More General Information about Domestic Violence Cases
by Glen R. Graham, Attorney at Law
See other post about subject matter herein below this post at:
More information about Tulsa Domestic Assault and Battery Criminal Offense
Victim's or Witness Request to Dismiss and Affidavit: (Google Docs)
http://docs.google.com/Doc?id=dhmqv6sp_0c4pxcddz -
You can print this off and give it to your lawyer (not the prosecutor) to give to the prosecutor at the proper time. It is not binding on the government but it does give the assigned prosecutor something in his file from the accuser. If the prosecutor has it too soon, they may attempt to force the witness to testify involuntarily so you may want to discuss this with your lawyer before subjecting yourself to persecution by the prosecutor.
Domestic violence assault and battery cases are viewed as extremely serious cases where the violence may escalate or where people may be injured or children psychologically injured.
There is political pressure to pursue all domestic violence cases because there is a belief that the violence may escalate or that people's lives or safety may be endangered.
Alleged "victims" may want to legitimately dismiss the charges but the criminal case is being prosecuted by the State and not the victim. The prosecutor may initially refuse to dismiss the case in order to extract a "plea" from the defendant which will require counseling which is usually once per week for fifty-two (52) weeks under the current statutory laws passed by the Oklahoma legislature. This blanket law ignores the individual differences between individuals and between the individual circumstances of the specific case. Upon conviction, it requires 52 weeks of counseling simply because it is a domestic violence assault and battery case.
The case may get dismissed anyway if the state is unable to prove the case if there is no witness that testifies after the case is set for trial unless the state can prove the case with other evidence.
Without a witness, the state will attempt to use the following:
1. Admissions and confessions by the defendant;
2. Photographs of the injuries;
3. 911-tape of the call reporting the incident;
4. Statements that fall within the exception under the Crawford analysis. The Crawford case held that a defendant has a right to confrontation but not as to statements that were not "testimonial" in nature. So, 911-tapes are considered non-testimonial and are admissible as an exception to the Crawford rule;
5. Other witnesses.
Many times the other evidence is not sufficient and the case may get dismissed at the time of trial without sufficient evidence.
Most prosecutors will attempt to telephone the "victim" at the phone number in the police report. Some prosecutors may attempt to bluff the victim into changing their mind about pursuing the case. It is not right to lie or intimidate a witness. However, prosecutors generally do not get prosecuted by other prosecutors. So, I have heard of cases where a prosecutor would threaten to have the "victim" arrested if she did not appear in court. However, the statute dealing with material witness warrants states that a victim cannot be arrested on a material witness warrant. A smart victim would not talk to a prosecutor who might prosecute them for any statements which they might make indicating they were not truthful when they filed a police report or indicating that they have changed their mind about what happened. Some prosecutors will threaten to take the children away if the victim does not co-operate. A prosecutor cannot "take the children away" because the victim refuses to co-operate. A prosecutor can request a DHS investigation but this does not mean that the children are automatically taken away. Most DHS investigations are performed by an "independent" DHS case worker and their reports will be reviewed by an independent Judge. Unfair statements by prosecutors designed to intimidate or coerce victims into pursuing a case which should be dismissed are not ethical. Prosecutors generally will not prosecute other prosecutors.
Attorneys are supposed to be bound by a Code of Professional Responsibility which is supposed to apply to all attorneys even prosecutors.
More General Information About Domestic Violence Cases
What to Expect on a Tulsa DUI or APC
What to Expect on a Tulsa DUI, DWI, or APC By Glen R. Graham, Attorney at Law, (918) 583-4621, more information available at his web site, http://www.glenrgraham.com/ More information available at http://www.tulsacriminaldefense.blogspot.com/ Each case is different so there are some individual differences from case to case. You may have a defense to the case and you should schedule an appointment with an attorney to discuss your specific facts. My telephone number is (918) 583-4621 and I only handle Oklahoma cases. - You should be advised that you only have fifteen (15) days to request a hearing from the Department of Public Safety to attempt to save your driving privileges. You should hire a lawyer to file the proper request in the proper format to request a hearing to attempt to save your driving privileges. Your driving privileges are treated separately from your criminal case. Everyone is presumed to know the law, so if you fail to make a timely request for a hearing, you will have waived you right to a hearing on your drivers license. It may be possible to use the drivers license hearing as a “discovery tool” to see what the police officer will testify to in your case in the criminal case. Again, if you fail to make a timely request for a drivers license hearing then you will have waived your right to a hearing on your drivers license. - Usually, the court is going to require a “substance abuse assessment” before the case can be finalized or any deals can be worked out. Also, if you score sufficiently good on the assessment, you might be able to argue that you do not have a problem and use it to obtain a better deal or as a mitigating factor. Any DUI school can give you a substance abuse or alcohol assessment which costs $175.00 dollars. Most take payments but will not give the assessment until they have been paid. The court will order you to comply with any requirements stated in the assessment. If it is determined that you do not have a problem with substances or alcohol, then this information can also be conveyed to the court. Normally, the court will pass the case to give you time to complete the assessment and to pay your lawyer. - Most lawyers expect to be paid prior to completion of the case. At some point a plea bargain may be worked out. Normally, if this is your first offense and you do not have a "bad" criminal record and do not have other offenses and if the facts are right, then the court will put you on a 4 month program for you to complete certain requirements during those 4 months. The normal requirements are the DUI school, victim impact panel, (if under 25 yrs – then the Youthful Offender Program), and sometimes community service plus fines and costs. Each case is different and it depends upon the recommendations of the assessment and the court.
However, sometimes the prosecutor will agree to a straight deferred sentence, if it is your first offense and you do not have a prior criminal record. Each case is different and must be evaluated on it's individual merits. Was there an accident? Does the defendant have any prior criminal record? What was the breath result - high or low or refusal? What were all the circumstances involving the offense and what traffic laws were violated? Each case is different and you must talk to a lawyer in person to determine what might be an acceptable outcome on the case. Do NOT TAKE A CHANCE - when your freedom is involved - talk to a lawyer in person!!!
In some city municipal courts, the prosecutors are not willing to agree to deferred sentences but will agree to a program to reduce to a lesser charge such as impaired driving or reckless driving. Each case is different and it depends on which court the case is assigned to and who the prosecutor and Judge assigned to the case and what are the facts of the case and circumstances of the defendant. Each case is different, you should talk to a lawyer in person. You can call me at (918) 583-4621 - Glen R. Graham - Attorney at Law.
If you are under 25 yrs, then you may qualify for a YDD program which results in a “deferred sentence” which means upon successful completion of the court requirements (including probation) then your case is dismissed and expunged upon payment of the costs and assessments. If you are over 25 yrs, then you may qualify for an adult version of the program which results in either a deferred sentence or a reduced charge to a lesser offense and a fine and probation.
Again, each case is different and it depends upon the facts. A person who is charged with DUI and has young children in the car or speeds through a school zone or endangers other peoples lives such as having a bad accident while DUI, may have a more difficult time attempting to work out a satisfactory plea bargain. Each case is differenct and you need to consult with a local lawyer in your area. I only handle Oklahoma cases and I have been practicing law for over 20 years. Yours in the Defense of Fellow Human Beings, Glen R. Graham, Attorney at Law, (918) 583-4621
Legal Information About Domestic Assault and Battery Criminal Misdemeanor
From the Defense Point of View
By Glen R.Graham, Attorney at Law, over 20 years experience, more information available at his web site: http://www.glenrgraham.com/
Victim's or Witness Request to Dismiss and Affidavit: (Google Docs)
http://docs.google.com/Doc?id=dhmqv6sp_0c4pxcddz -
You can print this off and give it to your lawyer to give to the prosecutor at the proper time. It is not binding on the government but it does give the assigned prosecutor something to put in his file from the accuser. If the prosecutor has it too soon, they may attempt to force the witness to testify involuntarily (call you up and threaten you) so you may want to discuss this with your lawyer before subjecting yourself to persecution by the prosecutor. A lawyer would probably bring it to court and give it to the court on the day set for hearing or trial when the witness does not appear.
The evidence is what determines the out-come in most cases. It depends upon the facts and what facts can be legally admitted under the rules of evidence or presented to the judge or jury in open court. A defense lawyer is prohibited by law and ethics from making any statement to a witness which specifically tells the witness not to come to court to testify. A witness should use their independent judgment to decide what is in their best interest. A witness should hire a lawyer or at least talk to an “independent” lawyer (a lawyer not representing the defendant and a lawyer who is not the prosecutor) on the telephone about what is in their best interest. Neither the prosecutor nor the defense lawyer represent the victim.
Title 22 O.S. Section 720 specifically states that a “material witness warrant” cannot be issued for a VICTIM in a criminal misdemeanor case for failing to appear. A material witness warrant can be issued for a witness who is not a victim under certain circumstances like proof of service of a subpoena or in felony cases where a non-victim witness makes certain statements to police or prosecutor about not appearing. If a victim is personally served with a subpoena there is the possibility of the prosecutor asking the court to issue a warrant for the victim if they fail to appear but this is a matter of discretion and some prosecutors may let it go and some might not. If the victim is not personally served with a subpoena then how would the victim know to come to court and nothing usually happens. Some prosecutors may attempt to telephone the victim and talk them into coming to court or try to scare them into appearing in court or even say they will seek to have a warrant issued which is not possible against a victim unless there is personal service of the subpoena. Without personal service of a subpoena on the victim, there is not much the prosecutor can do in a misdemeanor case.
A defendant and a lawyer for the defendant should never tell any witness not to appear in court because someone could try to imply that they intimidated a witness or possibly obstructed justice or committed a crime of witness tampering.
A victim may be threatened with prosecution if they talk to the district attorney and make certain statements. The district attorney is a prosecutor who is sworn to uphold the law and does not represent the victim and is not the attorney for the victim. A victim has an absolute right to hire a lawyer to represent them.
It is a crime to file a false police report so if a victim tells a prosecutor that they lied when they told the police that something happened then the prosecutor has the discretion to file charges against the victim. It is perjury to testify under oath to something that is not true. So, if the victim filed a false police report and then testifies under oath in court to something that is not true then they can be charged with perjury. A prosecutor has discretion about whether to file charges and does not always file these charges. If the victim does not talk to the prosecutor then they cannot file a criminal offense against the victim for filing a false police report unless there is some other evidence to support the charge.
Many cases are set for a trial and then if the prosecutor is unable to obtain personal service of the subpoena on the victim or other witnesses or if there is not a confession from the defendant and if there is not a 911-tape recording from the victim, then in some cases the case may get dismissed.
The case can be prosecuted without a victim when there is other evidence such as 911-tape recording, pictures of victim showing injuries, confessions, OR other witnesses. There is political and social pressure to obtain a conviction. There is the possibility that the violence could escalate (possible murder or serious injuries unless counseling) and so there is a desire for the defendant to be ordered to go the counseling which can only be ordered by the court if there is a conviction.
A prosecutor may attempt to telephone the victim at the phone numbers listed for the victim in the police reports. A prosecutor may threaten to have the victim arrested (although under 22 O.S. § 720 states a victim cannot be arrested on a material witness warrant) or may threaten to send an investigator to the home of the victim to bring them to court. A prosecutor may make statements to the victim to get them to appear in court. There are some “stories” about some prosecutor calling a victim and stating that they would be arrested if they did not appear in court even though the laws says a victim cannot be arrested for a material witness warrant under 22 O.S. § 720. One story is that a prosecutor once told a victim that they would call DHS to pick up the children or file a report with DHS. (Anyone call call DHS but that does not automatically mean that DHS will take someone’s children. They will investigate the allegation and make an “independent determination.”) Most domestic cases don’t involve the children or any direct harm to the children but there are exceptions. Prosecutors don’t normally prosecute other prosecutors for statements made to victims. Defense lawyers can be bar complainted, tape recorded, and prosecuted for statements that they make to the victim. A defense lawyer may be threatened with prosecution for statements made to a victim so most defense lawyers prefer not to talk to the victim. A lawyer for a defendant should not specifically tell a victim not to appear in court. However, a victim can always contact any “independent” lawyer in the telephone book to ask about their rights and what is in their own best interest.
Neither the prosecutor nor the defense lawyer represent the victim. A victim has the right to hire their own lawyer to represent them or to at least talk to an “independent” lawyer (not the defense or prosecutor) on the telephone about it.
Increasing the Percentage of Cases that go to Trial to Achieve Justice
I think if we, as defense lawyers, could increase even slightly, the percentage of cases that go to trial, then it might be possible to achieve a better sense of "justice" for some of our clients. Obviously, the current system is designed for a "plea bargain" and not necessarily for "justice." However, prosecutors have an ethical duty to not prosecute a case in which they personally possess a reasonable doubt about the guilt of the accused irregardless of pressure from their supervisors or the public.
From the ABA Standards on Criminal Justice:
Standard 3-3.8 Discretion as to Noncriminal Disposition
Illustrative of the factors which the prosecutor may properly consider in exercising his or her discretion are:
(i) the prosecutor’s reasonable doubt that the accused is in fact guilty;
(ii) the extent of the harm caused by the offense;
(iii) the disproportion of the authorized punishment in relation to the particular offense or the offender
(iv) possible improper motives of a complainant
(c) A prosecutor should not, be compelled by his or her supervisor to prosecute a case in which he or she has reasonable doubt about the guilt of the accused.
An email received by my colleague, Brian Tannebaum, over at his blog - here - stated:
"This is all a result of a system that is designed for pleas, in which 2% of cases go to trial. Therefore, prosecutors are judged on conviction rates and pleas. They should be judged on whether they act honorably and thoughtfully on what they do and don't prosecute. It is further the result of this country's CYA mentality. No one wants to be on the O'Reilly factor.
Therefore, cops make arrests they don't really agree with and pass it up the chain, hoping the State will do the right thing.
The State files and pursues the case, while making a decent plea offer to the innocent Defendant, because they have to "back up the officer".
The judges deny motions to suppress and other defense applications, because there is never any political capital to be gained in siding with a Defendant.
The underfunded and overworked lawyer pleas the client out, or he just might lose to a jury of citizens who assume that a guy couldn't be arrested, filed on, and have a Judge allow a trial, if he is actually... innocent.
Its all capped off by a PCA from the District Court of Appeals, if they are too busy to write an opinion on that particular case.
I, for one, personally think that the only way to combat this trend is for more defendants, and their attorneys, to be willing to go trial. If we can raise the percentage of cases that go to trial then more nonsense gets exposed and the judges will encourage the State to not waste their time and clog their docket.... instead of leaning on us."
Subprime Loan Crisis Ramifications & Consequences
Professor Jonathan Simon, UC at Berkeley, on his blog, here, says that it was only a matter of time before the rippling "subprime" loan crises became a story of crime. He points out the preferred story by some media is the street crimes by some poor people and minorities instead of the "suite" crimes by the educated professionals and he cites a story by MSNBC in his blog.
This is an interesting story and I wonder what effect this may have in picking a jury. Will the potential juror's see the subprime loan scandal as the story of crimes by minorities and poor on foreclosed homes or as the story of swindles and con-games and fraud by educated professionals or as a little bit of both? Vacant, abandoned houses and decaying neighborhoods become labeled crime neighborhoods or high crime areas as the middle class move out and the unemployed and poor move in. Eventually, maybe, some neighborhoods turn around after some new investors buy the properties and rehabilitate them, sometimes. At other times, urban renewal goes through and demolishes the old neighborhood.
Interesting ideas. What other effects of the subprime loan crises can we expect? Loans may dry-up, investors flee, increased governmental over-sight, decline in new housing market, higher interest rates, etc. ? Or, maybe, fewer defaults, fewer bad loans, less foreclosures, less mortgage fraud? There is going to be a period of "adjustment" as the market adapts to the new environment. Things usually do get better.
Biblical Authority in Opposition to Snitching
I have previously written about the Biblical authority in opposition to the use of hearsay evidence and the right to confrontation and the right against self-incrimination --- see my post here: HERE
Scott Henson’s blog cited HERE discusses Biblical authority in opposition to “snitching” or his interpretation: and the comments following his post are excellant!!!
Mosaic Law required that "One witness shall not rise up against a man for any iniquity, or for any sin, in any sin that he sinneth: at the mouth of two witnesses, or at the mouth of three witnesses, shall the matter be established." (Deuteronomy 19:15) Christ formally affirmed this doctrine as part of the New Testament covenant in Matthew 18: 15-16, as the Apostle Paul did in Second Corinthians.He also refers to the Synod of Elvira, an important provincial religious council in Spain that occurred sometime during the first decade of the Fourth Century, prior to Emperor Constantine's conversion and Christianity's formal, public acceptance in the Roman Empire. This was a period when Christians were harshly persecuted by the Romans, wherein he cited the Christian version of the modern "stop snitching" code (here's the only web version I can find: Scroll down to see #73):
http://faculty.cua.edu/pennington/Canon%20Law/ElviraCanons.html
"A Christian who denounces someone who is then ostracized or put to death may not commune even as death approaches. If the case was less severe, he or she may commune in less than five years. If the informer was a catechumen, he or she may be baptized after five years."
Refusing communion was the most terrible punishment early Christians could think of - far more awful, in the long run, than the death penalty for the unsaved soul.The reference to a Christian denouncing someone in the context of the Elvira Synod meant ratting out a fellow Christian to the Roman authorities, which quite possibly could get them killed. In that case, their excommunication was permanent.These Christians had read most of the same books of the Bible we do now (they probably had more, actually), and they knew the admonition to "render unto Caesar what is Caesar's." But the Elvira Synod did not consider their truthful testimony about fellow Christians something that belonged to Caesar. Instead, snitching on fellow Christians was declared an offense against God by which a Christian risked everything, literally their eternal soul.
Yours in the Defense of Fellow Human Beings,
Glen R. Graham, Attorney at Law, Tulsa, Oklahoma
http://www.glenrgraham.com/
Returning Veterans Face Problems Upon Return --- Organizations Try to Help
Returning veterans may be in for a multitude of problems as exemplified in part by the Walter Reed Hospital scandal. Reports indicate that the Department of Veterans Affairs was ill-prepared for the sheer numbers and serious combat related and mental health and health and related issues of veterans of the Iraq and Afganistan Wars.
One issue that has yet to be addressed by the Oklahoma criminal court system is what services and special issues to deal with the special needs of veterans will the court establish (if any) to deal with the unique needs (both mental and social) of our veterans?
While military veterans represent 11 percent of the civilian adult population, they make up 26 percent of the homeless, according to data from the Department of Veterans Affairs and the Census Bureau. Counting all US veterans, 195,827 were homeless in January 2006 and an estimated 495,400 were homeless over the course of the year, the National Alliance to End Homelessness reported.
Around the country, community groups, local businesses, service organizations, clubs, and faith groups are helping build homes with special features or providing vehicles to accommodate wounded GIs.
As of November 5, 2007, the Brookings Institute is reporting 3,848 US soldiers killed, 28,451 and seriously wounded and of the 28,451 wounded, 20% have serious brain or spinal injuries (total excludes psychological injuries)
US Troops with Serious Mental Health Problems 30% of US troops develop serious mental health problems within 3 to 4 months of returning home
A review shows that the VA planned for a short and relatively bloodless war in Iraq, and then was slow to react when the war dragged on. In the military culture there is still a stigma attached to mental illness. Marines, especially, just aren't supposed to cry out for help.
PTSD estimates indicate the possibility that some veterans may be in for possible mental issues, depression, anxiety, outbursts, alcohol use, anti-anxiety medication, drug use, etc.
Organizations that want to help include:
America Supports You http://www.americasupportsyou.mil/
American Legion – Heroes to Hometowns (703) 908-6250 http://www.legion.org/
Checkpoint One Foundation (503) 871-3238 http://www.cponefoundation.org/
Homes for Our Troops 866-787-6677 http://www.homesforourtroops.org/
Iraq and Afghanistan Veterans of America (212) 982-9699 http://www.iava.org/
National Veterans Foundation 888-777-4443 http://www.nvf.org/
Returning Heroes Home http://www.returningheroeshome.org/
Swords to Plowshares (415) 252-4788 http://www.swords-to-plowshares.org/
US Welcome Home Foundation (520) 296-4686 http://www.uswelcomehome.org/
Veterans Outreach Center 866-906-8387 http://www.veteransoutreachcenter.org/
Veterans Village (209) 830-9955 http://www.veteransvillage.org/
Vets4Vets (520) 319-5500 http://www.vets4vets.us/
Bad Informant Testimony Has Disastrous Consequences - Tulia, Texas and the Kathryn Johnson 92-Year Old Woman in Atlanta, Georgia Case
The Tulia, Texas, government agreed to pay a settlement of $6,000,000.00 (million) dollars civilly. It involved false informant related activities and over 28 people falsely charged. Officer of the year in Texas, a “gypsie” traveling law enforcement officer, Tom Coleman, received an award during his activities. There was no corroboration for his arrests and some defendants were able to prove an alibi such as being at work during the time he said he made buys. Coleman said he made notes on his arms. The majority of defendants were minority Americans and many faced with many years in prison if they fought the case, accepted plea bargains in place of a trial.
Some statistics allege that “false informant” information is a major cause of false convictions in drug cases. According to retired, DEA agent, Dennis Fitzgerald, failure in the management of informants and co-operating individuals is the single most obvious source of integrity problems in the DEA. (See exact quotation below).
Also, there is the case of Kathryn Johnson, the 92 year old lady in Atlanta, Georgia, who was shot six times by police officers who broke into her home (she had anti-burglar bars and she came up shooting trying to protect herself) based upon a false affidavit for a search warrant that was subsequently determined to be a false affidavit and the alleged informant claimed he never gave the officers the false information. Subsequently, two police officers plead guilty to related charges and perjury type related charges involving the false affidavit.
There are other cases, multiple cases, involving false affidavits. Recently, during a jury trial in California, the Jury found the defendant not guilty when the informant testified and fell asleep on the stand several times. During a retrial a new jury found the informant not credible. The informant a drug addict in that case was paid several thousands of dollars. Putting a known drug addict or criminal on the pay roll whether by way of a reduced sentence or money is always a questionable practice.
Over, and over, and over again there are a multitude of false affidavits involving bad informant testimony.
Suggested reforms include requiring adequate "corroboration" for any informant testimony and an independent in camera judicial review of the informant file concerning credibility and corroboration and the existence of the informant.
Retired DEA special agent, Dennis Fitzgerald, author of The Informant Law Deskbook (West 1997), stated:
Many police managers view informants as a necessary evil, (1) time bombs waiting for the wrong moment to explode. The catastrophe that follows their detonation may include the death or serious injury of citizens, (2) civil law suits and destroyed police careers. (3) The Drug Enforcement Administration (DEA) reports that the "failure in the management of cooperating individuals constitutes, perhaps, the most obvious single cause of serious integrity problems in DEA and other law enforcement agencies."(4)
Notes and Sources: 1. Confidential Informants - Concepts and Issues Paper, International Association of Chiefs of Police, Law Enforcement Policy Center. 2. Carlson v. United States, 93-953G, see also Alvord, Snitches, Licensed to Lie?, San Diego Union Tribune, May 30, 1995, at A-7. 3. Commonwealth v. Lewin, 405 Mass. 566, 542 N.E. 2d 837 F.2d 727, 731 (6th Cir. 1988). 4. Integrity Assurance Notes, Drug Enforcement Administration, Planning and Inspection Division, Vol. 1, No. 1 (Aug. 1991). See also United States v. Gardner, 658 F. Supp. 1573, 1575 (W.D. Pa. 1987).
See Fitzgerald's article: http://www.nacdl.org/CHAMPION/ARTICLES/98may03.html
If It Bleeds, It Leads --- Fear of Crime Disconnected From Lower Crime Rates
From Texas lawyer, Scott Henson’s blog: http://www.gritsforbreakfast.blogspot.com/
If it bleeds, it leads ----
The new gallup poll - shows American's fear of crime has increased despite crime statistics showing lower crime rates.
See: http://www.gallup.com/poll/102262/Perceptions-Crime-Problem-Remain-Curiously-Negative.aspx
"Americans’ pessimism about crime may reflect an overly negative interpretation on their part of the fact that the decline in crime has tapered off. It could possibly reflect a real increase in media attention to crime on the local and national news. Or it could reflect Americans’ broader dissatisfaction with the way things are going in the country, a sentiment that extends from ratings of President Bush and Congress to the economy, as well as to their satisfaction with the direction of the country more generally."
Yours in the Law,
Glen R. Graham, Tulsa Attorney, Tulsa, Oklahoma
http://www.oklahomacriminaldefense.blogspot.com
More Quotable Quotes about the Law & Politics
Check out the blog at http://www.lawofcriminaldefense.com/blog/
A few excellant quotations from the above:
"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
You must be the change you wish to see. Your rights can only be protected to the extent that another person's rights are protected. Voting is only 10% of the factor but it is very important, as some elections are changed by that 10% factor. The dominant political party in your local area is going to control most issues. But, factions within that political party will impact the agenda and ultimate policy decisions. Most political parties are like a "big tent" where a multitude of people with different points of view gather to participate in the process. The minority party usually does not have the power to influence the ultimate political decisions that are decided.
Philosophy of Tao Te Ching - Useful Information for the Warrior - Lawyers Advocacy Skills
The Philosophy of Tao Te Ching
(Useful information for the Warrior - Trial Lawyer - Advocacy Skills - Self -Control & Knowledge)
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.
The Art of Advocacy is Like the Art of War --- The Lawyer as Warrior - Defender
The Lawyer as Warrior - Defender --- By Glen R. Graham, Attorney at Law, Tulsa, Oklahoma, over 20 years of experience (See also: http://www.glenrgraham.com/)
There is a big difference between a lawyer who is a warrior and a defender and a lawyer who is merely a businessman. An experienced trial lawyer does not fear a jury trial because he knows he was made and trained to do battle and he is not in it just for the money. A businessman is solely concerned with the bottom line which is how much money can I get for trying this case. A warrior - trial lawyer lives for the battle. He has been trained and it is as if everything he has done has lead up to the battle. A warrior's heart, he lives for the battle. No retreat, no surrender. He holds his clients life in his hands. Freedom or prison, it all depends upon the out-come of this trial. Preparation is everything. Planning, gathering the evidence, preparing for cross-examination. It is real work. A defender of the civil rights and the constitution and the humanity of mankind. It is an adversary system. Everything, everything depends upon how well the lawyer does his/her job. YOU can only be free to the extent that others are free.
The art of advocacy is in some sense like the art of war.
If you want to read some good Asian philosophy, take a look at "The Art of War by Sun Tzu.
Under chapter one, "Laying Plans," Sun Tzu says:
"All warfare is based on deception. Hence, when able to attack, we must seem unable; when using our forces, we must seem inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near. Hold out baits to entice the enemy. Feign disorder, and crush him. If he is secure at all points, be prepared for him. If he is in superior strength, evade him. If your opponent is of choleric temper, seek to irritate him. Pretend to be weak, that he may grow arrogant. If he is taking his ease, give him no rest. If his forces are united, separate them. Attack him where he is unprepared, appear where you are not expected."
"The general who wins a battle makes many calculations in his temple before the battle is fought. The general who loses a battle makes but few calculations before hand. Thus do many calculations lead to victory, and few calculations to defeat; how much more no calculation at all! It is by attention to this point that I can foresee who is likely to win or lose." - Sun Tzu
Yours in the Defense of Fellow Human Beings,
Glen R. Graham, Attorney at Law, Tulsa, Oklahoma
http://www.glenrgraham.com
Oklahoma Law Expungements and Sealing the Criminal Record
Explanation of the Oklahoma Laws about Expungements and Sealing the Record and “Deferred Sentences”
by Glen R. Graham, Attorney at Law
My Web Page: http://www.glenrgraham.com
(Ghandi says YOU must be the change you want to see in the world.)
My heart cries for the pain of all of the people who are trying to start over and trying to get a good job only to be told by some "human resources" person that we found someone else. They almost never tell you that it is because you have an "arrest" record, but they simply say they found "someone else" more "qualified. Many, many times over the last 20 years people are calling me saying can I get my arrest record expunged and most of the time the answer is "no." But, if you will take the time to write you "state representative" in the Oklahoma legislature and if you seek a lobby or get organized by passing a petition to change the law, then yeah, the law can be changed.
You really must be the change in the world you want to see.
Voting is only a small part of the formula but a very important part.
Lobbying and getting actively involved in supporting your candidate and writing letters to the editor and being a spokes person for "good" is something that the world and your community desperately needs.
So, you are just one person.
One person can change the world. Jesus, Ghandi, Martin Luther King, etc. For conservatives: Ronald Reagan, Alan Greenspan, Dwight D. Eisenhower, William F. Buckley, etc.
You must get involved, write letters, speak out for good. Lobby, organize, let your state representative know who you are.
Set up an appointment to talk to your state representative. Show support. Get involved in their campaign. Let them know who you are.
Go to church, a church of your choice. Organize. Meet people. Get involved.
You might be surprised how many small business people have some kind of minor criminal conviction or record or the like.
Start a small business - become your own boss.
Go back to school. Go to vo-tech and learn a trade. Some only take about 6 months. Get on the fast track.
Making an isolated mistake in life should not make you labeled a "criminal" for the rest of your life. How come the laws in Oklahoma fail to recognize this fact? What can you do to help us change this unfair law? A person should be able to get their arrest record expunged upon completion of a "deferred" sentence automatically. Lobby your legislature and write a letter to your representative.
Most politicians have email addresses and you should be able to email their office. You would have more influence if you scheduled an appointment to discuss the matter with them and if you got actively involved in their campaigns so they know you on a first name basis. Politicians are sensitive to the public and to respectible people who engage them in issues important in their lives. People are embarrassed to admit they have a criminal record and that the law needs to be changed. Most people have made some mistake in their life even if they did not get a criminal record or get arrested and prosecuted for their mistake. To err is human. Whether the error constitutes a permanent criminal record depends upon the circumstances.
YOU CAN MAKE A DIFFERENCE.
LIVE YOUR LIFE SO THAT YOU ARE MISSED WHEN YOU ARE GONE!!!
by Glen R. Graham, Attorney at Law , web page: http://www.glenrgraham.com/
The Oklahoma laws governing a deferred sentence are set forth in the Oklahoma Statutes in title 22 O.S. § 18 and 19. A deferred sentence is not considered a conviction under the law. At the end of a deferred sentence, if the defendant is “successful” then the “conviction” is “expunged” but the person still has an “arrest” record which is not “expunged.”
Any employer or anyone else doing a record check will still show an “arrest” and some people may refuse to hire you because of an arrest record. Some people are “fair” and some people are not “fair.” If your case was dismissed, it is not fair for someone to use it against you but some people will use it against you but not tell you. In dealing with employment applications, you may want to list it as an “arrest” and explain that it was “dismissed” because the employer will find out about “arrest” records and if you fail to list an arrest then some people may think you are not being "honest" even though you were not convicted.
The statutory laws for Title 22 O.S. Section 18 and Section 19 may be located on the web by doing a "search" or by going to one of the many web sites that show the statutory laws for Oklahoma such as http://www.oscn.net/ then click on "Legal Research" at the top of that web site and locate Title 22 O.S. Section 18 and Section 19.
Can an arrest record be sealed or taken out of the public records? Only if certain specific statutory requirements are met. Is this fair? Probably not. Can it be changed? Yes, with the stroke of an ink pen the state legislature can pass a new law. Is this likely to happen? No. Currently laws are passed or changed when there is political pressure for change by some political action group, lobbyists, people with money, some moral pressure group that actually votes and lobby’s legislatures to change laws. Isn't it true that most politicians running slogans of being “tough” on crime? Statistics are that less than 50 % of the public votes. There is no lobbying group that is putting pressure on legislatures to pass laws that allows “arrest” records to be “sealed.”
Currently, hereinafter are listed the main reasons to grant a sealing of the criminal “arrest” record (even though a deferred sentence) may or may not have been completed pursuant to 22 O.S. §18 and 19, see the following:
(1) The current law allows an “arrest” record to be sealed if the case is dismissed less than one (1) year from the date of arrest and if the prosecutor does not object or have a good public policy objection. Currently, the deferred sentences offered by prosecutors are never less than one (1) year from the date of arrest.
(2) If the case is dismissed before trial (without pleading guilty) or acquitted at jury trial, then the defendant can hire a lawyer and pay court costs to file a petition to seal the “arrest” record. The prosecutor may object and it would be up to a Judge to decide whether to grant an order sealing the “arrest” record or not but the Judge must follow the statutory and case law.
(3) If the case is a misdemeanor offense and results in a conviction, then the statute says after ten (10) years the defendant can file a petition to seal/expunge the arrest record if there are no other convictions and no pending cases.
(4) If the case is a non-violent felony offense and results in a conviction, then the statute says that the defendant can petition the Governor for a “pardon” ten (10) years after the date of the conviction if there are no other convictions and no pending cases and then file a petition to seal/expunge. But, that means you have to wait a whole ten (10) years to obtain a “pardon.” Then after the pardon is granted you can hire a lawyer to file a petition to seal the “arrest” record and pay court costs to try to do so.
To “seal” an arrest record, 22 O.S. §18 mandates that a defendant satisfy at least one of eight criteria, in order to seal an “arrest record.” The requirements under §18 include:
A. The defendant was acquitted; or
B. The conviction was reversed with instructions to dismiss or the prosecutorial agency dismissed the case after such reversal; or
C. The statute of limitations on the offense expired and no charges were filed; or
D. The defendant was under eighteen at the time the crime was committed and has been pardoned; or
E. The offense was a misdemeanor, the person has no other convictions and no pending cases, and at least ten years have passed since the judgment was entered; or,
F. The offense was a non-violent felony as defined in Title 57 O.S. §571, the person has no other convictions or pending cases, the person has been pardoned, and at least ten years have passed since the conviction.
Statute Authorizes Defendant to Request Disposition in Jurisdiction Where Arrested
This Oklahoma statute authorizes a defendant to request disposition in the State and County where the arrest occurred instead of the location where offense occurred subject to agreement of both prosecutors. See 22 O.S. Sec. 1145.4 and 1145.6.
Uniform Disposition of Criminal Cases on the Merits Act
22 O.S. § Section 1145.4 - Disposal of Criminal Charge at Request of Defendant
On request of the defendant and consent of the prosecuting attorney in the demanding state and the prosecuting attorney in the asylum state, the trial court of general jurisdiction or such other court having appropriate jurisdiction in the asylum state may dispose of the offense or offenses set out in the complaint, indictment or information or other equivalent pleading of the demanding state, and an exemplified copy of the judgment of the asylum state shall constitute a judgment on the merits when filed in the case in the courts of the demanding state.
Uniform Disposition of Criminal Cases on the Merits Act
22 O.S. § 1145.6 - Procedures, Rules and Regulations
A. A defendant arrested or held in a state or district other than that in which the indictment or information is pending against him may state in writing that he wishes to plead guilty, to waive trial in the district in which the indictment or information is pending and to consent to disposition of the case in the jurisdiction or district in which he was arrested or is held, subject to the approval of the prosecuting attorney for each jurisdiction. Upon receipt of the defendant's statement and of the written approval of the prosecuting attorneys, the clerk of the court in which the indictment or information is pending shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court for the jurisdiction in which the defendant is held and the prosecution shall continue in that jurisdiction.
B. A defendant arrested on a warrant issued upon a complaint in a jurisdiction other than the county, parish or district of arrest may state in writing that he wishes to plead guilty to waive trial in the jurisdiction in which the warrant was issued and to consent to disposition of the case in the jurisdiction in which he was arrested, subject to the approval of the prosecuting attorney for each jurisdiction. Upon receipt of the defendant's statement and of the written approval of the prosecuting attorneys, the court of limited jurisdiction shall certify and transmit the records in the case to the court of general jurisdiction, and, upon the filing of an information or the return of an indictment, the clerk of the court for the jurisdiction or district in which the warrant was issued shall transmit the papers in the proceeding or certified copies thereof to the clerk of the court for the jurisdiction or district in which the defendant was arrested and the prosecution shall continue in that jurisdiction or district. When the defendant is brought before the court to plead to an information filed in the jurisdiction or district where the warrant was issued, he may at that time waive indictment and the prosecution may continue based upon the information originally filed.
C. A juvenile who is arrested or held in a jurisdiction or district other than that in which he is alleged to have committed an act in violation of a law of a state or of the United States not punishable by death or life imprisonment may, after he has been advised by counsel and with the approval of the court and the prosecuting attorney, consent to be proceeded against as a juvenile delinquent in the jurisdiction or district in which he is arrested or held. The consent shall be given in writing before the court but only after the court has apprised the juvenile of his rights, including the right to be returned to the jurisdiction or district in which he is alleged to have committed the act, and of the consequences of such consent.
D. For the purpose of initiating a transfer under this rule a person who appears in response to a summons shall be treated as if he had been arrested on a warrant in the jurisdiction or district of such appearance.
Refusal to Allow Defense Witness to Testify may Violate 6th Amend
http://www.state.ok.us/~oids/coca/FavorsD.pdf
State v. Favors, DeAngelo, COCA Case No. S-2005-1067 (August 18, 2006)
(Evidence, General; Sixth Amendment)
Because the defense was denied opportunity to fully confront victim’s testimony at preliminary hearing, trial court properly precluded use of that prior recorded testimony at a later proceeding. Defense was denied the opportunity to examine a defense witness on the record a preliminary hearing.
Unpublished case says fines not authorized on misdemeanor possession of marijuana cases
What is the correct answer on the matter?
Is a fine for misd. poss. marij. authorized on not?
The easy answer is to call it a court fund assessment which is authorized instead of a fine.
Some lawyers in counties like Oklahoma County, Payne County, and Garfield County, have told me that in their court's the Judge does not imposes a "fine" on a misdemeanor possession of marijuana case but instead imposes court fund assessment and victime crime fund assessments.
The below unpublished OCCA case says no fines authorized for misdemeanor possession of marijuana and reversed the fine ordered. What is the current status of the law in the matter? Statute amended or people interpreting the statute different from this opinion?
Ronald Roger Phipps v. State of Oklahoma, Unpublished, OCCA, No. F-2000-796, (June 20, 2001).
http://www.state.ok.us/~oids/coca/PhippsRR.pdf
Vacated a $1000 dollar fine for possession of marijuana misdemeanor on the grounds that 63 O.S. Sec. 2-402 (B) (2), does not authorize a fine. Held that 21 O.S. Sec. 64 (A) generally cannot replace, or be combined with, specific punishment provisions in other titles of the Oklahoma Statutes. See 21 O.S. Sec. 11 (A); and Gaines v. State, 1977 OK CR 2459, 568 P.2d 1290 (error to combine fine provisions of the Controlled Substances Act with incarceration range in 21 O.S. Sec. 51); Brown v. State, 1976 OK CR 48, 546 P.2d 1023 (catch-all punishment provision in Title 47 controlled over catch-all provision in title 21).
The "catch-all" punishment provision (jail and fine) found in 63 O.S. Sec. 2-411 is inapplicable, as it only applies when an offense in the Uniform Controlled Substances Act provides for no punishment whatsoever. The provision here designates a specific punishment; it simply does not include a fine. The Court cannot ignore the plain meaning of a statute, or add language that is clearly not intended to be there. Arnold v. State, 48 Ok.Cr. 452, 132 P. 1123 (1913), overruled on other grounds, Lenzy v. State, 1993 OK CR 53, 864 P.2d 847.
Does anyone know the correct answer to this question [above] about whether "fines" are "authorized" pursuant to statute in a misdemeanor possession of marijuana case ---- or should it be called a "court fund assessment" instead of a fine?
Lastly, would the counties that have levied possibly "illegal" fines on misdemeanor possession of marijuana cases be required to refund the monies to the defendant's upon proper application?
Is this a possible class action law suit where a smart lawyer could make some money and get some great publicity and free advertising if successful or even if not successful???
Furthermore, if the municipalities cannot impose greater penalties that the state courts, would municipalities be required to issue refunds for fines imposed on misdemeanor possession of marijuana cases if the state statute is held or interpreted as not authorizing fines for that offense???
What about all of the lawyers who incorrectly along with Judges and prosecutors, told their clients the incorrect penalty ranges, would that provide the possibility of withdrawing the plea or setting aside the conviction and therefore make all the felony 2nd offense possession of marijuana cases possible reductions to misdemeanors?
There is a general statute for fines when not addressed in the statute concerning the crimes. But, as pointed out in the above case there is a title 63 --- general statute also, so the general statute arguably would not apply to a drug offense under title 63 since there is a more specific general statute under title 63 for title 63 offenses.
The general statute for title 21 is:
http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=68982
However, see:
http://tinyurl.com/2ht99c
Re: Mitchell v. State case cited below see the below link:
http://www.oscn.net/applications/oscn/deliverdocument.asp?citeid=6530
Mitchell v. State, 1987 OK CR 13, 733 P.2d 412, on rehearing held stuck the fine. (For the rehearing portion of the case see the bottom of the case in the above link)
On rehearing:
¶2 In the petition, petitioner asserts that her sentence should be modified since [733 P.2d 416] 21 O.S. 1981 § 51 [21-51] does not provide for a fine. See Gaines v. State, 568 P.2d 1290 (Okl.Cr. 1977). We agree with this contention, and find that the judgment and sentence should be modified to a term of twenty (20) years imprisonment. As modified, the judgment and sentence is affirmed.
--------------------------------------------------------------------------
Gaines v. State, 1977 OK CR 259, 568 P.2d 1290, held in striking the fine in a possession of cds case:
¶16 This instruction apparently combines the imprisonment which may be assessed under the second and subsequent offenses statute, 21 O.S. 1971 § 51 [21-51], with the fine which may be imposed under the Uniform Controlled Dangerous Substances Act, 63 O.S.Supp. 1975 § 2-401 [63-2-401]. Punishment may not be assessed by combining statutes, but must fall within the limitations of one statute only.
¶17 This Court held in Hayes v. State, Okl.Cr., 550 P.2d 1344 (1976), that when the predicate felony is one not covered under the Uniform Controlled Substances Act, punishment is to be enhanced pursuant to the provisions of the general habitual felon statute, 21 O.S. 1971 § 51 [21-51]. The fine assessed in this case does not fall within the statutory limits of Section 51, which provides for punishment by imprisonment in the penitentiary for a term not less than ten (10) years. For the above reasons judgment and sentence must be modified to a term of fifty (50) years' imprisonment
Alterantive Sentencing and Community Sentencing Proving Successful In Oklahoma
http://www.doc.state.ok.us/newsroom/releases/Community%20Sentencing%20Program%20Proving%20Successful.pdf
STATE OF OKLAHOMA
OKLAHOMA DEPARTMENT OF CORRECTIONS
3400 Martin Luther King Avenue ♦ Oklahoma City, Oklahoma 73111 ♦
Phone: (405) 425-2513 ♦ FAX: (405) 425-2502
JUSTIN JONES DIRECTOR BRAD HENRY GOVERNOR
NEWS RELEASE For immediate release Contact: Jerry Massie
August 22, 2007 (405) 425-2520
Community Sentencing Program Proving Successful
According to the Oklahoma Community Sentencing Act Annual Report for Fiscal Year 2006, 88% of participating offenders who successfully completed the program prior to July 1, 2003, remained in the community as of June 30, 2006. Only 12% had been received as an inmate of the Oklahoma Department of Corrections. Recidivism studies in corrections most often identify as a recidivist, an offender who is incarcerated within three years of his release from probation supervision or from prison. Of the 10,355 offenders who have received a community sentence since the program began in March, 2000, 21% failed and were sent to prison.
The average cost for fiscal year 2006, per offender was $1,711.00. There were 36 funded community sentencing councils encompassing 61 participating counties. The success rate, one of the best for diversion programs in Oklahoma, demonstrates that Community Sentencing is a proven investment in public safety.
Oklahoma Prisons at 98% capacity according to Director Justin Jones, see article below (emphasis added):
Seeking solutions to Oklahoma's prison problems
August -- 2007
This AP article (see http://newsok.com/article/3104500 ) from Oklahoma provides more details on Oklahoma's prison overcrowding problems (basics here) .
Oklahoma Department of Corrections Director Justin Jones recently said inmate overcrowding had hit 98 percent capacity and is probably at the most critical point in three decades because of a lack of options to deal with the problem. He said his only alternative soon will be to back up state inmates in county jails. Henry said it was premature to consider a special session of the Legislature on the issue, while praising the timing of an Associated Press series of articles on overcrowding and prison problems. "If we don't do something, we will hit that brick wall," he said.
Senate Co-President Pro Tem Glenn Coffee, R-Oklahoma City, has opposed prison expansion, while suggesting more utilization of private prisons. Henry said he agreed with Jones that the state should not become too dependent on private prisons and recommends more prison alternative programs.
DOMINION AND CONTROL DEFENSES TO DRUG CHARGES
DOMINION AND CONTROL DEFENSES TO DRUG CHARGES
by Glen R. Graham, Attorney at Law, Tulsa, Oklahoma
Web Page: http://www.glenrgraham.com/
Here are some ideas. On many criminal drug cases, there is a question of dominion and control. Who has the right to control the disposition of the drugs? Three people are riding in a car and drugs are found under the seat of one person, but not in plain view. Assuming no one confesses, then this is a classic "dominion and control" question. Sometimes, the police will arrest everyone and then later charges will only be filed against the owner of the vehicle. At other times, the police will say, "we will let the others go, if the person who's drugs it is will admit it was theirs." Sometimes, the police arrest the person making "furtive" movements and say he or she was trying to hide the drugs in the vehicle.
Each case is different and this is both a question of law and a question of fact. Dominion and Control is one of those areas of the law that is not always a clear cut answer.
One time a guy bought a used car from an individual and was pulled over by the police and they found drugs somewhere in the vehicle and charged him with possession of a controlled drug. This person had no serious criminal record and at a jury trial, he was found not guilty. Some Judges will say that dominion and control is a jury question and some Judges will says it is a mixed question of law and fact and may sustain a motion to quash the bind-over, if the parties stipulate to the facts, or sometimes stipulate to the preliminary hearing transcript, waive jury, try the case instanter based upon the preliminary hearing transcript, and sustain the motion to quash and dismiss based upon dominion and control. Other Judges will say it is a jury question and say you can try to work a deal with the prosecutor or try the case to a jury.
I have noticed that even really smart people can disagree upon the facts and the law and the interpretation of the law, for instance, many of the U.S. Supreme Court decisions are split decisions, 5-4 decision, or 6-3, etc. If even our U.S. Supreme Court Judges cannot or do not agree upon the application of the law to the facts or the interpretation of the law, then it should be no suprise that ordinary citizens, police officers, prosecutors, defense lawyers, and Judges, do not always agree.
Top Secrets in Hiring a Criminal Defense Lawyer
The Top Secrets in Hiring a Criminal Defense Lawyer
By Glen R. Graham, Attorney at Law, Tulsa, OK http://www.glenrgraham.com/
Phone: (918) 583-4621
1. At the initial consultation, your criminal defense lawyer is likely to tell you what you want to hear. "I believe in your innocence." This may very well be lip service to get you to hand over that check. Once the check is cashed, don't be surprised if your criminal defense lawyer starts singing a different tune. You should be aware that the amount of the fee, and the amount that you actually pay (and not promise to pay), ultimately, determines how much time the lawyer spends on the case. A oral fee contract is insufficient protection and how can you be sure of the fee or the price of a jury trial when the lawyer does not put it in writing. You should insist on a written agreement and if he will not give you one, you should shop around for another lawyer.
2. You generally get what you pay for and if you want the lawyer to really fight then you will have to pay an adequate fee to do it. If the lawyer quotes a suspiciously cheap fee, then don't be shocked after he cashes your check if he suddenly starts talking about a plea bargain deal to get the case over and done with. If you want a lawyer to really fight the case, you will have to pay adequate monies for it.
3. Few criminal defense lawyers have the confidence and experience to actually take a case to jury trial and win. Few lawyers actually anticipate going to jury trial so they don't tell you I am going to plead you out and not go to trial in your case. They know or fear that you would hire another lawyer if they told you this or they may really believe that you should plead out without discussing this with you. Asking a few questions, like when was your last jury trial and do you go to trial on many cases, will usually give you more specific knowledge about the lawyer. A lawyer that quotes too low a fee cannot afford to go to a jury trial and he may plan on withdrawing from your case later on once he determines that you will not accept a plea bargain or cannot afford to pay him for a jury trial. The lawyer may avoid quoting you the fee for a jury trial because he does not intend on going to a jury trial in your case.
4. You need a lawyer who is confident, attentive, and willing to work to win your case. If the lawyer you are talking to will not look you in the eye and fails to firmly shake your hand, you might want to shop around some more.
5. The worst thing is a criminal defense lawyer talking a client into a plea bargain deal when it is not in the clients' best interest. You do not want to accept any deals just because the lawyer has not been paid enough monies to fight your case. If only the lawyer had told you this to begin with, you could have borrowed the money or asked your family to help you. But, you didn’t ask enough questions and you assumed the lawyer would work hard for the amount you paid. Remember, you usually get what you pay for and if you don’t pay enough to fight the case then don’t be surprised by the result.
6. *TRUST* - The most important factor in hiring any lawyer is to hire a lawyer that you trust. Trust is not something you can exactly define or explain. Trust is more of a feeling that comes from deep down in the gut. It is something that comes from talking to the lawyer and looking him in the eye.
7. A former prosecutor may or may not be a good choice. A former prosecutor has spent time depersonalizing defendants and incarcerating them. However, it is possible for a former prosecutor to become an advocate for the defendant even if his heart is still that of a former prosecutor. It really just depends on the individual. But, just because the lawyer is a former prosecutor is not a reason to hire him. It is always going to be a question of "trust."
8. A referral from a bondsman to use a certain lawyer is not always a good thing. Sometimes the bondsman just wants the case over with quickly so they can write another bond and they may send you to a lawyer who will dispose of the case too quickly. Sometimes the bondsman may send you to a lawyer that they trust and know will instill confidence in you to show up for court and that has a good reputation for that area of the law.
9. Do weathly people accused of crimes hire the least expensive lawyers and/or former prosecutors to represent them. Most do not. Would "O.J. Simpson" have gotten the same result with a poor man's lawyer as he did with the "dream team" ?
You usually get about what you pay for and the more you pay, the harder the lawyer will work on your case. It sounds like common sense. This is not to say that a good lawyer will not work hard even when he has not been paid but the more you pay a person the more incentive there is to work hard. Everyone has bills to pay and to be able to pay your bills, you must get paid. Most people understand the rate of pay does affect the quality of the work.
Famous Clarence Darrow Quotations about the Law
Famous Clarence Darrow Quotations:
True patriotism hates injustice in its own land more than anywhere else.
You can protect your liberties in this world only by protecting the other man's freedom.
You can be free only if I am free.
Lost causes are the only ones worth fighting for.
The only real lawyers are trial lawyers, and trial lawyers try cases to juries.
Common experience shows how much rarer is moral courage than physical bravery. A thousand men will march to the mouth of the cannon where one man will dare espouse an unpopular cause.
Chase after truth like hell and you'll free yourself, even though you never touch its coat-tails.
Laws should be like clothes. They should be made to fit the people they serve.
Clarence Darrow's Quote About "Justice" and "Charity, Understanding, & Mercy"
Clarence Darrow said:
We have heard talk of “justice.” Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves -- whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.
US Conference of Mayor's Resolution Calling for Public Health Approach to Substance Use & Abuse
US Conference of Mayor's Resolution Calling for Public Health Approach to Substance Use & Abuse
This lifted directly from DPA's website:Wednesday, June 27, 2007
The United States Conference of Mayors (USCM) made history last weekend by passing a resolution calling for a public health approach to the problems of substance use and abuse (PDF). The resolution was sponsored by Mayor Rocky Anderson of Salt Lake City.
The resolution proclaims the war on drugs a failure, and calls for “a New Bottom Line in U.S. drug policy, a public health approach that concentrates more fully on reducing the negative consequences associated with drug abuse, while ensuring that our policies do not exacerbate these problems or create new social problems of their own.”
In adopting the resolution, the mayors proclaimed addiction a broad public health concern and endorsed specific health-related measures. These include greater access to drug treatment such as methadone and other maintenance therapies, elimination of the federal ban on funding sterile syringe access programs, and establishment of prevention policies based on needs assessed at the local level.
The resolution also calls for using a greater percentage of drug war funding to evaluate current programs’ efficacy and accountability. Rather than measure the success of U.S. drug policy by examining drug use levels or number of people imprisoned, a New Bottom Line should be used to assess how much drug-related harm is reduced. National drug policy should focus on reducing social problems like drug addiction, overdose deaths, the spread of HIV/AIDS from injection drug use, racial disparities in the criminal justice system, and the enormous number of nonviolent offenders behind bars. Federal drug agencies should be judged—and funded—according to their ability to meet these goals.
Moreover, since the impact of drug policies is most acutely felt in local communities, evaluation and decision-making must occur at the local level--and federal funding must be provided to enable communities to pursue those policies that best meet the unique challenges of substance abuse.
“The mayors are clearly signaling the serious need for drug policy reform, an issue that ranks in importance among the most serious issues of the day,” said Daniel Abrahamson, Director of Legal Affairs for DPA.
Adopted resolutions become the official policy of the USCM, which meets every year to promote the best practices and most pressing priorities of U.S. cities. Last weekend’s event was the 75th Annual USCM Meeting in Los Angeles, California.
False or Mistaken Identification Account for 75% of DNA Over-Turned Convictions
According to the Innocence Project (http://www.innocence.org) and numerous large civil verdicts (some in the millions) for wrongful convictions, eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in more than 75% of convictions overturned through DNA testing. While eyewitness testimony can be persuasive evidence, 30 years of strong social science research has proven that eyewitness identification is often unreliable. Research shows that the human mind is not like a tape recorder; we neither record events exactly as we see them, nor recall them like a tape that has been rewound. Instead, witness memory is like any other evidence at a crime scene; it must be preserved carefully and retrieved methodically, or it can be contaminated.
The innocence projects suggests blind administration, whereby the administering officer is not aware who the suspect is or whether they are present or not and the witness is told the suspect may or may not be one of them.
In more than 25% of DNA exoneration cases, innocent defendants made incriminating statements, delivered outright confessions or pled guilty. These cases show that confessions are not always prompted by internal knowledge or actual guilt, but are sometimes motivated by external influences. Mentally capable adults also give false confessions due to a variety of factors like the length of interrogation, exhaustion or a belief that they can be released after confessing and prove their innocence later. Regardless of the age, capacity or state of the confessor, what they often have in common is a decision – at some point during the interrogation process – that confessing will be more beneficial to them than continuing to maintain their innocence.
In more than 15% of cases of wrongful conviction overturned by DNA testing, an informant or jailhouse snitch testified against the defendant. Often, statements from people with incentives to testify – particularly incentives that are not disclosed to the jury – are the central evidence in convicting an innocent person.
For centuries, scientific and pseudo-scientific evidence has been used in courts of law. From blood typing and hair comparison to bite marks and ballistics, many questionable and limited forms of science and technical evidence have been – and still are – used to convict defendants in the United States. Evidence that would traditionally call for comparisons of hair, bite marks and blood types can now be tested for DNA. While older forms of forensic sciences can narrow possibilities, DNA can provide definitive proof of innocence or guilt. Because of its power to conclusively reveal the truth, DNA testing should be used whenever it can be probative. DNA exonerations have exposed misconduct at every level and stage of a criminal investigation.
This misconduct has included:
· deliberate suggestiveness in identification procedures
· the withholding of evidence from defense
· the deliberate mishandling, mistreatment or destruction of evidence
· the existence of false confessions
· the use of unreliable government informants or snitches
Oklahoma law requires the court to insure that the defendant receives a fair and accurate identification procedure and to exercise its discretion in such a way to accomplish those ends. Hunt v. State, 1988 OK CR 38, 751 P.2d 747.
In Davis v. State, 1970 OK CR 44, 467 P.2d 521, the court determined that if a timely objection is made to a potential in-court identification, the court should conduct a hearing outside the presence of a jury in order to determine if the extrajudicial identification procedure complies with the holding in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). Those procedures required the court to determine (1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’ degree of attention, (3) the accuracy of his prior description of the criminal, (4) the level of certainty demonstrated at the confrontation, and (5) the time between the crime and confrontation. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977); Chatman v. State, 1986 OK CR 36, 716 P.2d 258, 259; Bennett v. State, 1982 OK CR 125, 649 P.2d 804; and, Reeves v. State, 1982 OK CR 119, 649 P.2d 780, 783.
The United States Supreme Court and many circuit courts have long held that one-person show ups or one-person photo show ups produce a great likelihood of misidentification and any in-court identification must be shown to be the product solely of the independent recollection of the identification at the time of the offense, and not the result of the suggestive one-person show up or one-person photo show up or some other unnecessarily suggestive procedure.
The Innocence Project (http://www.innocence.org) suggests the following reforms:
Blind administration: Research and experience have shown that the risk of misidentification is sharply reduced if the police officer administering a photo or live lineup is not aware who the suspect is.
Lineup composition: "Fillers” (the non-suspects included in a lineup) should resemble the eyewitness' description of the perpetrator. The suspect should not stand out (for example, he should not be the only member of his race in the lineup, or the only one with facial hair). Eyewitnesses should not view multiple lineups with the same suspect
Instructions: The person viewing a lineup should be told that the perpetrator may not be in the lineup. They should also be told not to look to the administrator for guidance.
Confidence Statements: Immediately following the lineup procedure, the eyewitness should provide a statement, in his own words, that articulates the level of confidence he has in the identification made.
Recording: Identification procedures should be videotaped whenever possible – this protects innocent suspects from any misconduct by the lineup administrator, and it helps the police and prosecution by showing a jury that the procedure was legitimate.
Sequential Lineups: Research has shown that presenting lineup members one-by-one (sequential), rather than all at once (simultaneous), decreases the rate at which innocent people are identified. Research has also demonstrated that when viewing several subjects at once, witnesses tend to choose the person who looks the most like – but may not actually be – the perpetrator.
