Criminal Law Editor: Dietmar K

Volume 82 u No. 14 u May 14, 2011

ALSO INSIDE • OBA Awards: Call for Entries • Leadership Academy • Judicial Nominating Commission

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1233 B e a l e Professional Services

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1234 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 Theme: Criminal Law Editor: Dietmar K. Caudle pg. 1300 contents Judicial Nominating Commission May 14, 2011 • Vol. 82 • No. 14 Departments 1236 From the President 1303 Law Practice Tips 1305 Ethics/Professional Responsibility 1312 OBA Board of Governors Actions 1315 Oklahoma Bar Foundation News 1318 Lawyers for Heroes 1320 Access to Justice 1322 Young Lawyers Division 1325 Calendar 1327 For Your Information 1329 Bench and Bar Briefs 1331 In Memoriam 1333 Editorial Calendar 1336 The Back Page

Features 1239 Criminal Voir Dire: A Defense Perspective By Cynthia Viol pg. 1289 OBA Awards 1245 What Do You Mean Dismissed? By Suzanne Heggy 1253 A Natural History of the Leon Good Faith Exception in Oklahoma By Jim Drummond 1261 Expungements — Making Sense of a Flawed Law Plus By Allen Smallwood 1286 OBA Legislative Monitoring 1269 U.S. Supreme Court Illuminates Committee Report Constitutional Burden By Duchess Bartmess By Kelly Basey 1289 OBA Awards 1273 Cross Examination of the Eye Eyewitness 1292 Academy Seeks to Develop By Bob Ravitz Future Bar Leaders 1281 The Oklahoma Indigent Defense By Deborah A. Reheard System — What It Is and Who 129 6 Law Day Highlights It Serves By Craig Sutter 1300 Judicial Nominating Commission

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1235 FROM THE PRESIDENT Words to Inspire New Lawyers By Deborah Reheard

Nearly 100 new young lawyers joined our ranks in the Work hard. Be prepared. Give back. past few weeks. We gathered for an admissions ceremony at the Give back to your profession, to your Supreme Court, where family and friends of new admittees community, to yourself. You will give beamed with pride as the new lawyers stood to take their oath. up too much of your life to this pro- One of the traditions of this ceremony is for the OBA presi- fession. It is demanding and time- dent to make remarks. Once again I found myself hoping that consuming. You will come early, stay something I said that day would have an impact on them. I late. Clients and cases will rule your have been asked to publish those welcoming remarks. Here life if you let them. But only one thing they are as best as I can remember them. matters at the end of the day or at the end of your career — you cannot get Today is undoubtedly one of the proudest days of your lives. back time with your mom, your dad, It is not only a proud day for you, but for the many family your brother, your sister, your son, members and friends who are here to support you and share in your daughter, your friends, your this special day. family. You cannot recapture that Today should also be one of the most humble days of your time, so build some in as you chase lives. You are joining a noble profession where your dream. you will be called upon in a few moments to That great philoso- take an oath to support, protect and defend the pher, the late Tommy Constitution of the United States and the con- Lose your Reheard, my dad, stitution of this great state — and where it will said, “Money can be your duty to guarantee equal justice for all. reputation buy a really nice dog, So what words of advice do I have for you? for honesty but it can’t make him wag his tail.” Work hard. This is a demanding and time- consuming profession. You will climb ladders, and integrity, And another great beat your chests, slay dragons and tilt a few philosopher, Win- windmills. There will always and it is lost ston Churchill said, be a big case, a big deal, a big “Many of the great client. Remember that the most forever. things in life are important case you handle in simple and many your career is the case you are can be expressed in handling that day. It is someone’s life, someone word — freedom, justice, honor, one’s liberty, someone’s livelihood, someone’s duty, mercy, hope.” May I add pride, loved one. humility and service. Pride — in who you are, what you do and your Be prepared. You are full of knowledge, but achievements. Humility — not a you do not know everything and you never lack of assertiveness nor a lack of will. The practice of law is not a game of win at advocacy but a lack of arrogance. all costs. Your honesty, integrity and reputation Service — to your profession, your are the greatest tools you will take into a court- community, yourself. room or a boardroom. Lose your reputation for honesty and integrity, and it is lost forever. As you come forward to sign the roll of attorneys, stand up straight, Underpromise and overachieve. square your shoulders. Come forward President Reheard Never lie to your clients and never lie for with a humble swagger and continue practices in Eufaula. them. that humble swagger throughout [email protected] your career and throughout your life. (918) 689-9281 Not everything is a battle — choose your battles wisely. You deserve to be proud of your accomplishments. And if you remember nothing else that I say today, remember this — do the right thing. Be proud to be a lawyer.

1236 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 OFFIC ERS & BOARD OF GOVERNORS Deborah A. Reheard, President, Eufaula Cathy M. Christensen, President-Elect, Oklahoma City events Calendar Reta Strubhar, Vice President, Piedmont Allen M. Smallwood, Immediate Past President, Tulsa MAY 2011 Martha Rupp Carter, Tulsa Charles W. Chesnut, Miami 17 OBA Civil Procedure and Evidence Code Committee Meeting; Renée DeMoss, Tulsa 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Gerald C. Dennis, Antlers James Milton (918) 591-5229 Glenn A. Devoll, Enid Steven Dobbs, Oklahoma City 18 Oklahoma Council of Administrative Hearing Officials; 12 p.m.; O. Chris Meyers II, Lawton Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Lou Ann Moudy, Henryetta D. Scott Pappas, Stillwater Contact: Carolyn Guthrie (405) 271-1269 Ext. 56212 David A. Poarch Jr., Norman OBA Women in Law Committee Meeting; 3:30 p.m.; Oklahoma Bar Ryland L. Rivas, Chickasha Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Susan S. Shields, Oklahoma City Roy D. Tucker, Muskogee, Deborah Bruce (405) 528-8625 Chairperson, OBA/Young Lawyers Division 19 OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar BAR Center Staff Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: John Morris Williams, Executive Director; Barbara Swinton (405) 713-7109 Gina L. Hendryx, General Counsel; Donita Bourns Douglas, Director of Educational OBA Bar Association Technology Committee Meeting; 3 p.m.; Programs; Carol A. Manning, Director of Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Gary Clark Communications; Craig D. Combs, Director of (405) 744-1601 Administration; Travis Pickens, Ethics Counsel; Jim Calloway, Director of Management Assistance 20 OBA Military Task Force Meeting; 12 p.m.; Oklahoma Bar Center, Program; Beverly Petry Lewis, Administrator Oklahoma City; Contact: Deborah Reheard (918) 689-9281 MCLE Commission; Jane McConnell, Coordinator Law-related Education; John Burchell, Information OBA Access to Justice Committee Meeting; 3 p.m.; Oklahoma Bar Services Manager; Loraine Dillinder Farabow, Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Debbie Maddox, Ted Rossier, Assistant General Jim Stuart (405) 275-0843 Counsels; Katherine Ogden, Staff Attorney, Tommy Butler, Sharon Orth, Dorothy Walos 21 OBA Young Lawyers Division Committee Meeting; 10 a.m.; and Krystal Willis, Investigators Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Manni Arzola, Debbie Brink, Stephanie Burke, Contact: Roy Tucker (918) 684-6276 Brenda Card, Morgan Estes, Johnny Marie Floyd, Matt Gayle, Brandon Haynie, 23 OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Suzi Hendrix, Misty Hill, Debra Jenkins, Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Amy Kelly, Jeff Kelton, Durrel Lattimore, Contact: D. Michael O’Neil Jr. (405) 239-2121 Debora Lowry, Heidi McComb, Renee Montgomery, Wanda Reece-Murray, Lori 25 OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar Rasmussen, Tracy Sanders, Mark Schneidewent, Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Robbin Watson, Laura Willis & Roberta Yarbrough Patricia Podolec (405) 760-3358 EDITORIAL BOARD 26 OBA Men Helping Men Support Group; 5:30 p.m.; The Center for Editor in Chief, John Morris Williams, News Therapeutic Interventions; Tulsa; RSVP to: Stephanie Alton & Layout Editor, Carol A. Manning, Editor, (405) 840-3033 Melissa DeLacerda, Stillwater, Associate Editors: Dietmar K. Caudle, Lawton; Judge Sheila OBA Justice Commission Meeting; 2 p.m.; Oklahoma Bar Center, Condren, Claremore; Sandee Coogan, Norman; Oklahoma City; Contact: Drew Edmondson (405) 235-5563 Emily Duensing, Tulsa; Craig M. Hoehns, Elk City; Pandee Ramirez, Okmulgee; For more events go to www.okbar.org/calendar Joseph M. 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Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1237 1238 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 CRIMINAL LAW Criminal Voir Dire A Defense Perspective By Cynthia Viol

very criminal trial has at least one issue that terrifies the defense lawyer. The fear is that once the jury gets wind of Ethat fact or piece of evidence, the defense case is over. If the defense lawyer has not explored the jurors’ opinions and feelings about that issue in voir dire, it is.

In a recent trial, a non-capital murder case, my jurors’ fears as it relates to the issues in the case. greatest fear was that my client initially called The goal is to seat as many jurors as possible 911 and reported a suicide. He lied. He repeated who can put themselves in the defendant’s the elaborate lie to detectives that day at police shoes and see through his eyes. To do that, the headquarters. In a subsequent police interview lawyer must discover each prospective juror’s after the medical examiner’s report came back vulnerability. with a finding of homicide, he eventually aban- For example, in a rape or child-sex case it is doned the suicide lie and gave the statement, “I generally the men who will most likely fear, and shot her.” The defense was accident and/or identify with, the defendant’s vulnerable posi- “heat of passion” manslaughter. tion. To open up the discussion, ask the initial I told the jury in voir dire that he lied. Then I question, “How many of you men have never asked them how they felt about that. This line of thought about how easy it would be for some- inquiry led to an open discussion about lying one to accuse you of rape?” There are usually and I was able to intelligently exercise my one or two men who will say the thought has peremptory strikes. The defense did not get a never crossed their mind. However, most of the jury instruction on accident, nor did we get an men will say they have at least thought about it. instruction on manslaughter. The jury had two Ask those men, “How do you feel about that?” choices: malice aforethought first-degree mur- Some men respond better to the question, “What der or acquittal. About 30 minutes prior to do you think about that?” Let them talk. After reaching a verdict, the jury sent out a note ask- this discussion, follow up with the question, ing if “temporary loss of temper” was “malice “How would you defend yourself against a aforethought.” The jury convicted my client of charge of rape or sexual impropriety?” The com- first-degree murder. But raising — and dealing mon response is that DNA evidence would with — my greatest fear about the case, resulted prove their innocence. When asked, “What if in a jury that was able to view the evidence there isn’t any DNA evidence — what if it is just fairly, despite the lie and the absence of a man- your word against hers?” the men’s eyes get slaughter instruction. very big and they begin to see the case through the defendant’s eyes. In one sexual abuse trial, a IDENTIFY THE FEAR male juror responded, “I’d hire you” which Obviously, the first objective for the defense made everyone laugh and the jurors began to lawyer in voir dire is to identify the lawyer’s open up and talk more freely. Never underesti- fears as they relate to the issues in the case. The mate the power of natural and spontaneous second objective is to identify the prospective humor in voir dire.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1239 OBSTACLES TO SEATING A FAIR AND who have already assured the trial judge and IMPARTIAL JURY the prosecutor they can follow the law, but who are usually ignorant of the law they have Two of the biggest obstacles to seating a fair agreed to follow. and impartial jury in a criminal case in Oklaho- ma can be the law and the immense discretion The case of Patton v. State painfully illumi- the law gives to district judges in conducting nates defense counsel’s dilemma.7 In Patton, voir dire. The Court of Criminal Appeals has defense counsel was not allowed to inquire consistently recognized that “[t]he purpose of whether the prospective jurors could give voir dire examination is to ascertain whether meaningful consideration to lesser included there are grounds to challenge prospective jurors offenses to murder in the first degree. The for cause and to permit the intelligent use of Court of Criminal Appeals determined that peremptory challenges.”1 However, the court such restriction was not error and that such has also consistently held “[t]he manner and inquiry by defense counsel was improper. The extent of voir dire is within the discretion of the Court of Criminal Appeals reasoned that the trial court and will not be disturbed on appeal jurors’ agreement to follow the law in general absent a clear abuse of discretion.”2 The Court of “…indicates to us each juror indicated he or Criminal Appeals has repeatedly stated that she could consider a lesser included instruc- “[t]he trial court may properly restrict questions tion.”8 Although there may be a prospective that are repetitive, irrelevant or regard legal juror out there in Oklahoma somewhere who issues upon which the trial court will instruct will tell a judge or prosecutor that he or she the jury.”3 Thus, in Oklahoma, the trial judge will not follow the law in general, I have never has almost unfettered discretion to decide met one. I have met numerous prospective whether a particular inquiry is “proper” or jurors who, when adequately informed of the “improper” and restrict defense counsel’s ques- applicable law, have stated they could not in tioning of the jury panel accordingly. good conscience follow that law. This problem is compounded by the fact that This becomes problematic for the defense in most of the voir dire case law in Oklahoma regard to the issue of punishment. Under the arises out of capital murder cases and involves holding in Nauni, many trial judges routinely whether a prospective juror can consider all prohibit the defense attorney from informing three punishments — life, life without parole, prospective jurors of the minimum applicable and death — upon conviction for first-degree punishment and then asking if they could con- murder. For all other felony jury trials, there is sider that punishment for someone they found little case law to aid the judge in exercising his guilty beyond a reasonable doubt of that discretion in determining whether a question is offense. When the defense is prohibited from “proper” or “improper.” informing the jury of the applicable minimum punishment, a prospective juror’s assurance The law is clear that a juror who cannot fol- that he or she will follow the law and consider low the law is unqualified to serve. However, the minimum punishment, without knowing in Nauni v. State, the Court of Criminal Appeals the minimum punishment, is hollow assurance held that the trial court does not abuse its dis- indeed. This is particularly onerous when your cretion in restricting “voir dire questioning client is charged with an offense for which regarding legal issues the trial court had to there is no minimum punishment. instruct the jury upon.”4 The holding in Nauni appears to control in trial courts in Oklahoma, In one of my sexual abuse jury trials in Okla- despite the more recent case of Eizember v. homa County, the judge initially allowed me to State, in which the Court of Criminal Appeals ask prospective jurors if they could consider no acknowledged “…an important aspect of voir time in prison for someone convicted of sexual dire is to educate prospective jurors on what abuse of a child. It was only after numerous will be asked of them under the law.”5 jurors indicated they could not consider no time in prison for someone convicted of child sexual The duty to educate the jury on the applica- abuse that the judge shut down that line of ques- ble law appears to rest solely with the judge – tioning. He then “rehabilitated” the jurors with a not defense counsel.6 In regard to defense general “will you follow the law” admonish- counsel, the Nauni case seems to control and ment. Arguably, each one of those jurors should results in defense counsel standing before a sea have been removed for cause for an inability to of unknown faces belonging to individuals consider the full range of punishment.

1240 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 There appears to be at least one exception to JURORS’ DEFINITION OF ‘BEYOND A the Nauni rule. The Court of Criminal Appeals REASONABLE DOUBT’ has determined that it is not error to allow the Another issue in Oklahoma law which is prosecution to voir dire the jury on the law of problematic for the defense is the well settled direct and circumstantial evidence — law upon law that prohibits defining “beyond a reason- which the trial court instructs the jury in almost able doubt” for the jury.11 If the law does not every criminal case.9 In Dodd v. State, the court define “beyond a reasonable doubt,” it neces- held that the state has the “…right to find out sarily follows that the law allows jurors to if any prospective jurors were unable either as define it for themselves. a matter of principle or simple misunderstand- ing, to give circumstantial evidence the same In a case in which the defense objective is weight accorded to direct evidence, as the law acquittal, it is imperative that defense counsel would require them to do.”10 If it is proper for have some knowledge regarding each individ- the state to tell the jury the law on direct and ual juror’s definition of “beyond a reasonable circumstantial evidence to determine if the doubt” or how high each juror sets the bar on jurors can follow the law as given, it is difficult “beyond a reasonable doubt.” Without that to understand why defense counsel cannot knowledge, defense counsel cannot intelli- inform the jury of the minimum punishment gently exercise peremptory strikes. applicable to the offense on trial to determine if the jurors can consider the minimum punish- I have developed a question that gives insight ment for that offense. into each prospective juror’s opinion and beliefs regarding the “beyond a reasonable Moreover, in regard to punishment, OUJI-CR doubt” standard. To date, only two judges 1-5, 12 Alternate 1 (No Death Penalty) directs have refused to allow me to ask the question. trial courts to inform prospective jurors of the Choose a juror at random and ask, “As a juror, maximum punishment available for the what would be your greatest fear? 1) That you charged offense — but not the minimum pun- would send an innocent man to prison or 2) ishment. Presumably, under OUJI-CR 1-5, the That you would let a guilty man go free?” prosecution can inform, ask and qualify pro- Regardless of the answer given, always ask, spective jurors on the specific applicable maxi- “Why?” Then ask the entire panel, “Who dis- mum punishment, but defense counsel in agrees with Mr. Jones?” Always ask why they Oklahoma County were routinely prohibited disagree or agree. To those who choose option from informing, asking and qualifying pro- one (innocent man to prison) assign a number spective jurors on the specific applicable mini- value of “1.” To those who choose option two mum punishment. However, the Oklahoma (guilty man go free), assign a number value of Court of Criminal Appeals in a recent, unpub- “10.” The final question in voir dire is always, lished opinion, addressing this issue of first “Who considers themselves to be a leader?” impression found that “…in single-stage trials, Obviously, defense counsel wants a jury of non-capital defendants must be allowed dur- “1s” who consider themselves to be leaders. ing voir dire to investigate possible sentencing bias and unwillingness to follow the law among The theory behind the question is that jurors prospective jurors, including unwillingness to who fear sending an innocent man to prison consider the entire legally authorized sentenc- will have a higher “beyond a reasonable doubt” ing range(s) at issue in a case.” Frye v. State, standard than those who fear letting a guilty Case No. F-2009-998, delivered May 5, 2011 man go free. If I could ask only two questions (unpublished). Although the opinion was in voir dire, I believe I could intelligently exer- ordered “not for publication” and is not prec- cise my peremptory strikes with the answers to edent, the court’s language in Frye provides these two questions. some persuasive authority which defense PRESERVATION OF ERROR counsel may rely upon when seeking to inform prospective jurors of the specific minimum The lack of published case law dealing with punishment in a case and then inquiring non-capital felony voir dire issues is a definite whether those jurors can consider the mini- problem in Oklahoma — for trial judges and mum punishment. If they cannot, they should defense lawyers. However, the defense bar be challenged for cause. It is an issue that bears a portion of the blame for the problem should be raised, and preserved, in every because criminal defense lawyers often fail to criminal trial. preserve potential voir dire error for appeal.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1241 In regard to denial of challenges for cause, Johnson v. State, 218 P.3d 520 (Okl.Cr. 2009). Also, the law is clear. In order to preserve the error, the Court of Criminal Appeals’ language in the trial counsel must 1) exercise a peremptory recent, unpublished case of Frye v. State may also strike on the challenged juror, 2) request an prove helpful to defense counsel when the trial additional peremptory strike, 3) identify for judge seeks to impose strict time limitations on the record by name and number the juror sit- defense counsel in voir dire. Frye v. State, Case ting on the jury that would have been struck if No. F-2009-998, delivered May 5, 2011 (unpub- the additional peremptory strike had been lished). Read and understand these cases and granted, 4) give a reason the sitting juror would take a copy to court with you. have been struck (this is where the above ques- Finally, when you stand before 12 jurors in tion on beyond a reasonable doubt can become final argument and prepare to place your cli- even more valuable), 5) exhaust all peremptory ent’s life into their hands, always remember challenges and 6) refuse to pass the jury for these are the people you have chosen. Do cause.12 everything in your power in voir dire to learn In regard to preserving error upon the trial as much as you can about them. And then trust court’s restriction of defense counsel’s voir them to do their job — just as your client has dire, always prepare a detailed voir dire out- trusted you to do yours. line for trial. I do not write out opening statement, final argument, direct examination or 1. Patton v. State, 973 P.2d 270 (Okl.Cr. 1998); Duvall v. State, 825 P.2d 621, 631 (Okl.Cr. 1991), cert denied, 506 U.S. 878, 113 S.Ct. 224, 121, 121 cross-examination. But I do not go to trial with- L.Ed.2d 161 (1992); Mayes v. State, 887 P.2d 1288, 1298 (Okl.Cr.1994). See out a written voir dire outline. Warner v. State, 144 P.3d 838 (Okl.Cr. 2006); Golden v. State, 127 P.3d 1150, 1154 (Okl.Cr. 2006); Dodd v. State, 100 P.3d 1017, 1029 (Okl.Cr. 2004). The outline allows defense counsel, upon 2. Black v. State, 21 P.3d 1047, 1057 (Okl.Cr. 2001); Patton v. State, 973 P.2d 270, 280 (Ok.Cr. 1998). restriction of voir dire, to approach the bench 3. Black v. State, 21 P.3d 1047, 1057 (Okl.Cr. 2001); Nauni v. State, 670 and read into the record each and every ques- P.2d 126, 130 (Okl.Cr. 1983). 4. Nauni v. State, 670 P.2d 126 (Okl.Cr. 1983). tion or questions defense counsel would have 5. Eizember v. State, 164 P.3d 208, 221 (Okl.Cr. 2007). asked if the court had not restricted voir dire. 6. See Johnson v. State 218 P.3d 520 (Okl.Cr. 2009). 7. Patton v. State, 973 P.2d 270 (Okl.Cr. 1998). Defense counsel can then state into the record 8. Patton v. State, 973 P.2d 270 (Okl.Cr. 1998), citing Allen v. State, 871 the following: “I need to ask each and every P.2d 79, 90 (Okl.Cr. 1994), cert denied, 513 U.S. 952, 115 S.Ct. 370, 130 L.Ed.2d 322 (1994). juror these questions in order to unearth chal- 9. See OUJI-CR 9-2, 9-3, 9-4, 9-5. lenges for cause and to intelligently exercise 10. Dodd v. State, 100 P.3d 1017, 1029 (Okl.Cr. 2004), citing OUJI-CR my peremptory strikes.” And further: “This No. 9-4 11. Harris v. State, 84 P.3d 731 (Okl.Cr. 2004); Romano v. State, 909 P.2d restriction of voir dire by the court violates my 92 (Okl.Cr. 1995); Spitznos v. State, 666 P.2d 1307 (Okl.Cr. 1983); Wallace v. client’s right to a fair jury, a fair trial and effec- State, 250 P.2d 484 (Okl.Cr. 1952); Abbott v. Territory, 94 P. 179 (1908). 12. Jones v. State, 201 P.3d 869 (Okl.Cr. 2009); Browning v. State, 134 tive assistance of counsel guaranteed under the P.3d 816 (Okl.Cr. 2006); Grant v. State, 58 P.3d 783 (Okl.Cr. 2002); Warner United States and Oklahoma Constitutions.” v. State, 29 P.3d 569 (Okl.Cr. 2001).

It is elementary that, in order to preserve About The Author potential voir dire error for appeal, the voir dire must be taken down by the court reporter. Cynthia Viol is the roving There is no reason a reasonably competent conflict/overload attorney for criminal defense trial lawyer would waive a western Oklahoma for the Okla- record of voir dire. But it is done on a regular homa Indigent Defense System basis in Oklahoma trial courts. Never waive a (OIDS). She has worked as an record in voir dire! assistant Dallas County public defender, trial attorney for the Although there is clearly a lack of published Texas State Counsel for Offend- Court of Criminal Appeals case law addressing ers and an assistant Oklahoma voir dire issues applicable to non-capital cases, County public defender. She was there are two important published Court of a founding member, past-secretary and past-presi- Criminal Appeals cases favorable to the defense dent of the Oklahoma County Criminal Defense which must be read by every criminal defense Lawyers Association. She graduated from Texas Tech lawyer who tries criminal cases in this state: University School of Law in 1986. Mitchell v. State, 136 P.3d 671 (Okl.Cr. 2006) and

1242 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1243 1244 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 CRIMINAL LAW What Do You Mean ‘Dismissed’? By Suzanne P. Heggy

nitiating and perfecting a criminal appeal requires more than just filing a petition in error or preparing a brief for the court’s Ireview. Time limitations, record completion, the execution and filing of proper documents, pleadings and motions, briefing rules and specifications, inter alia, all constitute part of appellate counsel’s duty to ensure that the criminal appeal or appellate proceeding filed in the client’s case is properly perfected and submitted for review.

On average, the Oklahoma Court of Criminal Regardless of the ability to rectify such an error, Appeals reviews and disposes of 1,200 cases the last thing an incarcerated client wants to annually. An appeal to the court may be taken hear is that his attorney’s inability to follow the by a defendant as a matter of statutory right rules has caused a delay in the resolution of his from any judgment against him, wherein any claims, or, even worse, the dismissal of his intermediate decision or order of a court made request for relief. in the progress of a criminal case may be The court routinely dismisses appellate crimi- reviewed.1 The time and manner of exercising nal proceedings, or issues show cause orders the right to appeal in a criminal matter is gov- relating to such proceedings, as a direct result of erned by statute, the provisions of which are counsel’s failure to follow the court’s rules. The mandatory, and appeals must be taken and filed rules matter, and are essential to the proper con- in the manner prescribed by law.2 sideration and resolution of a defendant’s issues. The Legislature has given the Court of Crimi- Compliance is mandatory, and failure to follow nal Appeals authority to establish the procedure the rules could result in dismissal of the appel- for filing appeals and original proceedings in late proceeding. criminal matters. Those appellate procedures This article focuses on the initiation and per- are given the force of statute.3 These procedures fection of appeals (and other criminal proceed- are set forth in the “Rules of the Court of Crimi- ings) which are properly presented to the Court nal Appeals,” and can be found in the appendix of Criminal Appeals for resolution. While those of Chapter 18 of Title 22 of the Oklahoma Stat- well-versed in appellate criminal practice will utes and online at www.okcca.net/online/ likely find very little use for this discourse, those rules/rulesrvr.jsp. The very first rule, Rule 1.0, attorneys new to practice in this area, and those sets out the format for citation to the rules: representing a client in a criminal matter who “Rule_____, Rules of the Court of Criminal Appeals, feel they are practicing outside of their “comfort Title 22, Ch.18, App. (year).” Rule 1.0(D). In this zone” may find the this article useful. article, all rule references are to these “Rules of the Oklahoma Court of Criminal Appeals.” FIRST THINGS FIRST: KNOW WHAT YOU’RE FILING Once the client decides to appeal a criminal conviction, compliance with the court’s rules Section I is titled “General Rules of the Court determines whether the appeal will be submit- and Definitions.” Start here. Pay particular atten- ted for resolution or summarily dismissed. tion to Rule 1.2 which distinguishes the method

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1245 for bringing appeals and original actions. The counsel to know which rule applies to a client’s various types of criminal appellate proceed- situation. ings are defined at Rule 1.2., in detail, with TIMING IS EVERYTHING statutory references and notations. The general categories include regular appeals, original Next, counsel should review Rule 1.4. This proceedings, post-conviction appeals, and all section of the rules is titled “Computation of other appeals. Rule 1.2(A) – (D). Each general Time for Appeals” and, like Rule 1.2, it is sub- category contains several specific types of categorized. The time limitations at Rule 1.4 appeals or proceedings. must be read in conjunction with the specific rules governing the type of appeal being filed, Rule 1.2 defines “regular appeals” as felony or counsel risks missing the filing deadline. and misdemeanor appeals (including capital Word to the wise: Do not ignore the time cases), certiorari appeals, state and municipal limitations. appeals, juvenile and youthful offender appeals, resentencing appeals and requests for expunge- Misdemeanor and non-capital felony appeals ment of records. Rule 1.2(A). Original proceed- must be perfected by filing of the petition in ings, wherein the party seeks extraordinary error, original record, transcripts and evidence relief, include applications for writs of prohibi- within 90 days from the date the judgment and tion, mandamus, and habeas corpus. Rule 1.2(B). sentence is pronounced. Rule 1.4(A). State Post-conviction appeals include capital and appeals (with the exception of juvenile cases), non-capital post-conviction appeals. Rule and resentencing appeals in misdemeanor and 1.2(C). The “all other appeals” category encom- non-capital felony cases are perfected in the passes appeals from revocation of parole, bail same manner, starting from the date of the pending trial or appeal (habeas corpus), dis- order entered by the trial court. Rules 1.4(C)(1) qualification of judges, revocation of a sus- & (2). Capital appeals must be perfected within pended sentence, acceleration of a deferred six months from the date the judgment and judgment and sentence, drug court termina- sentence is pronounced, with the filing of the tions, contempt judgments and sentences, petition in error, original record, transcripts orders for detention for non-payment of fines and evidence, and trial judge’s report. Rule or costs (Rule 8), and judicial review of prison 1.4(B). A resentencing appeal in a capital case is disciplinary proceedings revoking earned cred- to be perfected in the same manner as a capital its. Rule 1.2(D). appeal. Rule 1.4(C)(2). Determine the type of appeal or criminal pro- Certiorari appeals are to be perfected as set ceeding to be filed in each client’s situation, forth at Rule 4.3(A), and the filing date com- and pinpoint the specific rule which outlines mences on the date the trial court ruled on the the method and procedure for pursuing that application to withdraw plea. Perfection of type of action. Rule 1.2 references the applica- certiorari appeals requires the filing of a peti- ble rules governing the procedure for bringing tion for writ of certiorari, an original record the respective appeals and original actions. For (including a copy of the order denying the example, Rule 1.2(A)(1) specifies that felony application to withdraw plea), transcripts of and misdemeanor appeals are governed by the plea proceedings and the evidentiary hear- sections II and III of the court’s rules. Generally ing on the application to withdraw, within 90 speaking, all of the corresponding information days from the date the trial court ruled on the needed to properly initiate and perfect the cli- application to withdraw plea. Rule 4.3(A). In ent’s appeal or original proceeding will be plea convictions where the death penalty is found within the cited applicable rule. That imposed, the time period for perfecting the being said, the inevitable exceptions to each of appeal is extended to six months. Id. the general rules are also categorized by type Remember, the time limitations governing of appeal. Remember: specific controls over perfection of direct appeals for non-capital fel- general. Thus, in the section titled “Felony and onies are also applicable to appeals challenging Misdemeanor Appeals”, Rule 1.2(A)(1) pro- the revocation of a suspended sentence (Rule1.2 vides that the specific provisions of sections (D)(4)), challenges to alleged errors in an accel- VII and IX control in juvenile and capital cases, eration proceeding (Rule 1.2(D)(5)(b)), drug respectively, over the general provisions of sec- court terminations (Rule 1.2(D)(6)), and con- tions II and III. It is the lawyer’s job as legal tempt cases (Rule 1.2(D)(7)).

1246 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 Juvenile appeals are considered sui generis, DO IT RIGHT THE FIRST TIME (OR and time is of the essence. Time limitations are YOU’LL BE DOING IT AGAIN!) shorter for these appeals. The record in a juve- Filing of the notice of intent to appeal and nile matter must be completed within 40 days designation of record in the trial court is of the date the trial court enters its order. Per- required to initiate the client’s appeal. A certi- fection of juvenile appeals must be completed fied copy of the trial court filing must then be within 60 days of the date the trial court enters filed with the Court of Criminal Appeals with- a final order adjudicating a juvenile as delin- in 10 days of the district court filing. Rules quent or certifying or denying certification of a 2.1(B) & 2.5(A). It is trial counsel’s responsibil- juvenile to stand trial as an adult or to be sen- ity to complete and file the notice of intent to tenced as an adult. Rule 7.3(A). Perfection appeal and designation of record in the district requires the timely filing of a petition in error, court. Rule 1.14(D)(1). However, appellate certified copy of the original record, transcript counsel must verify that the trial counsel has Id of the proceedings and a supporting brief. . filed these pleadings. Filing of the notice of Applications for extraordinary relief must intent to appeal and designation of record in be filed within 30 days from the date the the trial court is jurisdictional, and failure to trial court’s order is filed in the district court. timely file waives the appeal. Rules 2.1(B) & Rule 10.1(C). A petition in error seeking post- 2.5(A). If trial counsel has not filed these juris- conviction relief must be filed with the court dictional pleadings, appellate counsel will have within 30 days of the date the to obtain a recommendation final order of the district court for a direct appeal out of time is filed with the district court from the trial court, and then clerk. Rule 5.2(C)(2). The same be granted an appeal out of is true for filing an appeal Applications for time from the Court of Crimi- from a district court review of nal Appeals before the client’s prison disciplinary proceed- extraordinary relief must appeal can proceed. Rules ings. Rule 15.3(A). be filed within 30 days 2.1(E)(1) & (E)(2). The state is limited in the A similar problem arises in type of appeals it is allowed to from the date the trial certiorari appeals. Before an file. Rule 6.1 et seq.; see also, 22 appeal of a guilty plea or plea O.S. 2001 §§1053 and 1089.1. court’s order is filed in of nolo contendere can be initi- The state must announce, in ated in the Court of Criminal open court (if the ruling is the district court. Appeals, the defendant must made in open court) its intent have filed an application to to appeal the decision of the withdraw plea in the trial court, ruling magistrate,4 and the and the trial court must have appeal must then proceed through the district ruled on that application. Rules 4.2(A) & (B). court before being submitted to the Court of Verify that the application to withdraw plea Criminal Appeals for review.5 The state’s failure has been filed and ruled upon. If not, counsel to follow the procedure set forth at section will have to obtain a recommendation for a 1089.2 constitutes a waiver of the right to appeal certiorari appeal out of time from the trial and the magistrate’s order becomes final. There court, and then be granted an appeal out of is no appeal from this procedural default. The time from the Court of Criminal Appeals. Rules state must also file a notice of intent to appeal 2.1(E)(1) & (E)(4). Only then can counsel pro- and designation of record in the trial court, and ceed with the client’s appeal.6 Upon payment failure to timely file these documents consti- of the filing fee, or submission of a pauper’s tutes waiver of the right to appeal. Rule 2.1(D). affidavit or the trial court’s determination of indigency, the court clerk will issue a certificate Calculating a filing deadline from any date of appeal which contains due dates for the fil- other than the one specified in the court’s rules ing of the petition in error, the original record could cause the appeal or proceeding to be and the transcripts of the trial proceedings. untimely filed and may ultimately result in Rule 2.1(B). dismissal. Once the client’s appeal or appellate proceeding has been properly initiated, a whole new set of due dates and time limitations come

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1247 into play. It is appellate counsel’s responsibility 8.8(D)), capital post-conviction appeals (Rule to ensure that all records necessary to complete 9.7(A)), extraordinary writs (Rule 10.1(C)), and an appeal are filed. Rule 2.1(C). The message is appeals from orders reviewing prison disci- repeated throughout the court’s rules. See Rules plinary proceedings (Rule 15.3). Generally 2.1(C), 2.4(B) & 3.2(C)(3). Rule 3.2(C)(3) pro- speaking, the petition in error should contain vides that appellate counsel is required to specifics relating to the trial court proceeding “constantly monitor” the preparation of the from which the appeal is lodged, including the appeal record, and is “ultimately responsible” trial court case number and county, the judge for it being timely filed. Rule 2.4(B) notes that issuing the final judgment or order being other provisions of the court’s rules do not appealed, the charged offense, the judgment “abrogate the ultimate responsibility of the and sentence imposed, the statutory authority appellate attorney” to ensure timely filing of and type of appeal being filed, and the nature the records necessary for commencing an of the relief the appellant is seeking. appeal. While the rules are quite specific as to Filing the client’s notice of intent to appeal the duties of the district court clerk (Rule and designation of record in the trial court is 2.2(A)) and the court reporter (Rule 2.2(B)) to jurisdictional in a direct appeal. Also jurisdic- assemble the record (including exhibits and tional is the filing in the Court of Criminal transcripts) for transmission to the Court of Appeals the petition in error,8 petition for writ Criminal Appeals for review, the rules also of certiorari,9 or post-conviction appeal petition specify that appellate counsel is ultimately in error.10 Failure to timely file constitutes responsible for ensuring that the appeal record waiver of the right to appeal. If the appeal or is complete and filed in a timely manner. Rules other appellate procedure is not timely filed, 2.4(B) & 3.2(C). Counsel is charged with taking the court will decline appellate jurisdiction and appropriate action to guarantee the timely fil- dismiss the action. See Rule 3.12(B)(1). A motion ing of the appeal record, and is required to use to file the client’s petition in error out of time available court procedures to secure the filing will not be granted. of a timely, complete record. Rules 2.4.B. & 3.2.C(3). Specific types of appeals or requests for relief require the filing of certain designated plead- Attorneys should become familiar with the ings, transcripts, orders or other documents in rules regarding preparation and transmittal of order to be perfected. Determine what specific the appeal record. The appeal record in non- documents are required for the type of appeal capital felony and misdemeanor cases must be or request for relief needed. To complete a ready for transmission within 90 days from the direct appeal, file a petition in error, an original date judgment and sentence is imposed. Rule record, and a transcript of evidence. Rules 2.3(A). In capital cases, the time limitation is six 3.2(A) – (C). Completion of a certiorari appeal months, id., and in juvenile cases the record requires the filing of a petition for writ of cer- must be ready for transmittal in 40 days. Rule tiorari, an original record, a transcript of the 7.3(A). The record in an extraordinary writ pro- proceedings in which the plea of guilty or nolo ceeding must be filed with this court within the contendere was taken, and a transcript of the 30-day time period for filing a request for evidentiary hearing on the application to with- relief, and the petitioner is responsible for draw plea. Rule 4.3(A). Post-conviction appeals ensuring that the record is filed. Rule 2.3(B)(4). require the filing of a petition in error with sup- Appellate counsel is also obligated to ensure porting brief, with a certified copy of the order that the correct number of copies is filed, and attached.11 Rule 5.2(C)(2). Juvenile appeals, that the proper parties are served. Rules 1.9(A) & which are assigned to the court’s accelerated (B). The court will not consider any pleadings, docket, are perfected upon the filing of a peti- brief or motions submitted without proof of ser- tion in error, a certified copy of the original vice to the adverse parties. See also, Rules 3.12(C), record, a transcript of any recorded proceed- 3.4(A), 4.4, 7.5(C), 8.8(D)(5), 10.3, & 15.3(E). ings, and an application for accelerated docket (Form 13.14), which serves as the appellant’s The rules specify in great detail the contents, brief. Rules 7.3(A) & 7.5(C). style and time limitations for filing a petition in error in a direct appeal (Rule 3.1), a certiorari It is the petitioner’s burden, in a case where appeal (Rule 4.3), a post-conviction appeal relief is sought by way of extraordinary writ, to (Rule 5.2(C)), appeals in juvenile matters (Rule ensure that the record is filed with the petition 7.5), appeals in Rule 8 proceedings (Rule seeking extraordinary relief. Rules 2.3(B)(4) &

1248 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 10.1(C). Petitioner must file a petition, a sup- timely filed, state appeals which were not porting brief, a certified copy of the original properly perfected, or untimely petitions for record applicable to the writ, including a certi- rehearing. fied copy of the order entered by the trial court, u A post-conviction appeal seeking an appeal a certified copy of any supporting evidence presented to the trial court in support of the out of time must have certified copies of both request for relief, and an original transcript of the trial court order and the application filed in any proceedings conducted on the petition, if the trial court attached to the application for applicable. Rule 10.1(C). post-conviction relief filed with this court. If these documents are not attached to the appli- Matters assigned to the accelerated docket cation, counsel will receive an order directing require the filing of an application for acceler- him to provide a sufficient record or show ated docket (which serves as the party’s brief), cause why the appeal should not be dismissed. and an accelerated docket waiver (unless it is a Rule 2.1(E)(1). case automatically assigned to the accelerated u docket)(Rule 11.5), in addition to any other Parties desiring to represent themselves in documents required with respect to the specific a direct appeal can only do so after obtaining type of appeal being filed.12 The application for permission from the trial court. Rule 1.16. accelerated docket (fast track) only serves as u Only pro se appellants/petitioners and the appealing party’s brief. It does not operate licensed attorneys may sign and file pleadings as a substitute for the petition in error, which with the court clerk. Rule 1.6. must still be filed. u If a party is represented by appellate coun- Requests for expungement of criminal appeal sel, only briefs submitted by counsel will be records require filing of an application for accepted for filing. Appellate counsel must cer- expungement and a certified copy of the trial tify that any pro se arguments submitted for court’s order recommending expungement. filing comply with Rule 3.4(E). Rule 14.2. Appeals seeking review of prison disciplinary proceedings require the filing of a u A motion to dismiss a pending appeal petition in error, with a certified copy of the made by the appellant/petitioner must have district court’s final order attached, a support- attached to the motion an affidavit personally ing brief, and a copy of the applicable appeal executed by the appellant/petitioner acknowl- record. Rule 15.3(A). Failure to include the edging waiver of the right to appeal and the proper documentation could delay resolution bar to raising the issues on appeal at a future of the client’s issue and may result in dismissal time. Rule 3.12.B.(2). of the appeal. u The client has 20 days to file a petition for BUT WAIT, THERE’S MORE. . . rehearing, or the decision becomes final. Rule 3.14. Petitions for rehearing are only allowed in If these rules, in general, are not enough to regular appeals, as defined at Rule 1.2(A). make counsel re-think practicing criminal There is no petition for rehearing allowed in a appellate law, there are other pitfalls that may post-conviction appeal, a request for extraordi- catch unaware those unfamiliar with the court’s nary relief, a Rule 8 hearing, a petition for rules and procedures. These are listed in no review of a disciplinary proceeding, revocation particular order, but are common mistakes of suspended sentence appeals, acceleration of which routinely surface in appellate filings. deferred sentence appeals, drug court termina- u The court does not recognize the mailbox tion appeals, or contempt citation appeals. rule. The client’s writ, appeal, application, peti- Rule 3.14(E). tion, motion, etc., must be received and filed in u The time to appeal an adverse ruling begins the court clerk’s office on or before the due date. running from the date the original order deny- Mailing it on the due date is not sufficient. ing relief is either pronounced or filed, depend- u A request for an appeal out of time is always ing upon the rule requirement for the specific filed as an application for post-conviction relief. filing. Filing a petition for rehearing, motion This includes requests for a direct appeal, certio- for reconsideration, motion to review prior rul- rari appeal, or post-conviction appeal out of ing, etc., in the trial court will not extend the time. Rule 2.1(E). There is no “out of time” filing date for purposes of perfecting the appel- appeal for extraordinary writs that were not late proceeding.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1249 u There are specific rules governing the con- 1. 22 O.S. §1051(a); White v. Coleman, 1970 OK CR 133, ¶11, 475 P.2d 404, 406 “[I]t is to be remembered that appeal is a creature of statute tents of an appellate brief addressing every- and exists only when expressly authorized.” See also, Anderson v. Dis- thing from the length of the brief to the type trict Court of Oklahoma County, 1967 OK CR 72, ¶2, 427 P.2d 437; Knight v. Page, 1965 OK CR 68, ¶7, 402 P.2d 922; Love v. State, 1963 OK CR 80, size. Follow the rules or the brief will be strick- ¶4, 385 P.2d 512. en or returned for appropriate corrections. 2. 22 O.S. §1051(a). 3. 22 O.S. §1051(b). Rule 3.5. 4. 22 O.S.2001 §1089.2(A); Rule 2.1(D). 5. See, 22 O.S.2001 §1089.2.C. u Section XIII of the rules contains forms 6. In seeking out-of-time appeals, counsel must ensure that his which are required to be used in Oklahoma pleadings “adequately identify the specific final orders, judgments, or sentences from which a right of appeal was allegedly lost and for criminal cases. Rule 13.1 et seq. which an out-of-time appeal is being requested.” Dixon v. State, 2010 OK CR 3, ¶6 n.5, 228 P.3d 531, 532 n.5. “Any petition to this Court for u Once counsel enters an appearance on an out-of-time appeal must provide sufficient information for this behalf of an appellant/petitioner, he or she is Court to determine whether the petitioning party is entitled to the out- of-time appeal being requested.” Id. required to continue representation of the 7. Rules 2.1(D), 2.5(A), 4.2(D), 6.1(D)(1), 7.2, & 15.3, Rules of the appealing party until completion of the appeal Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2010). 8. Rules 3.1. 7.5(A), & 8.8(D)(1). or other appellate criminal proceeding, or 9. Rule 4.3(A). upon entry of appearance of substitute counsel 10. Rule 5.2(C)(5). to represent the appellant/petitioner. Rule 11. The court rule does not require the filing of a record in a post- conviction proceeding. If no record is designated for transmittal to this 3.6(A). court, the matter will be decided on the pleadings filed, which may or may not provide a sufficient record for proper review. SO, WHAT’S NEXT? 12. Matters automatically assigned to the accelerated docket can be found at Rule 11.2(A). Although it may not seem like it, following the rules to properly initiate and perfect the About The Author client’s appellate criminal proceeding is much easier than trying to undo a mistake which has Suzanne P. Heggy is a staff caused the dismissal or delay of the client’s attorney in the Orders Division criminal matter. The rules serve a purpose. at the Oklahoma Court of Crim- They level the playing field and provide an inal Appeals. She currently orderly, consistent, timely procedure for appel- serves as president of the Cana- late review of criminal matters. There should dian County Bar Association, be no surprises, on either side, as to how the vice chairperson of the OBA appellate criminal process works. The respon- Law-related Education Commit- sible parties can determine the extent of their tee and chairperson of the LRE duties to facilitate the appeals process by sim- Special Committee on Public ply reading the rules. For the most part, getting Education. She is a 1982 graduate of UCO and a the appellate process started just requires that 1986 graduate of the OU College of Law. counsel follow directions.

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1250 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 You are not alone.

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Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1251 1252 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 CRIMINAL LAW A Natural History of the Leon Good Faith Exception in Oklahoma By Jim Drummond

n 1961, the U.S. Supreme Court issued its landmark decision in Mapp v. Ohio,1 establishing the exclusionary rule and mak- Iing clear that the “fruits of the poisonous tree” doctrine requires suppression of all illegally seized evidence. Jurispru- dence since then has steadily eroded that doctrine in a variety of contexts, but nowhere more significantly than in the court’s 1984 decision of United States v. Leon.2

The fundamental rule of Leon is that an officer cuit decision in United States v. Williams.5 Thirteen who relies in good faith on a search warrant that of the 24 judges on the Fifth Circuit bench held en is later found to be invalid need not endure the banc “that evidence is not to be suppressed under suppression of the seized evidence, because the the exclusionary rule where it is discovered by exclusionary rule is not inherent in the Fourth officers in the course of actions that are taken in Amendment, and is instead a judge-made rule good faith and in the reasonable, though mistak- designed to deter law enforcement officers from en, belief that they are authorized:” performing unreasonable searches and seizures. We do so because the exclusionary rule exists The Supreme Court in Leon made clear that, to deter willful or flagrant actions by police, under the U.S. Constitution, the exclusionary not reasonable, good-faith ones. Where the rule is not designed to protect criminal defen- reason for the rule ceases, its application dants from unreasonable searches and seizures, must cease also. The costs to society of apply- but to penalize and act as a deterrent to officers ing the rule beyond the purposes it exists to who engage in such conduct.3 serve are simply too high in this instance the This disjunct between individual rights and release on the public of a recidivist drug the deterrence of officers has not typically found smuggler with few or no offsetting benefits. favor in the Oklahoma Court of Criminal We are persuaded that both reason and Appeals, and until recently it was crystal clear authority support this conclusion.6 that Oklahoma did not recognize the Leon good In 1983, the year before the Supreme Court faith exception in trial-level criminal cases.4 In decided Leon, the State of Oklahoma in Hight- short, Leon has not fared so well in Oklahoma. ower v. State7 argued that the search pursuant to This article will examine the history of the Leon an arrest by officers not named in the warrant, good faith exception in this state, and the cau- though invalid, should not result in exclusion of tious approach that has been taken by the Court the seized evidence because the officers arrested of Criminal Appeals to departing from this the defendant in good faith. The Court of Crimi- exception to the exclusionary rule. nal Appeals rejected the good faith argument OKLAHOMA CASE LAW PRIOR TO LEON even though Williams was invoked as a case which the Supreme Court (prophetically) had The natural history of Leon in Oklahoma began declined to review: its development largely with the 1980 Fifth Cir-

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1253 The State’s suggestion that the officers’ pression of illegally seized evidence typically good faith prevents application of the involved evidence seized pursuant to laws exclusionary rule supposes the officers’ later found unconstitutional and cases where ignorance of the law. Formulations of the the principle was newly announced and not so-called “good faith” exception to the applied retroactively because the contribution exclusionary rule do not include within to police deterrence was hard to find in retroac- their scope actions in ignorance of estab- tive applications. Leon broke ground to identify lished law. See, e.g., United States v. Wil- situations where the search warrant was inval- liams, []. . . .(the officers’ good faith belief id under existing law and yet the evidence must be based on articulable premises suf- would not be suppressed because the officer ficient to cause a reasonable, and reason- acting in good faith had a right to rely on the ably trained, officer to believe he was act- finding of probable cause by a “detached and ing lawfully; the officer’s unawareness of neutral magistrate.”12 The majority was careful constitutional requirements would not suf- to observe that good faith could not exist where fice). Assuming arguendo that a good faith the violation was knowing, deliberate or egre- exception should be recognized, it would gious.13 The test created was a balancing test not be applicable in the case at bar.8 involving “evaluation of the costs and benefits of suppressing reliable physical evidence seized A year later, the state tried again in Beeler v. 14 State,9 which the Court of Criminal Appeals by officers reasonably relying on a warrant.” decided less than five months before the opinion The costs were expressed as detriments to the 15 in Leon was handed down by the U.S. Supreme truth-finding process, and the benefits as Court. In Beeler, the Oklahoma Court of Crimi- deterrents to police abuse of the Fourth Amend- nal Appeals held that the good faith exception ment provisions. could not save illegally seized evidence from OKLAHOMA LAW SINCE LEON suppression because “a majority of the United States Supreme Court has not recognized a good Leon has been understood in Oklahoma to faith exception to the exclusionary rule, and it apply only where there is a warrant issued, as would be inappropriate for a state court to alter happened in Leon, which turns out to be inval- established Fourth Amendment doctrine by id, and never where the search is warrantless. approving such an exception.”10 The Oklahoma Two years after Leon, the Court of Criminal 16 Court noted that theretofore the U.S. Supreme Appeals decided in Lowry v. State that where Court “has frequently required the suppression the search warrant was later found “defective of evidence in cases which the police arguably in its imprecise drafting and by its failure to were acting in good faith…Adoption by this state the reliability of the confidential infor- court of a doctrine limiting the exclusionary rule mants,” the search was warrantless: to searches and seizures conducted ‘in bad faith, Since the search warrant was invalid, the as urged by the attorney general, would appear police officers’ forced entry into the appel- barred by Mapp v. Ohio [] in which the Supreme lant’s residence and his subsequent war- Court ruled that ‘all evidence obtained by rantless arrest was unlawful. The Supreme searches and seizures in violation of the [United Court has held that a warrantless arrest of States] Constitution is, by that same authority, an individual in his own residence is barred inadmissible in a state court.’ (367 U.S. 643, 655, by the Fourth Amendment to the United 81 S.Ct. 1684, 1691, 6 L.Ed.2d 1081), and subse- 17 11 States Constitution. [] Since the appel- quent decisions applying that rule.” This makes lant’s arrest, in the case at bar, was pro- clear that the Leon good faith exception would be cured without a warrant in his own resi- among the first decisions making a giant leap dence, the arrest was in violation of the away from Mapp. Fourth Amendment.18 THE LEON DECISION This seems to have been an implicit rejection On July 5, 1984, the Supreme Court issued of Leon in the guise of distinguishing it, since Leon, in which for the first time a majority there was, as in Leon, a warrant issued but later stated that the exclusionary rule is not a corol- found invalid. Oklahoma decided that a search lary of the United States Constitution and that pursuant to an invalid warrant was, in effect, it could be trimmed to fit fact situations where warrantless, an approach that has its logic but the objective of deterrence of officer violations which interprets the U.S. Constitution differ- could be met. Previous cases not requiring sup- ently than the Supreme Court. Oklahoma is of

1254 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 course free to take such an approach in inter- seizure context applies only in a very lim- preting Oklahoma’s Constitution, under Art. 2, ited number of cases where officers, in §30, and effectively did so in Lowry. In dissent, good faith, rely on what appears to be a Judge Bussey would have adopted and applied valid search warrant. []26 This court has the good faith exception of Leon.19 refused to extend the exception to any

20 other types of cases. See Farmer v. State Two years after Lowry, in Farmer v. State, the [](court refused to extend good-faith excep- Court of Criminal Appeals said that “a good tion to consent searches); see also Solis-Avila faith exception to the exclusionary rule applies v. State []. An officer’s good faith in making only where officers rely in good faith on a a warrantless felony arrest is not an accept- search warrant,” and cited Leon. The court able substitute for probable cause, regard- refused to extend the exception to Farmer’s less of where he gets his information. []27 If case, where the officers searched pursuant to good faith cannot save a warrantless felony the “unprivileged consent” of a third party on 21 arrest, surely it cannot save a warrantless Farmer’s premises. The Oklahoma Court still misdemeanor arrest, where the need for a had not explicitly rejected Leon, yet now argu- factual basis for the arrest is much greater. ably felt compelled to acknowledge it as long as it could distinguish Leon from the case at bar. The court emphasized the presumption that But in its next significant decision, in 1992, the all warrantless searches are presumptively court would be required to confront a trial court unreasonable “under both federal and state decision that Leon applied, in Solis-Avila v. constitutional law,” and that the state has the State.22 Though the “trial court found that there burden to prove that a warrantless arrest is was not enough of a factual basis stated in the lawful.28 affidavit to justify the nighttime execution of the RECENT HISTORY search warrant,” it overruled a motion to suppress in reliance on Leon.23 In reversing the trial In 2006, the Court of Criminal Appeals revis- court, the Court of Criminal Appeals for the first ited Leon in the context of an anticipatory time rejected Leon explicitly: search warrant, which was not authorized by 22 O.S. § 1222 at that time. The court in Dodson This Court . . . has never adopted the Unit- v. State29 seemed to acknowledge Leon when it ed States v. Leon “good faith” exception to said that “the good faith exception enunciated search warrants such as in this case and we in Leon will save a valid anticipatory warrant. see no reason to do so at this time. We agree However, anticipatory search warrants are not with appellant that the trial court erred by authorized by Oklahoma law and are therefore failing to sustain his motion to suppress not valid. Officers are assumed to have ‘a rea- after finding that the search warrant was sonable knowledge of what the law prohibits. improperly executed. Therefore, in a four- A well-trained officer in Oklahoma should to-one (4-1) vote, we find that this case have known that such warrants were not spe- must be REVERSED and REMANDED cifically allowed under our statutes.’”30 The WITH INSTRUCTIONS TO DISMISS.24 court invited the Legislature to amend § 1222 Seven months after Solis-Avila, the court to authorize anticipatory search warrants, decided the Richardson v. State case, applying which would allow a search warrant to be Leon to revocation proceedings under a more issued to take effect on the happening of a lenient view of the Fourth Amendment in post- future triggering event. The Legislature did so conviction proceedings (see footnote 4 herein), in 2007. In denying application of Leon, how- overruling prior state precedents. The door ever, the court seemed to signal that it was seemed to crack open a bit. Even so, the Okla- moving toward acceptance of Leon by citing its homa Court continued to make it clear that language as authority for the principle that a Leon could never apply where the search was warrant authorized by the statute found inval- warrantless; and in 1994, in considering a war- id would result in excluding evidence “only on rantless arrest in Tomlin v. State,25 the Court of a case-by-case basis and only in those unusual Criminal Appeals held: cases in which exclusion will further the purposes of the exclusionary rule. Leon []at 918 []. [T]here is no “good-faith exception” to the The purpose of the exclusionary rule is to rule excluding illegally-obtained evidence ‘deter police misconduct’ and not ‘to punish for warrantless misdemeanor arrests. The the errors of judges and magistrates.’ []”31 good-faith exception in the search-and- Judge Lumpkin dissented strongly, feeling that

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1255 anticipatory warrants were authorized under the writ whose legitimate purpose was to col- existing statutory language and that Leon lect money from Sittingdown, there should should be applied there. have been no need to discuss Leon. But Judge Lumpkin, writing for the majority, took the Last year, in State v. Sittingdown32 the defense opportunity to write that Leon was applicable community in Oklahoma wondered if the as well: Court of Criminal Appeals had finally embraced Leon without reservation — or not. Sitting- In addition to the fact that the actions of the down was searched pursuant to a civil writ, officers were reasonable, they were also issued after a civil monetary judgment against acting in “good faith” and their actions fall him. The Court of Criminal Appeals stated the directly under the criteria outlined by the facts surrounding the writ and replicated its United States Supreme Court in United language: States v. Leon []. Since this Court has previously held. . . []35 that the Federal Constitu- The “Writ of General Execution” stated in tion and the Oklahoma Constitution are part: the same in the rights protected, we find NOW, THEREFORE, You are commanded Leon is applicable here. The exclusionary that of the goods and chattels of the said rule is not applied when a law enforcement John Sittingdown, an individual, you cause officer has conducted a search in “objec- the money above specified to be made; and tively reasonable reliance” upon a search for want of goods and chattels you cause warrant issued by a magistrate and has the same to be made by abided by the terms of the EXECUTING ON THE warrant even if the warrant is CASH REGISTER AT THE subsequently determined to DEBTOR’S PLACE OF be invalid. [] The same ratio- BUSINESS AS WELL AS Certainly the nale applies to a civil writ or ANY CASH ON THE PER- order. The fruits of a search SON OF MR. JOHN SIT- assertion that the and seizure pursuant to a civil TINGDOWN. And make writ will not be suppressed return of this Execution, federal and Oklahoma even if the writ is subsequent- with your certificate there- ly found invalid if the officer on, showing the manner constitutions are acted in “objectively reason- you have executed the able reliance” upon the civil same, within sixty days always the same in writ and abided by its terms. from the date hereof. the rights protected It is difficult to see how this When the deputies arrived can be anything other than at the establishment, Appel- cannot be binding in dicta, however, because even lee was leaving the bar. though the majority purported Deputy Swenn informed every case… to “find” that the Leon excep- Appellee he had a paper to tion was applicable, the search serve him and suggested was reasonable and was found they step back inside. valid by the court, though Swenn asked Appellee “to found invalid by the trial court take all of his money, everything out of his which concluded the writ did not authorize the pockets.”When Appellee started emptying order to Sittingdown to empty his pockets. his left front pocket, a small clear baggie Certainly the assertion that the federal and containing a white crystal substance (meth- Oklahoma constitutions are always the same in amphetamine) was mixed in with the the rights protected cannot be binding in every money. Appellee was taken into custody.33 case – or other than dictum — simply because in the cited cases the court interpreted constitu- The Court of Criminal Appeals discussed the tional provisions of the two jurisdictions in a nature of civil writs at length and decided that consistent manner. Nonetheless the Sittingdown the mandate to collect cash from Sittingdown’s 34 decision caused qualified rejoicing among person rendered the search reasonable. Appar- prosecutors and qualified dismay among ently the civil writ is similar in nature to a war- defenders. This uncertainty persists. rant under Supreme Court precedent. Since it was a reasonable search under the language of

1256 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 In its recent decision in Baxter v. State, deciding a civil writ which trumped and was broad- ed Aug. 23, 2010,36 Judge Lewis, who dissented er than a criminal search warrant due to its in Sittingdown, wrote the summary opinion legitimate objectives, also obviating the pat- which again refused to apply Leon to a war- down search analysis of Terry v. Ohio.41 rantless search which was not valid in light of The advantage of this ambiguity is that both the 2009 Supreme Court decision in Arizona v. sides have something to argue about before a Gant.37 The state argued that it relied in good court historically uneasy and appropriately faith on the pre-Gant law of New York v. Belton38 cautious in applying Leon. The freedom of state — which law enforcement had widely viewed courts to interpret state constitutions more as carte blanche permission to vehicular search broadly than the Supreme Court in regard to incident to a lawful arrest — because Gant was individual rights is a potent component of the not decided until after the search in Baxter. But freedom this country enjoys generally. This the Court of Criminal Appeals rejected this author agrees with the dissent of Judge Ed argument without dissent, quoting Gant: Parks, joined by Judge Tom Brett, in Richardson The fact that the law enforcement commu- v. State, supra: nity may view the State’s version of the I continue to adhere to the view that the Belton rule as an entitlement does not exclusion of evidence obtained through an establish the sort of reliance interest that unreasonable search or seizure is itself a could outweigh the countervailing interest fundamental right under both art. II, § 30 of that all individuals share in having their the Oklahoma Constitution and the Fourth constitutional rights fully protected. If it is Amendment. Excluding unlawfully seized clear that a practice is unlawful, individu- evidence not only deters future Fourth als’ interest in its discontinuance clearly Amendment violations. More importantly, outweighs any law enforcement “entitle- it provides a means of acknowledging and ment” to its persistence.39 upholding the Constitutional rights of Gant made clear that Belton was not over- those who were in fact victims of the ruled but clarified, and that law enforcement unlawful search or seizure. officers had gone too far in interpreting Belton. Judge Parks criticized the Leon language, Gant distinguished the facts in Gant’s situation stating that the exclusionary rule is not a corol- from that in Belton on the basis that Gant was lary of the Fourth Amendment, and that the secured in the patrol car and posed no threat to sole purpose of that Amendment and of Art. 2, officer safety, while in Belton there were several § 30, is to deter officers.42 He would have detainees who were all unsecured and only adhered to the absolute prohibition of the fruits one officer was present. In any event Oklaho- of the poisonous tree as Mapp appeared to ma in Baxter found Gant to be retroactive to promise, in any proceeding where liberty is at cases on appeal when Gant was decided, citing stake, invoking the right of Oklahoma to accord the 1987 Supreme Court ruling in Griffith v. more rights under its Constitution than those Kentucky.40 now conferred by the Fourth Amendment. CONCLUSION It is not unprecedented for law enforcement What is clear is that in Oklahoma the Leon officers and judges to produce search warrants exception does not apply where a search is that are knowingly specious, and Oklahoma warrantless. What remains unclear is whether should not lightly dispense good faith coupons Oklahoma will ever adopt Leon in a case where — it would be better to err in favor of individ- the search warrant is invalid but relied upon in ual rights. This is only one front on the battle to good faith, because none of the cases examined preserve the Fourth Amendment exclusionary here have ever truly overruled the holding in rule from further erosion. The views of Judge Solis-Avila that Oklahoma has refused to apply Lumpkin are to be respected and considered Leon in invalid warrant cases and that a search carefully; certainly it is hard to let indisputably warrant later found invalid appears to render culpable law violators go free, and it is tempt- that search retrospectively warrantless, as held ing to abdicate state constitutional analysis to in Lowry v. State. Sittingdown did not find good Supreme Court precedent which has steadily faith in a situation where a warrant was inval- — but not consistently, see Gant — favored law id, and the facts there did not involve a war- enforcement and curtained the exclusionary rantless search but an unusual situation involv- rule. But it may be even harder to see the

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1257 Fourth Amendment suffocate under a plethora mistake. Suppressing evidence because the judge failed to make all the necessary clerical corrections despite his assurance that such changes of exceptions to the exclusionary rule. would be made will not serve the deterrent function that the exclusionary rule was designed to achieve.” 468 U.S. at 982. 1. Mapp v. Ohio, 367 U.S. 643 (1961). 20. Farmer v. State, 1988 OK CR 142, 759 P.2d 1031, abrogated on 2. United States v. Leon, 468 U.S. 897 (1984). other grounds, Horton v. California, 496 U.S. 128 (1990). 3. The court stated: 21. Id. at 1032. The Fourth Amendment contains no provision expressly pre- 22. Solis-Avila v. State, 1992 OK CR 27, 830 P.2d 191. cluding the use of evidence obtained in violation of its com- 23. Id. at 192. mands, and an examination of its origin and purposes makes 24. Id. clear that the use of fruits of a past unlawful search or seizure 25. Tomlin v. State, 1994 OK CR 14, 869 P.2d 334. “work[s] no new Fourth Amendment wrong.” United States v. 26. Citing Leon at 919-921. Calandra, 414 U.S. 338, 354, 94 S.Ct. 613, 623, 38 L.Ed.2d 561 27. Citing Castellano v. State, 1978 K CR 107, 585 P.2d 361, 365-66; (1974). The wrong condemned by the Amendment is “fully Greene v. State, 1973 OK CR 191, 508 P.2d 1095, 1098. accomplished” by the unlawful search or seizure itself . . ., and 28. Citing Katz v. United States, 389 U.S. 347, 357 (1967) and Lucas v. the exclusionary rule is neither intended nor able to “cure the State, 1985 OK CR 100, 704 P.2d 1141, 1143. invasion of the defendant’s rights which he has already suf- 29. Dodson v. State, 2006 OK CR 132, 150 P.3d 1034. fered.” Stone v. Powell, supra, 428 U.S. [465], at 540, 96 S.Ct., at 30. Id. at 1058. 3073 (WHITE, J., dissenting). The rule thus operates as “a judi- 31. Id. at 1058-1059. cially created remedy designed to safeguard Fourth Amendment 32. State v. Sittingdown, 2010 OK CR 22, 240 P.3d 714. rights generally through its deterrent effect, rather than a per- 33. Id. at 715-716. sonal constitutional right of the party aggrieved.” United States v. 34. The Court cited Soldal v. Cook County, Ill., 506 U.S. 56, 61 (1992) Calandra, supra, 414 U.S., at 348, 94 S.Ct., at 620. for the principle that although a search pursuant to a civil writ is a Leon, 468 U.S. at 906. “seizure” within the meaning of the Fourth Amendment, “no warrant 4. The rule of Leon has been recognized in Oklahoma probation is required when the seizure occurs pursuant to a civil order or writ,” revocation proceedings for nearly 20 years, however. In Richardson v. citing Soldal at 67 n. 11. “In Soldal the Supreme Court noted that where State, 1992 OK CR 76, 841 P.2d 603, 603-606, the Court of Criminal officers were acting pursuant to a court order, a showing of unreason- Appeals adopted the majority view of the state and federal courts that ableness in the execution of the civil process would be a ‘laborious task the exclusionary rule does not automatically apply in probation revo- indeed.’ Soldal, 506 U.S. at 71.” Sittingdown at 717. cation proceedings to the extent that it would before conviction. The 35. Citing DeGraff v. State, 1909 OK CR 82, 103 P. 538, 541; State v. minority of jurisdictions applies the exclusionary just as before convic- Thomason, 1975 OK CR 148, ¶ 14, 538 P.2d 1080, 1086; and Long v. State, tion because of the liberty interest at stake no less in revocation pro- 1985 OK CR 119, ¶ 6, 706 P.2d 915, 916-17. ceedings than before conviction. See, e.g., State of New Mexico v. Mar- 36. Baxter v. State, 2010 OK CR 20, 238 P.3d 934. quart, 945 P.2d1027 (N.M. 1997). 37. Arizona v. Gant, __ U.S. ___, 129 S. Ct. 1710 (2009). 5. United States v. Williams, 622 F.2d 830 (5th Cir. 1980). 38. New York v. Belton, 453 U.S. 454 (1981). 6. Id. at 840. 39. Gant, 129 S.Ct. at 1723 (quoted in Baxter, 2010 OK CR 20, 238 7. Hightower v. State, 1983 OK CR 160, 672 P.2d 304. P.3d at 937). 8. Id. at 306-307. 40. Griffith v. Kentucky, 379 U.S. 314, 322-323 (1987). Baxter v. State, 9. Beeler v. State, 1984 OK CR 55, 677 P.2d 653. supra, note 36, held that Gant is not retroactive generally, but did apply 10. Id. at 657. to cases still on appeal when Gant was decided. Nonetheless, the Okla- 11. Quoting the California Supreme Court in People v. Teresinski, 640 homa Court refused to apply the good-faith exception to warrantless P.2d 753, 758 (1982). pre-Gant vehicle searches in Baxter. 12. Leon, 468 U.S. at 912. 41. Terry v. Ohio, 392 U.S. 1 (1968). 13. “Deference to the magistrate, however, is not boundless. It is 42. 841 P.2d at 606. clear, first, that the deference accorded to a magistrate’s finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978).12 Second, About The Author the courts must also insist that the magistrate purport to “perform his ‘neutral and detached’ function and not serve merely as a rubber stamp for the police.” Aguilar v. Texas, supra, 378 U.S., at 111, 84 S.Ct., Jim Drummond practices

at 1512. See Illinois v. Gates, supra, 462 U.S., at 239, 103 S.Ct., at 2332. A magistrate failing to “manifest that neutrality and detachment criminal defense in Norman, demanded of a judicial officer when presented with a warrant applica- handling trials and appeals in tion” and who acts instead as “an adjunct law enforcement officer” cannot provide valid authorization for an otherwise unconstitutional federal and state courts. Previ- search. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326-327, 99 S.Ct. 2319, ously he has worked as a state 2324-2325, 60 L.Ed.2d 920 (1979).” Leon, 468 U.S. at 914. 14. Leon, 468 U.S. at 913. and federal public defender. He 15. “Indiscriminate application of the exclusionary rule, therefore, was recently named chairperson may well ‘generat[e] disrespect for the law and administration of justice’” [citing Stone v. Powell, supra, at 491.] Leon, 468 U.S. at 908. of the OBA Legal Ethics Advi- 16. Lowry v. State, 1986 OK CR 177, 729 P.2d 511. sory Panel. He was the inaugu- 17. Citing Payton v. New York, 445 U.S. 573 (1980) and Feaster v. ral chairperson of the OBA State, 635 P.2d 617 (Okl.Cr.1981). 18. Lowry, 729 P.2d at 512-513. Criminal Law Section, and also serves on the boards 19. Judge Bussey also cited Massachusetts v. Sheppard, 468 U.S. 981 of the Oklahoma Criminal Defense Lawyers Associa- (1984), handed down the same day as Leon. In Sheppard, the Supreme Court further elaborated: “An error of constitutional dimensions may tion and the Oklahoma County Criminal Defense have been committed with respect to the issuance of the warrant in this Lawyers Association. case, but it was the judge, not the police officer, who made the critical

1258 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1259 1260 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 CRIMINAL LAW Expungements – Making Sense of a Flawed Law By Allen Smallwood “Even God cannot change the past.” Aristotle n all fairness, if the above quote is true, then anyone trying to rewrite history through legislation is engaging in the height of Iarrogance. To the credit of the Oklahoma Legislature, however, and despite some of the flaws contained in Oklahoma’s expungement statutes — it is laudable that legislators have acknowledged the draconian effect a criminal record can have on an individual’s life. While this attempt to allow an individual to rectify a past mistake is not perfect, if it is properly applied with good faith on the part of the record keepers, expungement can accomplish most, if not all, of the implicit goals.

It is important to be aware of the distinctions expunged is through the procedures outlined in between the “expungement of a plea of guilty” this article. and the “expungement of arrest records” as con- The importance of arrest record expungement templated by 22 O.S. §§18 and 19 and this article. statutes has been particularly highlighted by the I have heard lawyers, and occasionally judges, phenomenal acceleration of our wonderful make statements suggesting that if an individual “information age.” Most individuals who con- successfully completes his or her deferred sen- duct record checks on potential employees or tence and obtains an “expungement,” it will “be persons of interest long ago learned to bypass as though it never happened.” This is simply not the court clerk records. They go instead directly accurate. Expungements in criminal cases under to the OSBI, which, for a nominal fee, will sup- 22 O.S. §991c, govern only the expungement of ply that information concerning any of us. The the plea of guilty. Those expungements have no problem with this procedure is that often these effect on any law enforcement records, includ- records simply are not accurate because they are ing records of the Oklahoma State Bureau of not updated on a timely basis. It has happened Investigation (OSBI). Both practitioners and that, many years after a client obtained a dis- judges should make sure that an individual who missal and an expungement of the record of the is receiving a deferred sentence or deferred plea at the courthouse, the OSBI still reflected judgment understands that the only expunge- the case in an active status as a pending felony ment that will occur through that particular matter. I also receive calls on a regular basis procedure is expungement of the person’s plea from lawyers whose civil clients have contacted of guilty or no contest in the court clerk records them about a 20-year-old DUI conviction which at the county courthouse. The only way one’s is continuing to haunt them, despite several arrest records or law enforcement records can be

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1261 decades of living an honorable and crime-free The factual innocence of the person was established life. Therefore, it is important for all attorneys by the use of deoxyribonucleic acid (DNA) to know that correct use of the expungement evidence subsequent to conviction statutes is the best and only way to clear one’s These situations are becoming more com- record. mon. Those of us in Tulsa County remember a The Legislature gave birth to the initial two rape conviction that was reversed several years statutes, 22 O.S. §§18 and 19, in 1987, and (as ago based on a factually erroneous charge and seems to always be the case) has tinkered with conviction, resulting in a multi-million dollar them annually since then. This article will judgment against the City of Tulsa. focus on a review of the significant provisions The person has received a full pardon on the basis of these statutes and their efficacy, and will of a written finding by the governor of actual provide recommendations for proceeding 1 innocence for the crime for which the claimant under them. was sentenced TITLE 22 O.S. §18 This section speaks for itself. Section 18 describes the individuals who are The person was arrested and no charges of any qualified to seek relief and the specified factual type, including charges for an offense different situations into which they must fit to obtain than that for which the person was originally relief. Once a prima facie case of qualification arrested are filed or charges are dismissed within for relief is made, the burden shifts to the state one year of the arrest, or all charges are dismissed to establish a reason that an expungement on the merits order should not issue. Hoover v. State, 2001 OK CR 16, 29 P.3d 591. The statutory subsections This is the most common section used in my are addressed below as listed in the statute. experience. The individual seeking expungement must assert and prove that either 1) no The person has been acquitted charges were filed within one year of the per- This section is pretty straightforward and son’s arrest, or 2) all charges filed as a result of unambiguous. It obviously would apply only that arrest were dismissed within one year of to the charge for which an individual has been the arrest. An ambiguity lies in the fact that this acquitted. If they were charged in a multi- provision appears to contradict the following count indictment or information, and were category with respect to expiration of the stat- only being acquitted on one of those counts, ute of limitations. What this means is that if an the acquitted count is the only one to which the individual is arrested and no charges are filed expungement statute would apply. within one year, that person may file a petition to have those arrest records expunged. How- The conviction was reversed with instructions to ever, the statute of limitations, at least with dismiss by an appellate court of competent jurisdic- most felonies, is three years, and the prosecution, or an appellate court of competent jurisdiction tion would still be free — after you filed a peti- reversed the conviction and the district attorney tion to expunge the records — to refile those subsequently dismissed the charge charges, which would defeat your attempt to This applies to two different circumstances. expunge the records. I have not seen this hap- The first is the rare occasion where an appellate pen and it would appear to be an act of bad court reverses a conviction and instructs the trial faith on the part of the prosecution but it still is court to dismiss. Those reversals and instruc- a potential problem. Most of the petitions I tions are not discretionary and the trial court is have filed, including the form appearing with bound to dismiss the case if so ordered. The sec- this article, involved cases that were dismissed ond situation is more common and involves a within one year of the date of arrest. I have yet to see, in 35 years of practicing law, however, a circumstance of a reversal of a conviction and docket entry reflecting that a prosecutor dis- the subsequent dismissal by the district attor- missed a case “on the merits.” ney’s office. Unlike another provision described below, there appears to be no time limit on these It is also critical to remember that the one- dismissals, nor is there any requirement that a year clock begins to run on the date of the determination be made that the person was fac- individual’s arrest, not when the charges were tually innocent or that the dismissal was based filed or when the charges were dismissed. As upon insufficient evidence. we all know, clients are often arrested and the

1262 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 prosecutor ultimately declines to file charges, person has received a full pardon for the offense, the perhaps several months later. The one-year person has not been convicted of any other misde- clock began on the date of the arrest, not when meanor or felony, no felony or misdemeanor charges the declination was made. This can be prob- are pending against the person, and at least ten lematic when your client perhaps was never years have passed since the conviction formally “arrested,” but merely voluntarily This section causes the most problems and surrendered after learning that a bench war- defeats most attempts at expungement of seri- rant had been issued. The date of the arrest ous felony conviction records. A “nonviolent should be determined to be the date he or she felony’” as defined by 57 O.S. §571 is any felo- surrendered and was booked through the jail ny which does not fit into the description of clearing out the arrest warrant. You need to more than 40 violent felony offenses listed in calendar those arrest dates in your file and, if the statute. Based on this, although I have possible, seek to have any period of probation never attempted to expunge a violent felony conclude prior to the one-year date of arrest if offense, it would appear that violent felony you intend to use this section to expunge the offenses simply are not subject to expunge- arrest records. ment. In addition to the passage of 10 years, The statute of limitations on the offense had since the statute is in the conjunctive, it is my expired and no charges were filed opinion one must also obtain a full pardon and assert that no convictions of any other criminal This appears to be a pretty straightforward offenses have occurred and that no criminal and unassailable category as long as you are offenses, misdemeanors or felonies are pend- certain of the applicable statute of limitations ing at the time of the petition. and no charges have ever been filed. If charges are filed and not dismissed within a year, I do I have recently encountered a “Catch-22” not believe you can have your records expunged with respect to expungement of non-violent under this section, but must rely upon the pre- felony offenses. I represented a young man about 20 years ago who was charged with pos- vious section. session of cocaine with intent to distribute. We The person was under eighteen years of age at the worked out a resolution where the charge was time the offense was committed and the person has reduced to possession of cocaine (still a felony) received a full pardon for the offense and the individual received a five-year deferred sentence. He successfully completed that This section has two parts and is described in deferred sentence and a few years ago con- the conjunctive, which, in my view, requires tacted me about expunging his arrest records. the person to be both under the age of 18 at the He met the 10-year requirement, but we need- time the offense was committed and has ed to obtain a governor’s pardon. As we all received a full pardon. It would appear this know, because a pardon is a political act, not a section would only be necessarily used in seri- legal one, this individual contacted the gover- ous felony offenses; for less serious offenses, nor’s office through his political connections. you should be able to obtain relief under the Interestingly, the governor’s office’s response other sections, particularly when an offense was that the individual could not receive a par- was committed by a minor. don because he had never been convicted, and The offense was a misdemeanor, the person has not there was nothing to pardon. Technically, this been convicted of any other misdemeanor or felony, response was accurate, as a deferred sentence, no felony or misdemeanor charges are pending successfully completed, results in an individu- against the person, and at least ten years have al never receiving a felony conviction. How- passed since the judgment was entered ever, it appears to defeat the purpose of the statute — though it also appears to be the case This section applies to misdemeanors and — that in order to obtain an order of expunge- requires the passage of 10 years with no con- ment under this section for nonviolent felony victions of any crime, felony or misdemeanor, offenses, you must have 10-year passage of and no felony or misdemeanor charges pend- time, as well as a governor’s pardon. Other- ing at the time the petition is filed. No pardon wise, any objection filed by law enforcement is necessary. will probably be sustained by the court. The offense was a nonviolent felony, as defined in The person has been charged or arrested or is the Section 571 of Title 57 of the Oklahoma Statutes, the subject of an arrest warrant for a crime that was

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1263 committed by another person who has appropriated generated by them or would be held by them, or used the person’s name or other identification including the city attorney’s office, city prose- without the person’s consent or authorization cutor’s office and that local agency’s law enforcement department. This section applies to an individual whose identity has been misappropriated and that Section 19, paragraph C, is where the prob- misappropriation has caused an erroneous lems begin. While I have rarely had law enforce- arrest warrant to issue in the person’s name. ment agencies (including the OSBI) object to a How one would prove that in a petition is not petition, this paragraph clearly authorizes them clear. to do so and requires the court to make a finding that harm to the privacy of the person at The concluding paragraph of this section is interest outweighs any public interest in retain- illuminating and is what causes everyone to ing the records. However, the “basic identifica- doubt the efficacy of the entire procedure. The tion information” is not to be sealed. What this paragraph specifically describes expungement means is unclear. as the “sealing of criminal records.” However, this sealing applies only to the public, and not Paragraph C also authorizes the court to issue to law enforcement agencies for law enforce- a conditional order of sealing as the court deter- ment purposes. More about this later. mines appropriate, taking into consideration the TITLE 22 O.S.§ 19 various interests of the parties involved. The section also allows any party to appeal a court’s Section 19 provides the procedure to be fol- order to the Oklahoma Supreme Court, but lowed, and is straightforward. Local court requires the OSBI to be a necessary party and rules have changed the procedure that was fol- given notice of the appeal proceedings. lowed for several years. For many years after the passage of the act, a petition to expunge Paragraph D is the most curious section. It was filed in the criminal case number. A court attempts to change the past by deeming certain rule was established several years ago which actions to have never occurred, and gives all of provides for the petition to be filed at the us hope (false on many occasions) that we can criminal court clerk’s desk, but it is a separate rely upon the order, in that any inquiry into the case and receives a miscellaneous (MI) case matter will reveal a response that the action number. There is a filing fee, no summons is never occurred and no such record exists with necessary, and the case is randomly assigned to respect to that person — even though the con- one of the district judges who regularly calls a cluding paragraph of §18 clearly requires the criminal docket. preservation of the records. Is this section authorizing the official who is responding to My practice is to file the petition, have the an inquiry to lie? It appears to. case set for a hearing 45 – 60 days in the future by the assigned judge, and send a copy of the Paragraph E authorizes that “inspection of petition along with the order setting hearing to records” (whatever that means) may only be the various law enforcement agencies as well permitted on separate court order for the per- as the Tulsa County Court Clerk’s office. Do son of interest (the person who has obtained not bother to send it to the Federal Bureau of the expungement), the attorney general or the Investigation. They do not recognize state district attorney. It clearly indicates the records court orders and you will not receive as much are maintained. as a signed certified mail return receipt card Paragraph F is the most beneficial to indi- from them. viduals obtaining orders expunging their However, it is important to remember to records. It authorizes an applicant to not dis- include all arresting agencies who had any close any information contained in sealed contact or generated any records with respect records, and, although it does not say so, it to a client’s charge. I recently had to amend a would appear to include any such statement petition for expungement because I failed to by an individual even under oath. remember that my client’s arrest was not by Paragraph G is an attempt to grandfather the Tulsa Police Department but by the police arrest and criminal records existing prior to department of the City of Broken Arrow. In 1987. those circumstances, you need to include the city court clerk if any records could have been

1264 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 Paragraph H appears to prohibit any physi- Recently, the protective order statutes (22 cal destruction of any criminal records. O.S. §§60 et seq.) were amended to provide for a procedure to expunge victim protective Paragraph I would apply to those circumstances where only one of several counts was orders. It is found at 22 O.S. §60.18. I have not expunged, and authorizes unsealed material to attempted to use this statute and it appears to be recorded in a separate document and oblit- have several problems. The statute provides erated from the original document. for expungement of what is described as VPOs (victim protective orders) under four separate Paragraph J appears to require that “district categories. Included are ex parte orders issued court index reference of sealed material” be but later terminated due to dismissal before a “destroyed, removed or obliterated.” What this full hearing, or denial of the petition at the means and how it squares with other provi- hearing, or failure of the plaintiff to appear for sions of this act is not clear. a full hearing, and apparently requires the pas- Paragraph K appears to apply to “Section 1 sage of 90 days for any of those to apply. An of this title.” The only “title” to which it could order also can be expunged if 90 days have apply would be Title 22 which contains the passed since the plaintiff failed to appear for a statutes with respect to criminal procedure. If victim protective order hearing; or if either the this section was meant to apply to Section 18, plaintiff or defendant has had any protective it does not so state and creates a significant order vacated and three years have passed; or ambiguity. if either the plaintiff or defendant is dead. Once again, expungement is defined as the sealing of Paragraph L provides, upon a showing of compelling circumstances and after notice to all victim protective orders for public inspection interested parties, that certain sealed records can but not from law enforcement, the court or the be unsealed. This is further evidence to contra- district attorney’s office. dict Paragraph J, and indicates there was never a The use of the term “VPO” is confusing contemplation by the Legislature that anything because I have long used the term “VPO” as an be “destroyed, removed or obliterated.” acronym for the criminal offense of “violation If any further proof is needed that these of a protective order.” The divergence of legis- records remain extant even after an expunge- lative theory and criminal law practice appears ment order, Paragraph M should remove that large. doubt. It provides nothing shall prohibit the The statute also provides for filing proce- introduction of sealed actions to impeach the dures and answers or objections to the petition. credibility of a witness or to provide evidence The order of expungement is discretionary of character as contemplated by §2608 of the with the court even if no objection has been Oklahoma Evidence Code with respect to char- lodged by any party withstanding. Even if an acter evidence. order of expungement is entered, the statute ADDITIONAL PROVISIONS clearly allows access to those records by law Recently enacted, 22 O.S. §19a provides for a enforcement agencies, the district attorney or procedure to bypass the normal expungement the court, without any court order. procedures contained in §19 in the unique cir- Consistent with the language in §§18 and 19, cumstance of a court’s finding that an individ- these expungement orders do not provide for ual was arrested or charged as a result of the destruction of court records. Section 60.18 misappropriation of the defendant’s name, does, however, provide for destruction of subject to the provisions of Paragraphs D-M of sealed material with respect to district court §19 described above. index records. Obliteration and destruction is Section 19b is also a recent statute, titled the authorized at the end of a 10-year period. “Oklahoma Identity Theft Passport Program.” APPEALS This applies to individuals who have obtained an order of expungement as a result of an indi- An expungement action is now considered a vidual committing a crime who has misappro- civil proceeding, and an appeal is to the Okla- priated the applicant’s name and has obtained homa Supreme Court. See In Re Adoption of an order sealing the records pursuant to that Supreme Court Rules for Expungement of Records, statutory authorization. 2005 OK 32, 120 P.3d 861; 22 O.S. §19(c).

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1265 In Knight v. State, 2002 OK CR 19, 46 P.3d 158, 1. Copies of a proposed petition and order of expungement are included at the end of this article. the court ruled that a petition is res judicata and barred applicant who had filed a prior petition from filing a subsequent petition absent proof About The Author of some new harm to privacy or damages of unwarranted adverse consequences which had Allen M. Smallwood is a solo not been previously litigated in the initial peti- criminal defense practitioner in tion. Tulsa. He received a B.S. from CONCLUSION Oklahoma State University in 1972 and his J.D. from the Uni- The only way an individual’s arrest records versity of Tulsa College of Law in or law enforcement records can be expunged is 1974. He has been a member of through the procedures outlined in this article. the Oklahoma Bar Association Though imperfect, Oklahoma’s expungement and the Tulsa County Bar Asso- statutes offer at least a chance for an individual ciation since 1975. He served in to clear his or her record. Therefore, it is impor- the U.S. Marine Corps, 1966-1968. He is a past presi- tant for all attorneys to know that correct use of dent of the Oklahoma Bar Association, the Tulsa the expungement statutes is the best and only County Bar Association and former director of the way to accomplish this goal. Tulsa County Bar Foundation.

IN THE DISTRICT COURT IN AND FOR 2. On ______, this case was dismissed ______COUNTY against the petitioner by the State of Oklahoma. STATE OF OKLAHOMA This case was dismissed in order to charge the correct party. ______, ) Petitioner, ) 3. Pursuant to 22 O.S. §18, counsel submits that ) this dismissal was made within one (1) year and vs. ) Case No. ______the manner in which they were dismissed reflects OKLAHOMA STATE ) OBA # ______that those were dismissals on the merits, justify- BUREAU OF ) ing an order of expungement as provided by 22 INVESTIGATION, ) O.S. §§18 and 19 (see “Exhibits B1 – B3” _____ COUNTY COURT attached). CLERK’S OFFICE, ) 4. Having qualified under the statutory provi- _____ COUNTY SHERIFF’S OFFICE, ) sions referenced above, the petitioner, ______, _____ POLICE requests this Court order this defendant’s criminal DEPARTMENT, ) record expunged and any other relief to which he _____ DISTRICT is entitled pursuant to 22 O.S. §§18 and 19. ATTORNEY’S ______OFFICE, Attorney for Petitioner OBA #_____ Respondents. ) CERTIFICATE OF SERVICE PETITION TO EXPUNGE PURSUANT TO 22 O.S. §§18 AND 19 I hereby certify that on this ______day of ______, 2011, a true and correct copy of The petitioner, ______, through counsel, the above and foregoing Petition to Expunge Pur- ______, pursuant to 22 O.S. §§18 and 19, suant to 22 O.S. §§18 and 19, was mailed by certi- moves to purge and expunge all criminal records fied mail to: for the following reasons: NAMED PARTIES 1. Counsel has attached a copy of the docket sheet in this case (“Exhibits A1 – A______”) ______which reflects that a felony/misdemeanor charge was filed against this petitioner on ______, 20__, alleging: ______.

1266 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 IN THE DISTRICT COURT IN AND FOR all interested parties, petitioner’s criminal records ______COUNTY should be expunged pursuant to 22 O.S. §§18 and STATE OF OKLAHOMA 19. For purposes of this Order, expungement of record shall mean the sealing of all criminal arrest ______, ) records held by any law enforcement agency to Petitioner, ) which this Order applies. ) vs. ) Case No. ______IT IS THEREFORE ORDERED, ADJUDGED, OKLAHOMA STATE ) OBA # ______AND DECREED that the criminal court and BUREAU OF ) arrest records of ______, d.o.b. ______, INVESTIGATION, ) SS# ______, County Case No. ______, _____ COUNTY COURT and any associated NF numbers, as well as this CLERK’S OFFICE, ) ______case number, in the above- _____ COUNTY referenced matter shall be expunged by the Okla- SHERIFF’S OFFICE, ) homa State Bureau of Investigation, the ______POLICE County Court Clerk’s Office, the _____ County DEPARTMENT, ) Sheriff’s Office, the _____ County District Attor- _____ DISTRICT ney’s Office, and the _____ Police Department, in ATTORNEY’S accordance with the language of 22 O.S. §§18 and OFFICE, 19. This Court further finds that nothing in this Respondents. ) Order requires the expungement or purging of internal records of the ______County District ORDER OF EXPUNGEMENT Attorney’s Office. On this ____ day of ______, 2011, the IT IS FURTHER ORDERED, ADJUDGED, petitioner, ______, appears by AND DECREED pursuant to 22 O.S. §19(H), and through his attorney, physical destruction of any criminal justice This Court finds notice of petitioner’s motion records is prohibited by law. Pursuant to 22 O.S. to expunge records has been served by certified §§19(C) and (G), basic identification information mail on the Oklahoma State Bureau of Investiga- is not subject to sealing. tion; ______, ______County Court Clerk; IT IS FURTHER ORDERED, ADJUDGED, ______, ______County District Attorney; _____, AND DECREED the above findings are hereby ______County Sheriff’s Office; and, ______, made the order of this Court and will govern the ______Police Department. This Court rights, duties, and obligations of the parties further finds that all individuals required to be hereto. served by statute to obtain an expungement of criminal records have been served, and that none ______lodges an objection. This Court therefore finds JUDGE OF THE DISTRICT COURT that proper notice has been served on all parties READ AND APPROVED AS TO FORM: required by statute and that the order of expungement should issue. ______Assistant District Attorney OBA # This Court therefore finds, having reviewed all the pertinent documents, the history of this case, ______and heard argument of counsel and input from Attorney for Petitioner, OBA #

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1267 1268 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 CRIMINAL LAW U.S. Supreme Court Illuminates Constitutional Burden Defense Attorney Must Inform Clients of Immigration Consequences before Plea By Kelly Basey efore deciding whether to plead guilty in a criminal case, a defendant is entitled to the effective assistance of competent Bcounsel. In May 2010, the U.S. Supreme Court decision in Padilla v. Kentucky illuminated the constitutional burden on criminal defense counsel to inform the noncitizen client of the risk of deportation of a criminal plea. Padilla v. Kentucky, 130 S. Ct. 1473 (2010). The court holds if counsel fails to do so, the first prong of a two-prong test set out by the court in Strickland v. Washington, 466 U.S. 668 (1984) is automatically satisfied. Before Padilla, the Okla- homa Court of Criminal Appeals held an attorney had no duty to inform his noncitizen clients about the deportation consequences of the criminal plea, but rather not to misinform if asked. State of Okla- homa v. Marcos Rodriguez, unpublished opinion, PC-2009-326 (Dec. 21, 2009). However, Padilla increases the burden by holding not only is mis-advice unconstitutional but also failure to advise clearly fails to meet an objective standard of reasonable performance for effective assistance of counsel as required by the Sixth Amendment of the U.S. Constitution. Padilla, at 12. The reasoning in Padilla shed light on Oklahoma criminal lawyers’ duty to inform noncitizen clients of the deportation consequences of a criminal plea.

REASONING OF PADILLA V. KENTUCKY for the court that the deportation consequences are so tightly intertwined with the criminal con- In a 7-2 decision, the Supreme Court in Padilla sequences that a noncitizen must be advised holds that legal counsel for a noncitizen charged before he pleas. Padilla, at 6. Herein, the court with a crime has a constitutional obligation to throws out the prevailing argument of whether tell the client the deportation consequences of a the immigration consequences are a “collateral guilty plea. Justice Stevens writes in his opinion matter” to the criminal proceeding. Id. The court

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1269 reasons that due to changes in immigration entry of a particular plea, “the defense attor- law which dramatically raised the stakes of a ney’s duty to give correct advice is equally noncitizen’s criminal conviction, the deporta- clear.” Id., at 12. Since Padilla’s defense attor- tion consequences of a criminal plea are an ney failed to do this, the first prong of the integral part of the plea process. In fact, Ste- Strickland test was satisfied. Id., at 9. (The sec- vens describes deportation as “an integral part, ond prong was not discussed in this opinion.) indeed, sometimes the most important part of The court divides the requisite advice into two the penalty that may be imposed on noncitizen categories. First, are the “obvious” deportable defendants who plead guilty to specified offenses for which an attorney must advise the crimes.” Id., at 6. He also states that: client that he will be automatically deported for ...deportation as a consequence of a criminal pleading guilty. Second are the not so obvious conviction is, because of its close connection offenses which may cause deportation for which to the criminal process, uniquely difficult to the attorney must advise the client that he may classify as either a direct or a collateral con- be deported. Immigration law is a very turbu- sequence. The collateral versus direct dis- lent area. It requires a thorough knowledge of tinction is thus ill-suited to evaluating a the many laws and cases compiling the immi- Strickland claim concerning the specific risk gration statutes. Stevens addresses this by offer- of deportation. Id., at 8-9. Citing Strickland v. ing the duty of the lawyer in the majority of less Washington, 466 U.S. 668 1984. straightforward cases: Justice Stevens cites the lack of discretion in “The duty of the private practitioner in immigration law regarding who will be deport- such cases is more limited. When the law is ed. Over the century, much discretion has been not succinct and straightforward...a crimi- stripped from the immigration law judge and nal defense attorney need do no more than deportation is a matter of statutory confine. Id., advise a noncitizen client that pending at 3-6. Justice Stevens wrote, “In 1996, Congress criminal charges may carry a risk of adverse also eliminated the attorney general’s authority immigration consequences.” Id., at 12. to grant discretionary relief from deportation...” Justice Alito filed an opinion in which Chief Id., at 6 (internal citations omitted). Justice Roberts joined, concurring in the judg- The result of criminal defense counsel not ment. The opinion is terse, compelling and informing the noncitizen client satisfied the first revealing regarding the problems criminal prong of the Strickland test for ineffective assis- defense counsel may have in determining the tance of counsel. “The proper measure of attor- deportation consequences of the criminal plea. ney performance remains simply reasonable- It clarifies that the duty of counsel extends not ness under prevailing professional norms. Padil- only to warn the noncitizen client of the gen- la, at 9 (quoting Strickland, 466 U.S. at 688). To eral risk of removal, but also, counsel in some determine this, Justice Stevens acknowledges cases, must specify what the removal conse- the helpful role that professional bar associa- quences would be. It goes on to describe that tions play in identifying what constitutes rea- various immigration laws are so ambiguous sonable representation. Id., at 9. “The weight of and complex, for example, it may be difficult prevailing professional norms supports the for counsel to determine even whether a par- view that counsel must advise her client regard- ticular disposition is a “conviction” for immi- ing the risk of deportation.” The court reasoned gration purposes. the weight of prevailing professional norms PRACTICAL ADVICE FOR CRIMINAL supports the view that counsel must advise her DEFENSE COUNSEL client regarding the risk of deportation. Id. As a result of Padilla, criminal defense coun- The opinion states that the issue of not sel are now aware of the duty to advise the informing fails to meet an objective standard of noncitizen client of the deportation conse- reasonable performance. “This is not a hard quences of a criminal plea. Consequently, the case in which to find deficiency: The conse- first duty of the criminal defense counsel now quences of Padilla’s plea could easily be deter- includes ascertaining whether the client is a mined from reading the removal statute, his noncitizen. “Noncitizen” includes authorized deportation was presumptively mandatory, and unauthorized persons living in the United and his counsel’s advice was incorrect.” Id., at States. (U.S. Census Bureau, Current Popula- 11. When deportation will clearly result from tion Survey, Annual Social and Economic Sup-

1270 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 plement, 2008). As a result, practitioners should could change tomorrow and cause him to be determine the immigration status of every sin- deportable tomorrow although his criminal gle client. Citizenship of an individual cannot plea does not make him deportable today. be determined by any color of skin, accent, Thus, all noncitizen clients must be informed working status, social status or customary inte- that any criminal plea could cause deportation gration. For example, there are numerous non- in the future. citizens living in Oklahoma from both Mexico As this is a relatively new decision, there are and Canada with no visible signs of nonciti- many unsettled questions. For example, the zenship. Likewise, there are many naturalized question as to whether Padilla applies to American citizens with a heavy accent and “deportation” consequences only or if it also minimal integration. Thus, a practitioner would applies to other “immigration consequences” be wise to abandon all preconceived notions of as in the case of a noncitizen, who due to a what a noncitizen looks or sounds like. criminal plea in the United States, is prohibited A practical consideration for the criminal from returning to the United States after a for- defense attorney goes deeper than the initial eign visit. Also, there is an unresolved question determination of the citizenship of the client. as to whether Padilla should be applied retroac- The deportation consequences of a criminal plea tively to past pleas. These issues are being may differ based on the type of immigration raised in various jurisdictions. status the client holds. Some examples are: legal In light of Padilla, the criminal defense attor- permanent resident versus non-legal permanent ney must first ascertain the citizenship and resident status; various types of non-immigrant particular immigration status of the noncitizen visas versus undocumented entry; visa over- client. The attorney must then explore the stays versus refugees. Counsel, to protect her deportation consequences as it pertains to the client and herself, should determine upon first individual in relation to his current immigrant consultation with the client the exact immigra- status. Finally, the attorney must explain this tion status of any noncitizen client. information to the client before the client Although the Supreme Court in Padilla did decides what course of action to take in a not discuss the second prong of Strickland, it is criminal proceeding. These additional require- important to note in order to find ineffective ments provide for a heavier professional duty assistance of counsel, the second prong of than Oklahoma criminal defense lawyers have Strickland must also be satisfied. Strickland at been accustomed to in the past. 695. The second prong includes the finding Author’s Note: Many thanks to my esteemed that the client was prejudiced by the lack of mentors — my dad, Harry E. Brown Jr., Esq. and advice. The defendant must show there is a E. Vance Winningham, Esq. reasonable probability but for counsel’s unpro- fessional errors, the result of the proceeding would have been different. Strickland, supra. Oftentimes, in the criminal context, this comes About The Author down to a finding of whether the client would Kelly K. Basey earned two under-

have demanded a jury trial instead of pleading if he had known the deportation consequences graduate degrees from OSU and a of his plea. Juris Doctorate from OU law school. She served as assistant dis- Finally, in delivering the required informa- trict attorney in Oklahoma County tion regarding the immigration consequences for 12 years before focusing her of the criminal plea to your noncitizen client, it practice for the last six years exclu- is important to note that the constitutional ex sively on immigration, naturaliza- post facto prohibition does not apply to immi- tion and consular law with Win- gration law. See Bowen v. Georgetown University ningham & Stein (now Winningham, Stein & Basey). Hospital, 488 U.S. 204 (1988). Therefore, what- She is a frequent speaker, on the Board of Directors for ever the immigration law is now, it may change Girl Scouts of Western Oklahoma and is involved in in the future and be applied to your client ex various charitable and legal organizations. post facto. Whatever counsel tells a client today,

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1271 1272 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 CRIMINAL LAW Cross Examination of the Eye Witness By Bob Ravitz

“ hat’s the man who did this. I will never forget his face.” How many times is the trial lawyer confronted with this Tstatement by a witness who just wants to tell the truth, who has no motivation to lie and whose testimony will be believable? This type of evidence is commonplace in criminal cases and is one of the most powerful forms of evidence a prosecutor can produce. How then should a criminal defense attorney confront this evidence, deal with it, or use it to his client’s advantage? This paper attempts to identify ideas, concerns and rules that the good lawyer can utilize to overcome this unbelievably damaging testimony from the experience of a long-time criminal defense lawyer who has experienced this situation countless times.

RULE 1: FACTORS TO CONSIDER IN defendant is guilty, strengthening eye wit- TAILORING THE EYE WITNESS ness identification. CROSS-EXAMINATION • Even though a life-threatening situation may The defense attorney must understand some be vividly described in the witness’s mind, a of the problems of everyday misidentification life-threatening situation usually increases and attempt to establish these facts through the likelihood of misidentification. cross-examination in hopes that the jury will be able to relate to these facts in the defense’s clos- • Eye witnesses tend to over-state the actual ing argument. Such has been established by time of the event. numerous studies and confirmed by my experi- • How photo lineups or regular lineups are ence over the years. Such includes: presented affects identification. • The presence of a weapon generally impairs • The information observed or discussed after the accuracy of the identification. the event such as a show-up, a lineup, a pic- • Cross-racial identification is less reliable torial show-up may be incorporated into the than same-race identification. memory of the witness. • Little correlation exists between self confi- • Witnesses do not observe everything avail- dence of the witness and accuracy of the able to be observed but instead selectively identification. associate data. • Self confidence and accuracy may exist as a • Our ability to identify strangers is weak, result of a belief supplied by others that the thus resulting in underlying unreliability.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1273 • High numbers of misidentifications occur RULE 2: CONSIDER ALL even under good physical conditions. CHARACTERISTICS OF THE WITNESS • The longer the period of time between the Establish these factors on cross-examination occurrence and the identification subjects if they are helpful. They can assist you in estab- the identification to greater unreliability as lishing points that weaken the in-court identi- long-term memory is subject to embellish- fication. ment, incorporation and decay. • Physical characteristics — age, physical • An observation of what seems to be an disabilities or impairments, sight, glasses, unimportant event creates a high rate of contact lenses, near-sighted, far-sighted or misidentification. both, wearing glasses or contacts that day, last time eyes checked. • Most police place defendant’s pictures number two in a photo show-up or num- • Occupational issues — current job, previ- ber two in a line-up. ous employment, work with people, type of people and age/race, job duties, do they • Crime victims want crimes solved. work with sizes and shapes, i.e. robbery of • A witness who has seen an offender before a clothing store. in another context may subconsciously • Other impairments — drinking alcohol or identify the defendant at a later time. using drugs and, if so, frequency and tim- Many suggestions, listed below, have been ing of such, including day of event, hours made to make the identification process more of sleep, allergies. favorable. The defense lawyer should see if the • Locale — current and previous home police utilized any of these, or if the same was addresses, number of cross-race visits in established as a fact to the jury. home, number of cross-race contacts with • Administer the line-up by a person who others on a daily basis, personal relation does not know which member of the line- with cross-race individuals. up is the true suspect to avoid inadvertent RULE 3: ADDITIONAL FACTORS FOR tip-offs. CONSIDERATION CONCERNING THE • Have the witnesses view the line-up one at INITIAL EVENT a time, rather than all together. • Lighting – artificial, location, time of day of • Prohibit talking between the witnesses as incident, shadows, sunlight, overcast, to the identification process at any time, glare. even when the initial reports are taken by • Other people in vicinity when the incident the police. first started, who were they, where were • Inform witnesses beforehand that the actu- they, what were they doing when the inci- al perpetrator might not be in the line-up dent first started or picture show-up. • Establish distance between witness and • Ensure the show-up contains 10-12 photo- perpetrator graphs. 1. Where was witness standing when he • Confirm that officers write down when first observed the perpetrator? pictures shown, where, to whom, how and 2. Was there anything unusual about the any previous show-ups where someone perpetrator when he was first observed? was not identified should be obtained. 3. Identify objects to determine distances if • Provide the names and pictures of show- necessary. What was the witness doing, up or line-up participants to publish the what was the perpetrator doing? same to the jury. 4. Where did perpetrator go, what did per- • Consider sequential police line-ups. Show petrator do, what did witness do? six persons one at a time or consider sequential photographic show-ups one pic- 5. How was the witness able to observe, eye- ture from a pool of potential suspects. to-eye, corner of eye, turn head, mirror.

1274 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 6. Ask other witness to describe last person who left before the incident began. Police procedures are a 7. When the perpetrator left, did he go out the front or back, what were you doing, fertile field for demonstrating the did the perpetrator leave fast, slow, or normal, back up, turn and leave, did you unreliability of the identification see whether he got into a vehicle, which way he went procedure. • Looking at gun • Emotional status — afraid? • Skin — scars, tattoos (description), warts, • Detail scene pimples, acne, birthmarks, any other marks, color (black is not an answer), tan, texture • Barriers or obstacles to sight (smooth or rough). • Reenact if it helps • Other characteristics — glasses (including RULE 4: IT IS NOT WHAT THE WITNESS absence thereof), glass frames, sunglasses, SAYS HE SEES THAT IS IMPORTANT — distinguishing features, color; voice accent, IT IS WHAT HE DOESN’T SEE. what was said, Hispanic, English, ordinary talker, talked fast, talked slow; anything It is important to consider questions on char- else out of place. acteristics witness has not described or has not accurately depicted or described. Obviously, • Weapons — kind, color of barrel or grips pretrial discovery can assist defense attorneys and knife, length of barrel or knife, style in identifying what questions to ask, but if the and shape of gun or knife. Note: the hand lawyer does not have sufficient pretrial discov- the weapon is in is often critical to the ery and the witnesses will not speak to him, identification. sometimes the best cross is a discovery cross RULE 5: THE IDENTIFICATION and while contrary to one of the general rules of cross-examination — never ask a question Cross is not limited to what the witness says you do not know the answer of — it can be on direct, but encompasses all events surround- extremely helpful in proving the unreliability ing the identification prior to the testimony. of the identification. A question like “What was Police procedures are a fertile field for dem- the height you described to the police,” is very onstrating the unreliability of the identification effective if there is no height in the police procedure. In preparing the cross-examination, report if the height differed substantially from lawyers should consider all local police proce- the defendant, or when the witness states “I dures through policy and procedure manuals didn’t describe one,” or “I don’t remember.” or unwritten policies that spell out how to deal The following is a list of characteristics about with the identification process and identify the offender which you may consider. whether these techniques were used in your • Physical characteristics – weight, height, case and examine in detail their reliability. If age, hair color/length, sideburns, hairline, the police failed to do something their manual body hair, facial hair/color/size/goatee/ requires which has the potential to affect the mustaches. Also, ears, teeth/dental work, identification, it should be brought out on nose, eyes (color, thickness of lashes), head cross-examination in detail as to the content of or head size, mouth and lips (thickness), policies that might be considered objection- forehead, hand/hand size, finger/finger able, suggestive or areas which could lead to misidentification. The truthful citizen witness size, fingernails, build. who has been victimized by the process and • Clothing — always include color, style, pat- procedures of the police are a fertile way of tern, and other characteristics; shoe type, demonstrating misidentification. socks, shirt (how fastened), pants, belt, coat/ • Actions by police/prosecutors — Identify jacket (open or closed), hat, tie, scarf. what was said and done by the officers • Jewelry — chains, watches, bracelets, rings, intentionally or inadvertently prior to the piercings. identification process, during the identifi-

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1275 cation process, or after the identification 9. How many of the age you had process. described 1. Identify conversations by the officer to the • Number of pictures you narrowed it down to witness or to other officers overheard by 1. Defendant was the only one that looked the witness that give signals or nudge the like the man you described witness to an individual person. Com- ments such as “he may not look the same” 2. You relied upon police to present you or a discussion of characteristics or fair samples of suspects description of the individual previously given by the witness are examples of these 3. What distinguishing feature about the types of signals. Understand that praise picture caused individual to identify by the officers gives the witness more con- defendant fidence in the identification. • What did police say before and after you 2. Discovery of the prosecutor’s discussion picked out picture with the witness prior to preliminary 1. Tell you that you were right hearing or any hearing or trial is also important. What was said, when it was 2. Tell you may not look the same said, why it was said and how it was said • Talk to other person before identifying. may all be fertile grounds for attacking Overheard other person before identifying. the identification. The prosecutor’s dis- What was said when you were asked to cussion of the strength of the case, the come and view. Talk to other people after technical evidence and other eye witness’s identification. Other people present when descriptions or identifications may turn a you picked out pictures. Names. tentative identification into absolute cer- tainty by the time she takes the witness • The Line-up. stand. What may be an innocuous com- 1. D id witness see pictures before line-up? ment to you or me or to the juries may be If so, when, where, who present, what extremely important in the overall identi- was said, did witness pick out anyone? fication. You must identify what the witness thought of what was said. 2. What happened day of the line-up? 3. Statements made when the witness was 3. Was witness called by the police to pick called to the identification process can also someone out of a line-up? be extremely influential in helping the wit- 4. What else did police or prosecutor say ness pick out the potential suspect. prior to line-up? • Pictures Seen After Crime — length of time 5. You expected the perpetrator to be in the after crime, where and how viewed, num- line-up. ber of photos seen. 6. Were other people present? Who, where? 1. Number seen at same time 7. Did you talk to others? 2. Were pictures black and white, in color or mixture 8. Discuss characteristics of the perpetrator. Were you told the perpetrator may no 3. Mug shots with police numbers on longer look the same? them 9. What did others in line-up look like? 4. How many white, black, Hispanic 10. What number did you pick out? 5. How many with mustache, beard 11. Length of time you viewed each subject. 6. How many with blue, brown, green, etc. Did you ask to see any subjects more eyes than once? 7. How many matched weight and build 12. Other witnesses viewing line-up. Who, 8. Unable to observe height did you recognize any of these other witnesses?

1276 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 13. Were all individuals in the line-up same RULE 6: DON’T OVERKILL CROSS OF color, height, and basic description, CITIZEN WITNESS wearing same clothes? Generally, the identification witness is a wit- 14. Other distinguishing characteristics ness who the defense attorney desires to portray about any individual in line-up. as honest but having a faulty memory or a memory that was tainted by police or prosecuto- 15. After viewing, where did you go? rial tactics, either intentionally or inadvertently, 16. Who else was present when you were preferably inadvertently. A less aggressive cross, placed in a new location, what was therefore, is the preferred method. The defense said? lawyer should not attack this witness like he would a snitch with a history of prior convic- • Preliminary Hearing tions. The witness is not lying — she is mistaken. Oftentimes it helps for the jury to realize Failure to recognize this tends to cause the jury the only individual at the preliminary to sympathize with the witness and the points hearing that was seated next to the lawyer that the lawyer is making with the witness often go over the jury’s head because of their concern was the individual the witness was going for the witness. Use a soft touch. Jurors are per- to identify. Describe in detail the room and suaded by a story of “I don’t know,” “I can’t the circumstances behind the identification remember.” Subtlety is the key. This is how to at preliminary hearing if it is helpful. win points with the jury. 1. Person you identify – black, white, His- RULE 7: SAVE IT FOR CLOSING, panic, Asian, etc. DON’T ASK WHY 2. Sitting in front of rail in jail coveralls A string of “I don’t know,” “I don’t recall” [orange, red, etc.] answers or “I am not sure,” is ruined if a law- 3. How many black, white, Hispanic, etc. yers asks a “what” or “how” question. Avoid it were in front of the rail in jail coveralls at all costs, stay under control and save your whys for closing. 4. How many black, white, Hispanic, etc. are in the courtroom RULE 8: MAKE USE OF INCONSISTENCIES AND OMISSIONS 5. How many males/females WITH THE IDENTIFICATION 6. How many match general description of • Consider different stories the person that robbed you that night. • Consider differences in the identification 7. Did you expect the defendant to be in the between different witnesses at the time courtroom? they observed the event. 8. Did you look in the door before you • Consider the ability of those witnesses to came in the courtroom at any time this relate and explain past occurrences. date? • Study different descriptions made by the 9. D id you see somebody that resembled same witness or by different witnesses. the person that robbed you • Identify the different procedures done by 10. Did you discuss that identification with witnesses (i.e.: if a witness identifies your anyone client but their identification procedure was different from the witness that doesn’t 11. Did you discuss that identification with identify your client), this might be effec- the prosecutor tively pointed out. 12. Whether to or not — did he tell you to • Who had the better view look around the courtroom before making your identification • Who was less scared • Whose identification procedure is more 13. Fair statement – if he did, that you reliable figured that the person was in the courtroom

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1277 CONCLUSION About The Author The defense attorney should remember that the identification is not limited to what the wit- Bob Ravitz has served as Oklahoma County public ness says on direct, but encompasses all events defender since 1987. He is also an adjunct professor at surrounding identification prior to the testi- OCU School of Law, teaching in the areas of trial prac- mony. He should consider all factors that may tice, capital litigation and criminal procedure. He fre- make the identification unreliable and lock in quently lectures on topics related to the practice of witnesses where conflicting descriptions of the criminal law, and was the 1996 winner of the Clarence defendant by different witnesses exist. Making Darrow Award, recognizing Oklahoma’s outstanding the eyewitness account unreliable in front of criminal defense lawyer. He is a 1976 graduate of the the jury could be the reasonable doubt needed OCU School of Law. for an acquittal.

NOTICE OF JUDICIAL VACANCY The Judicial Nominating Commission seeks applicants to fill the following judicial office: Associate District Judge Twentieth Judicial District Marshall County, Oklahoma This vacancy is created by the retirement of the Honorable Richard Miller effective July 1, 2011. To be appointed an Associate District Judge, an individual must be a registered voter of the applicable judicial district at the time (s)he takes the oath of office and assumes the duties of office. Additionally, prior to appointment, the appoin- tee must have had a minimum of two years experience as a licensed practicing attorney, or as a judge of a court of record, or combination thereof, within the state of Oklahoma. Application forms can be obtained online at www.oscn.net by following the link to the Okla- homa Judicial Nominating Commission or by contacting Tammy Reaves, Administrative Office of the Courts, 1915 North Stiles, Suite 305, Oklahoma City, Oklahoma 73105, (405) 521-2450, and should be submitted to the Chairman of the Commission at the same address no later than 5 p.m., Wednesday, May 25, 2011. If applications are mailed, they must be postmarked by midnight, May 25, 2011. Allen M. Smallwood, Chairman Oklahoma Judicial Nominating Commission

1278 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 BAR NEWS OBA Nominating Petitions (See Article II and Article III of the OBA Bylaws) BOARD OF GOVERNORS SUPREME COURT JUDICIAL DISTRICT NO. 6 Kimberly K. Hays, Tulsa Nominating Petitions have been filed nominating Kimberly K. Hays for election of Supreme Court Judicial District No. 6 of the Oklahoma Bar Asso- ciation Board of Governors for a three-year term beginning January 1, 2012. A total of 131 signatures appear on the petitions.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1279 1280 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 CRIMINAL LAW The Oklahoma Indigent Defense System — What It Is and Who It Serves By Craig Sutter henever the phrase “criminal justice system” is invoked, the first thing that often comes to mind are law enforce- Wment, prosecutorial and corrections functions. However, indigent defense services are a part of that system and are critical in ensuring its effective operation. The Oklahoma Indigent Defense System (OIDS) is the state agency responsible for fulfilling the majority of the state’s obligations under the United States and Oklahoma Constitutions to provide trial, appellate and capital post-conviction criminal defense representation to persons who have been judicially determined to be entitled to legal counsel at state expense.1 GENESIS OF OIDS exceed $500 from initial appearance through the final disposition.2 Court appointment in a com- With the Sixth Amendment right to counsel plex criminal case, such as a death penalty case, operating in the background, OIDS was created could destroy an attorney’s legal practice and in response to a lawsuit challenging the consti- potentially short-change the client. tutionality of the prior compulsory court- appointment process. In State of Oklahoma v. In the Lynch case, the Oklahoma Supreme Lynch, 1990 OK 82, 796 P.2d 1150, the Oklahoma Court analyzed statutes relating to court- Supreme Court considered that process requir- appointments and the practical effect the scheme ing attorneys to represent indigent defendants had on reluctant attorneys and their clients. The without adequate compensation. Under the sys- court concluded that 1) although the capital case tem prior to the Lynch decision, attorneys might court-appointment statute in effect at the time appear at a civil motion docket and then find was not facially unconstitutional, under the facts themselves appointed on an indigent criminal presented, it was unconstitutional in its applica- case regardless of their desire to be appointed tion; 2) the court-appointment system in effect at and despite their lack of experience in the area the time pressed lawyers into service without of criminal law. At that time, the statutory fee for affording a post-appointment opportunity to capital murder cases was $200 for services before show cause why they should not be forced to the preliminary hearing, $500 for services dur- accept the appointment; and 3) the court- ing the preliminary hearing and $2,500 for legal appointment statute provided an arbitrary and services from time the defendant was bound unreasonable rate of compensation for lawyers over until final disposition of the case. The com- which may have resulted in an unconstitutional pensation for felony and misdemeanor cases taking of private property depending on the varied by county, but ultimately could not facts of each case.3 The court proceeded to adopt

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1281 a statewide system for compensation of court- certification proceedings and youthful offender appointed attorneys tied to the compensation proceedings.9 OIDS further represents its court- rates for district attorneys and their assistants. appointed capital clients in certiorari petitions to That compensation rate became effective imme- the U.S. Supreme Court.10 OIDS does not provide diately with respect to computation of fees in trial representation to indigent defendants all capital murder cases and was to become charged in either Oklahoma or Tulsa County effective on Aug. 24, 1992, with respect to non- District Court, which have their own public capital cases, in order to allow the Oklahoma defender systems, but under certain circum- Legislature time to address the problem in the stances does provide representation to defen- interim.4 dants convicted in those counties on appeal, as discussed below.11 OIDS does not provide repre- The Legislature took up the Lynch court’s sentation in non-capital post-conviction cases, invitation by enacting the Oklahoma Indigent mental health cases, in-need-of-supervision pro- Defense Act, 22 O.S. §§1355 et seq., effective ceedings or juvenile proceedings which are civil July 1, 1991. The act created OIDS and imposed in nature.12 major changes in funding and delivery of criminal defense services at both the trial and While steadily increasing over the years, the appellate levels. agency’s total caseload has experienced a recent dramatic spike. From the period of July 1, 2009, AGENCY STRUCTURE AND HOW SERVICES ARE PROVIDED through June 30, 2010, OIDS provided legal representation in a total of 43,883 cases, an OIDS is governed by a five-person Oklahoma increase of over 11 percent from the previous Indigent Defense System Board.5 The OIDS fiscal year. Projections for the current fiscal executive director is the agency’s chief execu- year show an additional jump in the agency’s tive officer.6 The agency’s main office is located overall caseload. in Norman, with six satellite offices operating Non-Capital Trial Division throughout the state.7 The agency consists of three program areas: the General Operations The OIDS Non-Capital Trial Division is Program, the Trial Program and the Appellate responsible for providing trial defense services Program. The General Operations Program to its court-appointed clients in 75 of 77 Okla- encompasses the Executive Division, which homa counties (the exception being Oklahoma provides all administrative, finance and com- and Tulsa Counties). The majority of OIDS puter operations services and support through- cases are assigned to the division, which liti- out the agency. The Trial Program, which gates everything from district court traffic involves services to court-appointed clients at cases punishable by incarceration to first degree the district court level, consists of the Non- murder cases not involving the death penalty. Capital Trial Division, the Capital Trial Divi- The division’s main office is located in Nor- sion — Norman and the Capital Trial Division man. The division, through its chief and depu- — Tulsa. The Appellate Program, which pro- ty chief, is primarily responsible for directing vides representation before the Oklahoma and administering services provided by attor- Court of Criminal Appeals, consists of the Gen- neys and support staff within the division’s eral Appeals Division, the Homicide Direct five satellite offices as well as the services pro- Appeals Division and the Capital Post-Convic- vided by agency contract attorneys and expert tion Division. providers. The threshold requirement for OIDS repre- In 56 Oklahoma counties, the division pro- sentation is that, upon submitting a proper vides non-capital trial representation through application to the court, a defendant must be private attorneys who enter into flat-rate fiscal judicially determined to be indigent and unable year contracts (commonly referred to as county to employ counsel.8 OIDS is then responsible contracts) with the agency. Each year, the Indi- for representing indigent defendants at trial in gent Defense System Board solicits and consid- the district courts throughout the state and on ers offers from private attorneys to enter into appeal before the Oklahoma Court of Criminal these contracts, and considers offers by con- Appeals in all capital, felony and misdemeanor tracting attorneys to renew existing contracts.13 cases, state district court traffic cases punish- Most county contracts have one or more par- able by incarceration, juvenile delinquency pro- ticipating attorneys who assume a share of the ceedings, adult certification proceedings, reverse assigned caseload and are available to handle

1282 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 cases in which the contracting attorney or other provides representation in 29 counties in the participating attorneys may have a conflict of eastern part of the state. Both offices are interest which would preclude representation. assigned each other’s conflict of interest cases. Among the factors the board considers in In those instances where neither office can pro- awarding these county contracts are the quali- vide representation to a client due to a conflict fications of the contracting and participating of interest with both divisions, the agency attorneys, the number of attorneys available to enters into a contract with qualified private handle the caseload, how many different law counsel to represent the client. firms are involved so as to reduce the number of conflict cases that would otherwise be reas- General Appeals Division signed to conflict counsel or agency staff, and The OIDS General Appeals Division, located of course, the cost of the contract. Many of in the OIDS Norman office, litigates non-capital these contracts cover multiple counties. direct appeals (direct appeals are statutory For various reasons, the agency experienced appeals to the Oklahoma Court of Criminal problems in securing adequate fiscal year con- Appeals as a matter of right upon conviction). tracts in certain geographical regions of the The division’s caseload, like that of the Non- state. OIDS responded to this need by establish- Capital Trial Division, covers everything from ing Non-Capital Trial Division satellite offices district court traffic appeals involving incar- staffed with agency attorneys, investigators and ceration to first degree murder cases with sen- support personnel.14 These offices are located in tences short of death. Non-capital direct appeals Clinton, Guymon, Mangum, Okmulgee and by indigent defendants are assigned exclu- Sapulpa, serving a total of 19 Oklahoma coun- sively to OIDS in 75 of 77 Oklahoma counties, ties. The agency further employs an attorney with the division assigned to litigate direct who travels throughout the western half of appeals arising out of Oklahoma and Tulsa Oklahoma litigating non-capital trial cases in Counties only where the defendant was not which a conflict of interest precludes satellite represented at trial by the county public office attorney representation.15 defender, or where a conflict of interest exists between defendants on appeal. The division OIDS also contracts with private attorneys to and its caseload was the subject of the Harris v. litigate conflict-of-interest cases that cannot be Champion litigation, discussed below, which handled by any attorney on a county contract or an agency satellite office. Contracts are also reinforced the need for adequate resources and entered into in what are termed “overload staff enabling the division to meet briefing cases” when staff attorney caseloads become deadlines. In the past, overload contracts with excessively burdensome. Funding reductions private attorneys lessened the excessive case- due to the statewide budget crisis have, how- load carried by division attorneys, but with ever, effectively ended overload contracts and recent funding reductions, the agency has tem- substantially reduced the number of conflict of porarily ceased contracting such appeals. interest contracts, resulting in increased case- Homicide Direct Appeals Division loads for staff attorneys and contractors. The Homicide Direct Appeals Division, pre- Capital Trial Divisions viously named the Capital Direct Appeals As with the Non-Capital Trial Division, the Division, litigates all death penalty direct agency’s Capital Trial Divisions provide legal appeals as well as all homicide appeals filed representation in 75 of 77 Oklahoma counties, with the Court of Criminal Appeals. Where a excluding Oklahoma and Tulsa Counties. This conflict of interest arises, however, the appeal representation is provided to court-appointed is generally assigned to private contract coun- clients who are charged with first degree mur- sel if the case is capital, or to the General der and face a sentence of death, life without Appeals or Capital Post-Conviction Division if parole or life with parole. The caseload is non-capital. The division is required, where divided between the agency’s two capital trial warranted circumstances of a case, to file a offices. The Capital Trial Division — Norman petition for certiorari before the U.S. Supreme office litigates cases in 46 counties, roughly Court when the client is unsuccessful at the covering the western and central parts of the state appellate court level. As with the General state. The Capital Trial Division — Tulsa office Appeals Division, Homicide Direct Appeals (a satellite office actually located in Sapulpa) litigates all appeals arising out of 75 Oklahoma

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1283 counties, and in certain cases, from Oklahoma services which satisfy the state and federal con- and Tulsa Counties as well. stitutions. OIDS was the subject of two seminal cases demonstrating the extent of the adverse Capital Post-Conviction Division impact on the criminal justice system when the Pursuant to the Indigent Defense Act and agency has insufficient resources to adequately Capital Post-Conviction statutes, the OIDS represent its clients. Capital Post-Conviction Division is appointed The first is Harris v. Champion, et al., 15 F.3d to all capital post-conviction cases arising from 1538 (10th Cir. 1994), a federal habeas corpus all Oklahoma counties. Capital post-conviction case filed by numerous Oklahoma Department cases are commenced upon the filing of an of Corrections prisoners, many of whom wait- application for post-conviction relief with the ed three or more years before a brief was filed Court of Criminal Appeals within 90 days of on their behalf on direct appeal to the Oklaho- the filing of the appellant’s brief (or reply brief) ma Court of Criminal Appeals.19 The named in his or her pending capital direct appeal.16 respondents included OIDS and its governing The division also litigates conflict appeals reas- board, as well as judges of the Oklahoma Court signed from the Homicide Direct Appeals and of Criminal Appeals. The court stated that a General Appeals Divisions. delay beyond two years is presumptively Special Services excessive, and delays due to underfunding or any mismanagement of resources are not a An indigent defendant’s right to expert assis- constitutionally sufficient justification.20 The tance was established by the U.S. Supreme Court court noted possible violations of the equal in Ake v. Oklahoma, 470 U.S. 68 (1985). Such assis- protection and due process clauses to the U.S. tance covers a broad range of disciplines, from Constitution, as well as the right to effective crime scene reconstructions to client psychologi- assistance of counsel under the Sixth Amend- cal assessments. Expert assistance will generally ment. The backlog and eventually the case include evaluations, reports, consultation and itself was resolved with additional funding often in-court testimony at trial or other pro- appropriated by the Legislature to OIDS and ceedings. In light of the Ake decision, OIDS is the attorney general’s office to contract with required to furnish necessary expert services, attorneys to handle the excessive number of which it accomplishes through contracts with appeals. various expert service providers, as well as conducting in-house case psychological eval- Another important case demonstrating the uations and assessments through the Psycho- need for sufficient indigent criminal defense logical Services unit.17 The provision of expert resources is Bednar v. District Court of Kay services, in light of a limited budget, require County, 2002 OK CR 41, 60 P.3d 1. This case an in-depth analysis of whether services are arose during the 2002 statewide funding crisis necessary, the type of services needed and which resulted in the inability of the agency to who should provide those services. In recent enter into conflict-of-interest legal representa- years, DNA testing has evolved to become a tion contracts with private attorneys (in cases critical issue arising in many criminal prose- all over the state). This in turn led to contempt cutions. Through DNA testing of evidence in proceedings lodged against the agency’s exec- old cases, OIDS exonerated six clients who utive director in the District Court of Kay served substantial prison time for crimes they County. A petition for writ of prohibition was did not commit.18 filed in the Court of Criminal Appeals seeking to dismiss the contempt citation. A CRUCIAL LINK IN THE CRIMINAL JUSTICE CHAIN In its opinion, the Court of Criminal Appeals first held that contempt proceedings were not OIDS is funded primarily with state appro- properly before the court, concluding other priated dollars, supplemented with funding adequate remedies existed. However, the court through statutory fees assessed to clients (upon stated that the issues presented in the case conviction or plea bargain) by the courts at the were complex and involved multiple conflict- conclusion of representation. The recent eco- ing constitutional and statutory provisions, nomic downturn, coupled with a substantial such as the prohibition from entering into a increase in the number of court-appointed contract if unencumbered funds are unavail- cases, has put increased pressure on the agen- able. The court further stated that the case cy’s ability to ensure continued legal defense raised important separation of powers ques-

1284 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 tions and potential conflicts in jurisdiction nents and ensuring all court-appointed clients between the Oklahoma Court of Criminal receive an effective defense, while keeping Appeals and the Oklahoma Supreme Court. costs to a minimum and stretching available The court affirmed the state’s ultimate respon- funding as far as possible. Finally, despite the sibility to provide counsel, regardless of wheth- bleak statewide budget picture, OIDS has been er counsel is furnished and paid by OIDS, the able to continue meeting the agency’s and the court fund or the general fund.21 The court state’s constitutional obligations to the citizens ordered the district court to provide counsel at of Oklahoma through the support it receives state expense by a certain date, or the defen- from members of the Legislature and the Office dants in the underlying criminal cases would of the Governor. be released from jail.22 1. An indigent’s right to court-appointed counsel in a felony pros- In order to avoid the release of defendants ecution was established by the U.S. Supreme Court in Gideon v. Wain- wright, 372 U.S. 335 (1963). An indigent’s right to court-appointed from jail who were awaiting trial but had no counsel in a misdemeanor prosecution where imprisonment is a real lawyer, an agreement was reached among repre- possibility was established in Argersiner v. Hamlin, 407 U.S. 25 (1972). sentatives of all three branches of state govern- The right to counsel at state expense on direct appeal was established in Douglas v. California, 372 U.S. 353 (1963). ment to ensure the immediate provision of 2. State v. Lynch, 796 P.2d 1150, 1990 OK 82, fn. 13. defense counsel. This agreement provided that 3. Id. at 1153. 4. Id. at 1164. the court fund would pay for conflict counsel 5. 22 O.S.2001, §1355.1. representation until the Legislature appropriat- 6. 22 O.S.2001, §1355.4(A). 7. Five satellite offices are OIDS Non-Capital Trial Division offices. ed supplemental funding the following session One is the OIDS Capital Trial Division — Tulsa office. for court fund reimbursement and funding of 8. 22 O.S.2001, §1355(B); 22 O.S.Supp.2002, §1355A. Application is made to the district court by filling out and signing under oath an future OIDS conflict cases. “Affidavit in Forma Pauperis” set forth as Form 13.3 of Section XIII of the Rules of the Court of Criminal Appeals, 22 O.S.2001, Ch. 18, App. Both the Harris v. Champion and Bednar v. Dis- 9. 22 O.S.2001, §1355.6(A). trict Court of Kay County cases drive home the 10. 22 O.S.2001, §1360(D). 11. 22 O.S. 2001, §1355(C). point that the “criminal justice system chain” is 12. 22 O.S.2001, §1355.6(A). only as good as its weakest link. All compo- 13. 22 O.S.2001, §1355.8. nents of that system, whether district attorneys, 14. 22 O.S.2001, §1355.9. 15. This position was created through a grant funded by the U.S. the courts, the Department of Corrections or Department of Justice. OIDS, must be adequately funded and pro- 16. 22 O.S.Supp.2006, §1089. 17. 22 O.S.2001, §1355.4(D). vided with the necessary resources to keep the 18. The agency’s involvement and representation in the case of Ron entire system operating. Williamson, who was wrongfully convicted of first degree murder, sentenced to death, and after spending years on death row, was ultimately CONCLUSION exonerated by DNA testing, is chronicled in John Grisham’s book The Innocent Man. Grisham, John The Innocent Man, Doubleday, 2006. 19. A separate case, Harris v. Champion, et al., 51 F.3d 901 (1995), Criminal defense representation is not easy filed pursuant to 42 U.S.C. §1983, involved essentially the same parties. under the best of circumstances. Public percep- The court ultimately held that the claims for damages against the vari- tion of criminal defense lawyers is often unfa- ous parties were barred by either the 11th Amendment or qualified immunity, with the claim for injunctive relief relating to brief deadline vorable because of who they represent. Further, extensions rendered moot due to a legislative appropriation to OIDS a criminal practice is generally not lucrative in and the attorney general’s office to contract backlogged cases out. 20. Id. at 1546-47. the private sector and certainly not in the pub- 21. Id. at 3. lic defender arena. Despite a recent wavering 22. Id. at 3-4. budgetary picture, OIDS has been able to successfully meet the state of Oklahoma’s constitutional mandates for several reasons. The About The Author most important of these reasons is the dedication, tenacity and professionalism of the agen- Craig Sutter is the deputy executive director of the cy’s staff attorneys, support personnel and Oklahoma Indigent Defense System. Prior to joining contract lawyers. While it may from time to OIDS in 2000, he was general counsel for the Okla- time seem like a thankless task, criminal defense homa Department of Mental Health and Substance work is a noble calling, and those who have Abuse Services. He also served as an assistant attor- heeded that call uphold the highest ideals of ney general from 1988 through 1996 within the litiga- our system of justice. The Indigent Defense tion division of the Oklahoma Attorney General’s System Board, the executive director and Office, litigating civil rights and tort cases throughout administration also play a key role in the agen- the state. cy’s success in managing its diverse compo-

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1285 LEGISLATIVE NEWS

Legislative Session Nears End By Duchess Bartmess

The latest the first session of HB 1275: Modifies definitions the 53rd Oklahoma Legislature and licensing provisions in can be in session is Friday, May Nursing Practice Act 27, not later than 5 p.m. As in HB 1296: Modifies annexation past years, leaders of both hous- procedures for cities and es hope to be able to adjourn towns earlier. Given the complexity of many of the issues they are deal- HB 1327: Authorizes Forestry ing with, early adjournment may Division to plan and conduct not be possible. prescribed burning at request and expense of landowners for As of the close of business purpose of controlling Eastern May 6, 2011, the governor has Red Cedar and other invasive signed 175 legislative measures species; limits liability under and five measures have been Governmental Tort Claims vetoed. There have been no line-item vetoes, no measures HB 1358: Authorizes issuance have become law without the of protective orders against signature of the governor and incarcerated persons 52 measures are on the gover- nor’s desk awaiting action. HB 1360: Clarifies procedures for issuing protective orders SIGNIFICANT MEASURES regarding children and juve- SIGNED BY THE niles GOVERNOR HB 1414: Authorizes attorney These measures have been general to charge fee for legal signed by the governor but have services not been previously discussed in previous bar journal reports: HB 1439: Expands the right to use deadly force HB 1209: New law providing physicians who provide medi- HB 1504: Home health care cal services at athletic events shall not be liable licensing, accrediting agencies for damages as a result of any acts or omissions HB 1593: Repealer of municipal employee Col- except for committing gross negligence or will- lective Bargaining Act ful or wanton negligence in rendering the emergency care HB 1604: Clarifies guidelines for seizing property HB 1255: Authorizes U.S. attorneys to carry firearms under certain conditions HB 1614: Modifying dates for presidential pref- erence primary HB 1274: Provides for alternative teaching certification HB 1664: Modifies initiative and referendum procedures

1286 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 HB 1688: Declaring certain labor contracts SB 241: Modified provisions regarding pay- void ment procedures for county roads and bridges HB 2024: Damages, periodic payment and evi- SOME MEASURES AWAITING ACTION dence of financial responsibility BY THE GOVERNOR SB 54: Adds residency requirement to qualifi- HB 1010: Justices and judges; retirement age; cations for district attorney benefit computations SB 59: Provides for school employee criminal HB 1355: Modifying duties for burying bodies history checks HB 1520: Modifying penalties; certain unin- SB 147: Modifies signature requirements for sured motorist violation incorporation of towns HB 1549: Crimes; child pornography victims SB 162: Authorized retired district attorney to carry badge and sidearm HB 1586: Modifying the Uniform Athlete SB 246: Increases maximum bank or credit Agents Act union deposit which may be transferred to HB 1598: Real Estate License Code; exempting heirs certain persons from liability SB 331: Fraudulent claims: number of persons HB 1615: Elections: Let the Troops Vote Act required to institute certain actions HB 1692: Modifying Floodplain Management SB 406: Increases time and distance regarding Act funeral picketing HB 1821: Oil and Gas Exploration Rights Act SB 530: Livestock Owner’s Lien Act of 2011 HB 1957: Agriculture; licensing and permits for SB 547: Elective abortion coverage swine feeding operations SB 587: Termination date for well plugging fund HB 1970: Abortion-inducing drugs SB 801: Providing for insurance coverage of HB 1998: Revenue and taxation; income tax portable electronics checkoffs; revolving funds SB 885: Application of tax rate for certain well types during specified times OBA Bills at a Glance SB 923: Gang-related offense as condition of membership Status of OBA bills as endorsed by the House of Delegates: MEASURES WHICH HAVE BEEN VETOED SB 940 allows for service of a judgment HB 1227: Ardmore Higher Education Program by means other than mail. Signed by the transferred to regional university system governor. HB 1471: Added the state veterinarian and one SB 941 relates to attorney work product and registered veterinarian to membership on the expert witnesses. Was on House agenda for board; provided method of election to determine vote, but did not make deadline to be nominees for appointment by other veterinari- heard. ans; limited who governor could consider for appointment to the board; required all nominees SB 942 relates to when a party can dismiss for appointment to be confirmed by the Senate without leave of court. Laid over by House Judiciary Committee for next session. HB 1812: Increased competitive bidding threshold on right-of-way projects SB 943 relates to appeals from administrative proceedings and clarifies which parties SB 186: Sunset action, terminating on July 1, are necessary to be named on appeal. 2014, the Polygraph Examiners Board; State Signed by the governor. Board of Osteopathic Examiners; Board of Podiatric Medical Examiners; and Oklahoma Current as of May 12, 2011 State Athletic Commission

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1287 HB 2004: Teachers’ Retirement System of Okla- SB 928: Roofing contractors: contract cancella- homa; death benefits; disclaimer tion for denial of insurance claim, payment refunds HB 2023: Civil procedure; admissibility for actual amounts paid for medical bills SB 953: Public Safety: driver license reinstatement fee SB 19: Solid waste - requiring certain slopes on landfill sites: requiring fee SB 954: Public Safety: collision report fee SB 124: Eminent domain As always, all the bills signed and pending cannot be discussed here. However, an attempt SB 324: Boating safety: evidentiary procedure is made to note some of the more significant for testing for operating under the influence bills that might be of interest to the practicing SB 412: Oklahoma Health Care Authority: enti- attorney. Also, as always, each practitioner is ties to accept right of recovery and assignment encouraged to review the list and take a longer of rights look at those measures that could apply to their individual practice. That information can be SB 701: Medical records: access to medical found online at www.oklegislature.gov. records: requirements for disclosure Ms. Bartmess practices in Oklahoma City and is SB 704: Class actions: procedures for inclusion chairperson of the Legislative Monitoring Committee. in certain class SB 780: Home Service Contract Act: insurance

1288 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 OBA AWARDS

Nominate an Oklahoma Lawyer Deserving of Applause

ow is the time to honor Oklahoma To the actor, lawyers by nominating them for OBA NAwards. Awards will be presented at the it’s the Oscar. Annual Meeting to be held Nov. 2-4 in Tulsa. The deadline for nominations is Aug. 17. Anyone can submit an award nomination, and anyone nominated can win. Nominations don’t have to be long; they can be as short as a one-page letter to the OBA Awards Committee. Want to keep it really simple? An easy-to-fill-out form is available online at www.okbar.org.

To the JUST A FEW RULES Olympian, it’s • The entire nomination cannot exceed five sin- the Gold. gle-sided, 8 1/2” x 11” pages. (This includes exhibits.) • Make sure the name of the person being nominated and the person (or organization) making the nomination is on the nomination. • If you think someone qualifies for awards in To the singer, several categories, pick one award and only it’s the do one nomination. The OBA Awards Com- mittee may consider the nominee for an Grammy. award in a category other than one in which you nominate that person. • You can mail, fax or e-mail your nomination (pick one). E-mails should be sent to [email protected]. Fax to (405) 416-7089. Mail to: OBA Awards Committee To the P.O. Box 53036 Oklahoma City, OK 73152 lawyer, it’s the OBA Award. Continue reading for award descriptions.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1289 AWARDS AND LAST YEAR’S WINNERS Outstanding Service to the Public Award for significant community service by Outstanding County Bar Association Award an OBA member for meritorious efforts and activities 2010 Winner: Richard L. McKnight, Enid 2010 Winner: Muskogee County Bar Association Award for Outstanding Pro Bono Service by an OBA member Hicks Epton Law Day Award 2010 Winners: Ana Basora-Walker, for individuals or organizations Lawton, James J. Proszek, Tulsa & for noteworthy Law Day activities Steven W. Soulé, Tulsa 2010 Winner: Comanche County Bar Association Joe Stamper Distinguished Service Award to an OBA member Golden Gavel Award for long-term service for OBA Commit- to the bar association tees and Sections NOMINATION or contributions to performing with the legal profession a high degree of WRITING 2010 Winner: R. For- excellence ney Sandlin, Muskogee 2010 Winner: TIPS OBA Family Neil E. Bogan Law Section, Professionalism Award Committee Chair Award Kimberly Hays, Renée Hildebrant shares Chairperson to an OBA member these suggestions: practicing 10 years or Liberty Bell Award more who for con- for non-lawyers • A respected lawyer or judge has no chance of duct, honesty, integri- or lay organiza- winning if he or she is not nominated. ty and courtesy best tions for promot- • County bars are encouraged to nominate themselves. represents the highest ing or publicizing standards of the legal matters regarding Smaller bars have an equal chance to win because profession the legal system the number of members is considered in relation to 2010 Winner: R. Clark 2010 Winner: the county bar activities accomplished for Law Day Musser, Oklahoma City Sherri Carrier, and/or for the entire year. Tulsa John E. Shipp Award for Ethics Outstanding Young • A nomination that gives details or shares short stories about why a person deserves to win has a better to an OBA member Lawyer Award who has truly exem- for a member of chance of winning than submitting a bio. Don’t plified the ethics of the OBA Young assume committee members know your nominee. the legal profession Lawyers Division either by 1) acting in for service to the • Information about your nominee is better than letters of support. Don’t put this off until the last minute; accordance with the profession highest ethical stan- 2010 Winners: start writing your short, concise nomination today. dards in the face of Doris L. Grunt- Your nominee deserves to be considered for an pressure to do othe meir, Muskogee OBA Award. wise or 2) by serving & Richard L. as a role model for Rose, Oklahoma ethics to the other City members of the profession Earl Sneed Award 2010 Winner: Retired Judge Milton Craig, for outstanding continuing Chandler legal education contributions Alma Wilson Award 2010 Winner: Justice John F. Reif, for an OBA member who has made a signif- Skiatook icant contribution to improving the lives of Award of Judicial Excellence Oklahoma children for excellence of character, job 2010 Winner: Judge C. William Stratton, performance or achievement while Lawton a judge and service to the bench, Trailblazer Award bar and community to an OBA member or members who 2010 Winners: Judge Bryan C. Dixon, Okla- by their significant, unique visionary efforts homa City & Judge have had a profound impact upon our pro- James H. Payne, Muskogee fession and /or community and in doing Fern Holland Courageous Lawyer Award so have blazed a trail for others to follow to an OBA member who has courageously 2010 Winner: Reggie Whitten, performed in a manner befitting the highest Oklahoma City ideals of our profession 2010 Winner: Not awarded

1290 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 Individuals for Whom Awards are Named

NEIL E. BOGAN — Neil Bogan, an attorney when his life was tragically taken that year in a from Tulsa, died unexpectedly on May 5, 1990, plane crash. Mr. Shipp was known for his integ- while serving his term as president of the Okla- rity, professionalism and high ethical standards. homa Bar Association. Mr. Bogan was known for He had served two terms on the OBA Profes- his professional, courteous treatment of every- sional Responsibility Commission, serving as one he came into contact with and was also con- chairman for one year, and served two years on sidered to uphold high standards of honesty and the Professional Responsibility Tribunal, serving integrity in the legal profession. The OBA’s Pro- as chief-master. The OBA’s Award for Ethics fessionalism Award is named for him as a per- bears his name. manent reminder of the example he set. EARL SNEED — Earl Sneed served the Uni- HICKS EPTON — While working as a coun- versity of Oklahoma College of Law as a distin- try lawyer in Wewoka, attorney Hicks Epton guished teacher and dean. Mr. Sneed came to decided that lawyers should go out and educate OU as a faculty member in 1945 and was praised the public about the law in general, and the for his enthusiastic teaching ability. When Mr. rights and liberties provided under the law to Sneed was appointed in 1950 to lead the law American citizens. Through the efforts of Mr. school as dean, he was just 37 years old and one Epton, who served as OBA president in 1953, of the youngest deans in the nation. After his and other bar members, the roots of Law Day retirement from academia in 1965, he played a were established. In 1961, the first of May major role in fundraising efforts for the law became an annual special day of celebration center. The OBA’s Continuing Legal Education nationwide designated by a joint resolution of Award is named in his honor. Congress. The OBA’s Law Day Award recognizing outstanding Law Day activities is named JOE STAMPER — Joe Stamper of Antlers in his honor. retired in 2003 after 68 years of practicing law. He FERN HOLLAND — Fern Holland’s life was is credited with being a personal motivating force cut tragically short after just 33 years, but this behind the creation of OUJI and the Oklahoma young Tulsa attorney made an impact that will Civil Uniform Jury Instructions Committee. Mr. be remembered for years to come. Ms. Holland Stamper was also instrumental in creating the left private law practice to work as a human position of OBA general counsel to handle attor- rights activist and to help bring democracy to ney discipline. He served on both the ABA and Iraq. In 2004 she was working closely with Iraqi OBA Board of Governors and represented Okla- women on women’s issues when her vehicle was homa at the ABA House of Delegates for 17 years. ambushed by Iraqi gunmen, and she was killed. His eloquent remarks were legendary, and he is The Courageous Lawyer Award is named as a credited with giving Oklahoma a voice and a face tribute to her. at the national level. The OBA’s Distinguished Service Award is named to honor him. MAURICE MERRILL — Dr. Maurice Merrill served as a professor at the University of Okla- ALMA WILSON — Alma Wilson was the first homa College of Law from 1936 until his retire- woman to be appointed as a justice to the ment in 1968. He was held in high regard by his Supreme Court of Oklahoma in 1982 and became colleagues, his former students and the bar for its first female chief justice in 1995. She first his nationally distinguished work as a writer, practiced law in Pauls Valley, where she grew scholar and teacher. Many words have been used up. Her first judicial appointment was as special to describe Dr. Merrill over the years, including judge sitting in Garvin and McClain Counties, brilliant, wise, talented and dedicated. Named in later district judge for Cleveland County and his honor is the Golden Quill Award that is served for six years on the Court of Tax Review. given to the author of the best written article She was known for her contributions to the edu- published in the Oklahoma Bar Journal. The recip- cational needs of juveniles and children at risk, ient is selected by the OBA Board of Editors. and she was a leader in proposing an alternative school project in Oklahoma City, which is now JOHN E. SHIPP — John E. Shipp, an attorney named the Alma Wilson SeeWorth Academy. The from Idabel, served as 1985 OBA president and OBA’s Alma Wilson Award honors a bar mem- became the executive director of the association ber who has made a significant contribution to in 1998. Unfortunately his tenure was cut short improving the lives of Oklahoma children.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1291 BAR PROGRAM

Academy Seeks to Develop Future Bar Leaders By Deborah A. Reheard

President John F. Kennedy succeed not once said, “Leadership and only in your law learning are indispensable to career, but also in each other.” As president of service to profes- the Oklahoma Bar Associa- sional, political, tion, I am passionate about judicial, civic and leadership, and that is why community orga- one of the goals of my presi- nizations. You dency is to continue to build will also have a on the OBA’s successful foun- chance to meet dation in leadership training and interact with for tomorrow’s bar leaders. prominent legal and community • What is the cost? The OBA The OBA has offered multi- leaders. will pay for the program, ple leadership training oppor- accommodations and food, but tunities in the past that have It is also of extreme impor- participants will be responsi- been well received and pro- tance to me that the Leader- ble for their own travel. duced many current OBA ship Academy participants leaders. The OBA offered a include members of the OBA • Why participate? You will 2007 Leadership Conference who are from diverse back- benefit personally and profes- and two classes have graduat- grounds or who have histori- sionally by learning about ed from the more extensive cally been under represented professional leadership. You OBA Leadership Academy, in OBA leadership. If you fall will be exposed to the legisla- one in 2009 and one in 2010. within one of these categories, tive and judicial systems; you I urge you to consider apply- will interact with high-level The 2011-2012 Leadership ing for this opportunity. state and local officials and Academy will include about 30 judges and meet many attor- individuals who will be select- My thanks to the Leadership neys from the private and ed. There will be four sessions, Academy Task Force, led by public sectors. beginning in the early fall this Bartlesville Attorney Linda year and continuing through Thomas. The continued work Questions? Call or email April 2012. You can review of the task force is much Co-Chair Linda Thomas at the programming offered at appreciated. (918) 337-0947, linda@ www.okbar.org/members/ thomasfamilylaw.com, or • Who is eligible? Any OBA leadershipacademy. OBA Educational Programs member is welcome to apply. Director Donita Bourns If you are selected and • How do I apply? Fill out Douglas at (405) 416-7028, attend this program, you will the application form online at [email protected]. learn what it means to be a www.okbar.org/members/ leader. You will learn how to Deborah Reheard is 2011 OBA leadershipacademy by June 15. communicate, motivate and President.

1292 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 OBAOBA SOLOSOLO andand SMALLSMALL FIRMFIRM CONFERENCECONFERENCE JUNEJUNE 9-119-11 20112011 •• DOWNSTREAMDOWNSTREAM RESORTRESORT •• QUAPAW,QUAPAW, OKOK DAY 1 • Thursday June 9 Come 4 - 6:15 p.m. Registration and check-in at the Resort Lobby 6:30 - 8:30 p.m. Registration and check-in at the Pool Side Pavilion 6:30 p.m. Poolside buffet dinner and children’s activities & Enjoy (included in registration fee) Barry Switzer will also be poolside Thursday evening. the Fun! DAY 2 • Friday June 10 8:25 a.m. 6:30 - 9:30 a.m. Breakfast buffet in Pool Side Pavilion Welcome Deborah Reheard 7:30 a.m. Conference Registration in Resort Lobby OBA President 9:30 a.m. - 3:30 p.m. Children’s activities in Buffalo Calf Room 8:30 – 50 Hot Tips in 50 Minutes 9:20 a.m. Tom Mighell Jim Calloway 9:20 a.m. Break 9:30 – How to Communicate with Clients 101: 10:20 a.m. The Basics Sarah Read — The Communications Center Inc. 12 Hours CLE Credit – 10:20 a.m. Break Including 10:30 - How to Communicate with Clients 201: Ethics 11 a.m. Avoiding, Mitigating and Resolving Conflict Sarah Read — The Communications Center Inc. 11:30 a.m. - 12:45 p.m. LUNCH BUFFET (Included in Seminar Registration Fee) Black Hawk Sacred Elk Victor Griffin Saracen 12:45 – How to How Lawyers How to Talk How to Advise 1:45 p.m. Seize Stuff Use iPads to a Prosecutor Clients on Joe Miner Tom Mighell Catherine “Cat” Burton Medicaid and Phil Tucker Nursing Home Jim Calloway Eligibility Issues Travis Smith 1:45 p.m. Break 2 - How to Represent Living with How to Draft a How to Handle 3 p.m. Active Military Legislative Simple Will Expungements in Family Law Changes Susan Shields Jimmy Bunn Matters Impacting Civil Phil Tucker Trial Practice Jon Williford

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1293 6:30 - 10 p.m. Evening poolside buffet and entertainment by New Odyssey 7:30 - 10:30 p.m. Children’s activities in the Buffalo Calf Room DAY 3 • Saturday June 11 6:30 - 9:30 a.m. Breakfast buffet in Pool Side Pavilion 7:30 a.m. Conference Registration in Resort Lobby 9:30 a.m. - 3:30 p.m. Children’s activities in Buffalo Calf Room

Black Hawk Sacred Elk Victor Griffin Saracen

8:30 – Packing Heat - How to Cope How to Prepare How to 9:20 a.m. Concealed Carry When Opposing a Witness Represent Active Laws in Counsel Acts Like Jon Williford Military in Oklahoma a Jerk Consumer Cases Jimmy Bunn Travis Pickens Rick Robinson and Hugh Fudge 9:20 a.m. Break How to Do How to Do a How to Handle How to Withdraw 9:30 – Research on Family Law Common Indian and/or Close a 10:20 a.m. the Internet Intake Law Situations Case Tom Mighell Jon Ford Chrissi Nimmo Travis Pickens moderator 10:20 a.m. Break 10:30 - How to Obtain Our Favorite How to Succeed How to Advise 11:30 a.m. Records from Technology Tools with Staff Clients on Government Tom Mighell and Jim Priest Medicaid and Agencies Jim Calloway Nursing Home Roy Tucker Eligibility Issues (Repeat of Day 1) Travis Smith

11:30 a.m. LUNCH (Included in Seminar Registration Fee)

12:30 – How to Get it Right: Accounting 1:20 p.m. and Tax for Law Firms Ted Blodgett

1:20 p.m. Break 1:30 - How to Avoid the Envelope: 2:20 p.m. Trust Accounting the Right Way Gina Hendryx

2:20 p.m. Break 2:30 - What’s Hot and What’s Not in 3:30 p.m. Running Your Law Practice Jim Calloway and Tom Mighell

1294 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 2010 OBA SOLO & SMALL FIRM CONFERENCE & YLD MIDYEAR MEETING DOWNSTREAM CASINO RESORT, QUAPAW, OK JUNE 24-26, 2010 Register online at www.okbar.org/solo or return this form.

Full Name: OBA#:

Address: City/State/Zip:

Phone: Fax: E-mail:

List name and city as it should appear on badge if different from above: Registration Fees: Registration fee includes 12 hours CLE credit, including one hour ethics. Includes all meals: Thursday evening, poolside buffet, breakfast buffet Friday & Saturday, buffet lunch Friday & Saturday, Friday evening buffet. Circle One Early-Bird Attorney Registration (on or before May 26, 2011) $175 Late Attorney Registration (May 27, 2011 or after) $225

Early-Bird Attorney & Spouse/Guest Registration (on or before May 26, 2011) $275

Late Attorney & Spouse/Guest Registration (May 27, 2011 or after) $325 Spouse/Guest Attendee Name:

Early-Bird Family Registration (on or before May 26, 2011) $325

Late Family Registration (May 27, 2011 or after) $375

Spouse/Guest/Family Attendee Names: Please list ages of children. Spouse/Guest: Family: Age:

Family: Age: Family: Age:

Thursday, June 9 - 18 Hole Golf ( of entries @ $50 each) Total $:

Friday, June 10 - 9 Hole Golf ( of entries @ $30 each) Total $:

Make check payable to the Oklahoma Bar Association. Mail Meeting Registration Form to: CLE REGlSTRAR, P.O. Box 53036, OkIahoma City, OK 73152. FAX Meeting Registration Form to (405) 416-7092 For payment using VISA Mastercard Discover AmEx CC: Expiration Date: Authorized Signature:

No discounts. Cancellations will be accepted at anytime on or before May 26, 2011 for a full refund; a $50 fee will be charged for cancellations made on or after May 27, 2011. No refunds after June 1, 2011. Call 1-(888) 396-7876 for hotel reservations. Ask for the special OBA rate.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1295 Ask A Lawyer TV Program H H H H H H Chief Justice Steven Taylor Deborah Reheard, OBA President Moderator: Dick Pryor Panelists: Stanley Evans, Robert Don Gifford, Brady Henderson, Darla Jackson, Susan Krug, Dewayne Moore, Ryan Pack, Gail Stricklin, L A W Judge Douglas Stults The production staff and crew at OETA Red Rock Video Services DAY Ask A Lawyer Free Legal H H H H H H Information Statewide Project All Oklahoma attorneys who volunteered to answer phones OBA Law Day Committee Chairperson Tina Izadi Richard Vreeland and Law Day Committee members 2 0 1 1 County Law Day Chairpersons County Bar Association Presidents 1,500 contest Additional Thanks: entries received! THANK YOU YWCA of Oklahoma City Legal Aid of Western Oklahoma Inc. 45th Infantry Museum to these individuals and Printing Inc. Leslie Blair, State Farm Insurance groups who made Legal Graphics Inc. What’s Cooking Catering Law Day 2011 Oklahoma County Bar Auxiliary Tulsa County Bar Auxiliary a success! Janie Morgan H H H H H H H H H H H H H

Nearly 2,000 More than 250 calls for free A special thank you to volunteer lawyers legal advice! statewide!

for providing public service air time and for producing Ask A Lawyer.

1296 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 PHOTO HIGHLIGHTS Volunteers Efforts Make Law Day Successful

awyers from across the state observed Law Day 2011 with activities ranging from luncheons to Laward presentations to assisting Oklahomans with their calls for free legal advice. Hundreds of attorneys volunteered over the past few weeks to celebrate our freedom and educate the public on our legal rights and responsibilities. Take a look at some of the various activities in which volunteer attorneys made the day a success.

John Thomas, Blake Lynch and Wesley Cherry get set to race to the top of the Pittsburg County Courthouse in McAlester.

Pittsburg County Bar Association members competed in a “Race to the Courthouse Steps” a stair climb event for charity. Shown here are (from left) Wesley Cherry, Blake Lynch, John Thomas and Bryan Lynch.

Tulsa County Law Day Chair Dan Crawford visits with TCBA Law Day luncheon speaker Professor Judge Daman Cantrell presents the Tulsa County Bar Asso- J. Rufus Fears. ciation Liberty Bell Award to Taya Slocum and Cortez Tenley.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1297 Lawyer Danial Smith provides a free legal consultation at Tulsa’s Hardesty Library during “Lawyers in the Library.”

TCBA volunteers staff the annual Community Law Fair in Tulsa.

Mark Dixon and Mark Schwebe man the phones at the brand new OETA studios in Tulsa during the statewide John Eagleton is one of more than 50 Tulsa lawyers Ask A Lawyer event. who answered calls for free legal advice.

Oklahoma County Bar Association members Margaret Travis, Rodney Buck presents an award to Mary Ellen Thomas, Mary Travis, Zane Wood and Sheila Stinson take calls for free who took first place in the statewide creative writing legal advice on Ask A Lawyer day. contest for eighth graders.

1298 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 Kimberly Brasher and Linda Samuel-Jaha speak with callers at the OETA studios phone bank in Oklahoma City.

Oklahoma County Law Day Chair Lance Leffel makes remarks at the Law Day Luncheon.

Oklahoma County Bar Foundation President Leslie Batchelor (right) presents the Howard K. Berry Sr. Award to Dr. Barbara Bonner, director of the Center for Child Abuse and Neglect, during the Law Day Luncheon. Jerry Tubb received the Journal Record Award from publisher Mary Mélon at the Oklahoma County Law Day Luncheon.

Oklahoma County Bar Associa- tion Members stayed busy answering legal questions throughout the day. It’s estimated that Oklahoma lawyers gave away more than $87,500 worth of free legal advice on April 28.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1299 BAR NEWS The Judicial Nominating Commission Elections

The selection of qualified The lawyers of this state nating Commission and cast persons for appointment to play a very important role in their vote. The framers of the the judiciary is of the utmost the selection of judges since constitutional amendment importance to the administra- six of the members of the com- entrusted to the lawyers the tion of justice in this state. mission are lawyers elected by responsibility of electing quali- Since the adoption of Article lawyers. The lawyer members fied people to serve on the 7-B to the Oklahoma Constitu- are elected from each of the six commission. Hopefully, the tion in 1967, there has been congressional districts as they lawyers in the First and Sec- significant improvement in the existed in 1967. (As you know, ond Congressional Districts quality of the appointments to the congressional districts will fulfill their responsibility the bench. Originally, the Judi- were redrawn in 2002.) Elec- by voting in the election for cial Nominating Commission tions are held each odd num- members of the Judicial Nomi- was involved in the nomina- bered year for members from nating Commission. tion of justices of the Supreme two districts. Court and judges of the Court PROCEDURES OF THE 2011 ELECTIONS of Criminal Appeals. Since the OKLAHOMA BAR adoption of the amendment, This year there will be elec- ASSOCIATION the Legislature added the tions for members in Districts GOVERNING THE ELECTION OF LAWYER requirement that vacancies in 1 and 2. District 1 is com- all judgeships, appellate and MEMBERS TO THE posed of Creek and Tulsa JUDICIAL NOMINATING trial, be filled by appointment Counties. District 2 is com- COMMISSION of the governor from nomi- posed of counties in the nees submitted by the Judicial northeastern corner of the 1. Article 7-B, Section 3, of Nominating Commission. state. The procedures for the the Oklahoma Constitu- tion requires elections be The commission is composed election will be published in held in each odd num- of 15 members. There are six the bar journal. bered year by active mem- non-lawyers appointed by the Lawyers desiring to be can- bers of the Oklahoma Bar governor, six lawyers elected didates for the Judicial Nomi- Association to elect two by members of the bar, and nating Commission positions members of the Judicial three at large members, one have until Friday, May 20, Nominating Commission selected by the Speaker of the 2011, at 5 p.m. to submit their for six-year terms from House of Representatives; one Nominating Petitions. Ballots Congressional Districts as selected by the President Pro will be mailed on June 3, such districts existed at the Tempore of the Senate; and 2011, and must be returned by date of adoption of Article one selected by not less than June 17, 2011, at 5 p.m. 7-B of the Oklahoma Con- eight members of the Commis- stitution (1967). sion. All serve six-year terms, It is important to the admin- except the members at large istration of justice that the 2. Ten (10) active members who serve three -year terms. OBA members in the First and of the association, within Members may not succeed Second Congressional Districts the Congressional District themselves on the commission. become informed on the can- from which a member of didates for the Judicial Nomi- the commission is to be

1300 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 elected, shall file with his designee, the ballots destroy any ballots the Executive Director a shall be opened, tabulat- printed and unused. signed petition (which ed and certified at 9 a.m. 13. The election proce- may be in parts) nomi- on the Monday follow- dures, with the specific nating a candidate for ing the third Friday dates included, shall be the commission; or, one of June. published in the Oklaho- or more County Bar 8. Unless one candidate ma Bar Journal in the Associations within said receives at least 40 per- three issues immediate- Congressional District cent of the votes cast, ly preceding the date may file with the Execu- there shall be a runoff for filing nominating tive Director a nominat- election between the two resolutions. ing resolution nominat- candidates receiving the ing such a candidate for highest number of votes. the commission. COUNTIES IN EACH 9. In case a runoff election 3. Nominating petitions DISTRICT ARE AS is necessary in any Con- must be received at the FOLLOWS: gressional District, runoff Bar Center by 5 p.m. on ballots shall be mailed, District No. 1 the third Friday in May. under the supervision Creek 4. All candidates shall be of the Executive Director, Tulsa advised of their nomina- or his designee, to every tions, and unless they active member of the District No. 2 indicate they do not association therein on Adair desire to serve on the the fourth Friday Cherokee commission, their name in June, and all runoff shall be placed on the ballots must be received Craig ballot. at the Bar Center by 5 Delaware p.m. on the third Friday 5. If no candidates are Mayes in July. nominated for any Con- McIntosh gressional District, the 10. Under the supervision Muskogee Board of Governors shall of the Executive Direc- select at least two candi- tor, or his designee, the Nowata dates to stand for elec- runoff ballots shall be Okfuskee tion to such office. opened, tabulated and Okmulgee certified at 9 a.m. on the 6. Under the supervision of Monday following the Osage the Executive Director, or third Friday in July. Ottawa his designee, ballots shall be mailed to every active 11. Those elected shall be Pawnee member of the associa- immediately notified, Rogers tion in the respective and their function certi- Sequoyah Congressional District on fied to the Secretary of the first Friday in June, State by the President of Wagoner and all ballots must be the Oklahoma Bar Asso- Washington received at the Bar Cen- ciation, attested by the ter by 5 p.m. on the third Executive Director. Friday in June. 12. The Executive Director, see next page for map of Congressional Districts 7. Under the supervision of or his designee, shall the Executive Director, or take possession of and

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1301 CIMARRON HARPER WOODS ALFALFA GRANT KAY OSAGE NOWATA CRAIG OTTAWA TEXAS BEAVER WASHINGTON

ROGERS WOODWARD GARFIELD NOBLE MAYES MAJOR PAWNEE DELAWARE ELLIS 6 TULSA 2 PAYNE 2 WAGONER DEWEY CHEROKEE KINGFISHER CREEK BLAINE LOGAN 1 Note: The Congressional ADAIR LINCOLN MUSKOGEE ROGER MILLS CUSTER OKLAHOMA OKMULGEE Districts are those CANADIAN SEQUOYAH OKFUSKEE 5 McINTOSH WASHITA existing at the date of BECKHAM CLEVELAND CADDO HASKELL GRADY HUGHES

the adoption of Article SEIMINOLE McCLAIN GREER KIOWA POTTAWATOMIE PITTSBURG LATIMER 7-B of the Oklahoma 4 LEFLORE GARVIN PONTOTOC COMANCHE HARMON JACKSON COAL Constitution. MURRAY STEPHENS 3 PUSHMATAHA TILLMAN 3 ATOKA COTTON JOHNSTON CARTER McCURTAIN JEFFERSON CHOCTAW MARSHALL LOVE BRYAN

NOTICE JUDICIAL NOMINATING COMMISSION ELECTIONS CONGRESSIONAL DISTRICTS 1 AND 2 Nominations for election as members of the Judicial Nominating Commission from Congressional Districts 1 and 2 (as they existed in 1967) will be accepted by the Execu- tive Director until 5 p.m., Friday, May 20, 2011. Ballots will be mailed on June 3, 2011, and must be returned by 5 p.m. on June 17, 2011.

Custom Designed Binders for your Oklahoma Bar Journal Attractive, durable binder will keep your Bar Journals accessible and provide easy storage for 12 issues. They cost $15.95 each prepaid. Please send: ______binders for the Oklahoma Bar Journal at $15.95. Make check payable to Oklahoma Bar Association.

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1302 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 LAW PRACTICE TIPS

Management Assistance Program Lending Library Gets an Upgrade! By Jim Calloway, Director, OBA Management Assistance Program

Law practice management We also have The Lawyer’s books for OBA members Guide to Collaboration Tools and to check out and read to Technology by Dennis Kenne- improve their law practice dy and Tom Mighell. These …now there have been made available for tools represent untapped, years through the OBA Man- often-free technology resourc- are more than books agement Assistance Program es which can be used in law (OBA MAP). Sometimes there practices. Tom Mighell will be about management was a waiting list when the our guest speaker at the OBA only copy of a book was Solo and Small Firm Confer- and technology that checked out. Now, due to a ence this summer. The Law- generous grant from the OBA yer’s Guide to Practice Manage- are available through Law Office Management and ment Systems and Software is Technology Section, we have another popular title, as well the OBA MAP been able to significantly as The Lawyer’s Guide to Fact upgrade our offerings by Finding on the Internet. Lending Library. purchasing several copies of popular titles, as well as addi- Delegating With Confidence tor, is a very good book for tional titles in many areas. the new lawyer even though Hopefully this will make the As many of you know, Jim it was originally published in OBA MAP Lending Library Calloway writes an occasional 2002. (Disclaimer: Many of a better member service and column for Lawyers USA, which you will not be able to insert reduce the wait time when a is typically a shortened version the floppy disk that came popular book is in demand. of an article already printed in with it into your current Here is a brief look at some the Oklahoma Bar Journal. computer). of the titles for which we now This month’s article, “Delegat- ing With Confidence” has not We also have books about have multiple copies. Google lawyer’s quality of life. One for Lawyers by Carole A. Levitt been previously published here and so we would like share it of these is called Law and and Mark E. Rosch is a recent- Reorder by Deborah Epstein ly published book, and we are with you: http://tinyurl.com/ 3mdnbvj. Henry. The subtitle of this all aware that Google has book is Legal Industry Solutions numerous resources available. for Restructure, Retention, Pro- Most people are not aware of motion and Work/Life Balance. Google’s many offerings, such But now there are more as Google Profiles, Google than books about manage- We have numerous copies Voice, Google Maps, Google ment and technology that are available of the classic book Analytics, Google Scholar — available through the OBA on law office management, and so many more — and most MAP Lending Library. For How to Start and Build a Law are free! We have other Inter- example, Going to Trial: A Practice by Jay Foonberg (plat- net research books by these Step-By-Step Guide to Trial inum fifth edition). Other law same authors in the library. Practice and Procedure (second office management books on edition) by Daniel Small, edi- the shelves are Flying Solo: A

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1303 Survival Guide for the Solo and dures Manuals for Solos and download a list of available Small Firm Lawyer, Fourth Edi- Small Firms, Third Edition, titles in the lending library tion, by K. William Gibson, by Demetrios Dimitriou. online at www.okbar.org/ editor, and Law Office Proce- members/map/lending.htm. Other popular titles include Virtual Law Practice: How to The next time you are in the Buying Books Means You Deliver Legal Services Online by Oklahoma Bar Center, stop by Never Have to Return Them Stephanie L. Kimbro, The Of our lending library on the sec- Counsel Agreement, Third Edi- ond floor. To provide security For those who would rather tion, by Harold G. Wren and for the books, we do keep purchase your law practice Beverly J. Glascock, Winning them in the OBA MAP assis- management books to read Alternatives to the Billable Hour: tant’s office, so feel free to at a more leisurely pace, we Strategies That Work, by James contact Amy Kelly at (405) would like to remind you that A. Calloway and Mark A. 416-7008 or [email protected] American Bar Association Robertson, Forms, Checklists, to schedule a time when she books can be purchased at and Procedures for the Family will be available. For those 15 percent discount by OBA Lawyer by Mark A. Chinn, who cannot easily stop by the members who use the discount HIPAA for the General Practitio- Oklahoma Bar Center, OBA code PAB9EOKB at the ner by Melanie D. Bragg, and members can check out and ABA Web Store. For more many, many others. return books by mail for a detailed instructions on how nominal shipping and han- This is a small selection of to do this, please visit dling fee as described in the available books. You can www.okbar.org/ababooks. accompanying article.

Rules for the Oklahoma Bar Association Management Assistance Program Lending Library o Oklahoma Bar Association members shall be entitled to check out one or two books at a time from the library for a period of two weeks. o Typically, checkout of books is done in the Oklahoma Bar Center by going to the Lending Library in the OBA MAP assistant’s office. Appointments are desired, but walk-ins are accepted if we are available. o For whom it is inconvenient to travel to the Oklahoma Bar Center, a convenience charge of $6 per book will be assessed for shipping and handling. OBA members will be expected to return the book at their own expense. o Failure to return a book within the due date shall immediately suspend lending privileges at the OBA MAP Lending Library and may result in other consequences. o A book that has been checked out may be purchased by the lawyer who checked it out, by contacting the MAP assistant and paying the price of the book. o Some books are not available for purchase. o A few titles are available in the Lending Library that are not available to be checked out but may be reviewed in the bar center. These are generally loose-leaf publications.

1304 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 ETHICS & PROFESSIONAL RESPONSIBILITY

Lawyers’ Duty to Supervise Non-Lawyer Assistants By Gina Hendryx, OBA General Counsel

At some time in most forms duty of confidentiality owed to some system of timely review of legal practice, the lawyer the clients and the obligation and internal control to provide will employ the assistance of a not to reveal information relat- reasonable assurance that the non-lawyer. These persons ing to a representation. In State supervising lawyer will learn include the traditional secretary ex. Rel. Okla. Bar Ass’n v. Mayes, whether the employee is per- and bookkeeper, but more and 977 P.2d 9 (Okla. 1999), a law- forming the delegated duties more lawyers are employing yer was found to have violated honestly and competently.” In the services of non-traditional Rule 5.3 by failing to make rea- re Cater, 887 A.2d 1 (D.C. 2005). aides including engineers, nurs- sonable efforts to ensure that A lawyer who is a partner es, computer specialists and non-lawyer assistant adhered or a direct supervisor of a non- lobbyists. Regardless of title, to his professional obligations. lawyer has an obligation to non-lawyers are not bound by He was also found to have take remedial action if the law- the ethical rules that apply to failed to take reasonably yer learns of misconduct by the attorneys. Therefore, the rules remedial measures. non-lawyer in time to avoid or require lawyers to make rea- A lawyer who turns over the mitigate the consequences of sonable efforts to ensure that day-to-day operation of a law the conduct. In State ex. rel. the conduct of non-lawyer office to a non-lawyer assistant Okla. Bar Ass’n v. Taylor, 4 P.3d employees or independent does so at his or her own peril. 1242 (Okla. 2000), the lawyer contractors is compatible with In State ex. rel. Okla. Bar Ass’n v. was disciplined for ratifying the professional obligations of Patmon, 939 P.2d 1155 (Okla. the conduct of his wife/office the lawyer. 1997), the lawyer regularly manager who improperly Oklahoma Rule of Profes- allowed a non-lawyer assistant endorsed a client’s settlement sional Conduct 5.3 sets out to sign the lawyer’s name and checks. the lawyer’s responsibilities file court documents with over- Courts generally hold the fol- regarding non-lawyer assis- sight. The assistant filed a mis- lowing as non-delegable tasks: tants. As with Rule 5.1, lawyers leading motion and the lawyer with managerial authority over was disciplined for inadequate 1. Establishing a lawyer/ non-lawyers must make rea- supervision. client relationship sonable efforts to establish Maintaining client funds is internal policies and proce- 2. Maintaining direct contact a non-delegable fiduciary dures designed to provide with clients responsibility. Lawyers may assurance that the non-lawyers employ non-lawyer assistants 3. Giving legal advice will act in a way compatible such as bookkeepers and/or with the Rules of Professional 4. Exercising legal judgment accountants to assist in fulfill- Conduct. These policies and ing this duty, however lawyers Review your office policies procedures should include must provide adequate train- frequently. Always keep con- appropriate instruction and ing and supervision to ensure trol over your trust account supervision pertaining to the that ethical and legal obliga- and educate your staff on the ethical aspects of their jobs. Of tions are met. With regard to rules you must follow. particular importance is the client funds, “there must be

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1305 The Oklahoma Criminal Defense Lawyers Association Presents

The 2011 Patrick A. Williams Criminal Defense Institute

June 23 - 24, 2011 NCED Conference Center & Hotel, Norman, Oklahoma

Registration Fees* -OIDS Contractors $150.00 -OCDLA Members $150.00 -Non Member/Non OIDS $200.00 -Registration after June 16th $175.00 OCDLA/OIDS $225.00 Non OCDLA/OIDS *Contingent upon seating availability MCLE Credit x OK - 12 Hours, includes 6 hours of Mandated Juvenile Law training and 1 hour ethics x TX - 11 Hours, includes 1 hour ethics Location The NCED Conference Center & Hotel is offering a room rate of $77.00 for the CDI. This rate is good until June 2nd. Room reservation should be made by calling 1-800-447-9000 ext 0 or online at: http://cc.nced.com/. Please reference Group Code 7720 when making reservations. FOR MORE INFO: Email: [email protected] or call the OCDLA: 405-212-5024 Visit www.OCDLAOKLAHOMA.com to register or mail this ad with payment to: OCDLA, PO BOX 2272, OKC, OK 73101

1306 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 2011 CRIMINAL DEFENSE INSTITUTE SCHEDULE

Thursday, June 23, 2011 Main Session 8:30 - 9:00 am Welcome Tim Laughlin, OCDLA President, Bob Ravitz, Chief Public Defender OK County Pete Silva, Chief Public Defender Tulsa County, Joe Robertson, OIDS 9:00 - 9:50 am Why You Should Want a Trial Lawyer on the Supreme Court? Norman Pattis, Pattis Law Firm, Bethany, Connecticut 9:50 - 10:40 am Representation of Foreign National Adults and Children Michael Brooks-Jimenez, Oklahoma City, OK 10:50 - 12:00 pm Juvenile & Adult Mental Issues That Affect a Criminal Case Jolie Brams, PhD Columbus, Ohio 12:00 - 12:50 pm State & Federal Case Update Barry Derryberry, Federal Public Defender Office, Tulsa, OK Stuart Southerland,Tulsa County Public Defender Office, Tulsa, OK BREAKOUT SESSIONS Track 1 2:00 - 2:50 pm Cross Examination of the SANE Nurse David McKenzie, Oklahoma County Public Defender Office 3:00 - 3:50 pm Child & Adult Sex Offerder Registration & Its Effect Jack Dempsey Pointer, Oklahoma City, OK 4:00 - 4:50 pm The Proper Child Interview: Jamie Vogt, MS, LPC, Tulsa, OK 5:00 - 5:50 pm Why Poverty Matters To The Developing Brain: Jolie Brams, PhD, Columbus, OH Track 2 2:00 - 2:50 pm DUI Mechanics: John Hunsucker, Oklahoma City, OK, Bruce Edge, Tulsa, OK 3:00 - 3:50 pm Stops/Searches & Seizures: Winston Connor II, Miami, OK 4:00 - 4:50 pm DRE: Alcohol & Drugs: Jamie Balagia "The DUI Dude" San Antonio, TX 5:00 - 5:50 pm Consequences of Drug and Alcohol Convictions (on DL) Larry Williamson, Oklahoma Department of Public Safety Track 3 2:00 -2:50 pm Perfecting Appeals in Adult and Juvenile Cases Katrina Conrad Legler, OIDS, Nancy McGee, OIDS 3:00 - 3:50 pm Preserving the Record, Framing Issues & Artfully Telling the Story on Appeal Rebecca Hudsmith, Louisiana Federal Public Defender Office 4:00 - 4:50 pm When is a Confession Induced? Gary James, Oklahoma City, OK 5:00 - 5:50 pm Connecting With the Jury: Norman Pattis, Bethany, Connecticut

Friday, June 24th

8:30 - 8:50 am Welcome & Presentation of the Patrick A Williams Award 8:50 - 9:40 am Propensity Evidence: Barbara Bergman, New Mexico 9:50 - 10:40 am ME Perspectives; Spotting Issues in the ME Report Dr Janice Ophoven, Medical Examiner, Woodbury Minnesota 10:50 - 12:10 pm Child Maltreatment and Shaken Baby Issues Dr Janice Ophoven, Medical Examiner, Woodbury Minnesota John Zelbst, & Shandra Holmes, Zelbst,Holmes & Butler, Lawton, OK 12:10 –END Can Good Men Make Good Lawyers? Norman Pattis, Bethany, Connecticut

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1307 Zip Zip Amount Enclosed Other: XXiv - 2011 ). State State ympoSium S TOTAL AMOUNT June 1 – 2, 2011 June 3 – 4. 2009 Registration Form 2NODKRPD&LW\2NODKRPD overeignTy Sovereignty Symposium 2009 We ask that you register online. register you that ask We S he The Sovereignty Symposium, Inc. 1915 N. Stiles, Suite 305 Oklahoma City, OK 73105 T Registration fee 16 after May ($275.00 if postmarked Registration for Federal, State or Tribal judges District Court Judges ). ( this fee is waived for Oklahoma Registration , June 2, 2011 only for June 1) registration (no one day ): ______( this fee is waived for Oklahoma District Court Judges and Staff.) $250.00 $150.00 $150.00 if applicable To Register online please go to: www.thesovereigntysymposium.com www.thesovereigntysymposium.com to: go please online Register To ______City ______City This site also provides hotel registration information and a detailed agenda. detailed a and information registration hotel provides also site This # of Persons For Hotel Reservations please contact the Skirvin-Hilton Hotel at 405-272-3040 by May 18th. May by 405-272-3040 at Hotel Skirvin-Hilton the contact please Reservations Hotel For The Sovereignty Symposium XXIV is presented is XXIV Symposium Supreme Oklahoma by the The Sovereignty court, The Indian affairs Oklahoma commission, of Section The Indian Law The Bar association, Oklahoma the arts Oklahoma of council, The University of college Tulsa Law, ofThe University of college Oklahoma School of The University city Oklahoma Law, Inc. Symposium, and The Sovereignty Law Please mail this form to: Name ______Occupation ______Address ______Billing Address if different from above: ______Nametag should read: ______E-Mail Address and/or Website ______Telephone: Office: (____) ______Fax: (_____) ______Cell: (____) ______Tribal Affiliation ( If Bar Association Member- # ______and State ______OKLaHOMa cITY, OK 73105-4914 STILES aVE., STE. 305 N. 1915 THE SOVEREIGNTY SYMPOSIUM XXIV

The SovereignTy SympoSium XXiv - 2011 Seeds of Sovereignty June 1 – 2, 2011 6NLUYLQ+LOWRQ+RWHO2NODKRPD&LW\2NODKRPD

1308 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 THE SOVEREIGNTY SYMPOSIUM AGENDA June 1-2, 2011 at the Skirvin-Hilton Hotel, Oklahoma City, Oklahoma Wednesday Morning: Thursday Morning:

7:30 – 4:30 Registration 8:30 – 12:00 PANEL A: INDIAN GAMING: AN INDUSTRY 8:00 – 8:30 Complimentary Continental Breakfast PERSPECTIVE ON REGULATION

10:30 – 10:45 Morning Coffee / Tea Break 8:30 – 12:00 PANEL B: UNITED NATIONS DECLARATION OF THE 8:30 –12:00 PANEL A: RIGHTS OF INDIGENOUS PEOPLES ECONOMIC DEVELOPMENT AND RECOGNITION BY INTERNATIONAL TRADE THE UNITED STATES—WHAT’S NEXT?

8:30 – 5:30 PANEL B: 8:30 – 12:00 PANEL C: SEEDS OF SOVEREIGNTY – FROM THE SEEDS OF SOVEREIGNTY AND PRESERVATION OF HISTORIC SEEDS TO THE LAND IN WHICH THEY GROW THE FUTURE OF FOOD INDIAN TRUST ISSUES 8:30 – 12:00 PANEL C: INTERNET GAMING IS COMING. INDIAN LAND USE ISSUES IS INDIAN COUNTRY READY? INDIAN LAND OWNERSHIP ISSUES 8:30 – 12:00 PANEL D: NURTURING THE SEEDS – WATER LAW 8:30 – 12:00 PANEL D: ETHICS AND THE CONCERNS OF 8:30 – 12:00 PANEL E: THE JUDICIARY VETERANS ISSUES 8:30 – 12:00 PANEL E: INDIAN CHILD WELFARE ACT ISSUES

Wednesday Afternoon: Thursday Afternoon:

1:15 – 2:30 OPENING CEREMONY 1:30 – 5:00 PANEL A: GAMING 2:30 – 5:30 PANEL A: ECONOMIC DEVELOPMENT 1:30 – 5:00 PANEL B: AND INTERNATIONAL TRADE CRIMINAL LAW [A Continuation of the Morning Panel] 1:30 – 5:00 PANEL C: SEEDS OF SOVEREIGNTY AND THE 2:30 – 5:30 PANEL B: LAND IN WHICH THEY GROW INDIGENOUS RIGHTS AND JUSTICE IN [A Continuation of the Morning Panel] GUATEMALA: THE MAYA EXPERIENCE 1:30 – 5:00 PANEL D: IMPACTS OF THE INDIAN RESERVATION 2:30 – 5:30 PANEL C: ROADS PROGRAM IN INDIAN INDIAN COUNTRY CONSTRUCTION COUNTRY-PAST AND FUTURE DEVELOPMENT ISSUES 16 hours of CLE credit for lawyers will be awarded, 2:30 – 5:30 PANEL D: including 1 hour of ethics. DNA AND TRIBAL MEMBERSHIP NOTE: Please be aware that each state has its own rules and regulations, including the definition of “CLE,” therefore, certain programs may not receive credit in some states. 2:30 – 5:30 PANEL E: The Sovereignty Symposium was established to provide a THE SEEDS OF THE FUTURE: forum in which ideas concerning common legal issues could EDUCATION be exchanged in a scholarly, non-adversarial environment. The Supreme Court espouses no view on any of the issues, and the positions taken by the participants are not endorsed by the Supreme Court

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1309 SOVEREIGNTY SYMPOSIUM KEYNOTE SPEAKER

aroness Nicholson of Winterbourne is a member of the Council of BEurope and the European Security and Defence Assembly. A former Member of the European Parliament (1999-2009) she now serves as a working peer in the United Kingdom’s House of Lords where she is Chairman of the All-Party Parlia- mentary Group (APPG) on Foreign Affairs and the APPG for Economic Development in Iraq and the Region; as well as Vice-Chairman for the APPGs on Human Trafficking, EU Enlargement and Georgia. From 1999-2004 she was Vice- President of the European Parliament Committee on Foreign Affairs, Human Rights, Common Defence & Security Policy; and from 2004-2009 she was Vice- President of the Committee on Foreign Affairs and Member of the Sub- committee on Human Rights. Her other responsibilities included seven years as Rapporteur for Romania, Rapporteur for Kashmir and for Iraq, President of the Permanent Ad-Hoc Delegation for Relations with Iraq, Chief Observer of the European Union Election Obser- vation Mission to Yemen and election observer in many other countries including Russia, Moldova, Azerbaijan and Armenia.

1310 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 We ask that you register online. To Register online please go to: www.thesovereigntysymposium.com This site also provides hotel registration information and a detailed agenda. For Hotel Reservations please contact the Skirvin-Hilton Hotel at 405-272-3040 by May 18th.

The SovereignTy SympoSium XXiv - 2011 SovereigntyJune 1Symposium – 2, 2011 2009 2NODKRPD&LW\2NODKRPDJune 3 – June 4. 2009 Registration Form

Name ______Occupation ______

Address ______

______City State Zip

Billing Address if different from above: ______City State Zip

Nametag should read: ______Other: OKLaHOMa cITY, OK 73105-4914 OK cITY, OKLaHOMa

1915 N. STILES aVE., STE. 305 STE. aVE., STILES N. 1915 E-Mail Address and/or Website ______THE SOVEREIGNTY SYMPOSIUM XXIV SYMPOSIUM SOVEREIGNTY THE

Telephone: Office: (____) ______Cell: (____) ______Fax: (_____) ______

Tribal Affiliation (if applicable): ______

T If Bar Association Member- Bar # ______and State ______he S 6NLUYLQ+LOWRQ+RWHO2NODKRPD&LW\2NODKRPD overeignTy # of Amount Persons Enclosed Registration fee $250.00 ($275.00 if postmarked after May 16). Registration for Federal, State or Tribal judges $150.00 Seeds of Sovereignty of Seeds ((thisthis feefee isis waivedwaived forfor OklahomaOklahoma District District Court Court Judges Judges ).and Staff.)

June 1 – 2, 2011 2, – 1 June Registration, June 2, 2011 only S $150.00 (no one day registration for June 1) ympoSium

TOTAL AMOUNT

Please mail this form to:

XXiv - 2011 - XXiv The Sovereignty Symposium, Inc. 1915 N. Stiles, Suite 305 Oklahoma City, OK 73105

The Sovereignty Symposium XXIV is presented by the Oklahoma Supreme court, The Oklahoma Indian affairs commission, The Indian Law Section of the Oklahoma Bar association, The Oklahoma arts council, The University of Tulsa college of Law, The University of Oklahoma college of Law, The Oklahoma city University School of Law and The Sovereignty Symposium, Inc.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1311 BOARD OF GOVERNORS ACTIONS

February Meeting Summary The Oklahoma Bar Association Board of Governors met at Post Oak Lodge in Tulsa on Friday, Feb. 18, 2011.

REPORT OF THE regarding the Oklahoma in Atlanta, ABA House of PRESIDENT Lawyers for America’s Delegates, the farewell to Heroes program. the 45th ceremony and two President Reheard reported Yellow Ribbon redeployment she attended the January REPORT OF THE VICE events for Oklahoma National board meeting, swearing-in PRESIDENT Guard soldiers deploying to ceremony for new board Afghanistan. She met with members, Solo and Small Vice President Strubhar Oklahoma Justice Commission Firm Conference Planning reported she attended the Chair Drew Edmondson, OCU Committee meeting, Military swearing-in ceremony at the Law School Dean Lawrence Assistance Task Force Supreme Court, a swearing-in Hellman and with staff on meeting, Bar Association ceremony for a new judge in improvements and expansion Technology Committee Canadian County, president’s of the Oklahoma Lawyers for meeting, has beens celebra- luncheon, has beens dinner, America’s Heroes website. tion, Southern Conference We the People welcome and of Bar Presidents mid-year awards ceremony, LRE REPORT OF THE meeting, National Conference judging for Supreme Court EXECUTIVE DIRECTOR of Bar Presidents mid-year Teacher and School of the meeting, American Bar Asso- Year award and deployment Executive Director Williams ciation mid-year meeting, ceremony for the 45th in reported he attended the ABA House of Delegates, Oklahoma City. January board meeting, three Yellow Ribbon redeploy- swearing in of officers, has REPORT OF THE been celebration, interviews ment events for Oklahoma PRESIDENT-ELECT National Guard soldiers for MATF coordinator, OBA deploying to Afghanistan — President-Elect Christensen legislative reading day, in Tulsa, Norman and reported she attended the Senate judiciary meeting, Midwest City, and a farewell January board meeting, Bar Association Technology to the 45th ceremony at the swearing-in ceremony for new Committee meeting, Pres- Oklahoma City Arena. board members, Solo and ident’s Summit, NABE, NCBP Small Firm Conference and SCBP meetings in Atlanta She had meetings with Planning Committee meeting, and monthly staff celebration. staff on improvements and Military Assistance Task Force He moderated a program expansion of the Oklahoma meeting, Bar Association at East Central University Lawyers for America’s Heroes Technology Committee featuring retired Justice website, Oklahoma Justice meeting, has beens cele- Hargrave and had a routine Commission Chair Drew bration, Innocence Project meeting with Corevault on Edmondson, OCU Law School luncheon hosted by OCU Law data backup issues. Dean Lawrence Hellman and School, evening reception Innocence Project attorney REPORT OF THE PAST hosted by OCU Law School PRESIDENT Madelene Deleon. She attend- for the Innocence Clinic, ed the Innocence Project Southern Conference of Bar Past President Smallwood luncheon hosted by OCU Presidents mid-year meeting reported he worked with the Law School. She coordinated in Atlanta, National Con- Attorney General’s Office and military CLE with the OBA/ ference of Bar Presidents mid- OBA General Counsel Gina CLE Department and did an year meeting, American Bar Hendryx in defense of attacks interview with KFOR Association mid-year meeting seeking the abolishment of the

1312 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 Judicial Nominating Governor Shields reported however, responses are slow Commission. she attended the January coming in. Board members board meeting, swearing-in agreed to make phone calls, BOARD MEMBER REPORTS ceremony for new board and Ms. Manning said she Governor Carter reported members, president’s would email board members she attended the January luncheon and has beens party. a list of counties that have board meeting, swearing-in She also worked on liaison named chairpersons. issues with the OBF and OBA ceremonies at the Oklahoma OETA FESTIVAL Supreme Court, president’s on the Oklahoma Lawyers for luncheon and has been America’s Heroes out-of-cycle President Reheard reported celebration. She was sworn in grant and on Lawyers Helping the OBA will volunteer to take on February 10 as a special Lawyers nonprofit issues. pledges to support the state’s judge in Tulsa County. PBS television station on REPORT OF THE Governor Chesnut reported GENERAL COUNSEL March 16, 2011. Pledges of he attended the January $5,000 or more from OBA board meeting, swearing-in General Counsel Hendryx members will keep the OBA ceremony for new board reported she attended the in the top donor category members, president’s January meeting of the Ruth recognized each month in luncheon, has beens cele- Bader Ginsburg Inn of Court, its monthly program guide. bration, Solo and Small PRC January meeting and PROFESSIONAL Firm Conference Planning National Organization of RESPONSIBILITY Bar Counsel mid-year meeting Committee meeting and COMMISSION 2010 Ottawa County Bar Asso- in Atlanta. She obtained a ANNUAL REPORT ciation monthly meeting. temporary injunction in an Governor Dobbs reported he unauthorized practice of law General Counsel Hendryx attended the swearing in of matter in Pontotoc County, reported the number of new members, has beens gave a presentation to a legal informal and formal party and January board ethics class at the OU College grievances stayed about meeting. Governor Meyers of Law and to the Oklahoma the same as 2009; however, reported he attended the County Bar Association, the severity of grievances January board meeting, prepared and filed the PRC increased last year. She said swearing-in ceremony, Annual Report with the 2010 was the first year to most president’s luncheon and has Oklahoma Supreme Court, accurately see results from the beens dinner. Governor filed briefs and participated in implementation of the trust Moudy reported she attended the oral argument in the Fent account overdraft reporting the swearing-in ceremony, v. Henry, et.al. case. program. Other bar asso- president’s luncheon and has ciations of similar size in LAW DAY COMMITTEE other states are receiving beens party. She also helped REPORT host a reception for Judge significantly more overdrafts John Maley with the Communications Director than Oklahoma. She noted an Okmulgee County Bar Manning reported the date overdraft notification triggers Association. Governor Pappas for the Ask A Lawyer TV an inquiry, not a grievance. reported she attended the show and free legal advice She said the number one swearing-in ceremony, presi- statewide community service reason overdrafts occur is the dent’s luncheon and has beens project has been confirmed for attorney writes a check before party. She had planned to Thursday, April 28, 2011. She the client’s check is deposited. attend one of her assigned bar said production of the TV She reported diversion school committee meetings, but it show is underway and an is working well, and she was cancelled due to weather. event to honor first-place reviewed the information Governor Poarch reported he contests winners hosted by contained in the report. PRC attended the January board the Supreme Court chief Chair Melissa DeLacerda meeting, swearing-in cere- justice has been planned. She reported the Office of the monies at the Supreme Court, reported the committee is General Counsel is in excellent president’s luncheon, has trying to identify county bar shape and catching up on old beens dinner and Bohanon Inn Law Day chairpersons to cases. She said hiring Ms. of Court. He also worked with share helpful event and Hendryx as general counsel academic legal intern issues. promotion information; was a good decision, and she

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1313 is doing a marvelous job. rules allow for the executive applications for the Licensed Attendance at PRC meetings director to exercise discretion Legal Internship Program. is good, and camaraderie has in granting waivers. OKLAHOMA JUSTICE developed among members. Discussion followed. The COMMISSION The commission is seeing a board agreed with the concept APPOINTMENT trend in lack of civility issues, of a waiver for active duty which is the subject of a new military members but decided President Reheard reported class being developed. to tweak the language, submit that she has appointed W.A. to JAG officers again and “Drew” Edmondson as the PROFESSIONAL submit for an email vote. chairperson of the new RESPONSIBILITY Oklahoma Justice TRIBUNAL 2010 AMENDMENT TO GUIDE Commission. ANNUAL REPORT FOR COMMITTEES AND SECTIONS SECURITIES COMMISSION General Counsel Hendryx NOMINEES reported this year the PRT President Reheard reviewed decided to take responsibility the proposed additions to President Reheard has for filing a separate report paragraph 3.2 of the Guide for been asked to submit the instead of relying on the OGC Committees and Sections that names of several nominees to to prepare it. Board members would require a section to the governor as suggestions were provided a copy for meet annually or be subject for one appointment to the their review. to dissolution. The board Securities Commission, which approved the amendment. AMENDMENT TO is for a six-year term ending July 2017. Board members RULES CREATING AMENDMENT TO THE AND CONTROLLING RULES OF THE SUPREME were asked to send President THE OKLAHOMA BAR COURT OF THE STATE OF Reheard recommendations ASSOCIATION OKLAHOMA ON LEGAL for lawyers who perform INTERNSHIP security work. President Reheard reported a draft of an amendment to Governor Poarch reviewed EXECUTIVE SESSION add a waiver for OBA proposed new Rule 2.3 that The board voted to go into members serving in the would allow more law executive session. The board military was shared with students to have more client met and voted to come out of JAG officers, and they made content. The board approved executive session. suggestions for changes. It the amendment. was noted a CLE exemption NEXT MEETING SUPREME COURT for those in military service REVIEWING PANEL The Board of Governors met already exists. Educational APPOINTMENTS in Muskogee on April 22, Programs Director Douglas 2011, and in Enid on May 13, commented that a dues President Reheard reported 2011. Summaries of those waiver does not automatically the Supreme Court has actions will be published after grant an OBA member a appointed Charles Donald the minutes are approved. The MCLE exemption. A separate Neal Jr., McAlester; Trent Hall next meeting of the Board of application is required for an Baggett, Norman; and Brant Governors will be held June MCLE waiver if the member Matthew Elmore, Norman; as 10, 2011, at the Downstream was not on active duty for the the Supreme Court Reviewing Resort during the Solo and entire year. Administration Panel, which reviews and Small Firm Conference. Director Combs was asked approves law graduate about dues issues. Proposed

1314 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 OKLAHOMA BAR FOUNDATION

Dualies By John Munkacsy

WE OKLAHOMA foundation’s purpose — Law- who were the intended recipi- LAWYERS ARE “DUALIES!” yers Transforming Lives — is ents). A portion also came UPON ADMISSON TO fulfilled, in the name of Okla- from invested funds left by PRACTICE AS AN homa attorneys, by providing caring lawyers who wanted OKLAHOMA LAWYER, critical funding to qualified to provide a continuance WE HOLD MEMBERSHIP organizations that meet the in shaping the future of an IN THE OKLAHOMA BAR legal needs of disadvantaged educated and participating ASSOCIATION (OBA) AND Oklahomans. Through the citizenry long after they THE OKLAHOMA BAR year 2010, the foundation has were gone. FOUNDATION (OBF). awarded grants totaling in Dualies work in tandem to excess of $9.5 million. The The OBA and the OBF are pull a heavy load and provide awards were given in your sister organizations with par- added support. The OBF Fel- name! Do you know from allel missions assisting each lows program is an excellent whence the $9.5 million came? other in fulfilling their respec- way to strengthen the work tive missions and purposes. Without the funding provid- being accomplished and here The foundation is organized ed by the foundation, some is how it works. under section 501(c)(3) of the Oklahoma domestic violence Dedicated Oklahoma law- Internal Revenue Code as a victims might be without pro- yers have joined forces to charitable organization and is tection; some elderly Oklaho- further the foundation’s chari- governed by a Board of Trust- mans might be without legal table work as Fellows by ees. Nancy Norsworthy, direc- assistance on issues ranging making individual donations tor of the foundation, is in her from fraud to consumer debt; in the amount of $1,000 — 26th year and is ably assisted and some abused and neglect- either through a one-time by Ronda Hellman. A third ed Oklahoma children might pledge, or payment of $100 a staff position is currently not receive pro bono legal year for 10 years. Most Fel- vacant. The bar association services. Financial support by lows after meeting their operates under the auspices of the foundation to nonprofit pledge have continued with the Oklahoma Supreme Court organizations furnishing legal annual giving as Sustaining and falls under the direction services to thousands of Okla- Fellows and others have of the Board of Governors and homans — Oklahoma lawyers stepped up to the premier John Williams, the executive indeed transform lives. Benefactor Fellows level in director. Each organization The $9.5 million came (and continuing support to the endeavors to better the public funding continues) from three foundation through annual understanding and respect for primary sources, the OBF gifts of $300. The foundation the legal profession. Fellows program, Interest even has a special reduced The foundation’s investment On Lawyers Trust Accounts payment plan for newly portfolio is under the manage- (IOLTA) and Cy Pres awards admitted lawyers. The Fellows ment of Bank of Oklahoma. (surplus funds in class action signup process is easy and Throughout BOK’s manage- and other proceedings, that all contributions are tax- ment, the foundation’s invest- for any number of reasons deductible; a form follows ments have outperformed cannot be distributed to the for that purpose. market indices. The class members or beneficiaries

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1315 The equivalent of less than Welcome honored members mitment to help in providing one hourly billing annually of the OBF Fellows Program. legal-related services all can allow the foundation to The following distinquished across the state. increase charitable work lawyers and supporters of the across Oklahoma. We need law are new Fellows or have your support to be able to recently converted to higher strengthen services through- levels, as noted. Many thanks out Oklahoma. for your generosity and com-

Benefactor Fellows of the Oklahoma Bar Foundation David O. Beal, Oklahoma City Thomas W. Hosty, Oklahoma City G. David Bryant, Oklahoma City James M. Levine, Oklahoma City James B. Blevins Jr., Oklahoma City Prof. Judith L. Maute, Norman Judge James Michael Caputo, Owasso Miles C. Zimmerman, Chandler Frederic Dorwart, Tulsa

Sustaining Fellows of the Oklahoma Bar Foundation Belva Brooks Barber, Poteau Gordon R. Melson, Seminole Stephen D. Beam, Weatherford Mack J. Morgan III, Oklahoma City Ret. Judge Nancy L. Coats-Ashley, Oklahoma City Susan A. Muscari, Tulsa Gary W. Derrick, Oklahoma City Judge Gerald F. Neuwirth, Lawton Kent W. Gardner, Oklahoma City Robert J. Nichols, Tulsa John W. Garland, Anadarko Phillip R. Scott, Waurika David R. Garrison, Ponca City Leland W. Shilling, Purcell Justice Noma Gurich, Oklahoma City Brian E. Shipp, Idabel James F. Howell, Midwest City Kimberlee T. Spady, Hinton Bryce Johnson, Oklahoma City Dave Stockwell, Norman Judge William C. Kellough, Tulsa T. Douglas Stump, Oklahoma City Jeff E. Lynch, Edmond Ken Ray Underwood, Tulsa William D. Lunn, Tulsa Tom Walker, Ardmore Mack K. Martin, Oklahoma City

Fellows of the Oklahoma Bar Foundation Aaron M. Arnall, Midwest City Brandon P. Long, Oklahoma City Jennifer Beale, Oklahoma City Andrew Lee McAlester, Tulsa Mike Blake, Oklahoma City Michelle Jane Millbern, Alexandria Ryan Lee Brown, Oklahoma City Linda M. Modestino, Yukon Chris J. Collins, Oklahoma City Jeffrey E. Niese, Tulsa Amber R. Corbin, Oklahoma City Warren Chiahsiung Plunk, Oklahoma City Denis Cote, Altus Timothy Lee Rogers, Tulsa Charles Eric Davis, Lawton Sarah J. Schumacher, Oklahoma City Christin Murphy Donovan, Tulsa Catherine Rose Seagraves, Stillwater Broc L. Elmore, Norman Stephanie Singer, Tulsa Prof. Martin A. Frey, Tulsa Valerie R. Smith, Oklahoma City Tiffany N. Graves, Tulsa Sarah C. Stewart, Oklahoma City Rachel Gusman, Tulsa Justin Clay Stout, Muskogee Misti D. Halverson, Wayne Roy D. Tucker, Muskogee John E. Harper Jr., Tulsa Lee Turner, Ponca City Suzanne P. Heggy, Yukon Benjamin D. Waters, Tulsa Gregory M. Heiser, Norman Samantha Weyrauch, Tulsa Rex Hodges, Oklahoma City Stephanie D. Jackson, Oklahoma City John D. Muncaksy Jr. is the president of the Kristi A. Johnson, Blanchard Oklahoma Bar Foundation. He can be reached at Sabah Khalef, Tulsa Jennifer H. Kirkpatrick, Oklahoma City [email protected]. David Leavitt, Edmond Lawyers Transforming Lives — Our OBF Mission: To promote justice, fund critical legal services, and advance public awareness of the law.

1316 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 FELLOW ENROLLMENT FORM Attorney Non-Attorney

Name: (name, as it should appear on your OBF Fellow Plaque) County Firm or other affiliation:

Mailing & delivery address:

City/State/Zip:

Phone: E-Mail Address: The Oklahoma Bar Foundation was able to assist 23 different programs or projects during 2010 and 25 in 2009 through the generosity of Oklahoma lawyers – providing free legal assistance for the poor and elderly; safe haven for the abused; protection and legal assistance to children; law-related education programs; other activities that improve the quality of justice for all Oklahomans. The Oklahoma Bar legend of help continues with YOU.

I want to be an OBF Fellow now – Bill Me Later! $100 enclosed & bill annually LAWYERS Total amount enclosed, $1,000 TRANSFORMING LIVES New Lawyer 1st Year, $25 enclosed & bill annually as stated Through education, citizenship and New Lawyer within 3 Years, $50 enclosed & bill annually as stated justice for all. I want to be recognized at the higher level of The Oklahoma Bar Sustaining Fellow & will continue my annual gift legend of help continues of at least $100 – (initial pledge should be complete) with YOU! I want to be recognized at the highest leadership level of Benefactor Fellow & annually contribute at least $300 – (initial pledge should be complete)

∞ To become a Fellow, the pledge is $1,000 payable within a 10-year period at $100 each year; however, some may choose to pay the full amount or in greater increments over a shorter period of time.

∞ The OBF offers lesser payments for newer Oklahoma Bar Association members: — First Year Lawyers: lawyers who pledge to become OBF Fellows on or before Jan. 2, of the year immediately following their admission may pay only $25 per year for two years, then only $50 for three years, and then at least $100 each year thereafter until the $1,000 pledge is fulfilled. — Within Three Years: lawyers admitted three years or less at the time of their OBF Fellow pledge may pay only $50 per year for four years and then at least $100 each year thereafter until the $1,000 pledge is fulfilled.

∞ Sustaining Fellows are those who have completed the initial $1,000 pledge and continue their $100 annual contribution to help sustain grant programs.

∞ Benefactor Fellows is the highest leadership giving level and are those who have completed the initial $1,000 pledge and pledge to pay at least $300 annually to help fund important grant programs. Benefactors lead by example.

Your Signature & Date: OBA Bar#

PLEASE KINDLY MAKE CHECKS PAYABLE TO: Oklahoma Bar Foundation • P.O. Box 53036 • Oklahoma City, OK 73152-3036 • (405) 416-7070 Many thanks for your support & generosity!

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1317 LAWYERS FOR HEROES

A Day to Remember By Jeff Kelton

The day began for OBA President Deborah Reheard and President-Elect Cathy Christensen on April 27 at 0500 hours. That’s 5 a.m., also known as way too early. Wakeup call, breakfast, bus to Tinker Air Force Base, flight on a military KC-135 to Gulf- port, Miss., mid-air refueling of two F-16 jets, bus to Camp Shelby, High Mobility Multi- purpose Wheeled Vehicle (Humvee) rollover crash training, rifle ranges and OBA President Deborah Reheard and President-Elect patrolling mock villages. An Cathy Christensen unbelievable trip for civilians to experience, just another day in the life of a military and I couldn’t scream,” nent members and their civil- service member awaiting Reheard said. ian employers and to assist in the resolution of conflicts deployment. “I don’t think I had a realis- arising from an employee’s tic grip on how much they Reheard and Christensen military commitment. quickly learned they hadn’t trained and the time they sac- volunteered for a Disney ride. rifice for us — the intensity “These brave people chose After about 10 minutes of get- and sophistication of the to leave their day jobs and ting “suited” up — helmet, training — until I saw it first- volunteer to honor this com- protective vest, and elbow hand, and we got the mild mitment that doesn’t let up, and knee pads — they version,” Reheard said. regardless of the circumstances. I felt it was important to walked up the platform and The two bar leaders go to continue to show sup- entered the Humvee. With traveled to Camp Shelby as port,” Reheard said. gunfire blaring through the part of the group Employer speakers, the vehicle rolled Support of the Guard and The opportunity came from side to side and turned Reserve (ESGR) to support about once Reheard recog- completely upside down. “I the thousands of men and nized a need and developed admit I screamed like a girl women of the 45th Infantry — Oklahoma Lawyers for but I didn’t scream the whole of the Oklahoma National America’s Heroes — provid- time. When we went com- Guard set to leave for the Mid- ing free legal advice to those pletely upside down, I quit dle East very soon. ESGR was who have honorably served screaming. My vest had established in 1972 to promote or are serving this nation who moved up over my windpipe cooperation and understand- otherwise cannot afford or do ing between Reserve compo- not have access to the legal

1318 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 services they need. Through The trip for the civilians vice. President Reheard says her initiative, she began mak- came to a close that after- the time is now to help those ing contacts and became noon. But what ended as a who help us. involved with the various Yel- day trip for Reheard and “Seeing what these people low Ribbon ceremonies for Christensen is daily reality for go through, and the focus it the soldiers who were about the brave men and women takes, the last thing they need to be deployed. These events who protect our freedom — while overseas is to be worry- would act as a sendoff and and it is now time to help ing about issues they have vendors would provide protect them. going on at home,” she said. resources and materials to VOLUNTEERS STILL help them and their families. NEEDED Reheard hopes to one day visit Camp Shelby again to “As they get closer and Oklahoma lawyers are still support the brave men and closer to deployment, the needed to volunteer pro bono women of the armed services. intensity and the emotions legal services, especially those build. While I knew we with experience in family law, “I’ve already put it on my wouldn’t have the opportuni- estate planning, consumer list as one of the top 10 expe- ty at Camp Shelby to answer and credit issues, and disabil- riences of my life.” legal questions, we could ity and benefits issues. Go to She hopes her story pro- show them that we are www. okbar.org/heroes to behind them, not just when it vides you with more incen- sign up. You’ll also find tive to volunteer and realize was easy or convenient for resource materials to prepare us,” Reheard said. that there is a large group you for your volunteer ser- who still needs legal help.

Family & Divorce Mediation Training OKC • June 1 - 4 Tulsa • May 25 - 28

Approved for 40 hours of MCLE credit This course is lively and highly participatory and will include lecture, group discussion, and simulated mediation exercises Cost: $625 includes all materials To get your The Course for Professional Mediators in Oklahoma free listing on This course fulfills the training requirements set forth the OBA’s lawyer in the District Court Mediation Act of 1998 listing service! Contact: Just go to www.okbar.org and log into The Mediation Institute your myokbar account. (405) 607-8914 James L. Stovall, Jr. Then click on the 13308 N. McArthur “Find a Lawyer” Link. Oklahoma City, OK 73142

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1319 ACCESS TO JUSTICE

The Impact of Cumulative Knowledge By Karen A. Pepper Mueller

To be perfectly honest, I whose board of trustees gra- of their problems — further was skeptical. When the con- ciously allows The Project to expediting the process. cept of establishing the first call the library home. Not to In the early days, it was easy ever weekly pro bono pro se mention the domestic judges, to keep track of the number of waiver divorce docket clinic at who, with the endorsement of clients we had served, but as the Oklahoma County Court- the presiding district court the months went by I have lost house was presented — its judge eagerly courted The count of how many have bene- mission: to assist pro se liti- Project, (no pun intended!), fited. Several hundred is prob- gants whose divorces are recognizing how it could ably a conservative estimate. denied due to defects in pro- substantially improve docket On any given Thursday after- cedure and paperwork — I efficiency and promote good noon, our team works fever- thought, “No way!” Although will in the community. ishly to have flawed divorce inarguably a fabulous idea, decrees corrected and ap- how could we possibly find proved that same day. Work the legal resources to invent schedules, transportation and such a place? In the early days, children often impair a client‘s In March 2011, The Project, ability to return on subsequent as it has affectionately become it was easy to keep days. Also, situations of known, celebrated its first year domestic violence, for which anniversary. From a handful of track of the number The Project screens, providing inventors, now on any given safety measures and contact Thursday afternoon, The Proj- of clients we had information when needed, put ect boasts two or three volun- clients at additional risk when teer attorneys, who rotate served… requiring further contact with weekly from a roster of close an abuser to finalize divorce to 20, the pro bono coordinator proceedings. of Legal Aid Services of Okla- As with most great concepts, homa, a professor from Okla- The Project now enjoys a the success of The Project can homa City University School full-time administrator, a dedi- be attributed to collective sac- of Law, along with several law cated Oklahoma City Univer- rifice…of time, knowledge, students (35 of whom have sity law student who attends energy and creative thought. now participated), and an Monday and Wednesday’s pro At first, just a handful of attorney from The Department se dockets before the clinic for- visionaries — we met, we dis- of Human Services, Child Sup- mally commences operations cussed, we researched legal port Division. As if that isn’t prior to Thursday’s docket — and ethical considerations, we extraordinary enough, The preparing intake forms and debated, we created and con- Project also enjoys the hospi- giving us a “heads up” on tinued to pull more volunteers tality of the wonderful and how many clients may be in. Says OBA Ethics Counsel knowledgeable Oklahoma awaiting us when we arrive Travis Pickens, with whom we County Law Library staff, on Thursday, and the nature visited, “The Project is a win/

1320 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 win/win situation. The liti- appears (most days) to func- assistance but who did not gants benefit from professional tion effortlessly. I recognize know where to turn, who advice, the judges benefit from that my presence is no longer could not afford to find the faster, smoother dockets, and essential. On the days when help they needed and believed OCU students benefit from other commitments prevent their situation to be helpless. observing actual hearings me from volunteering, I have The team’s efforts in many guided by some of our best confidence that the process, ways have also changed the lawyers.” When the inevitable under the direction of many clients’ perceptions of attor- day came for us to launch The capable hands, will flow neys and the court system and Project, we stepped back, held smoothly: from the stunned represent what is good about our breath and watched our disbelief of pro se litigants as our profession.” creation take its first steps… the court pronounces fatal Still, I am regularly drawn defects; to the consultation and My skepticism has been back each week, to observe, subsequent brainstorming replaced with pride, that a to assist and to marvel at this among seasoned legal veterans vibrant collaboration of out- collaborative achievement. and enthusiastic law students; standing, often untapped legal In the scheme of the universe, to the grateful smiles of relief, resources has sprung to life,1 not all that many billable resolution and closure when its heart safely tucked in the hours ago, I was one of those the judge approves the newly law library, a sanctuary for eager law students I now have corrected papers, most often legal knowledge, access to jus- the privilege to mentor, who on the same day. tice and hope. Its mission, to couldn’t wait to make a differ- provide access for those whose One of the domestic docket ence in our community. Now I access has hit a temporary judges, who presided over the understand, that for a lawyer, bump (sometimes mountain!) inaugural docket for The Proj- it just doesn’t get much better in the road. Always solvable, ect and who has presided over than this. with the right resources and subsequent monthly dockets, Ms. Mueller practices in Okla- determination. And I wonder, stated that “It has been a priv- homa City. if too often we overlook and ilege to work with all of the take for granted the power volunteers and to see a project 1. The Oklahoma County Courthouse Pro and impact of the cumulative that truly provides access to Se Waiver Divorce Docket Project is a collaboration of Oklahoma County pro bono lawyers; knowledge we have to share. justice for people in need to Oklahoma City University School of Law; come together in such a cohe- Legal Aid Services of Oklahoma; district court For me, the joy of The Proj- sive manner. The efforts of judges; Oklahoma Child Support Services, a ect’s success is bittersweet. division of DHS; and the Oklahoma County this team have changed the Merely a year after its primi- Law Library staff and Board of Trustees. lives of citizens who needed tive, awkward debut, it

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1321 YOUNG LAWYERS DIVISION YLD Events Prove Successful, More to Come By Roy D. Tucker, YLD Chairperson

The YLD’s hard work paid off in April, when Okla- homa became one of four states that have fully imple- mented the Serving Our Seniors Project. The state joins Georgia, Montana and New Mexico in efforts to assist senior citizens with legal needs; 18 other states have similar projects in the works. The YLD project kicked off at the Muskogee Public Library, with YLD directors and volunteers drafting estate plans for qualified senior citizens. Though the turnout was modest for those who ventured out under the drizzly sky to take advantage of the free service, the enthusiasm was high for those who did. During the Muskogee Mayor John Tyler Hammons joins course of the day, the words “thank you” were uttered YLD members in showing his support for the SOS too many times to count, followed by heartfelt and sin- project. Front row, from left: Michael Cooper, Nick cere “you’re welcome’s.” Plans for a second project date Jones, Roy Tucker, Mayor Hammons, Tim Doty. in the Oklahoma City metro area are in the works by Back row, from left: Bryon Will, Kaleb Hennigh, Seniors Committee Co-Chairs Amber Peckio Garrett and Eric Davis, LeAnne McGill, Joe Vorndran. Bryon Will. In September, the YLD will host a third project in Tulsa. The YLD appreciates the volunteers who assisted with the project: Nick Jones of Barrow & Grimm, Christine McInnes of McAtee and Woods, and Tim Doty of Loves. Also in April, the YLD held its second annual statewide community service day at homeless shelters across the state. In Oklahoma City, volunteers landscaped the grounds at the City Rescue Mission. In Tulsa, volunteers painted walls and bookshelves in the family playroom at the Day Center for the Homeless. In Muskogee, volunteers painted bathrooms, replaced ceiling tiles and cleaned the pantry at the Gospel Rescue Mission. In Lawton, volunteers painted and installed 10 new doors at the Carter Crane Emergency Homeless Shelter. In Shawnee, volunteers from the Pottwatomie County Bar Associa- tion sorted food and toiletries at the Shawnee Rescue Mission. Each of these projects was completed in one day. While the work was hard, YLD member Justin Stout cleans the results were rewarding. Special the showers at Muskogee’s Gospel Rescue Mission, while volunteer Jus- thanks to our Community Service YLD Chair Roy Tucker paints the tin Tehauno, a student at Bacone Col- Committee Co-Chairs, Jennifer pantry at the Gospel Rescue Mission lege, tackles the walls. Kirkpatrick of Hall Estill and Colin in Muskogee.

1322 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 Walke of Sweet Law Firm, as with the annual well as each of our YLD vol- Solo and Small unteer coordinators at each Firm Confer- site. Photos taken during ence, set for these “done in a day” com- June 9-11 at the munity service events accom- Downstream pany this article. Casino Resort in northeastern The YLD welcomed 60 new Oklahoma. Reg- and young lawyers to the istration and Oklahoma Bar and the Young information Lawyers Division at the bian- for our meeting nual new admittee receptions is available at held in Oklahoma City and www.okbar. Tulsa. We hope these new org/solo. Oklahoma County YLD members “get their hands members join us next month dirty” in the garden at City Rescue Mission. From left: for the YLD Midyear Meet- Jennifer Kirkpatrick, LeAnne McGill, Karolina Roberts. ing, scheduled to coincide

Tulsa volunteers take a break from their hard work during Lawton area lawyers pose for a group shot their service at Day Center for the Homeless. From left: Larry during their day working at the Carter Crane Rose, Tim Rogers, Molly Lawyer, Nate Lawyer, Briana Ross, Emergency Homeless Shelter. Front: Mark Michael Cooper, Jeremy War, Jeff Niese. Stoneman. Middle, from left: Ana Basora-Walker, Irma Newburn. Back, from left: John Kinslow, Jared Ellis, Eric Davis, Jillian Welch.

Jennifer Kirkpatrick, LeAnne McGill, Lane Neal, Kar- olina Roberts and Collin Walke work in the garden at City YLD volunteers renovate the family playroom at Day Rescue Mission in Oklahoma City. Center for the Homeless in Tulsa.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1323 Lawton attorney Ana Basora-Walker works on one of 10 new doors at the Carter Crane Center. Mark Stoneman installs a new door at the homeless shelter in Lawton.

Irma Newburn paints at the Lawton shelter. Luwana John prepares walls for a fresh coat of paint at the Carter Crane Shelter in Lawton.

YLD News Become an OBA Connect With Us! Committee Member www.okbar.org/yld Volunteer alongside judges www.facebook.com/obayld and bar members Make a Difference (30 committees and task Get involved with YLD forces to choose from) projects that better the More information at community. www.okbar.org/members/ Learn more about the committees projects and how to sign up at www.okbar.org/yld.

1324 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 Calendar May 30 OBA Closed – Memorial Day Observed 17 OBA Civil Procedure and Evidence Code Committee Meeting; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: James Milton (918) 591-5229 June 18 Oklahoma Council of Administrative Hearing Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma 2 OBA Men Helping Men Support Group; 5:30 p.m.; City and Tulsa County Bar Center, Tulsa; Contact: The Oil Center – West Building, 1st Floor Conference Carolyn Guthrie (405) 271-1269 Ext. 56212 Room; Oklahoma City; RSVP to: Stephanie Alton OBA Women in Law Committee Meeting; (405) 840-3033 3:30 p.m.; Oklahoma Bar Center, Oklahoma City and OBA Women Helping Women Support Group; Tulsa County Bar Center, Tulsa; Contact: Deborah Bruce 5:30 p.m.; The Center for Therapeutic Interventions; (405) 528-8625 Tulsa; RSVP to: Stephanie Alton (405) 840-3033 19 OBA Bench & Bar Committee Meeting; 12 p.m.; 3 OBA Board of Editors Meeting; 10 a.m.; Oklahoma Oklahoma Bar Center, Oklahoma City and Tulsa Bar Center, Oklahoma City and Tulsa County Bar Center, County Bar Center, Tulsa; Contact: Barbara Swinton Tulsa; Contact: Carol Manning (405) 416-7016 (405) 713-7109 OBA Lawyers Helping Lawyers Assistance OBA Bar Association Technology Committee Program Meeting; 12 p.m.; Oklahoma Bar Center, Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City Oklahoma City with teleconference; Contact: and OSU Tulsa; Contact: Gary Clark (405) 744-1601 Donita Douglas (405) 416-7028 Oklahoma Bar Foundation Committee Meeting; OBA Military Task Force Meeting; 12 p.m.; 20 12:30 p.m.; Oklahoma Bar Center, Oklahoma City and Oklahoma Bar Center, Oklahoma City; Contact: OSU Tulsa; Contact: Nancy Norsworthy (405) 416-7070 Deborah Reheard (918) 689-9281 OBA Access to Justice Committee Meeting; 7 OBA Legal Intern Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma City and 3 p.m.; Oklahoma Bar Center, Oklahoma City with Tulsa County Bar Center, Tulsa; Contact: Jim Stuart teleconference; Contact: Candace Blalock (405) 275-0843 (405) 238-3486 21 OBA Young Lawyers Division Committee Meeting; 10 a.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Roy Tucker (918) 684-6276 23 OBA Alternative Dispute Resolution Section Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: D. Michael O’Neil Jr. (405) 239-2121 25 OBA Professionalism Committee Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa County Bar Center, Tulsa; Contact: Patricia Podolec (405) 760-3358 26 OBA Men Helping Men Support Group; 5:30 p.m.; The Center for Therapeutic Interventions; Tulsa; RSVP to: Stephanie Alton (405) 840-3033 OBA Justice Commission Meeting; 2 p.m.; Oklahoma Bar Center, Oklahoma City; Contact: Drew Edmondson (405) 235-5563

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1325 8 OBA Diversity Committee Meeting; 12 p.m.; OBA Bar Association Technology Committee Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma Oklahoma Bar Center, Oklahoma City and Tulsa City and OSU Tulsa; Contact: Gary Clark County Bar Center, Tulsa; Contact: Jeff Trevillion (405) 744-1601 (405) 778-8000 OBA Government and Administrative Law 21 OBA Civil Procedure and Evidence Code Practice Section Business Meeting; 4 p.m.; Committee Meeting; 3:30 p.m.; Oklahoma Bar Oklahoma Bar Center, Oklahoma City; Contact: Center, Oklahoma City and OSU Tulsa; Contact: Bryan Neal (405) 522-0118 James Milton (918) 591-5229 9-11 Solo and Small Firm Conference; Downstream 22 OBA Professionalism Committee Meeting; Casino Resort; Quapaw, Oklahoma; Contact: OBA 4 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa Management Assistance Program (405) 416-7008 County Bar Center, Tulsa; Contact: Patricia Podolec (405) 760-3358 9 OBA Women Helping Women Support Group; 5:30 p.m.; The Oil Center – West Building, 23 OBA Men Helping Men Support Group; 10th Floor; Oklahoma City; RSVP to: Stephanie Alton 5:30 p.m.; The Center for Therapeutic Interventions; (405) 840-3033 Tulsa; RSVP to: Stephanie Alton (405) 840-3033 OBA Justice Commission Meeting; 2 p.m.; 10 Board of Bar Examiners Meeting; 9 a.m.; Oklahoma Bar Center, Oklahoma City; Contact: Oklahoma Bar Center, Oklahoma City; Contact: Drew Edmondson (405) 235-5563 Cheryl Beatty (405) 416-7075 OBA Audit Committee Meeting; 3:30 p.m.; OBA Board of Governors Meeting; Downstream Oklahoma Bar Center, Oklahoma City and Tulsa Casino Resort; Quapaw, Oklahoma; Contact: County Bar Center, Tulsa; Contact: Susan Shields John Morris Williams (405) 416-7000 (405) 235-9621 OBA Family Law Section Meeting; 3:30 p.m.; Downstream Casino Resort; Quapaw, Oklahoma; 24 OBA Access to Justice Committee Meeting; Contact: Kimberly Hays (918) 592-2800 3 p.m.; Oklahoma Bar Center, Oklahoma City and OSU Tulsa; Contact: Jim Stuart (405) 275-0843 OBA YLD Midyear Meeting; Downstream Casino Resort; Quapaw, Oklahoma; Contact: Roy Tucker 27 OBA Alternative Dispute Resolution Section (918) 684-6276 Meeting; 4 p.m.; Oklahoma Bar Center, Oklahoma Oklahoma Association of Black Lawyers City and Tulsa County Bar Center, Tulsa; Contact: Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma D. Michael O’Neil Jr. (405) 239-2121 City; Contact: Donna Watson (405) 721-7776 14 OBA Law-related Education Foundations of July Democracy Institute Dinner; Norman, Oklahoma; Contact: Jane McConnell (405) 416-7024 OBA Law-related Education Task Force 4 OBA Closed – Independence Day Observed Meeting; 3 p.m.; Oklahoma Bar Center, Oklahoma OBA Men Helping Men Support Group; City and Tulsa County Bar Center, Tulsa; Contact: 7 5:30 p.m.; The Oil Center – West Building, 1st Floor Reta Strubhar (405) 354-8890 Conference Room; Oklahoma City; RSVP to: 15 Oklahoma Council of Administrative Hearing Stephanie Alton (405) 840-3033 Officials; 12 p.m.; Oklahoma Bar Center, Oklahoma 8 OBA Communications Committee Meeting; City and Tulsa County Bar Center, Tulsa; Contact: 12 p.m.; Oklahoma Bar Center, Oklahoma City and Carolyn Guthrie (405) 271-1269 Ext. 56212 OSU Tulsa; Contact: Mark Hanebutt (405) 948-7725 OBA Women in Law Committee Meeting; OBA Family Law Section Meeting; 3:30 p.m.; 3:30 p.m.; Oklahoma Bar Center, Oklahoma City Oklahoma Bar Center, Oklahoma City and OSU Tulsa; and Tulsa County Bar Center, Tulsa; Contact: Contact: Kimberly Hays (918) 592-2800 Deborah Bruce (405) 528-8625 13 OBA Diversity Committee Meeting; 12 p.m.; 16 OBA Bench & Bar Committee Meeting; 12 p.m.; Oklahoma Bar Center, Oklahoma City and Tulsa Oklahoma Bar Center, Oklahoma City and Tulsa County County Bar Center, Tulsa; Contact: Jeff Trevillion Bar Center, Tulsa; Contact: Barbara Swinton (405) 778-8000 (405) 713-7109

1326 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 FOR YOUR INFORMATION

Jaques’ Long-Time Service Recognized

The Oklahoma Supreme Court and the OBA Board of Bar Examiners recently honored Frank Jaques of Ada for his 40 years of service to the association as a member of the Oklahoma Board of Bar Examiners. Mr. Jaques retired from the board in December 2009 and has seen the board through many changes over his 40 years of volunteer service. Having been appointed by Oklaho- ma Supreme Court Chief Justice Pat Irwin, at the request of Justice Den- ver Davidson in 1969, he served as Frank Jaques and Retired Justice Rudolph Hargrave view the chairman of the board in 1975, 1986 bronze plaque honoring Mr. Jaques that will be displayed at and 1995. He was subsequently the Pontotoc County Law Library. reappointed at the request of Justice Rudolph Hargrave for the remaining terms. invaluable guidance and counsel to the board Justice Hargrave himself retired from the through the many changes the admission pro- Oklahoma Supreme Court in December 2010. cess has seen during his years of service.” More than 90 percent of lawyers practicing In recognition of his service, the board pre- today in Oklahoma were admitted during Mr. sented him with a bronze plaque that, with Jaques’ service to the board. the assistance of the Pontotoc County Bar Association, will be dedicated on May 20 BBE member Ron Wright of Muskogee said, in Ada, and will hang in his honor at the “Mr. Jaques served the Board of Bar Examin- Pontotoc County Law Library. ers with integrity and concern and provided

High School Mock Trial Team Earns Top 15 Spot at Nationals Nine students from Christian Heritage Academy in Del City competed in the National High School Mock Trial Competition, held earlier this month in Phoenix. The team placed 13th in the final standings. The Christian Heritage Academy team earned the right to advance to nationals representing Oklahoma by defeating Clinton High School in the state championship. The national competition featured 48 championship- winning teams, including teams from Guam, Australia and South Korea and first place teams from across the country. Indiana’s team took home first place honors.

Bar Journals Take Summer Vacation Look for the next bar issue of the Okla- Christian Heritage Academy Mock Trial team homa Bar Journal (with color cover) to be members take a break in the courtroom during the published Aug. 6. You’ll still receive court National Finals competition May 6-8, 2011. material in June and July. Deadline for sub- missions for the next news issue is July 11.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1327 Judge DeBerry Honored for Efforts to Prevent Child Abuse Associate District Judge Michael DeBerry of Idabel received the Outstanding Elected Official Award presented by the State Inter- agency Child Abuse Prevention Task Force. Judge DeBerry presides over deprived child, juvenile and domestic cases in McCurtain County. The task force says he was chosen for the honor because he has devoted his entire career to providing the babies, children and parents of McCurtain County with the support and encouragement needed to reach their full potential in life. The task force also recognized him for making himself available for the Child Welfare and Protective Services whenever Judge Michael DeBerry he is needed, even if it is in the middle of the night, saying nothing is more important to him than the safety of children. The task force also lauded Judge DeBerry for ensuring that his staff receives continuing education about the latest laws regarding children and that parents understand the importance of parenting classes to help them provide a safe and loving environment for children, saying his decisions always revolve around the child’s safety.

Justice Kauger Named Red Earth Ambassador Oklahoma Supreme Court Justice Yvonne Kauger has been named Red Earth Ambassador of the Year for 2011. The award is presented to individuals who have made a significant contribution in presenting a more positive image of Native Americans. Justice Kauger will be honored at the upcoming Red Earth Gala scheduled for June 2, 2011, at the Cox Convention Center in Oklahoma City. The proceeds of this event will benefit the Red Earth Museum and Education Program. The goal of Red Earth is to provide arts and cultural education programs to students of all ages and to showcase the heritage that is uniquely Oklahoma. Justice Yvonne Kauger

OBA Member Reinstatements OBA Member Resignations The following member of the OBA suspend- The following members have resigned as ed for nonpayment of dues has complied members of the association and notice is with the requirements for reinstatement, and hereby given of such resignation: notice is hereby given of such reinstatement: Annie D. Dawson Herbert Randolph Taylor OBA No. 21956 OBA No. 12869 333 Andover Dr., No. 252 230 N. Collegiate Dr. Burbank, CA 91504 Paris, TX 75460-4800 Joe W. Hamlin OBA No. 3766 Holiday Hours 310 N.W. Ridgeview Way Lawton, OK 73505 The Oklahoma Bar Center will be closed Monday, May 30, for Memorial Cynthia A. Klots Day and Monday, July 4, to observe OBA No. 15279 Independence Day. 51112 Plymouth Valley Dr. Plymouth, MI 48170

1328 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 BENCH & BAR BRIEFS

D. Gordon and Randall J. the Chickasaw Nation since Snapp. 2004. She is a graduate of the OU College of Law. he winners of the annual TJournal Record Leader- he Patrick Aaron Thomp- ship in Law Award were Tson law firm announces announced during the Okla- that Charles Michael Thomp- nnette Prince of Oklaho- homa County Bar Association son will join the firm, the Ama City has been named Law Day Luncheon May 2. name of which will become 2011 Social Worker of the Year OBA President Deborah Thompson Law Firm. The by the National Association Reheard of Eufaula is among firm will practice primarily in of Social Workers Oklahoma the winners for 2011. Other the areas of criminal defense, Chapter. The association winners this year are: Jacob family law, consumer bank- chooses a member who exem- Diesselhorst, Edmond; from ruptcy, wills and probate, and plifies the profession’s best Oklahoma City: Supreme real property in Lincoln, values, demonstrated by dis- Court Justice Tom Colbert, Logan, Noble, Payne, Pawnee tinguished achievement and Paul Dudman, Drew and Creek counties. Edmondson, Eric Fisher, specific accomplishments in ornbeek Vitali & Braun Sam Fulkerson, Lawrence the practice of social work. PLLC announces Larry Hellman, Doneen Douglas H She received the award dur- G. Cassil Jr. has become of Jones, Supreme Court Justice ing the annual meeting. counsel to the Oklahoma City Yvonne Kauger, Court of firm. Mr. Cassil will practice ynda Ottaway of Oklaho- Criminal Appeals Judge with the firm’s civil litigation ma City was recently David Lewis, Jim Priest, C department, focusing primar- elected to serve as president Susan Shields, Ryan Wilson, ily on insurance coverage/ of the American College of Michael Wofford and J. Todd bad faith, employment and Trust and Estate Counsel Woolery. Winners from Tulsa appellate law. He is a 1988 Foundation for the 2011-2012 are Gary Betow, Steven graduate of the Columbia year. The college is a national, Broussard, Renée DeMoss, School of Law. nonprofit association of 2,600 Walter Echo-Hawk Jr., Ger- trust and estate lawyers peer- ald Hilsher, Graydon Dean he Shelton Voorhees Law elected to membership based Luthey Jr., Lori Roberts and TGroup announces Bryan on substantial contributions Kathy Taylor. K. Walkley has joined the to the field of trusts and Oklahoma City firm. Mr. estates law. Walkley will continue his erry E. Shiles of Oklahoma practice emphasizing bad faith JCity has been appointed to insurance, business and com- the advisory board of the mercial law, personal injury, DocuBank Electronic Health- products liability, homeowners care Directives Registry, a associations, real estate and national registry for advance disputes involving wills and trusts. He will also continue as medical directives. herry Abbott Todd of Ada a trained mediator in both has taken oath of office as rowe & Dunlevy recently S civil and family law. Mr. special judge of the District announced its 2011 execu- Walkley can be contacted at C Court of the Chickasaw tive committee. The firm has (405) 605-8800; bwalkley@ Nation, replacing Special re-elected Roger A. Stong sheltonlawok.com. Dustin P. Rowe president. Joining him on the Judge , who committee will be new addi- was recently appointed elker, Sander & Associates tions Robert G. McCampbell Chickasaw Nation District FPC announces Katherine and Timila S. Rother, as well Court Judge. Ms. Todd had A. Smith of Oklahoma City as returning members Kevin been serving as the magis- has joined the firm as an asso- trate of the District Court of ciate. Ms. Smith will assist the

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1329 firm in its practice areas of be reached at lavey@ sumer law, copyright and creditor’s rights, subrogation oklawpartners.com. Mr. trademark infringement, anti- and defense in civil matters. Stokes concentrates his prac- trust and related litigation. She holds an undergraduate tice on planning, advice and he Groom Law Firm is degree from OSU and gradu- litigation in general civil mat- relocating its Oklahoma ated cum laude from the ters with emphasis on con- T City offices to Edmond in OCU School of Law in 2010. tractual issues, business for- May. Attorneys Thad Groom, arnum & Clinton an- mation and planning, asset Pete Mills, James Kaufman Bnounces the addition of protection, trusts and estates, and Sid M. Groom Jr. will Donald R. Lindauer II to the administrative law, and other office at 17 E. Hurd St., P.O. firm as a senior associate. His areas. His clients include Box 4000, Edmond, 73083. practice, including more than businesses and individuals The firm’s new phone num- 20 years of experience, will participating in the areas of ber is (405) 285-9559. focus in the areas of insurance architecture and construction, ichard Mann announces defense and civil and work- property development, oil the opening of his law ers’ compensation litigation. and gas services and general R office at 247 N. Broadway, He will join the firm at their business. He earned his J.D. Suite 106, Edmond, 73034. He Norman offices. He is a grad- from OCU in 1985 and was a will continue his practice of uate of OCU School of Law. partner in the firm of Fuller Tubb Pomeroy & Stokes until civil litigation, trials and aul Quigley and the its dissolution. He then joined focusing on defense of PQuigley Law Firm the Edmond firm of McAli- employment and civil rights announce David Henry and ster, McAlister, McKinnis & cases. He may be reached at James Hill have joined forces Tuggle. He may be reached at (405) 509-6835; mannlaw@ as an association of trial law- [email protected]. coxinet.net. yers under the name of Quig- ley, Henry and Hill. The firm ndrews Davis announces will continue to be headquar- Athat L. Win Holbrook of tered at 3501 N.W. 63rd St., Oklahoma City has accepted Suite 100 in Oklahoma City. a position as a shareholder. He joined the firm of counsel dmond law firm Ruben- in 2009 and practices in the Estein & Pitts PLLC bankruptcy department. He announces that Jim Priest, has served since 1985 on the Leah Avey and Terry Stokes panel of trustees for the Unit- illiam G. Paul of Okla- have joined the firm, expand- ed States Bankruptcy Court Whoma City recently ing its litigation and transac- for the Western District of spoke at the Oklahoma Law tional practice. Mr. Priest is Oklahoma. His undergradu- Review Banquet, held in an experienced litigator who ate and law degrees are April at the Lloyd Noble is also an ordained minister from OCU. Center in Norman. He spoke in the Church of the Naza- about hot topics in law that rene. He currently serves full- rowe & Dunlevy recently are in need of good law time as executive director of Cnamed William H. Hoch review treatment, getting the non-profit organization of Oklahoma City as chair involved in the legal commu- FATE (Fighting Addiction of the firm’s bankruptcy nity and effectuating positive Through Education). He may and creditors’ rights practice change. He also provided be reached by email at group. Attorneys in the prac- advice for young lawyers. tice group represent both [email protected]. Steven Hager of Okla- debtors and creditors in Ms. Avey’s primary areas of homa City recently workouts, prepackaged bank- C. practice are employment addressed the State Bar of ruptcies and traditional bank- law, including representation New Mexico’s “Indian Law ruptcy proceedings. Mr. Hoch before governmental and 101” conference in Albuquer- serves as a director and con- state agencies, and civil litiga- que, N.M. He spoke about the centrates his practice in the tion. She earned her J.D. from Indian Child Welfare Act and areas of bankruptcy, commer- OCU in 2007, and was previ- how to recognize its issues in ously associated with the firm cial litigation, creditor’s a variety of cases. Whitten & Burrage. She may rights, loan workouts, con-

1330 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 CO Professor Marty Lud- Medical Staff Service Special- How to place an announce- Ulum recently spoke to the ists annual conference in San ment: If you are an OBA mem- International Cemetery, Cre- Antonio. His presentations ber and you’ve moved, become mation and Funeral Associa- covered legal issues associat- a partner, hired an associate, tion in Las Vegas, and the ed with disruptive physi- taken on a partner, received a Oklahoma Funeral Directors cians, negligent credentialing promotion or an award or giv- Association in Tulsa about claims, medical staff due pro- en a talk or speech with state- issues related to the death cess and national practitioner wide or national stature, we’d care industry. data bank reporting. like to hear from you. Informa- tion selected for publication is erry Shiles of Oklahoma klahoma Corporation printed at no cost, subject to JCity recently spoke at the OCommission attorney editing and printed as space Down Syndrome Association Susan Dennehy Conrad, who permits. Submit news items of Central Oklahoma annual serves as assistant general (email strongly preferred) convention, addressing the counsel for the Oil and Gas in writing to: need for planning not only Conservation Division, was Lori Rasmussen by the parents of a special the guest speaker in April for Communications Dept. needs child, but also by other the Capital Association of Oklahoma Bar Association friends or family members Division Order Analysts. P.O. Box 53036 who might be leaving some- Her presentation was on the Oklahoma City, OK 73152 thing in their wills or trusts commission’s new rules for (405) 416-7017 to the child or a parent of Horizontal Drilling. Fax: (405) 416-7089 or Email: [email protected] the child. Compiled by Ashley Schovanec. Articles for the August 6 klahoma City lawyer issue must be received by OKyle Sweet recently July 18. spoke at the Texas Society of IN MEMORIAM

onrad J. Carson of Camp Perry, Ohio. After the law school class. She worked CBroken Arrow died April war, he worked for several for Kirkpatrick Oil in Oklaho- 20. He was born Nov. 9, 1947, years as vice president and ma City, then for the Beard in New Orleans, La., earning legal counsel for the Insurors Company as corporate secre- a bachelor’s degree from OU Indemnity and Insurance tary until her retirement in in 1970. He served in the U.S. Company. He opened his 1993. She was an active mem- Army until 1971, when own general law office in ber of Christ the King Catho- injured and honorably dis- 1955 and practiced for 50 lic Church and frequently charged. He earned his J.D. years. He was a 32nd degree volunteered to assist ailing from TU in 1982, after study- Mason and member of vari- parishioners. She enjoyed ing accounting and working ous other civic clubs and traveling, particularly to for the IRS. He engaged in social organizations. Memori- Europe, to which she traveled the private practice of law in al contributions may be made several times. Since 2003 she Tulsa until 2010. Memorial to the Little Light House, a has lived near family in contributions may be made to charity serving Tulsa children Granger, Ind. American Cancer Society or with special needs. the University of Oklahoma. ifelong Tulsa resident atherine Smith Dodson LGomer Allan “Pat” Evans onald C. Church of Tulsa Cdied March 9. She was Jr. of Tulsa died March 18. He Ddied April 29. He was born in Coalgate on Feb. 9, was born July 21, 1944, in born Dec. 16, 1919, in Elkhart, 1915, graduated from Miami Tulsa. He received his bache- Kan. He was raised in Tulsa, High School in 1932. She lor of business administration graduating from Central High attended Fontbonne College from OU in 1966. He worked School in 1936 and TU in in St. Louis before graduating as a bailiff while attending 1942. During World War II, from the Oklahoma School of TU College of Law, earning he served in the U.S. Army Law (now OCU) in 1939, one his J.D. in 1968. He practiced as trial judge advocate at of very few women in her law in Tulsa for more than 40

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1331 years. He enjoyed golf, horse aul Russell Hodgson of arren O. Romberger of racing, and travel, but his PTulsa died Jan. 11. He was WOklahoma City died greatest passion was spend- born in Goodrich, Kan., on April 16. He was born Nov. 3, ing time with his family, espe- Aug. 25, 1924, and attended 1920, in Oklahoma City. Dur- cially his grandchildren. Parker Rural High School. He ing World War II, he served enlisted in the Army Air in the U.S. Coast Guard. ichael Mendel Gold- Corp during World War II, After the war, he completed berg M of Edmond died serving as a pilot flying a law degree from OCU. April 14. He was born in bombardier training mis- He worked for Oklahoma McAlester on Jan. 25, 1943 sions and attaining the rank Abstract Company for many and raised in Wilburton. He of first lieutenant. He earned years before becoming an graduated from OU and the a B.S. in business from the attorney for the City of Okla- OU College of Law, also earn- University of Kansas, relocat- homa City, and upon retire- ing a master of laws from ing to Tulsa in 1949 to work ment was honored by the George Washington Universi- as a CPA. He graduated from mayor with a Warren O. He served for ty Law School. the TU College of Law in Romberger Day. In addition 20 years as an officer in the 1963, beginning his own law to his legal career, he was also U.S. Navy JAG Corps retiring practice in 1964. That same a successful real estate devel- with the rank of commander. year he served on Gov. oper. He was a member of the Continuing his dedication to Dewey Bartlett’s Committee Rail Fan model train club and public service, he worked a on Tax Reform, helping draft served as president of the further 21 years for the Okla- the modern Oklahoma Tax Oklahoma City Bowling homa Court of Civil Appeals. Code. In 1975, he became League. Memorial contribu- Memorial contributions may associated with the firm tions may be made to St. be made to the Leukemia & of Morrel Saffa Craige PC Luke’s United Methodist Lymphoma Society. where he served of counsel Church. avid Warren Griffith and continued to practice of tuart Strasner Sr. of Baton until his death. DTulsa died April 19. He SRouge, La., died May 7. was born June 13, 1944, in at Pate Sr. of Poteau died He was an Oklahoma native Oklahoma City, graduating Pon March 10. He was born who was born May 11, 1929. from OSU and the TU College Aug. 15, 1931, in Wellington, He graduated from Panhan- of Law. In addition to his Texas, earning a degree in dle State University and from legal practice, he loved being geology and an the OU College of Law in outdoors and spending time L.L.B. at Sol Ross University 1954. He served in the U.S. with his family. Memorial in Alpine, Texas. He received Army as a member of the contributions may be made his law degree from Universi- JAG Corps. During the to Alzheimer’s Association or ty of Arkansas, Fayetteville. course of his legal career, he St. Simeon’s Episcopal Home He served as a paratrooper in maintained a law practice in Foundation. the U.S. Army 82nd Airborne Oklahoma City while working ohn N. Henderson of Stig- Division. He moved with his as a bank consultant in Baton Jler died April 13. He was family to Poteau in 1961. He Rouge, and he also worked as born Jan. 2, 1947 in Fort served eight years as district a lobbyist for numerous medi- Smith, Ark. He was a gradu- judge for LeFlore, Latimer cal, legal and business organi- ate of the TU College of Law. and Haskell counties, six zations. He served as OBA He was a retired associate years as associate district executive director from 1978 to district judge and attorney in judge in LeFlore County and 1981. He was dean of the OCU Haskell County. In addition, served four years in the School of Law from 1984 to he was a dedicated horseman. LeFlore County Prosecuting 1991, and later served as direc- Memorial contributions may Attorney’s Office. He partici- tor of the university’s graduate be made to John Henderson pated in several civic and banking program. community organizations and Scholarship Fund or Stigler obert E. Waller died May was an active member of First Community Development 2. He was born Jan. 26, Baptist Church of Poteau. R Foundation c/o Stigler First 1929, in Wynona. He attended National Bank. Claremore schools and

1332 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 attended OSU on a music completed his J.D. at the Uni- U.S. Navy as a member of scholarship, graduating in versity of Michigan in 1941. the Naval Expeditionary 1952. He immediately Shortly after Pearl Harbor, Force stationed in the Philip- entered the U.S. Air Force he enlisted as a private in pines and received the Phil- and served during the the U.S. Army, serving until ippine Liberation Award. Korean Conflict, ultimately his discharge in May of 1946 Upon discharge, he attended spending 30 years in the mil- with the rank of captain. OU and earned a B.A. in 1950 itary, retiring with the rank He served as a plainclothes and a J.D. in 1953. He prac- of colonel after flying sever- investigator of civilian per- ticed law with the Oklahoma al dangerous reconnaissance sonnel and as an officer City law firm of Gilliland, missions during the Cold attached to General Mac- Withington and Shrink for 57 War. Upon retirement from Arthur investigating Japa- years until his death. He was the Air Force in 1982, he nese war crimes. Once dis- a former OBA vice president moved to Tulsa and enrolled charged, he returned to Tulsa and was a member of the in the TU College of Law. to practice law and was twice Board of Bar Examiners. He After graduating, he prac- appointed by the Supreme served as general counsel to ticed several years in Coweta Court of Oklahoma to serve Judicial Reform Inc., a direc- and later in Tulsa. He was the as a temporary judge on the tor of the American Judica- municipal judge in Coweta Court of Civil Appeals. He ture Society, pro bono general and Porter until shortly was an avid fisherman, bowl- counsel for the Oklahoma Art before his death. Memorial er, handball player and golfer. Center and Allied Arts Foun- contributions be made to Memorial contributions may dation in Oklahoma City and Sojourn Care Hospice. be made to the First Presbyte- as president of the Legal Aid rian Church of Tulsa. Society of Oklahoma County. ichard “Dick” Henry He also served on the boards Wills Jr ames Edward Work R . of Tulsa died of of numerous civic and com- April 2. He was born on April JOklahoma City died April munity organizations. Memo- 16, 1916, in Claremore and 18. He was born on Jan. 16, rial contributions may be graduated from Tulsa Central 1927, in Wewoka and attend- made to the University of High School in 1934. He ed Classen High School in Oklahoma Foundation. earned a bachelor’s degree Oklahoma City. He served from Harvard in 1938 and during World War II in the

Oklahoma Bar Journal Editorial Calendar

n September: n November: 2011 Bar Convention Military Law n August: Editor: Carol Manning Editor: Dietmar Caudle Children and the Law n October: [email protected] Editor: Sandee Coogan Labor and Deadline: Aug. 1, 2011 [email protected] Employment Law n December: Deadline: May 1, 2011 Editor: January J. Windrix Ethics & Professional [email protected] Responsibility Deadline: May 1, 2011 Editor: Melissa DeLacerda [email protected] If you would like to write an article on Deadline: Aug. 1, 2011 these topics, contact the editor.

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1333 CLASSIFIED ADS

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1334 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011 POSITIONS AVAILABLE POSITIONS AVAILABLE

PARALEGAL NEEDED. DOWNTOWN OKC LAW ASSOCIATE ATTORNEY - LITIGATION. Minimum of 2 FIRM. Must have civil litigation experience. Eligible em- years experience preferred. Small, downtown OKC insur- ployees receive benefits including medical, dental and ance defense firm with desire to grow. Benefit package. disability insurance, 401k, parking. Our employees are Our employees are aware of this ad. Please submit re- aware of this ad. Please submit resume and salary resume and salary requirements to “Box L,” Oklahoma Bar quirements to “Box K,” Oklahoma Bar Association, P.O. Association, P.O. Box 53036, Oklahoma City, OK 73152. Box 53036, Oklahoma City, OK 73152. AV-RATED TULSA FIRM CURRENTLY SEEKING at- PROGRESSIVE BRICKTOWN DEFENSE FIRM with of- torney for research and writing position. Applicants fices in Oklahoma City, Dallas and Houston, seeks trial must have a minimum of 5 years experience in research lawyer with 10-15 years experience in expert intensive, and writing in civil litigation and excellent academic medical malpractice and/or product liability practice. credentials. Send resume and writing sample to “Box Very significant opportunity for aggressive self-starter. O,” Oklahoma Bar Association, P.O. Box 53036, Oklaho- Email inquiries to [email protected]. Join a team ma City, OK 73152. of difference. TITLE ASSISTANT: FULL-TIME POSITION with First NAVICO INC. IS LOOKING FOR AN IN-HOUSE LE- American Title & Trust Co. Job Duties: Support the com- GAL COUNSEL responsible for managing legal mat- mercial title department with closings and recordings. ters relating to all of the company’s business. 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Assists underwriters with workload and coordi- tions, providing timely advice to internal clients and nates daily functions of department, interprets and acts collaborating with business partners across multiple on instructions from customers and title officers, audits business divisions, performing intellectual property calculations and legal documents for accuracy, communi- (IP) due diligence analyses, providing litigation sup- cates recording information and prepares legal property port, and supporting other legal matters including re- documents, examines and interprets tax and assessment viewing confidentiality agreements, license agreements reports, follows title practice regarding the issuance of ti- and other agreements involving IP. Send resume to: tle commitments, policies, endorsements and guarantees, [email protected]. property price endorsements and communicates profes- UNIQUE NORTHWEST OKLAHOMA CITY INVEST- sionally with all customers and employees. Qualifications: MENT AND ADVISORY FIRM seeks organized, hard High School diploma or equivalent. Title experience pre- working and loyal team member for an entry level posi- ferred. Excellent verbal/written communication skills. tion. Areas of exposure include oil and gas, public securi- Strong customer service orientation and strong detail ori- ties, banking and private equity. Position requires excel- entation. Send resumes to [email protected]. lent communication, Microsoft Office and attention to details. Please send resume to [email protected]. PARALEGAL – EXPERIENCED PARALEGAL NEED- IMMEDIATE OPENING FOR AN ASSISTANT DIS- ED for busy south OKC law firm. Seeking qualified paralegal that has a litigation background. Candidate TRICT ATTORNEY in Pottawatomie and Lincoln Counties, with primary duties in Shawnee office. Suc- must have ability to do legal research, draft petitions, cessful applicant will be responsible for felony criminal motions and briefs; looking for highly-motivated per- cases, including domestic violence prosecution. Prose- son with superior communication skills who is com- cution experience of at least 3 years is preferred. Salary fortable dealing with clients. Competitive salary, bonus commensurate with experience and qualifications. In- and benefits based upon experience and motivation. terested applicants should respond with a current re- Send resume to “Box A,” Oklahoma Bar Association, sume to Richard L. Smothermon, District Attorney, 331 P.O. Box 53036, Oklahoma City, OK 73152. N. Broadway, Shawnee, OK 74801. AV RATED DOWNTOWN OKC FIRM seeks associate FOR SALE with general litigation experience, strong academic BEAUTIFUL LAKEFRONT, LAKE HOUSE FOR SALE background and writing skills. Must be prepared to as- on Oklahoma side of Lake Texoma, steps from sandy sume substantial responsibility. Compensation com- beach, blocks from boat launch. 3/2, multi-level deck, mensurate with production. Please send resumes in outdoor shower, sprinkler system, wet-bar, tile floors, confidence to “Box Y,” Oklahoma Bar Association, P. O. fireplace, large windows open to million dollar view. Box 53036, Oklahoma City, OK 73152. Secluded area next to Corp of Engineers forested prop- LITIGATION ATTORNEY: 1 TO 7 YEARS EXPERIENCE. erty. Pat Maher, [email protected]. Primarily insurance defense practice. Taylor, Ryan, Schmidt & VanDalsem PC; Suite 850, 1437 S. Boulder Ave., Tulsa, OK 74119; (918) 749-5566; [email protected].

Vol. 82 — No. 14 — 5/14/2011 The Oklahoma Bar Journal 1335 THE BACK PAGE

The Best Fee I Ever Received By Michael P. Warwick

Lawyers have been known case I spent considerable fee. I also became more and to brag a little about their time explaining the law more convinced that a great courtroom victories and advising the woman that wrong had been done, and and the size of the fees they the odds were against her surely a jury would see the received. Since I have had because her case did not same thing. I survived the an office and small business exactly fit any of the existing motion to dismiss, motion practice for most of my 35+ exceptions to the employ- for summary judgment, and years as a lawyer, I just don’t ment-at-will doctrine. She seemingly endless discovery have a lot of great war stories wanted to proceed and she produced by the lawyers to tell. Stories about contract was willing to pay my fee. representing the employer, disputes, probate and the What more did a young and finally got my case set intricacies of the U.C.C. just lawyer need? for trial. I hoped for a good don’t hold an audience. I cer- settlement offer, but none tainly cannot brag about the came. We went to trial. I “million dollar verdict” I got. survived the demurrer and I usually just stand and lis- motion for directed verdict, ten, generally with envy. and even got jury instruc- Some time ago as I sat in tions that at least gave my the courtroom waiting my client a chance to win. turn at a routine motion We lost. docket, my mind began to I was dreading the walk wander as I listened to a cou- back to my office with my cli- ple of lawyers argue a motion ent. She was understandably for summary judgment. I upset and disappointed. I could throw away my Ambi- was certain that she would en if I could get a recording not remember our conversa- of that argument. But, I tions about how difficult her digress too much. I started to case was. We walked in think of my past cases and silence. When we got to the the best fee I ever got. I think office she didn’t blame me or I know what it was. accuse me of incompetence Many years ago, before as I feared. She thanked me Burk v. K-Mart and its proge- for my efforts and then asked ny made it a little easier to a question no client asked win an employment case, I before or since. took a wrongful termination She asked if she could give I worked hard on the case case for a woman who had me a hug. been fired after many years and ended up spending far Mr. Warwick practices in of service to her employer. more time and effort than I Shawnee. Before I agreed to take the had expected when I set my

1336 The Oklahoma Bar Journal Vol. 82 — No. 14 — 5/14/2011

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