OCDW 02.23.15

 

(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).

 

 

Watson v. State, 2015 OK CR 3 (February 17, 2015): DNA: This is the second published opinion from the Court construing the post-conviction DNA Act. In this one, the Court gratuitously engrafts the normal procedural bars that apply to post-conviction applications to motions filed under the DNA Act (despite language in the Act, and its purpose, that counsel to the contrary). Thus, poor Watson, who had filed a motion for DNA testing one time previously but did so in a manner that did not comport to the Act, does not get a second bite at the apple in this case where the Court found that his second post-conviction application was barred.

Karena L. Gilbreath-Hancock v. State, No. F-2013-974 (Okl.Cr., February 18, 2015) (unpublished): DUI; IAC (Conflict w/Client): The accused was convicted by jury of APC AFCF in Bryan County (the Hon. Mark R. Campbell, presiding), and sentenced to 2 years and 6 months/$2,500.00 fine. The Court remanded for re-sentencing because the trial court failed to instruct on the punishment options listed in 47 O.S. 11-902(C)(2) (dealing with an evaluation and assessment for treatment options rather than prison). NOTE: The Court discussed an issue of a potential conflict between the client and trial counsel. Although the Court found no reversible error or actual conflict, the discussion and citation to the case law on this topic is instructive (disagreements about strategy do not create reversible conflicts).

Yimara Kathun Boksh v. State, No. C-2014-566 (Okl.Cr., February 18, 2015) (unpublished): GUILTY PLEAS: In this guilty plea case, Boksh invoked Padilla as a reason for withdrawing her pleas (alleging IAC because she was not advised of the immigration consequences). Unfortunately for her, she entered her pleas prior to Padilla, which means that, according to a subsequent Supreme Court case (Chaidez v. United States), the holding of Padilla is not retroactive. Thus, she loses. NOTE: I get calls occasionally on this issue, and have to check the dates of the plea. If it occurred prior to Padilla, then taking the case is pretty much hopeless, as this case shows.

 

 

United States v. Rayvell Vann, No. 13-2190 (10^th Cir., January 16, 2015) (Published) (Tymkovich, Gorsuch & Phillips): Peremptory Challenges; Experts; Prosecutorial Misconduct (Improper Argument): Drug conviction affirmed over claims relating to: 1) Batson challenge; 2) expert testimony regarding the habits of drug dealers; and 3) prosecutorial misconduct in closing arguments.

United States v. Andre Gilmore, No. 14-1088 (10^th Cir., January 16, 2015) (Published) (Hartz, Matheson & Moritz): Search and Seizure (Community Caretaking): Gilmore was drunk and disoriented in the parking lot at the National Western Stock Show in Denver. Police showed up, patted him down, found a weapon and took him into protective custody. As you might imagine, his motion to suppress is denied in this opinion where the panel found the search reasonable under the community caretaking function of the police.

United States v. Kenneth Royal Wheeler, No. 14-1031 (10^th Cir., January 15, 2015) (Published) (Kelly, Baldock & Ebel): First Amendment: This case involves a conviction for posting threatening content over Facebook, specifically under 18 U.S.C. 875(c) (transmitting a threat in foreign commerce). Wheeler got a DUI in Colorado, but was in Italy when he began instructing his “followers” to kill law enforcement officers, politicians, judges, district attorneys, public defenders and their children if the DUI charge was not dismissed. In this opinion, the panel reversed because the jury was not instructed properly that it had to find that Wheeler had subjective intent to threaten. NOTE: The panel noted (page 7 n.2) that the Supreme Court has granted certiorari on this very issue, but it refused to stay decision pending action by the Supreme Court.

Warner, et al., v. Gross, et al., No. 14-6244 (10^th Cir., January 12, 2015) (Briscoe, C.J., Gorsuch & Matheson) (W.D. Okla., Hon. Stephen Friot): Death Penalty (Stays): This is technically a civil rights action brought under 42 U.S.C. 1983 by death row inmates in Oklahoma attacking the lethal injection protocol. Judge Friot denied a preliminary injunction to halt some of the executions, and in this opinion the panel affirmed (failure to establish likelihood of success on the merits).

 

 

“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. Jose Antonio Sarabia-Martinez, No. 14-50064 (5^th Cir., February 20, 2015): Federal Sentencing Guidelines (Drug Trafficking Offense; General): A conviction under the Florida drug trafficking statute does not categorically constitute a drug trafficking conviction for purposes of the Guidelines; also, the district court plainly erred by relying on the PSR in applying the enhancement.

United States v. Jose L. Martinez-Rodriguez, No. 13-1633 (1^st Cir., February 20, 2015): Sufficiency: Drug convictions on an aiding and abetting theory are reversed because the Government failed to produce sufficient evidence of a relationship between the respective contraband possessed by Rodriguez and a co-defendant.

 

 

Finally, some sanity from our Legislature. Rep. Pam Peterson, R-Tulsa, has introduced House Bill 1518, which would institute the “Justice Safety Valve Act” allowing sentencing judges the discretion to sentence below mandatory minimums if it can be shown that the minimum would be an injustice to the defendant, and unnecessary to protect the public.

Her reasoning? The fact that Oklahoma incarcerates way too many non-violent offenders, and in fact has the highest incarceration rate for women in the United States (and one of the highest for men). She recognizes that longer prison sentences do not equate to greater public safety. The article cited the fact that Gov. Fallin and “legislative leaders” agree that the state prison system needs some sort of reform to divert non-violent offenders from lengthy prison sentences. I hope that Rep. Peterson can see this bill through, and the OCDLA might see what it can do to support her efforts.

 

 

KEN GALLON, Miami, won a jury trial last week on a demurrer in Delaware County, when the State forgot to establish jurisdiction and identify the defendant in court. The accused was charged with assault with a dangerous weapon and robbery. District Judge Robert Haney dismissed the case after the State’s evidence was presented. Nice job, Ken!

 

 

TABLES TURNED: Defense attorney Michael Trevino was blindsided by the State in a murder case involving a 16-year-old student at Casady School who went missing in April, 2014 (her body has not been found). Trevino’s client has cooperated with law enforcement, implicating herself and a co-defendant, and expecting to be rewarded for her efforts. Now, the co-defendant has accused Trevino’s client of being more involved that she let on, now the State has charged her with First Degree Murder and made a deal with her co-defendant(!!) This situation is a cautionary tale for lawyers when representing snitches.

D.A. v. JUDGE II: Things are getting extremely ugly in Pawnee County, where an investigator from the District Attorney’s office executed a search warrant against sitting Judge Patrick Pickerill. The warrant was signed by Judge Clancy Smith, the Presiding Judge of the Court of Criminal Appeals. The dispute seems to stem from control of the drug court program.

DRUG BUST: Daily Kos ran an article last week that outlined a large drug bust of 43 suspects in rural Pushmataha, Latimer, and LeFlore counties. The group of defendants were centered around the tiny town of Clayton, Oklahoma, and the 43 persons arrested represented about 5% of the population snared in a single drug bust.

NEW POLICE CHIEF: The town of Geronimo, Oklahoma, has a new police chief: David Johnston, who filed for the position and got it.

SILVER LINING: It turns out that the layoffs in the oilfield occasioned by slumping oil prices has actually turned into a boon for DOC in finding employees.

EXTRADITION: This article outlines the thoughts of Judge Ray C. Elliott (Oklahoma County) on how extradition works in Oklahoma County, including the unusual cases where law enforcement do not come to collect detained persons and they have to be released.

BUDGET WOES: The financial woes continue for Pushmataha County Sheriff Terry Duncan, who announced he plans to lay off a total of four deputies and jailers.

PRISON SHAKEDOWN: Last week, we ran an article about how DOC extorts exorbitant fees from inmates and their families for phone calls. This week, KGOU and Oklahoma Watch expose how DOC and private companies are making money from inmate trust funds and the fees generated when family members make deposits.

BODY CAMS: Although the Stillwater Police Department has discontinued use of body cams for police officers, the Norman Police Department will start using them soon.

GOOD TIME BILLS: Two bills have survived committees, each allowing inmates serving time for violent offenses to earn good behavior credits.

PROGRESS: A new invention called “the Internet” may be coming soon to the Cherokee County Courthouse! The cutting edge!

TBT IN TULSA: The Tulsa World ran a good old article from 1970 about the murder of Cleo Epps, Tulsa’s “Queen of the Bootleggers.”

JUDICIAL SYSTEM BUDGET: The judicial system expects to get hit hard again in FY 2016.

MORATORIUM: The new governor of Oregon, Kate Brown, stated that she will continue a moratorium on the death penalty that was imposed by her predecessor.

TICKETS DISMISSED: The City of Durant has sent out dismissal letters to motorists who were ticketed for distracted or inattentive driving. The city attorney has concluded that the ordinance is more expansive than state law allows.

JUVENILE FUNDING: Oklahoma County District Judge Roger Stuart rejected an Attorney General Opinion as being “too narrow” and ordered funding of the Gary E. Miller Children’s Justice Center in Canadian County.

 

WACKY CRIME

UNKIND ASSAULT AND BATTERY: A Tulsa woman was arrested over the weekend for attempting to bite off the penis of her boyfriend after the two had an argument (note to self: decline date with a woman named Amber Ellis).

ESCAPE: An inmate from the Custer County Jail fled from his job—which was to carry bibles out to the minister’s vehicle. Alas, the Lord was not with the inmate, and he was captured the next day.

CRIMINAL MASTERMIND: A man down in Durant posted pictures on Facebook of himself handling firearms. Of course, as the prosecutor pointed out, it is illegal for a twice-convicted felon to possess firearms.

RISQUE SELFIE: The Wetumka Police Chief, Joe Berry, sent a racy selfie of himself to the girlfriend about six months ago. Apparently, the image has cropped up around town in social media, much to the chagrin of law enforcement.

MERRY-GO-ROUND: A woman in Mayes County has been arrested for selling meth…to raise money to get her husband out of jail…who is in for selling meth.

DUI: A driver in Oklahoma City was arrested for DUI after striking…a police car in the drive-thru at McDonald’s.

BRAZEN: A thief posing as an AT&T employee showed a work order form at the Oklahoma Heart Hospital and proceeded to steal thousands of dollars worth of computer equipment over the courts of two days.

 

 

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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OKLAHOMA CRIMINAL DEFENSE WEEKLY

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