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A General Description of the Normal Procedure on a Tulsa Felony Criminal Case

A General Description of the Typical Tulsa Felony Criminal Case

By: Glen R. Graham, Attorney at Law, (918) 583-4621, more information at his web site:

The Initial Appearance: Room 173 at 9:30 a.m. - Preliminary Arraignment (scheduling for preliminary hearing) – purpose is to schedule a preliminary hearing but usually it gets passed to give the defendant time to fully retain the lawyer.

The word "arraignment" means to "schedule." So, a preliminary arraignment is a scheduling date for the preliminary hearing. Initially, it is passed for the defendant to employ or pay the attorney.

2nd Appearance: Attorney Retained: Room 173 at 9:30 a.m. - Preliminary Hearing Arraignment scheduling

3rd Appearance: Preliminary Hearing – Room 347 or 344 at 9:00 a.m. on the 3rd Floor. The witnesses to the case are subpoenaed by the State to appear and testify in the event that the defendant wants to challenge the evidence.


A. Drug Court or DUI Court: This should be done several days before the preliminary hearing, otherwise the court may require a waiver of the preliminary hearing before scheduling it.
Drug Court or DUI Court is a court supervised treatment program for people with serious addictions to drugs or alcohol or both. It is an “intensive” supervision program normally something that is chosen as an alternative to prison by someone with a prior record, currently on probation, or as an alternative to prison. Starts with daily requirements like AA/NA meetings and weekly appearances in front of a judge, five phase program, lasts 1-2 yrs

B. Option - Challenge the Evidence & Have an Actual Probable Cause Hearing: You can have or put on the preliminary hearing where witnesses are called to testify. The issue is whether there is “probable cause” to believe that a crime was committed and that the defendant committed the crime. If no, case is dismissed. If yes, then the court gives you another court date to return before the assigned Judge above the 3rd floor in about one week. At that time you can try to work out a “different plea bargain” or you can order a transcript (written record of what happen which is prepared by the court reporter) of the preliminary hearing and file motions based upon the transcript and the new judge will determine those motions.

The preliminary hearing is normally the main chance to challenge the sufficiency of the evidence, the constitutionality of the arrest, search, and seizure. If you waive you hearing, then you are normally waiving your right to challenge the case and the evidence.

If you put on the preliminary hearing then the prosecutor will normally withdraw their recommendation.

After the preliminary hearing then the plea bargain may get better or it may get worse, so the final decision on whether to accept the plea bargain or reject the plea bargain is always up to the defendant.

C. Can waive the preliminary hearing because you have a “plea bargain” of some type worked out on the case.

D. Plea Bargain - Option 1 - Presentence Investigation (PSI) – Case may be passed (you waive preliminary hearing) for you to complete a presentence investigation. This leaves it up to the judge to decide whether to give you probation or not and whether to give you a deferred or suspended sentence and what the probationary terms will be. This involves an “investigation” by a probation officer who will perform a urine test on you for drugs/alcohol and a background investigation: criminal record check, social history, soc.sec.number check on employment history, letters to victim, copies of the official police version of the event, your version, a LSI evaluation psychological - social assessment with recommendations, copies of treatment information, and the probation officers recommendation. The Judge will sentence you in part based upon this report, but the Judge always has the final authority to decide what the final sentence will be in your case. If you qualify, the court may allow you to have probation, may allow you to have a “deferred” sentence – probation without a conviction or a “suspended” sentence – probation with a conviction or no probation or a split sentence.

E. Plea Bargain – Option 2 – Suspended sentence - you may be able to plead out without a presentence investigation to a straight suspended sentence. This is a felony conviction with probation but without a presentence investigation.

F. Plea Bargain – Option 3 – Deferred sentence – you may be able to plea out without a presentence investigation to a “deferred” sentence that is probation without a felony conviction. You will still have an “arrest” record but no conviction. If you successfully complete the terms of probation and return on the scheduled review date then the case is dismissed and the conviction is expunged, but you still have an “arrest” record.

G. Plea Bargain – Option 4 – if the prosecutor agrees – amended to misdemeanor – you may be able to plead out to a misdemeanor but only if the prosecutor agrees. This is normally only done in rare cases when there is some “weakness” in the case and the defendant does not have a prior criminal record.

H. Plea Bargain – Option 5 – if the prosecutor agrees – pass the case to obtain additional information or witness information or discovery or other information or to pay off restitution.

I. Option 6 – if bad charges or bad prior record – straight in-time prison recommendation.

If you waive preliminary hearing or if you have a preliminary hearing and are given a new court date one week later, then it will be set in front of another judge.

The next date is called “District Court Arraignment.” At that time you can order a copy of the transcript of the preliminary hearing and file written motion to dismiss, suppress, or other motions. You can also attempt to work out a different plea bargain.

You can set the case for jury trial.

Or, you can pass the case for no issue disposition for about thirty (30) days.

If you waived preliminary hearing based upon an PSI recommendation:
You will appear in front of another judge one week later, then the court will pass the case for thirty (30) days for a no issue disposition date. When you return to court then the court will expect you to enter a plea and begin the presentence investigation. You will enter a plea of guilty in front of the judge and the PSI probation officer will urine test you for drugs that day and begin the presentence investigation. Then court will pass the case for another thirty (30) days for you to complete the presentence investigation. When you return to court it will be for sentencing based upon the presentence investigation. The judge always has the final authority to determine your sentence.

If you are unable to work out an acceptable plea bargain, you might be able to obtain a recommendation from the judge and enter a “blind” plea without a recommendation from the prosecutor and have the judge sentence you.

If you are innocent, you do have the option of a jury trial. A non-jury trial or trial by the judge is only possible if the prosecutor will waive their right to a jury trial and have a trial by the judge.

In rare cases, it might be possible to have a non-jury trial or trial by the judge based upon the transcript of the preliminary hearing, and then appeal the court decision or rulings on the motion to suppress evidence. There is no right to appeal the judge’s rulings on the motions to suppress evidence or any other motions unless this is agreed to or unless there is an actual jury trial. A plea or accepting a plea bargain waives any appeals on the motions.

Similiarities Between the War on Crime and the War on Terror

In his blog, here, Professor Jonathan Simon, discusses the similarities between the War on Crime and the War on Terror and mentions his book: Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Oxford 2007). Professor Simons says some people tell him it was true in the 80's and 90's but not now. In response he says:

"That would be true if it wasn't so very clear that for most American political leaders the war on terror has largely been a direct extension of the political categories and rationalities produced by the war on crime whether evil doing criminals, innocent victims, uncompromisable executive leadership, and emotional law making."

I agree with some of his ideas. I think the "war on terror" has been used as a political tool by politicians to scare the public and say vote for me --- "I can protect you."

However, the discussion about what the political candidates are saying to their base is not something most people take literally. Obviously, both Mitt Romney and Rudy Giuliani are contradicting previous positions to attempt to appeal to the conservatives in their base.

During the general election, the winner inevitably moderates their views to appeal to the majority of voters.

The main point, however, is that "crime" and the "war on terror" are both used as "tools" by the dominant politicians to attempt to win an election.

As the song by the Who goes, ("Won't Get Fooled Again, 1971):

"I'll tip my hat to the new constitution
Take a bow for the new revolution
Smile and grin at the change all around
Pick up my guitar and play
Just like yesterday
Then I'll get on my knees and pray

We don't get fooled again
Don't get fooled again
No, no!


Meet the new boss
Same as the old boss"

New Laws Legalizing Simple Possession of Marijuana Passed in Denver, CO, and Others

This month, (November 2007) Denver, Colorado, and Hailey, Idaho, joined a growing number of cities in passing an ordinance legalizing the simple possession of a small amount of marijuana.

San Francisco, Oakland and Santa Monica in California, along with Missoula, Montana, and Seattle, Washington, have previously passed laws legalizing simple possession for personal use of a small amount of marijuana.

However, federal laws which supersede city ordinances continue to prescribe heavy penalties for possession of marijuana although most judges will take into account the penalties under local laws.

Professor Berman notes that Time magazine has published a story about this populist movement in his blog:

More Quotable Quotes about the Law

"A lawyer shall represent a client zealously within the bounds of the law."
—§ 1:1, Rule 3(a) (not "should" from CPR Canon 7)

"The very premise of our adversary system of criminal justice is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free."
—Herring v. New York, 422 U.S. 853, 862 (1975)

"The right to the effective assistance of counsel is thus the right of the accused to require the prosecution's case to survive the crucible of meaningful adversarial testing. When a true adversarial criminal trial has been conducted ... the kind of testing envisioned by the Sixth Amendment has occurred. But if the process loses its character as a confrontation between adversaries, the constitutional guarantee is violated."
—United States v. Cronic, 466 U.S. 648, 655-56 (1984)

"The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant's version of the facts as well as the prosecution's to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution's witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law."
—Washington v. Texas, 388 U.S. 14, 19 (1967)

"[T]he Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'"
—Crane v. Kentucky, 476 U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).

“If you’ve got the right lawyer with you, we’ve got the best legal system in the world.”
— Robert Trott, “Justice,” Fox, August 30, 2006, episode 1.1

We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.
—Cynthia Roseberry

From the blog ---

The Philosophy of Tao Te Ching

The Philosophy of Tao Te Ching

Chapter 32

The Tao, considered as unchanging, has no name.
Though in its primordial simplicity it may be small,
the whole world dares not deal with (one embodying) it as a minister.
If a feudal prince or the king could guard and hold it,
all would spontaneously submit themselves to him.
Heaven and Earth (under its guidance) unite together and send down the sweet dew, which, without the directions of men, reaches equally everywhere as of its own accord.
As soon as it proceeds to action, it has a name.
When it once has that name, (men) can know to rest in it.
When they know to rest in it, they can be free from all risk of failure and error.
The relation of the Tao to all the world
is like that of the great rivers and seas to the streams from the valleys.

Chapter 44

Or fame or life,
Which do you hold more dear?
Or life or wealth,
To which would you adhere?
Keep life and lose those other things;
Keep them and lose your life:--which brings
Sorrow and pain more near?
Thus we may see,
Who cleaves to fame
Rejects what is more great;
Who loves large stores
Gives up the richer state.
Who is content
Needs fear no shame.
Who knows to stop
Incurs no blame.
From danger free
Long live shall he.

Chapter 43

The softest thing in the world dashes against and overcomes the hardest; that which has no (substantial) existence enters where there is no crevice. I know hereby what advantage belongs to doing nothing (with a purpose). There are few in the world who attain to the teaching without words, and the advantage arising from non-action.

Chapter 56

He who knows (the Tao) does not (care to) speak (about it); he who is (ever ready to) speak about it does not know it. He (who knows it) will keep his mouth shut and close the portals (of his nostrils). He will blunt his sharp points and unravel the complications of things; he will attemper his brightness, and bring himself into agreement with the obscurity (of others). This is called 'the Mysterious Agreement.' (Such an one) cannot be treated familiarly or distantly; he is beyond all consideration of profit or injury; of nobility or meanness:--he is the noblest man under heaven.

Chapter 57

A state may be ruled by (measures of) correction; weapons of war may be used with crafty dexterity; (but) the kingdom is made one's own (only) by freedom from action and purpose. How do I know that it is so? By these facts:--In the kingdom the multiplication of prohibitive enactments increases the poverty of the people; the more implements to add to their profit that the people have, the greater disorder is there in the state and clan; the more acts of crafty dexterity that men possess, the more do strange contrivances appear; the more display there is of legislation, the more thieves and robbers there are. Therefore a sage has said, 'I will do nothing (of purpose), and the people will be transformed of themselves; I will be fond of keeping still, and the people will of themselves become correct. I will take no trouble about it, and the people will of themselves become rich; I will manifest no ambition, and the people will of themselves attain to the primitive simplicity.'

Chapter 58

The government that seems the most unwise,
Oft goodness to the people best supplies;
That which is meddling, touching everything,
Will work but ill, and disappointment bring.
Misery!--happiness is to be found by its side!
Happiness!--misery lurks beneath it! Who knows what either will come to in the end?
Shall we then dispense with correction? The (method of) correction shall by a turn become distortion, and the good in it shall by a turn become evil.
The delusion of the people (on this point) has indeed subsisted for a long time. Therefore the sage is (like) a square which cuts no one (with itsangles); (like) a corner which injures no one (with its sharpness). He is straightforward, but allows himself no license; he is bright, but does not dazzle.

Chapter 65

The ancients who showed their skill in practising the Tao did so, not to enlighten the people, but rather to make them simple and ignorant. The difficulty in governing the people arises from their having much knowledge. He who (tries to) govern a state by his wisdom is a scourge to it; while he who does not (try to) do so is a blessing. He who knows these two things finds in them also his model andrule. Ability to know this model and rule constitutes what we call the mysterious excellence (of a governor). Deep and far-reaching is such mysterious excellence, showing indeed its possessor as opposite to others, but leading them to a great conformity to him.

Chapter 15

The skilful masters (of the Tao) in old times, with a subtle and exquisite penetration, comprehended its mysteries, and were deep (also) so as to elude men's knowledge. As they were thus beyond men's knowledge, I will make an effort to describe of what sort they appeared to be. Shrinking looked they like those who wade through a stream in winter; irresolute like those who are afraid of all around them; grave like a guest (in awe of his host); evanescent like ice that is melting away; unpretentious like wood that has not been fashioned into anything; vacant like a valley, and dull like muddy water. Who can (make) the muddy water (clear)? Let it be still, and it will gradually become clear. Who can secure the condition of rest? Let movement go on, and the condition of rest will gradually arise. They who preserve this method of the Tao do not wish to be full (of themselves). It is through their not being full of themselves that they can afford to seem worn and not appear new and complete.

Chapter 78

There is nothing in the world more soft and weak than water, and yet for attacking things that are firm and strong there is nothing that can take precedence of it;--for there is nothing (so effectual) for which it can be changed. Every one in the world knows that the soft overcomes the hard, and the weak the strong, but no one is able to carry it out in practice. Therefore a sage has said, 'He who accepts his state's reproach,
Is hailed therefore its altars' lord;
To him who bears men's direful woes
They all the name of King accord.
'Words that are strictly true seem to be paradoxical.

Chapter 76

Man at his birth is supple and weak; at his death, firm and strong. (So it is with) all things. Trees and plants, in their early growth, are soft and brittle; at their death, dry and withered. Thus it is that firmness and strength are the concomitants of death; softness and weakness, the concomitants of life. Hence he who (relies on) the strength of his forces does not conquer; and a tree which is strong will fill the out-stretched arms, (and thereby invites the feller.) Therefore the place of what is firm and strong is below, and that of what is soft and weak is above.

Chapter 71

To know and yet (think) we do not know is the highest(attainment); not to know (and yet think) we do know is a disease. It is simply by being pained at (the thought of) having this disease that we are preserved from it. The sage has not the disease. He knows the pain that would be inseparable from it, and therefore he does not have it.

Chapter 69

A master of the art of war has said, 'I do not dare to be the host (to commence the war); I prefer to be the guest (to act on the defensive). I do not dare to advance an inch; I prefer to retire afoot.' This is called marshalling the ranks where there are no ranks; baring the arms (to fight) where there are no arms to bare; grasping the weapon where there is no weapon to grasp; advancing against the enemy where there is no enemy. There is no calamity greater than lightly engaging in war. To do that is near losing (the gentleness) which is so precious. Thus it is that when opposing weapons are (actually) crossed, he who deplores (the situation) conquers.

Trojan horse entry of home to serve city arrest warrant and search home

In each case, the trial judge must determine whether the officers went to the place to make a lawful arrest, and in making it, looked for evidence lawfully subject to seizure or whether the officers used a pretended arrest for one offense as a "trojan horse" in order to obtain entry, only to prosecute for some greater crime after finding sufficient evidence to justify their belief in greater crime. Handly at page 834. [Handley v. State, 430 P.2d 830 (Okl.Cr. 1967)]
Appellant contends that his arrest on a municipal bench warrant was a subterfuge to gain entrance to his home in order to search for evidence of other offenses, specifically illegal drugs, without having the benefit of a search warrant.

From the majority opinion in Lyons v. Clark, 1989 OK CR 86, 787 P.2d 460:

In support of his proposition Appellant directs this Court's attention to four cases, each from a different court, wherein it was held that the arrest was merely a pretext for an unlawful search. See United States v. Causey, 818 F.2d 354 (5th Cir. 1987), [787 P.2d 462] McKnight v. United States, 183 F.2d 977 (D.C. Cir. 1950), Harding v. State, 301 So.2d 513 (Fla.App. 1974), and Handley v. State, 430 P.2d 830 (Okl.Cr. 1967). A review of these cases reveals that in evaluating alleged violations of the Fourth Amendment the relevant test is whether the search was reasonable under the facts and circumstances of the case. In upholding the Appellant's claim in Causey, the Fifth Circuit relied on Scott v. United States, 436 U.S. 128, 98 S.Ct. 1717, 56 L.Ed.2d 168 (1978), wherein the United States Supreme Court stated that the critical question is an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time. The subjective intent alone does not make otherwise lawful conduct illegal or unconstitutional. 818 F.2d at 358.

A review of the facts of each of the cases cited by Appellant reveals situations wherein the arrest was clearly made to avoid operation of the Fourth Amendment. In Causey, a police officer testified that the sole reason for arresting the defendant on a seven year old warrant for failure to appear for a misdemeanor charge was to gain the opportunity for custodial interrogation of the defendant regarding a bank robbery. In McKnight, officers rejected an opportunity to arrest the defendant on a public street for carrying on a lottery, and instead waited until he entered a house, for which they had no search warrant, in order to seize evidence they hoped to find. In Harding, officers went to the defendant's house to arrest another individual with the clear knowledge that the defendant was involved in the local drug scene.

In Handley v. State, 430 P.2d 830 (Okl.Cr. 1967),the only case from this Court cited by Appellant, county sheriff's deputies, accompanied by two State Narcotic Agents, attempted to serve the defendant with an arrest warrant for the offense of second degree Burglary. As the officers approached the door to serve the warrant, they could see the defendant and his wife run into the bathroom and then return to the front door to admit the officers. Upon entering the house, the officers immediately went to the bathroom to see what had been hidden by the defendant and found drug paraphernalia. The narcotics officers then proceeded to crawl underneath the house and discovered a fruit jar containing morphine. This Court held that the facts did not constitute a reasonable search incident to the arrest for burglary. We stated that the conduct of the officers showed that the arrest warrant was a subterfuge for gaining entrance to the house and searching the premises without obtaining a search warrant. The Court specifically noted the pertinent facts resulting in that conclusion: the presence of State Narcotics Agents to serve a warrant for burglary, that the warrant was not one in which the officers would have been looking for evidence to support the burglary charge (as the defendant had been previously arrested on the same charge and it was assumed that the state had previously found the evidence for the burglary charge), and that the narcotics agents "miraculously discover[ed]" the fruit jar buried underneath the house. Id. at 832-833. This Court concluded that the proper test of a reasonable search and seizure is based upon the entire factual situation. In each case, the trial judge must determine whether the officers went to the place to make a lawful arrest, and in making it, looked for evidence lawfully subject to seizure or whether the officers used a pretended arrest for one offense as a "trojan horse" in order to obtain entry, only to prosecute for some greater crime after finding sufficient evidence to justify their belief in greater crime. Id. at 834.

The above is from Judge Lumkin’s opinion in LYONS v. STATE, 1989 OK CR 86, 787 P.2d 460, which ruled against the defendant and upheld the conviction despite the “Trojan horse” arguments.

Necessity Defense and the Fleeting Moment Defense - Jury Instructions

Defenses to Possession of Firearm After Prior Conviction of Felony or Possession of Controlled Drug: Necessity Defense and the Fleeting Moment Defense

U.S. v. HAYDAR HAMEED AL-REKABI, No. 03-4158 (10th Cir. July 17, 2007)

A defendant is entitled to a theory of defense instruction when that instruction articulates a correct statement of the law and sufficient evidence has been presented to support the jury’s finding in defendant’s favor on that theory. See United States v. Dozal, 173 F.3d 787, 796 (10th Cir. 1999); United States v. Swallow, 109 F.3d 656, 658 (10th Cir. 1997).

The Fifth Circuit earlier emphasized the knowledge or intent element of the fleeting possession theory when it discussed it in the context of a drug possession case: “[Defendant’s] possession of the one [marijuana] cigarette was a mere fleeting possession, not inconsistent with honest intention or mere curiosity, and his throwing the cigarette away upon being ordered to stop is not, in our opinion, substantial evidence of a guilty knowledge or intent. Criminal intent is a sine qua non of criminal responsibility.” Rent v. United States, 209 F.2d 893, 900 (5th Cir. 1954); see also United States v. Parker, 566 F.2d 1304, 1306 (5th Cir. 1978) (“That possession is momentary is immaterial” to prosecution for possession of unregistered firearm). Moreover, in an unpublished order and judgment addressing 18 U.S.C. § 922(g), this court noted “federal firearms laws impose ‘something approaching absolute liability.’” United States v. Marquez, No. 90-1230, 1991 WL 145264, at *2 (10th Cir. Aug. 1, 1991) (cited as persuasive authority pursuant to 10th Cir. R. 36.3) (quoting United States v. Nolan, 700 F.2d 479, 484 (9th Cir. 1983)).

“If, however, a felon who momentarily possessed a firearm genuinely lacked knowledge that he possessed a firearm or had a legally justifiable reason for possessing it, the fleeting possession theory would apply because the government would have failed in its burden of proving intent. Therefore, the court need only give a fleeting possession instruction when the evidence at trial supports a possible finding that the defendant only momentarily possessed the contraband, and in so doing, lacked either knowledge he possessed contraband or criminal intent to possess it.” See, United States v. Adkins, 196 F.3d 1112 (10th Cir. 1999).

Consider United States v. Panter, 688 F.2d 268 (5th Cir. 1982), one of the principle cases relied upon by Adkins. 196 F.3d at 115. There, the Fifth Circuit held the defendant, a former felon, who reached under a bar to grab a handgun to fend off a convicted murderer who was assailing him by stabbing him in the abdomen was justified in doing so. 688 F.3d at 269, 272. Based on our precedent, such conduct, if adequately established, would clearly fall under the necessity defense, as it did in Panter itself. 688 F.3d at 272 n.7 (discussing the differences between a "self-defense" and "necessity" justification and concluding defendant met both). Panter's discussion of the temporary nature of the defendant's otherwise illegal possession of the firearm was tied to the necessity defense. The court pointed out that "our holding protects a . . . defendant only for possession during the time he is endangered. Possession either before the danger or for any significant period after it remains a violation." Id. at 272. We find Panter's discussion of the temporary nature of the necessity defense in accord with our own view.

Independent Evaluation of 3rd Party Consent to Search Containers Separate from Premises

Apparent authority for third party consent requires the court to> independently evaluate the consent's authority over containers onthe> premises separate from the premises. Authority over containers maybe> obviously or apparently limited. United States v. Smairat, 2007 U.S. Dist.> LEXIS 57769 (N.D. Ill. August 8, 2007)

The Prejudicial Impact of Plea Bargaining on Minorities

Below is an interesting article about the prejudicial impact that plea bargaining may have upon minorities. See also, Professor Simon's blog at

and this article:

What a bargain: the widespread practice of plea bargaining has increased repercussions for people of color who end up literally signing away their lives on the dotted line

Colorlines Magazine: Race, Action, Culture, Fall, 2004
by Rolanda J. West

In the United States, more than 90 percent of all cases in the justice system are settled by plea bargaining rather than exercising the right to trial. The rate of felony convictions of nonviolent crimes in communities of color is over-whelming: African Americans constitute 13 percent of all drug users, yet they represent 35 percent of arrests, 55 percent of convictions and 74 percent of prison sentences, according to a 2000 study by the Sentencing Project.

These two factors mean that the widespread practice of plea bargaining--where prosecutors overcharge for a crime and defense attorneys usually urge defendants to cop a plea for a lighter sentence--has increased repercussions for people of color who end up literally signing away their lives on the dotted line. Defendants are seldom informed about the underlying effects of pleading to a felony--such as losing their right to vote, access to federal student aid, and if they are noncitizens, being deported.

One in four black men have permanently lost the right to vote in seven states. All told, 14 states restrict criminal offenders from voting, and more than 1.4 million black men nationwide cannot vote, according to Human Rights Watch. Some observers argue that if felons had been able to vote in Florida, with its more than 600,000 convicted felons, Bush would have lost the 2000 election.

The racial disproportion in sentencing prompted the Constitutional Rights Foundation to call for a ban on plea-bargaining, in a recent report commemorating the 50th anniversary of Brown v. Board. The report cited a U.S. Sentencing Commission study in 1990 finding that 25 percent of whites get their sentences reduced through bargaining, compared to 18 percent of blacks and 12 percent of Latinos.

In 1991 the San Jose Mercury News conducted a massive study of 700,000 California legal cases over a 10-year period. The paper reported that "a third of the white adults who were arrested, but had no prior record, were able to get felony charges against them reduced. Only a quarter of the African-Americans and Latinos with no priors were as successful in plea bargaining."

June Terpstra, a criminal justice scholar at Loyola University Chicago, emphasizes that drug laws play a critical role in imprisoning the majority of black convicts. Although African Americans only make up 12 percent of the population, 44 percent are incarcerated, according to the NAACP Legal Defense Fund. In some states, African American men were convicted of drug charges up to 27 times more often than their white counterparts.

The Inherent Unfairness in DUI Laws

A very interesting article in the National Association of Criminal Defense Lawyers magazine is the article by by attorneys Eric Sills and Peter Gerstenzang. It concludes that under the application and interpretation of current laws, that DUI offenders are interpreted as having fewer rights that other criminal offenders.

A True Double Standard: A Defense Perspective on the Inherent Unfairness in the Administration of the Impaired Driver Laws By Eric H. Sills; Peter Gerstenzang

Due to the intense pressure placed upon legislators, prosecutors and judges to wage war on impaired drivers — by interest groups such as Mothers Against Drunk Driving — it is rare that a year goes by without an increase in the penalties imposed for driving under the influence of alcohol or drugs (“DUI”). This pressure, combined with the lack of any organized lobbying on behalf of the drinking or drug-using driver, has led to a true double standard in which the criminal justice system has created two classes of criminals: (1) impaired drivers, and (2) all other criminals.

The inherent unfairness in the administration of the DUI laws pervades virtually every aspect of a DUI case, from the initial stop of the defendant’s vehicle through the administration of the chemical test. In addition, the courts routinely find that the use of so-called “civil penalties” to exact extra punishment on DUI offenders (e.g., driver’s license suspensions pending prosecution, chemical test refusal revocations, vehicle seizures or forfeitures) do not violate either the Double Jeopardy Clause or the Due Process Clause.

This article will demonstrate that the Constitution has been interpreted to provide less protection where the defendant is accused of DUI than it does where the defendant is accused of virtually any other crime, regardless of how serious or despicable.

10th Cir - Must consider circumstances of the offense

10th Circuit says must consider circumstances of offense

An unpublished sentencing opinion from the Tenth Circuit in US v. Mahan, No. 05-1518 (10th Cir. May 16, 2007)
which reverses a within guideline sentence because it was procedurally unreasonable.

Here is the heart of a significant (even though unpublished) ruling:

District courts must consider the 18 U.S.C. § 3553(a) factors in applying a sentence that is "sufficient, but not greater than necessary" to fulfill the aims of those factors. Among other factors, § 3553(a)(1) requires the court to consider "the nature and circumstances of the offense" when developing an appropriate sentence. Following Mr. Mahan's description of how and why he came to possess the gun, the district court said "the reasons why you had the weapon ... aren't something the Court can consider," because possession of a firearm by a felon is a strict liability offense. The district court further labeled as "extraneous factors" Mr. Mahan's reasons for possessing the gun and acknowledged such information would have no bearing on its determination of Mr. Mahan's sentence.

The district court was correct that mens rea is not relevant in determining if an individual is guilty of a strict liability crime. However, in determining the appropriate sentence for one guilty of such a crime, the court must consider the factors set forth in § 3553(a), including the nature and circumstances of the offense. We find nothing in § 3553(a) to suggest that the "circumstances of the offense" factor exclusively applies to crimes requiring a mens rea or that this factor is to be specially excluded when arriving at a sentence for a strict liability crime. In fact, we have previously stated that the district court is required to consider all § 3553(a) factors when sentencing an individual for the same strict liability crime presented in this case.

Check out the Governing Through Crime Blog

Jonathan Simon has written some ingenious ideas at his Governing Through Crime blog, he asks this:

Does America accept the moral necessity of a war on crime despite its clear tendency to reinforce almost every aspect of racialized disadvantage and disparity, or is that war on crime a barely disguised strategy to maintain a system of unequal citizenship on the basis of race?

And ends with this:

. . . Thus the hidden danger in all the talk around re-entry about risk assessment and rehabilitation is to deepen the assumption that social pathology must be treated as crime in ways that will structurally disadvantage communities of color.

Taint of Faulty Expert Chemist Testimony Results in Dismissal

On May 11, 2007, Judge Twyla Mason Gray in Oklahoma County District Court dismissed a 22-year-old murder charge against Curtis Edward McCarty ruling the case could not escape the taint of former police chemist Joyce Gilchrist. Gilchrist was a chemist for the Oklahoma City police department who was filed on Sept. 25, 2001, after 21 years as a police department chemist. She had been investigated by the FBI, and investigations were launched into more than 1,400 of the cases assigned to her.

Oklahoma County DA David Prater said his office will not appeal the decision.

Curtis Edward McCarty, 42, who was twice convicted of the 1982 murder of 18-year-old Pamela Kaye Willis and sentenced to die three times, was released on May 11, 2007.

Actual Innocence Data Base - Legal Research on the Web

The Actual Innocence Data Base - Free Online Legal Research

The law library at UT has compiled an Actual Innocence database,containing citations (and links) to current articles, scholarship andother materials regarding wrongful convictions.The materials are classified into what are considered the primarycauses of wrongful conviction:Forensics/DNA;Eyewitness identification;False confessions;Jailhouse informants;Police and/or prosecutorial misconduct; andIneffective representation.

Winning Defense Themes - Prepare the End Game First

Winning Defense Themes - Prepare the End Game First

The general idea for this comes from the NACDL seminar materials.From: "What it Takes to Win Your Case" - "Themes, Theories, andFacts Beyond Change" by Richard Tegtmeier, Colorado Springs, CO, presented Nov. 2002, in Chicago, IL.

It suggests the idea of preparing for a trial by: If you know where you are wanting to go or the final destination, then you can determine what you need to do to get there or what route to take.

Where do you want to go?

If you know what you want to say in the closing argument, then you will know what you have to prove to get there.

1. First look at the jury instructions that you want the jury to be given for your client's theory of the defense. Don't try to force a defense into the trial if it doesn't ring "true." Be consistent. If your client ran a red light which resulted in a death but was not intoxicated, admit your client ran a red light which resulted in death but that he was not intoxicated. Be consistent. (Manslaughter -felony vs. Negligent Homocide - misdemeanor)

2. Argue a powerful defense and not a negative defense. Don't argue --- the state failed to prove it's case---- which implies --- my client is guilty but let him off because the state failed to prove the case ---Instead argue that the client lacks the intent or that they have the wrong man or that he is innocent or innocent of the charged offense. However, what-ever the defense has to ring true to the jury and be consistent with the facts. When you look at the facts use your own intuition and your emotions. Most juries react emotionally to the facts. You must anticipate their emotions. Use your intuition and your emotions. You may want the jurors to "associate" with the emotions of your client. Success with a jury can be related to how well the jury relates to the client's reactions, decisions, and feelings in the case.

3. Next go to closing argument. Ask yourself what you want to be able to tell the jury when you stand to give them the reasons for finding your client not guilty. Give a synopsis of your closing to non-lawyers and ask them their opinion. What they think of your theory and why people would react the way your client reacted. When you run these questions by ordinary people, you will see the natural reactions of people to life circumstances and their gut-level reaction to the case will give you insight that is GENUINE,CLEAR, AND HONEST.

If you know what you want to say in the closing then you will know what you have to prove to get there. There are certain "facts beyond change" or core facts that cannot bechanged in any case. Your theory of defense must be consistent with these "core facts."

Jurors decide cases based upon emotions or their gut-level instincts. Every case has a "dominant" emotion. Determine what that dominant emotion may be or could be. If the theory is self defense --- ask questions during jury selection relating to that dominant emotion --- Tell your investigator what your theory of the defense is and what you expect to argue during closing argument and what jury instructions you anticipate so that the investigator can find facts in support of the theory of defense.

We live in a world of 15 second sound bites and themes and the jury expects them. Decide what your theory of defense will be and design some short sound bites and themes for the jury. Be consistent with the core facts and the emotions. Most juries decide the cases primarily based on instinct and emotions. The law and the facts are secondary. Tell the jury your defense theme and defense sound bites just like you would talk to a friend. Be human.

Your client is a human being. You are his or her primary mouth piece. Your client's freedom, future, and life --- depends upon you and you must be able to articulate your client's story and explain the life circumstances in detail of your client. Your client is a human being and not a monster and sometimes you may have to say to the jury ---- my client is a human being and not a monster.

Bureau of Justice Statistics Report - minorities more likely to be searched-arrested

Bureau of Justice Report - Minorities more likely to be searched and arrested

Read the Actual Bureau of Justice Report April 30, 2007


Black, Hispanic and white drivers are equally likely to be pulledover by police, but African Americans and Hispanics are much morelikely to be searched and arrested, a federal study found.And police are much more likely to use force against or to threatento use force against African Americans and Hispanics than againstwhites, whether in a traffic stop or another encounter, according tothe Justice Department

The study, released yesterday by the department's Bureau of JusticeStatistics, covered police contacts with the public during 2005 andwas based on interviews by the Census Bureau with nearly 64,000people age 16 or over."

The numbers are very consistent" with those found in a similarstudy of police-public contacts in 2002, said bureau statisticianMatthew R. Durose, a co-author of the report.

Traffic stops are the most frequent way police interact with thepublic, and minority groups have said that many stops and searchesare based on race. Some African Americans allege being pulled overfor "driving while black.""The available data is sketchy but deeply concerning," said HilaryO. Shelton, director of the NAACP's Washington bureau.

The NAACP hasdone surveys on traffic stops, and he said the racial disparitiesgrow larger as the studies delve deeper."It's very important to look at the hit rates for searches -- thenumber that actually result in finding a crime," Sheltonsaid. "There's a great deal of racial disparity there.""This report shows there are still disturbing disparities in termsof what happens to people of color after the stop," said Dennis D.Parker, director of the American Civil Liberties Union's racialjustice project. He also said better reporting is needed.This report, like the one for 2002, warns that the racialdisparities uncovered "do not constitute proof that police treatpeople differently along demographic lines."

The differences couldbe explained by circumstances not analyzed by the survey.Black, Hispanic and white motorists were equally likely to be pulledover by police -- between 8 percent and 9 percent of each group.The racial disparities showed up after that point:African Americans (9.5 percent) and Hispanics (8.8 percent) weremuch more likely to be searched than whites (3.6 percent).African Americans (4.5 percent) were more than twice as likely aswhites (2.1 percent) to be arrested. Hispanic drivers were arrested3.1 percent of the time.Among all police-public contacts, force was used 1.6 percent of thetime. But officers were more likely to use force against or tothreaten to use force against African Americans (4.4 percent) andHispanics (2.3 percent) than against whites (1.2 percent).

Drug Treatment Facilities in Oklahoma

Long-term inpatient drug treatment facilities you can look up all Oklahoma facilities here: