OCDW 05.02.16

 

(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).

 

 

Bruce Conway Stewart, Jr., v. State, 2016 OK CR 9 (April 26, 2016): DUI; After Formers (Enhancement); Standard of Review: Stewart was convicted by jury in Custer County (the Hon. Jill C. Weedon, presiding) of DUI (Drugs), AFCF x 2, and DUS, and was sentenced to 20 years. The principal issue was the introduction of judgments and sentences of his priors, which indicated that Stewart had received suspended sentences in the past. On plain error review, the Court found no error because the prosecutor did not mention these suspended sentences explicitly during the trial, but it was also noted that attached to some of these priors as Form 13.8(A) (Additional Findings at Time of Sentencing) were copies of Stewart’s criminal history in the form of an OSBI Rap Sheet. This was error which necessitated a remand for re-sentencing. Also, there was no definition in the jury instructions of “under the influence” and “with impaired ability” which under Slusher v. State, 1991 OK CR 83, 814 P.2d 504, is reversible error (one of my favorite cases). However, the Court overruled Slusher to the extent that it held that reversal was mandatory, and held instead that harmless error analysis applies. NOTE: Judge Johnson and Judge Smith concurred in the result, holding that plain error analysis was not proper because the prosecutor did in fact “exhort” the jurors to review the judgments and sentences.

Gary Thomas Schofield v. State, No. C-2015-980 (Okl.Cr., April 26, 2016) (unpublished): Guilty Pleas; Waiver (Waiver of Appellate Issues): Schofield entered nolo pleas to multiple counts including DUI and DUS before the Hon. Terrell Crosson, Special Judge (Rogers County). On certiorari review, the sole claim was that the $50.00 fine on a count of Failure to Use a Child Restraint exceeded the statutory maximum in effect at the time which was $10.00. In this opinion, the Court denied the motion to withdraw the plea, but modified the sentence. NOTE: The Court modified the sentence, even though this claim was not raised in the motion to withdraw the plea. Nevertheless, the Court held the penalty exceeding the maximum “is plainly illegal” and will be modified by this Court (citing Fite v. State, 1993 OK CR 58, 873 P.2d 293).

 

 

In re: Jason Thomas Encinias, No. 16-8038 (10^th Cir., April 29, 2016) (Published) (Tymkovich, C.J., Lucero & McHugh): Habeas Corpus (Second and Successive): Encinias sought authorization from the Circuit to file a second habeas case attacking his career offender enhancement on the basis that the Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (holding that the residual clause of the ACCA is vague) is retroactive to his case, which is a good argument since the Court held that it was recently in Welch v. United States, 2016 WL 1551144 (U.S., April 18, 2016). Although the “crime of violence” language in the ACCA is similar to the career offender enhancement, the issues are not identical, but close enough for the Circuit to grant authorization.

 

 

“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.

 

FEDERAL RULES OF CRIMINAL PROCEDURE UPDATE: The press reported that the Supreme Court had granted to the “FBI massive expansion of powers to hack computers” but when I looked for the case, I could not find it. The press report actually referred to some amendments of the Federal Rules of Criminal Procedure which were sent from the Court to Congress for approval, notably Rule 41 which extends venue requirements in these cases.

 

 

United States v. Fletcher Freeman, Jr., No. 14-30220 (5^th Cir., March 21, 2016): IAC (Failure to Attach SOL); Statute of Limitations: In this drug case, Freeman attacked one count based upon IAC alleging that his lawyer failed to research and move to dismiss that count based upon the statute of limitations. The panel held that counsel was ineffective and granted relief.

 

 

The OCDLA awards are presented annually, this year on June 23, 2016, prior to the Patrick Williams CDI, which will take place at The Hard Rock Hotel and Casino in Catoosa (Tulsa). In order for the Board to consider nominees, the nominations must be submitted to the OCDLA Board NO LATER THAN FRIDAY, JUNE 3, 2016. You do not have to be an OCDLA member to nominate a lawyer for good legal work, nor does your nominee. The awards and the criteria for each are explained below. More information and past winners can be found HERE. You may submit nominations three ways:

 

BY MAIL: OCDLA, P.O. Box 2272, Oklahoma City, OK 73101-2272

BY FAX: (405) 212-5024

BY E-MAIL: bdp@for-the-defense.com

 

THE LORD THOMAS ERSKINE AWARD

Lord Thomas Erskine, Lord Chancellor of the United Kingdom, was a Scotsman and the third son of Henry David Erskine, the Tenth Earl of Buchan. Lord Erskine was educated at the Royal High School of Edinburgh, and later at Trinity College, Cambridge. He was called to the bar in 1778, and became a strong advocate and defender of popular liberties and constitutional rights.

His defense of Thomas Paine cost him his post of Attorney General to the Prince of Wales.

The Lord Thomas Erskine Award is bestowed to honor a member of the Oklahoma criminal defense bar who has, over the years, steadfastly placed the preservation of personal liberties over his or her own personal gain or reputation. The award is intended to recognize these qualities during an attorney’s career or lifetime, and is not limited to any particular activities in any given year.

THE CLARENCE DARROW AWARD

Clarence Darrow was born in Ohio in 1857. After being admitted to the bar in 1878, he became a small-town lawyer for nine years. During WWI, Darrow defended anti-war activists and was critical of The Espionage Act, which at that time was used to stifle anti-war activities. Darrow’s magnificent and tenacious advocacy is illustrated in his famous cases such as the Scopes Monkey Trial and the Leopold-Loeb Murder Trials. A 1936 FBI memo to Clyde Tolson, aide-de-camp to J. Edgar Hoover, gave Mr. Hoover some quotes that Clarence Darrow had made in an article entitled Attorney for the Defendant. It was suggested that Mr. Hoover could use these quotes in speeches to point out how unscrupulous criminal defense lawyers foster disrespect for the law and influence crime conditions.

The Clarence Darrow Award recognizes the efforts of an individual who has, during the year, exemplified the zealous advocacy in criminal cases that befits the namesake of the award. It is in the deeds and spirit of Clarence Darrow that this award is given each year. The only qualification is that the event(s) upon which the nomination is based must have taken place during the current year.

THE THURGOOD MARSHALL APPELLATE ADVOCACY AWARD

Thurgood Marshall, the grandson of a slave, was born in 1908 in Maryland. In 1930, Marshall desired to attend law school in his hometown, but was denied admission to the University of Maryland Law School because of the school’s segregation policy. This event had a dramatic influence on his future professional life. Marshall sought admission to, and was accepted at, Howard University where he graduated from law school in 1933. In 1934, he began his association with the NAACP. In 1954, he dismantled public school segregation in the spectacular 1954 victory of Brown vs. Board of Education of Topeka. He later desegregated graduate schools with his victory in McLaurin vs. Oklahoma State Regents. As a judge on the United States Court of Appeals for the Second Circuit, he issued 112 opinions, all of which were upheld before the United States Supreme Court. As Solicitor General of the United States, he won 14 of 19 cases argued before the United States Supreme Court. In 1967, Marshall became the first African-American appointed to the United States Supreme Court. He was often the lone voice of dissent against the death penalty (although accompanied frequently by Justice Brennan), and always spoke for voiceless Americans in his opinions. He died in 1993.

The Marshall Award recognizes outstanding appellate advocacy in the spirit and in the footsteps of Justice Marshall.

 

 

ALICIA C. SORELLE, Elk City, represented a client charged with False Personation which stemmed from a traffic stop in Custer County. The client was stopped for failing to signal, but was pulling out of a parking lot. Judge Weedon ruled that no signal was necessary, thus the stop was invalid. Judge Weedon also dismissed the officer’s testimony when he attempted to weave a tale of reasonable suspicion of criminal activity, and reprimanded the officer for making the client stand barefooted outside in February for close to an hour. Case dismissed. Terrific job, Alicia!

JULIE STRONG, Clinton, appeared at the preliminary hearing docket in Custer County immediately after Alicia Sorelle, and Judge Weedon dismissed that case as well based upon a questionable line-up. I bet that was quite a morning. Nice work, Julie!

KYLE MCCALLUM, Hugo, represented a teenager charged with Manslaughter in the shooting death of another teenager. Last Friday, a jury in Pushmataha County deliberated for three hours before returning a verdict of not guilty. Great job, Kyle!

 

IN THE MEDIA

KEN SUE DOERFEL, Lawton, worked hard on criminal justice reform, and managed to get many reforms signed into law, including raising the threshold value for stolen property, the broader use of drug courts and community sentencing, and allowing prosecutors to file non-85% crimes as felonies rather than misdemeanors. Doerfel said that one out of every ten men in Oklahoma has a felony conviction, which stifles their ability to succeed; and worse, one in ten Oklahoma children has a parent who has served time in prison. The media has outlined these changes. This is a good reminder that not all victories come from inside the courtroom. Thanks for fighting the good fight, Ken Sue!

AL HOCH: Also, OCDLA President Al Hoch, an “award-winning defense attorney” took to the air on Channel 5 to explain the rights of citizens. Good work, Al!

 

 

HASTERT: This story has kind of flown under the radar in election season, but former Speaker of the House of Representatives Dennis Hastert is going to prison for structuring, and also being sued for being a child molester and paying his victim off to keep it quiet. Seems like this should be a bigger story.

NO COPS: The tiny town of Green Mountain Falls, Colorado, saw its mayor get into a dispute with the Police Chief, so the Chief and three volunteer reserve officers all resigned—leaving the town without any law enforcement officers.

DEPUTY FIRED: Major Gary Handley of the Wagoner County Sheriff’s Office was fired last week.

INNOCENT: A Hominy man who spent 17 years in prison after being convicted of sex abuse has petitioned a judge in Tulsa to be innocent of the crime—paving the way to suing the State.

DUI CHANGE: A new law mandates that DUI charges have to be sent to a court of record, which will deprive municipalities of needed revenue, and will thus backfire according to Tulsa DUI lawyer Zach Smith, a/k/a The Tulsa DUI Guy.

BATES TRIAL: The trial of Robert Bates ended last week in a conviction for Second Degree Manslaughter. A juror in the trial in Tulsa provided insight into how the jury found Bates guilty and arrived at sentencing. Bates was represented by Tulsa attorney Clark Brewster.

DOC vs. OK CO JAIL: DOC will not be allowed to send prisoners to the Oklahoma County Jail after District Attorney David Prater asked County Commissioners to cancel the contract with the State in order to ease overcrowding.

COURT CLERKS: The Altus Times highlights the duties and functions of the office of the Court Clerk.

ASSET FORFEITURE UPDATE: Gov. Fallin has signed into law a bill that allows attorney’s fees to people whose assets are seized unjustly. This development is on the heels of a publicized forfeiture case out of Muskogee where police seized $50k from a Christian Band for no reason and the District Attorney eventually dismissed the forfeiture case.

NEW CHIEF: The City of Shawnee has selected Interim Chief Mason Wilson as the new Chief of Police.

BLUE ALERT: Gov. Fallin has added a “Blue Alert” to the already existing Amber Alerts and Silver Alerts, which will notify the public when a police officer is injured or killed and the assailant is still on the loose.

LOUISIANA CAPITAL PUNISHMENT: Interesting article about how the State of Louisiana rarely executes prisoners because of the large number of cases that are reversed on appeal; also, in North Carolina, many death row inmates die of natural causes.

WAYBACK MACHINE: In 1966, Richard Speck broke into a boarding house in Chicago and murdered eight female nursing students in one of the most notorious murder cases in U.S. history. The Chicago Tribune recently ran a story about how the brother of one of the victims recently found a box of photos of his sister and the rest of the victims. It is still a haunting crime after all these years.

 

WACKY CRIME

 

NUDE FOLLIES: The 73-year-old female owner of an all-nude strip joint in Valley Brook has fired her entire staff after she was jailed for illegal alcohol sales and prostitution charges.

BAD DUI DAY: A woman in Chickasha was pulled over for swerving, and proceeded to back into and hit the police car after she was stopped. She failed a field sobriety test.

BAD DUI DAY II: A DUI suspect in Tulsa was cuffed and placed into the backseat of a state trooper’s cruiser, promptly escaped, but was recaptured.

FACEBOOK FEUD: One woman recently had a Facebook feud with the mayor of Del City—and received a ticket in the mail.

 

 

THURSDAY, JUNE 23 & FRIDAY, JUNE 24, 2016: The 2016 Patrick A. Williams Criminal Defense Institute & OCDLA Annual Meeting will take place at the Hard Rock Hotel & Casino in Catoosa (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.

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