OCDW 11.09.15

 

(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).

 

 

Jonathan Lenard Farr v. State, No. F-2014-642 (Okl.Cr., November 2, 2015) (unpublished): Joinder: Farr was convicted by jury in Oklahoma County (the Hon. Timothy R. Henderson, presiding) of First Degree Murder, A&B w/Deadly, and Shooting w/Intent to Kill, and sentenced to LWOP. The Court affirmed, but I included the opinion because Farr raised the issue of improper joinder of offenses, and the opinion contains a good discussion of the current law on that subject (event though the issue was not preserved and the Court reviewed for plain error).

Christian Castro v. State, No. F-2014-411 (Okl.Cr., November 6, 2015) (unpublished): Jury Instructions (Accomplice Testimony): Castro was convicted by jury in Oklahoma County (the Hon. Glenn M. Jones, presiding), of Murder in the First Degree. The Court affirmed, but I included the opinion because it contains a good discussion of jury instructions relating to whether a testifying co-defendant should be considered an accomplice as a matter of law or as a matter of fact. This issue does not come up that often, but this opinion has a good discussion of the law on this topic.

NOTE: Long time criminal defense lawyer Steve Presson, Norman, has left OIDS to join the Office of the Public Defender in Indiana. Steve has performed superior appellate advocacy in our state for many years, taught many young lawyers how to do it correctly and effectively, and has been a good example to us all. Good luck in Indiana, Steve!

 

 

United States v. Juan Lorenzo Barela, Jr., No. 14-2103 (10^th Cir., August 18, 2015) (Published) (Moritz, Hartz & Gorsuch): Child Porn; Supervised Release: Barela pled guilty to one count of distributing child porn, and also one count of possessing it. A five-level enhancement for distributing it for a thing of value is vacated because circuit precedent precludes such a finding based upon nothing more than the images were distributed on a peer-to-peer network. Also, on plain error review, imposition of special conditions of supervised release were error, but not plain enough to warrant relief.

United States v. Gabriel Anthony Saiz, No. 14-2151 (10^th Cir., August 18, 2015) (Published) (Lucero, Tymkovich & Matheson): Possession (Firearm by Felon); Federal Sentencing Guidelines (Under Indictment): Saiz had his sentence enhanced for being a felon-in-possession because he was “under indictment” after pleading guilty to state charges which resulted in probation similar to what we consider a deferred sentence (the charges would be dismissed if he completed a term of probation). He argued that such a scheme did not amount to being “under indictment” but the panel disagreed and upheld the enhancement.

United States v. Albert Preston Alexander, No. 14-7058 (10^th Cir., September 21, 2015) (Published) (Hartz, Holmes & Matheson) (E.D. Okla., Hon. James H. Payne, presiding): Sex Offender Registration: Alexander was a sex offender in California who failed to register in Oklahoma. His conviction in California was based upon inducing sexual conduct by misrepresentations creating fear. He moved to dismiss his Oklahoma failure-to-register conviction because his California conviction covered consensual conduct which, under SORNA, is exempt from the registration requirements. The panel rejected his claims on appeal, holding: 1) his California conviction qualified for tier III registration; and 2) sexual conduct induced by misrepresentations is not consensual within the meaning of the term in SORNA.

 

 

“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).

 

ARGUMENTS: Slate ran an interesting article about the oral arguments last week in a child porn case involving punishment enhancement and whether the federal statute is ambiguous. Notably, Justice Scalia brought up the rule of lenity and how it might apply to assist the very unpopular defendant.

 

 

United States v. Autry Lee Jones, No. 13-50475 (5^th Cir., August 4, 2015): Habeas Corpus (Second and Successive): The Court had to decide whether a sentence reduction pursuant to 18 U.S.C. § 3582(c)(2) results in a new judgment such that a habeas application attacking it is not “second or successive” to previous habeas applications attacking the sentence. The Court held that a sentence reduction does not result in a new judgement, but rather only in the modification of an existing one. This means that any new habeas application is “second or successive” and must meet those stringent requirements.

United States v. Leland Neil Lapier, No. 13-30279 (9^th Cir., August 7, 2015): Conspiracy: Drug conspiracy conviction is reversed because the indictment charged one conspiracy, but the trial evidence showed at least two conspiracies. Thus, the trial evidence reflects the possibility that different jurors voted to convict on the basis of different conspiracies, thus resulting in the violation of Lapier’s constitutional right to a unanimous jury verdict.

Joseph P. Shelton v. John C. Marshall, No. 13-15707 (9^th Cir., August 7, 2015): Prosecutorial Misconduct (Brady Cases): Denial of writ of habeas corpus is reversed based upon a Brady violation where the prosecution suppressed a material part of a plea deal with a key witness.

 

 

WINSTON CONNOR, II, Miami, defended one of two undersheriffs charged with covering up information in connection with a burglary, and he convinced Special District Judge Rebecca Gore (Mayes County) that the evidence was insufficient to issue a bindover order. The State announced plans to appeal, but for now the client is out of danger. Nice job, Winston!

PERRY HUDSON, OKC, defended a RICO case in federal court here in OKC last week, hearing the two sweetest words in the legal profession—”not guilty”—for his client. This fine result is on the heels of Perry and co-counsel Craig Corgan defending successfully a death penalty case in Kay County. Terrific work, Perry!

DAVID SMITH & SAM TALLEY, Norman, and investigator extraordinaire STEVE DUNBAR, OIDS, won an acquittal for a client charged with Murder in the First Degree in Cleveland County. Great job, David, Sam and Steve!

 

 

JAIL/PRISON PHONE CALLS: The FCC has finally stepped in and implemented rules that will curb the price gouging inflicted upon inmates and their families for making phone calls from prisons and jails. Oklahoma County Sheriff John Whetsel commented that the new rules could cost his office $500,000.00 a year.

WORST LAWYERS: Slate ran this article exposing some of the worst advocacy in capital cases across the country, including the elected public defender in Florida who campaigned on a promise to be less confrontational with police officers.

TEXAS JUDGE SHOT: A state court judge in Texas has been shot outside of her home in Austin. She remains in stable condition, and no arrests have been made.

OSBI INVESTIGATION: The OSBI has launched an investigation into “official misconduct” at the Delaware County Jail.

NEW CITY ATTORNEY: The City of Tahlequah has selected Angela Jones as the new city attorney.

WEAVER RETIRING: R. Darrell Weaver, the longtime director of the Oklahoma Bureau of Narcotics and Dangerous Drugs Control has announced his retirement.

SPECIAL ELECTION SET: Gov. Fallin has set a special election date in the spring for the now-vacant office of Court Clerk for Oklahoma County.

CONSOLIDATION CONCERNS: Prosecutors have expressed concerns about a plan to consolidate law enforcement agencies.

TEXT LAW: The new law banning texting while driving was met with aggressive efforts by law enforcement, including a tricky effort in Bryan County where police used a school bus to obtain a higher vantage point to catch offenders.

INSANE INMATE DENIED: District Judge John G. Canavan, Jr. (Pottawatomie County) has denied a bid by “a remorseless killer” who was found not guilty by reason of insanity.

POSSIBLE NEW PRISON: The Oklahoma Board of Corrections is considering a former residential center for the disabled in Pauls Valley as a new prison facility.

TICKET MADNESS: The link goes to an article outlining how some towns in Oklahoma use traffic tickets to fund up to 1/3 of the municipal budget.

CHAIR RECOVERED: A Frank Lloyd Wright chair that was stolen from the Price Tower in Bartlesville has been recovered.

FLOWER DELIVERY INVESTIGATED: An “unusual” delivery of flowers to an assistant district attorney in Wagoner County is being investigated. ADA Joy Mohorovicic has no clue who is sending the flowers or why.

PATTON ENDORSED: DOC Director Robert Patton, facing a grand jury inquiry and criticism over a series of botch executions, has nevertheless received a vote of confidence by the DOC governing Board.

SEXTING PROBLEM: The national problem of sexting among school children has hit home here in Oklahoma, becoming a problem in Canadian County.

METH PROBLEM: Meth still remains a “quiet scourge” in our State, and in the Tulsa area.

WAR ENACTMENT GETS REAL: A Civil War reenactment in Checotah got real when a man fired live rounds into a crowd.

 

WACKY NEWS

A prosecutor in West Virginia who is “deathly afraid of spiders, has been suspended after he took out a handgun and threatened to shoot the fake spiders that had been scattered around the office as Halloween decorations—and this mental case actually was in charge of prosecuting citizens for crimes; KKK members were purportedly outed by the cyber-hacking group Anonymous, including a Senator from Indiana and the Mayor of Lexington, Kentucky; Jimmy “Superfly” Snuka, the famed wrestler from the 1980s, has entered a plea of not guilty to murdering his girlfriend in 1983; a Lawton man went on a three-day drinking bender, got angry at the trash man, and decided to take pot shots with a BB gun; not to be outdone, a man in Edmond urinated all over a convenience store and then shot at people calling 911 to report him; a prisoner who was being driven to the bus station to be released from custody was literally within moments of being freed when he attacked a correctional officer; and this criminal mastermind committed a robbery, then called police to report shots fired at his vehicle, which led police to solve the initial robbery—essentially leading the police to himself.

 

 

THURSDAY, NOVEMBER 12 & FRIDAY, NOVEMBER 13, 2015: The sixth annual Barry Albert Memorial Mock Trial: Learning from the Oklahoma Criminal Jury Trial Masters, will take place in mid-November, this year in the moot courtroom at the Oklahoma City University School of Law.

FRIDAY, DECEMBER 11, 2015: The Criminal Law Hodgepodge XXVI will take place at the Tulsa County Bar Association. The moderators will be Paul Brunton and Shena Burgess. The seminar is good for 6 hours of CLE (including one hour of ethics). For more information contact Paul Brunton at 918.599.8600 or paul@paulbruntonlaw.com.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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