(with special thanks to Mark Hoover, OIDS, for contributing regularly)

 

“I have lived my life, and I have fought my battles, not against the weak and the poor—anybody can do that—but against power, against injustice, against oppression, and I have asked no odds from them, and I never shall.”—-Clarence S. Darrow, Attorney for the Damned 491, 497 (Arthur Weinberg ed. 1957).

 

 

Kimberly Dawn Wenthold v. State, No. F-2015-235 (Okl.Cr., December 9, 2016) (unpublished): Prosecutorial Misconduct (Improper Argument): Wenthold was convicted by jury in Cleveland County (the Hon. Tracy Schumacher, presiding), of First Degree Manslaughter and Causing Great Bodily Injury in a DUI case. The Court found plain error in the prosecutor’s argument to the jury that referenced the trial court’s ability to run sentences concurrently. But, the error was harmless.

Tony Arthur Robinette v. State, No. F-2015-728 (Okl.Cr., December 9, 2016) (unpublished): Jailhouse Informants; Hearsay; “Bad Acts”: Robinette was convicted by jury in Osage County (the Hon. B. David Gambill, presiding) of two counts of Child Sexual Abuse. The Court found error in the admission of hearsay statements by the complaining witness to the forensic interviewer and her grandmother, but concluded that the error was harmless. The Court also found error in the admission of “bad acts” evidence in the form of possession of pornography and “his crude statement about wanting to have sex with his daughter’s aunt” but also harmless. Also, the Court discussed a claim regarding instructions on jailhouse snitches under Dodd, but denied relief. NOTE: The rules governing the admission of child hearsay demand a pre-trial reliability hearing, which was not done in this case; however, the Court simply conducted its own reliability evaluation on the record, which strikes me as inadequate, but that is what the Court did.

 

 

No new cases.

 

 

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

 

Salman v. United States, No. 15-628 (U.S., December 6, 2016): Statutory Construction (Insider Trading): Salman was convicted of insider trading when he acted on insider information from an extended family member, who in turn had received it from Salman’s brother-in-law. Salman argued that as a tippee, he could not be held liable because his brother-in-law (the tipper) did not personally receive money or property in exchange for the tips, and thus did not benefit from the tips. The Court rejected this argument on the grounds that the tipper had breached a duty because he made a “gift of confidential information to a trading relative.” NOTE: This was a unanimous opinion, and illustrates the near strict-liability nature of securities fraud.

 

 

United States v. Sarah Ann Calvetti, No. 15-1526 (6^th Cir., September 8, 2016): Interrogations (Fifth Amendment): In this opinion, the panel joins the other circuits in holding that consent to search is not an “incriminating statement” in Miranda cases; thus, when police questioned her when she asserted her right to remain silent, and she ended up consenting to a search of her home, this was allowable. NOTE: I included this opinion because it analyzes a nasty trap for defendants who have solid Miranda claims, but still get penalized.

United States v. Assorted Jewelry, No. 14-1175 (1^st Cir., August 10, 2016): Forfeiture: A large amount of jewelry was found in the apartment of a drug dealer and the Government sought to forfeit it, based mainly on proximity. The district court granted summary judgment to the Government, but the panel reversed and remanded, concluding that a finding that the jewelry was proceeds was not the only rational conclusion from the evidence. NOTE: The panel noted that summary judgment was improper, but that the Government likely may meet the preponderance standard on the merits in the forfeiture hearing.

United States v. Jonathan Fey, No. 15-1166 (1^st Cir., August 16, 2016): Supervised Release: In this case involving a conviction for failing to register as a sex offender, a condition of supervised release restricting Fey’s contact with children is vacated.

United States v. William S. Dahl, No. 15-2271 (3^rd Cir., August 18, 2016): Federal Sentencing Guidelines (Sex Offender): This case deals with the Repeat and Dangerous Sex Offender guideline (section 4B1.5), and here the panel found plain error where the district court characterized Dahl’s prior sex offenses as “sex offense convictions” under the Guidelines. NOTE: This is an application of Johnson outside of the “crime of violence” ACCA context.

 

 

JOHN W. COYLE, III, OKC, won a not guilty verdict in a child molestation jury trial last week in Arnett, Oklahoma (Ellis County). We are a little bit light on the details, but it is nice to see Johnny still winning trials in our state. Congratulations, Johnny!

 

 

EXECUTIONS: The state of Georgia has executed the ninth inmate this year, the most in the U.S. so far. Also, there appears to be another botched execution—this time in Alabama.

CARTER COUNTY: Carter County Sheriff Chris Bryant has selected Gus Handke as undersheriff.

DUI STORY: NewsOK story about drugged drivers from the perspective of OHP, and a critical viewpoint from DUI lawyer Stephen Fabian. In another story, the Oklahoma Gazette details new DUI law that deals with how municipal courts not of record handle DUI cases.

OFFICER KILLED: An off-duty Broken Arrow police officer was killed in a motorcycle accident.

YOUTH: Interesting story about Thunderbird Youth Academy.

AWARDS: The Oklahoma County Criminal Lawyers Association presented awards recently, one posthumously to the Hon. Don Deason (accepted by his widow), and another to Jean Francier, the assistant at Coyle Law firm who organizes the OCCLA weekly luncheons. Also, Scott Adams received the Robert A. Manchester Lifetime Achievement Award, and Joi McClendon received the Barry Albert Award…as did Scott Adams! Congrats, all!

“RESILIENCE OFFICER”: The mayor of Tulsa has appointed a new Chief Resilience Officer to address racial disparities.

CEREMONY: Crime victims will be honored at the Wagoner County Courthouse in a ceremony on December 15.

PROSECUTORS REPRIMANDED: Tulsa County District Judge Kurt Glassco reprimanded prosecutors in a murder case after learning that the mother of two victims had interacted with a juror.

WAYBACK MACHINE: The Tulsa World chronicled the murder of a wealthy Tulsan in 1916—who was killed at the home of his mistress.

RIP: Retired District Judge Vicki Robertson (Oklahoma County) passed away recently at the age of 67.

NEW DRUG LAWS: Garvin County prosecutor Corey Miner is outraged at the likely effects of a state question will have on drug use in our state.

    

WACKY CRIME

BAD CRASH: A driver in Tulsa had vodka in his car and crashed…into a police patrol car.

RACE: A Ponca City man was injured when he raced “Dukes of Hazzard” style on an airport runway.

IGNOMINIOUS ARREST: A top-wanted fugitive in Muskogee fell for a prank call and was arrested.

IGNOMINIOUS DEMISE: A witness to a shooting in Tulsa may have been beaten to death and fed to pigs.

CAN’T UNSEE IT: A Broken Arrow man has been accused of being “inappropriate”…with a mannequin (with video).

 

 

FRIDAY, DECEMBER 16, 2016: The OCDLA presents a seminar on federal and state racketeering.

THURSDAY, DECEMBER 15 & 16, 2016: The Seventh Annual Barry Albert mock trial CLE will be held at the Bar Center.

WEDNESDAY, DECEMBER 28, 2016: The Tenth Circuit Year in Review, as presented by the Federal Bar Association, Northern/Eastern Oklahoma Chapter, to be held at the federal courthouse in Tulsa.

 

SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at jameshankins@ocdw.com and include the e- mail address to which you want the issues to be delivered. I am sending out the issues for free now to whoever wants to receive them. Submissions of articles, war stories, letters, victory stories, comments or questions can be sent to Mr. Hankins via e-mail or you can contact him by phone at 405.753.4150, by fax at 405.445.4956, or by regular mail at James L. Hankins, TIMBERBROOKE BUSINESS CENTER, 929 N.W. 164^th St., Edmond, OK 73013.

OKLAHOMA CRIMINAL DEFENSE WEEKLY

ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.

COPYRIGHT STATEMENT & DISCLAIMER: ©2005-2016 by James L. Hankins. All rights reserved. OCDW hereby grants free use of these materials for any non-commercial purpose provided that proper credit to the OCDW is given. In the event that copyrighted works are included in an edition of the OCDW such works may not be reproduced without the consent of the copyright holder because under federal law the OCDW has no authority to allow the reproduction of the intellectual property of others. For purposes that go beyond “fair use” of the copyrighted material under federal law, the permission of the copyright holder must be obtained. If you are a copyright holder and object to any portion of an issue of the OCDW, please contact the publisher, James L. Hankins, at the contact information above (located under the SUBSCRIPTIONS AND SUBMISSIONS section). Finally, the materials presented in this newsletter are for informational purposes only, and are not, nor intended to be, legal advice or to create an attorney-client relationship. You should consult an experienced attorney licensed in your jurisdiction for legal advice applicable to the specific facts of your case. Cases are summarized in each weekly issue as they are issued and filed by the respective court, and are thus subject to being withdrawn, corrected, vacated, and/or modified or reversed without notice. Always conduct your own research!

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