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...... 12 ...... Observer Bar Obituaries ...... 4 ...... Obituaries

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Reception For For Reception & Bar Bar &

...... 5 ...... Notes Book 2 ...... Month the of Quote

OCBA OCBA 2019 Bench Bench 2019 ...... 4 ...... Seminars & Events 2 ...... President the From

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LOCAL BAR, PAGE 6 PAGE BAR, LOCAL

Upon arrival, we quickly determined that that determined quickly we arrival, Upon

spied OBA Executive Director John Morris Morris John Director Executive OBA spied represented. were States United the

colleagues from Tulsa and the OBA and and OBA the and Tulsa from colleagues across associations liated affi and local, state,

River. Be that as it may, we looked for our our for looked we may, it as that Be River. every from Associations Bar attendance. in

Mason-Dixon line and east of the Mississippi Mississippi the of east and line Mason-Dixon also were Association Bar County Tulsa the

point of somebody who lives north of the the of north lives who somebody of point and OBA the from leaders Bar Oklahoma

the map, it was clearly drawn from the view- the from drawn clearly was it map, the Other Illinois. Chicago, in (“BLI”) Institute

arguing with that, but from a quick view of of view quick a from but that, with arguing Leadership Business ABA the attended ly

as a southern state. I am not objecting or or objecting not am I state. southern a as recent- I Martin, Amber Chair Vice Division

by region. The map identifi ed Oklahoma Oklahoma ed identifi map The region. by Lawyers Young OCBA and Gorden Debbie

seating charts for that session were identifi ed ed identifi were session that for charts seating Director Executive OCBA with Along

By Michael W. Brewer W. Michael By

Local Bar Associations? Associations? Bar Local

What is the Future of Your Your of Future the is What

call Connie Resar at 236-8421. at Resar Connie call

online to the website www.okcbar.org, or or www.okcbar.org, website the to online

form included in this issue of the Briefcase, go go Briefcase, the of issue this in included form

Volunteers are needed! Sign up by using the the using by up Sign needed! are Volunteers

year to answer legal questions. legal answer to year

A community service provided each each provided service community A

430 N. Kelley, OKC Kelley, N. 430

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Tickets are available on the website at at website the on available are Tickets

Howard K. Berry, Sr. Award Sr. Berry, K. Howard

Award, Liberty Bell Award and the the and Award Bell Liberty Award,

Leadership in Law Awards, the Journal Record Record Journal the Awards, Law in Leadership

Award Presentations include: Journal Record Record Journal include: Presentations Award

OU Gaylord College of Journalism of College Gaylord OU

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4 No. 52, Vol. 2019 April, A Publication of the OKLAHOMA COUNTY BAR ASSOCIATION ASSOCIATION BAR COUNTY OKLAHOMA the of Publication A WWW.OKCBAR.ORG 2 BRIEFCASE • April 2019 From the President BRIEFCASE April 2019 Briefcase is a monthly publication of the Oklahoma County Bar Association Hope & Resilience 119 North Robinson Ave. Oklahoma City, OK 73102 (405) 236-8421 By Judge Sheila Stinson over into the legal field. It’s really hard to be a good attorney without a lot of hope, and ever more resilience. Briefcase Committee I just returned from the Bench & Bar Starting in law school, hope is a necessity. After law Judge Jim Croy, Chris Deason, Ryan Dean, Ben Conference. As one of my favorite week- school, you have hope for a good job, for a good career, for Grubb, Justin Hiersche, Scott Jones, Matt Kane, ends, I am thankful for everyone that good clients, for financial success, and for more victories Joi Miskel, Trais Pickens, Miles Pringle, Austin attended and made presentations. Special than losses. A recent study by Kevin Rand in the Journal of Reams, Cari Remillard, Rex Travis, Judge Geary Walke, Judge Allen Welch & Alisa White thanks go to the Bench & Bar Committee, Research in Personality found that students with hope do bet- Editor Shanda McKenney chaired by Luke Abel, and the three ladies ter on the LSAT and with grades as opposed to those students Contributing Editors Michael Brewer who make all OCBA things possible, with just optimism, or just the thought they’ll do well. So Debbie Gorden, Pam Bennett, and Connie Creed. They over- having the will, desire, and plan to do well gets you farther Richard Goralewicz saw every detail which resulted in a fantastic conference. I than just having the confidence you will do well. Bill Gorden hope to see everyone there in 2021. As far as resilience, it takes fortitude to be a lawyer, judge Last month I talked about my father’s family. Just like I or professor. It takes resilience and drive to not only get Oklahoma County Bar Association used my “panhandle family” to demonstrate commitment, through law school and pass the bar, it then takes resilience this month I’m using my mother’s family to demonstrate day after day to represent clients, to run a law firm, to pre- OFFICERS: something I see in almost every attorney I know- hope and pare for trial, to write legal briefs and contracts, to celebrate President Judge Sheila Stinson President-Elect Michael Brewer resilience. with clients after victories and comfort them after defeats. Vice President Judge Don Andrews In 1950, my maternal grandparents lived in Soviet-occupied Answering interrogatories alone is a true showing of fortitude. th Past President David Cheek Hungary. They had just survived World War II and German It took fortitude to overcome my disappointment in the 6 Treasurer Robert D. Nelon occupation, and they were then living under Joseph Stalin’s grade when I learned my mom would never be President of the th Bar Counsel Coree Stevenson regime. It was then that they decided to move their family to United States as a naturalized citizen, because what 6 grader America. My mother was born in Austria during their yearlong doesn’t think their mom should be President? STAFF: journey. They ultimately arrived at the Port of New Orleans, In closing, as I am now out of grandparents to talk about, Executive Director Debbie Gorden with few funds and three small children. Thanks to the help of next month I will pose the question of when in history has Legal Placement Director Pam Bennett a married couple and a small church close to Ada, Oklahoma, been the hardest time to practice law. I have posed that ques- Membership Services Connie Resar my mom and her family relocated to Oklahoma, became United tion to members of the bar and will discuss their answers next States citizens, and never left. I was fortunate to grow up with month. I hope my grandparents’ history shows the need to get Journal Record Publishing Co. Inc. both my Hungarian grandma as well as my other “grandma” to know our fellow lawyers better. We all need to ask and to Special Projects Supervisor Kady Weddle who had sponsored my mom’s family to Oklahoma. share our stories, which I only hope the Oklahoma County Bar I admire my maternal grandparents for two major qualities: Association helps facilitate. It just takes resilience to keep For advertising information, hope and resilience. Those are both traits that I suggest carry asking. See what I did there? call 278-2830.

Postmaster: Send address changes to OCBA Briefcase, 119 North Robinson Ave., Oklahoma City, Oklahoma 73102. Oklahoma County Bar Auxiliary Fundraiser Benefi ting Children’s Nonprofi t Organizations in Oklahoma County Journal Record Publishing produces the Briefcase for the Oklahoma County Bar Association, which is solely responsible for its content. TLC $20 Gift Cards – Never Expire! © 2014 Oklahoma County Bar Association Total Quantity x $20 = + $5 Shipping = TOTAL DUE: $

Name Address Phone Email TO PLACE AN ORDER… Email your order form to: [email protected] and mail your check (payable to OCBA) to OCBA, c/o Becky Taylor, 745 NE 18th St, OKC, OK 73105 OKLAHOMA COUNTY BAR Cards will be mailed to you as soon as payment is received! ASSOCIATION MISSION STATEMENT Orders Due Wednesday, MAY 1st, 2019 Volunteer lawyers and judges dedicated to serving the judicial system, their profes- QUESTIONS? Contact Janet Rayburn sion, and their community in order to foster [email protected] the highest ideals of the legal profession, to (405) 615-6045 better the quality of life in Oklahoma County, and to promote justice for all.

Quote of the MONTH I refuse to answer that question on the grounds that I don’t know the answer. —Douglas Adams, author (1952-2001) www.okcbar.org • April 2019 • BRIEFCASE 3 Stump Roscoe

STUMP ROSCOE the “better course of action” is to exclude By the testimony. The expert’s direct financial Roscoe X. Pound interest in the outcome of the action raised TIMELESS “serious questions about the integrity of her Dear Roscoe: My clients, an elderly expert testimony.” I agree. couple on a fixed income, lost their son in Dear Roscoe: Correct me if I’m wrong DESIGNS AND a one-car accident due to a defective seat- but the Eighth Amendment prohibition belt. I know a couple of persons who would against excessive fines controls in state and ALL-DAY make good experts and I probably could municipal courts, right? A.S., OKC. convince one of them to take the case on a Dear A.S. Actually, you’re not wrong, and COMFORT FROM contingency given my clients’ limited means. SCOTUS corrected a lot of folks who seemed I’m told that Rule 3.4 prohibits that, but my to think otherwise in Timbs v. Indiana (dec. OUR ALDEN motive is not buying testimony but saving 2/20/19). RBG noted: “[T]he historical money. (A) What kind of trouble can I get and logical case for concluding that the CASUALS in if I enter into such an arrangement and Fourteenth Amendment incorporates the (B) Would the evidence be admissible? T.H. Excessive Fines Clause, iis overwhelming.” Oklahoma City. TEENA HICKS COMPANY Writing for an eight justice majority she went OKLAHOMA TOWER 210 PARK AVENUE, SUITE 220 Dear T.H. You have rightly consulted on to state that: ““For good reason, the pro- OKLAHOMA CITY, OK 73102 Rule 3.4. While the Rule doesn’t specifically tection against excessive fines has been a (405) 235-4800 forbid payment or address the issue in the constant shield throughout Anglo-American light you describe, the Commentary notes history: Exorbitant tolls undermine other them. Later, the family court suspended vis- vouching is totally improper. that common law generally prohibits fee constitutional liberties. Excessive fines can itation pending Mr. Kearny’s completion of a THE COURT: You opened the door to arrangements for any witnesses contingent be used, for example, to retaliate against counseling program. After that, Buddy came this redirect. Overruled. Mr. Comer? upon success at trial. or chill the speech of political enemies, as calling on Sandy at the request of the Hudson MR. COMER: I object on behalf of In Massachusetts, an expert may not be the Stuarts’ critics learned several centu- County Sheriff’s Department regarding a Joseph Kearny. He certainly opened no paid a fee contingent on the outcome of a ries ago. Even absent a political motive, contempt citation directed at Sandy for vio- doors. case because it might improperly induce fines may be employed ‘in a measure out of lating the clause of our standard visitation MR. COLEMAN: He also certainly the expert to testify falsely in order to earn accord with the penal goals of retribution form regarding not improperly exposing never objected to Mr. Ridley’s line of a higher fee. (See New England Tel. & Tel. and deterrence,’ for ‘fines are a source of children to someone with whom the parent questioning which opened the door. And Co. v. Bd. of Assessors, 468 N.E 2d 263 revenue,’ while other forms of punishment was romantically involved. Turned out the he didn’t object to my question when I (Mass. 1984)). The court held that “[t] ‘cost a State money.’ This concern is scarce- guy in question tutored Katie in algebra two asked it. he majority rule in this country is that an ly hypothetical” (Citations). Mr. Justice evenings a week. THE COURT: Points taken Mr. expert witness may not collect compensation Thomas, questioned the manner in which Buddy painted a picture of two and a Coleman, however I’m reminding and which by agreement was contingent on the the Court reached its conclusion, though he half years of torment, charges and count- admonishing the jury that they must outcome of a controversy.” In Tennessee, had no doubt as to the Eighth Amendment er-charges, mainly initiated by the Kearnys. assess the evidence on their own, and not a contingency fee contract for services of a binding the States. Timbs’ case dealt with Even wearing his best suit, Buddy didn’t on the say-so of Lieutenant Orenstein. physician acting as a medical-legal expert is the civil forfeiture of a $40,000.00 SUV for looked like he coagulated within it rather void as against public policy. (See Swafford a drug conviction carrying a $1200.00 fine. than put it on. Going by sight alone, anyone v. Harris, 967 S.W.2d 319 (Tenn. 1998)). Timbs had paid the fine and complied with might underestimate him. No one, that I’ve The Colorado Supreme Court declared it all other requirements the conviction placed ever seen, could fluster him. Peter Kearny’s “a settled principle of American law [that] upon him. attorney went down his list of witnesses elic- expert witnesses should not receive contin- Buddy Orenstein testified next for the iting a negative answer each time he asked gent fees.” That court went on to say, noting prosecution. He had become involved Buddy if he knew them. Finally, he tried to a lack of case law regarding the question, shortly after Sandy moved to Secaucus as get him to admit that he knew so little about that “case law on the subject is sparse the feud had already spilled out of the family the case he couldn’t have possibly investigat- because this precept has such wide accep- court and into the street. Buddy recount- ed thoroughly. Johnson & Biscone tance.” (City and County of Denver, Colo. ed his initial involvement with the case, Q: You’ve been a police officer for two www.oklalegal.com v. Board of Assessment Appeals of State of responding to a 911 call from a neighbor of decades, correct? Colo., 947 P.2d 1373 (Colo. 1997)). The Sandy’s. She had seen two men attempt to A: Yes, sir. Restatement (Third) of the Law Governing drag Katie into a car. A man came rushing Q: You’ve developed expertise in the Lawyers (2000) also forbids paying any wit- from Sandy’s house (who the neighbor mis- area of criminal investigation. ness on a contingency basis. You may feel takenly presumed to be Katie’s dad). He told A: I’d say so. comfortable arguing the nuanced motives in Katie to get in the house and an altercation Q: As an expert in criminal investigation, your particular case, but I don’t envy you if ensued. The guy turned out to be Sandy’s would you really consider a report from called upon to do so. then boyfriend who came over to help Katie an officer with so little knowledge of the As to its use at trial, in Straughter v. cook a surprise dinner. By the time Buddy case to be thoroughly investigated? Usher, 2011 U.S. Dist. LEXIS 53195 (C.D. and the uniforms arrived, the guy lay on the A: As an expert in criminal investiga- Cal. May 9, 2011), an expert was retained curb with a concussion and several busted tion- by plaintiff’s first counsel, paid a retainer, ribs. By now you’ve probably figured that Q: Yes or no Mr. Orenstein. and compensated at an hourly rate. A solo the alleged kidnapper was Kearny himself, A: Yes. Oklahoma’s Top-Rated lawyer took over, but could not advance the who brought a bodyguard along for the Q: Really? No doubts? expert’s costs. Plaintiff asked if she would occasion as well. Buddy testified that, as he A: None Lawyers Since 1995 work on a “contingency percentage fee arrested the pair, Kearny warned him that he “Nothing further,” [the somewhat deflat- Martindale-Hubbell® arrangement.” She agreed. The new lawyer “knew people in Trenton.” Buddy replied ed counselor declared] drafted an agreement. Defendants moved that he didn’t, so he wasn’t impressed. After THE COURT: Redirect Mr. Coleman? to exclude and/or strike her reports, opin- Sandy had received a VPO, Buddy again vis- CARL COLEMAN: Just briefly, Personal Injury ions and testimony. Plaintiff and the expert ited Mr. Kearny, this time on a complaint that Lieutenant I’m curious. Without know- Workers’ Compensation voided their contingent-fee agreement and someone had been following Katie home ing all the things Counsel asked you Social Security Disability returned to an hourly fee arrangement. from school and orbited the block until about, how could you be so sure of the Plaintiff explained his financial hardship. after dark. After some detecting he learned facts you uncovered? To secure his obligation, plaintiff provided that the stalker was a private eye, hired by A: I based it on the things I knew for sure 1-800-426-4563 the expert with a lien on all of his assets Kearny and his Mummy Dearest to keep a rather than the things I didn’t know. 405-232-6490 “including any recovery he may obtain in somewhat obvious surveillance going just so Q: At any time, have you had any doubts this action.” The court held the agreements Sandy would know “someone was watch- about the charges against the defen- both improper and unethical, excluding ing.” Buddy brought both mater and filis in The Hightower Building dants? 105 N. Hudson, Suite 100 them. It found no Ninth Circuit authority, for this vicarious violation of the VPO. The A: No, sir. Oklahoma City, OK 73102 noted that some courts allow it, but held judge laid a warning and a fine on both of MR. RIDLEY: I object. This exercise in 4 BRIEFCASE • April 2019 Obituaries John E. Patterson, Jr. By Rex Travis John Patterson died. Unless you were in law school go to law school. He graduated law school at OU in 1960. and shoot them down. with him or did oil and gas work, you may not have After his combat experience in Korea, John finally It was upon John’s assignment to the squadron that known him. I knew him because we served together in got to realize his dream of flying fighters by joining the I first made his acquaintance. John was a Captain with the same fighter squadron in the Air National Guard. He 185th Fighter Interceptor Squadron of the Oklahoma Air a lot of flying time in the F-86. I was a brand-new nd2 was 87 years-old. National Guard. He was a great catch for that unit as it Lieutenant assigned as the squadron intelligence officer. John was from Ardmore and went to OU for about a was assigned F-86D aircraft. We had at least two aircraft on 5-minute alert at all times. year and a half before entering the Air Force. After he The day fighter version of the F-86 was the top of the That meant the pilot and maintenance crews necessary trained as an aircraft mechanic, he got accepted to the line fighter of the United States in the Korean War. That to launch the aircraft had to be able to get the aircraft off Aviation Cadet Program and became a pilot. Like almost aircraft racked up a very high percentage of kills of the the ground, ready to fly an intercept, within 5 minutes of everybody in the Air Force, John wanted to be a fighter MIG-15, the Soviet front-line fighter of the time. The getting a launch order. John’s assignment to the unit was pilot. Instead, he got assigned to a photo reconnaissance MIG’s in those contests were often flow by Russian pilots a great thing for the unit and the mission because of his squadron. lent to the North Koreans. The F-86D was an interceptor experience flying combat in the RF-86. There he flew the reconnaissance version of the hottest version of the F-86. It came with, we were told, as much Not many people knew we were providing actual, fighter of the day. He flew an RF-86. The “R” stood for electronics as a TV station. It was designed to fly and armed, alert aircraft. We didn’t get to talk about it much. reconnaissance and the F-86 was a fighter. It flew just intercept bombers in all weather and shoot them down. It But John and I became good friends as I was only a sub-sonic (just below the speed of sound) in level flight. accomplished this with a whole rack of 2.75 inch folding couple of years behind him at the OU law school. We In a dive, however, it would break the sound barrier and fin aircraft rockets. You could fire them one at a time or remained friends long after the cold war moved on to go supersonic. Of course, John promptly did that. salvo a whole load of 24. where our alerts were no longer necessary and the squad- The motto of the recon squadrons was “Unarmed, alone All this became important because North American- ron moved on to other aircraft and missions. We both and unafraid.” John always said that the “unafraid” part based units such as ours were our primary defense against retired as Lieutenant Colonels, him from the Air Guard was BS. It certainly spoke well of the skill of recon pilots Soviet bombers which presented the major threat of a and I from the Air Force Reserve. that they were able to survive in combat. While a fighter nuclear attack on the United States. Units in our part of the John did an oil and gas title practice for most of his pilot could get out of a jam by shooting down an enemy country were particularly important because the targets legal career. He retired from the Air Force in mid-1970’s plane, recon aircraft had cameras and not guns so the only at the top of the Soviet’s target lists were the interconti- and from his law practice in 2010. He and his wife, Mary, way a recon could escape from a dogfight was to outma- nental ballistic missile sites in southwest Oklahoma and had two daughters, to whom he was devoted. neuver the enemy fighter. Kansas. The Soviet war plan was to fly TU-95 bombers John sang in the choir at St. Luke’s Methodist Church. John soon got to employ that skill. He was deployed to (code-named the “Bear’) down the east or west coast just His family suggests contributions in lieu of flowers either a base in Japan from which he flew reconnaissance mis- outside U.S. radar coverage, turn inward to Mexico and to St. Luke’s or Physicians Choice Hospice, 14324 N. sions over Korea during that war. He spent two years there then come north at a low level to try to stay out of radar Western, Edmond, OK 73013. He had an exciting life and and then returned to finish his undergraduate degree and coverage as long as possible. Our goal was to intercept will certainly be missed.

May 1, 2019 Annual Law Day Luncheon 12 Noon, Skirvin Hotel Grand Ballroom

May 2, 2019 Ask A Lawyer Program 9 am – 9 pm, OETA Studios

June 21, 2019 2019 Annual award Luncheon 12 Noon, Petroleum Club Events Center 4040 N. Lincoln Blvd.

September 20, 2019 Raising The Bar 2019 6 – 8:30 p.m. Gaylord Pickens Museum, OK Hall of Fame

September 30, 2019 2019 Annual Golf Tournament River Oaks Golf Course www.okcbar.org • April 2019 • BRIEFCASE 5 Volunteer Opportunities Book Notes

• An administrative whiz? Consider donating your time to help with By Bill Gorden administrative tasks like data entry Finding Pax Kaci Cronkwhite, Adlard Coles, 2018, Paper, 208 pages, $17.95 Over the course of the past few years the number of sailboats and others • Are you a local chef or cook? at Lake Hefner slips seem to have dwindled sharply. This is probably the result Volunteer to lead a cooking class of a couple of deep droughts in Summer, which periodically all but eliminated at Café 29, Pivot’s teaching sailing for the casual boater. Prudence has probably led a lot of owners to lodge kitchen their boats on larger lakes, or to sell. While this could be expected, it is too bad, The OCBA has many opportunities to • Motivated go-getter? Organize a as many among us have that nautical urge. volunteer with their Community Service fundraising event at your office, So if you want to scratch that itch, this is a good book for you. If you want to Committee, Law Related Education school, scout troop, civic group be excited that the author squarely and consistently pursues a calling once pretty Committee, Lawyers For Learning or place of worship to help collect much limited to men, this is also that book. One should be prepared, however, Committee and Voices for Children donations that support our mission that this is a decidedly bigger boat than those plying Hefner water. It is also a Committee. However, this new monthly • Like to plan parties? Serve on our quest for history. column will list other opportunities for event planning committee The boat is seagoing, twenty-eight feet long, and made of wood. It originat- our members to help the community. ed in Norway, created by a famous builder. Very few of its type were built, fewer remain. This is not a book about sailing per se, but rather about re-constructing If you know of something that should Want to volunteer, but don’t have a something beautiful and rare. The reason for that activity is the thrill of sail. be listed here, please contact the Bar lot of time? Here are few things you One should be warned that there is much detail in the repair/re-creation of Offi ce at 236-8421 and we will add it can do to help: to this new monthly Briefcase column. the boat, and the author does not translate nautical or shipcraft terms. The audi- • Like us on Facebook, follow us on ence for this book probably does not need such translation, but for the rest of us, MISSION Twitter, LinkedIn or Instagram have a dictionary of some sort available. All that said, it is good reading, if you catch the fever that an infatuation begets. Pivot, Inc. is a nonprofi t community • Share our posts on your social Ned Christie: The Creation of an Outlaw and Cherokee Hero Devon A. organization that advocates, educates, media Mihesuah, Oklahoma, 2018, Hardback, 258 pages, $25.86, Kindle $21.99 intervenes and counsels youth and • Out grocery shopping? Purchase If one has lived in both Tulsa and Oklahoma City, or Talequah and Enid, families to make a positive difference a few items from our pantry wish one is aware of the double nature of our state. Our state seal has at its center in their lives list which include microwaveable a farmer and a Naïve American shaking hands, and one of the metaphors used meals, hygiene items, khaki’s and at statehood was a “marriage” of Oklahoma Territory and Indian Territory. Ask VOLUNTEER/INTERN red or blue polo shirts in all men anyone who has run for statewide offi ce if the two areas are different. They are. Volunteers are vital to Pivot. They and women sizes Lawyers who travel far and wide to represent Oklahomans also are clued into are instrumental in helping us meet the • Be a volunteer for special events this. needs of the teens in our community. A large part of this is the older settlement of the eastern part of the state, Please consider becoming a volunteer For more information, please call and its deeper Native American connections. Promised self-government, later for Pivot! We need volunteers in many or email us at 405.235.7537 or largely taken away, and property ownership, again largely stripped, had deeper different areas, which include: [email protected]. roots in that culture. Some of the same things happened west of I-35, but later, and with different contexts. One of those contexts was whether events pre-dated or post-dated the Civil War. The early measure of governance in the eastern part of the state sometimes led to two viewpoints. The same event might be legal under a tribal viewpoint, or just a non event, while being seen as illegal in the Caucasian view. Thus, there are legend akin to Robin Hood, with predictable outcomes. Add in a lively infl ux of Caucasian outlaws, trying to make the eastern half of the state a hideaway, and life gets interesting. Out west, by the time of settlement, a “national” outlook was more prominent. Hence, the subtitle of this book. Christie is considered outlaw by some, hero by others. Each has a tale to tell, but in different contexts. We have some confl icts in our society today that have the same underpinnings. Ned Christie had more than one wife, several children, and many friends and allies. He killed people. He stood up for some people who could not under- stand the changes taking place around them, and they liked him for that. They even hid him, if simply not answering questions about him is hiding him. This can be a troubling book to read, especially if one has no life experience on the east side of the state. This is good solid history, which sometimes comes with a “troubling” tag.

1233 Sovereign Row • Oklahoma City, OK 73108 www.warrenproducts.com • (405) 947-5676 Locally Owned and Operated Since 1983 6 BRIEFCASE • April 2019

LOCAL BAR From PAGE 1 very involved in social justice programs, done that. Some organizations in major and Bar Conference, where members get fun activities, and education. We have an cities are hurting so badly for members an opportunity every other year to meet Williams seated up front, despite his walk- incredibly diverse and young board at the that they have opened up membership to the judges that they practice before on a ing boot and crutches. Clearly, John has OCBA. This is apparently not the case non-legal professionals such as realtors, social basis, and hear from them in CLE a different view of what is prime seating nationwide. I am not sure why, but it seems investment bankers, CPAs and others. In on how to prepare for working in vari- for such events than me. I have always like it has always been the case at least Oklahoma City, we have organizations like considered prime real estate at seminars to ous courtrooms. Incredibly, we will hear since my almost 33 years of practice in Rotary and Kiwanis for those non-member be nearest the coffee and the exit, i.e. the from an Oklahoma Supreme Court Justice, the OKC area. In fact, I was on the OCBA groups. Your OCBA has provided a profes- back of the room. Nonetheless, we joined Court of Appeals Justice, Federal Judges our colleagues from the OBA, including board at age 33. Now here I am back just a sional organization for lawyers and judges and Magistrates, and Oklahoma County President-Elect, Susan Shields, up front. few years later, just like a bad penny. for a long time. Although membership District Court Judges and Special Judges. I will call the first round of sessions a Next came sessions on collaboration numbers ebb and flow, your OCBA is in We were also treated to the how tos of data drop. Basically, we heard of the com- with other Bars. Apparently, other bars great shape, but of course we can always mediation by a mediator extraordinary ing demise of voluntary bar associations as do not get along. Or do not know of use new active members. Please refer your and the ins and outs of the drug court older attorneys retire or become inactive each other. That is kind of hard here in friends in the legal profession for OCBA by the expert who runs the Oklahoma and younger attorneys are not joiners. So, Oklahoma where our state mandatory bar membership. County Drug Court. Essentially because there are demographics and that code word is in the same town as the OCBA and the All in all, it was an interesting trip. I of the OCBA, anyone and everyone that for non-joiners, “millennials,” Gen-X, Y, other larger representative bar group is in left Chicago feeling proud of the position you could appear before you can meet in and Z working against the Bar. We also Tulsa, the state’s second-largest city. We OCBA holds among voluntary bar associ- a social setting and also understand what heard about recent litigation to disband all know each other, plan events together, ations of any size. We are invigorated and they like to see in terms of preparedness or limit the activities of mandatory Bar jointly put on CLEs, and communicate energized by our young lawyers and the for their courtroom. This event alone is Associations. One week after our return, often. Another check mark for OCBA. young lawyer programming that has come worth the price of annual dues (which are we witnessed a lawsuit filed against the Other sessions attended addressed con- along way since the swamp races. I’m incredibly cheap compared to nationwide OBA just like those described by the cerns in getting organizations involved in not going to name names, but those were averages). ABA. A plan or strategy adverse to the social justice. Again, the OCBA ranks high not the heyday and that was some nasty I was also shocked when I learned that mandatory Bar seems to be in play. The on its activities involving children, courts, water. I’m excited to be your President- our three-person OCBA staff is half and remainder of the BLI was focused on ways court access, and foundational items such Elect and looking forward to working with sometimes even less than half the size of to improve Bar Associations and how to as reading and providing meals. This array Chair-Elect Amber Martin and the Young bar staffs from much smaller membership increase dues-paying membership. of activities comes around every year, we Lawyers in 2019-2020. groups than our own. These ladies do great The first thing to notice is that we are have committees and events dedicated to We did note some good ideas and aren’t work and should be appreciated for that on one of the few bar organizations, if not the such items, and they are just waiting there afraid to borrow ideas from other asso- a regular basis. Thank you, Debbie, Pam, only one, that brought its Young Lawyers for you to become involved. Apparently, ciations that are doing things we haven’t and Connie! Chair Elect to the meeting. After listening we have been pretty forward thinking for tried. We discussed many new tweaks Michael W. Brewer is an attorney, to several sessions of how to engage and decades here in the South region. and additions to your OCBA program- founder, and partner of Hiltgen & Brewer, include young lawyers in Bar association There were also sessions on driv- ming. Some will make it, and some won’t. PC in Oklahoma City, Oklahoma. To con- membership and activities, it became clear ing membership numbers. Offering ser- Hopefully, we will draw an active group of tact Mike, email [email protected], call that we are way ahead of the pack includ- vices such as job placement, credit card Oklahoma County lawyers to participate. (405) 605-9000 or tweet him at @atty- ing much larger associations than our own. payments for law firms, CLE trips, and As I write this article for the Briefcase, I mikeb. For more information, please visit The OCBA Young Lawyers Division is the like. Again, OCBA has been there, am preparing to attend the OCBA Bench www.hbokc.law. Oklahoma Association of Black Lawyers honors civil rights attorney Melvin C. Hall

Riggs Abney attorney, Melvin C. Oklahoma Legislative Black Caucus, the Hall has been an essential member of Hall, was presented with the Opio Toure University of Oklahoma Black Alumni Oklahoma’s legal community for nearly Champion of Justice Award at the Oklahoma Society and Langston University. Hall was 40 years, practicing employment law in Association of Black Lawyers (ABL) also nominated by former President Bill addition to civil rights law. He served as Annual Scholarship & Awards Dinner on Clinton to serve as Federal Judge in the the executive director of the Oklahoma April 11 in Oklahoma City. Hall is among United States District Court for the Western Human Rights Commission for four years, six award recipients who will be honored District of Oklahoma. then used his civil rights background to for their philanthropic efforts. The award is presented annually to a bring a unique perspective to his role as an An advocate for civil liberties, Hall prac- person or entity who exhibits integrity and enforcement supervisor for the U.S. Equal tices civil rights law and teaches classes on an adherence to the highest principles and Employment Opportunity Commission. the civil rights movement and civil rights traditions of the legal profession, in addi- Hall graduated from the University of law as an adjunct professor at the University tion to superior professional competence Oklahoma College of Law in 1981. He of Oklahoma. He has been recognized for and extraordinary professional accomplish- currently works in the firm’s Oklahoma his dedication to justice by entities includ- ments which benefit the nation, state and City office where he serves as partner and ing the Oklahoma Bar Association, the local community. shareholder.

2019 BENCH & BAR CONFERENCE SEQUOYAH STATE LODGE - HULBERT, OKLAHOMA By Shanda McKenney

March went out like a lion the weekend of March 29 Conference registrants had several options for earning the OCBA YLD presented an hour on ethics addressing as OCBA members gathered for the biannual Bench & CLE credit following an opening presentation and remarks issues involving social media with judges and with clients. Bar Conference, held this year at Sequoyah State Lodge by Chief Justice Gurich. There was a panel of State Court The meals for the event were catered by the Lodge, which on Fort Gibson Lake. Despite the abnormally wet and Judges, as well as a panel of Federal Court Judges that also offered a family game room and, in warmer weather, cold weather hampering many of the planned outdoor permitted attendees an opportunity to engage in a small a swimming pool. activities, rousing fun was had by all and some CLE was group setting. Judge Ken Stoner presented a program on Those who attended universally enjoyed themselves, even earned in the process. Attendees of note included understanding substance abuse and how to handle clients with at least one member proclaiming the event to be Chief Justice Noma Gurich, Court of Civil Appeals Judge with substance abuse issues, and Steve Barghols gave a the “best bar meeting I’ve ever been to.” The casual and Barbara Swinton, current District Judges Don Andrews, presentation on mediation processes. relaxed atmosphere was perfect for getting to know other Trevor Pemberton, Tom Prince, Richard Ogden, and Ken Following the CLE tracks on Saturday morning, social local lawyers and for honing one’s practice in Oklahoma Stoner; and Special Judge, April Collins. Federal District events were planned that included a hiking trip, horseback County, at all levels. Those who missed out on this excel- Judge Tim DeGiusti and Magistrate Suzanne Mitchell also riding, and a guided wine tasting with Sommelier Heather lent event should mark their calendars now for the end of attended. Ezell. Following the group dinner on Saturday evening, March, 2021, and definitely plan to be there. www.okcbar.org • April 2019 • BRIEFCASE 7 Lawyers in the Library

By Jovanna Johnson

On Tuesday March 26, 2019 Terrell Monks and his team (Shanika Chapman and Joy Robison), Estate and Probate Attorneys, teamed with The Oklahoma County Law Library and the Downtown Metro Library to provided free Legal information regarding Holographic Wills, Medical Power of Attorneys, and Advance Directives. The class on March 26th did an outstanding job assisting the community with the correct information and documentation in the event of an unexpected passing or healthcare emergency. The main topic discussed was, if you do not have a will, who will decide how your assets are distributed, and would that distribution be to your liking? If you wish to have specifi c people or organizations inherit some of your property, or if you want to decide the proportions of your gifts, a will can make sure your wishes are followed. Mr. Monks and his staff also made it clear that a will makes the management of your assets clear and simple for everyone involved. The same applies to a Medical Power of Attorney; it allows people who become unable to make their own decisions exercise their beliefs and wishes regarding medical procedures ahead of time. Statistics show that over 60% of American adults lack a will or any type of emergency planning. That means 4 out of 10 adults don’t have a written out plan for their loved ones if something drastic was to happen to them. Terrell Monks and his team are on a mission to provide the community with the opportunity to receive legal information. In the words of Mr. Monks, “I believe that you have the right and the moral responsibility to plan and direct how your power will be used when you are no longer here to control and use that power yourself.” Due to the positive feedback from the March 26th event, Mr. Monks, his team of Attorneys, and the Law Library are currently in the process of planning the next workshop to assist the fi rst twelve people that sign up, followed by sessions throughout the county in conjunction with the Metro Library System. We would like to thank all of the attorneys who volunteered their time and services - you are very much appreciated. A special “thank you” also goes to the Metro Library and the Oklahoma County Law Library for being a part of this great movement.

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Oklahoma Supreme Court Chief Justice Noma Gurich was this year’s featured speaker.

President Sheila Stinson welcomes Conference Chair Luke Abel introduced everyone to the conference. Chief Justice Noma Gurich.

Shanda McKenney won the Happiest Attendee Award.

Ben Grubb wrapped up the presentation on Ethics for the YLD Troupe.

Paige Masters lead off the Young Lawyers’ Troupe on Ethics.

Luke Abel presented Angela Ailles Bahm the Award for Most Discerning Wine Taster.

Presley Butcher (Kendall Syke’s daughter) won the Best Sport Award for being the Derek Cowan won Runner-Up in Wine Tasting. only “kid” in attendance. www.okcbar.org • April 2019 • BRIEFCASE 9

The State Court Panelists were: Judge Sheila Stinson, Chief Justice Noma Gurich, Judge Tim Henderson, Judge Trevor Pemberton & Judge Richard Ogden

Sommelier Heather Ezell presented a Wine Tasting class.

Amber Martin presented at the YLD Ethics presentation.

The Federal Court Panel members were Judge Timothy DeGiusti & Magistrate Judge Suzanne Mitchell.

Steve Barghols presented on Best Practices in Mediation.

Dan & Lacey Couch won Best Hikers Award.

Judge Ken Stoner gave a presentation on Understanding Addiction: How to Work with a Client/Litigant with a Substance Abuse Disorder. 10 BRIEFCASE • April 2019 OCBA Reception for Oklahoma County Judges & Legislators:

Board members Rachel Morris, Kristie Scivally & Chris Deason

Board members David Dobson, Stan Evans & Bob Jackson

Board members Monica Ybarra, David Cheek & Michael Brewer

Judges Barry Hafar, Trevor Pemberton & Lynn McGuire

Board members Justin Meek, Ben Grubb & Judge Sheila Stinson

Judges Trent Pipes, Richard Ogden, Elizabeth Kerr & Richard Kirby www.okcbar.org • April 2019 • BRIEFCASE 11 Prayers for the Soldiers: A Remembrance By Herb Graves

The redbud and dogwood had Division and morphed into a deadly bloomed. The azaleas had come and combat force complete with hundreds gone. The rhythm of army life had set- of Huey troops and Chinook heavy lift tled into summer fire watches, soldiers’ helicopters, along with Cobra gunships. leave, field exercises, and the usual Cavalry troops have a historic place in parties that followed a winter of absence Army history. Visions of horse mounted and training. It was the beginning of cavalry galloping across the plains in summer for the Second Battalion, 9th pursuit of Pancho Villa and, more poi- Infantry, a mechanized infantry battal- gnantly, Native Americans, are a strong ion in the Second Infantry Division. piece of army folklore. The helicop- Garrisoned at Fort Benning, Georgia, ter now replaced the horse and most the battalion had spent January through wheeled vehicles using the same unit April of 1964 training in Germany as a designations. Hence the 2/9 became the part of a series of exercises named Long 2nd Battalion, 7th Cavalry. Thrust - in this case, Long Thrust IX. In September 1965, the 1st Cavalry Transportation of an infantry battalion began its deployment to a new war to the wintery environment of Germany ion chaplain, and someone in civilian With the conclusion of the lunch, we zone in South Viet Nam. It was the was intended to act as a training exercise clothes. “Civilian clothes” was the lead- exited the building chatting with friends beginning of an escalation of the war. in reinforcing NATO in the event of a er of a Columbus, Georgia church. His and NCOs. As we walked down the In November, the 1/7 Cav. fought the conflict with the Soviet Union or any name and Christian identification have hill toward the battalion area, I was still seminal battle of the war in the Ia Drang other potential enemy. The weather had long since departed my memory, but the perplexed at the minister’s comments. Valley, where the North Vietnamese and been bitterly cold, a potentially danger- loss of this information is irrelevant to His statements of willful giving of life the Americans learned how to deploy ous condition for soldiers from the south the message he carried. I sat at a table simply made no sense to a 25 year col- their forces against one another. The 1/7 of the United States. with Ray Celeste, by then my former lege educated male. Why would any- was led by then LTC, and later LTG, Al It was an army composed of draftees, company commander, Lieutenants John one be ready to lay down their life for Moore. The story of the celebrated bat- many of whom were not high school Fesmire, Jack Branch, and Ed Janzen. their country or anyone else? I simply tle is documented in We Were Soldiers graduates, and was led by a corps of The chatter was light and collegial. The couldn’t get my head wrapped around Once, as is the subsequent ambush of older NCOs and officers. A mostly camaraderie was apparent. Many in his statement. I soon parked my con- the 2/7. While many American soldiers minority army led by white officers the room were graduates of the Army’s sternation in a remote part of my brain, died in both battles, the 2/7 suffered an and NCOs. In my infantry company, Ranger and Airborne schools. They not even intending it to be available for egregious number of dead and wounded Company A, there were only two black were purportedly the “best of the best” future reference. I was soon occupied after being surrounded in the jungle by NCOs, and in the entire division, only and prepared to lead their soldiers in with other duties involving reorgani- a North Vietnamese regiment. It was two black officers. The officers’ corps combat. zation of the communications platoon, January of 1966 when I first learned itself was composed of graduates of After a recognition of the presence developing a training plan for the wire of the battle in an article in Stars & West Point, college ROTC, and officers’ of senior leadership, the chaplain intro- crews, and ensuring that the radios were Stripes, an overseas publication of the candidate school. My company com- duced the speaker. There was irony that always working. Department of Defense, which in addi- mander, CPT Raymond Celeste, was a so many were present at the behest of The previous summer, the battalion tion to the story, also contained a list 1956 graduate of West Point. the chaplain, since the battalion com- had deployed to the woods of North of casualties. The list contained the As a 25-year-old ROTC graduate, I mander had earlier in the year insisted Carolina to conduct counter insurgen- names of enlisted soldiers and officers felt fortunate to be assigned to a com- that his subordinate leaders make man- cy training while aggressing against alike with whom I had trained, and with bat unit and to have the opportunity to datory appearances at the chaplain’s an ad hoc division called the 11th Air whom I attended the National Prayer spend a winter in Germany. It had been Sunday services in dress blues, no less. Assault, which soon morphed into the Day luncheon. a formidable challenge to spend those I was seated facing the speaker, while 1st Cavalry Division (Airmobile). It I have told and retold my story of the months leading my platoon, navigat- many had their backs to him. He was a was the advent of the helicopter as a part May prayer luncheon until the haze of ing in the woods, and maintaining the cherubic man. Definitely not military, of modern warfare. time has filtered through the tale, leav- equipment that went with being in the but like many in Columbus, his church In August of 1965, I was reassigned to ing it colorless and grey. Each telling mechanized infantry. Upon returning relied on the many gratuities that a the 508th ASA Group Headquarters in still comes with the flash of faces, the to Georgia, the battalion lost many of military installation with fifty thousand Seoul, Korea, my two years of duty in sound of voices past, the staccato of its enlisted men whose enlistments were soldiers could anoint on a community. an infantry unit having been completed. gun fire, the bursting of mortar rounds, up. Officers were reassigned to new However, the minister’s opening The army brought home from Korea the and exploding grenades. There may jobs or transferred to other units. I was words grabbed my attention. He began colors of the 1st Cavalry, replacing its be a special day in May set aside for subsequently sent to communication by expressing his appreciation for the unit designation with those of the 2nd prayer, but my prayers are always for officers school to be trained to manage opportunity to be present on National Infantry Division. Units of the 11th Air the dead, the grievously wounded, and the battalion’s wire and radio communi- Prayer Day, and said that he particularly Assault and the 2nd Infantry Division faded memories of young faces gone cations and would return to lead the bat- appreciated the appearance of so many now became a part of the 1st Cavalry forever. talion’s communication platoon, or as fine young men “who were ready to lay we referred to it, the “commo platoon.” down their lives for the sake of their In May of 1965, an edict came down country!” I suddenly sat erect. I was from the battalion’s headquarters that all startled by his statement. My immedi- senior NCOs and officers were to report ate thought was, “I don’t know who in to the Sand Hill Golf Course club house the hell he is talking to.” I immediately for a “prayer luncheon.” It was the glanced over my right shoulder to see ABRAHAMS army’s way to ensure appropriate atten- if anyone else was acknowledging his BAIL & APPEARANCE BONDS dance at a function. Most of us groaned statement. Who would raise their hand in silent agony. The rule “never volun- and say “I am ready?” I saw none. I NATIONWIDE SINCE 1959 teer for anything” ran through our shorn looked over my left shoulder, but once heads, but we weren’t volunteering, we again no acknowledgment was forth- were being commanded. coming. I felt a flood of adrenaline in SPECIALIZING IN The main room at the Sand Hill Golf response to his radical statement. No LARGE BONDS Course club house was full of my uni- individual, much less an infantry man, formed colleagues. At the front of the is willing and ready to die for his coun- room, I spotted LTC John White, our try. Not that my fellow soldiers and I battalion commander, and a two-war weren’t patriotic, for we were. We just veteran. He was joined by SGM Scott, weren’t ready to depart from this life so 405-528-8000 the battalion sergeant major, the battal- freely. 12 BRIEFCASE • April 2019 Bar Observer ALA OKC Board of Directors Riggs Abney, Askew is one of 1,200 mem- TX. GableGotwals represents a diversi- tions in his career. bers registered with the Major League fied client base across the nation including The Oklahoma City Chapter of the Baseball Players Association. Fortune 500 corporations, privately owned OU Law Team Claims National of Association of Legal Administrators With nearly three decades of legal expe- companies, entrepreneurs, foundations, Championship At Federal Bar proudly announces the election of its 2019- rience, Askew successfully solves disputes and individuals. Though Oklahoma-based, Association Moot Court Competition 2020 Board of Directors: Suzy Klepac, through a creative, team effort – whether our connections and reach are global. The University of Oklahoma College of President, Kirk & Chaney; Kara Mitchell, by negotiation, mediation or aggressive Our clients entrust us every day with the Law was crowned the national champion President-Elect, Christensen Law Group; litigation. In addition to his work with stewardship and strategic management of of this year’s Federal Bar Association DeAnna Carter, Secretary, Fellers Snider; Riggs Abney, Askew serves as outside their legal challenges. GableGotwals is Thurgood Marshall Memorial Moot Court Danita Jones, Treasurer, Chubbuck General Counsel to B.B.I. Sports Group. well known for high quality legal services Competition. This marks the fourth nation- Duncan & Robey; and, Trent Corken, The agency represents numerous profes- provided by experienced litigators and al competition championship for OU Law Immediate Past President, Hall Estill. sional baseball athletes. transactional lawyers who have been rec- The Major League Baseball Players ognized by Chambers USA, Best Lawyers in the last two years, demonstrating the Crowe & Dunlevy recognized as a college’s place among the top law schools Certified Healthy Business Association serves as the bargaining agent In America, Oklahoma Super Lawyers, and for all major league baseball players. a number of federal, state and county bar in the nation for moot court. The OU team of second-year law stu- For the second consecutive year, Crowe Registered agents must have obtained a associations. & Dunlevy has achieved the designation of post graduate degree, apply to the associa- dents Bakhtawar (Becky) Hafiz of Denton, a Certified Healthy Business, recognizing tion, and pass a written exam. Newly cer- Hartzog Conger Cason Welcomes New Texas, and Taylor Freeman Peshehonoff of the firm’s commitment to making a posi- tified, Askew is now permitted to recruit Attorneys Ada, Oklahoma, competed in five rounds, athletes and negotiate on behalf of players. prevailing over 39 other teams. The com- tive impact on the health of employees and Hartzog Conger Cason is proud to wel- A graduate of The University of Tulsa petition was held March 20-21 in Wash- patrons, as well as its contribution in cre- come Sarah B. Edwards & Chris R. College of Law, Askew is located in the ington, D.C. They were coached by OU ating a healthy environment for the future Kelly to our firm. firm’s Tulsa office and practices busi- Law alumnus Andrew Morris (’13). of Oklahoma. Sarah B. Edwards graduated from ness and civil litigation, in addition to The Federal Bar Association compe- Certified Healthy Oklahoma applicants the University of Oklahoma College of commercial law. Most recently, Askew tition, designed for two-person teams, are rated on several factors, including Law, where she was active in the Luther assisted B.B.I. Sports Group in the negoti- focuses on written briefs as well as oral organizational supports, tobacco control, Bohanon Inn of Court and University of ation of pre-arbitration contracts for Dylan arguments. This year’s topic involved the nutrition, physical activity, stress man- Oklahoma Civil Legal Clinic. She earned Bundy of the Baltimore Orioles and Archie interpretation and application of the Equal agement, mental health, chronic disease her undergraduate degree in business Bradley of the Arizona Diamondbacks. He Credit Opportunity Act. prevention and management, occupational administration from Southern Methodist also assisted with the salary arbitration Other competitors in the tournament health and safety as well as health promo- University. She currently serves on the case on behalf of Detroit Tigers pitcher, included teams from SMU Dedmon School tion. Board of Directors for Oklahomans for Michael Fulmer. of Law, the University of North Carolina By meeting most or all of these criteria, Criminal Justice Reform, Citizens for School of Law, the University of Virginia the firm provides an environment to foster Children & Families, and Spur Kitchen GableGotwals Commits to an School of Law and Villanova University healthy behaviors. The policies, programs Foundation. Sarah practices corporate and and procedures that Crowe & Dunlevy has Additional 750 Community Service Charles Widger School of Law. Hours in Honor of its 75th Anniversary commercial law. She advises clients in implemented are designed to continue to business process outsourcing and related OU Law is ranked a Top 5 Moot Court positively impact not only employees, but In honor of its 75th anniversary, transactions, in addition to corporate risk Program in the Nation by the Blakely visitors and employees’ families, as well. GableGotwals is committing to an addi- management and other strategic sourcing Advocacy Institute, and for the last six The Certified Healthy Oklahoma Pro- tional 750 community service hours in issues. She is also experienced in draft- years, the institute has placed the college gram is a free, voluntary statewide cer- 2019. The Firm’s strong culture includes ing and negotiating various agreements, in the Top 20. In the American Bar Associ- tification. The certification showcases giving back to the communities in which including vendor agreements, licensing ation’s inaugural Competitions Champion- businesses, campuses, communities, con- we serve. “GableGotwals has a long histo- agreements, and terms related to data pro- ship, OU Law placed fifth out of 156 law gregations, early childhood programs, ry of community support, civil leadership, tection and privacy. schools nationwide. restaurants and schools that are commit- and pro bono work,” said Firm President, Christopher R. Kelly graduated from the In combination with other recent honors, ted to supporting healthy choices through Amy Stipe. “It’s evident in the numer- University of Oklahoma College of Law OU Law’s achievements in moot court environmental and policy change. These ous organizations and hours our employ- in 1995 and received his Masters Degree competitions highlight the college’s com- entities are working to improve the health ees give. Last year alone, the Firm gave (LL.M.) in Health Law from DePaul mitment to providing a world-class legal of Oklahomans by implementing elements, a recorded value of $784,000 worth of University College of Law in 1996. While education. Other recent accolades include: policies, and programs that will help Okla- time and services and we are pledging to in law school at OU, Chris was a Member Top 10 Best Value Law School homans eat better, move more and be give an additional 750 community service of the Order of the Barristers, multiple (National Jurist) tobacco free. hours in 2019.” moot court teams, and the Luther Bohanon Named an Apple Distinguished Sports Agent Thomas Askew What began as a two person enterprise American Inn of Court. Chris’s entire School for 2017-2019 (Apple Inc.) between Ellis Gable and Charles Gotwals legal career has been dedicated to health Top 25 Law School for J.D. Required, Attorney Thomas M. Askew recent- in 1944, GableGotwals has grown into a law and to health care clients. He previ- Full-Time, Long-Term Employment ly obtained a General Player Agent full-service law firm that employs approx- ously served as the General Counsel to two (American Bar Association) the Okla- Certification and will represent major imately 100 attorneys and more than 60 multi-billion dollar healthcare companies homa law school with the highest league baseball athletes nationwide. An professionals with offices in Oklahoma (one public and one private) and has closed overall bar passage rate for 16 years attorney at Oklahoma-based law firm City and Tulsa, OK, and San Antonio, more than two hundred health care transac- running.

OCU Law Wins Regional ABA Appellate Advocacy Competition By Professor Michael Gibson

For the third consecutive year, students from last year’s regional competition and fifth the year the Oklahoma City University School of Law before. Gillette tied with a student on the other have either won or placed second in their region OCU team, Baxter Lewallen, ‘20, for eighth for the ABA Appellate Advocacy Competition. place. That other team, consisting of Lewallen, In March, Adrienne Martinez, ‘19, Alyssa Jaycee Booth, ‘20, and Alan Taylor, ‘20, defeated Gillette, ‘19, and Levon Eudaley, ‘20, went 5-0, Harvard before losing in an elimination round. placing first in the Boston region. They defeated The team was coached by Prof. Greg teams from Ohio State, Mercer, Northeastern, Eddington. In 2018, OCU placed second in Cleveland-Marshall, and Stetson. the Portland, Oregon region; in 2017, OCU fin- Martinez had the sixth-highest score in the ished first in a regional competition held in San left to right: OCU law students Levon Eudaley, Baxter Lewallen, Jaycee region. An evening student, she placed fourth in Francisco. Booth, Alyssa Gillette, Adrienne Martinez, and Alan Taylor. www.okcbar.org • April 2019 • BRIEFCASE 13 OCBA Community Service Committee Members Making a Difference

By: Monica Y. Ybarra

After a friend lost her child to violent leaves, and collecting trash and debris. crime, Jennifer Roberts began learning “We knew this needed to be done but more about child abuse and neglect in were given a quote of $2,000,” Roberts Oklahoma and she was blown away by said. “Because these volunteers donated the statistics. “It pained me to think that their time, we were able to put that money so many kids were suffering from abuse towards purchasing beds and cribs.” and neglect, often at the hands of parents Ok City Crisis Nursery will open who are overwhelmed or in crisis and their doors soon, and their landscaping need a helping hand,” Roberts said. She and yard look amazing thanks to OCBA also discovered that many states have members. When they open, Ok City crisis nurseries—safe places where par- Crisis Nursery will be the only 24-hour ents in crisis can take their children to emergency-based child care home in the be cared for on a short-term basis. As state. “Crisis and emergency situations she discussed this with her two friends, can present themselves in a variety of Kendra Allen and Lauren Langley, they ways. A sudden illness or accident, feel- begin to envision such a place for chil- ings of helplessness, emotional distress dren in Oklahoma City and Ok City or frustration, domestic violence, and Crisis Nursery was born. homelessness are just a few,” Roberts But the idea was only the first step said. “If we can provide a safe place for and the journey hasn’t been easy. The children during these times, we know we women encountered a number of obsta- can reduce the incidents of abuse and cles along the way, but managed to neglect.” overcome each one with support from The OCBA Community Service the community, including the Oklahoma Committee hopes to partner with Ok City County Bar Association Community Crisis Nursery in the future. Until then, Service Committee members. Recently, you can visit their website at www.cri- OCBA members hosted a workday at Ok sisnurseryokc.com to learn more about City Crisis Nursery and focused on out- this important community resource and door projects like clearing brush, raking discover ways to donate or volunteer.

Sherri Luckowski of Angela Ailles and Associates, Harmonniey Kinchion of Law Offices of Harmonniey S. Kinchion, Monica Ybarra of Phillips Murrah P.C., Reign Karpe of Angela Ailles and Associates, and Chance Pearson of Ryan Whales Coldiron Jantzen Peters & Webber.

ASK-A-LAWYER VOLUNTEERS NEEDED FOR 2019 Date: Thursday, May 2, 2019 • Place: OETA, 7430 North Kelley Avenue, Oklahoma City, OK 73111 • Phone: 848-8501 Directions: OETA is behind Channel 9, off of Kelley, between Wilshire and NE 63rd (Go west off Kelley on NE 73rd, which is the parking lot of Channel 9)

I want to volunteer to answer phones on Thursday, May 2, 2019 during the OCBA’s Ask-A-Lawyer program with OETA. I would like my shift to be:

8:45 a.m. – 11:00 a.m. ___ 11:00 a.m. – 1:00 p.m. ___ 1:00 p.m. – 3:00 p.m. ___ Name of Ask-A-Lawyer Volunteer: ______Address: ______3:00 p.m. – 5:00 p.m. ___ 5:00 p.m. – 7:00 p.m. ___ 7:00 p.m. – 9:00 p.m. ___ Phone: ______Fax: ______E-mail: ______

Fill out this form and return it to the OCBA by Fax 405-232-2210, e-mail [email protected] or call the bar office at 236-8421. THANKS!!! 14 BRIEFCASE • April 2019 THE TRUE MEANING OF THE CONSTITUTION’S ‘CRUEL & UNUSUAL’ PUNISHMENT CLAUSE

By Bill Graves*

1. The Framers’ Meaning of Cruel and Unusual Holmes, Jr. stated: that mark the progress of a maturing society” or “the basic Punishment That in England it was nowhere deemed that any theory of mores of society” are legislative matters outside the scope of proportional punishment was suggested by the bill of rights legitimate judicial power. What is meant by “decency”? How The Constitution’s Eighth Amendment provides that “[e] or that a protest was thereby intended against the severity are “evolving standards” determined? It clearly appears to be xcessive bail shall not be required, nor excessive fines of punishments, speaking generally, is demonstrated by the from the personal beliefs of the Justices and what they per- imposed, nor cruel and unusual punishments inflicted.” The practice which prevailed in England as to punishing crime sonally believe or want the law to be. Justice Holmes, held “cruel and unusual punishment” prohibition was taken ver- from the time of the bill of rights to the time of the American that “(t)he criterion of constitutionality is not whether we batim from the English Common Law and the English Bill Revolution. believe the law to be for the public good.”20 Nevertheless, of Rights of 1689 upon the passage of which “crucifixion, Professor Berger wrote that a ban on dispropor- with “evolving standards” the criterion of constitutionality boiling in oil were no longer customary.”1 Nor were those tionate penalties was “not a part of the common law.” clearly appears to mean what the Court wants it to mean even punishments which were barbarous, inhuman, and un-Chris- “Consequently,” Berger said, “Weems was not giving a if clearly adverse to the Constitution’s text and the original tian. Nevertheless, Professor Raoul Berger says “none of the ‘wider application’ to an accepted principle but replacing meaning of the Framers. This is a blank check for the Court cruel” methods “employed in the Bloody Assize” ceased to 14 the principle with its own opposite.” Justice White, joined to make the Constitution mean whatever the Court wants it to be used after 1689.2 Thus, whipping, pillorying and excessive by Justice Holmes, said Legislatures in punishment of crime mean. Art. I of the Constitution states that all legislative pow- imprisonment” were not within the clause.3 Prof. Berger may do so without suggestion of judicial power to control the ers reside in the Legislative branch. Thus, Justice Scalia said, said: “The crowded catalog of (English) statutes decreeing legislative discretion.”15 the courts were never meant to have legislative, much less death for trivial offenses explodes the so-called common law super-legislative powers. Madison warned that combining ‘doctrine’ that punishment must fit the crime.”4 Neither was 3. The Supreme Court and “Evolving Standards” the legislative, executive and judicial powers in one branch disemboweling until it was “eliminated by statute” in 1814.5 Subsequently, the Court made no pretense of adhering to of government is “the very definition of tyranny.”21 Based on the Common Law, the Supreme Court held in Ex the original understanding of “cruel and unusual” punish- parte Kemmler, 136 U.S. 136, 446 (1890), that burning at the ment, but held in Trop v. Dulles, 356 U.S. 86, 101 (1958), that stake, crucifixion, breaking on the wheel, etc., were forbid- Bill Graves is a former State Legislator and District Judge. the Constitution’s Eighth Amendment “must draw its mean- den as “cruel and unusual,” but the death penalty was not. ing from the evolving standards of decency that mark the Punishments involving torture or a lingering death, the Court (Endnotes) progress of a maturing society.” “Evolving standards” were said, are unconstitutional. Thus, the Court held in Kemmler 1 Raoul Berger, Death Penalties: The Supreme Court’s Obstacle Course, subsequently used by the Court to invalidate death penalty that “cruel and unusual” punishments were those viewed as Harvard U. Press (1982), 29. laws in Furman v. Georgia, 408 U.S. 238 (1972) even though cruel and unusual in the English Common Law. 2 Id. 35. capital punishment is both impliedly and expressly allowed Under the Common Law, “Benefit of clergy” was a 3 Id. 39. in the Due Process Clauses16 of the Fifth and Fourteenth defense to capital punishment.6 That is why Congress, in 4 Berger. Id. 35. Amendments.17 enacting a death penalty statute, eliminated that defense.7 5 Id. 39, 41. Now armed with not just Weems’ proportionality doctrine, This is important in understanding the meaning of “cruel 6 Benefit of Clergy exempted English clergy and nuns from the jurisdiction but also “evolving standards,” the Supreme Court held in and unusual” punishment. James Madison, the father of the of the ordinary civil courts, and was granted in the Middle Ages. 2010 in Graham v. Florida, 560 U.S. 48 that “in determin- 7 Berger, Id. 42, 43. Constitution, as well as architect of the Bill of Rights, said ing whether a punishment is cruel and unusual, courts must 8 Raoul Berger, Congress v. the Supreme Court (1969), n. 149, at 195. that particular parts of the Common Law may have a sanc- look beyond historical exceptions to ‘the evolving standards 9 Ex parte Bollman, 8 U.S. (4 Cranch) 75, 93 (1807) (finding that “for the tion from the Constitution, so far as they are necessarily com- of decency that mark the progress of a maturing society.” meaning of the term habeas corpus, resort may be had unquestionably to the prehended in the technical phrases which express the powers Citing Trop v. Dulles, Graham said “evolving standards” 8 Common Law); United States v. Burr, 25 F. Cas. 30, 159 (C.C. Va. 1802) (No. delegated to the government.” Citing Chancellor James must be utilized “because ‘[t]he standard of extreme cruelty 14, 193) citing Coke, Hale, Foster, and Blackstone to justify defining treason Kent’s Commentaries, the Supreme Court stated in Kepner v. is not merely descriptive, but necessarily embodies a moral to common meaning and finding it “securely conceivable that the term was not United States, 195 U.S. 100, 125 (1904) that “[i]n ascertain- judgment.’ The standard itself remains the same, but its appli- employed by the framers of our Constitution in the sense which had been affixed ing the meaning of the phrase taken from the Bill of Rights it cability must change as the basic mores of society change.” In must be construed with reference to the common law from Graham, a 15-year old had been sentenced to what resulted to it by those from whom we borrowed it.” which it was taken.” This was reiterated by the Court in Ex in a life without parole sentence for a non-homicidal crime. 10 James Kent, Commentaries on American Law, (9th ed. 1858), 373. parte Grossman, 267 U.S. 87,109 in 1925. In U.S. v. Wong Citing Weems, the Graham Court held that “the Court’s 11 In Erie v. Tompkins, 304 U.S. 64 (1938), the Court, despite the Framers’ Kim Ark, 169 U.S. 649, 654 (1898), it was held that absent precedents consider the punishments challenged not as intent, reversed numerous of its own precedents and held that the Common the Common Law, the Constitution could not be rightly inherently barbaric but as disproportionate to the crime.” The Law is not an aide in interpreting the Constitution. Subsequently, Justice understood. Chief Justice Marshall resorted to the Common U.S. Supreme Court expanded its disproportionate” doctrine Robert Jackson, in D’Oench, Dubne & Co. v. FDIC, 315 U.S. 447, 469-471 Law to determine the meaning of the Constitutional terms in Miller v. Alabama, 567 U.S. 460 (2012), Montgomery v. (1942), was incredulous at this conclusion, noting that Art. I, §10 mentions 9 habeas corpus and treason. Chancellor Kent prophetically Louisiana, 577 U.S. ___, 136 S.Ct. 718 (2016) and Kennedy “contract” without defining it. Thus, Justice Jackson observed that the Court said without the Common Law, “the courts would be left v. Louisiana, 554 U.S. 407 (2008). “has not hesitated to read the Common Law doctrine of consideration into the free to roam at large in the trackless field of their own imag- The above cases have resulted in sentences being reduced Contract clause. “ inations.”10 in many State cases at the expense of States’ sovereignty – 12 Berger, Death Penalties, Id. 72. including Oklahoma. In Luna v. State, 2016 OK CR 27, 387 13 Berger, Id. 115. 2. The Court Departs From the Common Law P.3d 956, the 17-year old Defendant fatally shot in the back a 14 Id. 73. After Kemmler, the Supreme Court ultimately began its young jogger from Australia and was convicted of murder in 15 Weems, Id at 402. Both Justices White and Holmes observed that “the departure from the original understanding as to “cruel and the first degree and sentenced to life imprisonment without legislation of all the States…..exemplifies the exertion of legislative power to unusual” punishment in Weems v. United States, 217 U.S. the possibility of parole. Following the Graham, precedent define and punish crime according to the legislative conception of the necessi- 349, 366-367 (1910), where, on a conviction for fraud, a and its progeny, the Oklahoma Court of Criminal Appeals ties of the situation….without suggestion of judicial power to control the legisla- defendant was sentenced to 15 years in prison, including reduced the penalty to life with the possibility of parole. tive discretion.” being chained from wrist to ankle, and compelled to work 16 Both the Fifth and Fourteenth Amendments provide that the State may Conclusion at “hard and painful labor.”11 Professor Berger has called not deprive persons “of life…….without due process of law’ which clearly Weems “the bible of death penalty abolitionists.”12 It may The concept of evolving standards raises questions which implies that life may be taken with due process of law. The Fifth Amendment also accurately be said to be the bible of those who favor the People, the “ultimate authority,” (as James Madison called also begins by saying: “No person shall be held to answer for a capital, or departure from the Framers’ original understanding of “cruel them)18 deserve answers. Madison said the Constitution’s otherwise infamous crime, unless on a presentment or indictment of a grand and unusual” punishment. Nevertheless, the seeds for depar- “legitimate meaning….must be derived from the text itself” jury…” ture from the common law were sown in Weems, where the and if the Constitution is not interpreted in the same sense in 17 The People did not agree with the Court and thirty-seven States re-en- Court held that “it is a precept of justice that punishment for which it was written and ratified, “there can be no security acted death penalty laws after Furman. The Court got the message and upheld crime should be graduated and proportioned to the offense.” for a faithful exercise of its powers.”19 In South Carolina v. Georgia’s new death penalty law in Gregg v. Georgia, 433 U.S. 584 (1976). Id at 366-367. This is clearly contradicted by the fact that U.S., 199 U.S. 437, 448 (1905), the Supreme Court said the 18 The Federalist, No. 45. under the common law, “thefts above the value of a few Constitution’s “meaning does not alter. That which it meant 19 The Quotable Founding Fathers (Buckner F. Melton, Jr. ed. 2004) 48. shillings were capital crimes.”13 In dissent in Weems, at when adopted, it means now.” Judicial authority to alter the 20 Adkins v. Children’s Hospital, 261 U.S. 525, 570 (1923). 193, Justice Edward White, joined by Justice Oliver Wendell Constitution’s meaning per “evolving standards of decency 21 The Federalist, No. 47.` www.okcbar.org • April 2019 • BRIEFCASE 15 DIVORCING YOUR HOME START FRESH. START TODAY. 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