Note:  I checked the cases at COCA last Wednesday and did not see any unpublished opinions of note.  However, the Court generally releases opinions late Friday afternoons and I am aware of at least one unpublished opinion involving a reversal based on battered woman syndrome defense.


In the Matter of M.B., 2006 OK 63 (Okl., September 12, 2006):  Juvenile/Youthful Offender:  This is a question of appellate jurisdiction, summed up by the Oklahoma Supreme Court as follows:   "The dispositive issue presented is whether the Court of Criminal Appeals has appellate jurisdiction to review a juvenile court's order extending jurisdiction over a youthful offender to age twenty in the absence of a pre-birthday review hearing. We determine that it does and that the cause should be transferred to it."  This is a unanimous opinion by Justice Kauger which graces us with the word "lacunae" which means an empty space or missing part.

Browning v. State, 2006 OK CR 37 (Okl.Cr., September 14, 2006): Death Penalty; State Cases:  Capital post-conviction case affirmed over several issues, but noteworthy because the Court re-affirms that claims of ineffective assistance of counsel are now reviewed de novo in capital post-conviction cases pursuant to clearly established federal law under Strickland.


Tenth Circuit

Torres v. Lytle, No. 05-2103 (10th Cir., September 12, 2006) (Published):  Sufficiency of the Evidence:  Solid winner in a non-capital habeas case out of New Mexico in a witness intimidation case where Torres did not intimidate the witness relating to a felony case as required by statute, but rather relating to a misdemeanor case.  

United States v. Guerrero-Espinoza, No. 05-8031 (10th Cir., September 13, 2006) (Published):  Searches and Seizures; Traffic Stops:  Finally, a good decision from the Circuit in a traffic stop case, this one involving the notorious Trooper Ben Peech from Wyoming.  Peech stopped a car for speeding.  The owner of the car was riding as a passenger and another person was driving.  Peech took the driver back to the patrol car, issued a warning and returned his driver's license.  However, he went back to the car and questioned the owner, ultimately asking for, and obtaining, consent to search.  The Circuit held that this encounter was not consensual because, although Peech had returned the DL to the driver, the owner had no indication that he was free to leave.


United States Supreme Court

The term of the Court begins the first week of October, 2006.  HERE is an interesting link to the cases to be argued and the cert grants, along with the question to be decided.  There are quite a few criminal cases on the Court's docket. 


Other Cases of Note

United States v. Jimenez, No. 04-51225 (5th Cir., September 12, 2006):  Confrontation/Cross Examination:  Federal conviction of Conspiracy to Possess w/Intent to Distribute (Cocaine) where the District Court would not allow the accused to question the narc about his exact location when he allegedly saw her dealing drugs from her front porch.  The error was not harmless and the conviction is reversed.  This is one of my favorite confrontation cases in recent months.  The narc testified first that he was parked in the street and saw the drug transactions with binoculars.  When the defense tried to pin him down he refused to say where he was exactly.  This naturally lead to a heated bench conference at which it was finally determined that the narc was actually inside the home of a confidential informant and did not want to reveal the location.  The Circuit said tough!

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)



JOHN W. COYLE, III, and BILLY COYLE, OKC, won an acquittal last week for a former Lawton policeman, Anthony Aguilera, accused of Assault and Battery with a Dangerous Weapon.  Aguilera, since fired, shot a suspect in the back during a drunk-driving stop.  The suspect survived.  In 2001, Aguilera shot and killed another suspect described in the press as "an unarmed drunk man" but Johnny was able to keep that out.  Another trial win for JW, who has tried close to two hundred jury trials in this state.  Congrats, Johnny! 


NOTE:  I am aware generally of two other victory stories but have very little detail.  The first involves Doug Friesen who won a jury trial last week in front of Judge Savage in Oklahoma County in a child molestation case.  The second involves David McKenzie in a murder trial before Judge Twyla Mason Gray in which she apparently granted a demurrer and dismissed the case(!!)  If anyone has more details on these cases I would like to hear about them.
 

Hearsay

BIZARRE POLICE BEHAVIOR:  Two Healdton, Oklahoma, police officers have been fired and apparently charged in state court for shooting a woman with a pellet gun for sport while both were on duty.  The woman had an outstanding arrest warrant for bogus checks in another county and the two officers gave her the option of avoiding arrest if she ran around the police car and let them shoot her with a pellet gun.  Unreal.

WYATT "BEST LAWYER":  Robert L. Wyatt, IV, made it into the publication The Best Lawyers in America 2007.  I have not verified this but the article linked says:  Robert L. Wyatt IV, of Oklahoma City, recently was selected by his peers for inclusion in The Best Lawyers in America 2007.  Wyatt's practice is limited to criminal defense in state courts throughout Oklahoma and in federal courts nationwide.  Wyatt practiced in Enid with Stephen Jones from 1989 to 2000.  Congrats, Bob!



    UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER)


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).


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