Ferguson v. State, 2006 OK CR 36 (Okl.Cr., August 30, 2006):  Guilty Pleas; State:   Ferguson entered a nolo plea to Rape in the First Degree and was sentenced to 20 years per the plea agreement.  He claimed that when he arrived in prison he learned that the 85% rule applied in his case and he moved to withdraw his plea.  An appeal-out-of-time was granted and the Court allowed Ferguson to withdraw his plea on the basis that an accused must be advised of the range of punishment and this includes the 85% rule if applicable.

Charles Earl Lindsay v. State, No. F-2005-252 (Okl.Cr., August 30, 2006) (unpublished):  Robbery:  Lindsay was convicted of Robbery with an Imitation Firearm AFCF by approaching a woman in a parking lot and clocking her with a fake gun, causing her to fall down whereupon he stole her purse and ran.  He was sentenced to 40 years.  The Court found three errors in the case:  1)  The State failed to prove use of the firearm because the victim never saw the firearm or was in fear of a firearm; rather, she was hit with it from behind; 2) improper extra-judicial identification evidence when a police officer testified that the victim picked Lindsay out of a line-up; and 3) error in failing to instruct the jury on the applicability of the 85% rule.  The relief fashioned by the Court was to modify the sentence to 20 years rather than reverse for a new trial, which I find odd since the Court held as a matter of law that Lindsay was not guilty of the crime for which he was convicted.  NOTE:  this appears to be an issue of first impression in Robbery with an Imitation Firearm cases.  The State argued that Lindsay "used" the firearm in the robbery by hitting the victim with it; but the Court appears to hold that the firearm must be seen by the victim and cause fear.

State v. Larrie Moyers, No. S-2006-117 (Okl.Cr., August 29, 2006) (unpublished):  Selective Prosecution:  This is a State appeal and one of my favorite cases of the year so far.  Moyers worked a plea deal with the Attorney General's Office (Joel-lyn McCormick and Charles Rogers).  The plea agreement was silent regarding any attempt by Moyers to seek a sentence modification (one year review).  Moyers in fact sought, and received, a sentence modification from District Judge Tammy Bass-Jones.  As a result, the Attorney General felt that it did not receive the benefit of its bargain and filed another 26-count felony Information against Moyers.  Judge Bass-Jones issued a stern ORDER dismissing the new Information on the basis of vindictive prosecution.  The State appealed and a unanimous Court affirmed Judge Bass-Jones on this issue.  Particularly instructive is the Court's affirmation that the district court is vested with unlimited jurisdiction to remedy constitutional violations by the State that do not fit into neat categories.


Tenth Circuit

United States v. Torres-Duenas, No. 06-1062 (10th Cir., August 28, 2006) (Published):  Illegal re-entry case affirmed over claims of 1) improper enhancement with a 20 year old kidnapping conviction (no plain error); 2) unreasonable sentence; and 3) no presumption of reasonableness should attach to a properly calculated Guidelines sentence (a prior panel has ruled this is the law and this panel cannot change it).

United States v. Branson, No. 06-3038 (10th Cir., August 29, 2006) (Published):  Child Porn:  Possession of Child Pornography sentence (51 months) upheld on a "reasonableness" challenge that argued the "reasonableness" calculus must take into account the disparity between the federal sentence and a state sentence for comparable conduct.  The panel held that the Guidelines are concerned with correcting disparities among federal sentences, not between state and federal sentences for similar conduct.

United States v. Chavis, No. 05-6001 (10th Cir., August 29, 2006) (Published):  Convictions at jury trial on multiple counts of mail fraud and conspiracy to commit mail fraud are affirmed over claims of 1) denial of counsel; 2) sufficiency of the evidence; 3) failure to give a "good faith" instruction on the mail fraud counts; and 4) sentencing issues.    


United States Supreme Court

No new cases.


Other Cases of Note

Dando v. Yukins, No. 04-1691 (6th Cir., August 28, 2006):  Guilty Pleas:  This is a federal habeas case involving a nolo plea in a Michigan state court.  Dando went on a crime spree with her abusive boyfriend.  When they were caught, she confessed but also told her attorney that she had been violently and sexually abused by the boyfriend and in fact threatened if she did not accompany him at the beginning of the crime spree.  The circuit panel, in a split decision, reversed the District Court and ordered the writ granted and that Dando must be allowed to withdraw her plea in state court based upon ineffective assistance of counsel in investigating her mental health and a possible Battered Woman Syndrome defense (counsel told her apparently that an expert would cost too much money).

United States v. Cunningham, No. 05-1515 (7th Cir., August 29, 2006):  Wire Taps; Cunningham and others were convicted at jury trial of conspiracy to commit various drug offenses involving the distribution of heroin in Indiana.  Part of the Government's evidence consisted of Title III wiretaps.  As part of the evidentiary presentation, the Government presented the testimony of a DEA Agent who outlined the process of how such wiretaps are sought and approved up the chain of command.  The panel held that such evidence resulted in improper bolstering of the Government's case and was otherwise irrelevant(!)  Very sharp case to use in these situations.  


Victories

Send lawyers, guns and money, the shit has hit the fan.

--Warren Zevon, Lawyers, Guns and Money (song) (1978)


Yonder come Ms. Rosie
How in the world did you know?
By the way she wears her apron
And the clothes she wore
Umbrella on her shoulder
Piece of paper in her hand
She come to see the Guv'ner
She want to free her man, oh

--Credence Clearwater Revival, The Midnight Special (song) (1969)



JAMES L. HANKINS, OKC, shaved 20 years off the sentence for Mr. Lindsay.  I am still sort of miffed that the Court did not reverse outright and remand for a new trial since Lindsay did not as a matter of law commit the crime of Robbery with an Imitation Firearm, but what are you gonna do? 

JUDITH L. JOHNSON, OIDS, gave us some good published law in the Ferguson case to use in certiorari appeals.  Thank you, Judith!

DAVID OGLE & DEREK CHANCE, Ogle & Welch, OKC, represented a client in Oklahoma County charged with Robbery.  The State alleged that a woman employed at a store in a mall had to use a see-through purse to prevent theft.  The woman apparently had some petty cash visible in the purse and was standing in line at a store.  Client was standing by her and grabs the purse and falls down.  The defense was that client had an epileptic seizure and no intent to steal.  The rec got steadily better from Assistant DA Sam Chavers, including a deferred on the morning of trial that was rejected by the intrepid client (he must have hunkered down and raised the Black Flag).  The State called eight witnesses and rested.  During the break, Chavers apparently believed the defense theory of the case and dismissed the case(!)  Terrific result because jeopardy had attached and client was truly not guilty.  This was the first trial for Derek on the dark side (he's a transplant from the Oklahoma County DA's Office) and David reports that he did very well.  Congrats David and Derek!

JOSH WELCH & DAVID OGLE, Ogle & Welch, OKC, got the mojo working against the Attorney General's multi-county grand jury unit in the Moyers case reported above.  This is one of my favorite cases of the year so far because they won it at the district court and on appeal on an issue for which there is virtually no state court authority (selective/vindictive prosecution).  David told me they are considering moving to publish this case and I think they should.  Terrific job, Josh and David! 


Hearsay

ANOTHER ATTORNEY CHARGED:  Oklahoma City attorney Charles H. Holdstock was charged last week with sexually abusing three girls ranging in ages from 6 to 8.  Holdstock has always been somewhat eccentric and the charges against him (it is not clear if he has been arrested yet) come on the heels of several such allegations against metro lawyers.

OKLAHOMA EXECUTIONS:  Two Oklahoma inmates were executed last week.  Eric Allen Patton was executed last Tuesday and James Patrick Malicoat was executed two days later on Thursday, August 31, 2006.

ABORTION LAW:  Last May, Governor Henry signed into law a parental notification requirement prior to a minor having an abortion.  The law is being litigated and the Tenth Circuit has refused to stay its effect while the lawsuit proceeds.

CAMPAIGN TRAIL:  Attorney General Drew Edmondson is on the campaign trail, purportedly traveling to all 77 counties to secure his fourth term in office.  His Republican challenger is James Dunn. 
 


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.

Judge Charles S. Chapel of the Oklahoma Court of Criminal Appeals, Magistrate Judge Valerie K. Couch of the U.S. District Court for the Western District of Oklahoma and Judge Stephanie K. Seymour of the 10^th U.S. Circuit Court of Appeals.  Other sessions will discuss originalism and constitutional interpretation and the relationship between constitutionalism and the criminal justice system. Participants in these sessions include OCU professors Dennis Arrow, Julie Cowgill, Blitz and Johnson 

SEPTEMBER 19, 2006:  A colloquium will take place at the federal courthouse, in the Ceremonial Courtroom, on September 19th from 1:30 to 3:30 p.m.  The event is being sponsored by the Federal Bar Association (OKC Chapter) in conjunction with the Judicial International Relations Committee.  Five visiting Russian judges will comprise part of the panel.  The American panelists will include Professor Susan Estrich (U.S.C. Law School) and Professor Jonathan Turley (George Washington Law School).  The moderator will be Dean Lawrence Hellman (Oklahoma City University Law School).  The colloquium will address a comparison of the legal systems in Russia and the United States with respect to civil procedure and commercial litigation.  The charge is as follows:  Court Personnel:  Free.  FBA Members and Law Students/Faculty/Administration:  $10.00.  Others:  $25.00.  A membership application can be found HERE.  Anyone wishing to attend should RSVP to Rosene Coleman no later than September 11, 2006.  Her telephone number is 609-5320, and her e-mail address appears above in the "cc".  All checks should be made payable to the "Federal Bar Association" and mailed no later than September 11th to Lynn Howell, Day Edwards, 210 West Park Avenue, Suite 2900, Oklahoma City, Oklahoma 73102.

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

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 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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