OCDW 02.17.15

 

(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).

 

 

DeWayne Michael Dates v. State, No. RE-2014-189 (Okl.Cr., February 11, 2015) (unpublished): Extradition; Suspended Sentences: In this case out of Ottawa County (the Hon. William Culver, Special Judge, presiding), Dates tried to be clever from his prison cell in Missouri when he mailed a guilty plea to his probation violations here in Oklahoma (apparently seeking to get his time here started). In this opinion, the Court held that the district court did not err in refusing to accept this plea, and also that the Interstate Agreement on Detainers does not apply to probation violations. NOTE: The Court held that Dates was not entitled to have the court accept his written plea (they have to be made orally in open court); however, I think we all have done pleas like this for clients who live out of state. I do not read anything in this opinion that would prevent a trial court from accepting it.

Dontae Shalon Daniels v. State, No. F-2014-151 (Okl.Cr., February 10, 2015) (unpublished): After Formers (Enhancement): In this failure to register case out of Oklahoma County (the Hon. Kenneth C. Watson, presiding), the Court found error in using the same prior both to enhance and to supply an element of the charged offense (but harmless). Also, even though Daniels did not contest his priors, the jury verdict did not contain an option to convict with no priors. This was error as well since the jury was the fact-finder, and Daniels did not stipulate to the priors or admit them (but harmless as well). NOTE: As a practical matter, in most cases there will be no basis upon which to contest your client’s priors, but if all you have is a nullification chance then you must make sure that the verdict forms reflect that opportunity for the jury, and that your client does not admit or stipulate to the existence of the prior convictions.

 

 

United States v. Lester Ray Nichols, No. 14-3041 (10^th Cir., December 30, 2014) (Published) (McHugh, McKay & Baldock): Sex Offender Registration: Nichols left the United States without updating his status on the federal sex offender registry. Affirmed, based on circuit precedent, over his claims relating to SORNA’s updating requirement does not apply in situations like this where the offender moves from a SORNA jurisdiction to a non-SORNA jurisdiction; and the delegation of authority to the Attorney General to determine SORNA’s retroactive application. NOTE: Judge McKay concurred based upon circuit precedent, but noted that as to the first issue, he agreed with Judge Lucero’s dissent in the panel opinion, and thus recommended en banc treatment of the issue. So, it appears that this case might be the vehicle to decide the issue.

United States v. James Howard Burns, No. 13-5045 (10^th Cir., December 30, 2014) (Published) (Gorsuch, Seymour & Bacharach) (N.D. Okla., Hon. Claire V. Eagan): Supervised Release: A condition of supervised release—that Burns obtain approval from the probation department before contacting minors, including his own children—is reversed for plain error.

United States v. Steven J. Denson, No. 13-3329 (10^th Cir., December 30, 2014) (Published) (Tymkovich, Ebel & Gorsuch): This is an interesting search and seizure question concerning the use of Doppler radar to “peer” inside the home of a parolee to see if he is there; and also what degree of confidence do police need to serve an arrest warrant on a home under Payton—reasonable suspicion that the person is inside, or actual probable cause? As to the latter, the panel punted, noting a circuit split on the issue, but reasoning that police had probable cause in any event. As to the Doppler radar, this device enables police to detect, from outside the home, the presence of “human breathing and movement within.” Judge Gorsuch dodged this issue as well, on the basis that even without the problematic Doppler, the police still had enough PC. Ah, but the police relied upon a protective sweep theory to search the house after arresting Denson—even though they had just used the Doppler to determine that only one human was inside. The panel would not let the police slide on this issue, correct? Incorrect. The panel professed to be confused by how Doppler radar works and whether it really showed only one person in the house. NOTE/RANT: This opinion was a copout to the old standby of officer safety. The officers used the Doppler and knew that only one person was inside the house, yet they conducted a sweep of the house, i.e., a warrantless search. With respect to the panel (and I usually do not like being catty in this manner), when you read their excuse, it comes across as the old SNL skit where the cave man lawyer professes ignorance about obvious things. Doppler? They gasped. Did the police rely on Doppler to show how many persons were in the house? Well, just because the police relied on it for their own safety out in the real world and it showed only one human inside the house, we do not understand this strange technology and its capabilities—we’re just cavemen! So, since we don’t understand it, we will let the police have a pass on this one. Just terrible judging, and almost flippant derision when discussing the Fourth Amendment. There was no exigency. Police arrested the only human inside the house, using their new illegal technology tool. They were required to go get a warrant, which they surely would have obtained. But, instead of suppressing the evidence because the police did not do that, they get a(nother) pass from this Court.

United States v. Ronald D. Catrell, No. 14-3044 (10^th Cir., December 22, 2014) (Published) (McHugh, McKay & Baldock): Federal Sentencing Guidelines (Illegal Sentence): Claim of “government vindictiveness” in insisting on a plea agreement recommending 132 months (because Catrell absconded, and then backed out of an earlier plea agreement) is denied, but remanded on a sentencing issue because the crime of aggravated identity theft is punishable under the statute by two years exactly, no more or less, and Catrell was sentenced to 54 months on that count. NOTE: This case is an example of the unstated policy of this Circuit to maximize the prison time of the defendant. The sentence here was illegal. If the panel simply reduced the illegal sentence from 54 months to 24 months which is the statutory maximum, this would have the effect of reducing the overall sentence from 132 months to 102. So, instead of just doing that, the panel remanded for resentencing on the entire case in order to prevent a “windfall” to Catrell.

United States v. Raul Cruz, No. 14-2017 (10^th Cir., December 22, 2014) (Published) (Briscoe, C.J., Holmes & Bacharach): Search and Seizure (Search Warrants; Sufficiency): This 2255 claim alleging IAC for failing to file a motion to suppress on the grounds that the search warrant was neither signed nor dated by the issuing judge, is denied. The question was what “issue” means under the Fourth Amendment, and the panel held that there was no formal method of issuing. Here, the judge signed the affidavit, rather than the warrant, and then a nunc pro tunc signature on the warrant, which evidenced that it was “issued” initially by a judge properly. More dreck from this Court.

United States v. Deanta Marquis Long, No. 13-5082 (10^th Cir., December 22, 2014) (Published) (Hartz, Phillips & McHugh) (N.D. Okla., Hon. James H. Payne): Search and Seizure (Search Warrants; Sufficiency; Franks v. Delaware); Confidential Informants: Convictions for multiple drug offenses are affirmed over claims relating to a search warrant where a CI claimed to have seen cocaine in the apartment to be searched: 1) the affidavit provided probable cause even though not corroborated by police investigation; 2) Long was not entitled to a Franks hearing; 3) and no error in denying discovery regarding the identity of the informant.

 

 

“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.

 

 

Alexander Cuevas v. United States, No. 14-1296 (1^st Cir., February 11, 2015): After Formers (Federal); Habeas Corpus (2255): As the panel stated, this case presents a narrow question: “Does a criminal defendant whose federal sentence was increased based on state convictions that have since been vacated for the reasons here and who seeks to obtain resentencing on the federal charge have a claim that is cognizable under 28 U.S.C. § 2255?” The claim is cognizable.

 

 

The Bruce Jenner saga, as captured by the media, might be interesting to defense lawyers, apart from the transgender circus, on the issue of cell phone privacy. Although I have no solid evidence, my sense is that law enforcement has taken to obtaining cell phone records as a matter of course in auto accidents. I am curious to see how Mr. Jenner will handle this situation.

Investigators have asked him for his cell phone records, according to the media, but I am not aware that he has consented. The threat is that if he does not then police may seek a search warrant. However, it seems to me that there must be some probable cause that the accident was caused by inattention while a driver was texting in order for a judge to order them produced, not just the mere fact that an accident occurred.

It might be worth watching how Mr. Jenner defends this if he hires top-notch legal counsel, which he should. His publicist has told the media that the records would be provided, but am curious to see if his lawyers squelch this concession. If he fights it, then those motions/pleadings should make for interesting legal reading.

 

 

KYLE McCALLUM, Hugo, represented a doctor charged with attacking a police officer. The jury said, “not guilty” down in Choctaw County (Hugo). Nice win, Kyle!

J.ELIZABETH GRIFFITH, Hugo, also won a not guilty verdict in Choctaw County, in a case where her client was accused of abducting and raping a woman last summer. Great job, Elizabeth!

 

HONORABLE MENTION: Mark Kane, OCDLA member and past Darrow Award winner, secured a hung jury recently in Washington, County, in a lewd acts case. Mark tries more cases than just about any lawyer I know, and this is another good result for his client. Keep fighting them, Mark!

 

 

GAS CHAMBER?: Legislation is percolating through Oklahoma to bring back the gas chamber as a means of execution.

EXONERATION: A man (perhaps mentally impaired) in Illinois has been released from prison after DNA evidence proved that he was innocent of the murder to which he had confessed.

EMBEZZLEMENT: Multiple counts of embezzlement have been filed against a former employee of the District Attorney’s office in Carter County (Ardmore); also, the former treasurer of the state FOP, Lorna Jean Vanlandingham, has also been charged with embezzlement.

CHIEF RESIGNS: The Police Chief in Miami, Oklahoma, has resigned.

JUDGE BACHARACH HOME: Judge Robert Bacharach, of the Tenth Circuit, was happy to return to O.U. last week to hear arguments.

R.I.P. JUDGE CARTER: The Hon. Glenn Dale Carter, 78, passed away last week in Shawnee, Oklahoma.

OCDLA HOODIES: Get’em while they are hot!

STRIFE IN PAWNEE COUNTY: The District Attorney for Osage and Pawnee Counties, Rex Duncan, has created a “kerfuffle” by accusing new judge Patrick Pickerill of using fraud to create a drug court by back-dating an order. Judge Pickerill is represented by Alan Smallwood, who explained to Duncan that a judge has authority to “file” documents received by the court in the absence of a clerk. NOTE: There sure seems to be some backstory here. From the media reports that I have read, and based upon that only, it appears that Duncan is way out of line. I have filed documents “in open court” several times, in state and federal courts.

THE FINGER: A man was arrested in Norman last week for allegedly biting off the tip of his girlfriend’s pinky finger. Ouch.

DOC vs. JAILS: Jail officials in various counties are at odds with DOC over the speed with which inmates are being transported to LARC. It seems that the county jails want the money paid by the state to house the inmates.

INMATE SHOT AT AIRPORT: An inmate from Utah being transported to Tulsa, Oklahoma, tried to escape at DFW and was shot in the airport restroom. The deputy was not injured.

EYEWITNESS ID: The Colorado Independent ran a nice series on wrongful convictions, with part one HERE and part two HERE.

PRISON PHONE CALLS: This is a nice article on the racket of charging inmates extortionate prices for collect calls. DOC gets the lion’s share of the monies from the calls, so do not expect it to change any time soon.

BUDGET WOES: This article shows how our state cannot manage its finances, while lawmakers spend time filing bills—at least three of them—trying to de-criminalize switchblades.

BODY CAMERAS: More and police departments are utilizing body cams, but Stillwater P.D. has scuttled the program.

WE ARE NO. 1!: …in the rate at which our prisoners kill each other, that is, at more than three times the national average. HERE is the breakdown.

 

 

THURSDAY, MARCH 26 (Tulsa University Law Moot Courtroom) & FRIDAY, MARCH 27 (Oklahoma Bar Center), 2015: The Art of War: Prepare Your Criminal Trial Notebook for Battle. This appears to be a good CLE, but there is not much detail on the Bar Association web site as of yet.

 

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