OCDW 01.19.15

 

(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 v. Veronica McLaina Alba, 2015 OK CR 2 (January 16, 2015): Search and Seizure (Traffic Stops): In this DUI case, grant of a suppression motion by the Hon. Terrell S. Crosson, Special Judge, is reversed on the basis of Navarette v. California, 134 S.Ct. 1683 (2014), which allowed a Terry stop based upon an anonymous 911 phone call. Here, the Court found that although the officer did not observe any traffic offense by Alba, the circumstances indicated reasonable suspicion for the stop.

William Reeves Cathey v. State, No. C-2014-254 (Okl.Cr., January 13, 2015) (unpublished): Restitution: This is a blind plea out of Oklahoma County before the Hon. Kenneth C. Watson in an embezzlement case, although Judge Cindy H. Truong handled the sentencing (10 years with all but the first 4 years suspended, and $96,500.00 in restitution). The Court vacated the restitution order because the evidence was insufficient to determine the amount with reasonable certainty (remanded to the district court for a hearing).

George H. Pinkney v. State, No. F-2013-1073 (Okl.Cr., January 12, 2015) (unpublished): Jury Instructions (Punishment Range; Possession of Controlled Substance in Presence of a Minor): Pinkney was tried by jury of drug and firearms counts in Pittsburg County (the Hon. Thomas M. Bartheld, presiding). In this opinion, the Court held that the jury was incorrectly instructed as to the sentencing range for Possession of Controlled Substance (Marijuana) in the Presence of a Minor (AFCF), for which the jury recommended 8 years, but nevertheless found plain error (conceded by the State). The jury was instructed that the range was 6-life. The actual range is 0-10 years (under the general enhancement provision). The Court modified the sentence from 8 years to 5 years. NOTE: Judge Smith dissented from this, finding that the enhancement was proper under the drug statutes; and also note that Judge Johnson again chastised the majority for adding a layer of harmless error review after finding plain error.

Christopher Moss v. Oklahoma Department of Corrections, No. 112,332 (Okla. Civ. App., Div. II, January 14, 2015) (Released for Publication): Extraordinary Writs (Mandamus); Sentence Modification: Mandamus issued to the Department of Corrections to implement a sentence modification issued by Judge Robert Haney (Ottawa County). NOTE: This opinion contains a good discussion of the law of sentence modifications.

 

 

United States v. Frederick H.K. Baker, No. 13-1042 (10^th Cir., October 28, 2014) (Published) (Kelly, Ebel & Phillips): Substantial Assistance: The district court refused to reduce Baker’s sentence under Rule 35(b) (renders substantial assistance to the Government) because the information provided by Baker was useful to the Government before and after one year (this is a time requirement under the Rule). The panel affirmed, finding it “unfortunate” that the Government’s tardiness in filing the motion precluded any sentencing benefit to Baker, but also finding the time limit jurisdictional, and thus the district court had no power to do so.

United States v. Terry Lee Margheim, No. 12-1459 (10^th Cir., October 29, 2014) (Published) (Tymkovich, O’Brien & Holmes): Speedy Trial: Convictions on drug and firearms counts are affirmed over claims relating to the Speedy Trial Act and also the speedy trial provisions of the Sixth Amendment.

United States v. Wesley A. Bear, No. 13-6207 (10^th Cir., October 31, 2014) (Published) (Hartz, Phillips & McHugh) (W.D. Okla., Judge Miles-LaGrange): Supervised Release: This case deals with conditions of supervised release in a case where Bear was convicted of failing to register as a sex offender. He challenged some of the conditions, but the panel affirmed them, with the exception of one that restricted his access to his own children.

United States v. John Ervin Titley, No. 13-6245 (10^th Cir., November 4, 2014) (Published) (Matheson, Phillips & Moritz) (W.D. Okla., Judge DeGiusti): Equal Protection; Federal Sentencing Guidelines (ACCA): Titley was sentenced under the ACCA and its 15- year mandatory minimum sentencing provision because he had at least three priors, two of which were “serious drug offenses.” He defended on the basis of equal protection because his prior drug crimes would not be serious offenses under the laws of 19 states. The panel rejected this sensible and persuasive argument.

United States v. Joseph Travis Farmer, No. 13-7054 (10^th Cir., November 5, 2014) (Published) (Matheson, Ebel & McHugh) (E.D. Okla., Judge White): Burks Notice and Bad Acts; Prosecutorial Misconduct (Improper Arguments): Conviction for possession of firearm by felon is affirmed over claims relating to: 1) 404(b) evidence of a prior possession, search illegal but harmless; 2) prosecutorial misconduct; and 3) cumulative error.

 

 

“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).

 

Whitfield v. United States, No. 13-9026 (U.S., January 13, 2015): Statutory Construction (Forced Accompaniment): Whitfield fled a botched bank robbery, entered the home of an elderly woman, and guided her from a hallway to another room a few feet away where she suffered a fatal heart attack. He was convicted, and faced enhanced penalties under 18 U.S.C. 2113(e) which prohibits a robber from forcing another person to accompany them during the course of a bank robbery. The Court held that Whitfield’s actions were sufficient under the statute.

Jennings v. Stephens, No. 13-7211 (January 14, 2015): Habeas Corpus (General & COA): In this capital habeas case, Jennings sought relief from his sentence on three claims, and the district court agreed with two of them. The State appealed. In the Fifth Circuit, Jennings defended the grant of relief on all three grounds but the panel refused to consider the third claim. In this opinion, the Court held that the defense of the judgment on alternative grounds was allowable by Jennings without him having to file a cross-appeal or obtain a certificate of appealability.

 

 

United States v. Fernando Fernandez, No. 14-30151 (5^th Cir., January 14, 2015): Supervised Release: Special condition of supervised release mandating computer filtering software is vacated where the underlying offense was sexual assault of a child in which Fernandez neither used a computer or the internet.

United States v. David M. Thompson, No. 14-1316 (7^th Cir., January 13, 2015): Supervised Release: Instructive opinion from the Seventh Circuit invalidating conditions of supervised release in four separate cases, holding that such conditions are part of the sentence and have to be supported by articulated reasons by the sentencing judge.

 

 

AL HOCH, OKC, and the President of the Oklahoma Criminal Defense Lawyers Association, accepted a conflict case from OIDS in Adair County where the client was charged with Murder in the First Degree and Arson. Not guilty verdict on all counts. Great job, Al!

NICK LEE, OKC, won a suppression motion in a misdemeanor DUI case in Oklahoma County (Judge McElwee) involving the “hot pursuit” doctrine which applies to felonies only. Great job, Nick!

J.P. LONGACRE, Idabel, secured not guilty verdicts for a client accused of trafficking in meth and possessing a firearm during the commission of a felony. The accused and a female acquaintance were the only people inside the house at the time of the search, and the female was never charged. J.P. argued that mere proximity was insufficient, and there was little evidence linking the client to the drugs. Terrific job, J.P.!

MIKE MANNING, Tulsa, won a jury trial acquittal for a 21-year-old man in Tulsa accused of felony murder and robbery. Nice work, Mike!

ANGELA SMITH, OKC, got a not guilty verdict on an Aggravated Trafficking case recently. Nice win, Angela!

BRIAN YOUNG & RYAN SULLIVAN, OKC Public Defenders, got a not guilty verdict in Ryan’s first trial. Nice work, Brian and Ryan!

 

 

THE IMITATION GAME (2014): This film recounts the efforts of British mathematician Alan Turing to crack the Enigma code used by the Germans to encrypt messages during World War II. Turing is played by Benedict Cumberbatch (who did a great job as Khan in the last Star Trek movie), and the ensemble cast is solid, with Keira Knightley appearing as a love interest of sorts (Turing was a homosexual, which caused problems for him after the war).

This movie is well made, compelling, and historically important in several ways. Turing shared that manner that geniuses often possess—social awkwardness, aloofness, single-minded determination—and director Morten Tyldum weaves those traits well into the backdrop of World War II, and Turing’s obsession to build a machine to crack the German code, no small feat considering the incredible number of combinations generated by the Enigma machine used by the Germans and the fact that they re-set the codes every day. The window to crack any given message intercepted in a day was tiny.

The stakes were high, since London was actually getting bombed by the German Luftwaffe. The British assembled a team of code-breakers and mathematicians, and it appeared that they sought to try to break the code with humans, but Turing felt that this was not possible—that only a machine could break the other machine. So, he built one. His machine was initially not powerful enough to crack Enigma, but with the help of some human cleverness, the British eventually did crack Enigma, and thus were able to, for a time, intercept and decode key messages and communications by the Germans. Of course, cracking the code was itself subject to secrecy, and for that reason not every German attack could be thwarted. This resulted in some profound ethical choices for the codebreakers, which is presented well in the film.

At the end of the film, it tells us that historians estimate that Turing’s efforts in cracking Enigma shortened the war by two years and saved 14 million lives. Yet, things did not turn out well for Turing after the war. He was arrested for indecency (soliciting homosexual acts) and given the choice of two years in prison or chemical castration. He chose the chemicals, and took them for a year before committing suicide in 1954 at the age of 41. Such a tragic end to a brilliant mind, one of the fathers of the modern computer, and a patriot instrumental in winning the greatest war. In 2013, Turing was granted a posthumous pardon by Queen Elizabeth II, and British Prime Minister Gordon Brown offered a public apology on behalf of the British government for “the appalling way he was treated.”

The Imitation Game is up for an Oscar, and it is a worthy contender.

 

DEAR ZACHARY: A LETTER TO A SON ABOUT HIS FATHER (2008): Of all of the tragic or tear-jerker films you have seen, this one will be at the top. It is a true story told documentary style with real footage of the events and persons whose lives were affected by a serious of tragic events.

A young doctor, Andrew Bagby, was by all accounts a smart, positive person who touched a lot of lives, but he fell into a relationship with a mentally unstable woman named Shirley Turner. Dr. Bagby was shot and killed in Pennsylvania, and the woman was subsequently prosecuted. However, she fled to Canada and that is where the story takes focus. The woman was released on bail pending trial (with the assistance of a shady psychiatrist), and there were extradition delays as well; meanwhile, it turned out that she was actually pregnant with the child of the now-deceased Dr. Bagby—the man she was accused of murdering. As the legal process dragged on, she had the child, Zachary.

This prompted a close friend of Dr. Bagby’s, filmmaker Kurt Keunne, to make a film about the life of Dr. Bagby that would be especially for Zachary to watch when he was older, so that he would know about his father. Keunne interweaves old videos of Dr. Bagby when they were kids (Keunne was a filmmaker since he was a child, and Bagby would act in these early movies) with interviews of family and friends of Dr. Bagby, along with his parents who waged a titanic legal battle with Turner over custody of Zachary.

The story plays out as a legal drama, and its tragic denouement altered the landscape of the Canadian judicial system. I won’t go into the details, but the parents of Dr. Bagby endured more heartache and tragedy than any two people deserve, and they emerge from it with grace and strength that is inspiring. Keunne does a decent job presenting the story, but at times his filmmaking process is a little clumsy and amateurish (some of the editing is questionable, and his narrative at times seems a little forced and awkward).

However, he does a good enough job to do justice to this powerful story. Be warned, though, that this movie is particularly poignant and hard to watch at times.

 

 

DOC WOES: An alarming number of DOC employees either quit without notice or simply stop showing up for work. Also, DOC Director Robert Patton plans to meet with Jari Askins, the interim Director of the Pardon and Parole Board about prison overcrowding.

JUDGES SWORN: Judge Lumpkin was busy recently traveling around the state swearing in new judges, such as Todd Hicks in Love County, and Judge Thomas Baldwin in Carter County; also, Judge Linda Morrissey sworn in Judge Stephen R. Pazzo and Judge Sheila Condren in Rogers County; Justice Winchester swore in Judge Ken Graham in Stephens County; Judge Thomas Bartheld swore in three new judges in Pittsburg County—Hon. James Bland, Hon. Tim Mills, and the Hon. Matthew Sheets; Judge Lisa Shaw was sworn in Comanche County; Judge Brad Benson was sworn in Tillman County; Judge Phil Ross is sworn in Kay County; and here is a story about the new judges in Tulsa County; and as a final judicial act, the Hon. Ray Dean Linder swore in new Woodward County judge Justin Eilers.

D.A. RAISES: Outgoing District Attorney Janice Steidley softened the blow to staff not kept by the incoming DA by handing out more than $50,000.00 in raises.

WARNER EXECUTED: Oklahoma executed Charles Warner last week without incident, the first execution since the State botched the execution of Clayton Lockett.

MAXEY JOINS FIRM: Retired associate district judge Gary Maxey (Craig County) has joined the law firm of Ward, Lee & Coats in Vinita, Oklahoma.

WINTORY RESIGNS: Former Oklahoma County Assistant District Attorney Richard Wintory was expected to resign from his position as Chief Deputy at Pinal County (Arizona) on January 2, 2015. He is resigning to pursue a “great opportunity” that he cannot discuss.

NEW CITY ATTORNEY: Michael Vanderburg will be the new city attorney for the City of Ponca City.

NEW CHIEF: The city of Woodward, Oklahoma, has named Paul Ellis as the new Chief of Police.

CHEROKEE A.G. MISTAKENLY ARRESTED: Cherokee Nation Attorney General Todd Hembree was arrested by OHP, at least in part, as a result of “errors” that occurred after Hembree received a speeding ticket.

OSCN REDESIGN: OSCN will launch a new design on its web site on Tuesday, January 20, 2015.

 

WHACK

A woman in Tulsa was arrested for DUI after striking a police car across the street from the bar where she was drinking; an Enid woman was parked illegally in a handicapped space, so she backed into the meter maid who was writing her a ticket; a Cache man is possessing meth—which was found in his urine that he had saved; a student at UCO is accused of hosting a brothel at his apartment; and there is an evil serial diaper dumper on the loose in Tahlequah.

 

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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.

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