Amendments to Jury Instructions, 2006 OK CR 26 (Okl.Cr., July 19, 2006):  The Court modified a substantial number of jury instructions in this Order.  These modifications should appear on the Court's web site, but if you have a trial coming up immediately (within the next few weeks) you might want to take a look.   

Sporn v. State, 2006 OK CR 30 (Okl.Cr., July 19, 2006):  Habeas Corpus; Procedural Default:  Sporn had his suspended sentences revoked.  He appealed.  The revocations were affirmed.  He pursued his claims in post-conviction proceedings, alleging for the first time that he received ineffective assistance of trial counsel at the revocation hearing.  The Court affirmed the general rule that failure to raise the IAC claim on direct appeal waived it.  The opinion was published to address the contrast between the Court's rule and that used in the federal system.  The feds view IAC claims as deserving extra-record development and thus have rules that such claims must be brought in post-conviction proceedings (unless the claim can be resolved solely on the existing record).  The fed rule is a function of supervisory powers rather than constitutional in dimension and the Court of Criminal Appeals chose to not follow the federal rule.

Rebecca R. Pettit v. State, No. F-2005-468 (Okl.Cr., July 18, 2006) (unpublished):  Waiver; Pro Se Representation:  Things could not have gone worse for Ms. Pettit.  She was charged with the murder of her six-year-old son before she attempted to kill herself (obviously unsuccessful), she was given a court-appointed attorney for trial, but the trial judge later reversed that ruling and allowed the attorney to withdraw, and Pettit represented herself at jury trial which ended in a predictable sentence of LWOP.  HELD:  Reversed and remanded for new trial because the record failed to show that her decision to go to trial pro se was voluntary.  Trial Judge:  John C. Garrett (Sequoyah County).

Jeremy David Manders v. State, No. RE-2005-536 (Okl.Cr., July 19, 2006) (unpublished):  Suspended Sentences:  Manders caught a bunch of cases, then caught a bunch more.  A revocation hearing was held in which the trial court ordered revocation with some time consecutively.  Held:  Manders stipulated to the revocations based upon the representations and assurances by both the State and his counsel that he would receive sentences totaling nine and one-half years; since that did not happen, the case is reversed giving Manders the option of withdrawing his stipulation or keeping the stipulation and having the trial court order the revocations to run concurrently.  Trial Judge:  Robert G. Haney (Ottawa County).


Tenth Circuit

Opala v. Watt, et al., No. 05-6261 (10th Cir., July 21, 2006) (Published):  This case does not have anything to do with criminal law, but it is an interesting conclusion to Justice Opala's litigation against his fellow Justices of the Oklahoma Supreme Court.  The Circuit panel squelches the lawsuit on esoteric jurisdictional grounds which is a clear signal, I think, that the federal courts are not resolve the problems in the state court.

United States v. Carrizales-Toledo, No. 05-2308 (10th Cir., July 20, 2006) (Published):  Interrogations/Fifth Amendment:  This border traffic-stop involves two issues:  standards of border PC to stop and Miranda warnings.  The discussion concerning the legality of the traffic stop did not appear to be in doubt and the panel held the stop was lawful.  The more interesting discussion concerned the Miranda issue and an interpretation of the Supreme Court's Seibert opinion.  The officer stopped the truck, drew down on Toledo, and asked him what he was doing.  Toledo replied that he was trying to get back to Mexico because he did not want the police to catch him with all the marijuana.  He was taken to the border patrol station where the Miranda warnings were read to him and he made more incriminating statements.  The panel noted the difficulty in determining the Supreme Court's holding in Seibert but held that the second interrogation and Miranda warnings were effective and therefore his statements were admissible.

United States v. Al-Rekabi, No. 03-4158 (10th Cir., July 17, 2006) (Published):  Possession of Firearm by Felon:  This case is a primer on "constructive possession" and the use of the necessity defense in possession of firearm cases.  Al-Rekabi apparently came into possession of the firearm innocently enough when he discovered that his twelve-year-old brother had it and he took it from him.  The panel ruled that the necessity defense presupposes that the accused has no reasonable legal alternative but to possess the firearm and Al-Rekabi could not meet this test.  NOTE:  U.S. District Judge Joe Heaton (W.D. Oklahoma in OKC) sat on this panel by designation.


United States Supreme Court

Still quiet in D.C.


Other Cases of Note

United States v. Gaines, No. 04-5616-cr (2nd Cir., July 20, 2006):  Jury Instructions; Defendant Testifying:  Interesting jury instruction issue where the jury was instructed in part as follows:  "Obviously, the defendant has a deep personal interest in the result of his prosecution.  This interest creates a motive for false testimony and, therefore, the defendant's testimony should be scrutinized and weighed with care."  The Circuit found error in this language and ordered the District Court to no longer use the instruction.  In footnote number 7, the Circuit noted that, in response to the Government's contention that the defendant was the only witness interested in the outcome of the trial, "Though it may pale in degree when compared to a defendant's, arresting officers have an indisputable interest in the outcome of cases they testify in.  Anyone who believes otherwise does not understand modern law enforcement."  Pretty strong.

United States v. Brownlee, No. 04-4134 (3rd Cir., July 18, 2006):  1. Eyewitness ID/Line-Ups; 2. Interrogations/Fifth Amendment:  Very instructive case in which a carjacking conviction was reversed and remanded for new trial on the basis of the District Court's exclusion of the defendant's expert testimony concerning eyewitness identifications and old-fashioned interrogation of the accused without Miranda warnings.  The defense at trial was mistaken identity of the eyewitnesses.

United States v. Mosley, No. 05-1519 (3rd Cir., July 21, 2006):  Searches & Seizures; Traffic Stops:  Traffic stop case where the Government conceded that the stop itself was illegal (based on an anonymous tip).  However, there were several guns found and the Government proceeded against one of the passengers who had no possessory interest in the vehicle.  Reversed.  This is an exhaustive opinion addressing the exclusionary rule in such cases, holding ultimately that when the stop is illegal, all evidence is inadmissible against all occupants unless the Government can show the traditional exceptions to Wong Sun such as attenuation, inevitable discovery, independent source, or some intervening act that purges the taint of the illegality.  NOTE:  This opinion is very lengthy and dissects Tenth Circuit caselaw as well.  The panel also noted:  "When one peruses the traffic-stop suppression caselaw, one is struck by how rarely a traffic stop is found to have been illegal."  Tell us about it.

Prieto v. Quarterman, No. 05-70035 (5th Cir., July 18, 2006):  Habeas Corpus; Statute of Limitations/Equitable Tolling:  Winner on equitable tolling grounds when the District Court granted Prieto's motion for extension of time to file his habeas petition but the extension exceeded the one-year statute of limitations.  The panel held that Prieto was allowed to rely upon the District Court's order and did so in good faith.

United States v. McDonald, No. 05-3761 (7th Cir., July 17, 2006):  Searches & Seizures; Traffic Stops:  Very instructive case where a police officer made a mistake of law in believing that McDonald had violated a traffic law.  The Circuit held that such a mistake of law, even if reasonable, cannot justify the traffic stop.


Victories

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




KATRINA CONRAD-LEGLER, OIDS, secured a new trial for the hapless Ms. Pettit, who represented herself and ended up with LWOP.  Got some justice there, Katrina.  Good job!

GLOYD MCCOY, OKC, prepared to defend his client in the United States Supreme Court...he then awoke from that dream and drove to Edmond Municipal Court where he tried a possession of marijuana case before a judge:  Not Guilty.  His co-ed client went to a house to do some computer research (since she did not have a computer).  Unfortunately for her, the police executed a search warrant while she was there and found some recreational drugs.  Gloyd convinced hizzoner that the client had no dominion and control over the offending substances.  Terrific result for a young lady who will not have to explain a drug conviction for the rest of her life.    


Hearsay

TRAGEDY IN CHICKASHA:  Seven persons perished in a house fire in Chickasha last Thursday, including five children ages 1 to 12.  In the usual montage of misery from the press, this seems to be a particularly poignant tragedy.

JUDGE TWYLA MASON GRAY ran a particularly repugnant negative ad on television last Friday (that is when I saw it), alleging that her opponent Steven Box had been arrested for DUI.  The ad was trashy and classless which I take as a sign of desperation by her campaign.  I do not believe that judge races usually go negative too often, but it looks like this one might.

GORSUCH CONFIRMED:  Last Thursday, conservative jurist Neil Gorsuch was confirmed by the Senate to ascend to his seat on the Tenth Circuit Court of Appeals in Denver.

RACE FOR DA IN NORMAN:  The linked article is particularly good at providing an overview of the candidates incumbent Tim Kuykendall and Greg Mashburn.

HOW TO MAKE FRIENDS AND INFLUENCE PEOPLE:  These two from the News of the Weird in The Oklahoma Gazette have skills:  A physician in West Virginia became inebriated, commandeered a backhoe and went on a path of destruction by hitting a building, trees, and crashing through two fences.  When the police arrived, the physician uttered the immortal words:  "I am a [expletive] medical doctor, and you are below me."  More subtle was a fellow named Wayne Milton.  Milton was an extraordinarily gifted con man but ended up in federal prison in Atlanta.  However, he was able to bribe the guards and convince them to let him out at least fifty (50!!) times so he could continue his "high-stakes mortgage-fraud business" which was the reason for his incarceration.  For the bribery, he received a twenty year sentence but, not to be deterred, he was taped on a prison phone call lining up another fraudulent mortgage. 


UPCOMING EVENTS/CLE COURSES (IN CHRONOLOGICAL ORDER):

JULY 27, 2006:  OCDLA DEATH PENALTY SEMINAR:  This will take place Thursday, July 27--Friday, July 28, 2006, at Oklahoma City University.  The times and registration info will be available soon.  Speakers include:  Rob Ravitz, Rob Nigh, Brian Hermansen, Dick Burr, Vicki Werneke, Cynthia Hartung, Sid Conway, Lee Ann Peters, Wendi Hobbs, Randy Bauman, Creekmore Wallace, Jack Gordon, Mark Henricksen, Lanita Henricksen, Brenda McCray, Sandra Collett, Kim Marks, Jim Fowler, Scott Braden, and Lisa McCalmont.

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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