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U.S. District Judge Stephen Friot Stephen Judge District U.S. of the United States Supreme Court. The The Court. Supreme States United the of many others. others. many wide struggle for rights. rights. for struggle wide

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OCBA Celebrates Law Day 2015 Day Law Celebrates OCBA

COUNTY BAR COUNTY OKLAHOMA 2015 APRIL WWW.OKCBAR.ORG ASSOCIATION A Publication of the the of Publication A 3 No. 47, Vol. 2 BRIEFCASE • April 2015

BRIEFCASE April 2015 From the President Briefcase is a monthly publication of the Oklahoma County Bar Association 119 North Robinson Ave. Is Justice Blind? Oklahoma City, OK 73102 (405) 236-8421 By Jim Webb Americans say that blacks receive equal “prejudices” – technically defined as -pre treatment under the criminal justice system. conceived judgments or opinions. Like it Briefcase Committee OCBA President That’s a ten percentage point drop from one or not, my own background and experiences “Injustice anywhere is a threat to jus- Judge Jim Croy, Chris Deason, Judge Don year earlier, when the public was evenly Deason, Michael Duggan, Michael Ford, Brian tice everywhere.” ” are necessary parts of the lens through which divided on the question. This finding comes Hansford, Justin Hiersche, Thomas Ishmael, -Martin Luther King, Jr. I filter the world around me. However, that Scott Jones, Matt Kane, Katherine Mazaheri, from the Public Religion Research Institute Lady Justice wears a blindfold. The rea- means I must be ever vigilant for when those Joi McClendon, Shanda McKenney, Richard American Values Survey. Parr, Travis Pickens, Austin Reams, Teresa son, of course, is that justice is to be objec- judgments or opinions are irrational, hostile, Rendon, Judge Vicki Robertson, Bill Sullivan, tive – based entirely on the or detrimental to the rights of others. Similarly, as reported Rex Travis, Collin Walke, Judge Allen Welch facts and the law, not based As a lawyer, I must be committed to jus- and Alisa White. by U.S. News & World on wealth, power, race, or tice for all. All means all. “Equal justice Editor Judge Geary L. Walke Report, all-white juries the like. under law is not merely a caption on the Contributing Editors Richard Goralewicz Have you ever worn a convict black defendants facade of the Supreme Court building, it Bill Gorden blindfold to smack a piñata for felonies at a rate of is perhaps the most inspiring ideal of our Warren Jones with a wiffle bat? Or pin the 81 percent versus white tail on a donkey? Did you defendants at a rate of 66 society,” wrote U.S. Supreme Court Justice percent. Lewis Powell, Jr. “It is one of the ends for Oklahoma County Bar Association ever cheat by tilting your head back and peaking out All too often, racial which our entire legal system exists.” OFFICERS: down your nose and under- biases aggravate socio- Lawyers are the ultimate human defenders President Jim Webb neath the blindfold? economic disadvantages of justice. It is imperative for us to accept President-Elect Angela Ailles Bahm Uh, me neither. for folks who already lack and understand those who come from dif- Vice President Judge Barbara Swinton We would all like to access to the legal sys- Judge Patricia Parrish ferent backgrounds. Along those lines, it’s Past President believe Lady Justice is inca- tem and legal counsel. In Treasurer Robert D. Nelon even more important to work within our pable of peaking. Trayvon Jim Webb times like these, we attor- Bar Counsel Brandon Long profession -- such as mentoring junior attor- Martin, Michael Brown, neys must be reminded of STAFF: neys or promising students from different Eric Garner, and, most recently, a disgrace- the duty of our profession and the goals of Executive Director Debbie Gorden backgrounds -- so that the legal profession is ful video from a fraternity in our own back the law, as so appropriately captured by Roy Legal Placement Director Pam Bennett yard, have caused me to think seriously more inclusive and reflective of our society. Membership Services Connie Resar Barnes, former Governor of Georgia, at the about the prejudices -- particularly race- We can start right here in Oklahoma based -- that exist in our society and, by Journal Record Publishing Co. Inc. extension, the justice system and our honor- Publisher Joni Brooks able profession as lawyers. Director of Sales When the fraternity video surfaced, I and Community Relations Dee McCants heard some people say things like, “I’m Creative Services Tiffany English Sarah Williams glad we don’t have that problem in our business.” “Our school does not allow Advertising Acct Exec Jessica Misun things like that.” “Our church is complete- ly colorblind.” “There is no prejudice in our neighborhood.” Do you really believe For advertising information, that? Fully believe it? I very much want to call 278-2820. believe it, but let’s be honest. We still have a long, long way to go. Postmaster: Send address changes to OCBA Briefcase, 119 North Robinson Ave., Oklahoma In the halls of justice, we all know there City, Oklahoma 73102. is no room for prejudice. I think this means we must continuously scrutinize effects of Journal Record Publishing produces the Briefcase our justice system that may show what the for the Oklahoma County Bar Association, which is Supreme Court refers to as a “disparate solely responsible for its content. impact” upon only certain members of our © 2014 Oklahoma County Bar Association society. Why? Because we should do everything we can to ensure that prejudices OKLAHOMA COUNTY do not play an entirely unintentional, but 2004 Equal Justice Conference: “The law County. We will all be better for it. BAR ASSOCIATION equally insidious, role. should be a shield for the weak and power- As always, remember I have an open door MISSION STATEMENT This is often discussed in the context less, not a club for the powerful.” policy. I welcome your ideas on how we can of the criminal justice system. For exam- improve the OCBA. Please email me at jim. Volunteer lawyers and judges dedicated to serving the judicial system, their profession, ple, fewer than 4-in-10 (38 percent) of I will be the first to admit that I have [email protected] or call me at 935-9594. and their community in order to foster the highest ideals of the legal profession, to better the quality of life in Oklahoma County, and to promote justice for all. Community Service Committee Member Spotlight: Marchi McCartney

By Ray Zschiesche, Chair, at the Corporation Commission, Marchi has held various positions in these organi- Community Service Committee served as Director of the Consumer Services zations and has put in countless hours as Marchi McCartney re- Division and Director of the a volunteer. She continues her work with ceived her J.D. from the Transportation Division. these organizations after retirement, and is University of Oklahoma in Marchi retired from the especially interested in volunteering for or- 1988, after receiving her Corporation Commission ganizations that assist women and children. Bachelor’s and Master’s in March of 2014, but she She currently serves on the Lawyers degrees from Texas A&M hasn’t stopped working. Against Domestic Violence and Commu- University. After two years Throughout her legal career, nity Service Committees of the Oklahoma in private practice, Mar- Marchi has volunteered for County Bar Association. Marchi has been a a number of organizations, dedicated and valued member of the Com- chi began a career in civil Marchi McCartney service with the Oklahoma including the New Covenant munity Service Committee for, according Corporation Commission, starting as an United Methodist Church Mis- to best estimates and recollections, about assistant general counsel before being pro- sion Team, the Infant Crisis Center, Ed- mond Women’s Club and the YWCA. She moted to deputy general counsel. While See MARCHI, PAGE 7 www.okcbar.org • April 2015 • BRIEFCASE 3 Emerson Alternative School Events Receives Gifts Seminars By Geary Walke of over $5,000 with Amazon to be & On April 3rd a group of lawyers and used for the purchase of data (books) APRIL 30,2015 judges from two Inns of Court visited or to replace lost or damaged Kindles. Ask A Lawyer Program That was a one-time private contribu- the art show at Shakespeare In The 9 a.m. - 9p.m., OETA Studios Park in the Paseo. They were there tion that will, in all probability, not be to see the art presented by students replaced hereafter by the OKC Public MAY 1, 2015 at Emerson Alternative School. The Schools. However, the school district Law Day Luncheon did provide a cart for charging, for exhibition was a remarkable collection 12 Noon, Skirvin Hotel Grand security, and for the in-school trans- from inspired high school students. Ballroom The depth and substance of the art and fer of the Chromebooks between the the talent of these young artists cannot library and the English classrooms. JUNE 12, 2015 Emerson Alternative School When connected to the school’s inter- be overstated. Awards Luncheon net portal, most applications and the The Emerson students don’t fit into above, and see article Briefcase, June data used will be stored on the cloud. 12 Noon, Jim Thorpe & Assoc. the usual scheme of school programs for 2014). Ms. Carlson wondered whether Sports Bldg. a variety of reasons. Most of those rea- Chris’ friends and fellow lawyers might The Emerson Alternative School Library sons are beyond their control. Everything have any usable equipment to assist reading will always need more donations to buy JUNE 15, 2015 from jobs and delinquency to poverty and or English programs. Chris, Judge Deason equipment or data (books). Anyone wish- Annual OCBA Golf Tournament pregnancy are reasons to stop attending and Doneen Jones, current President of ing to help may do so by dropping off Gaillardia Golf & Country Club school stacked on top of the reasons which the Ginsburg Inn, went to work and not Amazon gift cards to the school. Chris rec- are not theirs to control. These students only gained the assistance of their fellow ommends $25 gift cards, but any amount, JULY 17, 2015 attempt to continue an effort to secure an lawyer-members at the Ginsburg Inn, but no matter the size, would be appreciated. OCBA Night at the Bricktown education despite the personal, social or challenged the Holloway Inn of Court The two contributing Inns, consisting Dodgers other burdens. through Judge Jerry Bass. substantially of members in the Oklahoma 7 p.m. Bricktown Ballpark Last fall Chris Batson Deason was con- $16,200 was contributed to Emerson County Bar Association, will meet jointly tacted by the Librarian/Media Specialist at (the Holloway Inn won the challenge by in April to visit with Ms. Carlson, students, SEPTEMBER 4, 2015 Emerson, Cathy Carlson. Chris and Judge $2,200). The money was converted to: 18 and to view some of the applications used Annual Dinner Dance Don Deason had spearheaded an effort to Kindles (7 more than Ms. Carlson orig- thus far. This is yet another example of 6:30 p.m., Skirvin Hotel Grand provide additional supplies for art students inally dared to hope for), 18 covers and lawyers working to improve the quality of Ballroom at Emerson (see art exhibit information adapters, 20 Chromebooks, and a reserve life for others. Thank you.

New District Court Judge, Aletia Haynes-Timmons

By C. Scott Jones Timmons, whose father was in the U.S. they have five children. Oldest daughter, Justice of the Oklahoma Supreme Court to Aletia Haynes Timmons was sworn in Air Force, was born in Enid. Although Alana House (age 29), is an attorney at the Court’s Times Standards Committee. as District Judge in January. Timmons her family was also stationed in Alaska the Oklahoma County Public Defender’s Timmons also was general counsel for was elected last November and Hawaii, they returned to Office. Daughters, Alexis (22) and Alex- the Adult NAACP for Legal Defense, the to fill the vacancy created the Oklahoma City area in andria (19) are currently attending Okla- Central State Troopers Coalition, BLAC, by the retirement of Judge time for Timmons to finish homa State University. Daughter, Aleyah Inc., and the Metropolitan Fair Housing Kenneth Watson. Timmons high school. In 1979, Tim- (20) is a student at the University of Okla- Council. She is also a co-founder of the has assumed the Family and mons graduated from John homa. Their son William (18) is a senior Jamming Hoop Fest, a summer youth Domestic docket formerly Marshall High School. She at Harding Charter Prep in Oklahoma City. basketball program in northeast Oklahoma assigned to Bernard Jones. obtained her Bachelor of Timmons has also been active in the City. Timmons said she decided to Arts Degree in Political Sci- community. She served on the boards of Judge Timmons’ chambers are in Room pursue a judgeship because ence from Oklahoma State Columbus Elementary Enterprise School 105 at the Oklahoma County Courthouse. she is “deeply troubled by University in 1983 and her and Harding Charter Prep High School. Her office number is 713-7101. Her cham- injustice,” and felt becoming law degree from the Univer- She was also appointed by Governor bers staff includes Karen Bacino (clerk), a judge would allow her to sity Of Oklahoma College David Walters to serve on the Committee Barbara Jones (bailiff) and Tara Nixon “do justice on a greater scale Of Law in 1986. While on the Status of Women, and by the Chief (court reporter). than I could as a private law- in law school she clerked yer.” Timmons also said she for Justice Yvonne Kauger, enjoyed being in the court- District Judge Aletia Haynes-Timmons who became her mentor. room and thought she would After leaving the clerk- be able to “greater impact the proceedings ship at the Oklahoma from the bench than as a litigant.” Supreme Court she accepted a position Timmons counts current Oklahoma with General Motors handling claims on County judges, Patricia Parrish and Bryan behalf of GM workers. After a stint with Dixon, as well as retired Judge Charles L. the Civil Division of the Oklahoma Coun- Owens, the first African-American to serve ty District Attorney’s Office, she returned as a District Judge in Oklahoma County, to private practice in 1999 at Abel, Musser, among her role models. “Judge Charles Sokolosky, Mares and Kouri Law Firm, Owens had a way of questioning you. He where she founded the civil rights and got right to the heart of the dispute,” she employment law litigation section, and said. worked for the next three years. Then she As a judge, Timmons expects civility started her own firm, Timmons and Asso- in her courtroom. Her biggest pet peeve ciates, LLC. Timmons has also been an is when a “lawyer accuses another lawyer instructor at Langston University’s Okla- of unethical conduct in a cavalier fashion homa City campus. without any evidence to substantiate the Timmons’ husband Paul is a captain in accusation.” the Oklahoma Highway Patrol. The two have been married for 22 years. Together 4 BRIEFCASE • April 2015

And the Court Said An Olio of Court Thinking

By Jim Croy that he told the sheriff that he found the bottle dence wholly failed to establish any of these of different religious faiths. On January 28, April 17, 1915 there, and the sheriff arrested him and said: elements of liability, and that their request for 1965, they filed their application before the One Hundred Years Ago “Well, I will let the jury decide whether you directed verdict therefore should have been respondent Judges. Involving the jurisdiction [Loftin v State, 1915 OK CR 33, 147 P. found it or not.” sustained. of the courts under 43 O.S. 1961 §§ 3 and 505.] The jury are the exclusive judges of the * * * 32. Section 3, after prohibiting, among other The plaintiff in error was convicted in weight of the evidence, and this court is not There is evidence that the defendant Alberty things, the issuance of a marriage license to the county court of Jackson county upon an authorized to reverse a judgment of convic- knew the plaintiff was ill or recently had a male applicant under the age of 21 years information which charged that, “one Oscar tion, when there is a conflict in the material been. The defendant company was paying her without the written consent of his parent or Loftin did willfully and unlawfully have in his testimony, unless it appears from the record claims for sick benefits under the policy. She guardian, provides that: possession whisky with the unlawful intent to that the jury were influenced by improper was in bed claiming to be sick at the time of sell, barter, give away, and otherwise furnish motives in arriving at their verdict. If, howev- the episode in question. The language, though “* * * this section shall not be construed said whisky to other persons, and to transport er, there is an absence of substantial evidence employed by Alberty at a business conference, to prevent the court from authorizing the said whisky from one place in the state of to support the conviction, the question is one was hardly suitable to the matter in hand. If his marriage of persons under the ages herein Oklahoma to another place therein, in viola- of law. words and actions resulted in physical injury mentioned, in settlement of suits for seduction tion of the prohibitory liquor laws,” and was We have carefully examined the record, to the plaintiff, as alleged, it was for the jury or bastardy; and the courts may also authorize sentenced in accordance with the verdict of and are fully convinced that the evidence in under guidance of proper instructions to say the marriage of persons under the ages herein the jury to be confined in the county jail for this case is entirely insufficient to sustain the whether Alberty was actuated or moved by the mentioned, when the unmarried female is 30 days and to pay a fine of $100. To reverse conviction. Considering the presumption that motives above mentioned. . . . pregnant, or has given birth to an illegitimate this judgment an appeal was perfected. the law always indulges as to the innocence The acts here complained of were unlike child, whether or not any suits for seduction or Of the various errors assigned, we deem of the accused and the necessity of estab- those committed by the defendant in Peoples bastardy have been brought; * * *”. it only necessary to consider the one that the lishing the guilt of the defendant beyond a Finance & Thrift Co. v. Harwell, supra. There Section 32 is a portion of an act of the verdict is contrary to law and to the evidence. reasonable doubt, the evidence should be of the defendant demanded payment of a debt 1945 legislature, as amended in 1959, requir- John D. Bailey, sheriff, testified that he was at such a character as to overcome prima facie and threatened to take property under a chattel ing a premarital examination for syphilis prior the town of Olustee, and with his deputy, Mr. the presumption of innocence. If the evidence mortgage given in security of the debt. He to the issuance of a marriage license. This act Collins, went into a livery stable and found the only raises a mere suspicion, or, admitting all merely declared his intention of doing that is now codified as 43 O.S. 1961 §§ 31 through defendant and Mr. Eley there; that the defen- it tends to prove, the defendant’s guilt is left which his contract and the law entitled him to 37. Section 31 provides that any person seek- dant had a quart bottle in his hand and broke it dependent upon mere supposition, surmise, do. The evidence indicated that the threat had ing a marriage license shall first file with the over the window sill; that he went out, “picked or conjecture, it is insufficient to sustain a a detrimental physical effect on the plaintiff. clerk a certificate or affidavit from a physician up the broken glass and licked up some of conviction. Foreman v. State, 8 Okla. Cr. 480, But the court held that a mere declaration to stating that each party to the proposed mar- the contents, and found that it was whisky,” 128 P. 1101. exercise a legal right to collect a debt could riage has been given a prescribed examination and then came back into the stable, and on In the absence of any evidence in this case not form the basis of an action for damages for syphilis and that in the opinion of the phy- the other side they found a half pint bottle from which the jury could rationally conclude for physical injuries resulting from fright or sician, neither party is infected with syphilis, about half full of whisky; that he arrested the that the defendant was guilty, we think it excitement induced by such declaration. The or, if infected, that said disease is not in a defendant. A.W. Collins testified that he was would have been a proper exercise of the language complained of in the instant case communicable stage. a deputy sheriff, and with Sheriff Bailey fol- power vested in the trial court to have advised went beyond the mere declaration that the Section 32 provides that lowed the defendant into the livery stable; that an acquittal of the defendant, upon the ground defendants would stand on their legal rights. “Because of an emergency or other cause the defendant had a bottle partly full of whisky that the evidence was insufficient to sustain It is next contended that if the language shown by affidavit or other proof of both of in his hands, and when he saw them he broke a conviction. It is true that there are some aforesaid had a detrimental effect on plaintiff, the parties over the age of twenty-five (25) the bottle over a nearby window sill; that he circumstances that are somewhat suspicious, it amounted to a mere emotional disturbance years, the Judge of the County Court, if sat- also found on the other side of the driveway a but that is the most that can be said of them. for which the law offers no redress. Western isfied by medical testimony, that neither the half pint bottle half full of whisky. The state In our opinion, it would be destroying the Union Telegraph Co. v. Chouteau, 28 Okla. health of the individuals nor the public health rested, and the defendant demurred to the evi- presumption in favor of the innocence of the 664, 115 P. 879; St. Louis & S. F. Ry. Co. v. and welfare will be injuriously affected there- dence, and moved the court to direct a verdict defendant, and permitting a subversion of the Keiffer, 48 Okla. 434, 150 P. 1026; Koons v. by * * *” of acquittal. The demurrer was overruled, the rule which requires the establishment of guilt Shelburne Motor Co., 167 Okla. 634, 31 P.2d may enter an order dispensing with the motion denied, and exceptions reserved. beyond a reasonable doubt, to allow this con- 573. In each of those cases the plaintiff sought certificate or affidavit required by Sec. 31. For the defense, E.J. Miller testified that viction to stand. damages for mental suffering alone resulting The age requirement of Sec. 32 was added Mr. Bradley had control of the barn, and that from negligence or from breach of contract. in a 1959 amendment; although the sentence Mr. Wilkerson and witness occupied it with April 30, 1940 Here there is evidence that the plaintiff suf- structure may leave some doubt as to the leg- their stock; that the defendant often watered Seventy-Five Years Ago fered physical injury as a result of mental islative intent, the intent is made clear by ref- his mare at the barn, and drove in there prob- [Excerpted from National Life & Accident or nervous shock, and the action is in tort to erence to the title of the 1959 amendatory act: ably once or twice a month, and other people Ins. Co. v. Anderson, 1940 OK 219, 102 recover for those injuries. “An Act relating to marriages; * * * amending do the same. Charles Eley testified that it P.2d 141.] 43 O.S. 1951, Sec. 32 , which relates to power was drizzling rain, and the defendant drove Plaintiff below recovered judgment for April 20, 1965 of county judge to waive requirement of phy- in and tied his horse; that he followed him physical injuries allegedly resulting from cer- Fifty Years Ago sician’s certificate by requiring both parties into the barn, and asked the defendant if Mr. tain malicious and unlawful words spoken to [Excerpted from Jones v. Shaw, 1965 OK to be twenty-five (25) years of age for such Miller was there; that he walked into one of her by defendants, and the defendants have 67, 441 P.2d 990.] waiver to be made * * *” (emphasis supplied). the stalls to urinate, and the defendant walked appealed. This is an application by Frances Aline Session Laws of 1959, page 183. into another stall to do the same; that the stalls Plaintiff had been collecting sick benefits Jones and Jesse Marquez, a minor, who sues Applicants allege in effect that respon- were boxed up solid half way. The defendant under a policy issued by the defendant com- by and through his next friend, for a writ of dent refused to order the issuance of the said, “I stepped on a bottle here,” and picked pany. The defendant Alberty, as agent for the mandamus directed to the respondent, Hon. marriage license to them solely because of it up. Just then Sheriff Bailey and Mr. Collins company, went to plaintiff’s home, where Virgil M. Shaw, County Judge of Canadian the Oklahoma miscegenation statute, 43 O.S. walked in. he found her in bed and allegedly ill. He County, to compel him to order the Court 1961 § 12 et seq. Sec. 12 is as follows: Oscar Loftin, as a witness in his own behalf, informed plaintiff that he had been sent there Clerk of Canadian County to issue a marriage “The marriage of any person of African testified that it was misting rain and he drove by the company to pay her $2.40. Plaintiff license to applicants without the premarital descent, as defined by the Constitutional into this barn; that just then Charles Eley came refused the proffered payment, asserting that physical examination required by 43 O.S. of this State, to any person not of African in and asked about Mr. Miller; that while they her claim was for $6, and that she was still ill, 1961 § 31 et seq., and without the written descent, or the marriage of any person not were talking Mr. Eley walked over into a stall, whereupon Alberty, according to plaintiff’s consent of the parents of Marquez as required of African descent to any person of African and he went into another stall, and stepped on testimony, proceeded to berate her in uncom- by 43 O.S. 1961 § 3. Before applying to the descent, shall be unlawful and is hereby pro- a bottle; that he stooped down and picked it plimentary language, charging that she was County Judge for the order, Marquez sought hibited within this State.” up, and said, “Here is a bottle.” Just then he not sick and was only a dead-beat. the written permission of his parents, who Sec. 13 makes the violation of Sec. 12 a saw the sheriff and Mr. Collins coming in, and Defendants say that the foregoing conver- refused to give it. After a hearing at which felony and prescribes the punishment therefor. the first thing he thought was that it was whis- sation was merely a part of a business confer- applicants testified, respondent refused to It is argued that under recent decisions ky, and if he was caught with it there would be ence between the parties, and that in such case issue the order. of the United States Supreme court on closely trouble, so he walked over to the window and a defendant is not to be held liable for physical Although the application filed in the county related questions, these sections are uncon- broke the bottle; that he did not place it there, injuries resulting from harsh language unless court is not before us, the facts are undisputed. stitutional in that they deny to applicants and that it was not his whisky; that Mr. Collins he acted with intent to injure plaintiff, or knew Frances Aline Jones is 22 years old and is the equal protection of the laws, and due found a half pint bottle on the other side of that plaintiff’s physical condition was such a person “of African descent”. Marquez is process of law, guaranteed by the Fourteenth the barn with some whisky in it; that none of that serious physical injury might result, and 19 years old and is a person “not of African Amendment of the United States Constitution. the whisky belonged to him; that the litter on that he acted in willful disregard thereof, or descent”. These people are the parents of On this question we have been favored with the floor of the stalls was four or five inches acted in disregard of whether damage might two illegitimate children and will presently deep; that he did not drink any of the whisky; result. . . . Defendants assert that the evi- become the parents of a third child. They are See OLIO, PAGE 14 www.okcbar.org • April 2015 • BRIEFCASE 5

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OKLAHOMA COUNTY BAR ASSOCIATION Quote ASK-A-LAWYER VOLUNTEER FORM of the Date: Thursday, April 30, 2015 Place: OETA, 7430 North Kelley Avenue, Oklahoma City, OK 73111 Phone: 848-8501 MONTH 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 “I want to stay as Thursday, April 30, 2015 close to the edge during the OCBA’s Ask-A-Lawyer program with OETA. as I can without going over. Out on I WOULD LIKE MY SHIFT TO BE: the edge you see 8:45 a.m. – 11:00 a.m. ___ 11:00 a.m. – 1:00 p.m. ___ 1:00 p.m. – 3:00 p.m. ___

all kinds of things 3:00 p.m. – 5:00 p.m. ___ 5:00 p.m. – 7:00 p.m. ___ 7:00 p.m. – 9:00 p.m. ___ you can’t see from the center. ” Name of Ask-A-Lawyer Volunteer: ______Address: ______~ Kurt Vonnegut, Jr., writer (1922-2007) Phone: ______Fax: ______E-mail: ______

FILL OUT THIS FORM & FAX TO THE OCBA AT 405-232-2210. THANKS! 6 BRIEFCASE • April 2015

The Treatment of Prisoners of War in the Civil War Part Two: Prepared for the Oklahoma City Civil War Round Table

By Rex Travis to be fed and supplied there. Much of the about 20 feet long. The logs were squared last prisoner left May 5, 1865.21 During Acknowledgments food required for this came from Georgia off with an adze and made pointed at the that time, 12,919 prisoners are reported as I owe thanks to a lot of people in the and Alabama and so had to be moved on tops. A large ditch was dug 5 feet deep, dying.22 We know more than that died, as process of researching and writing this the fragile railroad system a long way. into which the logs were buried. This made their bodies have since surfaced at the pris- paper. Particularly, I must acknowledge In addition, Richmond was feeling inse- for a solid wall 15 feet high. There were on site. While the peak prison population the help of Joan Stibitz, Head Park Ranger cure. There were large numbers of Union two gates in the west side of the prison, was 32,899, more than 44,000 men were at Andersonville National Historic Site prisoners in Richmond in 1864, after the one called the north gate and the other the in Andersonville at one time or another, and her staff. Ranger Stibitz had mercy on exchange cartel broke down. A Union cav- south gate. The resulting enclosure was when deaths, escapes and transfers are a poor researcher many miles from home alry raid, by 3,500 Union soldiers under ultimately 1,540 feet north to south and taken into account.23 who did not know he had to make advance Gen. Judson Kilpatrick in late February, 750 feet east to west, enclosing 26 ½ acres. Andersonville had fatal flaws from the arrangements to use the research library 1864, which would have freed them almost (This reflected an increase almost imme- beginning. Part of the proof at the war at the Center. Special thanks go also to reached Richmond.15 The South got wind diately after construction from an original crime trial after the war of the prison Ranger Don Pettyjohn and to Volunteers of Union plans to free the prisoners at area of 16 ½ to 18 acres.) The original commander, Captain Wirz, was that there Jimmy Culpepper and Mark Stibitz for Richmond with a cavalry raid, arm them plan was for an enclosure to hold 6,000 were accepted methods of siting an army from the arms supplies in the Richmond camp. The camp would be laid out on a sharing their extensive knowledge. I men with the increased size enclosure to area, and use the thousands of prisoners creek or stream. At the upper limit of the should also thank Peggy Sheppard, author hold 10,000 men. While the prison was its to take Richmond. The frightened citizens smaller size, its population reached 22,000 camp would be a place to draw water for of Andersonville Georgia, USA who vol- demanded that the prisoners be removed prisoners. With the increased size, it held drinking or cooking. Below that would be unteers at the Vistor Center of the Town from the Richmond area. up to 33,000 prisoners.20 a place for bathing and washing clothes. of Andersonville and who was extremely The Confederate response was to move Even the size of the stockade is mis- Below that, at the very downstream end of helpful. Finally, my wife, Patricia Travis the prisoners closer to the source of their leading. The prison was built astraddle a the camp, would be the latrines or “sinks” has been an invaluable help in listening food and further from the war action which branch of Sweet Water Creek. The branch as they were then called. This enabled the to a lot about a subject in which she has threatened to free them. There followed the became known as Stockade Creek. Sweet creek or stream to cleanse itself of the con- much less interest than do I and for her founding of several prisons in Georgia, the Water Creek flows into the Flint River tamination from the sewage going into the help in photographing Andersonville. Carolinas and Alabama. These areas were about 7 miles to the east. The creek creat- stream from the sinks, hopefully before the then remote from the war and thought to ed a swamp in the middle of the stockade stream got to another downstream camp. Both sides started out using jails and be sources of food which would not have which rendered much of the ground unus- Andersonville was not laid out quite local prisons to house prisoners of war, to be transported across much of the con- able by the prisoners. Further, a “dead line” that way. On Stockade Creek above the but these soon became wholly inadequate. federacy to get to them. The first and most was built 18 feet inside the log walls. This stockade where the prisoners were placed The North took over an abandoned state infamous of these camps was to be Camp was a line of small boards on posts beyond was the camp for the guards. All of their prison at Alton, Illinois and filled it with Sumter, at Andersonville, Georgia, which which prisoners could not go else they be functions described above were carried prisoners. (It had been abandoned by the came to be known simply as Andersonville shot dead. This reduced the space available out above the prisoners’ source of water. state as too unhealthy, which might have and which came to be synonymous with for the prisoners so that, at the peak of the Further, the prisoners were so crowded suggested a problem.) The North began mistreatment of POWs. prison’s size to a space of about seven feet in the camp and soon so ill and weak that to use facilities originally used to gather Anderson Station, Georgia was a small by five feet for each prisoner. they could not make it from where they and train its own army early in the war depot stop on the Central of Georgia There was nothing in the prison enclo- slept to the downstream area which held for POW’s. These were relatively inex- Railroad (now part of the Norfolk sure to provide shelter for the prisoners. the sinks for prisoners. The result was that pensive to convert to prisons and were Southern). It was established when the rail All the trees had been felled so there was the already inadequate water supply of usually close to major cities and towns line was built in the early 1850’s and named no shade in summer. The logs had been the creek was contaminated before it ever which could support them with supplies. for John W. Anderson, Superintendent of removed to build the stockade so there got to the stockade where the prisoners The South first concentrated its prison the railroad. The U.S. Post Office changed were no building materials except small were and became more contaminated as efforts in Richmond. It used existing fac- the name to Andersonville, to avoid con- trees and bushes and the remains of the it flowed through the stockade until it was tory and warehouse buildings and, when fusion with Anderson, South Carolina. large pine trees which had been trimmed little more than an open sewer. The result these proved inadequate, opened Belle At the time the prison was planned (in and used for the stockade walls. The was a health disaster. Isle, a former resort area on an island in early1864), Andersonville had a popula- prisoners were left on their own to find Aggravating the health disaster was the the James River. tion of less than 20.16 By August of 1864, whatever materials might be there and diet fed to the prisoners. From the found- The North soon discovered that it was with 33,000 prisoners in the stockade, construct whatever shelter they could from ing of the camp in early 1864 on, the food very difficult to operate many scattered Andersonville was the 5th largest city in these materials and whatever materials the available to feed prisoners became more prisons and attempted to consolidate its the Confederacy.17 prisoners had on them. The lucky ones and more scarce and difficult to obtain. prisoners at a few. It also decided its mili- The prison is located in what is now still had their shelter halves or other tent- The ration was never adequate but it tary prison system needed a single head to Macon County, about 135 miles south of ing material. Others had to use whatever became much worse as the war worsened administer it. It selected Colonel William Atlanta. It is about 11 miles northeast of blanket or overcoat they had to put up on the South’s ability to produce and ship H. Hoffman, a regular army officer who Americus. It is about 50 miles southeast whatever sticks they could find to provide food until, at the end, there was a woefully had been captured by Confederates in of Columbus, present site of Ft. Benning. shelter and then be deprived of a blanket or short supply of food. Texas at the start of the war and had At the time the prison was active, it was coat to put on or wear. Further, what food was available was taken an oath not to take up arms against in Sumter County. The prison was named Location of the prison had a lot to do not very suitable. The staple of the diet the Confederacy. Apparently, his use as Camp Sumter but was always commonly with the fact that it was only about a was ground corn from which corn bread or Commissary of Prisons was not deemed known as Andersonville. While the few quarter of a mile from the railroad so pris- mush was made. Unfortunately, the mills to violate that oath. Unfortunately for townspeople there did not want the pris- oners could be brought in on the railroad. which contracted to supply the corn meal Confederate prisoners throughout the war, on put there, two large local landowners, After the railroad was built through the ground the corn ears whole, shucks, cobs he proved to be a rigid, budget-conscious Wesley Turner and Benjamin Dykes, lob- area in the early 1850’s, wood to fuel the and all.24 As a result, the prisoners, often officer, who took great pride in spending bied for the prison and leased land for it locomotives became in high demand. The with digestive tracts already impaired by as little as possible on the prisoners.14 to the Confederate government, taking locomotives could not use the pine which sickness, found that the extremely rough The logistics of feeding, sheltering and Confederate dollars for their lease pay- predominates in the area. The pine pitch corn meal totally devastated their diges- clothing large numbers of prisoners soon ment.18 in that wood caused buildups of creosote tion. One of the leading causes of death proved to be too much for the South. The prison site was selected by Captain in the firebox and stack which caused was diarrhea. The South’s food supply was considerably Sid Winder and ultimately built by his fires. As a result, all of the hardwood for Further, the food was not always cooked disrupted by the war. The sad state of cousin, Captain Richard Winder. So strong a mile or so either side of the railroad had adequately. No provision was made to sup- Southern railroads, made much worse by was local opposition to the prison that he been cut. This left the prisoners only pine ply cooking utensils to the prisoners. The the fighting and the North’s naval block- could not procure local slaves for labor wood to burn for cooking and warmth. The custom of the time was that soldiers were ade, made it difficult to transport food, as to build it without getting authority from black pine pitch in the smoke from the fires issued rations in kind and were expected to well as other commodities. The bulk of the Richmond to impress slaves and teams to turned them all black. cook the rations themselves. With no uten- fighting, by 1863, was taking place inor build the prison.19 The horror of Andersonville was short sils and inadequate wood to cook the food, around Virginia, meaning that most of the The plan for the prison was relatively lived, only about 14 months. The first pris- Confederate army was in that area and had simple. The slaves cut pine trees into logs oners arrived there February 14, 1864. The See CIVIL WAR, PAGE 15 www.okcbar.org • April 2015 • BRIEFCASE 7 A Modest Proposal: Kill The Lawyers

By Jim Croy the Senate has had to tighten its belt it has “The first thing we do, let’s kill all the had to cut back on the staff attorneys. And lawyers.” When Dick the Butcher uttered turning to a person with a vested interest in these words in Act 4 of Henry the Sixth, the outcome of a bill for legal information he was not saying that lawyers were a scab is somewhat problematic. on society. Rather, it was the opposite. The lack of lawyers in the legislature is Dick, Jack Cade and others were planning a real problem which will only get worse a somewhat communistic revolution, and if the current trend continues. And as the they thought the lawyers would get in the number of lawyers decreases, combined way of their plans. with the lack of institutional memory Dick and Jack would feel right at brought about by term limits, the le- home in the Oklahoma Legisla- gal “smarts” of the legislature will ture, at least as far as getting rid dwindle as well. You might ask of the lawyers is concerned. Con- what it is that you personally trary to public impressions, not could do to help alleviate this sit- only do lawyers not dominate the uation. And, fortunately, there is a legislature, neither chamber has solution. All it takes is a little bit enough lawyers to have the judi- of your time. Well, possibly more ciary committees filled solely by than a little bit. And it will require attorneys. And, as Senator Clark a little financial sacrifice on your Jolley pointed out last week at the part. Well, possibly more than a OBA Day at the Capitol, when his little sacrifice. And it will result legislative class term limits out in you losing just a tad of your in 2 years, there will only be four sanity. Well, not just a tad, as it lawyers in the Oklahoma Senate. turns out. But the solution is sim- Well, is there really any reason ple: Run for the House or Senate. for there to be lawyers in the leg- Become a lawyer legislator. islature? I suggest the answer is yes. I know what you are thinking, but After all, the legislature is in the law busi- that cannot be printed here. The gist of it ness. When the House considers the ben- is that you cannot possibly take time out efits of prohibiting the sale of rubber tires of your legal career to spend four days a with less than two-thirty-second inch tread week, four months a year, earning about on them, probably the lawyer-legislator $38,000 at 23rd and Lincoln. But others does not have any specialized knowledge, have done so, and the state is richer for except that when we all started out in prac- their endeavors. The sacrifice is great, the tice, we coveted tires with that much rub- work is frustrating, and the task is daunt- ber on them. However, when the legisla- ing. But lawyers do make a difference in ture considers, as it is even as I write this, the House and Senate. In fact, lawyers are amending the rule against perpetuities as it the difference. When you stand up on the applies to trusts, but not the res within the Senate floor and bring a constitutional is- trust, there is no chance a non-lawyer leg- sue to your non-lawyer colleagues, there is islator would have the slightest idea what no doubt that you are making a difference. the bill was about. In those cases, the other And, if you find yourself at a time and legislators must look to their lawyer col- place in your life when your seniority, ei- leagues for guidance. ther professional or personal, is such that Not only does the legislature need law- you can no longer seek political office, yer members when considering civil and then do as Senator Jolley suggested last criminal procedure, it needs the lawyer week: have the junior associate in your when dealing with open meetings, open re- firm run. I can picture the meeting when cords, administrative procedures, employ- the young associate is called into the office ment law, civil rights, religious rights, and of the managing partner, and the conversa- the list goes on and on. With the dwindling tion starts, “Phillips, I see that you live in number of lawyers in the legislature, the House District 89 . . . .” members must turn to other sources of legal education. The two sources which immedi- ately come to mind are staff attorneys and lobbyists. Senator Jolley has stated that as

MARCHI from PAGE 3 ducing her to some of her earliest volunteer opportunities and instilling a passion for vol- fifteen years. While on the Community unteer work in her. She enjoys serving on Service Committee, Marchi has served as the Committee because it has exposed her to Chair and one of the Committee’s unoffi- many types of volunteer activities. cial liaisons to Family Junction, a shelter for Marchi is married to John McCartney, a children whose parents have personal or le- land man at Linn Energy. Marchi and John gal problems which prevent them from pro- have two sons, Jonathon, an attorney in Fort viding a safe environment for the children at Worth, Texas, and Colin, a student at Oklaho- home. Marchi is always quick to volunteer ma City University. to take snacks to the kids at Family Junction The Community Service Committee when they are on Spring Break or for other would like to thank Marchi for her many holidays, pumpkins for carving at Hallow- years of service, and we look forward to see- een and gifts at Christmas. ing her smiling face at meetings and activi- Marchi credits her membership on the ties for years to come. Community Service Committee with intro- 8 BRIEFCASE • April 2015 2015 Bench and Bar Wrap-Up

Down the state highways and over the beer tasting seminar by Coop Ale co-found- bridges – Big Elk Creek Bridge, Buggy er Daniel Mercer. Creek and Stinking Creek – just to name Saturday evening began with a a few, in the Washita Mountains, there barbeque buffet, followed by special awards is a gem of a state secret. This secret is and prizes for the weekend events. The the Quartz Mountain Resort and served Young Lawyer Troupe then presented an as the venue for the 2015 Bench & Bar hour of Ethics that involved the whole Conference. crowd and kept everyone on their toes. A Friday evening festivities included much quieter group spent time in the hospi- an Italian Buffet dinner and lots of hospi- tality suite after the closing events. tality in the two suites. Lots of cheering The Bench & Bar Committee and yelling occurred during the OU v. would like to thank our speakers: Chief Michigan State game and there were several Justice John Reif, Justice Noma Gurich, disappointed Sooner fans. However, the Judge Don Andrews, Judge Tom Prince, comradeship and spirits of the hospitality Judge Barbara Swinton, Rex Travis, Judge rooms helped to get things rolling again and Robin Cauthron, Judge Timothy DeGiusti, conversation flowed. Judge Joe Heaton, Brent Dishman, Michael Saturday morning CLE began with Mullins, Gretchen Harris, Sonya Patterson featured speaker, Oklahoma Supreme Court and Jacquelyn Steyn. Another big thank Banner greeting attendees Chief Justice John Reif. The Chief Justice you to our Young Lawyers Troupe: Justin gave a report on the state of the Oklahoma Meek, Collin Barrett, Lauren Brown, Ryan Court system which was followed by a Dean and Benjamin Grubb. session of questions and answers. Various Last but not least, another special break-out sessions consisting of a state court thank you to our sponsors: judges’ panel, federal court judges’ panel, a Platinum Sponsors: Pierce Couch session on assisting active military and vet- Hendrickson Baysinger & Green, Crowe & erans, and a session on handling domestic Dunlevy, Hartzog Conger Cason & Neville, abuse victims took place. Saturday after- Mullins Martinez Sexton & Reeves, Gable noon activities included skeet shooting at Gotwals, and Fellers Snider. the Hobart Gun Club led by Dan Carsey, Silver Sponsors: Ailles & Associates and hiking with leaders Justice Noma Gurich Phillips Murrah. and John Miley, an opportunity to paint Bronze Sponsor: Fenton Fenton Smith while partaking of wine and a full-blown Reneau & Moon. The Federal Judges Panel was moderated by Rex Travis with U.S. District Judges Timothy DeGiusti, Robin Cauthron & Joe Heaton

Oklahoma City will be the connecting point for prominent national leaders to gather, reflect and engage. As we look back 20 years to the Oklahoma City bombing, we also seize the opportunity to look forward. To examine the legal issues impacting our nation’s safety — from domestic terrorism to cybersecurity to striking the balance between security and liberty — and to strengthen the framework that makes possible the American way of life.

The Summit is open to the public. Visit www.HomelandSecurityLawSummit.org to register.

Hosted by: www.okcbar.org • April 2015 • BRIEFCASE 9

OCBA President Jim Webb welcomes everyone Chief Justice Reif was the featured speaker for the conference

YLD Ethics Troupe: Ryan Dean, Colin Barrett, Lauren Brown, Bench & Bar Chair Michael Chitwood introduced Chief Justice Reif Ben Grubb & Justin Meek The State Judges Panel members Justice Noma Gurich, Judges Barbara Swinton, Tom Prince & Don Andrews

Brent Dishman and Michael Mullins presented the break-out on Military Law

Paint & Palette Participants

General Session CLE Paint & Palette Participants

Skeet Shooters Judge Tom Prince, Adam Bush, Jacqueline Hikers Jan Wetsel, John Miley, Kevin Coffey, Dixie Coffey, Jim McCormick, Zach Cunningham & Dan Carsey Webb, Justice Noma Gurich and Charles Wetsel

COOP ALE Co-founder Daniel Mercer and his wife display the Beer Tasting Caucus Bench & Bar Committee Vice Chair Judge Lisa Hammond helped hand out prizes “Briefcase” beer 10 BRIEFCASE • April 2015

Bar Observer McAfee & Taft names four Healthcare practice groups. Her practice Joseph Harroz, Jr., was created in 2011 Reggie Whitten is co-founder and Senior new practice leaders includes litigation matters with an empha- to highlight accomplished alumni and the Partner of Whitten Burrage. Reggie is sis on white-collar defense, government legacy they leave for future generations of from Seminole and was the first of his fam- The board of directors of McAfee & relations and healthcare. OU lawyers. ily to graduate from college. He received Taft has named lawyers Mary Quinn With more than 25 years of experi- Robin J. Cauthron was born in a Bachelor’s degree from OU in 1977 and Cooper and Charles Greenough from its ence as a federal prosecutor in the U.S. Edmond, Oklahoma, and graduated from his Juris Doctorate from OU Law in 1980. Tulsa office and Barrett Ellis and Erin Van Attorney’s Office for the Western District The University of Oklahoma with her During law school, he worked at the OU Laanen from its Oklahoma City office to of Oklahoma, Behenna’s expertise and bachelor’s degree in 1970 and her Juris law library and participated in five moot serve as new practice leaders for the 2015 extensive investigative experience result- Doctor degree in 1977. She also earned a court competitions and excelled, honing term. ed in the conviction of many high-profile master’s degree in 1974 from Oklahoma his skills as a future trial lawyer. Trial lawyer Mary Quinn Cooper was defendants. Her noteworthy prosecutions Central State University. Reggie started with the firm of Foliart, appointed to co-lead the state’s largest include participation in the Oklahoma City Cauthron was a law clerk for the Mills and Niemeyer, first as an intern and litigation practice with returning co-lead- bombing case against Timothy McVeigh Honorable Ralph Thompson in the United later as a lawyer. In 1984, he became a er Brad Donnell. Cooper serves as trial as a special attorney, a case against State States District Court for the Western partner in the firm of Mills and Whitten. counsel for a number of Fortune 500 cor- Senator Paul Taliaferro and Dale Mitchell District of Oklahoma from 1977 to 1981, His practice area has always been trial porations, including Ford Motor Company and involvement in the investigation and Staff Attorney for Legal Services of work, and he has been involved in com- and General Motors, and defends product prosecution of two high-profile public Eastern Oklahoma, Inc. until 1982, and plex litigation on both the defense and liability claims and class actions across the corruption cases involving the Oklahoma a private practice attorney until 1983, plaintiff side. He is a Fellow of the Amer- country. Her practice includes defending State Treasurer’s office and the Senate Pro before being appointed to serve as Special ican College of Trial Lawyers, composed clients in professional malpractice cases. Tempe. District Court Judge for Oklahoma’s of the best trial lawyers from the U.S. and Barrett Ellis was named leader of the Behenna has received numerous acco- 17th Judicial District from 1983 to 1986. Canada and is restricted to no more than firm’s Banking and Financial Institutions lades during her career, including the Trial Cauthron was the first full-time female 1% of the active lawyers in the state. Group. Ellis advises corporate and finan- Advocacy Award from the Association Federal Magistrate Judge in the Tenth In 2008, Reggie and his partner Michael cial institution clients in a wide range of Government Lawyers in Capital Circuit serving the Western District of Burrage obtained one of the largest ver- of transactional matters, with a particu- Litigation, Distinguished Service Award Oklahoma from 1986 to 1991. dicts in the country, Burgess vs. Farmers lar emphasis on finance transactions and by U.S. Attorney General Janet Reno She served the Judicial Conference Insurance Co. It is believed to be the larg- regulatory compliance. He is particularly and the Integrity Award presented by of the United States as a member, and est verdict in state history. He has partici- regarded for his experience in representing the Department of Health and Human later Chair, of the Defender Services pated in over one hundred jury trials over banks and borrowers in structuring financ- the last 34 years. Services Office of Inspector General. She Committee, district judge representative ing arrangements around complex corpo- He is a past President of the Oklahoma was recognized by the Western District to the Conference, and member of the rate structures or regulatory requirements. Association for Justice and has been the of Oklahoma as an Outstanding Assistant Executive Committee. Charles Greenough was appointed recipient of a number of honors including U.S. Attorney in 2012 and was awarded Cauthron was nominated by President leader of the firm’s Business Restructuring, Journal Record Leadership in Law, Okla- Distinguished Law Alumna by Oklahoma George H.W. Bush in 1991 to be a district Workouts and Bankruptcy Group and has homa Association of Justice Tommy D. City University School of Law in 2013. judge in the Western District of Oklahoma, extensive experience in financial, debtor/ Frasier Award, and Oklahoma Bar Associ- An active speaker and a member of the and became the first female, federal district creditor, and bankruptcy matters, repre- ation Trailblazer Award. Oklahoma Bar Association, Federal Bar judge in Oklahoma. She served as chief senting both lenders and borrowers, as well In 2004, Reggie co-founded the Whitten Association, American Bar Association, judge of the court from 2001-2008. as serving as a trustee and as a liquidating Newman Family Foundation in memory Oklahoma Association of Women Lawyers Andrew M. Coats is a Phi Beta Kappa agent in complex bankruptcy estates. He of his oldest son, Brandon, who passed and William J. Holloway, Jr. American Inn graduate of The University of Oklahoma. has represented banks and other financial of Court, Behenna also serves as an adjunct away in 2002 as a result of a traffic acci- He was an officer in the United States institutions in all aspects of loan docu- professor at Oklahoma City University dent caused by alcohol and drug addic- Navy and after serving at sea became an mentation, workouts and related litigation, School of Law. Her community service tion. Reggie and John Hargrave, a long- advisor to the Republic of China naval including counterclaims brought by bor- includes involvement in several Edmond time friend, created the Brandon Whitten forces in Taiwan from 1957 to 1960. rowers in problem loans. He also serves public schools, OCU Law Alumni Board Institute for Addiction and Recovery and In 1960, he returned to The University as a Chapter 7 trustee for the Northern and of Directors, CARE Center, TEAM Board FATE (Fighting Addiction Through Edu- of Oklahoma to attend the College of Eastern Districts of Oklahoma. of Directors and as a lay minister and cation). Reggie has spoken to thousands Law. He was an Editor of the Oklahoma As the new leader of the firm’s Aviation member of Peace Lutheran Church. of students throughout the state about the Group, Erin Van Laanen oversees one of Law Review, President of the Student Bar dangers of addiction and substance abuse. the largest and most experienced FAA air- Association and was elected to the Order Three Outstanding Lawyers The Foundation, with the Sam Noble craft title and financing legal teams in the of the Coif. He was honored by the Okla- State Museum of Natural History, co United States. Her practice is concentrated Inducted Into OU Law Hall homa Bar Association as the outstanding founded ExplorOlogy and Native Explor- in the areas of aircraft title, registration, Of Fame law student in the State of Oklahoma, and ers – educational programs with interac- financing and leasing and related- mat was selected as the outstanding law grad- tive scientific training and field -experi ters concerning the United States Federal The University of Oklahoma College of uate of 1963. ences which has impacted over 50,000 Aviation Act, the FAA Aircraft Registry Law honored three exceptional Oklahoma He served as the District Attorney of Oklahoma youth. His family Foundation in Oklahoma City, and the Cape Town lawyers by inducting them into the Order Oklahoma County, was elected Mayor of also serves as the primary supporter for Convention on International Interests of the Owl Hall of Fame. The ceremony Oklahoma City, served as President of Sister Rosemary Nyirumbe, a CNN Hero in Mobile Equipment and the Aircraft took place at a dinner on Thursday, March Crowe & Dunlevy Law Firm, and was and Time Magazine 100 Most Influential Protocol. 12, in the Molly Shi Boren Ballroom President of the Oklahoma Bar Associa- Person in the World. In 2008, he co-found- in Oklahoma Memorial Union, 900 Asp tion. ed Pros for Africa, an international relief Crowe & Dunlevy attorney Ave. The Order of the Owl pays tribute Dean Coats was the National President organization that promotes and supports honored at 2015 Byliner to College of Law graduates who demon- of the American College of Trial Law- Sister Rosemary and her girls, who were strate remarkable leadership and service yers during 1996-97. He was the Charter Awards dispossessed in Uganda during the conflict through outstanding accomplishments in President of the American Board of Trial with Joseph Kony and the LRA. In his their careers. Crowe & Dunlevy director Vicki Advocates in Oklahoma and is also a spare time, he co-authored two books, one 2015 Honorees are: Behenna was recently honored at the Fellow of the International Academy of about the life of Sister Rosemary called • The Honorable Robin J. Cauthron, Oklahoma City Chapter of The Association Trial Lawyers. In 1995, he was selected “Sewing Hope” and the other about his federal judge for the U.S. District Court for Women in Communications’ (AWC) as a Trustee of the United States Supreme son’s addiction and death, called “What’s for the Western District of Oklahoma 57th Byliner Awards. The award recog- Court Historical Society. Your Fate”. nizes Oklahoma women who have made a • Dean Emeritus Andrew M. Coats, In 1996, he became the Dean of The In November 2013, Reggie was inducted significant impact or contribution to their former University of Oklahoma College University of Oklahoma College of Law. into the Oklahoma Hall of Fame. He and community. Behenna received the Byliner of Law Dean In 2002, in recognition of his leadership his wife, Rachelle, live in Edmond and Award in the category of law during an • Reggie Whitten, co-founder and to the University of Oklahoma College have raised five children. awards dinner held Thursday, March 5 at Managing Partner of Whitten Burrage of Law, the OU Regents named the law Twelve prominent OU Law alumni have the Skirvin Hilton Hotel. Law Firm and co-founder of the Whitten- school building Andrew M. Coats Hall. previously been inducted into the OU Behenna serves as a director in the Newman Foundation. In 2005, Dean Coats was inducted into College of Law Hall of Fame. firm’s Oklahoma City office in the White The Order of the Owl, co-hosted by the Oklahoma Hall of Fame, the highest Collar, Compliance & Investigations, The University of Oklahoma President, honor Oklahoma can confer on an Okla- Administrative & Regulatory and David Boren, and College of Law Dean, homan. See BAR OBSERVER, PAGE 11 www.okcbar.org • April 2015 • BRIEFCASE 11

BAR OBSERVER from PAGE 10 LAW DAY from PAGE 1 Judge Friot was born 1947 in Troy, Appeals for the Tenth Circuit. Brad is also 2011 Honorees include: New York and received a B.A. from admitted to practice in the North Dakota symbol of the rule of law and as an inspi- • William G. Paul, American Bar the University of Oklahoma in 1969 and Supreme Court and all North Dakota ration for many basic rights Americans Association president from 1999 to 2000 a J.D. from the University of Oklahoma District Courts. He is a member of the hold dear today, including due process, College of Law in 1972. Judge Friot was and of counsel for Crowe & Dunlevy in Oklahoma County Bar Association, the habeas corpus, trial by jury, and the right in private practice in Oklahoma from Oklahoma City Oklahoma Bar Association, and the State to travel. 1972 to 2001. • W. DeVier Pierson, co-chair of the Bar Association of North Dakota. Among We mark the 800th anniversary of On September 4, 2001, Judge Friot OU College of Law Board of Visitors Brad’s reported cases are: Oklahoma Magna Carta on Law Day, May 1, 2015, was nominated by President George W. and special counsel for Hunton & Department of Securities v. Blair, 231 P.3d in commemorating this “Great Charter Williams in Washington, D.C. 645, Blue Sky L. Rep. P74, 950, 2011 OK Bush to a seat on the United States of Liberties,” and rededicating ourselves • William J. Ross, co-chair of the OU 82. He serves on the board of directors District Court for the Western District of to advancing the rule of law here and College of Law Board of Visitors and for Parent Promise, a non-profit center that Oklahoma vacated by Wayne E. Alley. chairman of the board of the Inasmuch works to prevent child abuse and neglect. abroad. Judge Friot was confirmed by the United Foundation in Oklahoma City Brad is also the President-Elect of the This year’s festivities will begin States Senate on November 6, 2001, and • Ada Lois Sipuel Fisher (in memo- Downtown Exchange Club of Oklahoma at noon at the Skirvin Hotel Grand received his commission on November riam), a civil rights leader, OU Regent City and serves on the Oklahoma Bar Ballroom. We are honored to have the 12, 2001. Judge Friot assumed senior from 1992 to 1993, and the first African Association Bench and Bar Committee. Honorable Stephen P. Friot, District status on December 1, 2014. American to attend and graduate from Judge for the United States District Court Law Day Luncheon tickets are avail- OU College of Law. Pringle & Pringle adds for the Western District of Oklahoma as able online at www.okcbar.org and can 2012 Honorees include: partners the keynote speaker for our festivities. also be reserved by calling the bar office • The Honorable Thomas R. Brett, Notably, Judge Friot will be the speaker at 236-8421. Single ticket price is $35 U.S. district judge for the Northern Pringle & Pringle has announced that 40 years after he chaired the Law Day with tables of ten available for $350. District of Oklahoma from 1979 to 2003 Cheryl P. Hunter has joined the firm as Committee for Law Day in 1975. who served as chief judge from 1994 to partner. The firm, which will continue 1996 and is known for his commitment the practice of law as Pringle & Pringle the Western District of Missouri. He is Oklahoma Bar Center in Oklahoma City to ethics in the legal profession & Hunter, also named Miles T. Pringle licensed to practice law in the state courts on July 13-18, 2015. Its objective is to • James T. Comfort and William as a partner. Newly installed President of of both Oklahoma and Missouri and is an provide to lawyers hands-on, high-quality T. Comfort Jr., who established the Oklahoma Bar Association David A. associate member of the Luther Bohanon instruction as to how to prepare and try a the Comfort Scholarship, Nathalie Poarch, Jr. has joined the firm as Special American Inn of Court XXIII, and member family law matter. It’s aimed at the less-ex- Pierrepont Scholarship and Top 10 Counsel. and Program Chair of the Financial Institu- perienced members of the bar and will Scholarship, which since 1994 have Established in 1988 by Lynn A. Pringle tions and Commercial Law Section of the employ a number of attorneys from central provided more than $5 million in schol- and Laura N. Pringle, the firm has repre- Oklahoma Bar Association. He is engaged Oklahoma and from other states, many of arships to 893 OU law students sented financial institutions and other busi- in both the firm’s litigation practice and its whom who have been trained by NITA, • J. Hugh Roff Jr., a leader in the oil ness entities for over 25 years, as well as transactional practice, emphasizing finan- the National Institute of Trial Advocacy. and gas industry and president, CEO and their officers, directors, holding companies cial institution and small business repre- Each student will receive specialized train- chairman of Roff Resources LLC and and affiliates. sentation. ing every day for a week, complete with Roff Oil & Gas Hunter’s practice includes commercial courtroom exercises, instructor feedback, • Alma Bell Wilson (in memoriam), the litigation, all aspects of commercial real Law360 Ranks McAfee & and video recording of their exercises. first female appointed to the Oklahoma estate development; entity formations and Taft Among Nation’s Largest Then on Saturday, July 18th, the students will take part in mock trials, one or two Supreme Court and the first female chief general business issues; contract negoti- Law Firms justice. ations; representation of clients both in lawyers to a side, presided over by fam- 2013 Honorees include: the purchase and the sale of businesses; Oklahoma’s largest law firm contin- ily law judges, to put into practice what • The Honorable Michael Burrage, advising management on how to handle ues to rank among the nation’s biggest, they’ve learned during the week. The cost former federal judge in all three U.S. employment-related concerns in the work- according to the recently released annual is $1,500.00; the rest is underwritten by the District Courts in Oklahoma place; and financing with debt and equity survey by Law360. McAfee & Taft is list- Family Law Section’s Practice Manual. • The Honorable Kathy Taylor, former components. Hunter is a Master in the ed at No. 220 in this year’s Law360 400, Similar courses offered by the American Mayor of Tulsa and Oklahoma Secretary Luther Bohanon American Inn of Court moving up seven spots from last year. Bar Association and NITA cost around of Commerce XXIII currently serving as President and The Law360 400 features the largest $3,500.00. a member of the University of Oklahoma To enroll send your contact information, • The Honorable Ralph Thompson, U.S.-based law firms and vereins with a College of Law Board of Visitors. bar number, and credit card information retired federal judge, former member of U.S. component, as measured by domestic Poarch began his legal career as a fed- the Oklahoma House of Representatives attorney head count. (or, if not paying by credit card, a check eral prosecutor in Oklahoma City before and U.S. Air Force officer McAfee & Taft’s roster of 182 lawyers payable to OBA Family Law Section) entering the private practice of law repre- to: Craig Combs, 1901 N. Lincoln Blvd., • The Honorable Lee West, senior fed- counted in this year’s survey remained senting individuals, businesses, and lend- Oklahoma City, OK 73152 or by fax to eral judge and U.S. Marine Corps officer steady from the previous survey, but saw ing institutions in a broad range of civil (405) 416-7001. You can also visit our during the Korean War. a jump in the firm’s position due to recent and criminal matters. law firm mergers and consolidations as website to register and pay online at www. After serving as general counsel and flstai.com. Davenport joins Andrews well as declines in previously higher rank- chief operating officer for a privately held ing firms. McAfee & Taft also remained Davis, Attorneys at Law as Of bank services company that was subse- the only Oklahoma firm within the top 250 Lytle Soule & Curlee Hires quently acquired by a Fortune 500 com- Counsel firms. New Associate for pany, he was appointed Assistant Dean Topping the list with 1,747 lawyers was Andrews Davis, Attorneys at Law, is at the University of Oklahoma College of Morgan Lewis. Tying for the last spot on the Oklahoma City pleased to announce new Of Counsel Law where he oversaw all external matters list were two firms with 100 lawyers each. The Oklahoma City law firm, Lytle Attorney, Brad Davenport. for the College and taught courses in law, McAfee & Taft serves clients locally, Brad practices primarily in the firm’s professionalism, and trial practice to law Soule & Curlee announces today the addi- nationally and internationally in the areas tion of Stanley Koop as an associate. litigation department. His diverse prac- students. He has been elected to member- of aviation, business law, corporate and ship in several select professional orga- Mr. Koop graduated from the University tice includes: Business and Commercial securities, employee benefits, entertain- nizations, has twice served as an elected of Oklahoma in 1991 with a degree in eco- Litigation, Oil and Gas Litigation, ment law, environmental law, healthcare, Governor on the governing board of the nomics and received his Juris Doctorate Insurance and Legal Malpractice Defense, intellectual property, labor and employ- Oklahoma Bar Association and serves as from the University of Oklahoma College Receivership and Asset Recovery, ment, litigation, oil and gas, real estate and Collections, and Oil and Gas Title the current President of the Oklahoma Bar of Law in 1996. He is admitted to prac- tax and family wealth. The firm employs Examination. He also has experience Association. Poarch is actively working on tice by the state of Oklahoma and the U. nearly 350 Oklahomans and has offices in assisting clients with the formation of cor- litigation and estate and business planning S. District Court for the Western District both Oklahoma City and Tulsa. porations, limited liability companies, and for the firm’s clients. of Oklahoma. With more than seventeen Section 1031 like-kind property exchang- Miles Pringle received his undergradu- years of experience, he will continue to es. ate degree from the University of Kansas, OCBA Family Law Section focus on civil litigation with an empha- He has been admitted to practice in and his Juris Doctorate from the Uni- will Conduct Trial Advocacy sis on personal injury, insurance, products the Oklahoma Supreme Court and all versity of Missouri – Kansas City where Institute liability and employment law. Oklahoma District Courts, as well as he was a member of the national moot the United States District Courts for court team and clerked for the Country The Oklahoma Bar Association Family the Northern and Western Districts of Club Trust Company in Kansas City, and Law Section will conduct its second Trial Oklahoma and the United States Court of the United States Attorney’s Office for Advocacy Institute, to be held at the 12 BRIEFCASE • April 2015

Work Life Balance A Good Reason To Get VERY Fit.

By Warren E. Jones (as long as he could) at 1.7 mph, then 2.5, patient’s chances of a 10 year survival. The In other words, at ever increasing levels The newest issue of Mayo Clinic then 3.4, then 4.2, then 5.0, then 5.5 AND formula (to get the treadmill score) required of fitness were ever decreasing risks of Proceedings contains a very interesting at these grades: 10 degrees, 12, 14, 16, 18, only the insertion of the patient’s age, sex, mortality. Or, even more simply, no matter study on which “variable” from a treadmill and 20. Achieving each of those grades met level achieved, and percent of age your age, whether 30 or 40 or 50 or 60, your stress test is most predictive of ten year would elicit a “met” level (simply, a level predicted maximum heart rate achieved. mortality risks are less in each age group at survival. By “variable,” I of fitness), respectively, of Low scores could be a powerful tool for ever increasing levels of fitness. mean one or more of these: approximately 5, 7, 10, 14, motivating behavioral change after stress At least to the level of 14 mets, the heart rate, heart rhythm, 17, and 21. testing. High scores would be encouraging researchers found no threshold where higher blood pressure, chest pain, The researchers found and rewarding for patients. levels of fitness were no longer associated exercise level attained, that the variables most pre- Table 3 in the study, appearing at page with a lower risk for all cause mortality. percent of maximum heart dictive of survival were the 353 of the March 2015 issue, is of course While the population in the study was large rate achieved, shortness of met level achieved and the accessible by your physician. With it, you (as I said, approximate 58,000 patients), it breath, or electrical signals percent of predicted max- and your physician can compare your tread- lacked sufficient power, statistically speak- suggestive of ischemia imum heart rate achieved. mill score to age stratified peers and sex ing, to determine whether that threshold (blood vessel blockage). The other variables stratified peers; estimate likelihood of ten would exist at 16 or 18 or 20 mets. The researchers, most- (described above) provided year survival by score; and estimate poten- I’m pleased to report, though, that the ly from John’s Hopkins, little in the way of predict- tial improvements in survival had treadmill researchers concluded that “exploratory began the study in the ing survival. performance been better. analysis suggested a continued mortality early ‘90s among approx- There are several for- I do not recommend that you, all by your- decrease in this (even more fit) group.” imately 58,000 patients, mulae used for predicting self, undertake the Bruce protocol stress none of whom had heart maximum heart rate. For test. If you and your physician want to see Warren Jones disease at the time of each the purposes of this study, where your score would be, he will put you individual stress test. Each the researchers used the through the test but only in the presence patient was referred for the stress test as 220 minus age formula. For example, the of medical personnel who, as need be, can Warren E. Jones, JD, HFS, CSCS, CEQ, a product of some sign or symptom sug- predicted maximum heart rate for a 40-year- come to your aid. is an American College of Sports Medicine gestive of cardio pulmonary disease, e.g., old individual would be 180. If he or she Coincidentally, one of the researchers in (ACSM) Health Fitness Specialist, a National chest pain, shortness of breath, dizziness, achieved a maximum heart rate in the actual the study also published, in the most recent Strength and Conditioning Association gasping for air during the night, ankle swell- stress test of 170, then he or she achieved Journal of American College of Cardiology, Certified Strength and Conditioning ing, palpitations, unusual fatigue with usual approximately 94% of the predicted max a study (utilizing the same patients as in Specialist, and a holder of an ACSM activities, etc. heart rate. the study described above) reflecting “a Certificate of Enhanced Qualification. His The treadmill stress test utilized the Bruce The researchers then created a treadmill continuous, graded reduction in mortality clients range from competitive athletes to protocol. That merely means that each score that could be utilized by each patient’s extending to individuals with an estimated the morbidly obese. He can be reached at patient for three minute intervals walked primary care physician in describing that exercise capacity of 14 mets and greater.” [email protected] or at 405-812-7612. Stump Roscoe

By Roscoe X. Pound in Georgia v. Randolph, 126 S.Ct. 1515 The lieutenant picked up a bullhorn. called and said you’re in a jam. Whatcha Dear Roscoe: What’s the current state of (2006), it recognized a narrow excep- “OK, we’re gonna ask everyone to keep got?” the law regarding consent to search by one tion to this rule, holding that the consent way back. This is a dangerous situation “It’s got me, Jimmy,” I said. roommate over the objection of the other? of one occupant is not sufficient when here, and I don’t want any collateral dam- “Let’s take a look.” He took the mirrored B.R., Bethany, OK. another occupant is present and objects to age. For your own protection, move back contraption from an EOD man, and ginger- Dear B.R.: Sounds like grounds for a the search. However, it refused to extend now!” ly scanned the underside of my seat. He sitcom. However, there’s some serious law Randolph to the very different situation “I’m moving my car,” Ernie said. whistled. “Nice one.” on the subject. In Fernandez v. California, where consent was provided by an abused “That’s a good idea,” Rae commented. “A Tom Horn,” Chips said. 134 S. Ct. 1126 (2014), police observed woman well after her male partner had been I glared at her. Jimmy looked at him with something like a robbery suspect run into an apartment removed from the apartment they shared. “What?” she said. “I’m just saying.” admiration. “You my niece’s boyfriend?” building, and heard screams coming from Obviously if I’m answering this question At that point the lieutenant’s words hit Chips actually blushed. one of the apartments. They knocked on I’m probably still alive. No doubt, how- me. “If these other folks might be collateral “You know your ordinance kid.” the apartment door, which was answered ever, last issue’s cliffhanger did shave off damage what does that make me?” “Hey,” I said. “Remember me? Someone by a battered and bleeding Roxanne Rojas. some years. Captain Innocente immediate- In short order, they’d cleared the area want to give me the score? Are you talking The officers asked her to step out of the ly called in the bomb squad before coming of everyone except emergency personnel Tom Horn like the outlaw?” apartment so that they could conduct a pro- over. I worked to achieve a stillness The and Chips. I chalked the latter up to the “Actually opinions vary on that, Mr. tective sweep. Fernandez came to the door Buddha himself would have envied. Drawn usual tendency of people to look upon him Pound,” Chips stated. “Well, at least as and objected. Suspecting that petitioner had by my call to the captain, Rae, Chips, as absent. They then went into a huddle, far as his guilt in the matter that they hung assaulted Rojas, the officers removed him Daddy Mike and Ernie came over. I gave every so often casting worried looks in my him for. The Tom Horn explosive device from the apartment and placed him under them a quick sitrep, whereupon, to my utter direction. was invented by a fellow named Fred arrest. The victim of the robbery identified horror, Chips pulls open the rear door and I noticed a guy surreptitiously lifting the Amis, self-styled CinC of a group called petitioner as his initial attacker, and peti- rubbernecks under the seat. crime scene tape and walking toward me. the Wyoming Free Corps. Tom Horn tioner was taken to the police station. An “Yep, it’s there alright,” he said. “You About my age with close-cropped sandy was hung using a system of weights and hour after petitioner’s arrest, a detective need to keep perfectly still.” hair and facial hair too thick for stubble yet counterweights arranged so that his weight returned to the apartment and informed Ms. “No duh.” too sparse to be called a beard. He wore a unplugged a barrel of water. When the Rojas of the arrest. The detective requested “No, really,” he said, oblivious, as usual, pair of old school plastic glasses and wore a water reached a certain level, it caused the and received oral and written consent from to sarcasm. “Any repositioning could set tieless double knit suit. trap on the gallows to drop. This bomb her to search the premises. The search it off.” “Who the hell let you in?” the lieutenant works in pretty much the same way. Your uncovered paraphernalia, a butterfly knife, The EOD team, the fire department, and bellowed. own body weight in the seat has primed the clothing worn by the robbery suspect, and a few more police cruisers arrived on the The newcomer ignored him. explosive. If you get out of the car, or shift ammunition. Ms. Rojas’ young son also scene, many the same ones who responded “Hey,” an officer said as he took the guy your weight in the wrong way, it detonates. showed the officers where petitioner had to the shootout. A pudgy lieutenant ordered by the arm. “Who the hell do you think In a way, you blow yourself up. Kinda hidden a sawed-off shotgun. two of his men to check out the bomb while you are.” ironic if you think about it.” SCOTUS first noted that the rule that he talked to Innocente. Using a mirror, one He looked at the cop somewhat conde- Jimmy and the EOD guys nodded sagely police officers may search jointly - occu of the EOD guys said, “Yep, we have one.” scendingly. “Jimmy Palmatessa,” he softly in agreement. I like irony as well as the pied premises if one of the occupants con- “What about a perimeter?” the lieutenant replied. next guy, but now was not the time. sents. United States v. Matlock, 94 S.Ct. asked. “Wait. Pyro Jimmy?” 988 (1974). It further noted, however, that “2000 feet minimum,” came the reply. Jimmy ignored him. “Hey Roscoe, Rae See ROSCOE, PAGE 13 www.okcbar.org • April 2015 • BRIEFCASE 13

iBar Definitive Playlists

By Judge Don Deason and Chris Deason Song Title Artist Lost on the River: The New Basement Tapes Bob Dylan (by T Bone Burnett, Elvis Costello, Marcus From Geary Walke: I read Gerald Kelley’s iBar story about Wedgewood Amusement Mumford, and others) Park in the 1960s, and it hit home. Wedgewood was a super cool place to go in the Thinking Out Loud Ed Sheeran 60s. So was Springlake. I thought about writing about an experience in reference to Born This Way Lady Gaga Wedgewood, but shrank away from it. Then, Judge Deason told me a story about a former band member of Nirvana speaking All of Me John Legend words of “wisdom” about garage bands. Here it is: Stay With Me Sam Smith Take Me to Church Dozier (He sure likes a lot of songs about “me.”) “It’s (American Idol) destroying the next generation of musicians! Musicians should Can’t Find My Way Home Blind Faith go to a yard sale and buy an old f****** drum set and get in their garage and just suck. Trashy Women (guilty pleasure) Jerry Jeff Walker And get their friends to come in and they’ll suck, too. And then they’ll f******* start playing and they’ll have the best time they’ve ever had in their lives and then all of a sudden they’ll become Nirvana. Because that’s exactly what happened with Nirvana. Michael Brooks-Jimenez: Michael graduated from OSU and then Just a bunch of guys that had some s***** old instruments and they got together and from OU College of Law in 1995. We have no idea what he did during the inter- started playing some noisy-a** s***, and they became the biggest band in the world. vening years, except that he established a busy law firm focused on immigration law, That can happen again! You don’t need a f****** computer or the Internet or The Voice criminal defense, workers’ compensation, and personal injury. According to the or American Idol.” firm’s glossy website, Michael also serves on a number boards and committees. His bio for this article may be flimsy, but he made up for it with the illuminating com- Five of us in Del City, barely in our teens, had a garage band. We sucked. We had homemade amplifiers and cheap guitars and mics. It was 1966. One of the songs we ments after each song. Michael claims it was “way too much pressure” to list his all- played was a cheesy version of For Your Love, by the Yardbirds. I say cheesy only to be time favorite songs. The following is comprised of what he’s listening to these days. humble. While I’m sure it was a nearly perfect rendition there may have been problems with our voices changing, and obviously equipment problems. We heard the Yardbirds Song Title Artist were coming to OKC. They played at Wedgewood on Friday, August 19, 1966 (No, I Jessica Major Lazer (That’s the way they spell it. A fuzzed don’t recall that date exactly, but according to a Jimmy Page web page the Yardbirds out, bass heavy, reggae tinged dance song quit played at Wedgewood Amusement Park in OKC on that night, so it must be true.) possibly named after my beautiful bride.) The night before the concert at Wedgewood we, members of the local garage band, Planet Caravan Brown Sabbath (Just a shade lighter were at Penn Square Mall, back before it was covered, visiting Jenkins Music Store. than the original with a horn section.) We were probably lusting after expensive guitar strings, real amplifiers, glossy picks or 99 Hollie Cook (Very cool dub with a singer who is something, when these long haired guys with British accents came in to buy or borrow the daughter of the drummer for the Sex Pistols and equipment by the truck load. It was several members of the Yardbirds. I’d love to tell a backup singer for Boy George and Culture Club.) you it was Jimmy Page, or Jeff Beck, but I couldn’t identify them in a line up. I know from research on line that Eric Clapton had already left the band. All I can tell you for Mr. Ty Segall (This guy is an amazing guitarist who sure is that the next night we went to Wedgewood and saw the Yardbirds….and the guys plays music that is truly timeless and he consistently from Jenkins Music were up on stage, playing magic. turns out three to four albums a year.) I know that you are thinking that I must have been that close to being drafted by the Clandestine Manu Chao (I believe he is the only rightful heir to Yardbirds, right? I wonder if the Yardbirds realize how close to greatness they came that the crown of Joe Strummer of the Clash. Amazing night? OK, I was not destined for rock star status, and neither did that garage band. We multicultural/ multiligual fun music but with a sucked. And, we never got any better. We weren’t destined to become superstars, but conscience.) we had lots of fun, met a lot of girls, and even made a little pocket change. But that one Golden Shower of Hits Circle Jerks (Perhaps the greatest punk rock summer night in 1966 we had a brush with greatness at Wedgewood, and lived to find song ever recorded. What could be better than a other careers! (Parenthetically, one other band member present at these events was John medley that includes songs from The Association Kuhl. No, really! And he is a practicing attorney in Houston, Texas. Another became the Carpenters, Starland Vocal Band, Paul Anka, the a physical therapist. All other contacts have been lost.) Captain and Tenille and Tammy Wynette. The song Jimmy Goodman: Jimmy attended OU and then graduated from Stanford Law actually covers the entire arc of a romantic relatio- School in 1971. For the first time, it is necessary to refer readers to the website of Jimmy’s nship, and all under five minutes!) law firm for his incomparable professional biography. We mean it. Check out: attorneysu- Linda Cavanaugh Hosty Duo (How this artist sprang from the same scrowedunlevy.com. Jimmy is enjoying life as an “of Counsel” advocate, with much other- loins as my esteemed colleague and fellow member wise billable time going to ABA and ABF work. Like the rest of us, he grew up on rock and of the OCBA, Tom Hosty, is beyond me. Another roll and ballads, but has been getting most of his listening choices from his son as well as his great song from the Hosty Duo, Will Work for Booty.) granddaughter who is a drama student at LaGuardia High in NYC (the “Fame” School). He thinks current musicians are more diverse and equally challenging to accepted social mores and hidden or open injustice. However, his number one group of all time is the balladeer PRACTICE from PAGE 1 group known as the Eagles, a choice shared by his wife. He mentioned a favorite lyric from The Eagles’ Sad Cafe: “I don’t know why God smiles on some and lets the rest go free.” All All the judges said they really want limitations on discovery, but (unlike an in all, Jimmy has got it pretty good. His wife teachers at OU as an adjunct professor which exhibits to briefs tabbed so they or their earlier fast track procedure) motions for somehow allows him to finagle fantastic overseas junkets. His daughter teaches special needs clerks don’t have to fish through pages summary judgment are still permitted. kids in NYC public schools and his son is happily married and back in school at OU focusing and pages of attachments to the brief to A really big advantage of the fast track on Native American Studies. The playlist is limited to what he and his granddaughter are find the exhibit cited in your brief. They procedure (in addition to saving your cli- listening to now. made a believer out of me: I will never ents a lot of money) is that you get the case file another brief with untabbed exhibits. set for jury trial on a day certain, instead Why irritate the person who will soon be of on a trailing docket. If you’ve had the experience of having out-of-state clients or ROSCOE from PAGE 12 police looked on dubiously. “Don’t worry. deciding your case! experts and asking them to be prepared to I got this one guys,” Jimmy said with a grin. Judge DeGiusti strongly recommends lawyers examine his chambers rule on come to trial at an unknown date within a “Too bad we don’t have this Amis guy In fact, he did. I would have closed my “Fast Track Procedure” findable at www. two-week docket, you will appreciate that here,” the lieutenant commented. eyes during the process, but my life flashing okwd.uscourts.gov/files/fast_track_pro. advantage. “He actually blew himself up in 2012,” before them provided enough distraction. pdf. The procedure offers an opportunity The Bench and Bar Conference takes Jimmy said. “Well, so they say.” He Eventually, at a signal from Jimmy, two to get your case to trial within 6 months place only every other year. It is a great winked at me. officers pulled as I leapt out and then, along and do so more economically than with opportunity for lawyers to sit down with “It could be set off remotely too,” the with Jimmy, we covered as we ran. After the usual scheduling procedure. judges and find out what really works to lieutenant said. He wanted to re-establish a few moments, a robot plucked the bomb Both sides have to agree and limit improve your effectiveness as a lawyer. his authority. from my rear floor boards and placed it into depositions to five per side and limit inter- The next one will be in 2017. Begin now “Probably woulda done it by now,” a containment unit. When all was said and rogatories and requests for admission to to make plans to attend! Jimmy said. “Hey, kid! Two blocks up done, Jimmy appeared to have evaporat- 20 each. You can use up to 30 requests for around the corner there’s a gray Caravan ed. They found the Caravan several miles production. The case will be set on a 120 with a green suitcase kind of thing in the away. A guy from East Rutherford reported day discovery track and be ready for trial back. Bring it down here would ya?” He it stolen two days earlier. Not a hair, print, within 6 months. There are some other tossed Chips a set of keys. The assembled or stray fiber could be found inside or out. 14 BRIEFCASE • April 2015

Old News Excerpts from OCBA News: to them. and clarify our present criminal laws has cleverly introduced another bill which spe- The uniform abortion act of Oklahoma found going rough in the Senate also. It left cifically increases the D.A.’s salaries bya July-August, 1973, Part 2 was in the Senate Judiciary Committee the Senate Judiciary Committee and was certain amount depending upon the size of preparatory to going back to the floor for referred back for interim study. It will be the district. THE LEGISLATURE approval. Apparently, it received Senate considered next session in that committee. Of course many significant pieces of leg- REVISITED approval and has been sent to the House Senate Bill 208 which would elevate all but islation were acted upon and many passed. for their action. It is currently in the House one Associate District Judge in Oklahoma We will soon be faced with the refine- Committee on Criminal Jurisprudence and County to a full District Judge has been put OLD “FRIENDS” ments of comparative negligence here in after passing that committee will go to the to sleep in the Senate Appropriation and Oklahoma. Also, the legislature finally STILL AROUND floor of the House for consideration. Budget Committee, for further study. We decided to act on cleaning up the street and The Municipal Court Reorganization Act may hear more of this issue next session. plat vacation process which should be in the of 1973 has had some trouble in the Senate. One proposal to increase District By Kurt Ockershauser The overall purpose of the Act is to mod- Attorney’s salaries to match that of their session law supplement. Finally, I am con- Several months ago I prepared an article ernize Oklahoma’s Municipal Courts. The respective District Judges has passed the tented to discover that all of my old friends which appeared in the newsletter outlining bill left the Senate Judiciary Committee but House and been sent to the Senate Judiciary will still be around next session. Indeed, due some of the interesting items in the then was referred back to the Senate Judiciary Committee. It has also been under review to the nature several of the bills, I suspect current session of the legislature. In a fit of Committee for further study. in the Senate Revenue and Taxation that they may be around for several sessions nostalgia, I decided to check back on a few The monumental Oklahoma Criminal Committee and will be placed on the floor to come. of those old friends and see what was done Code which is an attempt to consolidate next session. If this fails, the House has

OLIO from PAGE 4 sions which make it mandatory to revoke his mandatory nature of the plaintiff’s one-year the revocation period is mandatory, the court is driver’s license for one year without modifi- revocation is unconstitutional.” The record without jurisdiction to modify it regardless of excellent briefs by the applicants and by amicus cation. A revocation order was entered “by shows nothing more. And following this the “extreme and unusual hardship.” curiae, the American Civil Liberties Union. stipulation of the parties,” following which court proceeded to impose a modified one-year Turning now to the facts of the case at bar, However, these briefs entirely ignore the cited Williams appealed to the commissioner of the revocation. we note that Williams does not dispute the statutory requirements concerning parental con- Department for a hardship modification of the Title 47 addresses suspension, cancellation legality of his arrest or the validity of the breath sent for the marriage of minors, the premarital revocation order. Following an administrative and revocation of driver’s licenses in two sepa- test results. He says he “is not arguing with the examination for syphilis, and the discretionary hearing the order was affirmed. rate statutes relevant to the facts of this case - §§ length of suspension or that his license should power of the County Judge to order a waiver On April 7, 1989, Williams filed a petition in 6-205 and 6-211 - and in the implied consent be suspended, [but] only that the Trial Court of these requirements. These questions were all district court alleging that the revocation order statutes, §§ 751 through 761. These statutory [should] have the right to consider granting a raised in a brief filed by respondent in his own should be modified, notwithstanding the earlier provisions inter-digitate to establish the prereq- modification of the suspension.” His primary behalf without benefit of counsel. stipulation, because it imposes an extreme and uisites of alcohol-related arrests, tests, orders of thesis is that once the legality of the underlying We find it impossible to reach the constitu- unusual hardship on him. The matter was heard revocation, administrative appeals, district court revocation is established, due process requires tional question sought to be presented in this at which time the trial court held the mandatory reviews and periods of revocation. that the trial court be given jurisdiction to mod- proceeding. Under the undisputed facts, appli- one-year revocation to be “unconstitutional,” Title 47 O.S.Supp. 1989 §§ 6-205(a) and ify the revocation on the ground of extreme and cants are not entitled to the marriage license as a preliminary matter insofar as the statute 6-211(a) relate to post-conviction license revo- unusual hardship. At the same time, Williams they seek, and this is true without regard to purports to deprive a litigant of a “due process” cations. They provide that when an enumerated concedes that the “State of Oklahoma does the constitutionality of the Oklahoma misce- right to have a court pass on a hardship modi- felony conviction occurs a license revocation have the right to regulate traffic over the high- genation statute. More specifically, they are fication. The court then proceeded to hear the becomes mandatory without the right to appeal ways and may impose reasonable restrictions not entitled to a writ of mandamus from this plaintiff’s motion to modify and found that the to the district court. In such cases there is no and regulations over the use of the highways.” court compelling the county judge to order the plaintiff had shown by a preponderance of the procedural due process deprivation, however, Nevertheless, he says “due process must be issuance of the license. Not only is the county evidence that a total revocation would impose because the licensee has been afforded a hearing followed.” In other words, as we understand it, judge vested with discretion as to whether upon him an extreme and unusual hardship in with regard to the predicate for the revocation - Williams’ complaint concerns substantive rather the requirement of parental consent should be that he had no other means of transportation the alleged crime - and if it results in a conviction than procedural due process. waived (see Huckaby v. State, 94 Okl.Cr. 29, and being able to drive was essential to a con- the Department’s revocation is simply a minis- The fundamental requisites of procedural due 229 P.2d 235), but he is without power under tinuation of his employment and ability to earn terial function after “receiving a record of such process are notice, the right to be heard before 43 O.S. 1961 § 32 , to waive the premarital a living. Consequently, the court sustained the operator’s or chauffeur’s conviction.” a fair and impartial tribunal having jurisdiction physical examination in this case, since both revocation for a period of 365 days commenc- On the other hand a license may be revoked over the subject matter, and the right to confront parties are under twenty-five years of age. Even ing June 1, 1989, but ordered that it “shall be for violations of the implied consent laws - 47 witnesses. Substantive due process requires that if the age requirement were not a bar, we note modified by the defendant to allow the plaintiff O.S.Supp. 1989 §§ 751 through 761. In the a law shall not be unreasonable, arbitrary, or that the premarital physical examination may be limited driving privileges” from 7:00 a.m. to event of an implied consent law revocation the capricious and that the means selected shall waived by the county judge only on the basis of 7:00 p.m. Monday through Saturday to drive licensee may challenge the revocation in an have a reasonable and substantial relation to the medical testimony. No medical testimony - or from his residence in Perry, Oklahoma, to his administrative hearing before the Commissioner objective being sought. . . . testimony of any kind - was presented in this place of employment in Orlando, Oklahoma. of the Department of Public Safety from whose Williams had an opportunity to be heard at case in support of the application to waive the The court further ordered that the plaintiff order the licensee has a right of appeal to the both the administrative and district court levels premarital physical examination requirement. may drive at “no other times and for no other district court. Such appeals are governed by § concerning the basis for the state action taken in Applicants are clearly not entitled to the writ purposes.” 6-211, which vests the district court with “appel- arresting him and revoking his license. He does they seek from this court. The defendant Department of Public Safety late jurisdiction [to] hear said petition de novo.” not complain of a deprivation in this regard. appeals complaining that the trial court erred The burden of proof in the district court is upon Thus, procedural due process was satisfied. April 17, 1990 in holding subject statute unconstitutional and the Department to establish the validity of the In enacting § 6-205.1(a)(3) and (c) (effective Twenty-Five Years Ago modifying the revocation order. underlying bases for the revocation, i.e., (1) the November 1, 1988), the legislature addressed [Excerpted from Williams v. State ex rel. In its petition in error the Department of arresting officer’s affidavit of probable cause, an important state interest - the protection of its Dept. of Public Safety, 1990 OK CIV APP Public Safety contends that the licensee’s appeal and (2) the circumstances, procedure and results citizens from the threatened dangers of drunk 27, 791 P.2d 120.] to the district court should have been “dismissed of chemical testing. Price v. Reed, 725 P.2d drivers operating motor vehicles on public The issue raised in this driver’s license revo- for the Court’s lack of jurisdiction over a man- 1254 (Okl. 1986); Appeal of Dungan, 681 P.2d roads. One means of trying to do so was the cation case is whether the trial court erroneously datory revocation” and that the Department 750 (Okl. 1984). enactment of subject statutes requiring that the concluded that a statutorily mandated unmod- “objected to any grant by the Court to modify If that burden is met, the licensee becomes driver’s licenses of certain repeat offenders of ifiable one-year revocation was an unconstitu- Williams’ driver’s license.” We thus have two subject to the periods of revocation set out in § the implied consent statutes be revoked for tional denial of due process because it deprived issues to review: (1) Whether the district court 6-205.1, which are subject to modification for the prescribed periods and that “neither the the plaintiff of his license without affording him has jurisdiction to review the license revocation “extreme and unusual hardship” under § 755 Department nor any court shall grant a license an opportunity to have the revocation judicially order; and (2) whether the district court had unless modification is prohibited by § 6-205.1, or permit to drive a motor vehicle based upon modified on the ground of extreme and unusual jurisdiction to modify the statutory revocation as in the case of a licensee who has a previous hardship or otherwise for the duration of such hardship. period. implied consent violation within the preceding period.” § 6-205.1(c). We cannot say that the The plaintiff-appellee, Monte Williams, was The licensee contends that the trial court five years - the situation which we have in the statutory enactment of that policy is arbitrary, arrested in Perry, Oklahoma, on November 6, “held the portion of 47 O.S. [Supp. 1989 §] present appeal. unreasonable or capricious considering the grav- 1988, for suspicion of driving under the influ- 6-205.1 47-6.205.1(a)(3) and (c) unconstitu- To recapitulate, not only is the district court ity of the perils inherent in the use of a public ence of alcohol. He voluntarily submitted to a tional for the reason that the statute took away visted with jurisdiction to review implied con- way by a mentally impaired licensee. Protection breath test and the officer reported a blood-al- all rights of appeal of an officer’s affidavit” and sent revocations, but it has a duty to hold a trial of the public from the potentially harmful con- cohol content of 0.19. Williams was charged “thus denied him due process.” de novo in which the Department is required to sequences of driving under the influence of with driving under the influence of intoxicants. We are unable to agree with the licensee’s prove the validity of the underlying grounds for intoxicants is a legitimate and important state Because his record revealed a previous alco- identification of the legal premise underlying the revocation by a preponderance of the evi- interest. Requiring an unmodifiable revocation hol-related revocation within the preceding five the court’s conclusion of unconstitutionality. dence. If that burden is satisfied, the revocation after a second offense is not an unreasonable or years, Williams came within statutory provi- In its order the trial court simply stated that “the periods set out in § 6-205.1 take effect. And, if arbitrary means of promoting such protection. www.okcbar.org • April 2015 • BRIEFCASE 15

Obituary Judge Page Price Morgan She is survived by her husband of May 13, 1953-February 27, 2015 almost thirty four years, lawyer Fred Mor- Judge Morgan served more than twenty gan, daughter and lawyer Megan Tilly and years as an Oklahoma Municipal Court her husband, Matt; son Daniel Morgan judge. She passed away February 27th, and wife Kristina. She is also survived by 2015 after a courageous twelve year her brother Dr. Richard Price and nieces struggle with cancer. She graduated Anna and Rachel, and a sister, Pamela from Oklahoma State University and was Bynum. awarded her Juris Doctorate from Oklaho- ma City University School of Law in 1980.

CIVIL WAR from PAGE 6 the inadequate amounts of food became an followed by death. even worse diet. Close behind diarrhea as a cause of Editor’s Note: Footnotes are sequen- death was scurvy, caused by a lack of fresh vegetables in the prisoners’ diet. Despite tial, beginning in Part One. some effort to put “anti-scorbutics” such as fresh vegetables into the prisoners’ diets, the amounts available proved whol- 14 Speer, p. 11. ly inadequate. The prisoners often left Andersonville looking like what we later 15Denney, p. 158-160. came to call “holocaust survivors.” 16Futch, p. 3. There were just no arrangements made 17Speer, p. 262. for the prisoners to bathe or wash them- selves. The only option was the already 18Roberts, p. 21. polluted creek as it flowed through the 19Futch, p. 4. swamp. 20Chipman, p. 51. The combination of all these things 21Futch, p. 2. predictably caused an incredibly high mor- tality rate. In the summer of 1864, the pris- 22Speer, Appendix c, p. 332. oners were exposed to the hot sun because 23Id. they had no shelter. They blistered, due to 24Futch, p. 35 quotes Ohio Cavalryman sunburns. These blisters broke and formed David Kennedy’s diary for May 23, 1864: open sores. In the poor sanitary conditions, the open sores became infected. Gangrene “Rations getting short and very poor. and amputation often followed, soon to be Cornbread, ground cob and all.” 16 BRIEFCASE • April 2015