OCDW 09.18.17

 

(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).

 

No. 17: COTTON COUNTY: Cotton County is located way down south on the Red River. It actually began as part of Comanche County at the time of statehood in 1907, but split off in 1912, becoming the last county created in our state. No mystery as to the name: it was named for the primary crop grown in the county. The county seat is Walters. I cannot recall every having a case in Cotton County, bringing my total to 11 out of 17.

 

 

Conner Chandler v. State of Oklahoma ex rel., Department of Public Safety, No. 115,275 (Okla. Civ. App., Div. III, September 8, 2017) (Released for Publication): DUI (DPS): Revocation order issued by the Hon. Deborah Ludi Leitch (Tulsa County), based on a refusal to take the test, is reversed. Although Chandler requested a hearing, neither he nor his counsel appeared at the DPS hearing. The hearing officer issued an Order stating that affidavit should be taken as true since no one appeared to contest it. Another procedural aspect of the case is that DPS argued that Chandler failed to exhaust his administrative remedies because he failed to attend the hearing. Chandler argued that the officer’s affidavit was insufficient on its face under Roulston et al. The trial court agreed with DPS that, since Chandler failed to appear at the hearing, he has not exhausted his administrative remedies. The Court held that state statutes require DPS to admit the officer’s affidavit at the administrative hearing, even when the licensee does not appear. NOTE: Judge Buettner, C.J., dissented.

State v. Cody Ray Lord, No. S-2016-1142 (Okl.Cr., September 14, 2017) (unpublished) (per curiam): State Appeals; DUI (Blood Draw): In this DUI case out of Beckham County, the Hon. Michelle Kirby Roper granted a motion to suppress a blood draw based upon a lack of consent where Lord was given morphine and could not consent in a meaningful way. In this nifty opinion, the Court affirmed.

 

 

United States v. George Anthony Autobee, No. 17-1082 (10^th Cir., July 18, 2017) (Published) (Phillips, McKay & McHugh): Petition for Rehearing: Autobee filed a motion for an extension of time to file a petition for panel rehearing in a 2255 appeal (of a criminal case). However, 2255 litigation is a civil case, even though it involves review of a criminal conviction or sentence. Autobee assumed that he had 14 days, but under the civil rules, since the United States is a party to the litigation, he actually had 45 days. The panel construed the Rules to treat 2255 cases as civil for the purpose of computing the time for panel rehearing.

United States v. Manuel De Jesus Sandoval-Enrique, No. 16-2043 (10^th Cir., September 12, 2017) (Published) (Briscoe, Ebel & Murphy): Guilty Pleas; Jurisdiction (Appellate; Mootness): The Defendant entered a blind plea to a count of unlawfully reentering the country after previous removal. He appealed arguing that the district court erred in rejecting two previous plea agreements, and also that the district court inserted itself improperly in the plea negotiations. The panel found no error and affirmed. NOTE: At the time of the decision, the Defendant had served his prison sentence and had been deported; thus, the Government argued that the appeal was moot, but the panel disagreed. Also, Judge Murphy dissented, in part, on the basis that some of the legal claims raised by the Defendant were moot.

 

 

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

 

No new cases.

 

 

United States v. Noe Juarez, No. 16-30773 (5^th Cir., August 7, 2017): Federal Sentencing Guidelines (Body Armor): In this drug trafficking conspiracy case, the convictions are affirmed, but the sentence is vacated because the district court misapplied the body-armor provision of the sentencing guidelines.

United States v. Calvin Nesmith, No. 16-40196 (5^th Cir., August 8, 2017): Federal Sentencing Guidelines (Sadistic Conduct): In a case involving a conviction for sexual exploitation of a minor, a photo taken by Nesmith of the sleeping 14-year-old daughter of his girlfriend did not meet the standards for an enhancement under the “sadistic conduct” Guideline.

 

 

None noted.

 

 

SCANDALS: In light of recent scandals by Oklahoma lawmakers, the Tulsa World ran an expose on the history of such scandals in Oklahoma. The probable cause affidavit in the federal case of former Rep. Ralph Shortey contributed to the climate, no doubt, who has been indicted for seeking contact from young males through Craigslist.

REBUKE: Gov. Fallin as rebuked state representative Scott Biggs (R-Chickasha) regarding his use of a survey of whether crimes are violent or non-violent.

SHERIFF ELECTION: P.D. Taylor prevailed in the election for Oklahoma County Sheriff.

MEDICAL CARE: The Garvin County Jail is finally getting an on-site medical facility.

CONFIRMED: The U.S. Senate has confirmed two new U.S. Attorneys, Brian Kuester in the E.D. (Muskogee), and Trent Shores in the N.D. (Tulsa).

EXECUTED: The State of Ohio executed recently a man convicted in back-to-back killings in 1992.

FEWER JAILED: According to the Oklahoma City Chief of Police, “We’re just putting fewer people in jail.”

BIBLE VERSES: The Police Chief in Mounds posts Bible verses daily on Facebook, which has attracted the attention of the ACLU.

BOOKED: A former staffer of Gov. Fallin has been booked into jail over a charge relating to up-skirt photos.

 

WACKY CRIME

BIG CHECK: A man deposited a counterfeit check at a metro ATM….for $15,000.00.

POETIC: Police in OKC made an arrest for ten pounds of marijuana possession…of Jason Tyler Weed. Weed is the second man arrested for having weed, after his brother was busted a month ago.

INVESTIGATIVE TECHNIQUE: Law enforcement in Pittsburg County employed sophisticated investigative techniques to track down stolen horses…they followed the trail of horse droppings.

INVESTIGATIVE TECHNIQUE II: In Lawton, police followed a blood trail at the scene of burglary…back to the apartment of the burglar.

PIPES: The owner of a head shop in Norman who was acquitted in a criminal trial is seeking to sell the glass pipes seized by police as “commemorative items.”

CAN’T FIND A CHIEF: The town of Colbert seems incapable of hiring a Police Chief. The newly-hired fourth interim Chief, who replaced the third Chief (who was fired for KKK ties), has been fired over his checkered record as a law enforcement officer.

KNIFE vs. BED RAIL: As the old saying goes, don’t take a knife to a bed rail fight.

OWN GOAL: A man in Duncan called the police…on himself.

DARWIN: A suspect in a drive-by shooting…shot himself in the process.

INCONGRUOUS: A woman accused of attacking a police officer during a DUI…has the happiest booking photo.

 

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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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