OCDW 05.11.15

 

(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).

 

 

Gregory Keith Alford v. State, No. F-2013-1111 (Okl.Cr., May 4, 2015) (unpublished): Fines; Hearsay: Alford was convicted in Beckham County by jury (the Hon. F. Doug Haught, presiding), and sentenced to 15 years and a $10,000.00 fine payable to the National Center for Missing and Exploited Children, which the district court ordered. The Court found error in: 1) diverting the fine proceeds from the State to the NCMEC (not a surprise there); and 2) in the admission of hearsay testimony of an OSBI agent who relayed information that he had received from the NCMEC (statements which show why the agents took the action they did are fine; but some of the statements were introduced for the truth, such as the “known series” of child porn images which were found on Alford’s computer). However, the errors were harmless.

 

 

No new cases.

 

 

“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.

 

 

State v. Danny Robbie Hembree, Jr., No. 86A12 (N.C., April 10, 2015): Burks Notice and Bad Acts; Cumulative Error; Prosecutorial Misconduct (Improper Argument); Character Evidence: In this state capital murder appeal, the court found three errors, the cumulative effect of which warranted reversal: 1) excessive 404(b) evidence; 2) allowing the decedent’s sister to testify about victim impact and the decedent’s good character; and 3) allowing the prosecution to argue without basis to the jury that defense counsel had in effect suborned perjury.

United States v. Barry Lamar Bonds, No. 11-10669 (9^th Cir., April 22, 2015) (en banc): Obstruction of Justice; Sufficiency: The conviction of former baseball player Barry Bonds is reversed based upon insufficient evidence where the court found that his single, non-responsive answer to the grand jury could not support the conviction. NOTE: I get the sense that this is an important opinion because it seems to limit the contours of this ambiguous crime.

United States v. Eve Mazzarella, No. 12-10171 (9^th Cir., April 20, 2015): Prosecutorial Misconduct (Brady): Denial of motion for new trial is reversed based upon Government withholding exculpatory evidence under Brady. NOTE: The panel also remanded for an evidentiary hearing on a search and seizure issue of whether a witness acted as a government agent.

Langbord v. United States Department of the Treasury, No. 12-4574 (3^rd Cir., April 17, 2015): Forfeiture: Instructive opinion where the Government failed to file a complaint for judicial forfeiture within 90 days from receipt of a claim for the property; thus, the panel reversed.

People v. Paul Williams, No. 34 (N.Y. Ct. App., April 7, 2015): Interrogations (Fifth Amendment): The court held that the prosecution’s use of the selective silence of the accused during an interrogation constituted reversible error. NOTE: The court’s opinion rested on state evidentiary law, so be sure to check if federal constitutional law is different.

 

 

The late Christopher Hitchens, one of the most talented debaters of his generation in my opinion, and a trenchant critic of the world’s great religions, still resides with us via YouTube, where the videos of his great debates are stored for posterity (some of my favorites are Hitchens v. Blair (debating former British Prime Minister Tony Blair, a late convert to Roman Catholicism, on the question, Is Religion a Force for Good?); Hitchens v. Hitchens (debating his conservative younger brother, Peter Hitchens, on God and War); Is there an Afterlife? discussion with Hitchens and other very good panelists Rabbi David Wolpe, Sam Harris, and Rabbi Bradley Shavit Artson); and Hitchens v. Dembski (like the debate with Blair, this one took place when Hitchens was in the later stages of the esophageal cancer that killed him, but he is on his game against an overmatched William Dembski).

Hitchens was a First Amendment absolutist (like myself), and described himself not as an atheist so much as an anti-theist, choosing to skewer religious texts as man-made superstitious nonsense rather than the inspired word of the divine, and religious figures as essentially con-men in on the joke (this was, after all, a guy who went after Mother Theresa of Calcutta!). But, as a humanist, Hitchens always advocated two things consistently. The first was to give blood. He had a rare blood type (as do I) and likened blood donation as a benign form of community bonding with a dash of self-interest. I like to give blood when I can, even though it always makes me so light-headed that I nearly pass out.

The second was to contribute a DNA sample to a project ran by National Geographic called The Genographic Project. As with nearly all modern contrivances, this project is better explained on the Wikipedia page rather than the official page at National Geographic, but the gist of it is that DNA samples are collected from thousands of individuals, and then the results are tabulated, telling a sample contributor about his/her background, which ancestral region to which he belongs, the origins of the maternal and paternal lines (for men), and a database with the 150,000 DNA markers of the contributor.

Although we all came from central or sub-Saharan Africa, this Project states that it will show migration patterns of humans specific to the DNA of the contributor, i.e., the area from which your ancestors came. I thought it sounded really cool, so I purchased the kit for $199 from the web site. It arrived last week and contained two collection swabs and vials for DNA collection from my cheeks, packaging to return the samples for testing, and an alpha-numeric identifier so that when the samples are analyzed the results will be posted on the web site in about 6-8 weeks.

It appears that I am one of 705,343 persons to have submitted samples, and I will follow-up in a few weeks to see if the results are as revealing and cool as they sound.

 

 

None reported.

 

 

56 YEARS ON THE LAM!: 79-year-old Frank Freshwater was arrested last week after being on the run since 1959 when he escaped from an Ohio prison where he was serving time for a probation violation related to a manslaughter conviction. This amazing arrest was the result of a cold case unit which tied Freshwater to an alias, which they tracked to Florida, and thereafter identified him by fingerprint comparison. This must some sort of record.

ODD VANDALISM: A Tulsa woman has been arrested for vandalizing—a corpse in state at a funeral home. It appears that the corpse was that of the ex-girlfriend of the woman’s boyfriend.

PERSPECTIVE: Former District Attorney Tim Harris wishes to offer his faith-based perspective on incarceration to Gov. Fallin.

JAIL MEDICAL CARE: The Rogers County Jail is taking the accreditation process seriously, including the addition of medical staff on-site at the jail.

SENTENCING DISCRETION: Gov. Fallin signed into the law the Justice Safety Valve Act which allows judges discretion in sentencing non-violent offenders below statutory mandatory minimum sentences.

BATES FALLOUT: Tulsa County Sheriff Stanley Glanz stated that he will not resign from office in light of the scandal involving reserve deputy Robert Bates, but Glanz did say that he has no plans to seek re-election next year; however, there is an effort underway to convene a grand jury to investigate the Sheriff’s Office, and it appears that there might be something to investigate because media reports indicate that the Sheriff steered money toward his supporters as “appraisers”; but Sheriff Glanz vowed to take legal action against any false allegations in the petition to convene the grand jury; in contrast, here is a much different story and result by Officer Benjamin Blair of the Wagoner Police Department who made the decision, guided by his training, to not shoot a suspect who had surrendered, but then those to stand up and run away.

PRISON STORIES: This is a nice news piece about the personal stories behind the prisoners serving LWOP for drug offenses; additional story HERE.

LOVE COUNTY: Security upgrades at the Love County courthouse include video cameras.

LEGAL CONFLICTS: An Edmond man charged with murder in the second degree (DUI meth on the turnpike which killed a six-year-old boy) apparently turned himself in—in Texas, where his father is a judge; also, a DUI of a “well-connected local businessman” in the town of Chelsea has resulted in dubious pressure on local law enforcement.

NEW UNDERSHERIFF: Justin Hendren has been named the new Undersheriff in Delaware County.

JUDGE vs. DA: Pittsburg County Special District Judge Matthew Sheets had some pointed words for the way the district attorney’s office handles misdemeanor cases.

JUDGE vs. DA II: District Attorney Rex Duncan has what appears to be a seriously personal feud with sitting judge Patrick Pickerill in Pawnee County, accusing Judge Pickerill of “fraud” in filing two administrative orders. Duncan lost before Judge Chappelle, then again against Judge Vassar, but now is apparently taking his case to the Oklahoma Supreme Court.

FORMER LIEUTENANT ARRESTED: A retired lieutenant of the McAlester Police Department was arrested on complaints of lewd molestation and rape by instrumentation; an off-duty deputy in Washington County was arrested for DUI; the Police Chief in the town of Elgin has resigned effective immediately.

NO TEXTING: Gov. Fallin signed a new law that bans texting and driving.

OSCN IN TROUBLE?: It appears that budget cuts could potentially impact the continued use of OSCN and its free legal materials.

CHURCH LOOTED: In an odd series of events, a hit-and-run driver damaged a church in northwest OKC, but then the church was again the object of looters.

THE NEW OCCA: The link goes to the new photo of the judges on the Court.

CHARGE DISMISSED: In a quirky turn of events, charges against a woman in Durant accused of embezzlement from the city were dropped after the trial had started—when the missing deposit was located at the bank.

JUDICIAL CANDIDATES: Nine candidates seeking to replace Greg Dixon in Garvin County were interviewed.

WAY-BACK: A couple of interesting stories from the 1960s, including a raid on a women’s group playing bingo, and a daring safe caper where thieves tried to steal a 500 lb. safe—by replacing it with a cardboard replica.

JAIL WOES: The City of Antlers will help out the financially strapped Sheriff’s Office in Pushmataha County.

R.I.P.: Miami attorney T. Logan Brown passed away last week.

NEW (OLD) PRISON: Great Plains Correctional Facility in Hinton will re-open soon, this time housing mainly federal inmates.

MURDER WEAPONS: Interesting article outlining the weapons used by men and women who kill.

FORFEITURE REFORM: At last, some sanity from the legislature in the form of a bill filed by Sen. Kyle Loveless (R-Oklahoma City) which provide some due process to property owners when police seize property in civil forfeiture actions (such as requiring a criminal conviction of the person before the property can be seized); the bill has met with opposition from law enforcement.

CHARGE DISMISSED: A charge filed last year in a 1982 rape case has been dismissed by Judge Lori Walkley based upon the statute of limitations in effect at the time of the crime.

DRUG BUST: At least 20 persons were arrested in a drug sting operation last week in Muskogee.

 

WACKY CRIME

A Tulsa man banged on the doors of an ambulance while nude, trying to get inside; another Tulsa man robbed a quick shop last week—with a flare gun.

 

 

THURSDAY, JUNE 25 & FRIDAY, JUNE 26, 2015: The 2015 Patrick A. Williams Criminal Defense Institute & Annual Meeting (including annual awards) will be held at the Renaissance Hotel and Cox Convention Center in Oklahoma City. This program is always top-notch, and this year I am presenting on a case-law update during the Friday session. Hope to see you there!

 

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

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