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Artificial Intelligence Attacks Intelligence Artificial

Happy Halloween! Happy

OKLAHOMA the of Publication A 10 No. 49, Vol. 2016 October, ASSOCIATION BAR COUNTY WWW.OKCBAR.ORG 2 BRIEFCASE • October 2016 From the President BRIEFCASE October 2016 Briefcase is a monthly publication of the Oklahoma County Bar Association 119 North Robinson Ave. Oklahoma City, OK 73102 (405) 236-8421

Briefcase Committee Judge Jim Croy, Chris Deason, Ryan Dean, Ben Grubb, Justin Hiersche, Scott Jones, Matt Kane, Travis Pickens, Liz Oglesby,Miles Pringle, Austin Reams, Cari Remillard, Teresa Rendon, Rex Travis, Collin Walke, Judge Geary Walke, Judge Allen Welch and Alisa White Co-editors Joi McClendon & Shanda McKenney Contributing Editors Michael Brewer Richard Goralewicz Bill Gorden Warren Jones Kieran D. Maye

Oklahoma County Bar Association

OFFICERS: President Judge Barbara Swinton President-Elect David A. Cheek Vice President Sheila Stinson Past President Angela Ailles Bahm Treasurer Robert D. Nelon Bar Counsel Coree Stevenson STAFF: Executive Director Debbie Gorden Legal Placement Director Pam Bennett By Judge Barbara Swinton real difference in their lives. Membership Services Connie Resar So did the fall season bring any- elcome thing new in my world, personally? SO Journal Record Publishing Co. Inc. everyone to MUCH! the fall sea- September has been a life-changing Publisher Joni Brooks W son! In Oklahoma, that month for me and my family. I closed Creative Services James Needham means the end of torna- out a 20 year career as a trial judge in do season, the start of For advertising information, Oklahoma County and began a new football, the State Fair, call 278-2820. career as a judge on the Oklahoma Court and a new school year. of Civil Appeals. But on September 30th, This school year brings a new adven- Postmaster: Send address changes to OCBA the new love of my life arrived! Our Briefcase, 119 North Robinson Ave., Oklahoma ture for The Foundation for Oklahoma first grandchild, Bennett, came into the City, Oklahoma 73102. City Public Schools. Over the next few world, and as I prepare this article, I am months, we will focus on different pro- Journal Record Publishing produces the Briefcase taking on the coolest job ever, as “Gran grams and ways for you to get engaged for the Oklahoma County Bar Association, which is B.” I now know what all my grandpar- solely responsible for its content. with OKCPS. the Partners in Action website at: www. ent friends have been talking about! As © 2014 Oklahoma County Bar Association Recently the Oklahoma County Bar okcps.org/PartnersInAction to get started one of my friends said recently about Association Board of Directors approved today. grandchildren, “You’ve got to get one of a partnership with the Foundation to sup- Positive effects are already reported these!” So true, this little guy is such a port “The Great Commitment.” This is from this new program. For example, the new strategic plan to provide a variety blessing and a joy to hold and behold. a local church asked a specific school of ways for community partners to play I want to thank all my fellow judges what it needed and now it now provides a meaningful role in OKCPS and the in Oklahoma County for all your support OKLAHOMA COUNTY BAR children it serves. The main goal of the ASSOCIATION new strategic plan is to partner commu- This school year brings a new MISSION STATEMENT nity organizations with schools for spe- Volunteer lawyers and judges dedicated cific needs and requests from individual adventure for The Foundation for to serving the judicial system, their profes- schools. sion, and their community in order to foster “‘Partners In Action” is one such pro- Oklahoma City Public Schools. Over the highest ideals of the legal profession, to gram to meet these needs. The goal is to better the quality of life in Oklahoma County, the next few months, we will focus and to promote justice for all. connect partners directly with schools. Principals at each school can post spe- on different programs and ways for cific needs and community partners can post areas they are interested in so that you to get engaged with OKCPS. those interests and school needs can be matched. This program focuses on mentors for 6 boys in need of strong male and encouragement in my new endeav- mentoring, tutoring, or reading buddies; role models, the school now has reading or at the next level and to my fellow building community gardens or cleaning buddies, and the soccer team now has members on the Court of Appeals, I look playgrounds; providing guest speakers coaches. A local restaurant said, “What forward to transitioning from a “Lone to visit on career day; supplying teacher do you need?” and now the local school Ranger” to working as a fellow panel incentives or PTA dinners, etc. – there is has food provided for teacher apprecia- member. so much to choose from! tion lunches and school parties. Let’s see This is the last Briefcase before the So, you may be asking, how can I help? what we can do as a community partner general election so I want to encourage OCBA will have a link to the Foundation to enrich the education for Oklahoma City each of you to research your candidates on our website and you can see what schools. I encourage you to decide what and state questions and most importantly needs are listed or post what you are will- you have the time, talent, and gifts to - GO VOTE! ing to provide. You can also go directly to bring to school children and let us make a www.okcbar.org • October 2016 • BRIEFCASE 3 GOP Roots Not Traced to Know Nothing Party

By Robert R. Redwine

I enjoyed Judge Walke’s article on the Know Nothing party. His discussion of their persecution of Irish Catholic immi- grants particularly resonated with me given that I am a quarter Irish through my O’Niel family. I fully concur with Judge Walke’s critique of the short-lived Help Wanted American Party aka the “Know Nothings” and applaud his inspiring concluding mes- sage that this country has overcome many challenges before and has proved, and will Irish need not apply. prove again with courage and leadership, the resiliency of its’ best ideals. That said, I do think one of the state- ments regarding the Republican Party was in error. I specifically refer to the follow- ing: “Supposedly northern Know Nothings immigration position.3 where they make no pretense of loving humanity and a burning shame to our opposed to slavery broke off to form the I therefore respectfully submit that any liberty – to Russia, for instance, where country.” Less well known though is that Republican Party.” This is followed by a suggestion that northern Know Nothings despotism can be taken pure, and without both Republican platforms with Abraham statement regarding Abraham Lincoln’s formed the Republican Party is mistaken. the base alloy of hypocrisy.”4 Lincoln as a candidate (1860 and 1864) election as the first Republican President. My concern is that including this incorrect Newspaper magnate Horace Greely included strong pro-immigration planks.6 The Republican Party was formed by statement in the same article with the dis- wrote an editorial in June 1854 that both These were in direct opposition to the anti-slavery former Whigs and other abo- cussion of violent, anti-immigrant Know described the purpose of the party and Know Nothings’ position on immigration. litionists in 1854.1 The Republican Party Nothing activities may indicate to some suggested a name for it. He stated: Again, I enjoyed Judge Walke’s article. readers a link between “We should not care much whether I hope to see more articles such as his that these abhorrent Know those thus united (against slavery) were integrate historical understanding into con- Nothing actions and posi- designated ‘Whig,’ ‘Free Democrat’ or temporary issues. I believe history to be a tions and the formation of the Republican Party, and perhaps also with the elec- I therefore respectfully submit that tion of my favorite attor- ney, Abraham Lincoln (a any suggestion that northern Know personal historical hero to me). Nothings formed the Republican Judge Walke’s article does briefly cite to a sen- Party is mistaken. tence from an 1855 letter from Abraham Lincoln to something else; though we think some valuable source for wisdom. However, his friend Joshua Speed simple name like ‘Republican’ would I believe the statement I’ve discussed is that criticizes the Know more fitly designate those who had united incorrect and may leave the very regret- Nothings. However, I to restore the Union to its true mission table impression that the Know Nothing think including more of of champion and promulgator of Liberty activities were connected, in some way, Lincoln’s letter would rather than propagandist of slavery.”5 with the formation of the Republican Party have made the depth of his (emphasis added) and possibly the election of Abraham opposition to the Know The Republican Party platform of 1860 Lincoln. I’m certain that is not what Judge Nothings’ philosophy followed through on this position by refer- Walke intended so I write for the singular quite clear. The following ring to the slave trade as “a crime against purpose of clarifying that point. is a longer excerpt: “I am not a Know- 4. http://www.abrahamlincolnonline.org/lincoln/ 6. http://www.presidency.ucsb.edu/ws/?pid=29620; Nothing – that is certain. speeches/speed.htm #9, # 14 and http://www.presidency.ucsb.edu/ was an opposition party to the anti-immi- How could I be? How can anyone who 5. http://www.ushistory.org/gop/origins.htm ws/?pid=29621; #8 grant Know Nothings and to the pro-slav- abhors the oppression of negroes, be in ery Democratic Party. It is true that a favor of degrading classes of white peo- prominent Know Nothing party member, ple? Our progress in degeneracy appears by the name of Nathaniel Banks, left that to me to be pretty rapid. As a nation, we Mea Culpa party after a single election (the election began by declaring that ‘all men are cre- of 1854) and joined the Republican Party ated equal.’ We now practically read it ‘all By Geary Walke in 1855 and that most anti-slavery Know men are created equal, except negroes.’ Nothing members joined him particularly When the Know-Nothings get control, Mr. Robert Redwine, of Bethany, is absolutely correct to call me out. His after the Dred Scott decision. However, it will read ‘all men are created equals, astute eye for accuracy revealed my error for which I apologize to Mr. Redwine, this was after the new Republican Party except [African-Americans] and foreign- and all others who noted the mistake. I certainly did not intend to imply that was already formed.2 Banks is said to have ers and Catholics.’ When it comes to that I Abraham Lincoln had been a Know Nothing. To the contrary, I thought I was left the Know Nothings not only because should prefer emigrating to some country making it clear that he was not a Know Nothing. I note that Mr. Banks is esti- of his anti-slavery stance, but also because mated to have taken two-thirds of the membership of the Know-Nothings when he took issue with their position on slavery and moved to support the newly he could not support the Know Nothing’s 3. Notably, Banks was originally a Democrat, then formed GOP. Mea Culpa! joined the Know Nothing Party before joining the While I’m at it, Judge Bill Graves corrected me on the Statue of Liberty Republican Party. He became the Speaker of the House, Inscription. While I thought it was part and parcel with the statue from day one, was the Governor of Massachusetts and fought as a it apparently was added in 1903. Mea Culpa!! Union general during the Civil War. http://bioguide. AND, yes Mr. Herndon, your name was misspelled in the caption for the congress.gov/scripts/biodisplay.pl?index=B000116; photograph of you at a younger age. Many apologies MR. HERNDON. Mea 1. http://www.history.com/this-day-in-history/republi- see also: Harrington, Fred Harvey (1948). Fighting Culpa!!! can-party-founded Politician: Major General N. P. Banks. Philadelphia: 2. http://history.house.gov/People/Detail/8921 University of Pennsylvania Press 4 BRIEFCASE • October 2016

And The Court Said An Olio of Court Thinking

October 18, 1916 character or class of labor to which synonymous with “secular.” And in this to the officers being excepted from the One Hundred Years Ago they intended that both the prohibition we are sustained by Gladwin v. Lewis, application of the rule, and excepted [Excerpted from: Krieger v State, 160 and the exception should apply, and we 6 Conn. 49, 16 Am. Dec. 33. But even to the action of the court in refusing to P. 36, 1916 OK CR 94.] think must have intended to use the word without a precedent, we think, no other apply the rule to them. The plaintiffs in error in this case were “servile” as synonymous with secular. It construction could give vitality to the * * * prosecuted and convicted in the county would be highly improper to strike down real legislative intent. The practical effect of the court’s court of Blaine county for violating our a statute so vital as this as meaningless, But it is facetiously argued by some order was to exclude all of defendant’s Sabbath or Sunday laws. It appears from unless it should be impossible, by any courts that to say to these people they witnesses from the courtroom, while the record that they were conducting a reasonable construction, to ascertain the shall keep our Sunday does not prevent allowing those testifying for the state to general mercantile business at Hitchcock, Legislative intent. This law, as stated by them from also keeping the day they remain and hear each other’s testimony. Okla., and exposed their merchandise an eminent jurist — regard as “holy day.” But these courts This ruling of the court might have been for sale on Sunday; that this was done in “* * * Proceeds upon the overlook the fact that under the divine harmless, except that when considered an orderly, peaceable and quiet way. And theory, entertained by most of commandment these people are striving in connection with other events that there is no complaint that it was done in those who have investigated to obey it is just as imperative that they transpired during the trial, hereinafter such manner as to interrupt or disturb the subject, that the physical, work six days as it is that they rest on discussed, it amounts to depriving the other persons in observing Sunday or intellectual, and moral welfare the seventh. And if their conscience defendant of that fair and impartial trial the first day of the week as “holy time.” of mankind requires a periodi- compels them to rest one day, and the guaranteed to him under our laws. It also appears that plaintiffs in error cal day of rest from labor, and, law forces them to also rest another, they The witness, Chickering, was with are and were Seventh Day Adventists, as some particular day must be would thus be forced to violate the first the defendant at the time of the alleged and uniformly and religiously observed fixed, the one most naturally provision of the commandment they are wreck, and testified on behalf of the Saturday, or the seventh day of the week, selected is that which is regard- attempting conscientiously to keep. state concerning the activities of the as a day of rest and “holy time.” ed as sacred by the greatest For these reasons, and others that defendant for several hours prior to the Counsel for both plaintiffs in error and number of citizens, and which might be added, we think the judgment incident in question. Chickening testified the state have filed able and elaborate by custom is generally devoted should be reversed. that earlier in the day, he, Hurst, and the briefs. But as we view the situation, to religious worship, or rest defendant had drunk some whisky, and the question presents a very simple and recreation, as this causes October 8, 1941 that the defendant drank a bottle of proposition, and turns on the legislative the least interference with busi- Seventy-Five Years Ago beer in Cushing, which was before they intent as expressed in section 2406, ness or existing customs.” [Excerpted from Thompson v started on the trip which ended in the Revised Laws 1910. After designating State,1941 OK CR 136, 118 P.2d 269.] automobile striking the culvert. the first day of the week as the Sabbath, But our Legislature, we think, wisely The defendant, Ellett Rhea Thompson, On cross-examination of the witness, and declaring that Sabbath breaking and properly, by the provisions of section was charged by information filed in counsel for defendant sought to cross- shall consist: First of “servile labor, 2406, Revised Laws, 1910, exempted the district court of Payne county, on examine him concerning the intoxication except works of necessity or charity;” any one who “uniformly keeps another September 26, 1939, with the offense of the defendant, to which the court and second, “trades, manufactures day of the week as holy time, and of driving an automobile while under sustained objections by the county and mechanical employments” — the does not labor upon that day” from the the influence of intoxicating liquor, was attorney. Legislature then makes an exception, penalties of this statute; provided, such tried, convicted and sentenced to serve We think this was error. and in section 2406 provides that: person who uniformly and religiously four months in the State Penitentiary, After the state had examined keeps another day as holy time works from which judgment and sentence he Chickering fully with reference to all “It is a sufficient defense in on the first day “in such manner as not proceedings for servile labor appeals to this court. that it desired to prove as to the defendant to interrupt or disturb other persons in * * * having been drinking intoxicants and on the first day of the week, observing the first day of the week as to show that the accused uni- The proof of the state is to the effect as to the manner of the accident, the holy time.” The writer of this opinion that about 10 p. m. on August 27, defendant should have been allowed, on formly keeps another day of conscientiously and religiously believes the week as holy time, and 1939, the defendant was driving a red cross-examination, to bring out anything that Sunday, or the first day of the Ford pick-up east on State Highway No. that the state had omitted to show, which does not labor upon that day, week, is the day upon which all persons and that the labor complained 33 between Cushing and Drumright, would in any manner tend to shed light should rest; and is the day that should be while he was under the influence of upon the transaction. of was done in such manner as observed as holy time by all Christians; not to interrupt or disturb other intoxicating liquor; that while driving in * * * in commemoration of the greatest fact in this manner, he swerved across the road, The state cannot be permitted to prove persons in observing the first our religion, the resurrection of our Lord. day of the week as holy time.” hitting a culvert, and blowing out an one part of a transaction by a witness, But I cannot, and would not if I could, automobile casing. and by failing to question him with Now the question is, What did the make my conscience the standard of my The evidence of the defendant is reference to a matter which constitutes Legislature contemplate by the term brother. We are all fallible, and I would that the defendant was not driving the an essential element of the same “servile labor” in this exception? It is not assume the responsibility of forcing automobile, but that said car was being transaction, force a defendant to place loosely stated by some courts that the him to adopt my faith; for, should I be driven by one Charles Lemons, and a hostile witness upon the stand for the term “servile labor” is infelicitous. But wrong, my responsibility would then be that the defendant was not under the purpose of proving the matter which had there is no such thing as “servile labor” in doubled. And the legislature intended to influence of intoxicating liquor. been omitted by the state. this country, and has not been for years; refrain from interfering with or coercing This case will have to be reversed We are of the opinion that the trial and the term is not only “infelicitous” the conscience of those who uniformly because of certain occurrences during court erred in refusing to allow the but is obsolete and meaningless, as and conscientiously keep another day the trial, which in our opinion have defendant to cross-examine the witness applied to present conditions. And if than the first day of the week as holy prevented the defendant from having a as to whether the defendant was under our statute should be limited to the time, by the provisions of section 2406. fair and impartial trial. the influence of intoxicating liquor at the literal meaning of the term, then neither And we think this is in harmony with At the outset, the defendant asked that time of the wreck. the prohibition nor exception in the the spirit and genius of our government. the witnesses be placed under the rule. It is next urged that the county attorney statute could apply to any class of labor And when our legislators exempted The court placed all of the witnesses and sheriff arrested the defendant’s existing today, either in this state or the persons who uniformly, conscientiously, under the rule except two highway witnesses, one after another, as they left nation. The word “servile” pertains to and religiously keep another day from patrolmen and a police officer. These the witness stand and lodged them in jail. slaves, to those held in subjection and the penalties of the statute, they intended three officers were the only people who That such activities on the part of the enslaved, and no such thing as that exists to give them a substance and not a testified that the defendant was under sheriff and county attorney were widely today in our nation. But our legislature shadow. Hence we think the legislature the influence of intoxicating liquor on discussed in the lobby of the courthouse, certainly had in mind some existing intended to use the word “servile” as that occasion. The defendant objected outside of the courtroom; that the jury, www.okcbar.org • October 2016 • BRIEFCASE 5

excused for several minutes’ recess while witness stand. the court was preparing his instructions, It is evident that if such procedure were allowed to mix and mingle with on the part of a county attorney was the spectators outside of the courtroom, encouraged, there would be a great and were bound to have learned of these temptation to abuse this privilege. The arrests to the prejudice of the defendant. danger inherent in such a practice is so That such arrests intimidated two of great that we cannot place our stamp defendant’s witnesses, who refused to of approval on the same. If it should testify after being subpoenaed, because become necessary to arrest a witness they did not wish to be harassed by the whom the county attorney believes has county attorney or humiliated by being committed perjury, great care should be placed in jail. exercised to see that this is not done in This matter was raised in a the presence or hearing of the jury, and supplemental motion for a new trial knowledge of such arrest should be kept filed by the defendant. Upon the hearing from the jury. upon said motion, the defendant placed Defendant and his counsel each the sheriff upon the witness stand, who testified at the hearing on this motion swore that he arrested Mae Smith, Merle that two witnesses subpoenaed by the Frees, one Dye, and Charles Lemons, defendant, Bill Criswell and Hollis witnesses for the defendant who testified Ashcraft, refused to testify to certain to the fact that Charles Lemons was truths favorable to the defendant’s cause, driving the red pick-up at the time it was after they saw the arrest of the other alleged by the state that the defendant witnesses for the defendant, because was driving. The sheriff testified that they did not want to be locked up by the he arrested these witnesses just outside county attorney. of the courtroom, while the trial was in It is all right for the county attorney progress, at the direction of the county to let the public know that he will attorney and confined them in jail. That prosecute any witnesses that might Frees and Mae Smith were held in jail a commit perjury in any of the courts day or two for investigation before being in his jurisdiction. But the manner of released, and that charges of perjury making this determination to prosecute were filed against Dye and Lemons in known should not be such that a truthful connection with their testimony in this witness would be kept from testifying case. That there were several spectators for a defendant for fear of being arrested and witnesses in the lobby outside of the by a prosecutor. However, there will be courtroom when these arrests occurred. very few cases where an honest witness In rebuttal, the county attorney will be prevented from testifying through introduced affidavits from each of the 12 fear of action against him by the county jurors who sat on the case that they did attorney. not hear the case discussed outside of the After thorough consideration of this actual trial of said case by any one. matter, we have come to the conclusion It is not our purpose to comment that the defendant has made a sufficient upon whether the county attorney was showing to impel us to the conclusion justified in filing the perjury charges that the action of the county attorney in against these parties, as that was a connection with the arrest of defendant’s matter directed to the discretion of the witnesses materially prejudiced the county attorney who was chosen by the defendant in this case. people of Payne county to investigate all crimes committed in that county. It October 12, 1966 was his duty, if perjury was committed Fifty Years Ago to prosecute the same vigorously. But [Excerpted from Powers v. Owen, it was further his duty to commit no 1966 OK CR 141, 419 P.2d 277.] act during the trial for the purpose This is an original proceeding in of intimidating defendant’s witnesses, which petitioner, Dennis LeRoy Powers, or to convey to the jury from facts seeks an order of this Court prohibiting obtained outside of the courtroom the the Honorable W.L. Owen from further personal opinion of the prosecutor that proceedings in Alfalfa County Court the defendant’s witnesses were guilty case #8003, and for a further order of perjury in connection with the case directing said respondent to enter an on trial. order dismissing said charge against There was no direct proof that the petitioner. jury learned of these arrests. On the The Information charging said contrary, although the affidavits do not petitioner with the offense of unlawfully expressly so state, the inferences from shooting a protected game bird, to-wit, the statements of the jurors are that they one (1) Franklin Gull, was laid under the did not hear any comment concerning provisions of 29 O.S. § 301, the same the arrest of the defendant’s witnesses. providing: After the arrests were made, the jury “(a) It shall be unlawful to was allowed to separate and mingle with hunt for, capture or kill any the spectators during a recess while the species of migratory waterfowl court was preparing his instructions; such as ducks, geese or brant and it would be unusual if some of the or other migratory birds except jurors did not learn from some remark, as provided in the laws of Con- carelessly or intentionally made by a gress relating to the killing of spectator, that the defendant’s witnesses had been arrested for lying on the See OLIO, PAGE 14 6 BRIEFCASE • October 2016

RECENT COURT Satire DECISIONS A Modest Proposal (or Two) By James B. Croy a member of the 2020 law class. By Shanda McKenney Classes begin on September 12, In his satirical 1729 essay, A Modest 2017, and you should plan on being Regardless of where one stands on the substance of 12 O.S. Proposal, Dr. Jonathon Swift suggested that here three days prior so that you §3009.1, since its passage there has been a lingering question, fueled the poor in Ireland might sell their children by dueling and diametrically opposed opinions by different District can undergo the administrative to the rich for food, thus alleviating the food drudgery which is necessary for the Judges in different counties, as to whether the statute would ultimate- shortage and spurring the economy. The ly withstand appellate scrutiny. Due to this uncertainty, a number start of your law school career. prospective law student, upon tallying up the By the way, Dean Goodfel- of personal injury cases were either appealed or placed “on hold” mountain of money he will have to expend pending further guidance from the Oklahoma Supreme Court. Well low has asked that I advise you for law school, might start evaluating his folks, the wait is over. that you are number 107 in your own children as a source of revenue. The As most of you likely know by now, 12 O.S. §3009.1 (often admissions class of 189, or in the upward spiral of law school costs seems to referred to as the “paid vs. incurred” or “paid vs. billed” statute) top 56% of your class. In the past have no end, and there seems to be no way of recently withstood Constitutional scrutiny in Lee v. Bueno, 2016 OK ten years students with that class putting on the economic brakes. 97, ___ P.3d ___. This statute essentially provides that if a plain- rank at admission graduate from However, since the single goal of law tiff has their medical bills paid by a third-party - such as a private Law School at a rate of 64%. Of school is to give the graduating student health insurer, Medicare or Medicaid - then that plaintiff will only be the graduates who began their law the legal tools to pass the allowed to present evidence of the sums actually paid by them or on school careers in the bar examination and embark their behalf, and/or those amounts which remain actually due, rather top 56% of their class, upon his profession, possibly than the sums originally billed by the provider, prior to application 56.5% were successful an extremely modest sugges- of the third-party payments. The opinion notes that the version of the in passing the bar exam tion or two might be in order statute addressed by the Court was passed in 2011, but it was substan- the first time they took for the benefit of the success- tively amended in 2015. it, and an additional In what was essentially a 7-2 decision (at least as to most of the ful law school applicant. 7.5% percent eventually salient points), the Oklahoma Supreme Court upheld Section 3009.1 The first modest sug- passed it after failing it and ruled it did not run afoul of the “special law” prohibition in the gestion would be to have at least once. Thus, only Oklahoma Constitution. The Lee opinion also made clear that the a “truth in expectations” 36% of the students statute applies equally to private health insurance plans, as well as notice in the letter notifying with your admissions to Medicare and Medicaid. The details of the decision will not be the successful candidate of class ranking failed to recited here. However, it is interesting to think about the issues that his acceptance. This notice be admitted to practice were not addressed in the Lee opinion and how this pronouncement would inform the applicant as a lawyer! will practically affect the practice of personal injury and insurance of his relative class rank at Additional good defense law in our State. admission, the ten-year per- news is that here at For example, will the universal application of Section 3009.1 centage of students with his Law School, we are so inhibit an injured party’s ability to retain counsel due to the relatively rank who have graduated certain of your eventual success smaller dollar amounts that would be available from a jury? How will from the law school, the ten-year percentage in passing the bar entrance exam- the cases be handled where there has already been an in limine ruling of graduates with his rank who have passed ination that if you fail to pass the declining to apply Section 3009.1? Will there be a cottage industry the bar exam the first time they took it, the exam three times and agree never of litigation to determine the definition of other terms contained in percent of graduates with his rank who have to take it again, the Law School the statute, such as “similar bills,” “authorized representative,” etc.? passed the bar after failing it at least once, will stand good for your tuition and Let’s not forget about how the now certain applicability of this and the percent of graduates with his rank fees. That is, if you owe student statute will potentially affect the relationship between providers and who never passed the bar. Then, the notice loans for fees and tuition, we will their patients. Will more providers begin accepting private health could inform the successful applicant of how pay those loans, and to the extent insurance in third-party liability cases, or will they stop accepting much he should expect to pay in tuition, fees you have already paid for tuition private health insurance altogether and start filing liens, instead? and books at the current tuition level. and fees, we will reimburse those Then there is the potential effect on the day-to-day business of The second suggestion, even more modest monies. What could be better? the courts. Will there be more jury trials where no medical bills are than the first, would be that the law school guar- You might well ask what those introduced into evidence because of their relatively nominal dollar antee that if the successful applicant ultimately fees and tuition costs might be, as value? Will there be fewer lawsuits filed because the lower amounts graduates from the law school, should he fail well you should. After all, better of bills prompt more early settlements by insurers? This initial ruling to pass the bar three times, the law school will safe than sorry! But, at the current of constitutionality is likely only the tip of the iceberg in the appellate hold him harmless for all tuition and fees. After tuition rate of $1,065 per hour, to courts. all, the only goal for a law school student is to which a barely mentionable gen- Another recent point of interest are the revisions to a number of the be armed with the legal knowledge to pass the eral fee of $115 per hour is added, Oklahoma Uniform Jury Instructions. The full panoply of changes to bar and embark on a legal career. Surely the law together with the parking and secu- the exact text is available for viewing at http://www.oscn.net/applica- schools, when they review applicants and cull rity fees, student bar fees, and those tions/oscn/deliverdocument.asp?citeid=479097. Changes were made them for admission, anticipate that any student pesky textbooks, you should look to a variety of topics, including the introductory instructions, per- who eventually successfully completes his law forward to a completely affordable sonal injury and premises liability instructions, and condemnation, studies will indeed pass the bar. So, this would $120,000.00 for your law school contempt and forfeiture instructions. Many of these instructions are just be easing the stress on the student and put- experience. Don’t forget to add in brand new to the OUJI book and most of the revisions to existing ting the schools’ money where their mouths are. living expenses!! instructions were material and substantive. Every civil litigator Needless to say, the only reason these two We look forward to seeing you should review them closely. modest proposals are not already in effect is in September as you embark on a Finally, an interesting opinion was published regarding the applica- that no one has thought of them. Now that great adventure. tion of Rule 2 of the Rules Governing Bar Admission (5 O.S. 2015 ch. the proverbial cat is out of the bag, we can 1, app. 5), which governs the requirements for reciprocal admission anticipate the country’s law schools lining So, those are my two modest proposals. to the Oklahoma Bar. In re Application of Green for Admission to up to incorporate them into the admissions I assume they will be adopted forthwith. Okla. Bar Assn, 2016 OK 8 (Sept. 20, 2016). The dissenting opinion process. A possible letter of acceptance might And by the way, although we all refer to Dr. to this 6-3 decision makes a valid point regarding the interpretation of read as follows: Swift’s essay as A Modest Proposal, the full rules that were perhaps drafted without giving full thought and con- Dear Successful Applicant: name of his paper was, A Modest Proposal sideration to how the application of those rules might impact certain for Preventing the Children of Poor People classes of attorneys. The short opinion is definitely worth a read, if for It is with great pleasure that I From Being a Burthen to Their Parents or no other reason than to determine whether the reader desires to weigh have the honor of informing you Country, and for Making Them Beneficial to in on whether a change to our reciprocity requirements is warranted. that you have been accepted to be the Publick. www.okcbar.org • October 2016 • BRIEFCASE 7 Cha-Cha-Cha Changes

By Cindy Goble

I am writing this article after months of promising Debbie Gorden that I would write an article for the Briefcase. The delay is embarrassing to me, but hey, I’m mak- ing a change and turning over a new leaf! Sometimes change is good, but change is also something we fear. We tend to put up our defenses, question the wisdom of the change and resist until the cows come home! People generally prefer the same routine day in and day out because life is busy. We rush to work, we rush to complete deadlines, we rush to pick up dry cleaning, to take the kids to soccer practice, and it is a never end- ing cycle that is both physically and mentally exhausting, and then we get the call from Change a friend of your cousin at night who has a Give quick legal question for you, and the beat goes on. Have you ever driven home and realized you don’t even remember the drive or whether you actually stopped at that stop sign. It has happened to me. With all of this life happening and all of us running on autopilot, when do we have the time or the energy to give back to our com- munity? I would suggest that we all have time to do good every single day. Doing something good in our community brings back the pos- itive to the practice of law and to your life. Helping others in need without expectation of payment is gratifying. My first pro bono case was a simple publication divorce for a domes- tic violence survivor. I will never forget how good it felt walking out of the courthouse with her that day. She was extremely grateful and relieved that her nightmare was finally over. The experience was very gratifying to me as well, after all, I am writing about it now, a Isaacs and Legal Aid Services of Oklahoma mere 22 years later! attorneys Rick Goralewicz, Richard Vreeland I’m inspired by an article in the September and Aubrie Comp. Since we relocated to 10, 2016, OBJ written by Jim Priest, CEO Sunbeam Family Services, our client num- of Sunbeam Family Services, “Why I Miss bers have quadrupled! So, while Jim may not the Practice of Law.” The article describes be practicing law as before, his hospitality the change he made when accepting his has been instrumental in the continuation current position. The change was drastic, and growth of the clinic and our provision of going from a litigation heavy practice to legal advice and other legal services through the person in charge of a local non-profit the clinic at Sunbeam. agency. While Jim does amazing work at Statistics show that there are 20,000 Sunbeam, he didn’t mention in his article the low-income clients for every LASO lawyer partnership formed with Legal Aid Services in this state. What makes it even worse is of Oklahoma in a time of need. You see, our that most of the 20,000 poor people will 3rd Saturday monthly legal advice clinic have multiple legal issues every year related experienced change a couple of years ago to poverty. when the building where we had held our Here is my change challenge to you. clinic for 15+ years was sold. John Miley, a By the end of 2016, volunteer to take a long-time clinic volunteer attorney, worked case, volunteer at an outreach clinic such to find a new location. His wife, Justice as the 3rd Saturday Legal Clinic, volunteer Noma Gurich, spoke with Jim Priest and our for a courthouse clinic such as the Pro Se search was over! Waiver Divorce Docket Clinic, give legal On the third Saturday of every month, I advice over the web or by telephone, pledge get the donuts and coffee for the legal advice to participate in the annual Ask-A-Lawyer clinic participants who gather in the training program on Law Day, volunteer to speak to room at Sunbeam Family Services from 9:00 groups, just do something to make a differ- a.m. to noon. Attorneys give legal advice to ence in the lives of a low-income family or low-income people and senior citizens who a senior citizen. Concerned you may not be are seeking our help. I am very thankful familiar with an area of law? It’s okay, we are for the attorneys and other volunteers who there to help! make the clinic possible and for Jim Priest If you cannot volunteer time, consider for hosting our clinic. Regular clinic vol- making a donation. It’s important to our com- unteer attorneys include John Miley, David munity and to ourselves to satisfy the ethical Miley, Kent Johnson, Rita Douglas-Talley, obligation to give back to our community. David Bryan, Shanika Chapman, OU law You can email me at [email protected] student Lindsey Pever and legal secretary or call me at 405-488-6823, for more infor- Penny Denton, with Crowe & Dunlevy. mation and volunteer opportunities. When we are stumped on a legal issue, we Don’t forget to register for LASO’s free also have our “phone a friend” attorneys annual seminar for our volunteers and donors who answer my periodic calls for help with a on October 25, 2016. The registration link is legal issue including OBA President Garvin found on our website at www.legalaidok.org. 8 BRIEFCASE • October 2016

SHIPWRECK

By: Special Judge Allen Welch What you may not know about Bradley “Shiprwreck” Wynn is that he is also, as his Bradley “Shipwreck” Wynn is a dep- business card reads, a “Writer, Historian & uty sheriff who serves the Oklahoma Urban Archaeologist ”. County Courthouse. You’ve seen him. You may even know him. But you may not know that he is also, as his business were completed in the late nineteenth card reads, a “Writer, Historian & Urban century. Many of those immigrants moved Archaeologist.” to Oklahoma at or around the time of Shipwreck is a graduate of Western the land run. The center of “Chinatown” Heights High School. He has worked in was near the intersection of Robinson law enforcement for the past twenty-two and Sheridan Avenues, beneath where the years. Outside of being a law enforcement Cox Convention Center now stands. The officer, he has a deep love for history and immigrants were forced, literally and fig- focuses on the history of Oklahoma City. uratively, underground as a result of the He has written two books, Oklahoma City Sinophobia sweeping the land. Film Row and Oklahoma City Midtown. He Those hidden passages were supposedly is currently writing two more, Badge & filled with the euphoric haze of opium Brass: The Untold Story of the Oklahoma dens, the sounds of mah-jongg gambling County Sheriff’s Office, and Oklahoma and everyday workings of an entire, sel- Drive-Ins & Theaters. dom-seen Chinese community. One raid The Oklahoma County Sheriff’s Office of a dark basement beneath 12 South has been working on a project collecting Robinson netted opium and rum valued and recording photographs, documents and at about $10,000, or in today’s currency, artifacts regarding the office’s 126-year about $137,000. old history. Sheriff John Whetsel initiated As is the case with all communities, the idea of researching and recording the most of the activities were not nefarious. past, and named Shipwreck as the Office’s The residents of “Chinatown” operated official historian. Shipwreck’s efforts are a several businesses, including, of course, labor of love. He works on the project in laundries and Chinese restaurants. The his “spare” time. Shipwreck has unearthed Chinese community constructed a two-sto- and preserved hundreds of artifacts and ry library of Chinese literature at 210½ records. A stack of three hundred books W. California Street. All that remains is waiting for him. His work, from his of the Chinese underground today, say “office” on the first floor at the Oklahoma Shipwreck, are “tales, rumors, rare images, County Jail, is made more challenging and the flotsam of old articles and the gossip of demanding because the priceless artifacts, generations.” but for his attention, might otherwise be In June 1909, Sheriff George Washington destroyed as a result of prisoners on the Sheriff’s Deputy, Bradley Wynn Garrison and a two-member posse set out upper floors who vandalize plumbing in to capture Alf Hunter, who had murdered their spare time. His discoveries include Susie Pride, an Oklahoma City woman, the following: the previous month. Garrison told report- ers before he left on his mission that he • Original files, including the handwrit- thought he might get killed. Garrison and ten rap sheet, mug shot and fingerprint his companions located Hunter in a hay- cards from the 1924 case of Theodore field near Watonga. Hunter, hidden behind “Ted” Cole, who later became more a hay bale, exchanged gunfire with the offi- famous for escaping from Alcatraz cers for 45 minutes. Garrison’s two com- in 1937. panions were both shot, one in the neck. Both survived, because Garrison stood • An original Winchester riot shotgun and fired, drawing Hunter’s fire away from manufactured in 1907. the others. Garrison was shot and killed. Hunter escaped. He was captured in Ft. • Hand-written jail ledgers and journals Smith, Arkansas, in September 1909, and in the basement, including records was returned to Watonga. Hunter was con- kept by Sheriff C.H. DeFord, who victed of murder six weeks later, and was took office in June 1890. hung on April 8, 1910. • A photograph of former President and Winchester riotshotgun For years, Garrison’s body laid in an then- presidential candidate Theodore unmarked grave. Shipwreck spearheaded a fund-raising project to finance a proper Roosevelt visiting Oklahoma City in marker. Oklahoma County law enforce- September 1912. ment officers and Garrison’s descendants • A ledger entry reading “Looking up gathered in October 2014, for a memori- stolen cattle - self and posse - six al service and a dedication ceremony in dollars.” honor of Sheriff Garrison. William Faulkner said, “The past is Shipwreck has unearthed so many sto- never dead. It’s not even past.” (Requiem ries he could - well - write a book. (He’s for a Nun, (1951.) Similarly, Shipwreck working on that book, too.) Two exam- says, about his work, “This is our legacy. ples follow. Shipwreck has researched the This is the history we leave behind. This is “Chinese underground,” an entire commu- what our officers today stand on.” nity and miles of tunnels hidden beneath NOTE: This article includes excerpts the streets of Oklahoma City. More than from a December 2015 article in Oklahoma 20,000 Chinese immigrants were sudden- Magazine written by Laurie Goodale and ly unemployed after interstate railroads Headstone Memorial for Sheriff George Washington Garrison entitled “The Road to Badges & Brass.” www.okcbar.org • October 2016 • BRIEFCASE 9

AI from PAGE 1 spending, better still resulting in more Rule 1.1 that lawyers have a duty to keep predictable litigation outcomes and finally abreast of the benefits and risks associated reduce overall liability exposure. with technology.3 Now the Florida Supreme He goes on to state in his blog that indus- Court has approved a rule to go into effect in tries like: 1. Hospitals and doctors “medical 2017 requiring members of the Florida Bar malpractice”, 2. Businesses with a high num- to take mandatory technology CLEs.4 Since ber of occupational claims, 3. Lawyers “legal this is for the October issue, consider that I malpractice” and 4. Assisted care facilities am really only writing this article in honor of are a few of the industries who might use a good Halloween fright. these tools to reduce indemnity spend and After all, consider that we have seen indirectly legal spend.2 So essentially, the humans get into trouble when relying on industries with the most data and similarity AI before: 1. Skynet5, 2. Genisys6, 3. HAL of claims have a better chance of utilizing the 90007, 4. Auto8 5. V.I.K.I9, 6. WOPR10, new technology to reduce their legal expenses. 7. Agent Smith and the Machines11, 8. The My conclusion, we are likely to see the insur- Red Queen12.Trick or Treat? ance industry try this first. After all, these are Michael W. Brewer is an attorney, found- the same people who brought us electronic er, and partner of Hiltgen & Brewer, PC in billing, third party bill audits, alternative fee Oklahoma City, Oklahoma. To contact Mike, arrangements and staff counsel. email [email protected], call (405) 605- I get the part that I am a shelter build- 9000 or tweet him at @attymikeb. For more er and not a windmill builder but this is information, please visit www.hbokc.law. a profession, right? Even the local news reported last week that OKC neighborhoods are complaining about windmill noise. Isn’t there an old saying that goes something like “garbage in equals garbage out”? Are there privacy and ethical issues surrounding the 3. Rule 1.1 comments, ABA Model Rules of Professional Bail Bonds use and sharing of data for DA, PM and AI Conduct Since 1959 to evaluate claims and settlement, sure there 4. In Re: Amendments to Rules Regulating the Florida are. Have all of those been addressed or even Bar 4-1.1 and 6-10.3 (Fla S. Ct. Sept. 29. 2016) thought of, probably not. So we have plenty 5. Terminator films (1984-2009) City, State, of unanswered questions going forward but 6. Terminator Genisys (2015) can we ignore these advancements and their 7. 2001: A Space Odyssey (1968) Nationwide effect on the legal practice and profession? 8. Wall-E (2000) Do so at your own peril. As we all know 9. I, Robot (2004) 10. War Games (1983) 405-528-8000 the ABA in 2012 added to the comments of 1221 N. Classen Blvd. 11. The Matrix Trilogy (1999-2003) Danny Askins 2. Id. 12. Resident Evil (2002) & J.B. Askins OKC 10 BRIEFCASE • October 2016

2016 Annual Dinner Dance Highlights

President-Elect David Cheek, Past President Angela Ailles Bahm & President Barbara Swinton Melanie & Pat Hall with Sheila & Preston Stinson

YLD Outgoing Chair Thomas Curtis & Incoming Chair Merideth Herald Amber Martin, Leah & Bob Jackson

Lou & Burton Johnson Echols & Associates

Don & G . Kay Powers Charlie & Barbara Swinton

Doneen Jones, Judge Bryan & Margaret Dixon Angela & Mark Bahm www.okcbar.org • October 2016 • BRIEFCASE 11 12 BRIEFCASE • October 2016 Bar Observer

Meyer Leonard & Edinger PLLC services the WRC provides those impacted by Sam M. Walton College of Business at the A University of Oklahoma student in excel- has moved” domestic and sexual violence. University of Arkansas. While in law school, lent academic standing, Rear works for a local Events: he was a member of the Arkansas Law Review law firm handling filings at the Oklahoma Meyer, Leonard & Edinger PLLC recent- • The week of Monday, October 31 through and served on the executive committee of the Corporation Commission and at various ly moved its offices to 100 Park Avenue, Friday, November 4th Evans Theaters Student Bar Association. courthouses around the metro area, in addition Suite 500, in Oklahoma City. Henry “Hank” (1300 N. Interstate Drive) will host the Ed Samuel Merchant is a trial lawyer whose to other duties. She has experience working in Meyer, III, Ryan Leonard, Robert Edinger Harris Film Festival. The weeklong fes- practice focuses on business and commer- law offices in varying capacities since 2012. and Jason Reese have been joined by Christa tival features five films personally select- cial litigation before state and federal courts, She plans to graduate with a legal assistant Sullivan and Elaine DeGiusti. Travis ed by Ed. The films highlight his range arbitrations and administrative proceedings. certificate in December 2016. Pickens is “Of Counsel” to the firm. Practice and versatility as an actor and director: A portion of his practice is devoted to exclu- The Crowe & Dunlevy Foundation estab- areas include complex business litigation, Appaloosa, Frontera, Touching Home, sively representing management in labor and lished this annual scholarship in 2013 to assist receivership law, energy and environmental The Hours, and Pollock. Show times and employment matters. a University of Oklahoma Law Center student litigation, employment disputes, insurance tickets to individual films will be available Merchant graduated with honors from the enrolled in the Legal Assistant Education pro- law, professional ethics, and corporate trans- through the Evans Theatres website: http:// University of Oklahoma College of Law in gram in his/her pursuit of a career in the legal actions. www.mleattorneys.com www.evanstheatres.com/ . 2016 and received his bachelor’s degree from field in honor of longtime Crowe & Dunlevy the University of Central Oklahoma in 2013. paralegal B. Jo Balding. After serving the firm Three Crowe & Dunlevy attorneys • The film festival will culminate in a spe- While in law school he served as president of for more than 50 years with professionalism honored by Benchmark Litigation cial showing of Pollock on Friday Novem- the Student Bar Association, assistant manag- and dedication, Balding retired in spring 2016. ber 4th at 7p.m. Following the screening, Three Crowe & Dunlevy attorneys were ing editor of the Oklahoma Law Review, and Scholarship applicants must be enrolled in Ed Harris will personally host a question recently honored by industry guidebook vice president of the OU Law Chapter of the the Legal Assistant Education Program at the and answer session with audience mem- Benchmark Litigation as being among the Federal Bar Association. He also served as a University of Oklahoma Law Center and be bers. Tickets for this special event are $40 best in their field of law. judicial intern for The Honorable Robert E. in academic good standing with at least an 8.1 and also can be purchased at http://www. Judy Hamilton Morse, a director in the Bacharach of the U.S. Court of Appeals for grade point average in legal specialty courses evanstheatres.com/ . firm’s Oklahoma City office and chair of the the Tenth Circuit. at application submission. Litigation & Trial Practice Group, was named • On Saturday, November 5th at 7p.m. the Phillips Murrah welcomes Benchmark Litigation names Hunsinger to one of the Top 250 Women in Litigation. This Women’s Resource Center will host “An two new attorneys “Under 40 Hot List” of trial lawyers is the fifth year Benchmark Litigation has Evening with Ed Harris” at the Sam Noble released the nationwide list, which involves Museum. The evening will feature cater- Phillips Murrah is proud to welcome Hilary Rodney K. Hunsinger, II, a trial law- an extensive, six-month research process, ing by Benvenuti’s and remarks by Ed A. Hudson and Kendra M. Norman to our yer and shareholder with the law firm of including client feedback surveys and individ- Harris along with an overview of the work Firm. McAfee & Taft, has been named by the edi- ual interviews. She is one of two attorneys in of the WRC. Event sponsors include: Phillips Murrah welcomed Hudson to the tors of Benchmark Litigation to its inaugural Oklahoma to make the list. Evans Theatres, OMS Technologies, Firm’s Litigation Practice Group as an asso- “Under 40 Hot List” of the nation’s most Benchmark Litigation has recognized Women’s Healthcare of Norman, Barry ciate attorney. Hudson represents individuals notable up-and-coming litigators. Honorees Crowe & Dunlevy directors Andre’ B. Hurley, Realtor, Tammy Conover, artist, and both privately-held and public companies were selected based on a multi-phase research Caldwell and Evan G.E. Vincent on its Crimson and Cream, LifeSpring In-Home in a wide range of civil litigation matters. process consisting of client feedback, peer Under 40 Hot List, a new accolade that honors Care Network and Cleveland Country Norman has joined Phillips Murrah’s review, and an analysis of recent case work. the achievements of the nation’s most accom- Lifestyle. Table sponsorships ($1000) are Transactional Practice Group as an associ- Hunsinger’s state and federal litigation and plished legal partners 40 years old or younger. still available and individual tickets ($100) ate attorney. She represents individuals and arbitration practice includes the representation The list was determined through a process can be purchased online at http://wrcnor- businesses in a broad range of transactional of clients in individual and class action law- of peer review and case examination. Four manok.org/ed-harris-dinner-event/ . matters. suits involving products and consumer sales, Oklahoma attorneys are listed. Norman and Hudson are recent graduates banking and finance, product liability, - com An experienced trial lawyer, Morse focus- More information about the services the of the University of Oklahoma School of Law. mercial real estate and landlord-tenant dis- es on litigation and trial practice, as well as WRC provides those impacted by domestic putes, consumer finance, consumer litigation, bankruptcy and creditor’s rights. She has and sexual violence can be found on their Fellers Snider Welcomes Jared R. Ford oilfield services, insurance disputes, personal represented both plaintiffs and defendants in website at: http://wrcnormanok.org/ injury, automobile dealership law and regu- a number of business litigation matters in var- The law firm of Fellers Snider welcomes lation, and other business litigation matters. ious industries including securities, financial Mark Hayes Jr., Matthew Holman Jared R. Ford to its transactional practice. He has concentrated experience in the defense services, lending, consumer credit, franchis- and Sam Merchant join Oklahoma’s Jared joins Fellers Snider after practicing at of state and federal consumer claims, con- ing, real estate and energy. Morse was named largest law firm two leading oil and gas firms in the Southwest sumer arbitration, automobile dealership and one of the Top 150 Women in Litigation by where he garnered extensive experience in financing defense and regulatory compliance, McAfee & Taft has announced the addi- Benchmark Plaintiff in 2013. real estate and business law with an emphasis commercial real estate and landlord-tenant tion of law school honors graduates Mark A. Caldwell is a member of the Criminal on oil and gas title examination. disputes, and wrongful death and serious Hayes Jr., Matthew J. Holman, and Samuel J. Defense, Compliance & Investigations and Jared graduated from the University of injury claims. Merchant as new associates. Litigation & Trial Practice Groups. He rep- Oklahoma College of Law, where he served Hunsinger is a 2003 honors graduate of Mark Hayes Jr. is a trial lawyer whose resents private and public companies of var- as an Articles Editor for the Oklahoma Law the University of Oklahoma College of Law civil litigation practice involves the resolution ious sizes in all aspects of commercial litiga- Review as well as President of the Volunteer and a member of the Defense Research of a broad range of complex commercial tion, preparing criminal compliance guide- Income Tax Association, was a member of Institute, Oklahoma County Bar Association, and business disputes in both state and fed- lines and conducting corporate criminal risk Phi Delta Phi legal fraternity, and was award- Oklahoma Bar Association, Federal Bar eral courts and in arbitration proceedings. A assessments. He also represents individuals ed two American Jurisprudence Awards in Association, National Association of Dealer portion of his practice is devoted to environ- charged with state and federal law violations. Mineral Title Examination and Advanced Counsel, and Oklahoma Society of Certified mental law and litigation. Hayes graduated The National Black Lawyers listed Caldwell Persuasive Writing. He received a B.A. in Public Accountant. He currently serves on with honors from the University of Oklahoma on its 2016 Top 40 Under 40 list. Religious Studies from the University of the board of trustees of the Oklahoma Bar School of Law in 2016 and earned his bache- Vincent focuses his practice on litigation of North Carolina at Chapel Hill and, later, went Foundation. lor’s degree from Princeton University. While complex and challenging legal matters at both on to receive a M.A. in the same subject from in law school, Hays served as assistant articles the trial and appellate levels and represents the University of Virginia, while studying Baer & Timberlake, P.C. Announces New editor for the Oklahoma Law Review and as clients that do business in a wide variety of under a Presidential Fellowship. Associate a judicial intern for The Honorable John E. industries. He has served as lead counsel for Jared will be based out of the Fellers Snider Dowdell of the U.S. District Court for the The firm of Baer & Timberlake, P.C. is jury and arbitration trials and in both state Oklahoma City office, where his practice will Northern District of Oklahoma. pleased to announce that Kim Jenkins has and federal court appeals. He has achieved focus on corporate, commercial and real estate Matthew Holman is a transactional lawyer joined the firm as its newest associate in the an AV peer review rating from LexisNexis law. He is licensed to practice in New Mexico whose practice encompasses a broad range of Oklahoma City office. Ms. Jenkins graduated Martindale-Hubbell and been named a Rising and Oklahoma. corporate and business matters. A portion of in May of 2016 Magna Cum Laude from Star by Oklahoma Super Lawyers from 2012 his practice is devoted to representing energy Oklahoma City University. to 2015. Crowe & Dunlevy awards University of and oil and gas companies in a broad range of Oklahoma paralegal student with $1,000 Ms. Jenkins is a member of the William Women’s Resource Center Announces transactional matters, including asset sales and scholarship J. Holloway Inn of Court. While at Events with Ed Harris acquisitions, joint operating agreements, oil Oklahoma City University she was the recip- and gas leases, and other contracts.. Crowe & Dunlevy recently presented ient of the 2015 Oklahoma Bar Association Acclaimed Actor/Director Ed Harris is Holman graduated magna cum laude from Kortney Rear with the annual $1,000 B. Jo Bankruptcy Section Aware, the 2016 OBA returning to Norman to host a number of the University of Arkansas School of Law Balding Scholarship for Students in the Legal Business/Corporate law Section Award and events in support of the Women’s Resource in 2016 and earned his bachelor of business Assistant Education Program at the University CALI Awards in Criminal Law, Consumer Center (WRC). All proceeds go to support the administration degree in finance from the of Oklahoma Law Center. Bankruptcy and Family Law. www.okcbar.org • October 2016 • BRIEFCASE 13 Stump Roscoe

By Roscoe X. Pound

Dear Roscoe: Get this. My client gets pulled over on a speeding charge. Admittedly, he didn’t come to an immediate stop when the officer flashed his lights. Anyway, the cop handcuffs him and has him stand in front of his scout car. My client gives the OK to search the car. While the policeman’s doing that, client manages to get his hand inside a back pocket and flip out a packet of weed. Cop sees him do it, rummages around in the grass ’til he finds it, and charges him with obstruction of jus- tice. I’ve looked at the statute and it looks a bit murky. Can they really make that stick? H.F., Del City, OK. Dear H.F.: My best guess is that, if he did it while standing in front of the police car he did it in front of the dash camera as well. This proves yet again that the crimi- nal masterminds one runs into are few and far between. Murky is the word for obstruction of justice. As far as making it stick, yeah they probably can. After all, they made it stick on Martha Stewart. If you recall, she went not compatible with the plaintiff’s dece- ed between France, whose penal system mayor. I half-expected him to give out up on the obstruction charge as opposed to dent and, therefore, of no value to him. is both reasonably secure and certainly no cigars. Instead, he selected a bagel, care- the crime for which she was under inves- That’s not to say that there’s no potential day on the Riviera, and Pakistan, where fully spread some strawberry cream cheese tigation to begin with. Likewise, Kenneth grist for the judicial mill. The Uniform we could fairly guarantee a death sentence. atop it, poured himself a coffee, and took a Starr attempted to apply the obstruction Anatomical Gift Act provides “The rights Two in the room held out for Jersey, where seat. Thus settled in, he flashed me a broad statutes very broadly in his investigation of of the donee created by the gift are para- he killed both police officers and civilians. grin and, bagel slice in hand, gestured me former President Clinton. Mr. Starr argued mount to the rights of others …” Oh, and the near death experience of Ernie to continue. that Mr. Clinton committed obstruction of Given that the UAGA’s policy favor- Trani, as well, but I thought it impolitic to “Ladies and gentlemen,” I said, “meet justice by denying to friends and subor- ing both donation and a bank of trans- bring that one up at the moment. Ismail Kaleka, our quarry’s brother.” dinates that he engaged in intimate con- plant-ready organs, providing the donee “Don’t even bother,” a condescending Somewhat disappointingly, Ismail did tact with Monica Lewinsky. According with a cause of action may serve an City cop said. “I understand where you’re not stand and bow. to Starr, this constituted “misleading con- especially important function: ensuring coming from, Captain, but this is a matter “Mr. Kaleka has graciously agreed to duct” obstruction because Mr. Clinton the transplantation takes place. In the last of international importance. The State of assist us in our hunt for his brother, who, expected that his denials would be repeat- study I know of, five percent of Americans New York itself waives its right to try he assures me, has sequestered himself ed to the grand jury that was investigating claim they would be unlikely to donate a him here in favor of getting him out of somewhere up in The Bronx.” the relationship. Same reasoning applies to deceased family member’s organs, even the country and in the ground somewhere “And he knows this because…?” the Marathon Bomber’s buddies who con- if that family member had explicitly else. Apparently, the Feds feel the same prompted a Fed. cealed evidence. In federal cases, obstruc- expressed the wish to donate. This statis- way.” Some guy from Main Justice nodded “We hold certain enterprises in com- tion is both a felony and an enhancer. tic suggests that a substantial number of sagely. mon,” said Ismail. “They require a modi- Oklahoma’s charge of obstructing an people would not seek to enforce their “He hasn’t killed anyone in New York cum of communication between us.” officer defines the crime as “willfully that we know of,” Joe fired back. family member’s donation preference if it “What kind of enterprises?” an NYPD delaying or obstructing any public offi- “Besides” I said, “Jersey has a death contradicted their own preferences. This detective asked. cer in the discharge or attempt to dis- penalty.” seems particularly true in light of the fact “The kind one does not speak of except charge any duty of his office.” Thus, under ”Barely,” observed an Interpol gal who that legal enforcement poses high litiga- at appropriate times or places.” Oklahoma law, to be guilty of obstruction, tion costs. Especially when the donor’s seemed to lead the Pakistani cheering sec- a defendant must (1) willfully; (2) delay/ “You could be as bad as he is.” family members do not approve of the tion. “When was the last time you used it?” obstruct; (3) a public officer; (4) known “Could be, but I’m not. For instance, donor’s wishes, “hospitals and doctors.., “It isn’t gonna be Jersey,” the head by the defendant to be a public officer; (5) I can assure you all I have never killed often fail to honor a deceased’s directions FeeBee said. “Two votes out of 11, the in the discharge of any duty of his office. anyone.” to donate. ‘’ In these cases, a donee’s cause motion fails to pass. Get over it!” Okla. Uniform Jury Instructions, Crim.2d, “So you say.” of action could prove necessary for effec- “But I have a weighted preference,” I § 6–48 (2012). While Oklahoma doesn’t Ismail shrugged. tively enforcing the donor’s wishes. said. have the developed appellate jurispru- The room went silent, unless sneers “And why exactly would you help us?” dence that the Feds and other states may *** count. “OK, Pound, I’ll bite,” an AUSA a lady from DOJ asked. have, it has nonetheless held that lying I sat at a table surrounded by Big Cheeses said. “Why?” “Two reasons. The first is called, I to an officer may suffice for a conviction. of law enforcement agencies, great and “Because you can’t send him anywhere believe, transactional immunity for activ- Marsh v. State, 1988 OK CR 206, 761 small. Some folks from Interpol gave me unless you have him to send,” I answered. ities up to this point in time. As a bit of P.2d 915. deference on the strength of legends of “And that’s where I come in.” gravy for you, you will find the infor- Dear Roscoe: Can the identified donor services previously rendered. The FBI “You don’t got him,” said a portly, mation useful as to other crime fighting of a directed organ donation sue for conver- provided grudging courtesy and attention uniformed NYPD guy with a rainbow of adventures. I shall discuss these once our sion if the donor’s family refuses to honor like kids ordered by their parents to respect commendatory fruit salad on his chest. little entente is formalized.” the donation? S.J., OKC, OK a somewhat odd uncle. NYPD seemed “True,” I replied. “I don’t got him, but I “And the other?” asked the ranking Dear S.J.: What a mess. I’m tempted unsure of why the hell I was there in the can get you closer than anyone else.” AUSA in the room. to ask if this is an actual or hypothetical first place. Secaucus’ own Joe Innocente “Well, we’re waiting,” the Assistant “Mr. Pound has agreed to renege on a question. tolerating another simply because I was Chief of Whatever groused. promise he made to my father.” Looked at strictly from a legal perspec- his ride. “Would you call the gentleman out in the Their eyes fell on me like sandbags fall- tive, it depends. At common law, there was We debated Enver Kaleka as orderly as waiting room, please?” I asked. ing off the Chrysler Building. no ownership interest in a dead body. In a the Vice-Presidential Debate, only a little Ismail Kaleka entered the room wearing “In short,” I said, “I won’t kill him.” case called Colavito v. New York Organ less courteously. The topic shifted to who two thirds of a three piece suit over a cus- It took a bit of time for us to get back Donor Network, Inc., 486 F.3d 78 (2nd Cir. got to try him first. Out of all the countries tom-tailored shirt and tie. He moved down to the business of catching Enver. “First 2007), the court dodged the bullet based on which had placed a price on his head, the the length of the table, amiably shaking of all,” I said, “this is a job for The Sting a finding that the kidney in question was majority in the room seemed evenly divid- everyone’s hand as if he were running for Ray.” 14 BRIEFCASE • October 2016

OLIO from PAGE 5 Constitution of the United States. legislatively repealed. The present statute “intentional infliction of emotional We are of the opinion and therefore is 76 O.S. 1981 § 8.1 . distress”, sometimes also known as the such migratory wild fowl; pro- hold, that the legislature of the State “From and after the effective tort of “outrage.” . . . We examined vided, the hunting regulations of Oklahoma, by enacting 29 O.S. § its ingredients in Breeden v. League pertaining to wild duck, wild date of this act, the alienation 301, did not intend to incorporate by of the affections of a spouse Services Corp., 575 P.2d 1374 (Okla. geese, brant, and all other birds reference any of the provisions of a treaty 1978), where we quoted with approval protected by the laws and other of sound mind and legal age entered into between the United States of or seduction of any person from the Restatement of Torts, Second, regulations of Congress shall America and the United Mexican States. Section 46, and Commented thereto: be the same as fixed annually of sound mind and legal age This is not to say that the legislature in is hereby abolished as a civil “. . . Liability [in such cases] by the Federal Department in its wisdom may not enact a penal statute control of migratory wild fowl. cause of action in this state.” has been found only where the prohibiting the shooting of a Franklin conduct has been so outrageous Gull; however, such a legislative Plaintiff argues that her use of the (b) Anyone violating any of phrase “alienate the affection of” in in character, and so extreme the provisions of this Section enactment must meet the constitutional in degree, as to go beyond all requirement that its mandates are so her petition was “inadvertent”, and she shall be guilty of a misdemean- would strike those words if her suit is possible bounds of decency, or and upon conviction thereof clearly expressed that any ordinary and to be regarded as atrocious, person can determine in advance what allowed to proceed. It should proceed, shall be fined not less than she tells us, because it is a suit based and utterly intolerable in a civi- Twenty-five Dollars ($25.00), he may and what he may not do under it. lized community.” * * * upon the tort recognized in Oklahoma nor more than One Hundred as intentional infliction of emotional We also concluded that it is for the Dollars ($100.00).” While ignorance of the law is no excuse, our fundamental concept of due distress. court in the first instance to determine It is the position of Respondent, as process does not require a citizen to Defendant points out that Plaintiff is whether the defendant’s conduct may stated in his brief, that: “Section 301(a), employ counsel to research the statutes not the first litigant to plead a different reasonably be regarded as so extreme Title 29, O.S. provides that it shall be of Oklahoma, the laws of Congress, theory in an attempt to circumvent the and outrageous as to permit the matter unlawful to hunt for, capture or kill any and the treaties of the United States, legislatively-repealed cause of action. to go before a jury. species of migratory waterfowl, such as and construe them together, in order In Lynn v. Shaw, 620 P.2d 899 (Okla. Regardless of what the plaintiff calls ducks, geese or brant or other migratory to determine whether he may lawfully 1980), the plaintiff, whose husband her cause of action, she has sued the birds except as provided in the laws of engage in sporting activities. had allegedly been “stolen” by another defendant for wilfully taking away Congress relating to the killing of such [Ed. Note: As we all know, the brant is woman, carefully framed a cause of action her husband. It could have been called migratory wild fowl; . . . [and] that the a small goose with a short, stubby bill. in “criminal conversation,” a similar “alienation of affections”; it could have statute means exactly what it says, that The under-tail is pure white, and the tail but distinct tort. Criminal conversation, been called “seduction”; it could have is, it is unlawful to kill ducks, geese or itself black and very short.] we observed, is simply “adultery in been called “criminal conversation.” But brant or other migratory birds except the aspect of a tort.” We analyzed its all civil law suits under those theories as Congress shall provide. A gull is a October 29, 1991 elements as compared to those of the have now been prohibited. Can she migratory bird, as shown in the trea- Twenty-Five Years Ago repealed “alienation of affections” proceed on the theory of “outrage?” The ties between the United States and the [Excerpted from Wilson v. Still, 1991 and “seduction”, and concluded they law as expressed in Breeden and adopted United Mexican States. Therefore, it OK 108, 819 P.2d 714.] were “so intertwined as to encompass from the Restatement of Tort tells us comes clearly within the statute.” In 1976 the Legislature abolished the one another.” Thus the tort of criminal she cannot. The plaintiff is asking us to We believe the position adopted by civil causes of action for “alienation conversation was held to have been allow a jury to find certain conduct so the State is untenable, for to support of affections” and “seduction”. Plaintiff impliedly repealed by the above statute. outrageous as to be “regarded as atrocious its position we must assume that the brings this action, claiming to be Plaintiff invokes our language in and utterly intolerable in a civilized legislature, by enacting 29 O.S. § 301, aggrieved by her former husband’s Frazier v. Bryan Memorial Hospital community,” when the legislative body intended to incorporate by reference not leaving her for another woman. The Authority, 775 P.2d 281, 287 (Okla. freely elected from the same community only the laws of Congress, but we must defendant is the other woman. Plaintiff 1989) on dismissals for failure to state has expressly and deliberately, within also imply that the legislature intended claims her suit should go forward as one a claim: our own generation, removed the acts to incorporate by reference treaties for “intentional infliction of emotional “A pleading must not be complained of from those bearing civil entered into between the United States distress”. Defendant asks that the case dismissed for failure to state a liability in tort. We cannot accommodate and foreign powers. The fallacy of such be dismissed as not authorized under legally cognizable claim unless the plaintiff without doing grave insult reasoning becomes readily apparent present law. We must agree with the the allegations indicate beyond to our legislators and those who elected from even the most cursory examination defendant. any doubt that the litigant can them. This we will not do. of Article 1, Section 1, and Article 2, Plaintiff filed this case pro se while prove no set of facts which Title 76 O.S. 1981 §8.1 forbids the Section 2, of the Constitution of the also litigating her divorce in the District would entitle him to relief.” plaintiff from recovering damages for United States. Article 1, Section 1, of the acts of which she complains in her court in 1989. Her petition alleged We agree that it is against this standard the Constitution of the United States that “the defendant has been guilty of petition, even though she chooses to provides: that Plaintiff’s efforts in pleading a give the suit a name not used in the willful acts to alienate the affections of differently entitled tort must be measured. “All legislative Powers here- James L. Wilson from plaintiff despite statute. The Legislature has effectively The tort she has elected to proceed immunized that conduct from civil in granted shall be vested in a her knowledge that he was married to under is known in Oklahoma as Congress of the United States, plaintiff and knowingly inflicted severe liability in tort. which shall consist of a Senate emotional distress and damage upon and House of Representatives.” plaintiff.” Plaintiff sought actual and punitive Article 2, Section 2, of the Constitution damages. of the United States, provides, in part: Defendant moved to dismiss on the “He [the President] shall have grounds that the tort of alienation of Power, by and with the Advice affections has been abolished. The trial and Consent of the Senate, to court sustained the Motion to Dismiss, make Treaties, provided two and plaintiff appealed. The Court of thirds of the Senators present Appeals, in an unpublished split concur ** *” decision, reversed and permitted the It is thus readily apparent that the treaty suit to proceed as one for intentional entered into between the United States of infliction of emotional distress. Whether America and the United Mexican States, such a suit may proceed to a jury has was not a law of Congress, but rather not been considered by this court, and the act of the President of the United we have granted defendant’s petition for States with the concurrence of at least certiorari in order to review the question. two thirds of the members of the United * * * States Senate as authorized under the All agree that the civil action for provisions of Article 2, Section 2 of the alienation of affections has been www.okcbar.org • October 2016 • BRIEFCASE 15 The Effect....Three Decades Later…of Adolescent Fitness.

By Warren E. Jones

If you have a son or brother or nephew or grandnephew or grandson who is a late adolescent, tell him about this study. And, by the way, even though the study I will describe involves only young men, I strongly suspect the findings would be identical or very similar among young women. Over years and years,1.3 million Swedish military draftees were mea- sured for fitness at an average age of 18, as described in a recent issue of the International Journal of Epidemiology. They were followed for almost 3 decades. Some of them died. Not from war, but from natural causes or trauma or drug abuse or alcohol abuse. The research scientists wanted to know what would be the impact, if any, of the conscripts’ fitness level at age 18 on an early demise. It turns out that those least fit were much more likely (twice as likely, actually) to die prematurely than the most fit. The odds of an early demise among the least fit was greatest not, as you might expect, from heart disease or strokes or cancer, but from drug abuse and alcohol abuse and suicide. The early of death than normal weight men less fit. I’ll review it, and I’ll pass along to you Strength and Conditioning Specialist death among the least fit was of course The research scientists did not spec- what I hope to be helpful information. and a holder of an ACSM Certificate much higher for natural causes, too, but ulate as to the connection between low Warren E. Jones, J.D., HFS, CSCS, of Enhanced Qualification. His clients not nearly as much as with the abuse adolescent aerobic fitness and early CEQ, is an American College of Sports range from competitive athletes to the deaths and suicides. death associated with alcohol, narcotics, Medicine 9ACSM) Health Fitness morbidly obese. He can be reached at The risks of an early demise from any and suicide. Nor will I. I do not believe, Specialist, a National Strength and [email protected] or at 405-812- cause, whether “natural” or not, was though, that it is coincidental. But it Conditioning Association Certified 7612 “graded.” That is, at ever increasing lev- speaks to the wisdom of achieving, at els of fitness at, again, only 18 years old, a young age, aerobic fitness, whether came ever decreasing odds of premature The research scientists wanted to know what would be the impact, if any, of the conscripts’ fitness level at age 18 on an early demise. It turns out that those least fit were much more likely (twice as likely, actually) to die prematurely than the most fit. death from any cause. normal weight or overweight. And it And with one exception, the protective certainly speaks to the wisdom of main- effect of adolescent fitness held even at taining, at a relatively young age, nor- higher body weights. The protection was mal body weight....or mere overweight less than among normal weight young (not obese)....along with high levels of men, but it was higher again based on fitness. ever increasing levels of fitness com- Switching gears, the newest issue of pared to heavier counterparts. the journal, Sports Medicine, contains a The one exception? No surprise: obese study describing methods to overcome 18 year olds. Obese 18-year-old men the axiom that performing aerobic exer- even at the highest levels of aerobic fit- cise within the same training program ness enjoyed no protective effects from (same exercise session or, at least, the that level of fitness. Actually, normal same day) resistance exercise (called weight men in all levels of aerobic fit- concurrent exercise training) interferes ness, even the lowest, had lower odds with the beneficial muscle adaptation of early death compared with obese (hypertrophy: muscle growth) associated individuals even in the highest quarter of with resistance training. Only today was aerobic fitness. I able to download the abstract (the sum- And consistent with that notion, I’m mary) of the study. As I type this, I am sure you will understand that normal out of town and don’t have access to the weight men aerobically fit had lower risk online full study. I’ll get my hands on it, 16 BRIEFCASE • October 2016 No, Marcellus, that is not Denmark OCU and the July Bar Exam Observations and Opinion of the poor showing on this year’s bar native to that conclusion: that were it not ment of the American Bar Association by James B. Croy exam. Thus, the problem must lie some- for these courses more than one in three Accreditation Standards Committee that where in the legal education process at OCU graduates would fail the bar exam the standards for bar passage rate for The July Oklahoma bar examination the school itself. That is, the same level on the first try. That defies belief. ABA-accredited law schools have been results were announced in September, and of student previously enjoyed a higher A strictly structured bar preparation significantly tightened. The current stan- again the pass rate was abysmal for the pass rate than that level of student does course could be of benefit to the graduat- dard is that within five years 75% of an graduates of Oklahoma City University. recently. ing student. It would necessarily be limit- accredited school’s first-time exam takers While the pass rate was below expecta- This brings forth several questions: ed to the best method of approaching the must pass. The new standard adopted by tions for the other two law schools–at Has the curriculum changed in the past two parts of the bar exam. Its methodology the committee is that within two years 82% for OU and 71% for TU–the OCU few years? For instance, has the school would be to demonstrate how the examin- 75% of the graduating class must pass a success rate of 61% almost defies com- changed the status of certain courses ee should approach the generic essay or bar examination. prehension. That figure represents the from mandatory to elective? One can multiple choice question, as opposed to Somewhere above I referenced ‘teach- percent of total applicants passing the imagine the “lost at sea” feeling an bar and includes repeat takers. However, trying to teach the student the finer points ing to the test.’ That might seem harsh examinee might feel when confronted of torts or property law. The time for such to some, but law school is a professional even when the repeat takers are removed with a criminal procedure essay question from the equation, the OCU pass rate is instruction has long since passed. The trade school. Its goal is not to vest the after skipping criminal procedure in law administration of the law school should student with a broad liberal arts educa- still only 67%. This is very poor when school because it was no longer required. compared with the first-time pass rate keep in mind that every hour the grad- tion. It is not to endow the student with As it happens, this is not a hypothetical uate spends in the post-graduation bar the urgent need to ponder questions of for OU graduates, which is 85%, and TU example, and one might suggest that preparation course is an hour which he or philosophy. It is not to give the student graduates, which is 82%. OCU compare the test results for those she could otherwise spend going over the the basic principles of electrical engi- Just as Marcellus found something not passing the examination with recent written bar preparation materials. neering so that he can be further tutored rotten in Denmark, one cannot escape the changes in the curriculum. The final assumption is that the admin- at GE. No, its only purpose is to give the conclusion that something is very wrong This brings forth the assumption that istration and faculty of the OCU law student the tools with which he or she can at OCU. Students at OCU pay out rough- the law school administration either is school are seriously attempting to ascer- successfully pass the state bar examina- ly $110,000 in tuition alone and go into or can be privy to the gross test results. tain the source of the school’s recent tion. And if the graduating student does debt for many tens of thousands of dol- Statistics of the test results are available failure to properly prepare its graduating not have a very high expectation of suc- lars beyond that with one goal in mind: to to some entities and it would seem that student for the state bar examination. ceeding at the bar examination, then the pass the bar examination after they have there is an overwhelming need for OCU One hopes that the results of this self-ex- school has failed in its mission. graduated. There is only one measure of to have access to those results to see amination will be announced to the legal (Croy is a 1980 graduate of the a student’s success in studying the law, where it is failing its students. In the and that is the bar examination. As we all unlikely event that the school is not able community of Oklahoma. Oklahoma City University School of Law. know, in order to practice law, one has to to obtain the results for the essay portion One impetus to a serious self-exam- He was successful at the July bar exam join the club. Thus, not only is the suc- of the test on a question-by-question basis ination should be the recent announce- that year.) cess of the law student measured by the from any other source, those students who bar exam, the success of the law school did not pass the bar will be eager to share is measured by the same standard. When that information with the faculty of the one out of every three graduates fails to law school. It would then be incumbent achieve success the first time they take on the school to compare the test results the bar, the onus must fall on the school. with the curriculum to verify that the This brings us to the first of several school is indeed teaching to the test. assumptions: The law school and the However, if the school then determines student should each expect that, upon OCTOBER 27, 2016 that the problem does not lie with the OCBA Delegate Caucus for OBA House of Delegates graduation, the student will pass the bar curriculum, and the quality of the enter- examination. Of course, there are the out- ing student has already been eliminated, 4:30 p.m. liers–people who do not test well–people the possible source of the problem then who do no preparation for the bar–people becomes very uncomfortable, indeed. For NOVEMBER 2-4, 2016 who freeze up and “blow” the test. And then one must start looking at the aura OBA Annual Meeting those unfortunates are with us at each bar of the school itself and the instruction examination. Let us generously set that which the students are receiving. This OKC Sheraton Hotel number at 10% of the test takers. And, must be a cause of deep introspection of course, there can be problems with within the halls of the new law school. NOVEMBER 11, 2016 the test itself, which might account for One part of that introspection must be an Holiday – Bar Office Closed OU and TU graduates passing the bar at examination of the grading regimen at a lower rate than in the past. But, in gen- OCU and whether that system has been eral, the law school has but one function: NOVEMBER 24 & 25, 2016 made easier in recent years. One might Holidays – Bar Office Closed to prepare the student for passing the posit that a law school does its students examination so that he or she can practice no favors by making it easier to graduate DECEMBER 1, 2016 law. Whether it is the A student or the C if that reduces the graduates’ possibility student, that student, upon graduation, of passing the bar. OCBA Holiday Reception should pass the bar. There now exists at OCU a bar prepa- 5-7 p.m., Robinson Renaissance FoodCourt In looking for the source of the prob- ration course during the students’ final lems at OCU, one might start with the year. For those in the lower half of the FEBRUARY 24-28, 2017 entrance requirements. That is, one might graduating class, the course is mandatory question whether the admission standards both semesters. For those in the upper Annual Ski Trip Seminar at OCU were slackened in 2012 or 2013. half, it is mandatory only in the second Santa Fe, New Mexico Last year, with the disastrous July 2015 semester. Also, there is an additional bar bar results for OCU, the school admin- preparation class for graduates, offered istration was adamant that the admission MAY 1, 2017 between graduation and the bar exam- Law Day Luncheon standards had not been lowered. This ination itself. One cannot escape the leads us to the second assumption: that conclusion that these efforts are, at best, 12 Noon, Skirvin Hotel the admission standards are not the cause failures. Consider for a moment the alter- www.okcbar.org • October 2016 • BRIEFCASE 17 Veteran Lawyers Judge Kevin McCray interviews Chris Kannady

Q. There is a scene in Saving Private lation authorizing these apportionments Ryan, as they are first setting out on their is warranted. Beyond placing caps on mission, where Corporal Upham reveals amounts going to certain agencies or he is writing a book about the bond of categories, what can be done to change brotherhood that develops between sol- the process to allow more flexibility in diers who serve together during wartime. tapping the revenue collected? You were deployed four times to Iraq A. The Legislature disburses less than and Afghanistan. If you were to write a half of our budget. We have to get a han- book about that experience, what would dle on off the top apportionments and it say about the lasting bonds you devel- tax credits, which collectively make up oped? over $3 billion. A. You can have lifelong best friends, but the bond you have in a combat zone Q. Some argue that our legislative term is unique. You eat, sleep, fear for your limits cause a brain drain, creating a loss life and miss your family, all together. of institutional knowledge regarding the I lost my father to a car accident while complicated process of developing a deployed within a week from another state budget and making it more difficult Navy Officer losing his father to brain to substantively address the structural cancer. The deployment brought us changes needed. Do you believe that close, but that situation brought us even term limits has contributed to the diffi- closer. culties in managing the budget process, and if so, would you be in favor of doing Q. I believe the public, since the Iraq away with legislative term limits for that war, has a better understanding of the reason? sacrifices a soldier has to endure partic- A. I think the jury is still out on whether ularly during extended deployments, and or not term limits have made that big of the impact that has on our military fam- an impact. The average time someone ilies and our country as a whole. What serves has decreased minimally since was the hardest thing to cope with while term limits came into effect. I think we you were gone, and were there any diffi- need to at least look at extending term culties adjusting upon your return? limits now that we have some data. A. Coping with the hole in your heart Regardless, if you get elected to office, due to the absence of your family is you must take it seriously and put forth overwhelming, but as each day pass- the effort to learn and make a difference. es you stay busy and learn to endure. REP. CHRIS KANNADY If not, the electorate has a choice to find Adjustment itself is difficult. Your fam- DISTRICT 91 someone who will. ily has continued their lives while you are away. Upon your return, there is fric- Q. Every year I wonder how much A. The Task Force is still being formu- solid proposal was presented, I would no tion, because we all have our routines money the state will spend defending lated, but the intent is to find a way to doubt help to champion that cause. and anyone returning from a deployment unconstitutional legislation. Each session take care of Oklahoma’s Veterans and has to assimilate back into society. there seems to some law that has passed ensure we continue to take care of their Q. Speaking of the legislature, you all that embroils the state in litigation. I am medical needs in the future. There are have a lower approval rating in the state Q. The issues facing soldiers returning somewhat biased in this respect, but I gaps in coverage and that is unaccept- than President Obama. Soonerpoll.com from deployment has been well docu- blame the declining number legislators able. I am hopeful we can come up with reported in August that it’s at 34%. To mented. The Oklahoman recently report- with law degrees who understand the a viable solution. what do you attribute this dissatisfaction ed on the 22 veteran suicides occurring constitution and the principles it embod- among Oklahomans, and how do you daily, a 32% jump in that rate since ies. How has being an attorney aided Q. Is there anything we can do at the think the legislature can go about reha- 2001. In addition, there are increasing you in your duties as a state legislator? County Bar, or as members of the Bar to bilitating its image? numbers of veterans who are homeless A. I believe if we focus more on budget- help this effort? A. A great deal of the perceived issues and struggling with substance abuse, ing and less on social issues, there will A. Stay tuned for way the County Bar is spun by the media. With that said, the mental health and domestic issues. In inherently be less unconstitutional bills. can plug in and make a difference. legislature has to work on communica- response, many states are establishing Being an attorney not only helps you tion with the public while we are in ses- Veterans Treatment Courts. Oklahoma is to understand the law but the process Q. As an alternative to Veterans Courts, sion. Regardless, democracy does work home to a large number military bases as well. Thinking about both sides and Oklahoma County under the leadership and we will have at least 32 new people and veterans. Do you think Oklahoma articulating positions is a critical skill of our District Attorney David Prater, in the House next year. It gives us an should consider establishing similar learned as an attorney that is applicable has established a Veterans Diversion opportunity to reset. courts throughout the state and what in the legislature. Program. It’s the only one of its kind in would it take to see that through? the nation and is proving to be incredi- Q. What would you like to see the legis- A. Absolutely. The drug courts have Q. Judicial reform is always a topic for bly successful in keeping veterans suf- lature focus on in the upcoming session? worked well. Veterans’ courts help to debate at the capital. I feel dismayed fering from substance abuse and mental A. I hope we focus less on social issues deal with the uniqueness of issues that by the rhetoric and misinformation health issues out of prison. I believe and concentrate on reforming our budget plague veterans upon their return. spread about the Judicial Nominating other counties should establish similar process. That is our one Constitutional Commission and the process for filling programs. Do you think the legislature duty. Q. Congratulations on being select- judicial vacancies. Do you have any would commit itself to helping this ed a member of the Governor’s Task thoughts on legislative efforts at judicial endeavor, and would you be willing to Q. Over the last decade, the share of Force charged with developing a plan reform? lead the charge? revenue collected going to the general to improve veterans’ access to health- A. The efforts are numerous. I am a big- A. I think the legislature would be will- fund has steadily declined. Increasingly, care. Can you give us a rundown on the ger believer in the study of history and ing to help diversify the judicial budget “off the top” apportionments are siphon- make-up of the Task Force, how it will not repeating the same mistake twice. I to find ways to make it work. In the long ing a larger percentage of the revenue be organized, and how you intend to am open to any reform, but not one that run it likely saves the state money. If a pie. Certainly, stricter scrutiny of legis- tackle the issue? has been proven to fail. 18 BRIEFCASE • October 2016

The First Monday in October

Kieran D. Maye, Jr.1 The 40 cases scheduled for review this ibility because both were Hispanic, Pena- psychologist to evaluate the risk of future term fall into the following broad catego- Rodriguez moved for a new trial. The trial dangerousness. That expert stated that he This article is being written on the first ries; 25 Federal Statutory Construction, 3 court denied the motion, and the Colorado considered demographic factors, including Monday in October. Today, the Supreme Immigration, 2 Voting Rights and one each Court of Appeals affirmed. The Supreme race, in his analysis and that, statistically, Court opened its October 2016 term, still in Double Jeopardy, Ineffective Assistance Court of Colorado held the jurors’ affida- minorities are overrepresented in the crimi- a justice short, 233 days since the death of of Counsel, Fourth Amendment, Rule 606 / vits were inadmissible under Rule 606(b) nal justice system. On cross-examination, the Justice Scalia, and 201 days since the nom- impeachment of Jury Verdicts, Establishment of Colorado’s Rules of Evidence, which prosecution clarified that the expert’s opinion ination of Judge Merrick Garland to fill the Clause, Commercial Speech, Death Penalty, prohibits juror testimony on any matter was that the race factor “black” increased vacancy. In many ways, the Court continues Due Process, Regulatory Takings, and Tribal occurring during the jury deliberations. The the likelihood of future dangerousness. The to operate in the vacuum left by the vacancy. Sovereign Immunity. Supreme Court of Colorado also held Rule jury found that there was sufficient evidence We all know about the cases that ended in That being said, there are a few interesting 606(b) did not violate Pena-Rodriguez’s of Buck’s future dangerousness without any 4-4 ties last year. Everyone who writes about and challenging cases of constitutional law Sixth Amendment right to an impartial jury sufficient mitigating factors to justify a life the Supreme Court, including this author, has on the docket. because Pena-Rodriguez had waived that sentence, so the jury sentenced Buck to exhausted that subject. When all was said and right by failing to adequately question jurors death. The Texas Court of Criminal Appeals done, only four cases ended in 4-4 ties, and Jury Deliberation – about their racial bias during voir dire. affirmed the conviction and sentence. in only two of those cases does it appear that Impeachment of Verdict Question: Whether a no-impeachment rule Buck filed various claims for state and the tie likely changed the ultimate outcome Pena-Rodriguez v. Colorado2 constitutionally may bar evidence of racial federal habeas relief that were denied, until of the case. So all of the predictions of anar- bias offered to prove a violation of the Sixth the U.S. Supreme Court decided Trevino v. chy that many pundits predicted in the wake Amendment right to an impartial jury. Thaler, which held that Texas’ procedural of Justice Scalia’s death and the long- stalled Facts of the Case: Miguel Angel Pena-Rodriguez was con- scheme made it almost impossible to raise nomination of Judge Garland have simply First Amendment – Free Exercise – victed of unlawful sexual conduct and ineffective assistance of counsel claims on not materialized. This was accomplished by Separation of Church and State harassment in state trial court. After the entry direct appeal, and therefore a procedural the Court deciding cases on narrow grounds default on such a claim could be excused. and avoiding controversial issues whenever of a guilty verdict, two jurors informed Pena- Trinity Lutheran Church of Columbia, Inc. Rodriguez’s counsel that one of the other While some of these claims were pending, possible. But the effect of the short-staffed v. Pauley the state attorney general admitted in a differ- Court continues. The Court seems to have jurors made racially biased statements about Pena-Rodriguez and the alibi witness during ent case that the state should not have called deliberately avoided granting review of any Facts of the Case: an expert witness to testify about future new controversial cases. So far, the Court has jury deliberations. Based on affidavits from Trinity Lutheran Church of Columbia, some of the jurors, which related racially dangerousness of a defendant based on race granted review in 40 cases. This is roughly Inc. (Trinity) operates a licensed preschool and named Buck’s case as one affected by half of the number of cases the Court usu- biased statements about Pena-Rodriguez’s and daycare called The Learning Center likely guilt and the alibi witness’ lack of cred- similar testimony. Buck again sought federal ally reviews in a year. Thus there is plenty that was initially opened as a non-profit cor- habeas relief based on ineffective assistance of room on the docket for more interesting poration, but merged with Trinity in 1985. of counsel because his counsel knowingly cases, if the Court decides to take them, 2. The following cases are based largely on case The Learning Center has an open admis- summaries prepared by the Oyez Project, located at called an expert witness who testified that although that seems unlikely. sions policy and incorporates daily religious race was a factor in determining future www.oyez.org, and are used and reproduced pursuant instruction into its programs. The Missouri 1. Mr. Maye is an Adjunct Professor of Law at to the Creative Commons License granted for non-com- dangerousness. The district court dismissed Department of Natural Resources (DNR) the claim because Buck failed to show that Oklahoma City University School of Law mercial uses. provides funds for qualifying organizations the outcome of his trial was prejudiced. to purchase recycled tires to resurface play- The U.S. Court of Appeals for the Fifth grounds. Trinity applied for such a grant but Circuit similarly denied Buck’s request for was denied because Article I, Section 7 of a Certificate of Appealability by holding that the Missouri Constitution states, “no money Buck did not show sufficient extraordinary shall ever be taken from the public treasury, circumstances to justify relief from the lower directly or indirectly, in aid of any church, court’s judgment. section or denomination of religion.” Trinity Question: Did the U.S. Court of Appeals for sued and argued that the denial of its appli- the Fifth Circuit impose an unduly burden- cation violated the Equal Protection Clause some standard on the review of a claim that of the Fourteenth Amendment as well as the counsel was ineffective by knowingly calling First Amendment’s protections of freedom an expert witness who testified that race was of religion and speech. The district court a factor in evaluating future dangerousness? granted Missouri DNR Director Pauley’s motion to dismiss for failure to state a claim Immigration and Trinity moved for reconsideration and to amend its complaint to include allegations There are also current two significant that such grants had previously been given immigration cases. These come on the heels to religious organizations. The district court of United States v. Texas, “decided” last year denied the motions, and the U.S. Court of by a 4 – 4 tie. Today, October 3, 2016, the Appeals for the Eighth Circuit affirmed the Court denied the government’s request for dismissal and the denial of the motions to rehearing of the case when there is a ninth reconsider and amend the complaint. justice. The two new cases are: Question: Whether the exclusion of church- es from an otherwise neutral and secular Lynch v. Morales-Santana aid program violates the Free Exercise and Equal Protection Clauses when the state has Facts of the case: no valid Establishment Clause concern. Immigration laws treat children of unwed citizen fathers different from children of Ineffective Assistance of Counsel unwed citizen mothers. This case challeng- es that distinction as violating the Equal Buck v Davis Protection Clause of the Fifth Amendment. Facts of the case: Questions: In July, 1995, Duane Edward Buck was • Did the statutory distinction between arrested for the murder of his ex-girlfriend, the physical presence requirements for Debra Gardner, and her friend, Kenneth transferal of derivative citizenship for Butler. Buck was convicted of capital murder unwed citizen mothers and unwed cit- for both of the deaths. During the penalty izen fathers of foreign-born children phase of trial, the prosecution presented violate the Equal Protection Clause of evidence of Buck’s future dangerousness the Fifth Amendment? based on his criminal history, his conduct, and his demeanor before and after arrest. The • Did the U.S. Court of Appeals for the defense presented the testimony of a clinical Second Circuit’s decision that the gen- www.okcbar.org • October 2016 • BRIEFCASE 19

2016 JUDICIAL SURVEY RESULTS ANNOUNCED

Bench & Bar Committee Timothy J. Bomhoff has released the results of the 2016 Oklahoma County Bar Judicial Survey. Surveys were mailed to the OCBA membership in July with a return date of August 15. This data was tabulated by Dr. Mahmood T. Shandiz, Ph.D., Professor of Management Science at the Meinders School of Business, Oklahoma City University. Scale for Opinion on Characteristics: 1 = Strongly Agree, 2 = Agree, 3 = No Opinion, 4 = Disagree, 5 = Strongly Disagree.

der-based difference was a violation of violated their due process rights. The • Are noncitizens entitled to release unless can legally refuse to bake a cake for a same- equal protection constitute a conferral of U.S. Court of Appeals for the Ninth the government proves by clear and con- sex couple’s wedding. U.S. citizenship in the absence of statu- Circuit held that prolonged detention vincing evidence that the noncitizens are Gloucester County School Board v G.G. tory authority to do so? without a hearing raised serious consti- dangers to their communities and flight deals with the issue of transgender person’s tutional concerns, and therefore ruled risks? Jennings v. Rodriguez use of public bathrooms. The Court has that the relevant mandatory statutory granted a stay, which prohibits a transgen- language should be interpreted as having • Should the length of the noncitizen’s Facts of the case: der boy from using the boys’ bathroom in a a time limitation; at the six-month mark, detention be weighed in favor of release, • Sections of the Immigration and Nation- and should new bond hearings be pro- Virginia high school, but the Court has not ality Act require that noncitizens who detainees are entitled to bond hearings at yet granted cert in the case. six-month intervals, for the duration of vided automatically every six months? are determined to be inadmissible to the With 35 – 40 spots left open on the Court their detentions. United States must be detained during docket this term, there is certainly room for removal proceedings, though some may Potential Blockbusters these two matters, as well as other interesting be released on bond if they can demon- Questions: cases. But since the Court seems determined strate that they are not a flight risk or • Are noncitizens who are subject to man- There are a few potential blockbusters in to avoid controversial issues while it is short a danger to the community. Alejandro datory detention under the relevant text the pipeline. Rodriguez and other detained noncit- of the Immigration and Nationality Act Masterpiece Cakeshop v Colorado Civil staffed, it seems unlikely that we will see izens sued and argued that their pro- entitled to bond hearings, with the pos- Rights Commission asks the question that any major blockbusters this term. The Court longed detention without hearings or sibility of release, if their detentions last has been posed since the Court’s ruling on appears to be content to mark time until there determinations to justify the detention six months? same sex marriage; whether a private bakery is a ninth justice. 20 BRIEFCASE • October 2016

8th annual end of year cle

Tulsa: Tuesday, December 6th, 8:30 am - 12:30 pm OKC: Wednesday, December 7th, 8:30 am - 12:30 pm

PANEL DISCUSSION FOR 4 HOURS OF CREDIT:

E-Discovery Cost Strategy for Small, Medium and Large Cases

How to “Like” Social Media in E-Discovery, Your Case and Your Practice

Securing Your Digital Information

Ethics of ESI (1 Ethics Credit)

Panelists will include speakers from Oklahoma and out of state with experience in IT, human resources, and the legal profession

Come & go for up to 4 hours FREE CLE RSVP required to [email protected]

www.avansic.com | 918 856 5337