black and mercy shown to none.  The Messenger in the play described this method to the elder of one of the cities as follows, trying in vain to underscore the resolve of Tamburlaine and the danger to the city:

Pleaseth your mightiness to understand,
His resolution far exceedeth all.

The first day when he pitcheth down his tents,
White is their hue, and on his silver crest
A snowy feather spangled-white he bears,
To signify the mildness of his mind,
That, satiate with spoil, refuseth blood:

But, when Aurora mounts the second time,
As red as scarlet is his furniture;
Then must his kindled wrath be quench'd with blood,
Not sparing any that can manage arms:

But, if these threats move not submission,
Black are his colours, black pavilion;

His spear, his shield, his horse, his armour, plumes,
And jetty feathers, menace death and hell;
Without respect of sex, degree, or age,
He razeth all his foes with fire and sword.

-----From Christopher Marlowe's, Tamburlaine the Great (1587), Part 1, Act IV, Scene I

So, when that case appears at your door in the form of that client who refuses to buckle, and it comes time to hoist the black flag, know that others have done it before you and you can do it, too, with resolve, confidence, a lot of hard work and preparation and a little luck.


Hearsay

SCHEDULED EXECUTIONS AROUND THE COUNTRY:  Below are the executions scheduled for the month of August.  NOTE that James Malicoat received a rare 30-day reprieve from Governor Henry because of an odd situation:  he is a witness in another death-row inmates case involving an insanity issue and is needed to testify (apparently the State objected to a video deposition or some such).