Advocacy

But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course. Our interest in not convicting the innocent permits counsel to put the State to its proof, to put the State’s case in the worst possible light, regardless of what he thinks or knows to be the truth.

–United States v. Wade, 388 U.S. 218, 256-57 (1967) (Byron White, J., dissenting in part and concurring in part)

The suspect neither had nor was advised of his right to get counsel. This presents a real dilemma in a free society. To subject one without counsel to questioning which may and is intended to convict him, is a real peril to individual freedom. To bring in a lawyer means a real peril to solution of the crime because, under our adversary system, he deems that his sole duty is to protect his client–guilty or innocent–and that in such a capacity he owes no duty whatever to help society solve its crime problem. Under this conception of criminal procedure, any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances.

–Watts v. Indiana, 338 U.S. 49, 59 (1949) (Robert H. Jackson, J., concurring in the result)

NOTE: The following articles are legal tidbits that pop up in appeals and/or trial cases that I handle, or are the subject of discussion on the OCDLA listserv. They are designed to assist practitioners of criminal defense in Oklahoma, and all articles are written by James L. Hankins unless otherwise noted.

PRACTICE POINTER—DEFENDANT TESTIFYING

Defense lawyers in general dislike the idea of the client testifying at all in a criminal case, but sometimes the testimony of the accused is required to offer factual support of a motion to suppress.

Luckily, the Supreme Court has assisted us with this problem by holding that, “when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.” United States v. Simmons, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Thus, if the client must testify in these situations, we at least have some protection from opening up the client’s pre-trial testimony for use by the State at trial. This is a good case to file away in case you have a similar situation, and I know that Tulsa attorney Allen Smallwood used this procedure recently before Judge Glassco and it works.

DISTURBING POLICE SHOOTING

On January 18, 2016, police in Arizona went to a motel in response to a report that three persons were in a motel room and aiming a gun out the window. The GRAPHIC VIDEO of the event begins when police encounter two of the occupants in the hallway of the motel as they walk out of the room, a woman and a man named Daniel Shaver. Officer Philip Mitchell Brailsford is the officer shouting instructions to the pair and whose point of view we see on the video. A word of warning, it is difficult to watch and disturbing to see what transpires, so if you might be upset watching a shooting then you might want to not watch it.

Shaver was killed, shot to death by Officer Brailsford, who stood trial. The jury returned a VERDICT on December 7, 2017. If you have not already read about this case, I would suggest that you watch the video first and gauge your initial reaction, then read what the verdict of the jury was. I had a strong initial reaction to the video, then went over it again and thought about it from the view of the officer and what information he had, and my thoughts changed. It is a very tragic event, but I don’t know exactly how it could have been prevented.

INTERROGATIONS

A new article to be published in the Seattle Journal for Social Justice is titled, The Reid Interrogation Technique and False Confessions: A Time for a Change. The technique was developed by John Reid, a former police officer in Chicago, back in the 1950s and has been the standard in law enforcement since that time.

However, one of the leading private agencies in the world engaged in police training, Wicklander-Zulawski & Associates has announced that it will no longer teach the technique after doing so for nearly 30 years, driven mainly by the specter of generating false confessions. This article is a very interesting read, including footnote 11, which states that the case that made John Reid’s reputation in the 1950s “eventually resulted in an exoneration based on a false confession” that was extracted by Reid after a nine-hour interrogation. That’s how they rolled back in the 50s.

JURY PANELS

Tulsa attorney Richard O’Carroll has filed a Motion to Quash the jury panel in a felony case in Tulsa County based upon the way in which jury panels are created. This is an area of the law that is not typically litigated, but Richard has delved into the issue, including the fact that a Canadian Company called Courthouse Technologies, Ltd, seems to operate the way in which jury pools are created here in Oklahoma.

His motion is an in-depth treatment of the topic and deserves to be watched to see how it is resolved. It may also behoove other defense counsel in other counties to take a look at the jury selection procedure and determine whether those procedures comply with the law.

EXONERATIONS: WHAT IS THE REAL STORY? (OCDW 03.30.15)

Last week brought another death row exoneration, this one out of Arizona and involving a woman, Debra Milke, who had spent 22 years on death row for the death of her 4-year-old son, who was killed allegedly for insurance money. A detective testified that Milke confessed. Two men are still on death row for their roles in the murder, but Milke is now free because it turns out that the detective—who did not record the confession—was prone to lying under oath and committing other misconduct hidden from the defense by prosecutors.

The story, the real news story, is how he or she was convicted in the first place. I have rarely, if ever, seen a reporter ask that question or follow up with the people who made it happen. I do not want to see beaten down innocent people shuffling from a prison cell to a waiting car, smiling wryly and saying into the camera that they are not bitter about their experience. I want to see an explanation of why and how such an injustice happened to them, from those in power who made it happen, and some sort of acknowledgment that the system is responsive to the ways in which it is broken.

Where is the camera crew and reporter standing in the judge’s chambers, asking the trial judge how it came to be that an innocent person was convicted of a heinous crime in his/her courtroom? It is not like the judge was a disinterested party, passively watching the proceedings. Perjury was committed in the courtroom, or a prosecutor hid evidence, or a witness lied, or the evidence was lacking, or some other sort of fundamental breakdown occurred in the courtroom during the trial presided over by the judge.

There was a breakdown in the process that occurred right under the nose of this person, and I would like to see the trial judges in these cases questioned and held accountable for their roles in allowing (if it can be shown) innocent people to be convicted in their courtrooms; or, at least an explanation as to how it happened and what steps the judge is taking so that it does not happen in the future. Why do we never hear this?

Where is the camera crew and reporter standing in the office of the District Attorney, asking the prosecutor to explain how his/her office employee or courtroom conduct landed an innocent person in prison or on death row? The prosecutor is often the chief culprit in convicting the innocent and hiding exculpatory evidence, but when are these people ever called out and forced to answer for what they do? It happens occasionally, of course, but I hardly ever see any pressure from the media or the Bar Associations to hold these people accountable, and to call them out by name and demand that they explain themselves.

Stroud is to be commended for voluntarily telling us what we already know, that he was a young prosecutor more interested in his career and getting a conviction in a capital murder case than he was in justice, that he was never really inquisitive at all about other suspects or in learning about the investigation other than facts that convicted Ford, that he relied on racial discrimination in striking black jurors and junk science at trial, that he knew the defense attorney was unprepared and in over his head having never tried a criminal case at all, much less a capital murder case, and that he was simply interested in winning rather than making sure that justice was done.

Stroud also took the State of Louisiana to task for its disgusting stance on Ford’s efforts to obtain compensation from the state for being wrongfully convicted. Yep, the State is fighting that, too. Stroud’s mea culpa and his letter are commendable, but let’s face it, it comes 30 years too late, he will face no consequences for what he did other than having some guilt, and the system will continue churning on as if nothing had ever happened. Why is it that letters like
his are the absolute and rare exception rather than the rule? Why aren’t prosecutors immediately called out by name in these exoneration cases and questioned about how the case was tried, what went wrong, and how to avoid such results in the future. Why doesn’t this happen? Where are the consequences for these people?

Where is the camera crew and reporter standing in the police department, asking crooked cops and their supervisors how it came to be that false evidence was presented under oath in court that landed an innocent person in prison or on death row? This isn’t limited to cops, either, because false or misleading testimony comes from medical examiners, lay witnesses (snitches), District Attorney investigators, and other state functionaries who provide the evidence used to convict innocent people and suppress evidence that would acquit. I never see law enforcement held accountable or forced to explain their behavior in these cases. We have sterling examples in our own state: Joyce “Black Magic” Gilchrist and Robert Macy. Gilchrist got fired for fabricating evidence as science, and nothing happened to Macy. Virtually no consequences for outright lying to juries and sending innocent people to prison.

When, if ever, are these people called out by name and forced to answer for their actions? It seems the light is never shined on these people to give an account of how their actions contributed to the conviction of an innocent person. Nor are their supervisors ever called out and forced to take any responsibility for the way in which these people are trained and supervised. It seems we just get rid of some bad apples without ever involving the larger parts of the system for its responsibility in how the system breaks down.

I do not ever want to see an interview about how an exonerated prisoner feels about being unjustly convicted. I can guess how he or she feels about it. That is not news. It is not a story. The story is how it happened. How judges, prosecutors, and law enforcement officers allowed it to happen; and what steps, if any, these people are taking to make sure it does not happen again.

That is the story that I would like to see.

THE EXECUTION OF CLAYTON LOCKETT: HARD JUDICIAL LESSONS (ocdw 05.05.14)

There was no doubt about the big story last week. The execution of Clayton Lockett—with the execution of Charles Warner to follow—turned our state, once again, into the butt of a national joke, complete with playground-grade judicial squabbles, the State unable initially to find any drugs to carry out the executions, and, of course, culminating in the bungled execution of Lockett last Tuesday.

It has been a long time since I have seen such a level of dysfunction in our criminal justice system. Most of it was attributable to our dual appellate court system (as far as I know, Oklahoma is the only state with two highest appellate courts). The historical hostility displayed by the Oklahoma Court of Criminal Appeals toward prisoners in capital post-conviction cases no doubt played a part in defense counsel for Lockett and Warner seeking refuge in the civil courts, beginning with district judge Hon. Patricia Parrish in Oklahoma County.

Instead of attacking the legality of the convictions or death sentences, Lockett and Warner attacked the way lethal injection is carried out, and specifically the “secrecy” provisions of state law that allowed DOC to keep the acquisition of the drugs a secret [22 O.S. 1015(B)]. Here is where things got tricky. Lockett and Warner urged Judge Parrish to find that secrecy statute unconstitutional, but they also wanted to not be executed while she was deciding that issue, so they filed a motion to enjoin (stay) their respective executions. This posed a quandary for Judge Parrish. Did she even have authority to enter a stay, since the execution order was issued by the Court of Criminal Appeals? And if she did not, which court did, the Supreme Court or the Court of Criminal Appeals? She concluded ultimately that she had no power to enter a stay, and that the OCCA did.

This issue was addressed by the Supreme Court on March 13, 2014, in an innocuous, two-page order that set the stage for things to come. The Court stated that Judge Parrish had jurisdiction over the underlying merits of the litigation (i.e., whether the secrecy statute was constitutional), but it transferred the issue of a stay of execution to the OCCA. This is how the judicial ping-pong effect began.

On March 18, 2014, the OCCA considered the question, but the Attorney General announced that it could not obtain the drugs, so the OCCA declared no confidence that the executions would be carried out in time, so it issued an order vacating and resetting execution dates. Note that the OCCA did this even though there was no underlying action pending in that Court which challenged the legality of either the convictions or death sentences.

Meanwhile, on March 26, 2014, Judge Parrish addressed the merits of the claim against the secrecy statute and, in a ruling from the bench, she agreed with Lockett and Warner, declaring it to be unconstitutional. This was, of course, a nice result for Lockett and Warner, but when the State appealed, they still needed a judicial entity to stay their executions in order to keep their win from becoming moot. So, they sought stays in the OCCA.

This was a reasonable decision. Judge Parrish had ruled that the OCCA had jurisdiction on the stay question, and the Supreme Court had already transferred the case once to the OCCA for that reason. However, instead of ruling on the merits of the stay requests, the OCCA issued an order on April 9, 2014, holding that it had no jurisdiction, no power, to issue a stay because an underlying cause of action pending in the Court was required under state statutes [22 O.S. 1001.1(C)]. Since Lockett and Warner had filed no underlying attack against either their convictions or sentences in the OCCA, the Court held that it no jurisdiction to even consider a stay request.

Understandably flummoxed, Lockett and Warner again went to the Supreme Court which, on April 17, 2014, looked at the same statute construed by the OCCA, but the Supreme Court issued an opinion that arrived at a different conclusion: the OCCA does in fact have jurisdiction to enter a stay order, and the Supreme Court does not. The Supreme Court told the OCCA that it not only had jurisdiction to entertain a stay request, but that it also should be cognizant of the time constraints for doing so in this important issue of first impression. Lockett and Warner took this cue and again went to the OCCA seeking stays of execution.

The very next day, April 18, 2014, the OCCA issued its own published order, in which it disagreed with the construction of the statute by the Supreme Court, and again concluded that the OCCA had no jurisdiction regarding the stay requests because there was no underlying action pending in the OCCA.

Counsel for Lockett and Warner had to be in a Kafkaesque shock. Both appellate courts and Judge Parrish in the district court below had all ruled that they had no jurisdiction to consider a stay. Undaunted, counsel again presented the question to the Supreme Court which, in an opinion issued on April 21, 2014, that can be characterized only as humanity-driven, issued a stay of execution.

The outcry was immediate. Rep. Mike Christian called for impeachment of the Justices in the majority. Gov. Fallin issued an Executive Order which issued her own stay of execution for 7 days, and threatened to seek guidance from the OCCA on how to carry out its execution order. All of a sudden, the executive branch sprung to life when it was clear that the executions would not be carried out.

Unfortunately, it appears that the political pressure was too much to bear for the Supreme Court, and it quickly issued an opinion on April 23, 2014, addressing the merits, reversing Judge Parrish, upholding the constitutionality of the secrecy statute, and dissolving its short-lived stay.

For the sake of completion, another stay attempt was filed in the OCCA on April 25, 2014, this time Lockett and Warner tried to meet the jurisdictional technicality by asking the Court to treat the pleading as a subsequent post-conviction application. However, the OCCA had little difficulty in denying the request the same day.

April 25, 2014, was a Friday. With the embarrassing judicial fight out of the way—we were treated to the sad spectacle of both of our highest appellate courts making rulings that were contradictory to their own prior rulings and to the rulings of each other within a month–Oklahoma was set to execute both Lockett and Warner on the following Tuesday, April 29, 2014.
Lockett had the misfortune of being first-up on the execution list. The turmoil in the Oklahoma courts had already made a blip on the national radar, and the rare double execution was gearing up for a national spotlight.

We all now know what occurred—a totally botched and horrific execution, where Clayton Lockett was supposed to be rendered unconscious, but raised his head thirteen minutes later in a bleary-eyed bout of writhing, teeth-clenching, and straining to lift his head off the pillow. “It was a horrible thing to witness,” said attorney David Autry.

Lockett eventually died of a heart attack, but by then news of the botched execution had spread nationally, once again highlighting the inept methods and techniques used by DOC to carry out executions. The execution began at 6:23 p.m., and Lockett was not declared dead until 7:06 p.m. The New York Times featured a solemn-faced Jerry Massie, DOC Spokesman, as the lead picture in its re-cap. Even the White House weighed in, commenting that the execution fell short of the humane standards required in capital cases, cartoons appeared lampooning our state, and a parody in The Onion suggested we would do better with a hammer squad.

In light of this ghastly turn of events, DOC Director Robert Patton sought an immediate stay for Warner, which was granted by Gov. Fallin—but only for two weeks while an investigation into Lockett’s execution was conducted. To his credit, on May 1, 2014, Director Patton issued a letter to Gov. Fallin stating the necessity for changing the execution procedures, for more oversight, and an independent investigation of what happened. It remains to be seen what will
happen to Warner. The media seems to think that there will be no more executions until the autopsy is concluded on Lockett, which could take months.

What are the lessons here? One is that our dual court system is subject to breaking down. If there is one thing that the law demands, it is some sort of finality so that litigants, lawyers, and lower courts will know what the law is. In Oklahoma, we have a situation where a state statute means different things, depending on which court you ask. That is not a sound jurisprudential model.

I was also surprised by the hostility shown by the Oklahoma Court of Criminal Appeals towards our Supreme Court. The OCCA showed no deference to the decision of the Supreme Court, disagreed with it outright, and issued terse, clipped opinions that read more like the truculence of a little brother refusing to do what his big brother says, rather than a reasoned exposition of the law.

The overriding lesson seems to be that we cannot discount politics in our state, even when the judiciary is involved. The Supreme Court issued an opinion one week saying that it had no jurisdiction to grant a stay, then issued an opinion the next week granting a stay. This was the correct thing to do as a matter of humanity, and making sure that the orderly administration of the death penalty complied with the law, but when courts make correct decisions based on manufactured authority, they are subject to being punished for it. The punishment for the Supreme Court came in the form of fierce political backlash from the legislature calling for impeachment, from the Governor orchestrating what appeared to be an outright coup d’état in conjunction with the OCCA intending to carry out the executions in the teeth of the stay order from the Supreme Court, and a greatly diminished stature and respect for the Court.

The irony is that, in light of the debacle that the execution became, the Supreme Court’s judgment proved ultimately to be the most prudent and correct. Neither the Governor nor the OCCA seemed to grasp that new lethal injection protocols carried risk, and that perhaps careful analysis might be the order of the day instead of pushing for execution no matter what.

Vindication should be the order of the day for the Supreme Court, but it does not seem that way to me. The Court may have been correct all along, but it was manhandled during the process in such an unseemly way that I think it will be a long time before it regains its stature.
I suppose the real lesson in all of this is that, here in fly-over country, opinions on the death penalty (also guns, gays, abortion, etc.) run deep and hot, and anyone who upsets the apple cart had better be ready for a fight—and this includes our Supreme Court.

I am glad that we have at least five Justices with the fortitude to make a bold decision, and defense counsel to push the issue for their much-despised clients. The solution did not help Lockett, and will likely be a short reprieve for Warner, but a national examination of the death penalty and how it is carried out here in Oklahoma cannot be a bad thing.

Gandhi said that the truth never damages a cause that is just. When our state government carries out executions in the dark, it creates a situation where government functionaries have no accountability for what they do—there is no one to know what they do, and therefore no one to criticize how they do it. Judge Parrish was correct about the secrecy statute being unconstitutional. Drug companies might not like being exposed as contributing to the execution process (but perhaps they might, at least here in Oklahoma), but who they are and what they deliver to the executioner is important state business, and certainly important to Warner. Simply divulging the information would have saved our state from this whole sorry affair.

For this, I believe primary responsibility lies in the lack of leadership of Governor Fallin and Attorney General Scott Pruitt. It would not have taken much at all to satisfy transparency in this case, probably no more than a one-page declaration by the drug company that it was a legitimate pharmaceutical company which provided certain drugs in certain quantities.

Instead, the executive officers of our state stonewall any efforts at transparency, fight it tooth-and-nail in the courts, and when it played out that they had lost, Gov. Fallin seemed poised to disregard the Supreme Court and carry out the executions anyway. Her actions smack of political opportunism rather than careful, measured, and prudent use of the executive power.

Strong, mature, wise leadership often diffuses situations like this. None was to be had by any state official in my opinion. At the end of the day, no one wins here. The Supreme Court made a courageous call in issuing the stay, but was then immediately pummeled with impeachment threats and the prospect of the Governor ignoring its stay order, resulting in a hasty resolution of an important issue of first impression and a significant diminution of its stature; the OCCA shirked its obvious duty to decide the stay question, choosing instead to issue petulant opinions geared to embarrass the Supreme Court; and the Governor proceeded headlong into an ill-advised execution with untested and unproven techniques which came home to roost on her doorstep when the first execution turned into a ghastly national nightmare.

In the end, all branches of our government let us down.

CAN DEFERRED SENTENCES BE SHORTENED?

Everyone knows that the State may file a motion to accelerate where the client is on a deferred sentence, prior to the expiration of the deferment period. This happens when the client, according to the State, violates the rules and conditions of probation in some way.

But, it occasionally comes up whether the client can file a motion to accelerate in his own right, seeking to withdraw his plea and have the case dismissed early. This was the issue that came up in State v. David Johns, No. S-2013-315 (Okl.Cr., February 21, 2014) (unpublished).

Johns pled guilty in Pawnee County before the Hon. Jefferson D. Sellers to a charge of larceny, and was placed on a five year deferred sentence, but with an understanding from Judge Sellers that the deferment period could be accelerated (shortened) if Johns paid the restitution. This, Johns did, and about a year into the five year probation period, Johns moved to accelerate sentencing and to withdraw his plea. Judge Sellers allowed this over the objection of the State.

For some reason, the State got bent out of shape about a shoplifter being off probation and appealed on a reserved question of law. The OCCA held that Judge Sellers could not do this in a negotiated plea setting, and over the objection of the State. The analysis is a little bit “squishy” in that the Court seemed to ground its decision in statutory construction—indicating that the trial court did not have jurisdiction to shorten the deferment period—but also emphasized the fact that it was a negotiated plea deal and the State objected to shortening the deferment period.

The way I read Johns (which, remember, is an unpublished non-binding opinion), is that in a negotiated plea deal the trial court cannot shorten the deferment period over the objection of the State; however, I believe the trial court could do it in a case where the plea was not negotiated and/or where the State does not object.

RECORDING INTERROGATIONS (FEDERAL)

Attorney Rick Stout, Edmond, tried a case in late 2011 in the federal courtroom of Judge Friot in the Western District of Oklahoma, and got a not guilty verdict for a client charged with assisting an escape in Grady County after she allegedly delivered $5,000.00 in cash to a jailer, with all of this on audio and video tape. The U.S. Marshal agent interviewed the client, but did not record it, and then of course testified as to what was said from his memory.

Significantly, Rick requested, and Judge Friot gave, the following jury instruction concerning the statement made allegedly by the defendant but not recorded by law enforcement:

IF IT WAS REASONABLY WITHIN THE ABILITY OF THE LAW ENFORCEMENT PERSONNEL WHO INVESTIGATED THE CASE TO ELECTRONICALLY RECORD THE DEFENDANTS STATEMENT, AND IF THE FAILURE TO ELECTRONICALLY RECORD THE DEFENDANT’S STATEMENT HAS NOT BEEN SUFFICIENTLY ACCOUNTED FOR OR EXPLAINED, THEN YOU MAY TAKE THAT INTO ACCOUNT IN DETERMINING THE WEIGHT, IF ANY, TO GIVE TO THE GOVERNMENTS ACCOUNT OF THE STATEMENT ATTRIBUTED TO THE DEFENDANT

This instruction is interesting because, although this was a U.S. Marshal case, the FBI has long maintained a policy of refusing to record statements during interviews, so it may be possible to use this policy against them. Other cases supporting an attack on the failure of law enforcement to record interrogations include:

Stephan v. State, 711 P.2d 1156 (Alaska 1985), where the Alaska Supreme Court held that when police do not have a good excuse for failing to record a custodial interrogation conducted in a place of detention, this violates the Alaska Constitution, and any statement thus obtained is generally inadmissible. It might be worth urging our Court to adopt this view in applicable cases.

United States v. Bundy, No. CR-11-2432 MCA (D. N.M, August 26, 2013): Interrogations (Custodial Statements): This is a district court opinion that grants a motion to suppress custodial statements, and is extremely critical of the FBI policy of refusing to record interrogations. The court stated that the lack of recording results in the loss of irreplaceable information, such as the actual words spoken by the participants, their body language, facial expressions and tone of voice, and other nuances that cannot be conveyed by an after-the-fact, written report. This case involved a confession to drunk-driving accident. NOTE: Pay particular attention to footnote 2, which cites an internal FBI memo that suggests that the policy of not recording interrogations “is driven in part by the FBI’s disdain for juries.”

UPDATE: THE FBI ABOUT-FACE: For years, the FBI had a formal policy against recording interviews, citing four amazingly dubious reasons: recording equipment undermines “rapport-building,” the success of agent testimony in the courts when no recording existed, the logistics of recording, and, most disturbing, acknowledgement that interrogation techniques might be viewed by juries as deceitful or the statements of the accused may appear involuntary.

This policy has been the subject of blistering court opinions condemning it, and has generated the approval of a nifty jury instruction by Judge Friot in the Western District of Oklahoma allowing the jury to consider the weight of the Government’s account of the interrogation when it is capable of recording, but chooses not to do so. However, it appears that the DOJ has reconsidered its stance on recording interrogations.

In a memorandum dated May 12, 2014, the DOJ issued a new policy regarding electronic recording of statements. The policy establishes a presumption in favor of recording custodial interviews. This is a sharp break from past practice, and the memorandum is worth studying. The policy takes effect on July 11, 2014.

What does this mean for Oklahoma state law practice? Not much directly, but a formal DOJ policy is persuasive. I am not aware of any state-wide rules or regulations here in Oklahoma governing electronic recording of interrogations. As far as I am aware, it is up to the individual law enforcement agency (or, for that matter, the individual officer). However, if you have a case where an interrogation was not recorded—but could have been (and let’s get real, recording
technology is available cheaply to any school kid today; there cannot be any rational basis for modern police officers to not record)—I would suggest pressing the issue in a pre-trial motion to suppress, or at the very least fashioning a jury instruction similar to the one cited, supra, allowing a negative inference against the police.

A good place to start is to make an argument based upon the Oklahoma Constitution. The state of Alaska has obligated law enforcement officers to record, when feasible, since 1980 [Stephan v. State, 711 P.2d 1156 (Alaska 1985)], and it is a violation of Due Process under the Alaska state constitution when they do not do so, resulting in suppression of the statements.

The OCCA is probably not ready to adopt such a bright-line rule, but other jurisdictions are moving that way. I believe that the OCCA could eventually be swayed, but it will take aggressive pre-trial advocacy by the defense bar. In the recent case of Lonnie Waylon Craighead v. State, No. F-2013-305 (Okl.Cr., May 23, 2014) (unpublished), the appellant noted the nationwide trend to require the recording of custodial interrogations, and argued on appeal that Oklahoma should adopt such a rule.

The Court declined to do so, but it does not appear that the issue was cleanly raised or give serious consideration by the Court. The procedural posture of the claim was problematic because the issue was not raised in the trial court; thus, the Court addressed the issue under plain error analysis, and noted also that it would not address such a sweeping claim raised for the first time on appeal. How can the issue be pressed by the defense bar in the future?

The same way almost all legal issues must be pressed: 1) aggressive pre-trial motion practice using the Oklahoma Constitution and policy arguments adopted by the DOJ and other jurisdictions (e.g., Alaska); 2) preservation of the issue for review on appeal by objecting to the admission of the evidence at trial; and 3) pounding the facts of your case to show the Court that the lack of a readily available electronic record of the interrogation prejudices your client (see United States v. Bundy, 2013 WL 52221025, No. CR-11-2432 (D.N.M., August 26, 2013), for a good example of how to show prejudice in a case where there is no recording).

NOTE: OIDS appellate counsel Virginia Sanders represented Lonnie Craighead and noted the national trend toward recording custodial interrogations. If you have this issue, it would be advisable to obtain a copy of the brief that she filed in that case.

THE FELONY INFORMATION: SPECIFICITY

This is a practice pointer that takes us back to first principles involving the charging document, which in Oklahoma felony cases is called an “Information.” Typically, when I am hired by a client who has a case pending (or, for that matter, a direct appeal or post-conviction case), there are four things that need to be done in every case: 1) get paid; 2) acquire a copy of the Information and probable cause affidavit; 3) print out the jury instructions on the crime alleged; and 4) print out the statute governing the charge (along with the leading cases). Today I want to discuss the Information.

As in civil cases, the precision (or lack thereof) in drafting pleadings in criminal cases can have legal consequences either in favor of, or against, the drafter. The State is not immune to this general rule. One way to attack an Information is to argue that it is too vague and/or indefinite to put the accused on notice of what is being alleged. There are cases and legal principles that allow the accused to attack an Information on that basis, but that is a discussion for another day. This essay is about the opposite scenario: what happens when the Information is very specific in its allegations?

When I review an Information for the first time, I always make a note of any facts that are plead specifically, as well as the specific statutory citation listed. This is important because in many cases, there is more than one way for the State to prove the crime alleged. When it comes time to instruct the jury, you must make sure that the instructions reflect what was alleged by the State in the information. Two cases illustrate the point:

In Carter v. State, 1988 OK CR 250, 764 P.2d 206, Carter was charged with grabbing two girls by the hair and forcing them to walk down the street. An alert police officer noticed that the trio were acting strangely and circled back around, prompting Carter to run away. When he was subsequently apprehended, the State charged him with Kidnapping. The crime of Kidnapping can be committed in several ways, including causing a person to be “secretly confined” or imprisoned, causing a person to be sent out of the state against her will, or causing a person to be sold as a slave or in any way held to service against her will.

In Carter, the Information alleged that Carter held the two girls “to service against their will.” However, the trial court instructed the jury (over objection) on the theory of “secret confinement”–a theory that seemed to fit the facts at trial (and much easier for the State to prove), but was not alleged in the Information.

The Court held that since the Information charged the crime of Kidnapping via “service against their will” the trial court was without jurisdiction to instruct on the theory of “secret confinement.” This was a boon for Carter because the evidence was insufficient to meet the State’s burden that he had held the girls to service against their will, thus the case was reversed and remanded with instructions to dismiss.

Another good example is the unpublished opinion of Gregory Kyle Malone v. State, No. F-2003-257 (Okl.Cr., April 15, 2004). This was a First Degree Burglary case which, as we all know, requires the State to prove that the accused broke and entered a dwelling with the intent to commit “some crime” inside. The twist in Malone is that “the State’s Information in this case was unusually precise” because it charged Malone with intent to commit specific crimes (Robbery and Assault with a Dangerous Weapon).

At trial, the court instructed the jury on the general elements of Burglary in the First Degree (and also, oddly, instructed on the definition of “intent to steal” which was neither charged nor otherwise instructed). However, on appeal, the OCCA held that these instructions violated Due Process by improperly broadening the elements of the crime with which Malone was actually charged. Significantly, the Court stated:

The State’s burden changed when prosecutors charged Malone with first degree burglary with the particular intent to commit robbery or assault. Rather than having to prove that Malone intended to commit “some” crime when he committed burglary, the State had the burden to prove Malone intended to commit robbery or assault. That was the crime charged within the four corners of the Information, it was the crime proved at preliminary hearing, and it was the crime on which Malone had notice he was to defend himself at trial. By pleading specific language, the State told Malone those were the specific crimes he must defend against, not the more general statutory language of “some crime.”

Also critical is the Court’s holding that the strength of the State’s evidence at trial is completely irrelevant to the question raised. The question is whether the trial court instructed correctly on the law of the case. Since it did not, the case was reversed and remanded without any analysis concerning whether the State’s evidence was sufficient to meet its burden on the crime as instructed.

Thus, in cases of Kidnapping and Burglary in the First Degree, we need to pay particular attention to the way in which the State has pled its allegations in the Information. These principles could apply to other crimes that are susceptible to being proved and/or committed in multiple ways, such as Arson. For example, if you have an Arson case, did the State charge your client with burning the building, or burning the contents thereof? Did the State make
allegations of specific intent to burn the building? The answers to these questions will likely be dictated by the specific language of the Information, and it makes a difference to how you will defend the case in terms of opening statement, evidentiary presentation, and closing argument.

Next week, I will present an essay on the opposite problem: what to do when the Information is too vague and/or indefinite?

THE FELONY INFORMATION (II): VAGUE AND/OR AMBIGUOUS

Previously, I discussed what can be done when the State makes very specific factual allegations in the Information. Today, we will consider the opposite problem of what can be done when an Information is too vague or ambiguous in alleging what the client is to have done.

The purpose of a charging document in a criminal case is to: 1) apprize the accused of the elements of the offense charged; 2) provide the accused adequate notice of the charges against which he must defend; and 3) provide to the accused protection against double jeopardy by enabling him to plead an acquittal or conviction to bar future prosecutions for the same offense. See Russell v. United States, 369 U.S. 749 (1962).

Oklahoma statutes mandate that Informations must contain a statement of the acts constituting the offense, in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended. 22 O.S. §§ 401, 409(6). In addition, the act charged must be stated with such a degree of certainty as to enable the court to pronounce judgment upon a conviction “according to the right of the case.” 22 O.S. § 409(7).

Here is a list of considerations that might support a motion to make the Information more definite and certain if you notice that the Information in your client’s case is too vague:

1. DUE PROCESS: At the very least, the Information must be specific enough for your client to prepare a defense. Parker v. State, 1996 OK CR 19, 917 P.2d 908. Vague allegations crop up most frequently in child sexual abuse cases where the complaining witness is often unable to pinpoint a time frame for the allegations. This makes such cases difficult to defend. However, Oklahoma case law is barren of authority that is favorable on this point, but look to People v. Sedlock, 869 N.E.2d 14 (N.Y. 2007), and Valentine v. Huffman, 285 F.Supp.2d 1011 (N.D. Ohio 2003), affirmed in part, reversed in part, and remanded by Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005).

2. DOUBLE JEOPARDY: Apart from preparing a defense, is the Information specific enough so that, in the event of a conviction or acquittal, your client can claim double jeopardy if the State comes after him again for the same conduct? This is the rule in Russell and also Groom v. State, 1966 OK CR 143, 419 P.2d 286.

3. ALIBI: The accused must provide the State notice of an alibi defense. 22 O.S. §§ 585, 2002(B)(1)(b). If the Information claims that your client committed, for example, acts of child sexual abuse between January 1, 2005, and July 10, 2008, object and demand specificity. Explain to the court that your client has iron-clad alibis for a large portion of that time and it is impossible to give the State notice unless it alleges specific time frames.

4. 85% RULE & STATUTE OF LIMITATIONS: These are a little less obvious, but there are still cases out there where the timing of the crime implicates the 85% Rule and/or statute of limitations defenses.

NEGOTIATION TACTICS: LOOK BEYOND TITLE 21

Sometimes a case is going to plead out (as most will), but the stumbling block is that the charge is unacceptable to the client for some reason (e.g., sex offender registration, the 85% Rule applies, a conviction would impact a professional license, etc.) Often it is vital to scour the statute books and find a charge that will get the deal done. It is not as easy as it might appear.

One of the old standbys that we all have used is “outraging public decency” found at 21 O.S. 22, which seems to cover just about every criminal act in some way or another, plus it has the added benefit of being a misdemeanor. However, when the old standby will not work, remember that you can always look outside of Title 21.

The Legislature, in its wisdom, has enacted 85 titles of law for us to peruse, and in many of them it has enacted criminal statutes governing conduct in specific areas of commerce or industry. Thus, do not limit your research to the criminal code of Title 21. If you are a member of the Oklahoma Criminal Defense Lawyers Association (as you should be), you should have a copy of “My Little Green Book” on your desk. This is an excellent resource for looking up quirky criminal statutes in order to get that plea deal done.

One example that I have used in the past is 2 O.S. 11-10, which is a title that governs agriculture. This statute governs the theft of anhydrous ammonia and carries a punishment range of 2-10 years/$25,000 fine. This statute can be helpful in meth manufacturing cases wherein under 63 O.S. 2-401(G)(2), the penalty range is 7-life, and the possession of any amount of anhydrous ammonia in an unauthorized container shall be prima facie evidence to use such substance to manufacture; and also if the client is facing aggravated manufacturing which carries 20-life and is subject to the 85% Rule.

On the OCDLA listserv, Doug Parr posted another good statute to use in this area: 59 O.S. 353.24. This statute governs the possession of “dangerous drugs” without a prescription and also forgery of prescription to increase the quantity of drugs. The beautiful part is that these crimes are misdemeanors pursuant to 59 O.S. 353.25.

Finally, remember that these “quirky” statutes can be used for more than just plea bargaining
purposes. If the offense conduct for which your client is charged falls under these statutes more “specifically” than a general criminal statute, the legislative intent trumps prosecutorial discretion in bringing the charge. See State v. Franks, 2006 OK CR 31. Thus, if the prosecutor refuses to budge off of the more serious offense, you can use Franks in your motion to quash.

OPINION: EXONERATIONS: WHAT IS THE REAL STORY?

Last week brought another death row exoneration, this one out of Arizona and involving a woman, Debra Milke, who had spent 22 years on death row for the death of her 4-year-old son, who was killed allegedly for insurance money. A detective testified that Milke confessed. Two men are still on death row for their roles in the murder, but Milke is now free because it turns out that the detective—who did not record the confession—was prone to lying under oath and committing other misconduct hidden from the defense by prosecutors.

When I see these stories, which usually take the form of a camera crew following the usually-black inmate out of prison, professing to not be bitter and thanking Jesus for being freed, I am always struck by what I don’t see, and I become more frustrated and angry at the system—the media in particular—for failing to delve into these cases and give us the real story. The relieved face of the freed inmate, beaten down and shuffling from a prison cell to a waiting car, is not the story. The story, the real news story, is how he or she was convicted in the first place. I have rarely, if ever, seen a reporter ask that question or follow up with the people who made it happen. I do not want to see beaten down innocent people shuffling from a prison cell to a waiting car, smiling wryly and saying into the camera that they are not bitter about their experience. I want to see an explanation of why and how such an injustice happened to them, from those in power who made it happen, and some sort of acknowledgment that the system is responsive to the ways in which it is broken.

Where is the camera crew and reporter standing in the judge’s chambers, asking the trial judge how it came to be that an innocent person was convicted of a heinous crime in his/her courtroom? It is not like the judge was a disinterested party, passively watching the proceedings. Perjury was committed in the courtroom, or a prosecutor hid evidence, or a witness lied, or the evidence was lacking, or some other sort of fundamental breakdown occurred in the courtroom during the trial presided over by the judge. There was a breakdown in the process that occurred right under the nose of this person, and I would like to see the trial judges in these cases questioned and held accountable for their roles in allowing (if it can be shown) innocent people to be convicted in their courtrooms; or, at least an explanation as to how it happened and what steps the judge is taking so that it does not happen in the future. Why do we never hear this?

Where is the camera crew and reporter standing in the office of the District Attorney, asking the prosecutor to explain how his/her office employee or courtroom conduct landed an innocent person in prison or on death row? The prosecutor is often the chief culprit in convicting the innocent and hiding exculpatory evidence, but when are these people ever called out and forced to answer for what they do? It happens occasionally, of course, but I hardly ever see any pressure from the media or the Bar Associations to hold these people accountable, and to call them out by name and demand that they explain themselves.

A former prosecutor in Shreveport, Louisiana, A.M. “Marty” Stroud, III, recently penned an open and much publicized letter to The Times in Shreveport, detailing how reckless he was in prosecuting Glenn Ford in 1984 for a murder that we now know that Mr. Ford did not commit, but spent 30 years in prison for it. Stroud is to be commended for voluntarily telling us what we already know, that he was a young prosecutor more interested in his career and getting a conviction in a capital murder case than he was in justice, that he was never really inquisitive at all about other suspects or in learning about the investigation other than facts that convicted Ford, that he relied on racial discrimination in striking black jurors and junk science at trial, that he knew the defense attorney was unprepared and in over his head having never tried a criminal case at all, much less a capital murder case, and that he was simply interested in winning rather than making sure that justice was done.

Stroud also took the State of Louisiana to task for its disgusting stance on Ford’s efforts to obtain compensation from the state for being wrongfully convicted. Yep, the State is fighting that, too. Stroud’s mea culpa and his letter are commendable, but let’s face it, it comes 30 years too late, he will face no consequences for what he did other than having some guilt, and the system will continue churning on as if nothing had ever happened. Why is it that letters like his are the absolute and rare exception rather than the rule? Why aren’t prosecutors immediately called out by name in these exoneration cases and questioned about how the case was tried, what went wrong, and how to avoid such results in the future. Why doesn’t this happen? Where are the consequences for these people?

Where is the camera crew and reporter standing in the police department, asking crooked cops and their supervisors how it came to be that false evidence was presented under oath in court that landed an innocent person in prison or on death row? This isn’t limited to cops, either, because false or misleading testimony comes from medical examiners, lay witnesses (snitches), District Attorney investigators, and other state functionaries who provide the evidence used to convict innocent people and suppress evidence that would acquit. I never see law enforcement held accountable or forced to explain their behavior in these cases. We have sterling examples in our own state: Joyce “Black Magic” Gilchrist and Robert Macy. Gilchrist got fired for fabricating evidence as science, and nothing happened to Macy. Virtually no consequences for outright lying to juries and sending innocent people to prison.

DEMURRERS, MOTIONS TO QUASH, AND DIRECTED VERDICTS

This article is a little primer on the sometimes confusing roles of the “demurrer,” the “motion to quash” and the “motion for a directed verdict.” As with many things in our line of work, the key to understanding these concepts, and which one to assert, is timing.

PRE-TRIAL:

Pre-trial, you can file a DEMURRER that attacks the Indictment or Information on its face (e.g., it charges more than one offense, the facts stated do not constitute a public offense, etc.) These are filed pursuant to 22 O.S. sec. 504 on the grounds listed therein, and must be filed prior to the formal arraignment when your client enters his/her plea. NOTE: Do not let the client plead to the Information because this will waive all non-jurisdictional defects. See White v. State, 1980 OK CR 10, 607 P.2d 713 (“When a defendant enters a plea of not guilty, that plea waives all defects except subject matter jurisdiction, or a failure of the indictment to state a public offense”).

The pre-trial demurrer is very powerful because if it is granted, and the trial court does not direct that a new Information be filed, the order granting the demurrer is a bar to subsequent prosecution for the same offense. Thus, the case is over right then and the State cannot appeal. See State v. Young, 1994 OK CR 25, 874 P.2d 57; see also State v. Walton, 1925 OK CR 290, 236 P. 629 (a judgment sustaining a demurrer to the Information is far-reaching and conclusive as to the defendant’s liability for the crime charged as though it had been rendered upon a verdict of not guilty; further, the trial court must direct resubmission of the case or the filing of a new Information contemporaneously with the sustaining of the demurrer or else the preclusive effects are final).

In contrast to the demurrer, a MOTION TO QUASH for insufficient evidence after preliminary hearing looks to facts beyond the face of the Indictment or Information. See 22 O.S. 504.1. NOTE: You can file a motion to quash in misdemeanor cases also (see Young, supra). Typically, in felony cases you will attach or cite to the preliminary hearing transcript in support of your motion to quash. Unlike a demurrer, if a trial court grants the motion to quash, the state can appeal. See State v. Davis, 1991 OK CR 123, 823 P.2d 367.

Like the demurrer, a motion to quash must be filed before a plea is entered or else such defects in the Information are waived. Atkins v. State, 1977 OK CR 150, 562 P.2d 947; see also Primeaux v. State, 2004 OK CR 16, para. 18, 88 P.3d 893 (claim attacking the sufficiency of the evidence at preliminary hearing is preserved for appeal by a properly filed motion to quash prior to entering a plea). In addition, a motion to quash must be VERIFIED or it is not properly before the court. Atkins, supra.

NOTE ON VERIFICATION OF MOTIONS: ALL MOTIONS raising fact issues shall be verified by a person having knowledge of the facts, if possible; otherwise, a verified statement by counsel of what the proof will show will suffice until a hearing or stipulation can be provided. This is verbatim from Rule 4(c) of the Rules for the District Courts of Oklahoma. This is one of those rules that most of us do not strictly follow (and I am guilty as anybody), but strictly speaking, if you raise fact issues in your demurrer, or a motion to quash, or a motion to suppress, etc., you should verify the pleading. This was brought home to roost last year when a defense lawyer got hyper-technical in Washington County and moved to deem a motion confessed because the State did not file a written response within 15 days. Judge Janice P. Dreiling then got hyper-technical on defense counsel because the motion to suppress was not verified pursuant to Rule 4(c). This was the first time I had ever heard of a judge striking a motion because it was not verified, and I do not think most judges would do this, but it is an easily avoidable trap and we as a defense bar should start following this rule.

NOTE ON STANDING MUTE: For a long time, I viewed as a good policy advising the client to stand mute at the arraignment under the theory that if he does not enter a plea, he does not waive any defects in the Information or Indictment. However, I came across the case of In Re Habeas Corpus of William Carrell Pendygraft, 1968 OK CR 31, 438 P.2d 290, which seems to refute this notion. Thus, unless someone can point me to some more recent case-law on this topic, we should take special care to make sure that our demurrers and motions to quash are verified and filed prior to the formal arraignment and prior to the time the client enters a plea.

TRIAL PROCEEDINGS:

Well, you verified your demurrer and motion to quash, filed them properly before the client entered his plea, but the trial court denied them (note also that, strictly speaking, motions are properly either granted or denied by a court; objections are either sustained or overruled; I sometimes hear judges and lawyers say that a motion was overruled, but this is not technically proper). So, you have to proceed to trial.

When the State finishes presenting its evidence, what do you do? Demur to the evidence or move for a directed verdict of acquittal under 22 O.S. sec. 850? Or both? What about after the defense case? What about after the State’s rebuttal? The early cases from the Court of Criminal Appeals have not been clear.

In fact, some early cases have stated explicitly that there is “no such thing as a demurrer to the evidence in a criminal case in Oklahoma.”(!!) See Bradley v. State, 1929 OK CR 286, 279 P. 920; see also Spencer v. State, 1917 OK CR 203, 169 P. 270 (stating that since demurrers to the evidence in criminal cases are not recognized by the criminal code, the Court will treat a demurrer as a motion for a directed verdict of acquittal); Renfro v. State, 1980 OK CR 6, 607 P.2d 703 (“A demurrer to the evidence (properly called a motion for a directed verdict) admits for the sake of argument the facts which the State’s evidence tends to prove”).

However, the Court of Criminal Appeals cleared up this confusion in 1995 in the case of Omalza v. State, 1995 OK CR 80, 911 P.2d 286. In Omalza, the Court stated (apparently oblivious to the early cases of Bradley and Spencer and later Renfro) that the demurrer and the motion for a directed verdict of acquittal were “two systems of criminal procedure [that] have developed side by side to allow the defendant to challenge the sufficiency of the State’s case.” The Court described the demurrer as “rooted deeply in the common law” whereas the motion for a directed verdict was a creature of statute (22 O.S. sec. 850).

Although they seem similar, the Court stated that the fact that “these two procedural tools have been used interchangeably for generations does not mean they are the same, nor does the fact that the trial court applies an identical analysis to determine whether either shall be granted.” How are they different?

The key difference is that if a demurrer is granted, the count is dismissed right at that moment and it does not go to the jury. In contrast, if a motion for a directed verdict of acquittal is granted, the count goes to the jury with instructions from the court advising acquittal but also advising the jury that it is not required to acquit.

So, when do you demur to the evidence and when do you move for a directed verdict of acquittal? Based upon my reading of Omalza and 22 O.S. sec. 850, here is what I advise:

1. After the State rests its case-in-chief, defense counsel should both demur to the State’s evidence and move for a directed verdict of acquittal. As a practical matter, if the demurrer is sustained then the count is dismissed right then and does not go to the jury; thus, any motion for a directed verdict would be moot. But, I see no reason to not urge both at this time. You want the demurrer sustained because that takes it out of the hands of the jury. Since the standard is the same for both, you will have an interesting appellate issue if the trial court grants a motion for a directed verdict of acquittal but denies your demurrer. It does not appear to me that, under Omalza, a court can grant one but not the other.

2. If the defense presents evidence, defense counsel should move for a directed verdict of acquittal after the defense rests.

3. If the State presents rebuttal evidence, defense counsel should again both demur to the State’s evidence and move for a directed verdict of acquittal. NOTE: This procedural posture is somewhat ambiguous insofar as applicability of a demurrer because once the defense presents evidence in the case such evidence is part of the calculus of determining whether the evidence is sufficient. My feeling is that a demurrer is probably not proper, but in the absence of a case saying we cannot do it, I would go ahead and demur anyway.

Procedural Trap!!! Are Your Motions VERIFIED?

This procedural trap was posted on the OCDLA list-serv and I just had to pass it on here. A judge in Washington County (Hon. Janice P. Dreiling) dismissed a motion to suppress (after a hearing had been partially conducted) because the motion had not been verified pursuant to Rule 4(c), Rules for the District Courts of Oklahoma(!)

This rule does indeed state: Motions raising fact issues shall be verified by a person having knowledge of the facts, if possible; otherwise, a verified statement by counsel of what the proof will show will suffice until a hearing or stipulation can be provided.

Seems pretty clear, but I have never verified motions to suppress or similar motions “raising fact issues” (other than a motion to quash) and I have never heard of any judge, until this one, actually dismissing a motion on that basis.

So, the next motion you file that arguably “raises a fact issue” avoid the trap and go ahead and attach the verification page at the end just to be safe!

Out of State Subpoenas

Oklahoma City attorney Robert L. Wyatt, IV, provided this summary of the interstate compact governing out-of-state subpoenas. It is written from the perspective of representing a client who lives out-of-state but who has been or may be a witness to a criminal proceeding in Oklahoma.

The State must follow the Uniform Act to Secure Attendance of Witnesses from Without a State in Criminal Proceedings (22 O.S. 721 et seq.) If the state in which the client/witness resides is a signatory to the Uniform Act, then the State must:

1. Submit letters rogatory (motion to secure out of state witness) to an Oklahoma judge seeking a “material” witness;

2. The Oklahoma judge must submit to the foreign state judge an Order finding the witness to be material;

3. The foreign judge must then direct the witness to appear for a hearing in the foreign state and give the witness an opportunity to be heard in the foreign jurisdiction to contest the issuance of a summons (not a subpoena) on grounds that he is not material or that it is a hardship, etc.;

4. If the foreign judge approves the State’s request, a summons is issued to the witness. 22 O.S. 721 et seq.; and

5. If a summons is approved and issued, the State must also pay the costs of travel and a witness fee IN ADVANCE of the witness coming to Oklahoma (contrary to the usual rule that a witness receives the fee after testifying). 22 O.S. 723(C) and 722(D).

Bob has had success in several cases in which he has moved to quash a witness summons (in Texas, Virginia, Florida, and others) because the Oklahoma district attorney failed to set forth any “facts” to support finding that the witness is “material.” Generally the State just inserts a “conclusion” in the motion stating forth that the witness is material. At the hearing in the foreign state, a D.A. from the foreign state generally appears at the hearing not knowing anything about the case. When the defense attorney complains that the statement of materiality is just a “conclusion, ” the local (foreign) D.A. has no evidence to support the finding. That leaves the local (foreign) judge the opportunity to reject the summons.

Procedural Trap: Defense Rebuttal (OCDW 07.16.07)

THE TRAP: I have filed two appeals recently in which the trial courts have refused to allow defense witnesses to testify on the basis that defense counsel did not endorse the witnesses prior to trial pursuant to the discovery code. The Court of Criminal Appeals also addressed this issue in the unpublished Smith case outlined above. I perceive this to be a serious problem and the subject of some confusion among the defense bar.

In the two cases I filed on appeal and also in Smith, defense counsel argued that the defense witness was a rebuttal witness and therefore no notice to the State was required. The ambiguity is present when the defense witness is used to rebut testimony from a State witness in the State’s case-in-chief. If your witness is used to rebut a State witness who testified during the State’s case-in-chief, your witness will most likely be deemed a witness for the defense case-in-chief and NOT a rebuttal witness. THIS MEANS YOU MUST ENDORSE THE WITNESS PER THE DISCOVERY CODE AND IF YOU DO NOT THE TRIAL COURT WILL NOT ALLOW THE TESTIMONY AND THE COURT OF CRIMINAL APPEALS WILL AFFIRM THIS RULING.

The confusion stems from the fact that a defense witness who contradicts a State witness appears to be a rebuttal witness. But the Court of Criminal Appeals does not look at it that way. The Court has held that such defense witnesses are not true “rebuttal” witnesses, but rather witnesses that must be presented during the defense case-in-chief. See Short v. State, 1999 OK CR 15, 980 P.2d 1081.

My reading of the cases is that the Court will consider a rebuttal witness a witness called by the State to rebut a witness by the defense. The defense is then entitled to present witnesses in surrebuttal. It is the surrebuttal witnesses that you do not have to endorse prior to trial. Witnesses that simply contradict the witness testimony of the State’s case-in-chief will not be considered rebuttal and you will most likely not be able to call the witness unless you have complied with the discovery code.

Defense lawyers as a group do not like to divulge information to the State unless we must, but if you are gearing up for trial, I suggest you look carefully at Short and Smith because you could run into a buzz saw if you are sandbagging your witnesses. Trial judges do not like it when we do this. They will not be persuaded by your argument that your witness is only rebuttal and the Court of Criminal Appeals will agree. I have seen it in the two appeals I filed, in Smith, and in the research I have conducted on this issue. Do not fall into this trap!

WHAT TO DO IF YOU ARE IN THE TRAP: If you find yourself in this bind and the trial court rules that you have violated your discovery obligations, your option at that point is to make a good record of requesting a sanction less than preclusion of the witness.

Under the discovery code, the trial court has broad discretion to remedy discovery violations. The State endorses witnesses late all the time and typically the trial judge will let them, but will look at you and ask you how much time you need to interview the witness. You can do the same thing. Ask the trial court for a brief continuance so you can make your witness available to the State and provide any written statements you have concerning the witness.

If the trial court will not continue the trial, argue that the State did in fact have notice of the witness and there is no surprise (which will often be the case since your witness most likely will be known to the police and/or the prosecutor).

Finally, if the trial court lowers the boom and precludes your witness from testifying, you must make an offer of proof in order to show the Court of Criminal Appeals the testimony that would have been offered by your witness, how unfair the trial was without the witness, and how your client was prejudiced by your negligent representation. :))

Discovery Alert: E-Mails, Text Messages, Cell Phone Logs from Cops Discoverable?

By now all of you have surely seen police officers sitting in their squad cars using cell phones, sending texts, and using their portable computers to further investigate your clients. Are these things discoverable in a criminal case? The question is a little bit unclear, but a new opinion from the Attorney General indicates that the answer might be, “Yes.”

Question Submitted by: Susan C. McVey, Director, Oklahoma Department of Libraries, 2009 OK AG 12 (A.G. Op., May 13, 2009), poses the following question: “ARE E-MAILS, TEXT MESSAGES, AND OTHER ELECTRONIC COMMUNICATIONS MADE IN CONNECTION WITH THE TRANSACTION OF PUBLIC BUSINESS, THE EXPENDITURE OF PUBLIC FUNDS OR THE ADMINISTRATION OF PUBLIC PROPERTY, SUBJECT TO THE OKLAHOMA OPEN RECORDS ACT AND THE RECORDS MANAGEMENT ACT WHEN THEY ARE CREATED, RECEIVED, TRANSMITTED, OR MAINTAINED BY PUBLIC OFFICIALS ON PRIVATELY OWNED EQUIPMENT AND COMMUNICATION DEVICES?

The answer, according to the Attorney General, is “Yes.” In a prior Opinion, the Attorney General had opined that such communications generated on public equipment was covered by the Act. This new question asked whether privately owned devices were covered as well; or, as phrased by the Attorney General, “whether the ownership of communications equipment is relevant in deciding when the Opens Records Act or Records Management Act applies to electronic communications. The AG opined that ownership of the devices does not matter. The communications are still covered.

What does this mean? For now, it means that at a minimum we should all re-tool our standard discovery motions to include communications from all cell phones and laptops, including e-mails and text messages, used by police officers in the investigation of the case. Although there may be further litigation on this point since law enforcement investigation communications might be exempted, note that once the charge is filed the case is no longer being investigated (it is being prosecuted).

The Execution of John Albert Boltz

John Albert Boltz was put to death on Thursday, June 1, 2006, at OSP. John was a client of mine for seven years (I was appointed to represent him in federal habeas) and he became the oldest inmate to be exectued in Oklahoma history (he was one month shy of his 75th birthday).

The lethal injection procedure has come under fire recently as evidence mounts concerning the inadequacy of the protocol used in Oklahoma. Oklahoma uses three drugs and between unqualified personnel administering the drugs and the low dose of the sedative drug, there is a significant risk that the prisoner may experience “conscious paralysis” which means he may be aware and able to feel pain yet be paralyzed and unable to tell anyone. This creates a situation where the administration of the other two drugs may be felt by the prisoner and without proper aneshesia, the other two drugs are very painful.

The Pardon and Parole Board denied clemency on May 23, 2006, and this lethal injection argument was about the only thing left. The LI claim was brought as a federal civil rights claim under 42 U.S.C. section 1983 rather than habeas because it attacks the implementation of the sentence rather than the sentence itself; and also the civil rights route avoids some of the very serious procedural hurdles applicable to successive habeas petitions.

United States District Judge Stephen P. Friot set a hearing on my application for a TRO at 11:30 a.m. the day of the scheduled execution. The hearing took over two hours and in the end Judge Friot issued the TRO. The State promptly appealed to the Tenth Circuit. This is one of the hazards of eleventh hour capital litigation and I had been through it all several times before. The clerks receive the briefs by e-mail and sometimes a litigant must file a “prospective” or “anticipatory” brief concerning a decision that has not occurred. I did this in the United States Supreme Court before the Tenth Circuit issued its decision (in the event the Circuit dissolved the stay by Judge Friot). The Circuit did in fact dissolve the stay and it took the Supreme Court until about 5:45 p.m. to finally deny all relief. That was the end of the road.

John invited me to witness the execution but I could not make it in time because of the flurry of litigation at the end. I am firmly convinced that he did not deserve the death penalty. He in fact stabbed his 22-year-old step-son to death but argued all along it was self-defense. The attack happened at John’s trailer house and I believe that had the Make My Day and the Stand Your Ground laws been in effect at the time of his trial his case may not have gotten past preliminary hearing.

This was a true injustice in my opinion and one of the cases that will stay with me for a long time. Randy Bauman of the Federal Public Defender’s Office assisted me greatly in the end (Randy had represented John way back in state post-conviction) as did Lisa McCalmont, another lawyer in his office who I think is probably one of the foremost experts in the country on the lethal injection claim. I thank both of you for your efforts and assistance.

RIP, John.

Bifurcated Trials: Some Tips When Your Client has Priors

The unpublished opinions Anthony Joseph Frost v. State and James Newton Nye v. State contain some good law on how the State can use your client’s prior felony convictions in jury trials where the State has to prove the existence of the prior felonies in order to enhance. This is, of course, a horrible situation for the accused but defense counsel can mitigate the State’s use of such evidence and now you have the case law to do it! The State will generally introduce documents from the court file to prove the priors, usually the J&S and whatever else it feels it can introduce to prejudice the jury. If you are in trial in a bifurcated case, look at the documents closely and keep in mind the following:

1. Make an on-the-record motion to redact the actual sentences that were imposed for the prior felony convictions. The Frost case (and the published authority cited therein) holds that it is an abuse of discretion for a trial court to refuse such a request. You must request this in order to get it!

2. Move to redact any mention of jail stays or suspended or revoked sentences in the documents. The Nye case holds that the introduction of such evidence is plain error.

3. Make sure to move in limine and to object at trial if the prosecutor comments on the sentences imposed for the priors, asks your client about how much time he served, or if the prosecutor comments on or alludes to the possibility that your client got paroled on the priors. Use the Frost case for this. Mentioning the length of the sentence imposed may give rise to an inference that your client was paroled at the time he committed the new crime and such is not for the jury to consider.

Basically, it appears that these cases are good authority to limiting the State strictly to the J&S and arguing the fact that the crimes were felonies. Anything more than that should be met with an objection and motion for a mis-trial.

Unpublished Authority: Move to Publish!

This note/suggestion goes out to all the appellate gurus out there, but particularly to OIDS appellate division because they do so many appeals: file motions to publish the “good” unpublished opinions. If you have been following this newsletter for very long you can see that there are very helpful unpublished opinions flowing out of the Court on a regular basis.

The Court is receptive to publishing these helpful cases if prodded to do so. The way to go about it is to file a written motion with the Court explaining the reasons why publication would be helpful to the bench and bar. I have not found a specific rule on this, but Rule 12.12 deals with the criteria for publishing opinions of the Emergency Appellate Division of the Court and provides some guidance. Such opinions may be published if they:

1) Establish a new rule of law, alter or modify an existing rule, or apply an existing rule to novel fact situation likely to recur in future cases;

2) Involve a legal issue of continuing public interest; or

3) Resolve an apparent conflict of authority.

So, when that winner comes in the mail but it’s a Summary Opinion, check it carefully and see if publication is warranted and if it is then pursue it.

A Note About Immunity

Last week I reported an unpublished COCA opinion, Currie v. State, which dealt with use immunity in a Tulsa case given by the trial court which essentially forced the client to testify or be held in contempt, even over a claim of Fifth Amendment privilege. I pondered the question of whether such state-granted immunity would bind the feds and, if not, then a Fifth Amendment claim should have prevented the forced testimony–even in light of the immunity grant by the State court judge.

The question is worth considering because sometimes it is much more important to the client to avoid testifying at all than to receive the immunity grant.

Stephen Jones, Enid, has brought to my attention the case of Murphy v. Waterfront Commission of New York, 378 U.S. 52 (1964), which appears to be right on point and holds that a state court immunity grant is binding on the federal government as well.

So, it appears that Currie would indeed be forced to testify or face contempt; and would have no recourse in the federal courts. On the plus side, at least Currie can be assured that the feds will be precluded from using the testimony, too. Thanks to Stephen for the case.

A Note on Oral Arguments in the Tenth Circuit

For those of you who have never argued a case in the Tenth Circuit Court of Appeals, below are my notes and experiences from one of my early arguments:

I argued a capital habeas case before a Tenth Circuit panel in Denver on Tuesday, May 3, 2005. Immediately after my argument, Robert Jackson presented the case for another capital habeas client, with Steve Presson assisting him at counsel table. The panel consisted of judges Tacha, O’Brien, and Tymkovich. These proceedings are exceedingly nerve-wracking, at least for me, and since not everyone gets to do them, I thought I would make a quick-and-dirty list of how it goes down in case you find yourself staring up at three black robes.
Hopefully, you will have found the courthouse and checked in with the clerk’s office a half hour prior to the argument time and the clerk can direct you to the courtroom (the clerk will have provided detailed instructions in writing way in advance of the argument date). When you get to the courtroom, another clerk will be there to get things set up and take care of any last-minute problems. The tables are marked clearly “Appellant” and “Appellee” so you do not have to guess where to sit (facing the bench, the Appellant sits on the right).

You get 15 minutes. I have asked for more time in the past, and in death cases they sometimes give more time, but the most I have ever gotten was 20 minutes. At the podium, there is an electronic timer at eye-level set at 15 minutes and it counts down as you argue; there is also a clock on the reverse side so the judges can see the time also.

The Judges file in, the clerk calls the court to order, and the presiding judge, sitting in the center, will call the case. It happens pretty fast, so if you are first up, be ready; if you are not first up then you can watch and see how things go. On Tuesday, I was first up. Ugh.

Do not tarry. You just walk up to the podium, say, “May it please the court,” introduce yourself, and start on your spiel. The clock will be counting down from the moment you open your mouth and from my experience, I would be surprised if you can talk for more than two minutes without being interrupted by a question from the bench, with one minute more likely. In other words, do not rehearse a speech that lasts 15 minutes–you will most likely not be able to finish it.

It is this dynamic that makes the oral argument both interesting but also stressful: you will be put on the spot by the judges asking you difficult questions about your case. For this reason, memorizing a speech will not be useful to you. Frankly, neither will notes. If you have to break your presentation and look at notes or take time to look through your brief I think you will just waste time, most likely not find what you need, appear unprepared, and irritate the judges. At that point, you either know your case or you don’t and I would just tell the judge if you don’t recall some detail and move on.

I prepare with 3×5 note cards that I use to outline the issues and facts and I take the cards up to the podium with me, but I have never actually stopped talking and looked at them. I saw Michael Tigar do this (prepare with the note cards) during pre-trial proceedings in the McVeigh trial and I like it. He didn’t look at his note cards either when delivering an agument, as I recall.

The time goes by much faster than you imagine. I mean it zooms. You will not be able to discuss but a fraction of the legal and factual concepts of your case most likely; and you will be steered away from things you want to talk about to issues the judges want to talk about.

When time gets short, if you are the Appellant, you can reserve some time for rebuttal. Always do this. This last argument I had was the first one that I did not reserve time and I am kicking myself for it. With two minutes left I got involved in a question from Judge Tymkovich and let my time run out answering. I should have just said I reserve 30 seconds for rebuttal and asked him if he wanted me to continue with the answer.

When you sit down, I am certain that your adversary will say something to the court that needs to be corrected or rebutted. Use your time sitting and listening to your opponent to make short, pithy replies to the lies…okay, argument…he/she makes so you can respond succinctly with your rebuttal time.

When your time is up, you collect your stuff off the table, the court will announce that the case is submitted and will call the next case. The lawyers for the argument after yours will be walking up to take your place. Get your stuff gathered up quickly, shake hands with your opponent, and get the heck out of Dodge.

Denver is a very scenic and interesting city. If you must go there anyway for the argument, I would suggest spending an extra day or two in the city with your spouse/significant other. Lots of good restaurants and things to do there.

DEPOSITIONS IN A CRIMINAL CASE

Depositions in a criminal case are allowed to be taken either before a judge or a court reporter pursuant to 22 O.S. §§ 761 et seq. Such depositions are referred to as “conditional examination” and is a procedure that takes place after the accused has been bound over for trial. Conditional examinations are allowed in three circumstances:
1) When a material witness is about to leave the state (22 O.S. § 762);

2) When a material witness is “so sick or infirm as to afford reasonable grounds for apprehending that he will be unable to attend the trial[.]” (22 O.S. § 762); and

3) “Where the magistrate terminated the preliminary hearing pursuant to Section 258 of Title 21 of the Oklahoma Statutes and a witness subsequently refuses an interview with counsel for the opposing party[.]” (22 O.S. § 762.1).

I found ambiguity whether the termination of the preliminary hearing itself triggers the right of the accused to seek depositions, or whether the accused must affirmatively subpoena the witness or try to call the witness at the PH and be denied. It appears to me that the best procedure would be to take some form of affirmative action at the PH itself such as seeking a continuance in order to call the witnesses and state their names on the record; or, have subpoenas issued for the witnesses and try to call them at the PH after the magistrate terminates pursuant to 258 (obviously, if the magistrate does not terminate the PH, you just call the witnesses to the stand). My sense is that it is important to attempt to call the witness at the PH in some manner and be denied. Then, attempt to interview the witness and be denied. Then you will be ready to apply for the deposition.

The applications are governed by 22 O.S. § 763, which states that the application must be made upon affidavit stating the nature of the offense charged, the state of the proceedings in the action, the name and residence of the witness and that his testimony is material to the defense of the action, and either that the witness is about to leave the state, is infirm, or that the magistrate terminated the PH pursuant to 258 and the witness refuses to grant an interview to counsel (the three statutory bases for the examination).

The deposition must be made before a magistrate or upon agreement of the parties, before a certified court reporter. Finally, when you make such an application, the opposing party, if any, is entitled to five (5) days notice (22 O.S. sec. 764).

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