OCDW 04.03.17

 

(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).

 

 

State ex rel. Oklahoma Bar Association v. McMillen, 2017 OK 26 (March 28, 2017): IAC (Attorneys): This is a Bar disciplinary proceeding involving plea agreement by attorney to DUI, DUS, and causing an accident. It outlines the process for immediate interim suspension, and the process for lifting that suspension (here, final discipline was a public censure). NOTE: I included this case because when a lawyer is also a client, disciplinary matters relating to a law license (and particularly immediate suspension upon plea and conviction) may be relevant regarding whether the plea was knowing and voluntarily entered.

State ex rel. Oklahoma Bar Association v. Drummond, 2017 OK 24 (March 28, 2017): Attorneys: This is a bar disciplinary proceeding involving a lawyer whose problems began by becoming involved with an inmate and bringing a cell phone into the jail for him to use. There were other issues as well, but I included this opinion as a cautionary tale because clients sometimes make these demands on lawyers (it has happened to me several times), but it is never wise to become involved with a client that way, particularly when the person is in custody.

In Re Adoption of Procedures for the Notice and Filing of Opinions, 2017 OK CR 6 (March 31, 2017): This Order designates Thursday as the day that the Court will issue opinions, with notice of which opinions are going to be issued to be given on Tuesday. NOTE: This Order is mystifying and I fail to see the point of it. Judge Lewis dissented, characterizing this rule change as a “classic example of a solution seeking a problem” and I agree with that assessment. As it is, the Clerk simply e-mails the opinions as they are filed. This system works great, is convenient, and is free. The Court has chosen to tinker with a good thing, which cannot end well.

Rousch v. State, 2017 OK CR 7 (March 29, 2017): Double Jeopardy: Rousch was convicted by jury in Tulsa County (the Hon. Kelly Greenough, presiding) of three counts of Making Obscene, Threatening, or Harassing Electronic Communications, a misdemeanor. He raised an issue of multiple punishment for the same conduct, but the Court rejected this claim, construing the “continuing offense” language of the statute to refer to the locations and jurisdictions in which the offense may be held to have occurred; not as a limitation on punishment.

 

 

United States v. Robert Howard Snyder, No. 16-8108 (10^th Cir., March 28, 2017) (Published) (Tymkovich, C.J., Holmes & Phillips): Federal Sentencing Guidelines (Crime of Violence): Applying the new SCOTUS case of Beckles v. United States (rejecting a vagueness challenge to the residual clause of Guidelines section 4B1.2(a)(2), the panel rejected the sole claim on appeal that a prior conviction for voluntary manslaughter is a “crime of violence.”

 

 

“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).

 

Bobby James Moore v. Texas, No. 15-797 (U.S., March 28, 2017): Death Penalty (MR): The Court reversed denial of relief on a mental retardation (intellectual disability) claim in this capital case out of Texas because the Texas CCA applied its old precedent instead of newer medical sources.

 

 

United States v. Miguel Angel Escamilla, Jr., No. 16-40333 (5^th Cir., March 29, 2017): Search and Seizure (Cell Phone): Drug convictions affirmed, but post-arrest search of cell phone unconstitutional.

United States v. Rakesh Wahi, No. 15-2094 (7^th Cir., March 2, 2017): Expungement (Fed): This opinion delivers a death knell to the power of a district court to expunge court records in a closed criminal case in light of Kokkonen v. Guardian Life Insurance Co., 511 U.S. 375 (1994). NOTE: Federal expungements were already on thin ice, but it seems that the prevailing authority in the Courts of Appeals is that there is no such authority.

United States v. Ricky Isiah Sherwood, No. 15-2902 (8^th Cir., March 6, 2017): Supervised Release: In this sexual assault case, imposition of two conditions are reversed (requirement to provide PO with any personal financial information; and obtaining PO approval before incurring new credit charges).

Rick Allen Rhoades v. Lorie Davis, Director, No. 16-70021 (5^th Cir., March 27, 2017): Habeas Corpus (COA): The panel granted a Certificate of Appealability on three issues. NOTE: Good discussion of COA standards, particularly when the state appellate courts are divided.

 

 

JACQUI FORD, OKC, scored fabulous jury trial victory in a First Degree Murder case in Oklahoma County last week, securing an acquittal by a jury after only 20 minutes of deliberation. The State’s star witness made so many inconsistent statements that the jury did not believe her. Nice win, Jacqui!

CREEKMORE WALLACE, Sapulpa, won a jury trial last week representing a client on a charge of stalking. This is another jury trial win for Creek, who is one of the best trial lawyers our state has produced. Creek quipped that during jury selection, a female juror told the judge that she knew Creek because he had represented her husband in a divorce, but would not hold it against him. A male juror on the lower row told the judge that he knew Creek because Creek had represented him in a divorce. The juror then identified the wife in the upper row as his ex-wife, and said that she would hold it against him. The husband also said that he knew a good lawyer while looking at Creek; the ex-wife looked around and said, “Where, I don’t see one.” Keep up the good work, Creek!

BRECKEN WAGNER, McAlester, suited up in LeFlore County and secured a not guilty verdict from a jury for his, shall we say difficult, client who was accused of intimidation of a State witness. Good job, Brecken!

 

 

R.I.P. The Bar lost two exceptional lawyers last week:

JACK DEMPSEY POINTER: In a legal career spanning 45 years, Jack was a mentor for many and always a fighter in the courtroom for his clients. He was the recipient of the Lord Thomas Erskine Award as well as the Clarence Darrow Award. Jack was a key leader and member of the Board of the Oklahoma Criminal Defense Lawyers Association since 1991, guiding the organization to assist practicing lawyers in Oklahoma during that time. I worked with Jack on several cases, and he always had a fighting attitude, a good legal mind, and was not afraid to push arguments in favor of the client no matter where they led. RIP Jack.

JOHN GREEN: Longtime Assistant U.S. Attorney John Green passed away on March 21, 2017. Mr. Green was acting U.S. Attorney on at least six different occasions, and was regarded as one of the best federal prosecutors to ever come down the pike. Mr. Green was also the second black law student at the University of Oklahoma.

 

OFFICER KILLED: A 22-year-old Tecumseh police officer Justin Terney was shot and killed during a traffic stop last week.

SHORTEY APPEARANCE: State Sen. Ralph Shortey made his initial appearance in Cleveland County District Court last week, and remains free on $100,000.00 bond.

“ANGEL” DEAD: The “Angel of Death” serial killer, on death row in Ohio, was himself murdered in his cell.

CARTER COUNTY: The Carter County Sheriff has explained his progress in the first 100 days, including saving $15,000.00 a month by instituting “menu changes” at the jail.

KAY COUNTY: The Kay County Court Clerk has decided to close the satellite office in Ponca City, a decision that is being questioned by some attorneys.

SENTENCING: The Tulsa World penned an editorial advocating lawmakers to rethink the sentence of life without parole.

JAILER ARRESTED: A 25-year-old jailer in Custer County has been arrested for sexual contact with two female inmates.

GLOSSIP DOCUMENTARY: Discovery ID is presenting a documentary about the case of death row inmate Richard Glossip.

ARKANSAS EXECUTIONS: The State of Arkansas is going to execute 8 inmates over an 11 day period beginning on April 17—a pace that is unprecedented in the modern era.

RETIRING: Warden Janice Melton of the Bill Johnson Correctional Center, the longest-serving warden in DOC, has announced her retirement. Becky Guffy has been named as her replacement.

 

WACKY CRIME

GROPED: A woman was groped on a flight from Las Vegas to Portland…by another woman, who has pled guilty to the crime.

 

 

FRIDAY, AUGUST 7, 2017: Justice Steven W. Taylor (Retired) will be the guest speaker on the subject of open government at the Night of Sunshine dinner for Freedom of Information Oklahoma. The dinner begins at 6:00 p.m. and will be held at The Venue at The District House located at 1755 N.W. 16^th St., OKC, OK. Tickets are $50.00 and support the efforts of the organization to fight for open records and open meetings.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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