No new cases of note to report.


Tenth Circuit

Tanberg v. Sholtis, No. 03-2231 (10th Cir., March 16, 2005) (Published):  New Mexico civil case brought by two women against cop who arrested them in a park at 2:30 a.m., way after the park had closed.  Cop wins all the way around:  jury finds in his favor on claims of excessive force and assault and battery; and trial court grants directed verdict on state and federal false arrest claims.  Court noted that Police Department policy for off-duty arrests does not control; rather, the inquiry is whether the arrest was valid under Fourth Amendment standards.  Also, the cop apparently had some prior incidents of execessive force, but trial court did not allow such evidence.

Wetmore v. Addison, No. 04-6243 (10th Cir., March 17, 2005) (Unpublished):  Non-capital habeas denial of COA but instructive and brief opinion illustrating the stout AEDPA standards of deference to state court opinions.  Wetmore is doing 210 years for lewd acts and child sexual abuse.  COCA found error in trial court not allowing Dr. Ray Hand to testify for the defense about interview methods and also improper vouching by detective.  But, COCA applied harmless error analysis and circuit held that COCA's application of this standard was not unreasonable.  

United States v. Platte, No. 03-1345 (10th Cir., March 17, 2005) (Published):  Three nuns imprisoned for destruction of national defense materials or premises when they cut through a fence on a nuclear missile site and began praying and singing.  The government responded with 20 to 30 armed security personnel from the military police, the Sheriff's Office, the Office of Special Investigations, the FBI, and the Explosive Ordnance Device Team from the military base, as well as helicopter support.  Convictions affirmed over claims of vagueness and jury instruction issues.  We can all sleep better knowing that we will have to pay to feed and house these vicious criminals for the next three years.


United States Supreme Court

Bigby v. Dretke, No. 99-11262 (5th Cir., March 8, 2005):  Capital habeas case where circuit grants a COA and vacates the death penalty based on faulty Texas jury instructions.  Also, interesting discussion of judicial bias when a defendant attacks the trial judge. 

Keenan v. Bagley, No. 03-3834 (6th Cir., March 10, 2005) (Recommended for Publication):  Capital habeas case dealing with the doctrine of equitable tolling of the statute of limitations under the AEDPA and remanding to the district court to determine whether equitable tolling is proper in the case.

United States v. Bordeaux, No. 04-1369 (8th Cir., March 7, 2005):  Winner!!!  Confrontation Clause winner in sexual abuse case where complaining child witness allowed to testify via closed-circuit television and her statements during police interview were admitted.  Good discussion and strong case.

United States v. Gonzalez-Lopez, No. 03-3487 (8th Cir., March 8, 2005):  Winner!!!  Defendant denied the right to be represented by his counsel of choice when the district court denied pro hac vice status to the out-of-state lawyer for purported ethical violations.  The Eighth Circuit joined the majority of circuits and held that this error is not subject to harmless error analysis and warrants automatic reversal(!)  Very good discussion of this topic.

Hayes v. Brown, No. 99-99030 (9th Cir., March 7, 2005) (en banc) (Published):  Winner!!!  Pre-AEDPA standards applied in this prosecutorial misconduct winner in a capital habeas case.  The circuit found that the prosecutor knowingly presented false evidence to the jury and to the trial court concerning the existence of an agreement to not prosecute the State's key witness and that the State failed to correct the record regarding the false evidence.  Interesting facts that show the State orchestrated the deal so the key witness would not know that there was a deal.

United States v. Yarborough, No. 03-3141 (D.C. Cir., March 11, 2005):  Winner!!!  D.C. Circuit reverses a felon in possession of a firearem conviction on a faulty deadlocked jury instruction given by the trial court.  The trial court snubbed the established instruction promulgated by the en banc D.C. Circuit and used a non-standard instruction (which appeared to miff the circuit).  The circuit held that the use of the non-standard instruction was coercive and constituted plain error (there was no objection below).  Good discussion of this issue and the so-called Allen charge.

In re Sakarias, No. S082299 (Cal., March 3, 2005):  Winner!!!  Capital murder co-defendants both participated in murder of victim with hatchet and knife and were tried separately and sentenced to death.  Same prosecutor conducted both trials but argued "intentionally and without good faith justification inconsistent and irreconcilable factual theories in the two trials, attributing to each petitioner in turn culpable acts that could have been committed by only one person."  Oddly, the court held that this violated due process and prejuduced Sakarias but not the co-defendant; and granted relief to Sakarias as to the death penalty only.  Good discussion of the cases where prosecutor argues inconsistent theories of prosecution against co-defendants.


Case Note:  Drug Dog Alert Not PC To Search (!!)

This case came to my attention by way of Thomas Salisbury, Ponca City, who posted it on the OCDLA listserv.  The case is Matheson v. State of Florida, No. 2D00-1611 (Fla. Ct. App., 2nd Dist., August 1, 2003), review denied by the Florida Supreme Court in Florida v. Matheson, No. SC04-490 (Fla., March 3, 2005) and discusses the soft spots to attack the alert of a drug detection dog as probable cause to search your client's car.

The case involves a drug detection dog by the name of Razor.  Razor's services were utilized when Matheson's car was stopped for a traffic infraction and Matheson refused to give consent to search.  Razor's handler, Deputy Greco, testified that he followed his normal routine by taking Razor to the driver's side door and quickly walking the dog around the car in a clockwise direction.  Razor did not alert on his first pass.  Maybe he was nervous.  Undeterred, Deputy Greco walked Razor around again, this time more slowly, allowing Razor to "linger at the seams."  This time, Razor "scratched and bit at the edge of the car's hatchback, which Deputy Greco recognized as Razor's alert behavior."

Cops searched and found drug paraphernalia, including syringes and spoons; and in the glove compartment they found hydrocodone tablets, morphine tablets, and methamphetamine.  Prior to Razor's sniff of Matheson's car, he had been certified to detect marijuana, cocaine, and heroin; and was subsequently certified to detect methamphetamine.

On cross, Deputy Greco admitted that he did not maintain a record of Razor's false alert rate and in fact often left the scene after an alert prior to learning whether drugs had been found.  The defense also presented testimony from Razor's trainer who admitted that Razor received no training to discourage him from alerting to "dead scents" which are residual odors of drugs that are no longer present in the car.

The defense also called an expert in animal behavior and veterinarian who critiqued the training procedures used by the cops to train Razor on six grounds:  inadequate training for searching vehicles, no training with small quantities of drugs, failure to plant novel odors during Razor's training searches, Razor was not subject to "controlled negative testing" where all objects or locations have no drugs present (the expert testified this training tests for false response rates and reveals whether the handler or dog is guessing; and the handler should not know whether drugs are present to prevent prompting the dog, even unintentionally), Razor was not given "extinction training" which discourages the dog from alerting to common items associated with drugs such as plastic bags, and there was no evidence that Razor's training included "stimulus generalization" which conditions a dog trained on one class of drugs to detect all drugs in that class.

The expert further criticized the certification of the United States Police Canine Association on the basis that it did not include controlled negative testing, limited the dog's search time to ten minutes (shorter than real world searches), required only a 70% proficiency which the expert deemed inadequate, analyzed the dog and handler as a team rather than focusing on the abilites of the dog, and Razor was not certified to detect meth.

The court held that the fact that the dog had been trained and certified, standing alone, does not provide sufficient probable cause to search; and contrasted Razor's training with the intense training of dogs used by the U.S. Customs Service which keeps records for only thirty or sixty days because the ability of the dog can change over time.

Excellent case to use and study that suggests the following area of cross-examination of the drug dog handler/trainer/expert witness:

1.  What specific drugs is the dog certified to detect?  What specific training has the dog received regarding these specific drugs?

2.  Is a record maintained of the dog's false alert rate?  Success rate?

3.  Does the handler stay at the scene and determine whether the dog alerted to the presence of contraband or whether it was a false alert?  How many times has this occurred?

4.  What are "dead scents"?  Has the dog been trained to detect "dead scents" (residual odors of drugs no longer present) and discouraged from alerting to them?

5.  Has the dog received specific training to search vehicles?

6.  Has the dog received specific training to detect varying amounts of drugs?

7.  Has the dog been subjected to controlled negative testing where no drugs are present during a search?  (Very important because it reveals the false response rate).

8.  Have novel or non-drug odors been planted during a search and a record maintained on the alerts of the dog, if any?

9.  During training searches, is the handler aware of the presence and location of drugs?  (to prevent the handler from consciously or unconsciously prompting the dog to alert).

10.  Has the dog been given "extinction training" to discourage alerting to common items used in packing drugs such as plastic or duct tape?

11.  Has the dog received training in "stimulus generalization" which conditions a dog trained in one class of drugs to detect all drugs in that class?

12.  Were there any restictions on the search time during training (ten minutes in the Matheson case)?

13.  What proficiency rate is acceptable or passing?  (in the case, the USPCA required only 70%).

14.  During the training/certification is the dog evaluated separate from the handler or are they evaluated as a team?  (puts into question the individual ability of the dog to detect drugs).

15.  Was the dog trained and certified to detect the specific drug in your case?

16.  Exactly how is the dog conditioned?  (is he positively rewarded with food or punished).  Is the conditioning administered consistently (or only when he alerts)?

17.  Exactly how does the dog alert?  (scratching?  barking?)  How was this metod determined?

18.  Ask the trainer/handler to admit that a dog's ability can change over time.  What time period?  (U.S. Customs maintains records for only 30 or 60 days because older records are no longer probative of the dog's skill).

19.  What steps are taken to determine if the dog has diminished ability during a given time period?

20.  Has the dog received any additional training since the certification or any regular training?  (U.S. Customs requires annual re-certification training). 


Vicki's Death Chart

This macabre chart is maintained by Vicki Ruth Adams Werneke, Chief, OIDS Capital Post-Conviction Division (who is not macabre).  It is an extensive listing of all the death penalty direct appeals and subsequent histories, including executions, of Oklahomans on death row.  A lot of work has been put into keeping it current and some of you may find it interesting to peruse.  To see it click HERE.


Victories

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

JACK GORDON, JR., Claremore, appeared before Judge Wall in Tulsa County on Monday, March 14, 2005, and secured one of the most elusive legal victories of all:  post-conviction relief in the state district court in a capital case(!!)  Jack's client, John Hanson, had been tried and convicted of two counts of Murder I and received death on one of those counts.  On direct appeal, COCA left the convictions intact, but vacated the death sentence and remanded for a re-sentencing.  Five days before the re-sentencing trial, Jack reports that the DA called with some new information regarding a statement made by a co-defendant that was exculpatory of Jack's client.  Jack used this newly discovered information to draft a post-conviction application.  But,there is an interesting procedural twist here:  since the death penalty was vacated and the case remanded for re-sentencing, is it a death penalty case for PC purposes (non-cap PCs are filed in the district court; capital PCs are filed directly in COCA)?  Jack took the position that it was not a capital case since the death penalty had been vacated and filed the PC in the district court and it was granted by Judge Wall.  So, client not only has death penalty vacated, he now has shot at a new trial.  State is appealing, but an outstanding example of advocacy by Jack.  I know of only two other times that a district court granted a PC in a capital case.  Outstanding work.

NANCY ZERR, Oklahoma City, gets some belated acknowledgement for her work in the Dean case that was spotlighted in the newsletter last week.  Garvin Isaacs reports that Nancy was of invaluable assistance to him in that case and in fact wrote the winning brief on the issue that resulted in the extraordinary outcome of the case.  Great job, Nancy.


Hearsay