OCDW 02.12.18

 

(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. 30: HARPER COUNTY: This is another lightly populated county near the panhandle, named after Oscar Green Harper, the clerk of the Oklahoma Constitutional Convention. The county seat is Buffalo, Oklahoma, and although I have been to the great city of Buffalo, I do not recall ever representing a client in the courthouse there, which brings my county total to 17 out of 30.

 

 

In Re Revision of Portion of Rules of Court of Criminal Appeals, 2018 OK CR 1 (February 5, 2018): The Court revised some aspects of the Rules governing appeals in post-conviction cases (apparently to accommodate the time frames for the completion of the record), including changing the notice of appeal from 10 days to 20 days.

State v. Strawn, 2018 OK CR 2 (February 8, 2018): State Appeals; Search and Seizure (Traffic Stops): Strawn was charged with possession of CDS w/intent in Okmulgee County (the Hon. Kenneth E. Adair, presiding). The evidence was derived by a traffic stop along I-40 by a state trooper. Judge Adair granted the defense motion to suppress, but in this State appeal, the Court reversed, holding that the encounter and subsequent dog alert was consensual.

Matthew Richard Parker v. State, No. 115,092 (Okla. Civ. App., Div. II, February 9, 2018) (Released for Publication): GTCA: This is an interesting civil case where Parker sought post-conviction relief claiming actual innocence for purposes of the GTCA. The district court found in his favor, the State appealed, and in this opinion the Court affirmed, finding that he had established a prima facie case of actual innocence.

 

 

United States v. Matthew Channon, No. 16-2254 (10^th Cir., January 31, 2018) (Published) (Phillips, Kelly & Murphy): Evidence (Business Records); Forfeiture: In this wire fraud and conspiracy case, the admission of exhibits derived from computer records is affirmed, but remanded regarding the burden of proof that forfeited monies were traceable to the offense of wire fraud.

United States v. Kay Tee, No. 16-3243 (10^th Cir., February 6, 2018) (Published) (Bacharach, McKay & Murphy): Entrapment; Voir Dire; Evidence: Convictions related to a massage parlor/prostitution business are affirmed over claims relating to: 1) entrapment; 2) racial discrimination during voir dire; 3) introduction of a website as a demonstrative exhibit; and 4) the introduction of advertisements from the website Backpage.

United States v. Jeffrey Allen Stevens, No. 17-5044 (10^th Cir., February 6, 2018) (Published) (Tymkovich, C.J., Holmes & Matheson) (N.D. Okla., Hon. Claire V. Eagan): First Amendment: Threats posted to a “Citizen Complaint” form on-line for the Tulsa Police Department are not protected by the First Amendment and a rational jury could have found them to be “true threats.”

United States v. Jason Greer, No. 16-1282 (10^th Cir., February 6, 2018) (Published) (McHugh, McKay & Kelly): Federal Sentencing Guidelines (ACCA): Denial of a 2255 petition raising a Johnson claim is affirmed when the district court held that Greer was sentenced under the element clause of the Guidelines, not the vague clause.

United States v. James Wardell Quary, No. 17-3193 (10^th Cir., February 6, 2018) (Published) (Tymkovich, C.J., Lucero & Hartz) (per curiam): Habeas Corpus (COA): A new sentence after a sentence reduction does not qualify as a new, intervening judgment for AEDPA purposes.

United States v. Joseph Wayne Lynch, II, No. 16-1242 (10^th Cir., February 5, 2018) (Published) (Kelly, McKay & McHugh): Statutory Interpretation: Conviction under 49 U.S.C. 46504 (interfering with or assault of a crew member in-flight) is affirmed over claims relating to interpretation and constitutionality of the statute.

 

 

“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. Christopher Michael Johnson, No. 16-50018 (9^th Cir., November 2, 2017): Sufficiency (Obstruction of Justice): Denial of motion for judgment of acquittal is reversed on a charge of obstruction of justice for failing to include material information about the use of force upon an inmate in reports.

United States v. Charles Familetti, Jr., No. 16-2334-cr (2^nd Cir., December 20, 2017): Interrogations (Fifth Amendment): Child porn convictions are affirmed, but this opinion is instructive on what actions constitute an “interrogation” and whether a suspect is “in custody” for purposes of Miranda (in this case, questioning at the suspect’s apartment).

United States v. Hakeem El-Bey, No. 15-3180 (7^th Cir., October 24, 2017): Judicial Bias: In this tax fraud case, El-Bey was a pro se “difficult litigant” who baited the trial court into making statements in front of the jury that conveyed that El-Bey was guilty or dishonest, thus depriving him of a fair trial.

United States v. Adrian Demond Hyman, No. 16-4771 (4^th Cir., January 22, 2018): Jurisdiction (Appellate): Hyman filed his notice of appeal untimely, but alleged that the Government filed its motion to dismiss untimely. Here, the panel held that the Government’s motion was timely and dismissed the appeal.

 

 

LARRY CORRALES, Lawton, secured a quick 15-minute “not guilty” verdict for is client who was charged with a “hammer attack.” It also looks like Larry secured two more acquittals during the same jury term in a drug case, and a robbery case. Nice work, Larry!

KYLE MCCALLUM, Lawton, secured a hung jury in Lawton in the courtroom of the Hon. Irma Newburn for a client accused of attempted automobile larceny. The client did not walk, but will get another day in court. Keep up the good fight, Kyle!

BRIAN MCLAUGHLIN, Stigler, heard the “not guilty” verdict for a client charged with shooting a neighbor’s bulldozer. Good job, Brian!

ADAM BANNER, OKC, got a “not guilty” verdict in the courtroom of Judge Henderson in a case where the client was charged with Y.O. Rape in the First Degree. Nice work, Adam!

KENT BRIDGE & JOHNNY ALBERT, OKC, were prepared to try a First Degree Murder case but the State dismissed on the morning of trial. Congrats Ken and Johnny!

MARK KANE, Bartlesville, secured an acquittal in a Murder One case (death of a child) and Kidnapping earlier this month. The client walked out of jail after about two years in. This is another good win for Mark!

 

 

GIRL SCOUT SLAYINGS: The infamous Girl Scout slayings in Oklahoma happened 40 years ago. Gene Leroy Hart was found not guilty of the murders, and the case has been an ongoing puzzle to law enforcement for decades. Recently, Mayes County Sheriff Mike Reed has “raised” $30,000.00 to test crime scene evidence using the most recent DNA technology and hopes to provide answers to the family members of the victims. The father of one of the victims has recently passed away.

CRISIS EQUIPMENT: The Ardmore P.D. has acquired crisis equipment, including a “throw phone” designed to be lobbed through a window for hostage use.

EXONERATED: Two police officers in Bartlesville have been exonerated in the shooting death of a woman who shot at them with a realistic looking BB gun.

STEPPING DOWN: The Director of the OSBI is stepping down in the wake of an internal investigation surrounding employee complaints about his leadership.

EVIDENCE MISSING: Tulsa County defense lawyers alleged missing evidence in the Michael Bever case.

PARDON REQUEST: Attorney General Mike Hunter is seeking a Presidential Pardon for former Army Lt. Michael Behenna.

INDIAN COUNTRY: Interesting article on some of the issues surrounding the Murphy v. Royal case in which the State has asked the Supreme Court to grant certiorari.

NEW CHIEF: The City of Chickasha has hired Gregory Anderson as the new Chief of Police.

WEEKEND VISITOR: Judge Cindy Truong (Oklahoma County) visits the jail on the weekends to grant OR bonds to non-violent inmates in an effort to ease overcrowding.

STERILIZATION=SHORTER SENTENCE?: That is apparently what happened to a woman in federal court in Oklahoma City.

ACCUSED: A Wynnewood reserve officer has been accused of rape.

ACCUSED II: An attorney in Shawnee, Shelley Lynne Levisay, has been accused of harboring her boyfriend fugitive.

INMATE DEATH: A man jailed in Oklahoma County for public intoxication has died, becoming the first inmate of 2018 to die in the jail.

MILITARY PUNISHMENT: 7 adults have been charged in the “military punishment” abuse of a 10-year-old.

SENTENCE OUTRAGE: Shockwaves are still being felt around the state from a case in Sulphur where a man was sentenced to 15 years probation for forcible rape of a 13-year-old girl at church camp. The ADA has resigned, and there is a petition of thousands of names to remove Judge Wallace Coppedge.

JUST A KISS: A jailer in Enid has been arrested for kissing a female inmate.

A FIRST: The Woodward Police Department has its first female detective.

 

WACKY CRIME

NOT COMPELLING: A woman charged with stealing a vehicle told authorities that her date left her to get gas for the car.

MAKES SENSE: A huge marijuana bust took place…in the parking lot of a Taco Bell in south OKC.

COMPLAINT DEPARTMENT: A drug user who complained about the quality of drugs to his dealer…got pummeled with a baseball bat.

COMPLAINT DEPARTMENT II: A moron in Oklahoma City has been arrested for threatening to shoot up an Apple Store…after calling customer service and complaining about his laptop.

DEDICATION: Thieves stole 160 rims and tires from a car dealership in Norman(!!)

OLD SCHOOL: A Bryan County man has been charges with making his own moonshine.

 

 

 

THURSDAY MARCH 29 & FRIDAY MARCH 30, 2018: OCDLA and the Vital Projects at the Proteus Fund present a FREE CLE program titled Killing the Culture of Death: Litigating Juvenile Life Without Parole and Death Penalty Cases. The seminar is good for 12 hours of CLE (including 1 hour of ethics).

 

SUBSCRIPTIONS AND SUBMISSIONS: To subscribe to the Oklahoma Criminal Defense Weekly just send an e-mail to James L. Hankins at jameshankins@ocdw.com and include the e- mail address to which you want the issues to be delivered. I am sending out the issues for free now to whoever wants to receive them. Submissions of articles, war stories, letters, victory stories, comments or questions can be sent to Mr. Hankins via e-mail or you can contact him by phone at 405.753.4150, by fax at 405.445.4956, or by regular mail at James L. Hankins, TIMBERBROOKE BUSINESS CENTER, 929 N.W. 164^th St., Edmond, OK 73013.

OKLAHOMA CRIMINAL DEFENSE WEEKLY

ABOUT THE OCDW: The Oklahoma Criminal Defense Weekly is compiled, maintained, edited and distributed weekly by attorney James L. Hankins. Archived issues can be obtained by contacting Mr. Hankins directly, although some of them are on the web site at www.ocdw.com. OCDW accepts no money from sponsors. Mr. Hankins is solely responsible for its content. The OCDW web site is maintained by Spark Line.

COPYRIGHT STATEMENT & DISCLAIMER: ©2005-2018 by James L. Hankins. All rights reserved. OCDW hereby grants free use of these materials for any non-commercial purpose provided that proper credit to the OCDW is given. In the event that copyrighted works are included in an edition of the OCDW such works may not be reproduced without the consent of the copyright holder because under federal law the OCDW has no authority to allow the reproduction of the intellectual property of others. For purposes that go beyond “fair use” of the copyrighted material under federal law, the permission of the copyright holder must be obtained. If you are a copyright holder and object to any portion of an issue of the OCDW, please contact the publisher, James L. Hankins, at the contact information above (located under the SUBSCRIPTIONS AND SUBMISSIONS section). Finally, the materials presented in this newsletter are for informational purposes only, and are not, nor intended to be, legal advice or to create an attorney-client relationship. You should consult an experienced attorney licensed in your jurisdiction for legal advice applicable to the specific facts of your case. Cases are summarized in each weekly issue as they are issued and filed by the respective court, and are thus subject to being withdrawn, corrected, vacated, and/or modified or reversed without notice. Always conduct your own research!

UNSUBSCRIBE

If you have received this e-mail in error, or no longer wish to receive the weekly newsletter, simply reply to the message, or send a new message, to jameshankins@ocdw.com and type in “UNSUBSCRIBE” in the subject line, along with your name and e-mail address and you will be taken off the mailing list.