NOTE:  COCA's case output has been thin lately, primarily as a result of being shorthanded on judges, I suspect.


Slaughter v. State, 2005 OK CR 6 (March 10,2005):  End-game denial of post-conviction application (third) in Jimmie Ray Slaughter's capital case.  The Court noted in paragraph 6 that factual innocence claims can be raised at any stage of an appeal; but the Court was not convinced that Slaughter made the case for actual innocence.  Slaughter has been denied clemency and it appears his execution will take place on March 15, 2005.  Give Steve Presson (Norman) some support and any ideas you might have to help.


Tenth Circuit

In re:  C. Rabon Martin, No. 03-5204 (10th Cir., March 4, 2005) (Published):  Attorney discipline case in which the circuit considers an issue of first impression (in the circuit) concerning the extent to which a suspended attorney may participate in a case pending in the court in which he is suspended.  Attorney did not sign pleadings or appear in court; but did meet with clients and split the fee with lawyer in good standing who was authorized to sign pleadings and appear in court.  The circuit held that he could not do this(!)  Seems very harsh.  So, apparently, a lawyer suspended from practice in the federal courts can not meet with clients or share in fees, but may perform law clerk work.

United States v. Johnson, No. 05-1029 (10th Cir., March 8, 2005) (Unpublished) (per curiam):  Not a winner, but good discussion of federal procedure regarding pre-trial detention and the legal standards governing these proceedings.

Collins v. Workman, No. 04-6343 (10th Cir., March 8, 2005) (Unpublished):  Bobby Collins shows creativity in attacking his 1975 Murder conviction and life sentence by arguing that the Oklahoma Truth in Sentencing Act actually took effect for one day and created a liberty interest that helps him.  You will be glad to know that the circuit held that the OTISA never became effective because it was repealed prior to its effective date (Collins argued that a law that was never in effect could not be repealed).

Bush v. Neet, No. 03-1481 (10th Cir., March 8, 2005) (Published):  Denial of habeas relief sought by pro se prisoner in Colorado.  Prisoner plead guilty under a parole scheme in place that called for parole after serving half the sentence.  The scheme was changed after sentencing and resulted in prisoner serving more time.  Court held plea still voluntary and would not grant habeas relief even in light of Bush's claim that he relied upon his attorney's representations that the more favorable parole scheme would apply in his case.

United States v. Brown, No. 03-8027 (10th Cir., March 9, 2005) (Published):  Lengthy opinion in which various gun and drug charges affirmed, but case remanded for re-sentencing.  One interesting argument by Brown was a claim of "constructive amendment" of the Indictment which occurs when the evidence at trial, together with the jury instructions, raises the possibility that the defendant was convicted of an offense other than that charged in the Indictment.  This violates the Fifth Amendment.  The circuit denied this claim, but noted an inter-circuit conflict on whether this error is reversible per se or subject to plain error review (Brown raised it for the first time on appeal).  This panel went with plain error and Brown did not meet it.  Brown also raised the issue of the trial court leading prospective jurors in reciting the Pledge of Allegiance.  No dice in light of United States v. Wonschik, 353 F.3d 1192, 1198-99 (10th Cir. 2004).  Finally, the case was remanded for re-sentencing because Brown objected to the PSI on the basis that some of his priors had actually been dismissed and the trial court simply failed to note or rule upon his objections.  The gumment conceded error on this point; thus, the remand. 


United States Supreme Court

Wilkinson v. Dotson, No. 03-287 (U.S., March 7, 2005):  Court held that state prisoners may bring a 42 U.S.C. s. 1983 action to challenge state parole procedures where success would not necessarily result in immediate or speedier release.  This is a win for the prisoners since the only other alternative is federal habeas which has strict prerequisites for obtaining federal review such as exhaustion of state court remedies, deference to state fact-finding, and reliance on clearly established federal law.  Under section 1983, the prisoner need only exhaust administrative remedies and can by-pass state court altogether.

Shepard v. United States, No. 03-9168 (U.S., March 7, 2005):  Another micro-win for defendants.  Fractured opinion in which the Court held that police reports and complaint applications are not good enough to establish the specific type of burglary under state law that would support a conviction under the Armed Career Criminal Act where a felon possessing a gun who has three prior violent felonies or drug convictions is looking at 15 years minimum.  Burglary counts as "violent" if it is committed in a building or enclosed space; not in a boat or motor vehicle.  Court held that a sentencing court can not rely on police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, the violent variety of burglary.


Other Cases of Note

United States v. Montgomery, No. 03-11131 (5th Cir., March 1, 2005):  Instructive case in which Montgomery challenged his Texas conviction of "retaliation" as constituting a violent crime for purposes of the Armed Career Criminal Act (possession of firearm after three prior "violent" felonies gets your client 15 minimum).  You can envision vividly the scene:  Montgomery and two other guys walking down the street.  Cop drives past and Montgomery yells, "Why the fuck are you sweating us?"  Cop stops patrol car and attempts to talk to the three, but they keep walking.  Cop tries to stand in front of them and they try to walk past him.  "We are just walking down the street.  You can't stop me mother fucker."  At this point, Montgomery is handcuffed, but a few minutes later let go and, not being able to let it go, yelled, "I'm not going to put up with this shit any more.  I'm going to put a hole in you mother fuckers next time I get a chance."  Oops.  Convicted of "retaliation" against the performance of duty of the cops.  Uh, yeah.  Circuit held this is not a violent crime for ACCA purposes in a meticulous and hair-splitting opinion.  If you have this issue you should read this, the analysis is very good on this issue and instructive on how to attack other statutes presenting this problem.  Note:  the circuit (the conservative Fifth Circuit, mind you) analyzed the language of the statute, not the conduct of Montgomery; but, it appears that the facts definitely helped.

United States v. Caseer, No. 02-2268 (6th Cir., February 28, 2005) (Recommended for Publication):  Winner!!!  Is ignorance of the law a defense?  Well, no; but, read this case because it sure sounds like it.  Caseer is a Somalian who, like others in the region have done for centuries, chewed or made tea out of the stems of the native khat shrub.  Unfortunately for Caseer, khat contains cathinone which is illegal in the U.S.  The circuit saves the statute from being unconstitutionally vague by applying the strict scienter requirement:  to convict it must be found beyond a reasonable doubt that Caseer actually knew that khat contained a controlled substance. 

Griffin v. Rogers, Warden, No. 04-3302 (6th Cir., March 3, 2005) (Recommended for Publication): Federal habeas case in which court discusses, and grants, equitable tolling under the AEDPA in-depth and recognizes authority for the stay-and-abeyance procedure on mixed petitions.  Scintillating stuff.

United States v. Lee, No. 03-4239 (7th Cir., February 25, 2005) (Published): No plain error found in Booker claim when issue not raised below.


Case Study: Garvin Shows You How To Stick To Your Guns

Dean v. Bass, No. PR-99-1326 (Okl.Cr., January 14, 2000) (Unpublished) is an opinion with which many of you may be unfamiliar, but one that I think everyone who practices criminal defense should read and study. There are many lessons to be learned from the way Garvin Isaacs (Oklahoma City) and Opio Toure handle this case and achieve the ultimate resolution--complete dismissal with prejudice of three counts of Murder in the First Degree with a policeman as an eyewitness to the crimes(!!)

How could this happen?  Answer:  tenacious advocacy.  The State's first witness was the policeman/witness.  The trial transcript of what happened can be viewed HERE (Note: a few pages are missing from the copy Garvin provided, and some of the pages are askew, but the key parts are there).  Garvin had the goods on this witness:  the State declined to file rape charges against him, he had been fired for complaints of domestic abuse (which if prosecuted could have resulted in disallowing him from carrying a firearm), and other issues.

Garvin's cross-examination of the policeman in front of the jury culminated with this:  "Well, this is probably the most important question I'm going to ask in this examination."  A:  "Okay."  Q:  "Isn't it true that Lou Keel, Assistant District Attorney, who prosecuted this case declined to file rape charges against you?"  "Judge, Objection(!)"  Trial Tr. at 81.

Here is where Garvin's advocacy stands out.  At this point, both the trial judge and the prosecutor are against him.  Many of you have probably been in this situation.  You have solid Brady impeachment evidence that was not turned over to you, or other valid bases upon which to impeach a witness, but the trial court does not inquire of the State; rather, the trial court interrogates you to justify the questions. 

At the bench conference, Garvin requests the State's file on the rape complaint against the policeman.  Tr. at 83.  The trial court:  "Why are we seeking discovery in the middle of the trial?"  Garvin:  "Because somebody violated their Brady duty."  Note:  Garvin had filed several pre-trial motions for such evidence and the State stonewalled and provided nothing (Tr. 104).

I love this response:  it does not let the State off the hook and keeps the pressure on the State to justify their actions (or non-actions).  The trial court sustained the State's objection and Garvin requested a hearing to present an offer of proof and simply proceeded to resume his cross-examination of the policeman on the other instances of bias and was met with the same objection by the State.

It is important to note the specific basis that Garvin used to justify this type of cross-examination.  The purpose was not to show that the policeman was a bad person who did bad things--that is not good enough.  The specific purpose was to show the close relationship of the witness with the District Attorney's Office, an entity that had power over the witness concerning the filing of criminal charges that would have prevented his livelihood as a police officer; and to explore the bias and prejudice of the witness to provide testimony favorable to the State.

This rationale for such cross-examination has powerful support in the cases:  See Martinez v. State, 1995 OK CR 52, 904 P.2d 138, paras. 13-15 (bias and motive to lie of a witness is never collateral and a witness may be cross-examined about any matter tending to show his bias or prejudice) (emphasis added); Beck v. State, 1991 OK CR 126, 824 P.2d 385, paras. 11-13 (evidence showing bias of witness is governed by principles of common law and the right of confrontation under the Sixth Amendment and Okla. Const. art. II, sec. 20; this right is construed liberally in favor of the accused; and unlike the strict restrictions placed upon most other forms of impeachment evidence, a witness may be cross-examined about any matter tending to show his bias or prejudice) (emphasis added).

The trial court eventually declared a mis-trial over defense objection.  This is key.  Garvin explained that he did not want a mis-trial:  he wanted an acquittal.  By making a good record that the defense objected to the mis-trial, Garvin was able to proceed with the motion to dismiss based on double jeopardy and eventually the writ to COCA that won a dismissal with prejudice.

After declaring a mis-trial, the trial court set the case again for jury trial.  Garvin presented a motion to dismiss based on double jeopardy, the transcript of which can be viewed HERE.  The trial court made a specific finding that the cause of the mis-trial was "[Garvin] bringing these issues in front of the jury...when he willfully and grossly violated the rules of evidence of the State of Oklahoma and the United States."  Motion Tr. at 9-10.  The trial court found specifically that no actions of the State caused the mis-trial.  Id. at 10.

What to do in light of these findings?  File a writ in COCA, of course(!)  This must be done.  Do not give up and waive the chance at a winner.  See Aimes v. State, F-2004-701 (Okl.Cr., February 9, 2005) (Unpublished) (double jeopardy issue must be raised via extraordinary writ prior to second trial or it is waived).

Despite the findings of the trial court, COCA found that there was no manifest necessity for declaring a mis-trial over defense objection, jeopardy had attached, and re-trial was constitutionally barred(!)  Incredible result made possible by sharp lawyering.

There are many lessons to be learned from this case, including:

--Stick to your guns: Do not let the trial court or the State bully you into backing off from engaging in legitimate cross-examination into the bias of a witness;

--Take the State to task on its Brady duties:  Place the responsibility back on the State where it belongs and do not let the judge brow beat you into capitulation or not making a record;

--Make a record or offer of proof:  Do not get rattled or be in a hurry to just move on to another area of cross-examination;

--Do not be goaded into agreeing to a mistrial when you are in the right; always make the record clear that the defense objects and for what reasons;

--Always follow-up properly with a motion or record in the trial court asking for the specific relief you want, i.e., dismissal; and then follow-up again with a writ if you feel a re-trial is barred.


Victories

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


EDITOR'S NOTE:  I think there was something in the water in Tulsa last week!  Check it out:


PATRICK ADAMS, Tulsa, on Wednesday, March 9, 2005, put the smack down on the State in the courtroom of Judge Sellers by walking his client out of the courthouse on a trafficking charge that carried LWOP as the only punishment.  Well, the client did not exactly walk out, there was that other little five year DOC stint he still has to complete.  But still, client with six priors, in prison on other charges, and accused of possessing crack.  State offered 15 to run CC with the five.  No thanks(!)  Trial started and the offer got progressively better and ended up at 7(!)  Still no good.  Cajones.  Case centered around a single car accident involving client and another person.  Dominion and control issues; and other person was co-defendant who got demurred out at PH(!)  Client did not take stand and jury had reasonable doubt.  Incredibly gutsy gamble by client and steady hand by Patrick.

ROYCE A. HOBBS, Stillwater, won two suppression motions in one day(!)  On Friday, March 4, 2005, his suppression motion was sustained because the search warrant was hand-written on a 4" x 6" ruled, yellow pad; but only the information that was supposed to be inserted into the statutory form was written down.  It was a telephonically issued warrant that could have been saved but Royce was on the ball and the State was not.  Later the same day, Royce got a misdemeanor possession charge dismissed as the result of his suppression motion which exploited the fact that the deputy handcuffed the driver and three other occupants of a car parked off the road prior to finding any drugs because, as the officer put it, "there was four of them and only one of me."  Royce was the original lawyer for Timothy McVeigh right after Trooper Hanger made the arrest.  Royce and I represented co-defendants both charged with Murder I in Noble County years ago and it was a pleasure working with you, Royce.  Keep up the good fight in Payne County. 

CARLA ROOT & CREEKMORE WALLACE, Sapulpa, headed to Tulsa on Monday, March 7, 2005, for a good old fashioned murder trial.  No Bill filed, but still, a charge of Murder I will get the adrenaline going.  State alleged a gang-related murder but with thin evidence (all circumstantial) and no forensics.  Pre-trial motions took up Monday and jury selection started on Tuesday.  On Wednesday, a jury was selected and that's when it got interesting.  State had two witnesses who were going to take the Fifth and Carla did not want them to do so in front of the jury.  The two witnesses were questioned outside the presence of the jury and things deteriorated for the State from there.  There were three other suspects at whom the evidence pointed toward guilt at least to the same degree as the client.  Creek second chaired this one (he reports this is a first) and gives Carla a sterling appraisal for her skills on voir dire and in the ultimate result of the State dismissing the case.  I'd say if you're good enough to impress Creek, then you're definitely good enough.  Great job, Carla!  

STEVE SWANT, Tulsa, put the State to the test on Wednesday, March 9, 2005:  the same day and place that Patrick Adams was getting his trafficking acquittal and Carla Root was getting murder charges dismissed(!)  Steve's client was in the docks facing Burg. I with three priors and looking at 20 to life.  Priors were not that bad:  larceny from retailer, larceny of domestic animal (?), and DUI.  State made no offer less than 20; so, let's lace up the Allen Edmonds and go to trial.  State's case centered on ex-girlfriend and allegation was that client broke into her house with the intent to assault her.  Client took the stand, felonies and all, and told his story (basically no defense to the B&E but contested intent).  Lesser-included requested and jury came back with misdemeanor B&E conviction and one year sentence.  Extremely fine lawyering by Steve.

LARRY TEDDER, Oklahoma City, got an internet sex solicitation case kicked out of Cleveland County on Monday, March 7, 2005, where the Defendant apparently lived in Oklahoma County and the complaining witness lived out of state.  Not clear whether Oklahoma County will pick up the prosecution, but Larry's client is in the clear for now. 

Hearsay