OCDW 09.11.17

 

(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).

 

REMEMBER 9/11: It is hard to believe that this is the 16^th year anniversary of the 9/11 attacks. Even after such a long time, it seems so inconceivable that it happened.

No. 16: COMANCHE COUNTY: Comanche county, named after the Comanche tribe, is the fourth most-populous county in Oklahoma, and the county seat is Lawton. It is the home of Ft. Sill Army post and Cameron University. I have had several cases down there, which brings my county total to 11 out of 16.

 

 

Willis v. State, 2017 OK CR 23 (August 31, 2017): Confrontation/Cross-Examination; Statutory Construction (Use of Technology to Solicit Minor); Evidence (Relevance): Willis was convicted by jury in Oklahoma County (the Hon. Cindy H. Truong, presiding) of Soliciting Sexual Conduct with a Minor by Use of Technology, but the jury did not recommend a prison sentence at all, only a fine of $4,000.00. Willis brought up a photo of a scantily clad teenager on his cell phone (not child porn) and showed it to another man to offer sex with the girl. The Court held that this factual pattern was covered by the statute of using technology to solicit sex with a minor (in other words, the solicitation does not have to be directly to the minor). Also, on a count of Attempting to Obtain Money under False Pretenses presented at PH (but subsequently dismissed), the State presented the PH testimony at trial. The Court found no error because Willis was able to cross-examine adequately. Finally, the State introduced evidence that Willis was an elementary school teacher in the Oklahoma City Public Schools, and also that he had a locked room in his home that contained a mattress and sexual paraphernalia. The Court appeared to hold that these evidentiary matters were irrelevant and prejudicial, but ultimately harmless. NOTE: The Court also refused to consider a claim of prosecutorial misconduct (urging the jury to convict in order that Willis would have to register as a sex offender) because it was not raised as a separate claim of error (although it was raised in a numbered sub-claim). The Court has been more aggressive in doing this lately, so it might behoove appellate counsel, when in doubt, to create another proposition heading when discussing a claim of error.

Jerry Sullivan v. State of Oklahoma ex rel., Department of Public Safety, No. 115,729 (Okla. Civ. App., Div. I, August 30, 2017) (Not for Official Publication): DUI (DPS): The Hon. Marion D. Fry (LeFlore County), set aside a revocation Order based upon a violation of the right to a speedy trial, but a written journal entry was not filed until after the revocation period had expired. The Court found that the issue was not moot and affirmed.

Jennifer A. Nicholson v. State of Oklahoma ex rel., Department of Public Safety, No. 115,618 (Okla. Civ. App., Div. I, August 30, 2017) (Not for Official Publication): DUI (DPS): District court order vacating revocation order based upon denial of speedy hearing (over a year delay) is affirmed.

Steven Scott Collier v. State of Oklahoma ex rel., Department of Public Safety, No. 115,405 (Okla. Civ. App., Div. I, August 30, 2017) (Not for Official Publication): DUI (DPS): Delay of 14 months to have hearing is excessive; district court order setting aside revocation order is affirmed.

 

 

United States v. Andre Ralph Haymond, No. 16-5156 (10^th Cir., August 31, 2017) (Published) (Kelly, Briscoe & McHugh) (N.D. Okla., Hon. Terence C. Kern): Supervised Release: Revocation of supervised release is affirmed, but the sentence is vacated on the basis that 18 U.S.C. 3583(k) is unconstitutional because “it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and it imposes heightened punishment on sex offenders based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt.” NOTE: Judge Kelly dissented.

 

 

“Only Supreme Court justices and schoolchildren are expected to and do take the entire summer off.” –Chief Justice John Roberts (statement made while he served as a lawyer in the Reagan Administration).

 

No new cases.

 

 

In Re: Grand Jury Subpoena, No. 16-4096 (4^th Cir., August 18, 2017): Grand Jury; Evidence (Privileges, Work Product): District court denial of motion to quash grand jury subpoenas to criminal defendant’s attorney and investigator is affirmed in part and reversed in part; part of the testimony sought is in fact work product that may be compelled under the crime-fraud exception to the privilege, but the Government is not allowed to ask general questions about opinion work product.

United States v. William Todd Chamberlain, No. 16-4313 (4^th Cir., August 18, 2017) (en banc): Forfeiture: The en banc court aligns circuit precedent construing 21 U.S.C. 853 (regarding pre-trial restraint on innocent property) with the other circuits in light of the recent decision from SCOTUS in Luis v. United States, 136 S.Ct. 1083 (2016) (holding that freezing untainted assets needed to hire counsel of choice violates the Sixth Amendment).

United States v. Hemza Menade Lefsih, No. 16-4345 (4^th Cir., August 14, 2017): Judicial Bias: Conviction for immigration fraud is reversed when the trial court asked questions and expressed contempt for a government immigration program.

United States v. Sealed Search Warrants, No. 16-20562 (5^th Cir., August 21, 2017): Sealed Pleadings: The Government used sealed probable cause affidavits to obtain three pre-indictment search warrants of a home, business, and storage unit. The owner, who has not been indicted, moved to unseal the affidavits. The district court denied the request, but the panel reversed, finding that the district court had failed to articulate detailed reasons for the balancing test.

 

 

CHAD JOHNSON, OIDS Appellate Division, represented a client out of Garfield County who had a deferred accelerated to a 10 suspended, with three years of it revoked in 2010. In December 2016, the remaining 7 were revoked also. The problem was, the maximum sentence for the crime was four years, making sentences void. The State, to its credit, bypassed a fight in the OCCA and agreed to the client’s release. Nice work, Chad!

ADAM BANNER, OKC, took a Lewd Proposal case to jury trial before Judge Truong in Oklahoma County. The client took the stand, withstood cross-examination, and after about 30 minutes of jury deliberations, walked out the door.

 

 

CRAZY COP: A detective in Utah caused a stir a couple of weeks ago when he arrested a nurse who refused to draw blood from an unconscious patient. The entire incident was caught on a body cam.

CITY DRUGS: The City of Duncan is considering whether a charge of simple possession should be handled in municipal court.

VICTIM’S RIGHTS: An initiative is being pushed to amend the Oklahoma Constitution to include victim’s rights.

HOLTZCLAW NEWS: Supporters of former Oklahoma City police officer Daniel Holtzclaw gathered in Enid recently for a screening about wrongful convictions.

WATER PROBLEMS: The Oklahoma State Reformatory at Granite is having water issues.

HELPING HAND: DOC halfway houses are doing a good job, especially in Enid.

NEW JUDGE: April Seibert has been sworn in as a new Special District Judge in Tulsa County.

FIREBOMBED: An arsonist set a patrol car on fire in Tulsa.

LOW LEVELS: In surprising news, the population at the Oklahoma County Jail has fallen below 2,000, the lowest level in years; however, there is now a record 63,009 inmates in Oklahoma prisons.

FIX IT: A federal judge in New York says that prosecutors rule the criminal justice system and it needs to be fixed.

BEAUTY SCHOOL: Interesting article about a beauty school at Mabel Basset prison for women.

OSP HISTORY: Former OSP Warden Dan Reynolds has published a book on the history of OSP.

SUED: Defense attorney Winston Connor, who fights hard for clients up in Miami, has filed a libel/slander suit against District Attorney Kenny Wright stemming from statements made by Wright about taped conversations that Connor had with a client. THIS prior story details the investigation.

SUING: A former state Inspector General who wanted to shut down the Scientology-based Narcanon Arrowhead drug treatment facility has sued, claiming that she was fired after blowing the whistle on an attempted cover-up.

FORMER SHERIFF PLEADS: Former Wagoner County Sheriff Robert “Bob” Colbert has pled guilty to a misdemeanor charge of willful neglect of duty.

FOLLOW-UP: This is a follow-up story on the former aide to Gov. Fallin who may be facing charges for up-skirt photos.

NEW CHIEF: Corbin Brewster has been named the new Chief Public Defender in Tulsa County.

STATE SENATOR CHARGED: State Senator Bryce Marlatt, R-Woodward, has been charged with sexual battery of an Uber driver in Oklahoma City.

SHOREY CHARGED AGAIN: Former State Senator Ralph Shortey has been indicted in federal court this time on child sex crimes, although it appears that the state charges will be dismissed.

ARRESTED: A man has been arrested for hit-and-run targeting the homeless in Tulsa.

BLACK EYE: Racist video clip from Durant is another black eye for our State.

JURISDICTION: An Elk City man, not competent to stand trial, remains locked up while state agencies decide who has custody of him.

CHARGED: The former town clerk of the town of Roff has been charged with embezzlement.

DWINDLING: The State of Virginia’s death row is down to just four inmates, from 57 in 1995.

 

WACKY CRIME

 

OBJECTIONABLE TAG: A prosecutor in Fannin County, Texas, has a license plate that reads: HANG EM.

HARDENED: Hardened criminals from Louisiana were captured in Duncan…trying to steal pink children’s bicycles.

DISTURBING: A teacher in Hilldale has quit because a second-grader attacked her, took off his clothes, and waived his genitals around in class.

NEEDED A RIDE: A woman in Tulsa was released from the hospital and needed a ride home…so she boosted an ambulance.

CRANKY OLD MAN: A man in Tulsa was arrested for assault after a neighbor asked him to turn down his music.

RECOVERED: Deputies in McClain County have recovered a stolen…tiger.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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