Jason Lee Davis v. State, No. M-2005-0404 (Okl.Cr., September 1, 2006) (unpublished): Pro Se Representation: Davis was convicted by jury in Caddo County of misdemeanor counts of Possession of CDS and Possession of Paraphernalia. He was sentenced to one year on each count which Special Judge David A. Stephens ordered to run consecutively. Davis endured the jury trial pro se and challenged on appeal his waiver of counsel. The Court of Criminal Appeals is generally hostile to the waiver in these situations and it does not surprise me that the Court held that, even though the record contained a written waiver of counsel executed by Davis, the right to counsel nevertheless was not "knowingly, voluntarily and intelligently" waived because the record was silent as to whether the trial court ensured that Davis was made aware of the hazards of representing himself. REVERSED and REMANDED FOR NEW TRIAL.

Tenth Circuit

United States v. Gurule, No. 04-4317 (10th Cir., September 6, 2006) (Published): Carjacking; Federal Sentencing--Proportionality: Gurule was convicted by a jury of federal carjacking and, because he was found to have done so after having been convicted of two "serious violent felonies," he was sentenced to life (which is life without the possibility of parole in the federal system) under the federal "Three Strikes Law." In this opinion, the circuit affirmed the conviction and sentence over claims of insufficiency of the evidence and unconstitutional sentence. NOTE: "proportionality" challenges under the federal Constitution appear to be next to futile in light of Supreme Court precedent that found LWOP not disproportionate for a first time offender who possessed 650 grams of cocaine.

United States Supreme Court

United States v. Henderson, No. 03-1888 (1st Cir., September 8, 2006): Searches and Seizures--Traffic Stops: Extraordinary case where the circuit disregards the credibility determination of the District Court in believing the cop in a traffic stop case(!!) This is a very long opinion, and very fact-specific, but is also an amazing opinion in which the cop testified that he stopped the car for a seatbelt violation and the circuit held: "[W]e are left with a firm and definite conviction that the district court's critical finding that [the police officer] credibly testified that Henderson was not wearing a seatbelt was clearly erroneous." Denial of the motion to suppress is reversed and the conviction is vacated.

Book Review by Gary Carson

Note: I have corresponded with Gary for several years over the internet and in person and he is quite an interesting fellow. He has published books on game theory, focusing primarily on poker, and has authored and published many articles on probability, and game theory on poker and other casino games.---Ed.

Statistics for Lawyers (2nd Ed) by Michael O. Finkelstein & Bruce Levin.

The first edition of this book (1990) was very well received. Co-authored by a statistician and a lawyer, the book provides both solid law and solid statistical analysis. Much of the use of statistics in the law is applicable in civil cases, things like assessing damages, identifying causal factors, or proving discrimination often hinge on statistical interpretation.

But, statistical issues arise in criminal law also. Basic applications from basic statistical comparisons such as identifying bail risks to the classic case in courtroom calculation of probability - the case of the interracial couple in the yellow car are in the book. The second edition includes more advanced probability questions also, such as independence assumptions in DNA analysis.

If you master every topic in the book you will not need any expert consultants: you will be one. However, it is unlikely most readers will master every topic. Many readers will not master any of them. But, at a minimum, you will gain an acquaintance with topics that can be important in informing yourself about when it might be worthwhile to seek expert advice.

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)

NOTE: Trials are heating up here in Oklahoma County and elsewhere around the state. Although I hear about many of them, I cannot keep up with all of them. If you hear about a trial win let me know about it.

AMOS E. BLACK, III, Black, Zynda & Black Law Office, Anadarko, OK, secured the second bite at the apple for Mr. Davis in the case reported above. Something tells me that Mr. Davis might perhaps reconsider his decision to represent himself. Nice work, Amos!

Hearsay

EX-PROSECUTOR SENTENCED:  Ex-Prosecutor Janet Bickel entered a plea in Wagoner last Friday to drug charges and lying to a grand jury about it. She received a five year deferred sentence. She was accused of taking meth from a crime scene in Tahlequah for her own use and then covering it up. Bickel is a former prosecutor in Richard Gray's office, which includes Adair, Cherokee, Sequoyah, and Wagoner counties.

NURSE STRANGLES INTRUDER:  An emergency room nurse in Portland, Oregon, returned from work to discover an intruder in her home. The intruder was armed with a hammer. The nurse, 5 foot 7 inches tall and 260 pounds, proceeded to strangle the intruder, 5 foot 9 inches tall and 180 pounds, to death with her bare hands.

    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 18, 2006:  Oklahoma City University will hold Constitution Day. Various programs will commemorate the completion of the Constitutional Convention's work in September 1787.  The day-long event is coordinated by Marc Blitz, professor of constitutional and administrative law at OCU LAW, and Richard Johnson, chair for the OCU Department of Political Science. Activities will include a 4 p.m. screening of "A Conversation on the Constitution: Judicial Independence" featuring remarks by Justices Sandra Day O'Connor, Anthony Kennedy and Stephen Breyer. O'Connor produced and distributed the video to law schools to encourage discussion of the importance of an independent judiciary to the U.S. constitutional system and recent threats to this independence. O'Connor often emphasizes this theme. "Judicial independence does not happen all by itself. It's tremendously hard to create and it's easier than most people imagine to destroy," she said in a recent speech. The screening will be followed by a panel discussion on judicial independence featuring 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).

SUBSCRIPTIONS: To subscribe click HERE