Tulsa Jail Phone Calls Recorded and Letters Xeroxed
by Glen R. Graham, Tulsa Criminal Defense Attorney, Tulsa, Oklahoma
Phone: (918) 583-4621 or email: glengraham@icu.net
Notice to everyone: All telephone calls from the jail are recorded and saved for at least three (3) years and the telephone conversations may be used against you. All letters into and out of the jail are xeroxed and copies are saved for use against the parties at trial or for investigation.
My clients in the Tulsa Jail continue to call me collect on occasion and want to discuss the facts of their case even though their phone calls are being recorded and I have to remind them of the above. They will also call their relatives and friends and sometimes discuss the facts of their case ---- forgetting that the call is being recorded and saved to be used against them.
Please, please, please --- everyone keep in mind the telephone calls from the Tulsa Jail are recorded!
Yours in the Defense of Fellow Human Beings,
Glen R. Graham, Tulsa Criminal Defense Lawyer, Tulsa, Oklahoma
Tulsa Jail Phone Calls Recorded and Letters Xeroxed
Well, What are You Going to Do for Me? Work, Work, Work!!!
What are You Going to Do For Me? Work, Work, Work!!!
by Glen R. Graham, Oklahoma Criminal Defense Attorney, Email: glengraham@icu.net
Most client's charged with a serious crime want to know what the lawyer is going to do for them. The answer usually boils down to the philosophy of work, work, work. The first step is conducting your own independent investigation of the facts. Maybe, visiting the actual scene of the crime. Consider taking photographs of the scene and looking for evidence. Maybe even take the client back to the scene an re-live the incident --- maybe do some psycho-drama. It can provide real power in testifying when the client re-lives the incident and discusses all the emotions. It can increase the authenticity of the client when testifying in court. I will talk to the witnesses. Especially, I will talk to the client to gather up all the facts in the matter. That's why is can be very frustrating when the client wants to know what you are going to do for me? Well, most importantly, the client must come to the office and discuss the case. You might be surprised how many client's seem to not have the time to come to my office to discuss their case. How can I adequately prepare for the case when the client won't even come to my office? Are they afraid of me? Are they avoiding me because they don't have that payment for me that they promised me some time back? Sometimes, it makes me wonder? It is absolutely necessary to conduct an in depth interview of the client to find out all facts, issues, and all evidence and witnesses in the case.
One thing I will do, I will try to out-work the prosecutor. The prosecutor has multiple cases that he is handling all at the same time. The prosecutor is a professional juggler, handling many cases, hoping none of them fall. My practice is limited to just a few cases by comparison and I can spend more time on the case which should produce a better out-come.
I am going to devise a defense strategy and work on the theme of the case. I am going to research the law and study the statutes and cases dealing with all the issues in the case. I am going to study the facts and the law. One trick I have learned over the years, (21 years) is to look at the jury instructions to see what defenses might be available and to look at the jury instructions regarding the legal issues that will be presented to the jury. However, the jury is also the judge of the facts and therefore I must gather up all relevant facts which will assist me in advocating my client's side of the case to the jury.
I am going to file motions in the case. I am going to file a request and motion for discovery and obtain copies of all the law enforcement reports in this case and any exculpatory evidence. I am going to look for issues around the arrest and the search and seizure. I will file motions to suppress or motions to quash the arrest and/or motions to quash the information and/or motions to dismiss and/or other motions which will assist us in pursuing a defense in the matter.
I am going to prepare for a trial in the case.
I am going to advise my client how to behave, how to dress for court, and what to expect.
I am going to be over-prepared for court. I am going to out-work the prosecutor.
I am going to work, work, work.
Yours in the Defense of Fellow Human Beings,
Glen R. Graham, Attorney for the Accused, Tulsa, Oklahoma
Protecting the Rights to a Fair Trial Against Unfair Media Stories
Protecting the Rights to A Fair Trial Against Unfair Media Stories in Oklahoma by Glen R. Graham, Attorney at Law 918.583-4621
It is important for any trial attorney to be aware of the Code of Professional Journalism at Society of Professional Journalist web site.
One of the options that a good criminal attorney has is to seek a protective order from the court by filing a motion for a protective order. While there are many limitations on "gag" orders and the media may attempt to challenge the constitutionality of the same, it may be possible to seek an order from the court directing the prosecutor and his staff and the law enforcement personnel be prohibited from releasing certain kinds of questionable facts such as:
Illegal Confessions; Statements of the Accused; Questionable Out of Court Identifications; Illegal Evidence or Evidence Illegally Acquired; and the release of any facts which may cause undue prejudice to a fair trial such as the prior criminal record of the accused.
From Wikipedia: “Guaranteeing the presumption of innocence extends beyond the judicial system. For instance, in many countries journalistic codes of ethics state that journalists should refrain from referring to suspects as though their guilt is certain. For example, they use "suspect" when referring to the suspect, and use "allegedly" when referring to the criminal activity that the suspect is accused of.”
“More subtly, publishing of the prosecution's case without proper defense argumentation may in practice constitute presumption of guilt. Publishing a roster of arrested suspects may constitute undeserved punishment as well, since in practice it damages the reputation of innocent suspects.”
Most journalists in the U.S. abide by the Code of Ethics of the Society for Professional Journalists. The code has been revised many times, but today’s code basically instructs journalists to (1) seek truth and report it, (2) minimize harm, (3) act independently and (4) be accountable. The Society of Professional Journalist does not have an enforcement mechanism to enforce its code. It has debated this matter but due to the special nature of the first amendment and the availability of other mechanisms for holding journalist accountable, there is no enforcement mechanism. The code currently is a basic guideline for journalists who are members of the society which is voluntary. Integrity and credibility are considered crucial to many journalists .
Preamble to the Code of Ethics of Professional Journalists
By the Society of Professional Journalists
Preamble to the Code of Ethics of Society for Professional Journalists:
“Members of the Society of Professional Journalists believe that public enlightenment is the forerunner of justice and the foundation of democracy. The duty of the journalist is to further those ends by seeking truth and providing a fair and comprehensive account of events and issues. Conscientious journalists from all media and specialties strive to serve the public with thoroughness and honesty. Professional integrity is the cornerstone of a journalist's credibility. Members of the Society share a dedication to ethical behavior and adopt this code to declare the Society's principles and standards of practice.”
Additionally, the Code says journalists should:
— Give voice to the voiceless; official and unofficial sources of information can be equally valid.
— Distinguish between advocacy and news reporting. Analysis and commentary should be labeled and not misrepresent fact or context.
Minimize Harm - Ethical journalists treat sources, subjects and colleagues as human beings deserving of respect. Journalists should:
— Show compassion for those who may be affected adversely by news coverage. Use special sensitivity when dealing with children and inexperienced sources or subjects.
— Be sensitive when seeking or using interviews or photographs of those affected by tragedy or grief.
— Recognize that gathering and reporting information may cause harm or discomfort. Pursuit of the news is not a license for arrogance.
— Recognize that private people have a greater right to control information about themselves than do public officials and others who seek power, influence or attention. Only an overriding public need can justify intrusion into anyone’s privacy.
— Show good taste. Avoid pandering to lurid curiosity.
— Be cautious about identifying juvenile suspects or victims of sex crimes.
— Be judicious about naming criminal suspects before the formal filing of charges.
— Balance a criminal suspect’s fair trial rights with the public’s right to be informed.
Act Independently -Journalists should be free of obligation to any interest other than the public's right to know.
— Be vigilant and courageous about holding those with power accountable.— Deny favored treatment to advertisers and special interests and resist their pressure to influence news coverage.
Be Accountable> - Journalists are accountable to their readers, listeners, viewers and each other.
— Clarify and explain news coverage and invite dialogue with the public over journalistic conduct.
— Encourage the public to voice grievances against the news media.
— Admit mistakes and correct them promptly.
— Expose unethical practices of journalists and the news media.
— Abide by the same high standards to which they hold others.
Struggling with a dilemma on deadline, or just want to talk about a tough call you've had to make concerning an ethical question about journalism? Call the Society of Professional Journalist at 317/927.8000 x208 Simply make the call, leave a message. The SPJ has many journalists and journalism educators on its ethics committee willing to assist anyone who makes a call to its hotline; that includes non-journalists who have questions about the ethics of journalism but there is no code enforcement mechanism regarding journalists.
The Society of Professional Journalist web site at Society of Professional Journalist web site also has a message board where messages are posted and issues discussed by members at message board of SPJ .
Yours in the Defense of Fellow Human Beings,
Glen R. Graham, Tulsa Criminal Attorney, 918.583.4621
Description of Typical Misdemeanor Case in City Courts: Tulsa, Broken Arrow, Owasso, Jenks, Sand Springs, Glenpool, Bixby
Each case is different and a defendant should always consult an attorney for the correct legal advise. The initial appearance is usually the "arraingment" which is another word for "scheduling." The court will inform the defendant of the charges and enter a not guilty plea and schedule another court date for a conference and inform the defendant of their right to an attorney.
A smart defendant would be wise to consult and retain an attorney. If the defendant enters a plea of guilty to a DUI or a drug charge, the defendant may receive a conviction which results in a suspension of their driving privileges and may result in the suspension of student aid to attend college and other consequences including lost job opportunities and increased insurance costs. However, if the defendant obtains a lawyer, it may be possible to attempt to work out a plea bargain for a lesser offense or a "deferred" sentence which results in a dismissal and expungement with no conviction.
Other options include filing a motion to quash the arrest or to suppress evidence or a motion to dismiss. The defendant should sit down with a lawyer and discuss all of their options which include also the possiblity of a trial or a plea bargain. Each case is different so the defendant should find an experienced lawyer and schedule an appointment to discuss the case.
My name is Glen R. Graham, Attorney at Law, I have have practiced law over 21 years and you should call me to schedule an appointement at (918) 583-4621. I handle all criminal cases in Tulsa and all surrounding areas. Web site: http://www.glenrgraham.com
Tulsa's Best Criminal Defense Attorney or Best Tulsa Criminal Defense Attorney
It is my opinion that the Best Tulsa Criminal Defense Attorney's are members of the Tulsa Criminal Defense Lawyer's Association and the Oklahoma Criminal Defense Lawyer's Association and actively participate in both organizations. Therefore, I, Glen R. Graham, Attorney at Law, Tulsa, Oklahoma, with over 20 years of legal experience, actively participate in both organizations and support both. My web page: http://www.glenrgraham.com
Also, the best Tulsa Criminal Defense Attorney's maintain valuable Tulsa criminal defense information blogs such as: http://www.oklahomacriminaldefense.blogspot.com
or
http://www.tulsacriminaldefense.blogspot.com
I am sometimes surprised at how many attorney's simply don't get involved or don't maintain their active involvment or don't even have a web site or a blog. While many attorneys claim to be past or current members, there are some that fail to maintain active participation or maintain web sites or helpful legal blogs which the Best Criminal Defense Attorney's should have !!!
Maybe the attorney is just too busy because they have too much business. Maybe the attorney thinks it is over-valued or that maintaining active participation does not get them a sufficient return on their investment of time and money. Anyone can always have an excuse to not give involved in any group organizations. However, as most people realize, membership has it advantages!
Social networking enables a person to use the knowledge and experiences of another person without having to re-invent something that has already been invented. You can stand on the shoulders of your brothers and sisters in the legal profession and use their common and collective individual experience and knowledge to uplift and improve your ability to win cases.
It seems like "common" sense.
By Glen R. Graham, Attorney at Law, Tulsa, Oklahoma My email: glengraham@icu.net
A General Description of the Normal Procedure on a Tulsa Felony Criminal Case
More Information Available at http://www.oklahomacriminaldefense.blogspot.com/
By: Glen R. Graham, Attorney at Law, (918) 583-4621, more information at his web site: http://www.glenrgraham.com/
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.
CHOICES:
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
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!
Yeaaaaaaaaaaaaaaaaaaaaaaaaah!
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:
http://sentencing.typepad.com/sentencing_law_and_policy/2007/11/does-reefer-no-.html
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 --- http://www.lawofcriminaldefense.com/blog/
The Philosophy of Tao Te Ching
Chapter 32
The Tao, considered as unchanging, has no name.
Chapter 44
Or fame or life,
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,
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,
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
http://www.kscourts.org/ca10/cases/2006/07/03-4158.htm
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 http://www.governingthroughcrime.blogspot.com/
and this article:
http://findarticles.com/p/articles/mi_m0KAY/is_3_7/ai_n6203186
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.
http://www.nacdl.org/public.nsf/01c1e7698280d20385256d0b00789923/b0e7d25e09976c80852572e40065a3fb?OpenDocument
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) http://www.ca10.uscourts.gov/opinions/05/05-1518.pdf
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.
http://web.austin.utexas.edu/law_library/innocence/
