OCDW 11.16.15

 

(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).

 

Sir Thomas More [the 16^th-century Lord Chancellor of England who refused to sign a letter asking Pope Clement VII to annul King Henry VIII of England’s marriage to Catherine of Aragon] decides that he would rather die than lie or betray his faith, and at one moment More is arguing with a particularly vicious, witch hunting prosecutor, a servant of the King, and a hungry and ambitious man, and More says to this man, “You would break the law to punish the Devil, wouldn’t you?” The prosecutor replies, “Break it? I’d cut down every law in England if I could that! If I could capture him!” More responds, “Yes, you would, wouldn’t you? And then when you’ve cornered the Devil, and the Devil turned around to meet you, where would you run for protection, all of the laws in England having been cut down and flattened? Who would protect you then?” —-Christopher Hitchens speech (paraphrasing a scene from the play A Man for All Seasons by Robert Bolt).

 

 

In Re: Revision of Portion of the Rules of the Court of Criminal Appeals, 2015 OK CR 15 (November 12, 2015): The Court modified the plea form to include provisions relating to notification of the Supreme Court when lawyers are found guilty of crimes, and also relating to the meth registry.

 

 

United States v. Jerold R. Sorensen, No. 14-1366 (10^th Cir., September 14, 2015) (Published) (Phillips, Baldock & Ebel): Taxes: Conviction for tax fraud is affirmed over claims relating to: 1) his conduct amounted to evading and should be punished as such rather than obstruction of the tax laws; 2) rejection of an instruction regarding knowledge of illegality; 3) the giving of a deliberate ignorance instruction; 4) jury instruction that allowed conviction on any one means alleged in the indictment; 5) refusal to allow a surrebuttal witness; 6) misstatement of evidence during closing arguments; and 7) cumulative error.

Scott Eizember v. Anita Trammell, Warden, No. 14-6012 (10^th Cir., September 15, 2015) (Published) (Briscoe, C.J., Gorsuch & McHugh) (W.D. Okla., Hon. Robin J. Cauthron): Habeas Corpus (Capital Habeas Cases); Jurors; Cumulative Error: Denial of habeas relief is affirmed over claims relating to: 1) trial court failed to exclude two jurors because of bias in favor of the death penalty; 2) juror instructions regarding life imprisonment; and 3) jury instructions relating to all the possible punishment options. NOTE: Judge Briscoe, C.J., dissented as to denial of relief from the sentence, and would vacate the death penalty on the basis of juror bias as to punishment. Also, the panel noted that as to cumulative error, it is unclear whether such a claim clearly established federal law, and that authority in the Circuit is “murky” but the panel found no need to clarify in this case because Eizember loses anyway.

In re: Shawn J. Gieswein, No. 15-6138 (10^th Cir., September 21, 2015) (Published) (per curiam) (Kelly, Ebel & Tymkovich) (W.D. Okla., Hon. Stephen Friot): Habeas Corpus (Second or Successive): A motion for authorization to file a second or successive 2255 claim is denied, based on the new SCOTUS case in Johnson which invalidated the residual clause of the ACCA. The panel held that Johnson announced a new rule of constitutional law, but that SCOTUS had not explicitly made it retroactive to cases on collateral review. NOTE: The panel recognized a circuit split on this issue.

United States v. Steven P. Burns, No. 14-8072 (10^th Cir., September 10, 2015) (Published) (Briscoe, C.J., Baldock & Ebel): Restitution: Burns was a custodian at a post office who stole mail. He challenged a restitution award, but the panel rejected his challenges, concluding that Apprendi does not mandate that the facts underlying a restitution order be found by a jury.

United States v. Kefelgne Alemu Worku, No. 14-1218 (10^th Cir., September 1, 2015) (Published) (Matheson, Bachararch & Moritz): Identification: Convictions for identity theft and immigration fraud are affirmed over claims relating to: 1) Double Jeopardy (no plain error); 2) lawful acquisition of the identity (no plain error because it was obvious); 3) unduly suggestive photo arrays used at sentencing; and 4) unreasonable sentence.

United States v. Paul LeCompte, No. 14-2200 (10^th Cir., September 1, 2015) (Published) (Lucero, Tymkovich & Matheson): Supervised Release: In this failure to register case, one of the conditions of supervised release was to not have contact with minors without approved adult supervision. LeCompte was revoked based upon an incident where his girlfriend’s 3-year-old granddaughter was present at his house with other adults, but the adults were not approved. The panel held that he could pursue an “as applied” challenge to the condition because it was unreasonable.

 

 

“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).

 

No new cases.

 

 

United States v. Dennis Brown, Jr., No. 14-3305 (8^th Cir., June 19, 2015): Supervised Release: In this felon in possession of a firearm case, the district court imposed a rule of supervised release that Brown not consume alcohol or frequent bars. The panel vacated this condition because it was not related to any problems that Brown had.

United States v. Dontray A. Smith, No. 14-2982 (7^th Cir., July 20, 2015): Search and Seizure (Reasonable Suspicion): Police were investigating gunshots and came across Smith who was crossing a street as he prepared to enter an alley. They stopped him, asked him whether he had a gun, and he indicated that he did. The panel found that the police lacked reasonable suspicion and granted the motion to suppress.

United States v. Eddi Ramirez, No. 14-2145 (7^th Cir., June 10, 2015): Speedy Trial: Drug conspiracy case is reversed based upon a speedy trial claim under the statute (not the Sixth Amendment).

 

 

None noted.

 

 

ACCUSATIONS: Defense attorney Stephen Jones, Enid, has launched an aggressive campaign to disqualify Judge David Russell in a criminal case, accusing Judge Russell of being biased in favor of the Government, and specifically that Judge Russell refused to be critical of the conduct of the lead prosecutor, Robert Don Gifford, II.

INMATE KILLED: An inmate killed in a recent prison fight at Cimarron Correctional Facility has meth in his bloodstream and a cellphone in his pocket.

CHARGES DROPPED: Some of the charges of sexual battery against a former OHP trooper were dropped by the State prior to the start of the preliminary hearing that was scheduled to begin in Creek County (Sapulpa). The former trooper has other pending charges, but defense attorney Gary James is pleased with this most recent result. Also, OKC attorney Michael Johnson heard the good news that the State had dropped criminal charges against his client just a few days before a jury trial was set to begin; the client was a former Bethany police department captain charged with stealing drugs from a property room.

TEXTING: The recent texting while driving law has resulted in 85 citations almost immediately after it took effect.

SHERIFF RETIRES: Love County Sheriff Joe Russell has announced that he will retire at the end of the year. Also, voters in Love County have approved a sales tax to build a new jail; also, the Chief of Police in Shawnee has announced his retirement as well.

NEW LABOR COMMISSIONER: Gov. Fallin has appointed Melissa McLawhorn Houston to be the new Labor Commissioner. Ms. Houston has been the Chief of Staff and policy advisor to Attorney General Scott Pruitt.

DRONE ARREST: Police have alleged that a gang member kidnapped a woman and forced her to assist him to smuggle contraband into OSP by using a drone.

GLANZ CHARGED: Former Tulsa County Sheriff Stanley Glanz has been charged with two misdemeanors relating to misuse of expense monies for a vehicle, and also denying lawful requests for information relating the investigation of former Reserve Deputy Robert Bates; also, a police officer in Yukon has been arrested for assault and battery upon a woman.

ESCAPES: Two women walked away from the Kate Barnard Community Corrections Center in Chickasha; also, in Tillman County a woman accused of criminal offenses made an appearance before Judge Brad Benson, but then bolted for the door and fled, and is still at large.

NO DEATH PENALTY: Former death row inmate Victor Miller, still fighting his case after having it modified, received word recently that prosecutors in Tulsa will not seek the death penalty again.

FULLY STAFFED: DOC announced that Jackie Brannon Correctional Center, a minimum facility in McAlester, is now the only “fully staffed” facility in DOC.

 

CRAZY CAPERS

A Bixby man has been arrested for trying to steal drugs—from an ambulance; the Kiowa County Sheriff has undertaken the novel approach of taking out an ad in the local paper inviting drug dealers to rat on their rivals; purloined pelts—someone stole $4,000.00 worth of exotic animal skins from a vehicle parked at an OKC hotel; police in Sand Springs are cracking down on the serious crime of—selling music CDs without a permit from the city.

 

 

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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