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1554 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Th e m e : Cr i m i n a l La w Editor: January Windrix contents pg. 1618 Aug. 17, 2013 • Vol. 84 • No. 21 Departments 1556 From the President 1632 From the Executive Director 1633 Law Practice Tips 1635 Ethics/Professional Responsibility 1637 OBA Board of Governors Actions 1645 Oklahoma Bar Foundation News 1648 Young Lawyers Division 1650 What’s Online 1651 For Your Information 1654 Bench and Bar Briefs 1658 In Memoriam 1664 The Back Page

Features 1559 An Overview of Recent Changes in the Mi r a n d a Doctrine and the Right to Counsel and Silence pg. 1620 By Scott Rowland LHL Cornerstone 1567 The Violence Against Women Banquet Reauthorization Act of 2013 and Tribal Criminal Jurisdiction Over Non-Indians Plus By O. Joseph Williams 1618 Oklahoma Attorneys Answer the 1573 Expanded Opportunities for Call of Storm Victims Expungement of Criminal Records By Jarrod Houston Beckstrom By Zachary Waxman 1579 Document Discovery in a State 1620 Argus Hamilton to Perform at Criminal Case LHL Cornerstone Banquet II By Orval Jones By Lance Schneiter 1585 Ba x t e r a ‘Warranted’ New Frontier 1623 Oklahoma Attorneys Selected for By John Paul Cannon Leadership Academy 1591 Juvenile Justice: Life and Death 1624 2013 OBA Member Survey Results By Doris J. “Dorie” Astle Now Available 1599 DUI Law: A Trial of Tests By Sonja R. Porter 1626 Photo Highlights: Sovereignty 1605 Human Trafficking: Beyond Pr e t t y Symposium Wo m a n and Huggy Bear 1629 Book Review: Bu s i n e s s a n d By Robert Don Gifford Co m m e r c i a l Litigation in 1611 Thoughts on the Plea Bargain Fe d e r a l Co u r t s Process in Oklahoma: Ethics, Reviewed by Rob Duran Philosophy and Strategic Approaches Board of Governors 2014 Vacancies By Jim Drummond 1631

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1555 FROM THE PRESIDENT

Statewide Service Projects to Give Back By Jim Stuart

The OBA Day of Service set for Sept. 20-21 is Does your county bar have a now in its final stages. Lawyers from across the state are project planned? Check the list planning projects and finding ways in which to give on the Young Lawyers Division back to their communities. Law firms both large and page in this issue. If your county small, corporate law departments, law schools, legal is not there, contact your bar services organizations and bar lead- president to get some- ership, are all needed in order to thing organized. It’s implement this significant OBA ser- not too late. You pick vice project. the community orga- It’s not too nization to assist. I’m Coordination of efforts and events expecting more addi- is being made through the leadership late. You pick tions to that list, which of the OBA Board of Governors, the community will soon be posted to Young Lawyers Division and county www.okbar.org with bar presidents. The time to mark organization more details on the your calendars is now. Take a moment projects. to set aside Friday, Sept. 20, or Satur- to assist. day, Sept. 21, as a day in which to This is the one day give back. (okay, two days) to showcase what we as Join with the other members of your lawyers do on a regular basis — county bar or organization to participate giving back — and to say thank in a worthwhile service project, whether you to those communities in it be freshening up the facilities at a local which we live. youth shelter, reading in an elementary classroom, providing pro bono legal ser- I’m counting on you to be vices to returning armed forces person- involved in this meaningful nel — or donating to a favorite charity. statewide project. The giving possibilities are endless.

President Stuart practices in Shawnee. [email protected] 405-275-0700

1556 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 OFFIC ERS & BOARD OF GOVERNORS James T. Stuart, President, Shawnee Renée DeMoss, President-Elect, Tulsa events Calendar Dietmar K. Caudle, Vice-President, Lawton Cathy M. Christensen, Immediate Past President, AUGUST 2013 Oklahoma City Gerald C. Dennis, Antlers 19 OBA Alternative Dispute Resolution Section meeting; 12 p.m; Robert S. Farris, Tulsa Oklahoma Bar Center, Oklahoma City with teleconference; Contact Robert D. Gifford II, Oklahoma City Michael O’Neil 405-232-2020 Kimberly Hays, Tulsa Douglas L. Jackson, Enid OBA Women in Law panelist meeting; 4 p.m.; Oklahoma Bar Center, O. Chris Meyers II, Lawton Oklahoma City; Contact Kim Hays 918-592-2800 or Susan Bussey D. Scott Pappas, Stillwater 405-525-9144 Nancy S. Parrott, Oklahoma City Bret A. Smith, Muskogee 20 OBA Civil Procedure and Evidence Code meeting; 3:30 p.m.; Richard D. Stevens, Norman Oklahoma Bar Center, Oklahoma City and OSU Tulsa, Tulsa; Contact Linda S. Thomas, Bartlesville James Milton 918-594-0523 Joseph M. Vorndran, Shawnee, Chairperson, OBA/Young Lawyers Division 22 Oklahoma Bar Foundation Trustee meeting; 8:30 a.m.; Oklahoma Bar Center, Oklahoma City; Contact Nancy Norsworthy 405-416-7070 BAR Center Staff John Morris Williams, Executive Director; OBA Work/Life Balance Committee meeting; 12 p.m; Oklahoma Bar Gina L. Hendryx, General Counsel; Jim Calloway, Center, Oklahoma City with teleconference; Contact Sara Schumacher Director of Management Assistance Program; 405-752-5565 Craig D. Combs, Director of Administration; Susan Damron Krug, Director of Educational OBA Professionalism Committee meeting; 3:30 p.m.; Oklahoma Bar Programs; Beverly Petry Lewis, Administrator Center, Oklahoma City with teleconference; Contact Judge Richard Woolery MCLE Commission; Carol A. Manning, Director 918-227-4080 of Communications; Travis Pickens, Ethics Counsel; Robbin Watson, Director of Information Technology; 23 OBA Professional Responsibility Commission meeting; 9:30 a.m.; Jane McConnell, Coordinator Law-related Education; Oklahoma Bar Center, Oklahoma City; Contact Dieadra Goss 405-416-7063 Loraine Dillinder Farabow, Tommy Humphries, Tina Izadi, Katherine Ogden, Steve Sullins, OBA Section Leaders Council meeting; 12 p.m.; Oklahoma Bar Center, Assistant General Counsels; Tommy Butler, Tanner Oklahoma City and OSU Tulsa, Tulsa; Contact Roy Tucker 918-684-6276 Condley, Sharon Orth, Dorothy Walos and Krystal Willis, Investigators 26 OBA Juvenile Law Section and CLE Subcommittee joint meeting; Manni Arzola, Jarrod Houston Beckstrom, 3 p.m.; Oklahoma Bar Center, Oklahoma City with teleconference; Contact Debbie Brink, Emily Buchanan, Susan Carey, Tsinena Thompson 405-232-4453 Johnny Marie Floyd, Matt Gayle, Dieadra Goss, Brandon Haynie, Suzi Hendrix, Misty Hill, Debra 28 OBA Women in Law Committee meeting; 4 p.m.; Oklahoma Bar Jenkins, Durrel Lattimore, Heidi McComb, Renee Center, Oklahoma City; Contact Kim Hays 918-592-2800 or Susan Bussey Montgomery, Wanda Reece-Murray, Larry Quinn, 405-525-9144 Lori Rasmussen, Tracy Sanders, Mark Schneide- went, Jan Thompson, Laura Willis & Roberta Yarbrough SEPTEMBER 2013 EDITORIAL BOARD Editor in Chief, John Morris Williams, News 2 OBA Closed – Labor Day observed & Layout Editor, Carol A. Manning, Editor, 5 OBA Government and Administrative Law Section meeting; 4 p.m.; Melissa DeLacerda, Stillwater, Associate Editors: Dietmar K. Caudle, Lawton; Emily Duensing, Oklahoma Bar Center, Oklahoma City with teleconference; Contact Gary Payne Tulsa; Pandee Ramirez, Okmulgee; Mark Ramsey, 405-297-2413 Claremore; Judge Megan Simpson, Buffalo; Joseph M. Vorndran, Shawnee; Judge Allen J. For more events go to www.okbar.org/calendar Welch, Oklahoma City; January Windrix, Poteau The Oklahoma Bar Association’s official website: NOTICE of change of address (which must be www.okbar.org in writing and signed by the OBA member), THE OKLAHOMA BAR JOURNAL is a publication of the Oklahoma Bar undeliverable copies, orders for subscriptions Association. All rights reserved. Copyright© 20082013 Oklahoma Bar Association. or ads, news stories, articles and all mail items The design of the scales and the “Oklahoma Bar Association” encircling the should be sent to the Oklahoma Bar Association, scales are trademarks of the Oklahoma Bar Association. Legal articles carried P.O. Box 53036, Oklahoma City, OK 73152-3036. in THE OKLAHOMA BAR JOURNAL are selected by the Board of Editors. Oklahoma Bar Association 405-416-7000 The Oklahoma Bar Journal (ISSN 0030-1655) is published three times Toll Free 800-522-8065 FAX 405-416-7001 a month in january, February, March, April, May, August, Septem- Continuing Legal Education 405-416-7006 ber, October, November and December and bimonthly in June and Ethics Counsel 405-416-7055 July. byby thethe OOklahoma BBar AAssociation,, 19011901 N. Lincoln Boulevard, General Counsel 405-416-7007 Oklahoma City, Oklahoma 73105. Periodicals postage paid at Okla- Law-related Education 405-416-7005 homa City, OK. POSTMASTER: Send address changes to THE OKLAHOMA Lawyers Helping Lawyers 800-364-7886 BAR ASSOCIATION, P.O. Box 53036, Oklahoma City, OK 73152-3036. Subscrip- Mgmt. Assistance Program 405-416-7008 tions are $60$55 per year except for law students registered with the Mandatory CLE 405-416-7009 Oklahoma Bar Association, who may subscribe for $25. Active mem- OBJ & Communications 405-416-7004 ber subscriptions are included as a portion of annual dues. Any opinion expressed herein is that of the author and not necessar- Board of Bar Examiners 405-416-7075 ily that of the Oklahoma Bar Association, or the Oklahoma Bar Oklahoma Bar Foundation 405-416-7070 Journal Board of Editors.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1557 1558 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Criminal Law An Overview of Recent Changes in the Miranda Doctrine and the Rights to Counsel and Silence By Scott Rowland he Fifth Amendment’s protections against compelled self- incrimination are nearly as old as the United States Consti- tution itself, but it was arguably the United States Supreme T 1 Court’s decision in Miranda v. Arizona which gave full force to those protections. Now, almost 50 years after that landmark rul- ing, a new decision by the court, Texas v. Salinas,2 allows prosecu- tors in some instances to comment to the jury on the defendant’s refusal to answer questions from investigators when that person was neither in custody nor given the Miranda warnings. This article will examine Salinas and several other right to counsel or right to silence decisions handed down by the Supreme Court in the past few years. Collectively, these cases have quietly brought about significant changes in a criminal suspect’s rights to counsel and silence in a very short period of time.

In Salinas, the defendant voluntarily accompa- During closing arguments at the defendant’s nied Houston police to the police station and murder trial, the prosecutor mentioned his reac- answered questions for almost an hour about a tion to the question about the shotgun shells, homicide which they were investigating. Offi- commenting that an innocent person would cers had requested that he come to the police have reacted differently, protesting his inno- station “to take photographs and to clear him” cence. Based in part upon this evidence, the as a suspect in the case.3 During the course of the defendant was convicted of murder and given a interview, he voluntarily handed over his shot- 20-year prison sentence. He objected at trial con- gun for ballistics testing, but when officers asked tending that the prosecution’s use of his silence if the shotgun shells found at the murder scene and reaction to the questions violated his rights would match his shotgun, he declined to answer, against self-incrimination under the Fifth “looked down at the floor, shuffled his feet, bit Amendment. In rejecting this claim, the Texas his bottom lip, cl[e]nched his hands in his lap, Court of Criminal Appeals held that the Fifth [and] began to tighten up.”4 After the defendant Amendment’s protections are against compelled sat silent for a few moments, the officer asked self-incrimination, but a person who voluntarily additional questions which the defendant then cooperates with police is not being compelled. answered. Thus, a comment by the prosecution on that

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1559 person’s refusal to answer a specific question being arrested, and then two years later in does not impermissibly burden their right to Fletcher v. Weir11 involving a suspect’s silence remain silent.5 after being arrested but prior to being given the Although the Supreme Court accepted the Miranda warnings. Note that all of these cases case to resolve the question of whether and concern impeaching a testifying defendant when the prosecution may comment upon with his prior silence. Salinas marks the first one’s invocation of the right to silence during a time the Supreme Court has allowed the use of voluntary, pre-arrest interview, the plurality pre-arrest, pre-Miranda silence in the state’s opinion in fact dodged that question holding case-in-chief, regardless of whether the defen- instead that the defendant never explicitly dant chooses to take the witness stand. invoked his right to remain silent. Relying These Supreme Court constitutional cases upon earlier cases where one who is in custody must be read in conjunction with Oklahoma and given the Miranda warnings must unam- cases involving the admissibility of pre-arrest biguously invoke the right to silence or right to silence under the law of evidence. In Farley v. counsel, Justice Alito’s opinion, joined by Chief State12 the Court of Criminal Appeals found Justice Roberts and Justice Kennedy, applied reversible error where the prosecutor cross the same standard to one voluntarily submit- examined the defendant about why he did not ting to non-custodial police questioning. “So turn himself in to police upon learning a war- long as police do not deprive a witness of the rant had been issued for his arrest. Acknowl- ability to voluntarily invoke the privilege, edging that no constitutional violation had there is no Fifth Amendment violation. Before occurred under Jenkins, the court nonetheless petitioner could rely on the privilege against found that because of the various possible self-incrimination, he was required to invoke explanations for not turning oneself in, the it. Because he failed to do so, the judgment of defendant’s failure to do so was irrelevant the Texas Court of Criminal Appeals is under Section 2401 of the Oklahoma Evidence affirmed.”6 Left unanswered by this opinion is Code. However, more recent Oklahoma cases whether, had the defendant replied to the have either distinguished or ignored Farley and question about his shotgun that he wished to more closely followed the constitutional analy- terminate the interview and say no more, the sis from the Supreme Court’s jurisprudence.13 prosecution could have used that fact as evi- RELATED DEVELOPMENTS IN A dence in its case in chief. DEFENDANT’S RIGHT TO COMMENT ON A DEFENDANT’S SILENCE/COUNSEL SILENCE BEFORE AND AFTER ARREST: To understand the other recent changes in CURRENT LAW this area of law, it is helpful to recall the three The exact contribution which Salinas makes constitutional provisions giving rise to the to this body of decisional law is best under- rights to counsel and silence. The Fifth Amend- stood through a quick review of the prior cases. ment provides that no person “shall be com- The Supreme Court first held in Griffin v. Cali- pelled in any criminal case to be a witness fornia7 that a criminal defendant’s Fifth Amend- against himself,” and it is this right upon which ment rights are violated by commenting to the the Miranda decision is based. It is triggered by jury about his failure to take the witness stand the convergence of custody and interrogation, and testify in his own defense. In Doyle v. Ohio,8 and is not limited to the specific offense for the court extended this rule to situations where which the suspect is being detained and/or the defendant invokes the right to silence at the questioned. The second of these provisions is time of arrest, but then chooses to testify at his the Sixth Amendment and its specific right to trial and provide an exculpatory story to the counsel. This right attaches only upon “the jury. The prosecutor’s cross examination of the initiation of adversary judicial criminal pro- defendant about his silence after being arrested ceedings — whether by way of formal charge, and after receiving the Miranda warnings was preliminary hearing, indictment, information, held to violate the due process clauses of the or arraignment,”14 and applies only to the Fifth and Fourteenth Amendments.9 However, charged offense and no other. Third is the the court in a subsequent pair of cases found Fourteenth Amendment’s Due Process Clause no violation of one’s rights when a defendant and its requirement that any statement, wheth- is impeached about his silence prior to receiv- er custodial or not, be made voluntarily and ing the Miranda warnings, first in Jenkins v. not as the result of any undue coercion or any Anderson10 involving a suspect’s silence prior to promise or threat.15 This requirement – that any

1560 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 statement used against a defendant be volun- exercise and recreation periods, can partici- tary — applies regardless of whether the sus- pate in basic adult education and occupa- pect was in custody. tional training, are able to send and receive THE DEFINITION OF CUSTODY UNDER mail and are allowed to receive visitors THE MIRANDA DOCTRINE twice a week. His continued detention after the 2003 interrogation did not depend The essential holding of Miranda is that when on what he said (or did not say) to Detec- a suspect is in custody and interrogated, no tive Blankenship, and he has not alleged statement he makes may be used against him that he was placed in a higher level of secu- in the state’s case-in-chief unless he was first rity or faced any continuing restraints as a advised of his rights and voluntarily waives result of the 2003 interrogation. The “inher- those rights. Only when these two factors, cus- ently compelling pressures” of custodial tody and interrogation, are present are the interrogation ended when he returned to dictates of Miranda triggered. Four of these his normal life. (citations omitted) recent cases involving Miranda directly address the issue of when an individual is in custody The Shatzer decision also settled for the first for purposes of the Miranda doctrine. time how long a break in custody must be before the protections of Edwards dissolve, In Maryland v. Shatzer,16 the court for the first allowing officers to reinitiate contact with the time addressed the issue of whether one who is defendant. This issue is treated more thorough- incarcerated may nonetheless not be in custody ly below. for purposes of Miranda. In that case, the defen- dant was serving time in prison when a detec- Two years after Shatzer, the court again had tive attempted to question him about the sexu- occasion to visit the issue of how prison incar- al abuse of a child which occurred prior to his ceration affects one’s custodial status. In Howes incarceration. The defendant invoked his right v. Fields18 the court refused to adopt a bright- to counsel and the interview was immediately line rule that anytime a prison inmate is sepa- terminated, as is required by Edwards v. Arizo- rated from the general population for question- na17 holding that once the right to counsel is ing, the encounter is automatically custodial invoked, police may not reinitiate contact with requiring Miranda warnings. In that case the the defendant unless his attorney is present. inmate was taken to a conference room and Two and one-half years later a different questioned for several hours by deputies. He detective again approached the defendant to was told more than once he was free to leave question him about the child abuse charges, and could go back to his cell whenever he but this time the defendant waived his rights wanted, and at one point when he became agi- and answered the detective’s questions. The tated and began to yell he was told by one of majority opinion held that although he had been the deputies that if he did not want to cooper- incarcerated during the entire relevant time ate he could leave. In refusing to fashion an period, there was a break in custody for Miranda absolute rule governing prison interrogations, purposes between the two interrogation sessions the court stated: because the defendant had been released back When a prisoner is questioned, the deter- into the general prison population. mination of custody should focus on all of Shatzer’s experience illustrates the vast dif- the features of the interrogation. These ferences between Miranda custody and in- include the language that is used in sum- carceration pursuant to conviction. At the moning the prisoner to the interview and time of the 2003 attempted interrogation, the manner in which the interrogation is Shatzer was already serving a sentence for conducted. See Yarborough, 541 U. S., at 665. a prior conviction. After that, he returned An inmate who is removed from the gen- to the general prison population in the eral prison population for questioning and Maryland Correctional Institution–Hager- is “thereafter . . . subjected to treatment” in stown and was later transferred, for unre- connection with the interrogation “that lated reasons, down the street to the Rox- renders him ‘in custody’ for practical pur- bury Correctional Institute. Both are medi- poses . . . will be entitled to the full panoply um-security state correctional facilities. of protections prescribed by Miranda.”19 . . . Another of the Supreme Court’s recent deci- Inmates in these facilities generally can sions in this area makes clear that one’s status as visit the library each week, have regular a juvenile must be considered when determining

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1561 whether they were or were not in custody at the declined to sign a form acknowledging he time of questioning. In J.D.B. v. North Caro-lina,20 understood his rights. There was conflicting a 13-year-old was taken from his afternoon social testimony about whether he verbally acknowl- studies class and questioned by the school police edged understanding his rights. Police ques- officer in a conference room without being ad- tioned him for about three hours, during which vised of his rights. Although the Supreme Court he sat mostly silent except for a one word or has repeatedly stressed that the issue of custody short answer to a few questions. is an objective test which does not depend upon About two hours and 45 minutes into the ses- the subjective factors of individual defendants, it sion, a detective asked the defendant if he nonetheless held that status as a minor should be believes in God and has asked God to forgive factored into the equation. him for murdering the victim, whereupon he Reviewing the question de novo today, we got tearful and replied ‘yes.’ After conviction hold that so long as the child’s age was the defendant on appeal claimed that by known to the officer at the time of police remaining silent for a significant period of questioning, or would have been objec- time, he had invoked his right to silence and tively apparent to a reasonable officer, its that continued questioning by police violated inclusion in the custody analysis is consis- that right. Justice Kennedy provided the fifth tent with the objective nature of that test. vote in a 5-4 ruling holding that simply being This is not to say that a child’s age will be a silent is not sufficient to invoke one’s right to determinative, or even a significant, factor silence; an unambiguous request to remain in every case. silent is required in order to invoke the right . . . thus precluding officers from continuing their It is, however, a reality that courts cannot questioning. Although the court held almost 20 simply ignore. years ago that invoking the right to counsel requires an unambiguous request for a lawyer, In Bobby v. Dixon,21 a man suspected in the the Berghuis case is the first time that require- disappearance of his friend had a chance ment has been applied to the right to silence. encounter with police at the police station. The officer administered Miranda warnings and There is good reason to require an accused attempted to question the suspect about the who wants to invoke his or her right to murder, but the suspect immediately stated he remain silent to do so unambiguously. A wanted a lawyer and was allowed to go on his requirement of an unambiguous invoca- way. When officers reinitiated contact about tion of Miranda rights results in an objec- five days later he waived his rights and made a tive inquiry that “avoid[s] difficulties of statement. The Sixth Circuit Court of Appeals, proof and ... provide[s] guidance to offi- applying the rule of Edwards v. Arizona, held cers” on how to proceed in the face of that because he had once invoked his right to ambiguity. Davis, 512 U.S., at 458–459, 114 counsel, officers could not seek and obtain a S.Ct. 2350. If an ambiguous act, omission, Miranda waiver from the defendant without or statement could require police to end the his attorney present. In a per curiam opinion, interrogation, police would be required to the Supreme Court reversed because the defen- make difficult decisions about an accused’s dant was not in custody during this chance unclear intent and face the consequence of encounter at the police station and therefore suppression “if they guess wrong.” Id., at Miranda did not apply. Thus, the giving of the 461, 114 S.Ct. 2350. Suppression of a volun- warnings by the officer and his attempt to tary confession in these circumstances invoke the right to silence were both legal nul- would place a significant burden on soci- lities, because a defendant cannot anticipatorily ety’s interest in prosecuting criminal activ- invoke his rights prior to the time he is taken ity. See id., at 459–461, 114 S.Ct. 2350; Moran into custody.22 v. Burbine, 475 U.S. 412, 427, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986). INVOKING AND WAIVING THE RIGHT . . . TO SILENCE Thompkins did not say that he wanted to One of the more interesting recent changes to remain silent or that he did not want to talk this body of law has to do with invoking and with the police. Had he made either of waiving one’s right to remain silent. In Ber- these simple, unambiguous statements, he ghuis v. Thompkins23 a murder suspect was would have invoked his “‘right to cut off arrested, given the Miranda warnings and questioning.’” Mosley, supra, at 103, 96 S.

1562 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Ct. 321 (quoting Miranda, supra, at 474, 86 tutes custody, the Supreme Court for the first S.Ct. 1602). Here he did neither, so he did time ever also set a specific length of time not invoke his right to remain silent.24 which must pass before police may attempt to Also at issue in the Berghuis case was wheth- question a suspect who has invoked his right er the defendant had waived his right to to silence and then been released from custody. remain silent. For the first time ever, the The court balanced the need for protecting a Supreme Court recognized that a waiver of suspect during custody and its lingering effects one’s right to remain silent need not be ex- against the illogical notion that one who pressed but may be implied from evidence that invokes the right to counsel while in custody is he was advised of the rights, understood them, forever immunized from police interrogation and then undertook a course of conduct consis- even after they have been freed from custody. tent with a waiver such as answering some “It seems to us that period is 14 days. That questions. The court stressed that merely advis- provides plenty of time for the suspect to get ing a suspect of his rights and then commenc- reacclimated to his normal life, to consult with ing the questioning is not sufficient to find an friends and counsel, and to shake off any implied waiver even if the suspect responds residual coercive effects of his prior custody.”28 with answers; there must be some evidence that he or she understood the rights. 1. 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 2. _U.S. _, No. 12-246 (June 17, 2013)(slip opinion). The practical effect of these two holdings 3. Id. (J. Breyer dissenting at p. 1). 4. Salinas, slip op. at p. 2. from the Berghuis case is that when a suspect 5. Salinas v. State, 368 S.W.3d 550 (Tex. Ct. App. 2011). has been advised of his rights and indicates he 6. Salinas, slip op. at p. 12. 7. 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965). understands them, officers may ask questions 8. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). even if the suspect has not specifically indicated 9. Doyle, 426 U.S. at 619. he will waive his rights and even if he sits 10. 447 U.S. 231, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980). 11. 455 U.S. 603, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). silently during the initial phase of the question- 12. 1986 OK CR 42, 717 P.2d 111. ing. However, to be admissible the statement 13. See, Guy v. State, 1989 OK CR 35, 778 P.2d 470; Royal v. State, 1988 OK CR 203, 761 P.2d 497; Lane v. Jones, 2012 WL 6643095, slip op. p. 4 must still be voluntarily made and not the prod- (No. CIV-12-137 W.D. Ok. 2012). uct of coercion or threats since the Fourteenth 14. Rothgery v. Gillespie County, Texas, 554 U.S. 191 (2008). 15. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 Amendment’s due process clause applies (1964). regardless of custody and regardless of which 16. 559 U.S. 98, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010). other rights have been invoked or waived. 17. 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). 18. _ U.S. _, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012). REINITIATING INTERROGATION AFTER 19. Id. At 1192. 20. _ U.S. _, 131 S.Ct .2394, 180 L.Ed.2d 310 (2011). RIGHTS ARE INVOKED 21. _ U.S. _, 132 S.Ct. 26, 181 L.Ed.2d 328 (No. 10-1540, (Nov. 7, 2011). The ability of police officers to reinitiate con- 22. Id. At 29. tact with a suspect who has invoked his Miran- 23. 560 U.S. 370, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). 24. Id. At 2260. da rights is another area of significant change 25. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 over the past few years. As noted above, it has (1975). long been the rule that when a suspect invokes 26. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). his right to remain silent or his right to counsel, 27. 559 U.S. 98, 130 S.Ct. 1213, 175 L.Ed.2d 1045 (2010). all questioning must cease. When he has unam- 28. Shatzer, 130 S.Ct. at 1223. biguously invoked his right to silence, police must “scrupulously honor” that request but may return later and attempt to resume the About The Author 25 questioning. Conversely, when it is the right Scott Rowland is a career prose- to counsel which is invoked, police may not cutor who currently serves as First reinitiate that contact until the suspect’s lawyer 26 Assistant District Attorney in the is present. Oklahoma County District Attor- Because it is the convergence of custody plus ney’s Office. He frequently lectures interrogation which triggers the protections of throughout the United States in Miranda, many courts and practitioners have areas of criminal law and criminal long assumed that police may question a defen- constitutional procedure. Mr. Row- dant who has properly invoked his right to land was recently named 2013 Outstanding Prosecutor counsel if that person is released from police by the Oklahoma District Attorneys’ Association. He is custody. However, in Maryland v. Shatzer,27 dis- a 1994 graduate cum laude of the Oklahoma City Uni- cussed above for its holding on what consti- versity School of Law.

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1564 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Dean Couch joins GableGotwals’ Oklahoma City office as a new Of Counsel Attorney

Dean’s practice will focus on water law and the complex issues surrounding

rights, access and management of this natural resource. After serving for almost

30 years as the general counsel for the Oklahoma Water Resources Board,

Dean is widely known for his expertise and experience with complex issues

including interstate and tribal compacts, water rights, water quality standards,

property rights and floodplain and wastewater management.

Welcome Dean!

TULSA · OKLAHOMA CITY · www.gablelaw.com

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1565 1566 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Criminal Law The Violence Against Women Reauthorization Act of 2013 and Tribal Criminal Jurisdiction Over Non-Indians By O. Joseph Williams n March 7, 2013, President Barack Obama signed into law the reauthorization of the Violence Against Women Act1 O(VAWA) which is a federal law enacted to work toward ending violence against women and to address certain system- atic failures in the law and in practice that perpetuate the cycle of violence. There are many tools contained within VAWA to carry out this important objective to address domestic violence through- out the land.

The focus of this article, however, is based on The U.S. Justice Department reports that key provisions contained only within the 2013 Indian reservations in the United States have reauthorization of VAWA that recognizes and violent crimes that are more than 2½ times acknowledges the inherent right of Indian higher than the national average.2 American tribes to criminally prosecute all persons, Indian women are 10 times likely to be mur- including non-Indian offenders, who are dered, and they are raped or sexually assaulted charged with domestic violence related crimes at a rate four times the national average.3 More occurring in Indian country against an Indian than one in three American Indian women victim (the tribal provisions). Although Indian have either been raped or experienced an tribes already possess the inherent right to attempted rape.4 However, these crimes against prosecute Indian offenders for certain crimes Indian women, when committed by a non- occurring on Indian country, VAWA’s tribal pro- Indian in Indian country, would largely go visions recognize that, in certain limited instanc- unpunished since: 1) the states do not generally es, tribes will also have authority to arrest, pros- possess criminal jurisdiction for crimes occur- ecute, convict and sentence non-Indians who ring in Indian country that involve an Indian;5 assault an Indian spouse or dating partner or 2) the federal government would decline to who violate a protection order in Indian country. prosecute or fail to conduct any investigation;6 This article discusses the current legal scheme and 3) the tribal prosecutors and courts do not that has created the jurisdictional gap in the first have criminal jurisdiction over non-Indians. place, the background of VAWA and the ele- This has created the unfortunate situation ments of VAWA’s new tribal provisions that will where tribal law enforcement and prosecutors expand the jurisdictional reach for tribes that may be the first line of defense to protect vic- seek to combat crimes of domestic violence tims of domestic violence on their tribal lands, occurring on their tribal lands. but they would not have jurisdiction to prose-

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1567 cute these crimes when the offender is non- tribal government to serve as part of a jury Indian. VAWA’s tribal provisions were designed pool) may reach out to local attorneys who, to to address this problem. date, have never had any client matter involv- ing an Indian tribe. Criminal defense attorneys VAWA is an important tool in the fight may now be asked to defend non-Indian indi- against violence against all women in America. viduals in tribal courts under tribal law and in However, the tribal provisions are a significant accordance with VAWA’s tribal provisions. For step forward in closing the jurisdictional gap Oklahoma attorneys who have never had any that results in many non-Indian offenders dealings with Indian tribes or tribal courts, this avoid prosecution and punishment when they would be a good time to become familiar with commit domestic violence-related crimes the tribal court, the tribal laws and other neces- against an Indian person on tribal land. There sary elements to provide competent represen- are 38 federally-recognized Indian tribes and tation for your clients in tribal court. Finally, nations located within the exterior boundaries 7 attorneys who provide general counsel services of the State of Oklahoma. There are also many for state and local governments should also pockets of Indian country land located in vari- become aware with VAWA’s tribal provisions ous parts of Oklahoma, and there are many in order to understand the federal law and Indians and non-Indians situated on those policy that serve as the basis for Indian tribes lands. For Oklahoma tribes, there are around being able to now prosecute non-Indians in a 22 tribal courts established and existing under limited context under VAWA. Many jurisdic- the law of the tribe for which it sits. There are tional disagreements and disputes between also Courts of Indian Offenses established tribal governments and state and local govern- under Title 25 of the Code of Federal Regula- ments are a result of a lack of understanding or tions that serve as courts to administer law and familiarity with the ever-changing contours order for those tribes who do not have their within the field of Indian law. own court established.8 Thus, VAWA is signifi- cantly relevant to many Indian and non-Indian WHAT IS ‘INDIAN COUNTRY?’ people in Oklahoma as well as to those Indian Since VAWA’s tribal provisions apply to tribes who seek to mete out justice for domestic domestic violence crimes in Indian country, the violence crimes occurring on tribal land. first question to answer is “what is Indian VAWA’s tribal provisions are important for country?” The term Indian country is a legal various types of legal practitioners in Oklaho- term of art used to describe the geographical ma for different reasons. Most importantly, territory where the laws of an Indian tribe, plus those tribes who choose to take advantage of federal law related to Indian affairs, are appli- 9 the tribal provisions must conform their laws cable. Generally, states do not possess jurisdic- and court systems to meet certain requirements tion, and state law will not have effect, in in VAWA designed to afford criminal defen- Indian country except through a specific grant dants, at a minimum, the same levels of consti- of jurisdiction under federal law. Indian country tutional rights and protections that exist in is defined in 18 U.S.C. §1151 and includes: 1) all federal and state courts. For tribal attorneys in land within the limits of any Indian reservation Oklahoma, this means that they must become under the jurisdiction of the United States gov- familiar with the requirements in VAWA (and ernment; 2) dependent Indian communities, another law addressing the rights of defen- and; 3) all Indian allotments, the Indian titles to dants in tribal court, the Tribal Law and Order which have not been extinguished. Indian coun- Act of 2010) to advise their tribal clients on the try also includes land the title for which is held in trust by the United States for an individual necessary implementation issues that will have 10 to be followed, e.g., amendments or supple- Indian or Indian tribe. ments to the tribal code, modifications to the As sovereign governments, Indian tribes tribal court system, training for law enforce- maintain the power to exercise at least concur- ment officers, judges and court personnel and rent criminal jurisdiction over all crimes com- sources to obtain the necessary funding for mitted in Indian country by an Indian against these changes. Second, the expansion of crimi- the person or property of another Indian.11 An nal jurisdiction by tribes over non-Indians in Indian tribe’s criminal jurisdiction, if concur- certain cases means that non-Indians who may rent with another jurisdiction, would be con- now be arrested and charged by an Indian tribe current with the federal government under (or a non-Indian who may be summoned by a several federal statutes defining certain crimes

1568 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 occurring within Indian country that may be victims of domestic violence, dating violence, subject to federal prosecution. There are numer- sexual assault and stalking. ous federal statutes and federal court decisions outlining the scope and application of criminal VAWA focuses on nine specific areas: jurisdiction by a tribe, state or the federal gov- • Title I – Enhancing judicial and law ernment in Indian country depending on the enforcement tools to combat violence 12 status of the offender (whether Indian or non- against women Indian), the victim (whether Indian or non- Indian) or if the crime is against property or is • Title II – Improving services for victims otherwise considered a “victimless” crime. For • Title III – Services, protection, and justice purposes of this article, however, only certain for young victims of violence key principles of criminal jurisdiction in Indian country will be covered. • Title IV – Strengthening America’s First, the U.S. Supreme Court in United States families by preventing violence v. McBratney,13 held that criminal jurisdiction • Title V – Strengthening the healthcare over offenses committed by a non-Indian system’s response against another non-Indian in Indian country is within the exclusive jurisdiction of the states. • Title VI – Housing opportunities and Under the new tribal provisions in VAWA, this safety for battered women and children does not change. VAWA does not affirm tribal • Title VII – Providing economic security criminal jurisdiction over non-Indians who com- for victims mit domestic violence crimes against other non- Indians in Indian country. States would continue • Title VIII – Protection of battered and to maintain jurisdiction in those instances. Sec- trafficked immigrants ond, until the enactment of the tribal provisions in VAWA, the general rule was that Indian tribes • Title IX – Safety for Indian women lacked criminal jurisdiction to prosecute a non- The tribal provisions in VAWA are actually Indian who committed a crime within Indian amendments to the Indian Civil Rights Act of country. This was a result of the U.S. Supreme 1968,16 a statute that makes many, but not all, of Court’s decision of Oliphant v. Suquamish Indian the guarantees of the Bill of Rights applicable 14 Tribe, which stated: to tribal governments.17 The Indian Civil Rights [A]n examination of our earlier precedents Act was also amended as recently as 2010 with satisfies us that, even ignoring treaty provi- the passage of the Tribal Law and Order Act,18 sions and congressional policy, Indians do an act designed to enhance the tribes’ abilities not have criminal jurisdiction over non-In- and authority to sentence defendants to higher dians absent affirmative delegation of such fines and/or lengthier jail time. Since tribes power by Congress.15 had been limited on the amount of fines and Even though there are instances when an length of jail time they could impose for any Indian tribe may have authority to exercise crime, the Tribal Law and Order Act was a wel- civil and regulatory jurisdiction over non- come amendment for those tribal governments Indians, the holding in Oliphant regarding the who had been working hard to combat increas- exercise of tribal criminal jurisdiction over ing levels of crime on tribal land. Both the non-Indians has not been reversed. tribal provisions in VAWA and the sentencing enhancing measures in the Tribal Law and VAWA TRIBAL PROVISIONS Order Act do require the tribes to comply with The Violence Against Women Act is a federal certain requirements designed to ensure the law originally enacted in 1994 as a comprehen- criminal defendant is afforded all constitu- sive effort to deal with violence against women tional rights and protections that they would in this country by combining stronger provi- have in state and federal courts.19 For some sions to hold offenders accountable along with tribes, this will require certain modifications be programs to provide services for the victims of made to their tribal laws and court systems in violence. VAWA was reauthorized in 2000 and order to take advantage of those provisions.20 2005. The VAWA reauthorizations allow funding for such things as additional support services, The pertinent provisions of VAWA amending training for judges and civil legal assistance to the Indian Civil Rights Act are as follows:

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1569 Therefore, under VAWA, tribes will be able to exercise criminal jurisdiction over non-Indians …under VAWA, tribes will for crimes of domestic violence,22 dating vio- lence23 and for criminal violations of protective be able to exercise criminal orders.24 However, tribal exercise of criminal jurisdiction over non-Indians for jurisdiction will not apply when 1) the criminal conduct occurs outside of Indian country;25 2) a crimes of domestic violence… crime occurs between two strangers;26 3) a crime does not involve an Indian (domestic violence between two non-Indians);27 4) the 1) In General: Notwithstanding any other crime is child or elder abuse that does not provision of law, in addition to all powers involve the violation of a protective order;28 of self-government recognized and affirmed and 5) the defendant lacks ties to the Indian by [other sections of the Indian Civil Rights tribe (does not reside or work in Indian coun- Act, 25 U.S.C. §§1301 and 1303], the powers try; is not a spouse, intimate partner or dating of self-government of a participating tribe partner of a tribal member or of an Indian who include the inherent power of that tribe, resides in Indian country).29 which is hereby recognized and affirmed, to exercise special domestic violence criminal It is important to understand that, under jurisdiction over all persons. VAWA, Indian tribes are not required to under- take the responsibility of exercising criminal 2) Concurrent Jurisdiction: The exercise of jurisdiction under VAWA’s tribal provisions. special domestic violence criminal jurisdic- As explained, in order to exercise criminal juris- tion by a participating tribe shall be con- diction over non-Indians under VAWA, Indian current with the jurisdiction of the United tribes will have to comply with providing con- States, of a State, or of both. stitutional rights and protections under the Indi- . . . . an Civil Rights Act, as amended, to offenders in tribal courts as required in VAWA. This may 4) Exceptions: mean that tribes will have to amend or supple- A) Victim and Defendant are both non- ment their tribal code and make significant Indians: changes to their tribal court system. For what- ever reason, a tribe may determine to maintain i) In General: A participating tribe may the status quo and not seek to exercise criminal not exercise special domestic violence jurisdiction over non-Indians under VAWA. If a criminal jurisdiction over an alleged tribe so decides, the criminal jurisdiction of the offense if neither the defendant nor the tribe, state, and federal government in Indian alleged victim is an Indian. country will remain unchanged.

. . . . 1. (Pub. L. 113-4, 127 Stat. 54). 2. Timothy Williams, Higher Crime, Fewer Charges on Indian B) Defendant lacks ties to the Indian tribe: A Land, N.Y. Times, February 20, 2012, available at http://tinyurl.com/ participating tribe may exercise special nc2mmvw (referring to U.S. Dept. of Justice statistics). 3. Id. domestic violence criminal jurisdiction 4. Id. over a defendant only if the defendant 5. See Williams v. Lee, 358 U.S. 217, 220 (1959) (“absent governing Acts of Congress, the question has always been whether the state i) resides in the Indian country of the action infringed on the right of reservation Indians to make their own laws and be ruled by them”); see also, e.g., United States v. Lara, 541 U.S. participating tribe; 193, 204-05 (2004) (affirming Supreme Court’s “traditional understand- ing” of each tribe as “a distinct political society, separated from others, ii) is employed in the Indian country of capable of managing its own affairs and governing itself’”) (quoting the participating tribe; or Cherokee Nation v. Georgia, 30 U.S. 313, 323-24 (1831)). 6: This is not to say that federal authorities are purposefully iii) is a spouse, intimate partner, or dat- neglecting responsibility to conduct investigations and prosecute crimes in Indian country. There can be a number of reasons (many ing partner of times, based on limited resources) that complicate the ability for fed- eral authorities to conduct investigations and file charges on perpetra- I) a member of the participating tors who commit certain crimes in Indian country. 7. A complete listing of all federally recognized Indian tribes in the tribe; or United States can be found in the Federal Register, with the most recent version at 77 F.R. 47868 (Aug. 10, 2012). II) an Indian who resides in the 8: See Part 11 of Title 25 of the Code of Federal Regulations. Indian country of the participating 9. The legal history behind the development and codification of the 21 term “Indian country” is beyond the scope of this article; however, tribe. suffice it to say, there is a great deal of case law on the subject matter

1570 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 that provides greater depth and insight into the legal contours of the child in common, by a person who is cohabitating with or has territorial jurisdiction of Indian tribes. See, e.g., Indian Country, U.S.A. cohabitated with the victim as a spouse or intimate partner, or by v. Oklahoma Tax Com’n, 829 F.2d 967 (10th Cir. 1987). a person similarly situated to a spouse of the victim under the 10. Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, domestic- or family-violence laws of an Indian tribe that has 498 U.S. 505 (1991). jurisdiction over the Indian country where the violence occurs. 11. United States v. Wheeler, 435 U.S. 313, 328-329 (1978) (“[t]he con- 23. The term “dating violence” is defined in VAWA as: clusion that an Indian tribe’s power to punish tribal offenders is part of [V]iolence committed by a person who is or has been in a social its own retained sovereignty is clearly reflected in a case decided by this relationship of a romantic or intimate nature with the victim, as Court more than 80 years ago, Talton v. Mayes, 163 U.S. 376 (1896)”). determined by the length of the relationship, the type of relation- 12. There are also legal issues that may arise in determining “who ship, and the frequency of interaction between the persons is an Indian” for purposes of determining jurisdiction. See, e.g., United involved in the relationship. States v. Diaz, 679 F.3d 1183 (10th Cir. 2012). This is important to know 24. 25 U.S.C. §§1304(b) and (c). for attorneys working with any federal statute applicable to Indians, 25. 25 U.S.C. §1304(c)(1) and (2). although that issue will not be discussed for purposes of this article. 26. Id. 13. 104 U.S. 621 (1882). 27. 25 U.S.C. §1304(b)(4)(A). 14. 435 U.S. 191 (1978). 28. 25 U.S.C. §1304(c)(2). 15. Id. at 208. 29. 25 U.S.C. §1304(b)(4)(B). 16. (25 U.S.C. §1301, et seq.). 30. The tribal provisions will not take effect until March 7, 2015, 17. The citations herein to the tribal provisions in VAWA will be to unless tribes modify their laws and court systems in accordance with the amended section of the Indian Civil Rights Act as amended by VAWA and a tribe requests from the U.S. Department of Justice, and is VAWA. The tribal provisions start at 25 U.S.C. §1304. granted, the right to participate in a Pilot Project that will allow that 18. (Pub.L. 111-211, 124 Stat. 2258, enacted July 29, 2010). tribe to exercise criminal jurisdiction sooner than March 7, 2015. 19. Tribes will have to have laws and court systems in place that will protect the constitutional rights of defendants as described in the Tribal Law and Order Act by providing: effective assistance of counsel; court-appointed counsel at no charge to indigent defendants; law- About The Author trained tribal judges who are also licensed to practice law; making tribal criminal laws and rules publicly available, and; recorded crimi- nal proceedings. 25 U.S.C. §1302. Joseph Williams is the founding 20. Another significant requirement is that tribes provide a jury member of O. Joseph Williams pool consisting of “a fair cross section of the community” and that does not “systematically exclude any distinctive group in the community, Law Office PLLC located in Ok- including non-Indians . . .” 25 U.S.C. §1304(d)(3). Therefore, tribes who mulgee. He is a 2001 graduate of seek to establish a jury pool will have to modify their codes and estab- lish a system for seeking out potential jurors from the community, the Oklahoma City University including non-Indians. Many non-Indians may be surprised to receive School of Law and also earned a a jury summons from an Indian tribe and may not know what to do if Masters of Business Administra- they fail to comply. VAWA does not specifically address this, although Indian tribes do possess certain contempt powers over Indians and tion degree at OCU in 1998. He is non-Indians that may be exercised in certain instances. Issues like this a proud member of the Mississippi will no doubt be a part of the broader discussion as tribes begin to implement VAWA. Band of Choctaw Indians and has 21. 25 U.S.C. §1304 (as codified under amendments in VAWA). been practicing in the area of federal Indian law since 22. The term “domestic violence” is defined in VAWA as: [V]iolence committed by a current or former spouse or intimate graduating from law school in 2001. partner of the victim, by a person with whom the victim shares a

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1571 1572 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Criminal Law

Expanded Opportunities for Expungement of Criminal Records By Zachary Waxman

n his article regarding Oklahoma’s expungement law, crimi- nal law practitioner Allen Smallwood remarked, “[t]hough imperfect, Oklahoma’s expungement statutes offer at least a I 1 chance for an individual to clear his or her record.” While far from being flawless, the Nov. 1, 2012, amendments to Okla. Stat. tit. 22 §18,2 have certainly brought the expungement law closer to “perfection.”

CHANGES TO OKLA. STAT. TIT. 22 §18 filed or charges are dismissed within one (1) year of the arrest, or all charges are dismissed on the merits; The March 12, 2009, version of the statute3 read as follows: 6. The statute of limitations on the offense had expired and no charges were filed; Persons authorized to file a motion for expunge- ment, as provided herein, must be within one of the 7. The person was under eighteen (18) years of age following categories: at the time the offense was committed and the person has received a full pardon for the offense; 1. The person has been acquitted; 8. The offense was a misdemeanor, the person has 2. The conviction was reversed with instructions to not been convicted of any other misdemeanor or felo- dismiss by an appellate court of competent jurisdic- ny, no felony or misdemeanor charges are pending tion, or an appellate court of competent jurisdiction against the person, and at least ten (10) years have reversed the conviction and the district attorney sub- passed since the judgment was entered; sequently dismissed the charge; 9. The offense was a nonviolent felony, as defined 3. The factual innocence of the person was estab- in Section 571 of Title 57 of the Oklahoma Statutes, lished by the use of deoxyribonucleic acid (DNA) the person has received a full pardon for the offense, evidence subsequent to conviction, including a per- the person has not been convicted of any other misde- son who has been released from prison at the time meanor or felony, no felony or misdemeanor charges innocence was established; are pending against the person, and at least ten (10) 4. The person has received a full pardon on the years have passed since the conviction; or basis of a written finding by the Governor of actual 10. The person has been charged or arrested or is innocence for the crime for which the claimant was the subject of an arrest warrant for a crime that was sentenced; committed by another person who has appropriated 5. The person was arrested and no charges of any or used the person’s name or other identification type, including charges for an offense different than without the person’s consent or authorization. that for which the person was originally arrested are

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1573 For purposes of this act, “expungement” shall judgment without the necessity of a court order mean the sealing of criminal records. Records requesting the unsealing of said records.” expunged pursuant to paragraph 10 of this section These changes mean expanded opportunities shall be sealed to the public but not to law enforce- for those individuals with a criminal past. ment agencies for law enforcement purposes. When those records are expunged and sealed, The Nov. 1, 2012, amendment to section 18,4 they can move on with their lives and forgo the made the following additions and changes: burden of having a cloud of poor decisions fol- low them as they attempt to improve their • The person was arrested and no charges of any standing and contribute to our society. type, including charges for an offense different than that for which the person was originally arrested are The purpose of this article is not to instruct filed and the statute of limitations has expired or the you on how to file for an expungement of a prosecuting agency has declined to file charges5 criminal record. The article written by Mr. Smallwood9 and an additional article written • The person was charged with one or more mis- by Stacy Morey and Dave Stockwell10 both pro- demeanor or felony crimes, all charges have been vide excellent explanations of the necessary dismissed, the person has never been convicted of a procedure and forms for this area of practice. felony, no misdemeanor or felony charges are pend- Instead, this article will focus on how these ing against the person, and the statute of limita- changes have affected and will likely continue tions for refiling the charge or charges has expired to affect the practice. or the prosecuting agency confirms that the charge or charges will not be refiled; provided, however, EXPUNGING THOSE CASES THAT HAVE this category shall not apply to charges that have BEEN DISMISSED been dismissed following the completion of a deferred As you can see above, the 2009 version of §18 judgment or delayed sentence6 allowed the expungement of criminal records for cases in which all charges were dismissed • The person was charged with a misdemeanor, the on the merits,11 or in those matters that had charge was dismissed following the successful com- been dismissed by an appellate court, by a dis- pletion of a deferred judgment or delayed sentence, trict court after a remand12 or within one year the person has never been convicted of a misdemeanor of the arrest. or felony, no misdemeanor or felony charges are pend- ing against the person, and at least two (2) years have What the superseded version of §18 did not passed since the charge was dismissed7 account for was the statute of limitations allow- ing the prosecution to refile a charge against a • The person was charged with a nonviolent felo- defendant. This could lead to the awkward ny offense, as set forth in Section 571 of Title 57 of situation of having a defendant that seeks to the Oklahoma Statutes, the charge was dismissed expunge a charge that was dismissed within following the successful completion of a deferred one year of their arrest, but because of the judgment or delayed sentence, the person has never notice requirements on filing a petition to been convicted of a misdemeanor or felony, no mis- expunge,13 the prosecution would just refile (if, demeanor or felony charges are pending against the for instance, the statute of limitations had not person, and at least ten (10) years have passed since run and they were able to secure a victim or a the charge was dismissed8 witness to come back and testify) and even In addition to these changes, the statute also have an active warrant for the defendant at the clarifies, arguably with much success, what time of the expungement hearing. exactly an expungement means, by providing Luckily the Nov. 1, 2012, amendments clarify that an “expungement” under Okla. Stat. tit. 22 that issue, allowing an individual to qualify to §18 (2012), means ...”the sealing of criminal file for an expungement of a dismissed claim records. Records expunged pursuant to para- after the statute of limitations has run or con- graphs 8, 9, 10, 11 and 12 of this section shall be firm with the prosecuting agency.14 This amend- sealed to the public but not to law enforcement ment also applies to when an individual was agencies for law enforcement purposes. Records arrested and no charges were ever filed.15 Fur- expunged pursuant to paragraphs 8, 9, 10 and 11 thermore, having the matter “dismissed on the of this section shall be admissible in any subse- merits” is no longer a requirement, expanding quent criminal prosecution to prove the exis- the types of criminal matters that can now be tence of a prior conviction or prior deferred expunged.

1574 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Before filing any type of still show an arrest, though expungement where your cli- with a note that the case had ent was arrested and no charg- …if your client had been dismissed. es were filed or the charges wanted to go to nursing If you attempted to file for were dismissed, be sure to an expungement under §18 check the statute of limitations school and is facing a prior to Nov. 1, 2012, for a and call and confirm with the criminal record that resulted prosecuting agency that they misdemeanor possession in the case being dismissed will either not refile or have charge, they will not subsequent to a successful no intention of filing charges. completion of a deferred sen- Get this confirmation from the likely gain admittance, tence, your request for relief prosecution in writing. even if they received a would fail. The Oklahoma THE ‘DOUBLE State Bureau of Investigation EXPUNGEMENT’ deferred sentence… would object to your petition, Prior to the November leading the municipality to amendments, §18 did not object, as well as, most cer- allow one to expunge criminal records for tainly, the local district attor- those who had received a deferred sentence. ney’s office. Their reasoning? One, you cannot First, some review and clarification is needed. expunge something that has already been “expunged.” Two, the plain language of the Upon receiving a deferred sentence on a plea 16 agreement or through other means, the judge statute was clear — only criminal convictions will withhold a finding of guilt for that indi- could be expunged. vidual. Upon the completion of the deferred Luckily that has changed. Now, after the sentence, that individual will be discharged November amendments, those who received a without a conviction of guilt, and their crimi- deferred sentence for a misdemeanor may have nal record will be “expunged” under Okla. the record completely sealed and expunged Stat. tit. 22 §991c(C), where: under §19, after a two-year wait following their completion of the deferred sentence and the dis- 1. All references to the name of the defendant shall 17 be deleted from the docket sheet; missal of their charge. The same now also applies for nonviolent felonies that have been 2. The public index of the filing of the charge shall dismissed following a deferred sentence, with be expunged by deletion, mark-out or obliteration; the exception that the wait period to file for an expungement is 10 years.18 These amendments 3. Upon expungement, the court clerk shall keep now provide a sort of “double expungement,” a separate confidential index of case numbers and allowing those records which have been names of defendants which have been obliterated “expunged” under §991c(C) to now be sealed pursuant to the provisions of this section; and expunged under §19. There are two points 4. No information concerning the confidential file of which to be aware: 1) regarding municipal shall be revealed or released, except upon written cases, the petition to expunge such a case needs order of a judge of the district court or upon written to be filed with the appropriate district court; request by the named defendant to the court clerk 2) this relief is only allowable if the individual for the purpose of updating the criminal history does not have any other prior or subsequent record of the defendant with the Oklahoma State convictions and is not currently facing any Bureau of Investigation. pending charges. Not all expungements are equal, and the These two changes are extremely important. relief granted under §991c does differ from that For instance, if your client had wanted to go to found in Okla. Stat. tit. 22 §19. In fact, if your nursing school and is facing a misdemeanor client is receiving a deferred sentence, it is your possession charge, they will not likely gain ethical duty to explain the difference between admittance, even if they received a deferred the two. When discussing the matter with your sentence, simply because the record in some client, you need to stress the point that the part still exists. It may seem like a long wait for records are not fully sealed, as they would be your client, but if you were to file for an under §19, and if someone were to run a back- expungement after the deferred sentence was ground check, the individual’s record would discharged, then the record would be com-

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1575 pletely sealed under §19, allowing your client 9. “Expungements-Making Sense of Flawed Law” Oklahoma Bar Journal, Vol. 82-No.14, May 14, 2011, page 1261. to apply to nursing school. 10. Expunging Criminal Records under Oklahoma Statutes Title 22 §991c & §18 & 19. CONCLUSION 11. Okla. Stat. tit. 22 §18(5) (2009). 12. Okla. Stat. tit. 22 §18(2) (2009). The Honorable John F. Reif stated in his opin- 13. Okla. Stat. tit. 22 §19(B) (2002). 14. Okla. Stat. tit. 22 §18(7)(2012). ion for State of Oklahoma v. McMahon that the 15. Okla. Stat. tit. 22 §18(5) (2012). purpose of the expungement statutes was “to 16. Okla. Stat. tit. 22 §18 (2009). aid those who are acquitted, exonerated, or 17. Okla. Stat. tit. 22 §18(8) (2012). 18. Okla. Stat. tit. 22 §18(9) (2012). who otherwise deserve a second chance at a 19. 1998 OK CIV APP 103 ¶9; 959 P.2d 607; 69 OBJ 2920. ‘clean record.’”19 Mr. Smallwood was also cor- rect in stating that Oklahoma’s expungements statutes are far from perfect. However, with the About The Author Nov, 1, 2012, additions to §18, Oklahoma has gotten closer to “perfection” with expanded Zachary A. Waxman is the opportunities for those who wish to have both senior associate for the Kania Law their records expunged and a second chance at Office in Tulsa. He received his life with a tabula rasa. B.A. in psychology from the Uni- versity of Missouri-Columbia in 1. “Expungements-Making Sense of Flawed Law,” Oklahoma Bar Journal, Vol. 82-No.14, May 14, 2011, page 1261 at page 1266. 2005 and earned his J.D. from the 2. Okla. Stat. tit. 22 §18 (2012). TU College of Law in 2009. His 3. Okla. Stat. tit. 22 §18 (2009). 4. Okla. Stat. tit. 22 §18 (2012). practice focuses on family and 5. Okla. Stat. tit. 22 §18(5) (2012). domestic law, criminal defense, claims for Social Secu- 6. Okla. Stat. tit. 22 §18(7) (2012). rity disability benefits and workers’ compensation. 7. Okla. Stat. tit. 22 §18(8) (2012). 8. Okla. Stat. tit. 22 §18(9) (2012).

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1576 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Law-related Education CONSTITUTION DAY

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Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1577 1578 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Criminal Law

Document Discovery in a State Criminal Case By Orval Jones rocedures for criminal discovery in Oklahoma courts have undergone radical changes since 1990, but the basic tool for Pcollecting documentary evidence, a subpoena duces tecum, has remained unchanged since statehood. This article examines the boundaries of document discovery in criminal prosecutions under the Oklahoma Criminal Discovery Code, with particular emphasis on the differences between procedures in civil and criminal cases.1

STATUTORY DISCOVERY FRAMEWORK • Substance of any oral statements made by the accused or a codefendant The primary procedures for criminal discov- ery today are found in the Oklahoma Criminal • Reports or statements made by experts in Discovery Code, codified at 21 O.S. 2011 §§2001 connection with the particular case and 2002. Upon request, the prosecutor is re- quired to disclose: • Results of physical or mental examinations and of scientific tests, experiments or com- • Law enforcement reports made in connec- parisons tion with the particular case • Books, papers, documents, photographs, • Names and addresses of witnesses the state tangible objects, buildings or places which intends to call at trial the prosecuting attorney intends to use in the hearing or trial • Relevant written and recorded statements of those witnesses • Books, papers, documents, photographs, tangible objects, buildings or places which • Significant summaries of any oral state- were obtained from or belong to the ments of those witnesses accused2 • Record of prior criminal convictions of the In addition, “The state shall provide the defen- defendant and any codefendant dant any evidence favorable to the defendant if • Arrest history (OSBI rap sheet/records such evidence is material to either guilt or check) for all listed trial witnesses punishment.”3 The prosecutor’s obligation to produce information extends to information in • Records of conviction for any witness for the possession of the prosecution office, as well whom the defense provides identifying as in the possession of the law enforcement information agency who reported to the prosecutor in the • Written and recorded statements made by particular case and law enforcement agencies the accused or a codefendant who regularly report to the prosecutor, if the

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1579 prosecutor should reasonably know that the information exists.4 In addition there is a con- tinuing duty to disclose: “If, prior to or during The court is authorized to trial, a party discovers additional evidence or issue orders compelling discovery, material previously requested or ordered, which is subject to discovery or inspection to provide sanctions for failure to under the Oklahoma Criminal Discovery Code, such party shall promptly notify the other comply with discovery obligations party, the attorney of the other party, or the and to protect information from court of the existence of the additional evi- dence or material.”5 This duty to supplement disclosure. discovery responses ends when the trial ends.6 The time period for most discovery starts at 7 ute. Depositions in criminal cases were unknown arraignment and ends 10 days before trial. A to the common law.15 After a defendant is motion for discovery can be filed at or after bound over to stand trial, the conditional arraignment. “The court may specify the time, examination is the only means to conduct a place and manner of making the discovery discovery deposition in a felony case.16 After and may prescribe such terms and conditions judgment and sentence have been entered, as are just.” statutory criminal discovery will not be per- The court is authorized to issue orders com- mitted.17 During appeal, the prosecution is pelling discovery, to provide sanctions for fail- only required to provide exculpatory evidence ure to comply with discovery obligations and required by the constitution to be provided.18 8 to protect information from disclosure.­ The conditional examination procedure was In felony cases, two different forms of dis- expanded in 1994 to coincide with restrictions covery may be available — the preliminary in the procedure for preliminary hearings.19 hearing and the conditional examination. The These restrictions “eliminated the preliminary statute provides, “When the examination of the hearing as a discovery forum.”20 The prelimi- witnesses on the part of the state is closed, any nary hearing is still a vehicle to compel the witnesses the defendant may produce may be attendance of witnesses for examination, even sworn and examined upon proper offer of after a grand jury indictment.21 However, the proof made by defendant and if such offer of court cannot require a medical examiner to proof shows that additional testimony is rele- attend a preliminary hearing because the right vant to the issues of a preliminary examina- of confrontation is very limited at that stage of tion.”9 However, if the prosecutor makes law proceedings.22 enforcement reports available for review by the In order to compel the witness in a criminal defendant at least five working days prior to a case to bring documents to an examination or preliminary hearing, then the preliminary hear- hearing that has been scheduled before a judge, ing will terminate as soon as the court deter- the defendant can use a subpoena duces tecum. mines that probable cause exists to find that a “The process by which the attendance of a wit- crime was committed and that the defendant ness before a court or magistrate is required, is committed the crime.10 a subpoena.”23 The defendant can obtain sub- If the preliminary hearing is terminated poenas issued in blank from the court clerk.24 before all of the witnesses have testified and a The subpoena must be in the following statu- witness thereafter refuses to be interviewed by tory form: counsel for the opposing party, either the state or Greeting: You are commanded to appear the defendant “may apply for an order that the before C.D., a justice of the peace of ...... witness be examined conditionally.”11 The appli- . . at ...... (or the grand jury of the cation must be supported by affidavit.12 By county of ...... or the district court of agreement, the examination may be held before ...... county, or as the case may be), on a court reporter. Otherwise, the examination the ...... (stating day and hour), and must be held before a judicial officer.13 The remain in attendance on and call of said . . resulting examination is a criminal deposition.14 ...... from day to day and term to term Criminal depositions require a court order until lawfully discharged, as a witness in a and can only be conducted pursuant to the stat- criminal action prosecuted by the State of

1580 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Oklahoma against E.F. (or to testify as the ALLEN HEARINGS case may be). Prior to the adoption of the Criminal Discov- Id., §708. ery Code in 1994,31 the Court of Criminal Appeals in 1990 decided the case of Allen v. If the books, papers or documents be District Court.32 In Allen the court was asked to required, a direction to the following effect issue a writ to direct the district court to grant must be continued in the subpoena: a defendant’s discovery requests. In response, And you are required also to bring with the court engaged in an examination of the his- you the following: (Describe intelligently tory of criminal procedure in Oklahoma and the books, papers or documents required). determined that its jurisprudence had “bent the statutory procedure to the present breaking Id., §710. “Service of subpoenas for witnesses point.”33 The court concluded that there was a in criminal actions in the district courts of this “pressing need to fill the gaps” in the discovery state shall be made in the same manner as in framework.34 The court then adopted a pre-trial civil actions pursuant to Section 2004.1 of Title discovery procedure that closely resembles the 12 of the Oklahoma Statutes.”25 current Criminal Discovery Code adopted four SIGNIFICANT DIFFERENCES BETWEEN years later. This discovery framework was CIVIL AND CRIMINAL SUBPOENAS modified slightly in Richie v. Beasley, 1992 OK A subpoena in a criminal case can be served CR 52, 837 P.2d 479. A hearing requesting pre- upon a witness by any method prescribed for trial discovery might still be called an Allen service in a civil case, as provided for in Section hearing even though the statute has replaced 2004.1 of Title 12. However, Section 2004.1 not the procedure adopted by the court prior to the only provides methods of service in paragraph statutory enactment. After the adoption of the B, it also provides for the form of a civil sub- Criminal Discovery Code, the court deter- poena in paragraph A. Unlike a criminal sub- mined that it would enforce by writ the right to poena, the civil subpoena can require a person have discovery motions heard and decided in a 35 to provide testimony or to allow inspection of timely manner. documents at any “time and place therein A recent original proceeding in the Court of 26 specified.” Criminal Appeals, in which the court denied The civil procedure provisions of Section relief to the City of Tulsa, illustrates the tension 2004.1 allow the court to quash or modify a that exists between the statutory forms of subpoena if it requires the production of docu- criminal discovery and the authority of the ments “that fall outside the scope of discovery district court to fashion discovery orders in permitted by Section 3226” of Title 12.27 The particular cases.36 In the district court, the scope of civil discovery is much broader than defendant filed a discovery motion seeking that permitted by the Criminal Discovery digital and written records showing the exact Code. Compare 12 Okla. Stat. §3226(B)(1) (“Par- time of computer database searches conducted ties may obtain discovery regarding any matter, by a police officer during a traffic stop of the not privileged, which is relevant to the subject defendant, as well as radio and other commu- matter involved in the pending action, whether nication traffic related to the officer’s search for it relates to the claim or defense of the party records in that case.37 The defendant also issued seeking discovery or the claim or defense of any subpoenas to the Tulsa Police Department, other party …”) with 22 Okla. Stat. §2002. seeking production of the same records.38 The district court entered an order requiring the In civil discovery, the attorneys in the case are city to provide the requested information, find- authorized to issue and sign subpoenas on 28 ing that the request was “not a mere fishing behalf of the court. There is no parallel provi- expedition” and that “the information sought sion in the criminal statutes. In civil discovery, was time and incident specific.”39 The city the deponent can be a “public or private corpo- sought a writ to prohibit the district court from ration or a partnership or association or govern- 29 requiring the production of the records, argu- mental agency.” There is no similar provision in ing that criminal subpoenas can be used to the criminal statutes. Criminal subpoena power compel a witness to bring records to trial, but “does not extend to conducting medical exam- no other type of judicial proceeding.40 The inations and analyses.”30 Court of Criminal Appeals refused to provide extraordinary relief, finding that the district

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1581 court was not exercising power that was unau- 15. Parmeter v. State, 1963 OK CR 1, 377 P.2d 842, ¶¶16-20 16. Reupert v. State, 1997 OK CR 65, 947 P.2d 198. thorized by law or causing an injury for which 17. Bland v. State, 1999 OK CR 45, 991 P.2d 1039. there is no other remedy. 18. Frederick v. State, 2001 OK CR 34, ¶207, 37 P.3d 908, citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). From this exposition one may conclude that 19. Lafortune v. District Court, 1998 OK CR 65, 972 P.2d 868. 20. Id., ¶10. subpoenas can be a tool to extract relevant 21. State ex rel. Edmondson v. Bass-Jones, 2004 OK CR 9, 87 P.3d 624. documentary information from witnesses. 22. Office of State Chief Medical Examiner v. Reeves, 2012 OK CR 10, 280 P.3d 357. However, in order for the form of the subpoena 23. Id., §703. to be authorized by statute, the subpoena 24. Id., §707. 25. Id., §712(A). should compel an individual witness (not an 26. 12 Okla. Stat. §2004.1(A)(1)(b). agency) to bring such documents to a sched- 27. Id., §2004.1(C)(3)(a). 28. 12 Okla. Stat. §2004.1(A)(4). uled hearing (not a lawyer’s office). The hear- 29. 12 Okla. Stat. §3230(C)(5). ing could be an Allen hearing that is expressly 30. Zeigler v. State, 1980 OK CR 23, ¶20, 610 P.2d 251. designed to obtain judicial approval for the 31. Okla. Laws 1994, ch. 292, §§1-2. 32. 1990 OK CR 83, 803 P.2d 1164. scope of the requested discovery. In this man- 33. Id., ¶2. ner the Criminal Discovery Code will not be 34. Id., ¶13. 35. See Webber v. District Court, 1995 OK CR 23, 895 P.2d 728. circumvented and the prosecutor will have 36. See Order Denying Relief dated June 1, 2012, City of Tulsa v. proper notice that exculpatory material is being Honorable William J. Musseman, Jr., No. PR-2012-339, Oklahoma Court of Criminal Appeals (hereinafter “Musseman”). sought and will have an opportunity to be 37. Discovery Motion to Produce/Notice, filed February 3, 2012, in heard. State v. Gregory Alan Kilgore, No. CF-11-3287, District Court of Tulsa County (hereinafter “Kilgore”). CONCLUSION 38. Defendant’s Response to City of Tulsa’s Special Entry of Appearance and Motion to Quash Subpoenas Duces Tecum, filed Janu- Documents can be obtained before trial in an ary 23, 2012, in Kilgore. 39. Order of the Court Requiring the City of Tulsa to Comply with Oklahoma criminal case, but civil discovery Subpoena Duces Tecum, filed March 15, 2012, in Kilgore. rules in general do not apply. A defendant 40. Petitioner’s Combined Application to Assume Original Juris- diction and Petition for Writ of Prohibition and Brief in Support, at 5, seeking exculpatory evidence must follow the filed April 13, 2012, in Musseman. procedures of the Criminal Discovery Code and obtain judicial approval by stipulation or in an Allen hearing in order to obtain records About The Author that the prosecutor cannot obtain or will not Orval Edwin Jones graduated disclose. from the OU College of Law in

1. This article is the personal work product of the author, and does 1984 and has been an assistant not necessarily reflect the policies or positions of the Oklahoma City municipal counselor for the city Office of Municipal Counselor or The City of Oklahoma City. of Oklahoma City since 1999. 2. Id., §2002(A)(1). 3. Id., §2002(A)(2). He has previously worked for the 4. Id., §2002(A)(3). state of Oklahoma as general 5. Id., §2002(C). 6. Ramano v. State, 1996 OK CR 20, 917 P.2d 12. counsel for the Insurance De- 7. Id., §2002(D). partment and the state of Mis- 8. Id., §2002(E). 9. 22 O.S. 2011 §259. souri as an assistant attorney 10. 22 O.S. 2011 §258(sixth). general, and also has been in private practice in both 11. Id., §762.1. Tulsa and Oklahoma City. He is a member of the 12. Id., §763. 13. Id., §766. OBA Evidence and Civil Procedure Committee. 14. Id., §769.

1582 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1583 1584 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Criminal Law

Baxter a ‘Warranted’ New Frontier By John Paul Cannon “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…” — Fourth Amendment to the United States Constitution

he Fourth Amendment to the United States Constitution is a cornerstone of liberty and jurisprudence in America; how- Tever this famous phrase fell on deaf ears of the United States Supreme Court for 100 years. Until 1914, American courts fol- lowed the precepts of English common law that the process of obtaining evidence had nothing to do with its admissibility. The United States Supreme Court held evidence obtained illegally was admissible in several cases prior to 1914. Nonetheless, in a remarkable deviation from precedent the court held in Weeks v. United States, 232 U.S. 383 (1914) that the Fourth Amendment pro- vides protection against unreasonable searches and seizures in federal court and that evidence seized without a valid warrant is inadmissible.

BEFORE THERE WAS GANT Throughout the course of American legal his- tory certain exceptions to the warrant require- Jan. 16, 1919, the 18th Amendment to the ment have developed; among the most conten- United States Constitution was ratified, creating tious, search incident to arrest. This exception a prohibition of alcohol across the United States. stems from English Common Law and became However, an arguably more important piece of binding precedent in the 1948 United States legislation was passed the same year, the Nation- Supreme Court decision of Trupiano v. United al Prohibition Act, also known as the Volstead States, 334 U.S. 669 (1948). The court held, “a Act. This act gave prohibition officers the right search or seizure without a warrant as an inci- to search vehicles, boats or airplanes without a dent to a lawful arrest has always been consid- warrant if they believed illegal liquor was being ered to be a strictly limited right. It grows out of transported. In Carroll v. United States, 267 U.S. the inherent necessities of the situation at the 132 (1925), the court recognized the impractical- time of the arrest.” Trupiano and in effect the ity of securing a warrant before searching a meaning of a search incident to arrest was not vehicle, as a vehicle can be easily moved out of clarified until 1969, when the Supreme Court the locality or jurisdiction in which the warrant decided Chimel v. California, 395 U.S. 752 (1969). must be sought.1

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1585 The court held the search of an arrestee’s would “un-tether the rule from the justification immediate control as well as the room an underlying the Chimel exception.” Id. at 1719. arrestee is found is only permissible to protect Further, a vehicle search incident to arrest is only two interests: officer safety and the protection permissible when an arrestee is unsecured and of evidence.2 within reach of the passenger compartment. Twelve years later, Justice Stewart again Gant revolutionized both the application and drafting for the majority extended the Chimel understanding of Belton with one simple rule to the automobile in the landmark case of phrase. “Police may search a vehicle incident New York v. Belton, 453 U.S. 454 (1981). The court to a recent occupant’s arrest only if the arrestee stated its reading of Chimel in progeny indicates is within reaching distance of the passenger the limited dimensions of the passenger com- compartment and it is reasonable to believe the partment of a motor vehicle is analogous to the vehicle contains evidence of the offense of area surrounding an arrestee as described in arrest.” Id. at 1723. This maxim was once a pol- Chimel. Therefore, as a search incident to arrest icy argument, in Justice Scalia’s concurrence in an officer may as “a contemporaneous incident Thornton,5 but is now binding precedent. It is of that arrest, search the passenger compartment possible in the future, Justice Scalia’s position on of that automobile.” Id. at 458. warrantless searches will become the rule of law and the court will abandon the Belton and Chimel For 30 years, Belton was the benchmark con- rationales entirely. For now the court has again cerning the warrantless search of motor vehi- attempted to create a uniform approach to issues cles. However, after three decades of precedent, present in warrantless vehicle searches by defin- which every law enforcement agency in the ing the role of Belton, rather than dismissing it United States has based its interactions with entirely. the motoring public, the court granted certio- rari and heard the case of Arizona v. Gant. Mul- Although Justice Stevens was able to secure tiple parties including the United States of four other justices’ votes for the majority America, the American Civil Liberties Union, opinion,6 the fact that a special concurrence and multiple states filed amicus curiae3 briefs was filed by Justice Scalia, as well as two dis- voicing their differing opinions on how the senting opinions; one by Justice Alito and one court should rule. by Justice Breyer, is illustrative of the fact Gant’s future as binding precedent may be Courts, legal scholars, law enforcement, and short-lived. Justice Scalia’s concurring opinion state agencies from around the country have aptly states the issue to be faced by the United struggled with the uncertainty created by the States Supreme Court and all lower courts in Belton decision. Some courts and theorists have the foreseeable future.7 taken a limiting position on the application of Belton holding a search incident to arrest is RETROACTIVE APPLICATION OF GANT only permissible when three requirements are In 1986 the United States Supreme Court met: 1) when actually contemporaneous to the held in Griffin v. Kentucky, 479 U.S. 314 (1986), suspect’s arrest; 2) the suspect is unsecured; “newly declared rules of Constitutional crimi- and 3) when the arrestee is still in a position to nal procedure are applied to criminal cases reach the passenger compartment. The majori- pending on direct appeal.” Throughout the ty of state agencies have taken a bright-line United States, courts are battling with the deci- approach to Belton, pronouncing that if there is sion of whether or not Gant is a “newly an arrest of a motorist, then a search of the pas- declared rule of Constitutional criminal proce- senger compartment may always follow. dure” and whether or not to retroactively On April 21, 2009, the United States Supreme apply the decision to any or all cases involving Court decided Arizona v. Gant, 556 U.S. 332 a warrantless search incident to arrest. (2009), in an attempt to clarify the uncertainty In some cases the retroactive application of of lower courts application of the Belton deci- Gant would mean declaring prior constitu- sion. The court held a broad reading of Belton tional law enforcement conduct unconstitu- would authorize the search of a recent occu- tional. The Oklahoma Court of Criminal pant’s vehicle subsequent to every arrest, even Appeals was faced with that decision in the when the compartment was inaccessible to the case of Baxter v. State 238 P. 3d 934 (Okl. Cr. former occupant. Justice Stevens — writing for 2010). The Gant decision was published while the 5-4 majority — held this application of Belton Richard Baxter’s case was on direct appeal.

1586 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 However, Richard Baxter argued to the Court handcuffed, secured in a police officer’s patrol of Criminal Appeals the holding in Gant should unit and placed under arrest for the aforemen- apply to the warrantless search in his case. tioned traffic violation. Subsequently, his vehi- cle was searched and a large quantity of cocaine The prosecution raised a patent procedural and ecstasy were found in his vehicle. Mr. Bax- argument in its responsive brief to Richard ter’s case proceeded to a jury trial, where the Baxter’s appeal, retroactively. The United States court admitted all evidence discovered in the Supreme Court passed down the Gant decision search of Baxter’s car. Subsequently, Mr. Baxter 16 months and two days after Mr. Baxter’s was convicted on eight counts including the traf- trial, and the search the appellant is trying to fic violation he was pulled over for and seven suppress based on that decision occurred more other counts ranging up to trafficking in cocaine than two years before the Supreme Court and ecstasy. The court sentenced Mr. Baxter to 60 decided Gant. years imprisonment and a fine of $60,000. The Oklahoma Court of Criminal Appeals Baxter’s attorney raised a single petition of did not accept the state’s argument. The court error on appeal; the justification police used in cited Griffin v. Kentucky, in which the court held searching his vehicle was unconstitutional and, once a new rule is decided, “the integrity of as a result, all evidence discovered should have judicial review requires that [Courts] apply been suppressed by the trial court. The prose- that rule to all similar cases pending on direct cution argued responsively, based on a bright- review.” Griffin v. Kentucky, 479 U.S. 314, 317 line reading of Belton, the police did not violate (1986). The Court of Criminal Appeals found any of Baxter’s rights. the law espoused in Gant to be a rule of consti- tutional criminal procedure and that it should However, the Oklahoma Court of Criminal apply to the case at hand. Appeals found Baxter’s singular petition of error sufficient to reverse and remand the trial BAXTER AND THE APPLICATION court’s verdict. The court based its decision on OF GANT Justice Stevens’ revised application of Belton in State’s Initial Barrier the case of Arizona v. Gant. Upon the court’s determination, Gant would Plain View apply retroactively to the case on appeal, the The first argument raised by the prosecution court proceeded to describe the initial barrier was that the drugs in Baxter’s car were in plain the prosecution must face before the court view before the search began, which justified would uphold the trial court’s determination the police conducting a search without first admitting the evidence discovered as a result obtaining a warrant. One of the officers on of the police’s warrantless search of Baxter’s scene testified during trial regarding the drugs car. The Court of Criminal Appeals held, “the found in the center console. He stated, “I could State has the burden to show [its] warrantless not recall if it was open or shut, but my recol- search falls within a specific exception to the lection is that it was not shut.” The Court of Fourth Amendment warrant requirement.” Criminal Appeals, drawing from this officer’s Burton, 204 P. 3d 772 (Okl. Cr. 2009). testimony and others from the record, held The prosecution offered specific exceptions there was insignificant evidence presented at to the Fourth Amendment warrant require- trial to show the drugs were in plain view prior ment on appeal, ranging from plain view to to police conducting the search. search incident to arrest. However, prior to The court made this determination based on turning to the issues concerning the seizure of the precedent of Tucker v. State, 620 p. 2d 1314 Mr. Baxter’s person and the search of his vehi- (Okl. Cr. 1980). A case decided in 1980, in cle, we must turn to the facts and circumstanc- which the Court of Criminal Appeals adopted es of his contact with police. the four requirements for the plain view war- Baxter’s Story rant exception defined by the United States Supreme Court in the 1971 case, Coolidge v. New Mr. Baxter was stopped on a city street in Hampshire 403 U.S. 443 (1971).8 Applying the Tulsa for driving with an expired tag. He was Coolidge plain view exception, the search in approached by a Tulsa police officer and it was Baxter’s case was unconstitutional. The court discovered he had a suspended driver’s license held the police surpassed the first element by and was removed from his vehicle. He was legally being in the position to search that they

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1587 were, however the prosecution failed on the second element as insufficient evidence was produced to show the drugs were in plain view prior to police entering Baxter’s vehicle. The court held there was Probable Cause to Search no basis to argue the search of The prosecution’s second argument for the Baxter’s car was for officer safety, validity of the warrantless search of Baxter’s car is that probable cause existed to search the because Baxter did not pose any car. The prosecution reasoned the combination feasible threat at the time his car of the marijuana in Baxter’s car, the large amount of cash Baxter’s passenger was carry- was searched. ing ($1208 to be exact) combined with Baxter’s passenger’s nervous behavior created suffi- cient grounds for the police to search for illegal materials in Baxter’s vehicle. However, the Baxter’s car is that the search was done as inci- Oklahoma Court of Criminal Appeals rejected dent to Baxter’s arrest. At the time police the prosecution’s argument that probable cause searched Baxter’s car, he had been removed existed. from his vehicle, placed in handcuffs and was sitting in the back of a patrol car. The police did not present evidence amount- ing to probable cause for a search. As previ- The Oklahoma Court of Criminal Appeals ously stated the court held the drugs in Bax- stated, “The only justification in the record for ter’s car were not in plain view. An officer on the search is that it was incident to Baxter’s scene testified he had the passenger exit the arrest.” Baxter at ¶4. However, the search in vehicle so that another officer could search the the case at hand falls directly within the scope car; therefore it could not be grounds for prob- of Arizona v. Gant, a decision, which was pub- able cause. The only evidence remaining to lished while Mr. Baxter’s case was on direct give rise to probable cause for a search was the appeal. In Gant, the Supreme Court held “police large amount of cash in Baxter’s passenger’s [are authorized] to search a vehicle incident to a possession; however, the court held the suspi- recent arrest only when the arrestee is unsecured cious amount of cash alone was insufficient and within reaching distance of the passenger evidence to find probable cause to search Bax- compartment at the time of the search.” ter’s car. Exclusionary Rule Officer Safety The prosecution’s final argument, in the The third argument raised by the prosecution alternative, was the exclusionary rule should is that the search of Baxter’s car was valid by not apply to the evidence obtained after the the rationale of officer safety. However, the illegal search of Baxter’s car due to the attenu- Court of Criminal Appeals did not accept that ation doctrine. The United States Supreme rationale, “[Police are authorized] to search a Court held in the case of Hudson v. Michigan, vehicle incident to a recent occupant’s arrest 547 U.S. 586 (2006), an unlawful search pursu- only when the arrestee is unsecured and within ant to a warrant is distinguishable from the reaching distance of the passenger compart- fruits of an unlawful warrantless search. Restat- ment at the time of the search.” Id. at 1719. ed, if there is a sufficient nexus between the When the police initiated the search of Baxter’s illegality and the evidence obtained, the evi- car, he was already in handcuffs and in the dence will still be held admissible. The prose- back seat of a patrol car. The court held there cution argued applying Justice Brennan’s rule was no basis to argue the search of Baxter’s car concerning the fruit of the poisonous tree, was for officer safety, because Baxter did not espoused in Wong Sun, even if there were no pose any feasible threat at the time his car was grounds to search Baxter’s car, a sufficient searched. nexus existed between the search and the evi- dence discovered as a result of that search to Search Incident to Arrest make the drugs admissible in trial.9 The fourth argument raised by the prosecu- Based on Justice Brennan’s opinion in Wong tion in furtherance of the warrantless search of Sun, the question of admissibility in the case at

1588 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 hand comes down to whether the evidence 2. In Chimel v. California, 395 U.S. 752 (1969), Justice Stewart deliv- ered the opinion of the court, stating: seized is a result of the illegality or there is a …It is entirely reasonable for the arresting officer to search for sufficient nexus to purge the evidence from the and seize any evidence on the arrestee’s person in order to pre- vent its concealment or destruction. And the area into which an original taint. The Court of Criminal Appeals arrestee might reach in order to grab a weapon or evidentiary held there was not. The court held the evidence items must, of course, be governed by a like rule. Id. at 756. 3. Amicus Curiae: Latin for “friend of the court.” A person who is obtained from Baxter’s car was the singular not party to a lawsuit, but who petitions the court or is requested by result of the illegal search “without any inter- the court to file a brief in the action because that person has a strong vening occurrence which might attenuate the interest in the subject matter. Black’s Law Dictionary (9th ed. 2009). 4. Justice Stevens’ majority opinion in Arizona v. Gant, 129 Ct. 1710 connection between the unlawful search and (2010) stated the rule for searches incident to arrest as follows: the evidence and thus dissipate the taint.” Bax- “We hold that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the ter, 238 P. 3d 934, at 937 (Okl. Cr. 2010). arrestee is unsecured and within reaching distance of the pas- senger compartment at the time of the search.” Id. at 1719. Future Effects of Decision 5. The majority in Thornton suggested a search is justified when it is reasonable to believe evidence relevant to the crime of arrest might The Court of Criminal Appeals set a prece- be found. Thornton v. United States, 541 U.S. 615 (2004). 6. Justices Scalia, Souter, Thomas and Ginsburg. dent of protectionism in Baxter. The court went 7. Justice Scalia’s concurrence in Arizona v. Gant, 129 S. Ct. 1710 beyond the rhetoric of the Supreme Court and (2009) aptly stated the issue the courts will face following the court’s set a bright-line rule for the constitutional decision: I am…confronted with the choice of either leaving the current requirements of warrantless searches involv- understanding of Belton and Thornton in effect or acceding to ing vehicles. The expansive application of new what seems to me as the artificial narrowing of those cases adopted by Justice Stevens. The latter, as I have said, does not Belton, which allowed for search incident to provide the degree of certainty I think desirable in this field; But arrest without any additional evidence, is noth- the former opens the field to what I think are plainly unconstitu- tional searches — which is the greater evil. Id. at 1725. ing more than a thing of the past in Oklahoma. 8. In Coolidge v. New Hampshire 403 U.S. 443 (1971), Justice Stewart, Law enforcement from now on must exhibit joined by Justices Burger, Harlan, Douglas, Brennan and Marshall held there are certain prerequisites to the legitimate application of the plain patent evidence: 1) an arrestee was not secured view exception to the warrant requirement which are, “(1) The police at the time of the search, 2) the subject could must legitimately be in a position to obtain the view in order for the reach the vehicle to acquire a weapon, 3) or it is seizure to be permitted; (2) the object must be in plain view; (3) the incriminating nature of the article must be readily apparent; and, (4), reasonable to believe evidence of the offense the discovery of the article must have been inadvertent.” Id. at 464. the subject is under arrest for will be found in 9. Justice Brennan writing for the majority in Wong Sun v. U.S., 371 U.S. 471 (1963), stated: the vehicle. Although, the Fourth Amendment “We need not hold that all evidence is ‘fruit of the poisonous warrant requirement exception, search incident tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such to arrest has been greatly curtailed by Gant and a case is ‘whether, granting establishment of the primary illegal- Baxter, multiple exceptions to the warrant ity, the evidence to which instant objection is made has been requirement remain with the same force and come at by exploitation of that illegality or instead by means suf- ficiently distinguishable to be purged of the primary taint.’” Id. breath they have enjoyed for generations. We at 488. do not know what the future holds for the other exceptions to the warrant requirement; About The Author however, we do know motorists once again have some safe harbor in the privacy of their John Paul Cannon is an assis- vehicles and in the heart of the court. tant public defender in Oklahoma County, and a first lieutenant in 1. In Carroll v. United States, 267 U.S. 132 (1925) the court held: It would be intolerable and unreasonable if a prohibition agent the Oklahoma National Guard. were authorized to stop every automobile on the chance of find- He received a B.A. from the Uni- ing liquor…those lawfully within the country, entitled to use the versity of Kansas in 2006 and his public highways, have a right to free passage without interrup- tion or search unless there is known to a competent official, J.D. from OCU in 2010. He is a authorized to search probable cause for believing their vehicles member of the OBA Civil Proce- are carrying contraband…Id. at 136. dure Committee and OBA High School Mock Trial Committee.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1589 1590 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Criminal Law

Juvenile Justice: Life and Death By Doris J. “Dorie” Astle

n less than a decade the United States Supreme Court has decided three significant cases which have radically altered Ipunishment and sentencing for juveniles. These cases address 1) the death penalty for juvenile homicide offenders, 2) life with- out parole for juvenile non-homicide offenders and 3) mandatory life without parole for juvenile homicide offenders.

Regardless of the sociological or penological that capital punishment was an Eighth Amend- perspective of the reader with respect to juvenile ment violation for persons under 18.3 sentencing and punishment and the category Christopher Simmons, a 17-year-old student, juveniles under the age of 18, the trend of the along with two other juvenile males, hatched a court in justifying its decisions with respect to plan to break into a home, tie up the occupant juveniles may be perceived as unsettling. These and throw their victim off a bridge. Simmons cases demonstrate an expansion in the court’s boasted before the crime that they would get philosophy with respect to its perceived author- away with it because they were juveniles. Along ity supplanting that of federal and state legisla- with one of his companions, Simmons entered tures and the court’s role in pronouncing the the home of Shirley Crook at 2 a.m., switched on values of American society. These decisions a hall light awakening her and entered her bed- have also curtailed the role of juries. And the room. The two bound Mrs. Crook with duct tape court has taken “support” for its conclusions covering her eyes, mouth and hands. They from international consensus and law. loaded the terrified victim into her own vehicle Each of these cases was decided in the con- and drove her to a railroad trestle. Her feet and text of the Eighth Amendment of the United hands were then hog-tied with electrical wire, States Constitution. The Eighth Amendment is her face wrapped in duct tape, and she was — applicable to the states by virtue of the 14th exactly as had been pre-planned — thrown into Amendment.1 The Eighth Amendment pro- the waters below where she drowned. vides “Excessive bail shall not be required, nor The following day, Simmons was again boast- excessive fines imposed, nor cruel and unusual ing, this time that he had killed a woman punishments inflicted.” “because the bitch seen my face.”4 Simmons and CASE 1: ROPER V. SIMMONS his victim had been involved in a prior car acci- dent and were not strangers to each another. In Roper v. Simmons2 the court addressed the question of whether, under the Eighth and 14th Simmons was arrested, waived his right to an Amendments, an offender who was older than attorney, and confessed. Since he was 17 at the 15 but younger than 18 when he committed a time of the crime, he was not within the criminal capital crime may be sentenced to death. The jurisdiction of Missouri’s juvenile court system.5 court previously considered the proposition in He was tried for murder and other charges as an Stanford v. Kentucky which rejected the argument adult. Jurors were instructed that they could take into consideration his age, and prosecution and

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1591 defense both addressed his age in closing argu- crime”.14 The court in Thompson had considered ments. The jury returned a guilty verdict. The “civilized standards of decency,” the rarity of jury recommended the death penalty which imposition of the death penalty on persons the trial judge accepted. under 16 by juries and employed its “indepen- dent judgment” in considering that juveniles Simmons’ new attorney sought to overturn “are not trusted with the privileges and respon- the conviction and the sentence based in part sibilities” society placed in adults thereby mak- on Simmons’ lack of maturity, impulsiveness ing “their irresponsible conduct not as morally and susceptibility to outside influence and 15 manipulation, as well as Simmons’ negative reprehensible as that of an adult.” Thompson home environment, his underperformance as a considered the death penalty for juveniles inef- student and his use of alcohol and drugs. fective for retribution and deterrence (the two Arguments were heard and the motion denied. accepted justifications for the death penalty) The Missouri Supreme Court affirmed.6 Atkins and noted juveniles are not likely to make a v. Virginia7 which barred execution of persons risk-reward analysis. with intellectual disabilities under the Eighth Stanford, a year after Thompson, also consid- and 14th Amendments had not yet been heard. ered standards of decency. The court counted There is no evidence that Simmons was intel- the number of states which had statutes pro- lectually disabled, so that is not his issue on viding the death penalty for juveniles, found appeal. no national consensus and “emphatically re- Simmons now sought post-conviction relief ject[ed] the suggestion that the court should citing Atkins. The Missouri Supreme Court set bring its own judgment to bear on the accept- aside Simmons’ death sentence and sentenced ability of the juvenile death penalty [internal 16 him to life without the possibility of parole, quotes omitted, emphasis added].” probation or release unless granted by the Mis- On the day Stanford was decided, the court 8 souri governor. The Missouri Supreme Court held in Penry v. Lynaugh17 that “the Eighth held that since Stanford, Amendment did not mandate a categorical “a national consensus has developed exemption from the death penalty for the men- against the execution of juvenile offenders, tally retarded.” Only two states had ban execu- as demonstrated by the fact that eighteen tion of the intellectually disabled for a capital states now bar such executions for juve- offense, and those two states “even when niles, that twelve other states bar execu- added to the 14 states that have rejected capital tions altogether, that no state has lowered punishment completely, [did] not provide suf- its age of execution below 18 since Stanford, ficient evidence at present of a national that five states have legislatively or by case consensus.”18 The issue arose again in Atkins law raised or established the minimum age where the court found that “standards of decen- at 18, and that the imposition of the juve- cy have evolved” and “now demonstrate that nile death penalty has become truly unusu- the execution of the mentally retarded is cruel al over the last decade.”9 and unusual punishment”.19 The court relied on “objective indicia of society’s standards”20 evi- Citing Atkins, the court reiterated the Eighth denced by legislative enactments and state prac- Amendment guaranteed right against exces- tice. “These [objective] indicia determined that sive sanctions, and citing Weems v. United 10 executing mentally retarded offenders has States, based this right on the “precept of jus- become truly unusual and it is fair to say that a tice that punishment for crime should be grad- 11 national consensus has developed against it,” uated and proportioned to [the] offense.” The the court stated.21 court’s reasoning in Weems is based on the “expansive language in the Constitution,” his- The Roper court states that: tory, tradition, precedent and “the evolving “The Atkins court neither repeated nor standards of decency that mark the progress of relied upon the statement in Stanford that a maturing society” to determine proportionate the Court’s independent judgment has no punishment.12 bearing on the acceptability of a particular The court also considered Thompson v. Okla- punishment under the Eighth Amendment. homa13 wherein it found, “our standards of Instead we returned to the rule, established decency do not permit the execution of any in decisions predating Stanford, that the offender under the age of 16 at the time of the Constitution contemplates that in the end

1592 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 our own judgment will be brought to bear on well-formed as that of an adult.”29 Citing the question of the acceptability of the Thompson, the court accepts that “their irre- death penalty under the Eighth Amend- sponsible conduct is not as morally reprehen- ment [internal quotes omitted].” “Mental sible as that of an adult.”30 retardation diminishes personal culpability In addressing the juvenile death penalty as a even if the offender can distinguish right deterrent, the court states that “In general we from wrong [internal quotes omitted; leave to legislatures the “assessment of the effi- emphasis added]. ”22 cacy of various criminal penalty schemes… “Just as the Atkins court reconsidered the however, the absence of evidence of deterrent issue decided in Penry, the Roper court recon- effect is of special concern because the same siders the issue decided in Stanford.”23 The evidence that renders juveniles less culpable… Roper court set out to look at “objective indicia suggests [also that they] will be less susceptible of consensus” in determining Simmons’ fate in to deterrence.’”31 the “exercise of our own independent judg- Additionally, the court is concerned that the ment, [of] whether the death penalty is a dis- brutal nature of a crime may overpower mitigat- proportionate punishment for juveniles.”24 ing arguments, such as the age of the offender.32 The court tallied state statutes and found 30 It does not trust juries in these situations. states had rejected the juvenile death penalty The court adopted a categorical rule in Roper (12 had no death penalty at all, and 18 rejected holding that the death penalty for an offender the death penalty for juveniles). Only three under 18 is a violation of the Eighth Amend- states (Oklahoma, Texas and Virginia) had ment. “It is, we conclude, the age at which the actually executed offenders for crimes commit- line for death eligibility ought to rest.”33 The ted as juveniles. The court acknowledged that death penalty is “disproportionate punishment the rate of abolishing the juvenile death penalty for offenders under 18.”34 And Stanford no lon- (evidenced by the number of states doing so) ger controls on the issue because the objective had been slower than for the intellectually dis- indicia have changed.35 abled “… yet we think the same consistency of direction of change has been demonstrated.”25 The court furthers its position that the death penalty is disproportionate punishment for The objective indicia of consensus based on offenders under 18 by looking to foreign sources rejection of the juvenile death penalty in the where it “finds confirmation in the stark reality majority of states, infrequency of use and a that the United States is the only country in the trend toward abolition led the court to con- world that continues to give official sanction to clude that juveniles, just as the intellectually the juvenile death penalty.”36 Even though the disabled, are “categorically less culpable than court says foreign positions are not to be control- the average criminal.”26 ling it goes on to say that “…from the time of the The court reserves capital punishment to the court’s decision in Trop v. Dulles, the court has most serious crimes and the most culpable.27 referred to the laws of other countries and to The court sees age, i.e. youth, as a mitigating international authorities as instructive for its factor to be considered in imposing penalty for interpretation of the Eighth Amendment’s pro- capital crimes. The Simmons jury had been hibition of cruel and unusual punishments.”37 specifically instructed that they could take into CASE 2: GRAHAM V. FLORIDA consideration his age. This fact evidently, how- ever, held no sway for either the Missouri Graham v. Florida38 addressed the question of Supreme Court or the U.S. Supreme Court. whether, under the Eighth Amendment, a sentence of life without parole for juveniles in Juvenile offenders are deemed by the court to non-homicide offenses was cruel and unusual not be consistently among the worst offenders. punishment. The court bases this on the general lack of maturity, lack of control, and undeveloped Sixteen-year-old Graham committed armed sense of responsibility of juveniles all of which burglary and other crimes. The armed burglary can manifest in impetuousness and ill-consid- resulted in physical injury (albeit minor) to the ered actions and decisions.28 The court notes manager of the burglarized restaurant, and that juveniles are more susceptible to negative Graham and his accomplices fled empty hand- influences, outside pressures including peer ed. Graham pleaded guilty, accepted a plea pressure and that “[t]heir character … is not as agreement and was sentenced to three years

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1593 concurrent probation with adju- In those cases which consid- dication of guilt left in the bal- Since the state of ered categorical rules, the court ance. Six months later, and a has looked to “objective indicia mere 34 days shy of his 18th Florida had eliminated of society’s standards, as birthday, Graham broke the expressed in legislative enact- terms of probation by possess- its parole system, ments and state practice[s]” to ing a firearm, engaging in crim- Graham had no chance detect a national consensus inal acts including home inva- against the practice in issue.50 sion, holding the resident at of leaving prison. The court has also looked to gunpoint, ransacking the home, controlling precedent and its locking two people in a closet own independent judgment. and associating with other In its analysis of the objective criminals. His probation was revoked. indicia of national consensus, the court finds Graham was adjudicated guilty on the orig- that six jurisdictions do not allow life without inal armed burglary charge. Florida law pro- parole for juveniles; seven permit life without vided a range of sentence of five years to life. parole in homicide cases; and 37 states and the The trial judge had discretion to impose a District of Columbia as well as the federal gov- lighter sentence. He imposed the maximum ernment allow life without parole for juvenile sentence exceeding the prosecutor’s recom- non-homicide offenders in some instances. In mendation. Since the state of Florida had considering nationwide statistics, the court eliminated its parole system, Graham had no cites a study which found that 129 juvenile chance of leaving prison.39 offenders were serving life without parole sen- tences for non-homicide offenses. The distribu- Graham commenced an Eighth Amendment tion of those 129 cases was among only 12 challenge to the sentence. The trial court failed jurisdictions. This was taken by the court as to act on the motion which was therefore auto- strong evidence of the rarity of application. The matically dismissed.40 court also considers that many jurisdictions do The court held that the Eighth Amendment not prohibit life without parole for juveniles prohibits sentencing a juvenile to life without and as in other cases determines that it does parole for non-homicide offenses.41 “[E]volving not undermine “evidence of a consensus” standards of decency that mark the progress of based on the court’s reasoning that it may not a maturing society” were a key part of the have been a deliberate decision on the part of court’s analysis.42 That standard of analysis, legislators that juveniles might be sentenced to per the court “…necessarily embodies a moral life without parole in non-homicide cases.51 judgment.”43 And the applications of the stan- The court quoting from Harmelin v. Michigan,52 dards “change as the basic mores of society which case did not involve children, empha- change.”44 sizes that “The Eighth Amendment does not In addressing the issue, the Graham court mandate adoption of any particular penological cites Weems for the precept that “…punishment theory.” However, “a sentence lacking any legit- for crime should be graduated and propor- imate penological justification is by its nature tioned to [the] offense.”45 Cases implementing disproportionate to the offense.”53 It determines the proportionality standard are of two types: 1) that none of the recognized penological sanc- those determining if a term of years is uncon- tions (retribution, deterrence, incapacitation, stitutionally excessive and 2) those in which and rehabilitation) justify life without parole for the court has applied categorical rules prohibit- juvenile nonhomicide offenders.54 The court’s ing the death penalty as was the case in Roper. position is furthered by the nature of juveniles as Some cases have considered the nature of the established in Roper — that children are differ- offense, as in Kennedy v. Louisiana46 while others ent from adults in terms of their development, have considered characteristics of the offender perceptions, experiences and therefore, how as in Roper.47 “[P]roportionality is central to the they are to be treated. Eighth Amendment.”48 In furtherance, the court points out that life The analysis in Graham of life without parole without parole for a juvenile is in fact a much for the class of persons under age 18 applies longer (therefore harsher) sentence than life the categorical approach utilized in Roper, At- without parole for an adult offender on the kins and Kennedy.49 simple basis of age at commission of the crimes

1594 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 and life expectancy. The younger the offender At age 14, petitioner Miller was hanging out is, the longer the sentence. at home with his 14-year-old friend when adult neighbor, Cannon, came to the home to buy “A state is not required to guarantee eventual drugs from Miller’s mother. Miller and his freedom to a juvenile offender convicted of a friend followed Cannon to his nearby trailer non-homicide crime … but must [impose] home. The three smoked marijuana together some meaningful opportunity for release based and played drinking games. Cannon passed on demonstrated maturity and rehabilitation. out. The boys stole his wallet and $300. Miller It is for the State … to explore the means and tried to put the emptied wallet back. Cannon mechanisms for compliance.”55 The juvenile awoke and grabbed Miller’s throat. The other may still be behind bars for life, but the state boy hit Cannon with a baseball bat and Miller cannot make that judgment “at the outset.” then repeatedly hit Cannon with the bat. They As in Roper, the Graham court looks to inter- covered Cannon’s face and left. But they re- national laws and opinion. “Today we continue turned and set Cannon’s trailer ablaze with that longstanding practice in noting the global two fires in an effort to destroy evidence. Can- consensus against the sentencing practice in non died from the blows to his head and smoke question … As we concluded in Roper with inhalation. Miller’s childhood was marked by respect to the juvenile death penalty, ‘the Unit- foster care, an alcoholic, drug-addicted mother ed States now stands alone in a world that has and an abusive stepfather, as well as Miller’s turned its face against’ life without parole for own use of drugs and alcohol. He had attempt- juvenile non-homicide offenders.”56 The “… ed suicide four times, the first at age six. overwhelming weight of international opinion Though initially charged as a juvenile, the against” life without parole for non-homicide prosecutor sought and was granted removal to offenses committed by juveniles “provide[s] adult court where Miller was found guilty of respected and significant confirmation for our murder in the course of arson. The juvenile own conclusions.” 57 And the court refers to court had agreed to the transfer after a hearing the “judgment of the world’s nations” as in which evidence was heard regarding the “demonstrat[ing] that the Court’s rationale crime, defendant’s mental maturity and his has respected reasoning to support it.”58 prior juvenile record. Alabama statutes pro- vided that punishment upon conviction for CASE 3: MILLER V. ALABAMA murder in the course of arson was mandatory In Miller v. Alabama59 the question before the life imprisonment.62 The Alabama Court of court is whether the Eighth Amendment pro- Criminal Appeals affirmed and ruled that the hibits a mandatory life sentence without the sentence “was not overly harsh relative to the possibility of parole for juvenile homicide crime and ... was permissible under the Eighth offenders. This court has combined two cases Amendment.63 into a single decision in Miller. The Miller court took a predictably different At the age of 14 petitioner Jackson and two view than did the lower courts in holding that other boys, one of whom (Shields) had a “mandatory life without parole for those under sawed-off shotgun up his sleeve, set out to rob the age of 18 at the time of their crimes violates a video store. Jackson initially remained in the the Eighth Amendment’s prohibition against car while the other two entered the store, but cruel and unusual punishments.”64 he too then entered shortly thereafter. The The court reiterates the mandate from Roper female store clerk refused to turn over the that the Eighth Amendment guarantees a right money and threatened to call police. Shields not to be subjected to excessive sanctions,65 “… shot and killed her. The three offenders left which right flows from the basic ‘precept of empty-handed.60 Arkansas law allows prosecu- justice that punishment for crime should be tors discretion to try a 14 year old as an adult graduated and proportioned’” to offender and for certain offenses. Jackson was charged as an offense.66 adult with capital felony murder and aggra- vated robbery. His motion to remove to juve- The court again focuses on two lines of nile court was denied after consideration of precedent regarding proportionate punish- expert testimony and circumstances of the ment: 1) categorical rules based on culpabil- offense. Jackson was convicted and given the ity in the offense and severity of punishment mandatory sentence of life without parole.61 and 2) a requirement that characteristics of a

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1595 defendant and the specific offenses be taken Miller does “[not] require a categorical bar on into consideration.67 life without parole for juveniles”76 but rather prohibits a mandatory sentence of life without Reiterating Roper and Graham, the Miller parole for juveniles and “…require[s] [the sen- court addresses the distinguishing characteris- tencer] to take into account how children are tics of juveniles and adults which render juve- different, and how those differences counsel niles “constitutionally different for sentencing against irrevocably sentencing them to a life- 68 purposes.” It is these differences that “dimin- time in prison.”77 ish the penological justifications for imposing the harshest sentences on juvenile offenders, Even though 29 states and the federal gov- even when they commit terrible crimes.”69 ernment had statutory provisions for manda- tory life without parole for some juveniles in The holding in Graham applied to non- murder cases, the Miller court stated, homicide cases; however, the Miller court emphasizes that nothing in Graham which was “…the [Jackson and Miller] cases here are “said about children — about their distinctive different from the typical one in which we (and transitory) mental traits and environmen- have tallied legislative enactments. Our tal vulnerabilities — is crime-specific.”70 Man- decision does not categorically bar a pen- alty for a class of offenders or type of crime datory sentencing schemes as applied in Miller — as, for example, we did in Roper and prevent the sentencer from considering the age Graham. Instead it mandates only that a of the offender or the characteristics of youth in sentencer follow a certain process – consid- “assessing whether the law’s harshest term of ering an offender’s youth and attendant imprisonment proportionately punishes a juve- characteristics – before imposing a particu- nile offender [and] [t]hat contravenes Graham’s lar penalty. And in so requiring, our deci- (and also Roper’s) foundational principle: that sion flows straightforwardly from our imposition of a State’s most severe penalties on precedents: specifically, the principle of juvenile offenders cannot proceed as though Roper, Graham and our individualized sen- 71 they were not children.” It lacks proportional- tencing cases that youth matters for pur- ity. Quoting Graham, it “prevents … consider- poses of meting out the law’s most serious ing a juvenile’s “lessened culpability” and great- punishments. When both of these circum- er “capacity for change.’”72 And it conflicts with stances have obtained in the past, we have the requirement for individualized sentencing not scrutinized or relied in the same way on for the most serious offenses and penalties. The legislative enactments...We see no difference court again in Miller analogizes life without here… In Graham, we prohibited life-with- parole for a juvenile to a death sentence. It takes out-parole terms for juveniles committing away all possibility of rehabilitation and the non-homicide offenses even though 39 juris- opportunity for an impetuous, compulsive, irre- dictions permitted that sentence… And in sponsible and immature child to develop a sense Atkins, Roper, and Thompson, we similarly of responsibility and maturity and become a banned the death penalty in circumstances productive member of society. Youth is a miti- in which “less than half” of the “States that gating factor and must be considered. And the permit[ted] capital punishment (for whom discretion of the trial court in considering the the issue exist[ed])” had previously chosen age of the offender must exist at post-trial sen- to do so… So we are breaking no new tencing. It is not sufficient that age was consid- ground in [the two cases combined in Miller] ered at the time of transfer of the offender from [internal citations omitted].”78 73 juvenile court to adult court. In order to satisfy the requirements of the The Miller court also addresses the issue of Eighth Amendment, discretionary post-trial sen- objective indicia of society’s standards and reit- tencing is what is required by the Miller court: erates that merely counting the number of “… Graham, Roper, and our individualized states which provide for sentences of manda- sentencing decisions make clear that a tory life without parole regardless of age of judge or jury must have the opportunity to offender is not dispositive.74 It is not, since “it is consider mitigating circumstances before impossible to say whether a legislature had imposing the harshest possible penalty for endorsed a given penalty for children (or juveniles… [otherwise would] violate [the] would do so if presented with the choice).”75 principle of proportionality, and so the

1596 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Eighth Amendment’s ban on cruel and 40. Graham, supra, slip op. at 6. The First District Court of Appeal 79 of Florida affirmed at 982 So.2nd 43 (2008). The Florida Supreme Court unusual punishment.” denied review at 990 So.2nd 1058 (2008). The Court granted certiorari at 556 U.S. ___ (2009) (see Graham slip op. at 7. SUMMARY 41. Graham, supra, slip op. at 24. 42. Id. slip op. at 7 citing Estelle v. Gamble, 429 U.S. 97, 102, (1976) In summary, the court has held that it is a (quoting Trop, supra, at 101). 43. Graham, supra, slip op. at 7. violation of the Eighth Amendment of the U.S. 44. Id. slip op. at 7 citing Kennedy v. Louisiana, 554 U.S. ___, ___ Constitution to sentence an offender who was (2008) (slip op. at 8) (quoting Furman, supra, at 382). at the time of committing the crime a juvenile 45. Graham, supra, slip op. at 8 quoting Weems, supra, at 367. 46. Graham, supra, slip op. at 9 citing Kennedy, supra, at ___ (slip op. under the age of 18 to 1) the death penalty in at 28). homicide cases, 2) life without parole in non- 47. Graham, supra, slip op. at 9-10. 48. Id. slip op. at 9. homicide cases and 3) mandatory life without 49. Id. slip op. at 10. parole in homicide cases. Underlying these hold- 50. Id. slip op. at 10 citing Roper, supra, at 563. 51. Graham, supra, slip op. at 15. ings is a body of evidence regarding the traits of 52. Id. slip op. at 20 quoting Harmelin v. Michigan, 501 U.S. 957, 999 juveniles and a strong belief in the rehabilitative (1991). 53. Graham, supra, slip op. at 20 citing Ewing v. California, 538 U.S. potential of juvenile offenders with the goal that 11, 25 (2003). they have the opportunity to become morally 54. Graham, supra, slip op. at 20-23. responsible members of society. 55. Id. slip op. at 24. 56. Id. slip op. at 31 citing Roper, supra, at 577. 57. Graham, supra, slip op. at 31 citing Roper, supra, at 578. 1. Furman v. Georgia, 408 U.S. 238, 239 (1972) (per curiam); Robinson 58. Graham, supra, slip op. at 31. v. California, 370 U.S. 660, 666-667 (1962); Louisiana ex rel. Francis v. 59. Miller v. Alabama, 567 U.S. ___ (2012). Slip op. Certiorari granted Resweber, 329 U.S. 459, 463 (1947) (plurality opinion). Miller v. Alabama at 565 U.S.___ 2011) (No. 10-9646); and Jackson v. 2. Roper v. Simmons, 543 U.S. 551 (2005). Hobbs at 565 U.S. ___ (2011) (No. 10-9647). 3. Stanford v. Kentucky, 492 U.S. 361 (1989). 60. Miller, supra, slip op. at 2. Jackson v. State, 359 Ark. 87, 89, 194 4. Roper v. Simmons, 543 U.S. 551, ___ (2005). S.W. 3d 757, 759 (2004). 5. Id. at 557. See Mo. Rev. Stat. §§211.021 (2000) and 211.031 (Sup. 61. Affirmed by the Arkansas Supreme Court. 359 Ark. 87, 194 S.W. 2003). 3d 757 (2004). Ark. Code Ann. §5-4-104(b) (1997). 6. State ex rel. Simmons v. Roper, 112 S.W. 3d 397 (2003) (en banc). 62. Miller, supra, slip op. at 5-6. 7. Atkins v. Virginia, 536 U.S. 304 (2002). 63. Id. syllabus slip op. at 1. 8. State ex rel. Simmons v. Roper, supra, 413. 64. Id. slip op. at 2. 9. Id. at 399. 65. Id. slip op. at 6 citing Roper v. Simmons, 543 U.S. 551, 560 (2005). 10. Roper, supra, at 560. Atkins v. Virginia, 536 U.S. 304, 311 (2002). 66. Miller, supra, slip op. at 6 quoting Weems, supra, at 367. 11. Roper, supra, at 560 quoting Weems v. United States, 217 U.S. 349, 67. Miller, supra, slip op. at 6-7 citing Kennedy, supra. 367 (1910). 68. Miller, supra, slip op. at 8 citing Roper, supra, at 569. 12. Id. at 561 citing Trop v. Dulles, 356 U.S. 86, 100-101 (1958) (plural- 69. Miller, supra, slip op. at 9. ity opinion). 70. Id. slip op. at 10. 13. Id. at 561 citing Thompson v. Oklahoma, 487 U.S. 815 (1988). 71. Id. slip op. at 11-12. 14. Id. at 818-838. 72. Id. slip op. at 1 quoting Graham, supra, at ____ (2010) (slip op. at 15. Id. at 835. 17, 23). 16. Roper, supra, at 562 citing Stanford v. Kentucky, 492 U.S. 361, 73. Miller, supra, slip op. at 27. 377-378. 74. Id. slip op. at 22-23. 17. Penry v. Lynaugh, 492 U.S. 302 (1989). 75. Id. slip op. at 23. 18. Id. at 334., cited by Roper, supra, at 562. 76. Id. slip op. at 17. 19. Roper, supra, at 563. 77. Id. 20. Id. at 563. 78. Id. slip op. at 20-22. 21. Id. at 563 quoting Atkins, supra, at 316. 79. Id. slip op. at 27 22. Id. at 563 quoting Atkins, supra, at 312 and 318. 23. Id. at 564. 24. Id. at 564. 25. Id. at 566. About The Author 26. Id. at 567 quoting Atkins, supra, at 316. 27. Id. at 568 quoting Atkins, supra, at 319. 28. Id. at 569 quoting Johnson v. Texas, 509 U.S. 350, 367 (1993). Doris J. “Dorie” Astle earned 29. Roper, supra, at 570. B.S., M.S., and Ph.D. degrees 30. Id. at 570, quoting Thompson, supra, at 835. 31. Roper, supra, at 571. from Oklahoma State University 32. Id. at 573. and her J.D. from the University 33. Id. at 574. 34. Id. at 575. of Tulsa. She is a former partner 35. Id. with the Tulsa firm of Hall Estill, 36. Id. at 575-578. 37. Id. at 575 citing Trop, supra. and is now an associate professor 38. Graham v. Florida, 560 U.S. _____ (2010), 130 S. Ct. 2011 (2010). of criminal justice at Southwest- Slip op. 39. Id. slip op. at 6 citing Fla. Stat. §921.002(1)(e) (2003). ern Oklahoma State University.

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DUI Law: A Trial of Tests By Sonja R. Porter

here was a time when a DUI case was simply described with words like “odor,” “slurred speech,” “red, watery Teyes” and “unsteady on his feet.” Walk into a contested DUI case today and you are likely to hear words like “assays,” “clues,” “metabolites,” “GERD,” “partition ratio,” “gas chro- matograph mass spectrometer,” “head space,” “anticoagulants,” “ASCLAD” and “ILMO.” Thanks to modern technology and the desire for stronger evidence, the “simple DUI case” has become quite complex. No longer is the opinion of the officer enough as jurors expect to see more conclusive evidence. The purpose of this article is to highlight the main “tests” now used in DUI cases and some of the current issues involved.

STANDARDIZED FIELD SOBRIETY TESTS heel to toe on the WAT or that the suspect point- ed his toes down instead of up on the OLS. Almost every DUI/APC arrest involves the officer administering, or attempting to adminis- DRE (THE NEXT LEVEL OF SFSTs) ter, one or more field tests approved by the SFSTs were originally designed to be used for National Highway Traffic Safety Administration evaluating a person thought to be under the (NHTSA). These tests are typically referred to as influence of alcohol. But what happens when Standardized Field Sobriety Tests (SFSTs). There the breath test comes back .00 or the officer sus- is a basic set of three tests: the Horizontal Gaze pects impairment of other substances? The Nystagmus (HGN), the Walk and Turn (WAT), answer NHTSA came up with is the DRE, which and the One Leg Stand (OLS). According to the can stand for “drug recognition expert” or “drug NHTSA manuals, accuracy of the results is recognition examiner.”1 These officers are taught improved when all three tests are administered that after completing a course that spans a week and scored in the standardized manner in which plus practice in the field, “a trained drug recog- the officer was taught. However, some officers nition expert (DRE) can reach reasonably accurate forget the specifics of the training, such as how conclusions concerning the category or categories of many passes they are supposed to do on the drugs, or medical conditions, causing the impairment HGN, but will then insist that they conducted observed in the subject.”2 The DRE examination the tests the way they were trained. But even includes taking vital signs such as blood pres- then, at best they are not perfect because the sure and temperature, measuring the size of the scoring is at the discretion of the officer. Add to pupils, conducting additional psychophysical this that what the officer is taught to score is not tests and asking the suspect about drug use and what the “untrained” person will care about, medical history. At best, the only “opinion” the such as whether the feet were exactly touching DRE is allowed to give is whether he believes

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1599 the person is under the influ- would have to prove his quali- ence of or impaired by a partic- SFSTs and DREs fications and be deemed quali- ular category of drug, which fied as an expert by a trial often is the same drug the per- are, at best, subjective, court; and whether or not DRE son admitted to be taking. He tests are scientific tests needing can also state what he has been which is why all 50 proper foundation before the taught regarding the effects of states have implied results can be admitted as evi- certain categories.3 The goal is dence of impairment at trial as to establish a reason to request a consent laws that opposed to simply a method of blood test to confirm. require a person establishing probable cause. SFTSs have been around for a Of course, getting in testi- long time, and they are generally arrested for DUI to mony about the SFTSs is one accepted nationwide as a means thing, but getting a jury or of establishing probable cause. submit to a chemical judge to believe and accept the But states vary on the nature of test or risk losing officer’s opinion as to results is these tests. The NHTSA manuals another. In some cases, there is view the three SFSTs as “scien- their license. video footage of the field tests, tifically validated,” but the Ok- which allows a jury or judge to lahoma Court of Criminal Ap- see the suspect’s actual perfor- peals says they are not “scientific tests” that mance for themselves. Jurors have even been require “scientific reliability.”4 known to try the tests out themselves in the jury room to see how they would perform Shortly after this opinion came out, the before judging the defendant’s performance. Oklahoma Legislature added language to 47 O.S. §11-902 to allow testimony by anyone SFSTs and DREs are, at best, subjective, trained in SFSTs or trained as a “drug recogni- which is why all 50 states have implied consent tion expert.” laws that require a person arrested for DUI to submit to a chemical test or risk losing their 47 O.S. §11-902(N) now reads (with emphasis license. In most states, like Oklahoma, one can added): “ If qualified by knowledge, skill, expe- be presumed to be DUI based on a chemical test rience, training or education, a witness shall be result of a blood alcohol content of 0.08 or more allowed to testify in the form of an opinion or because these tests are assumed to be more otherwise solely on the issue of impairment, but not credible and accurate. Or are they? on the issue of specific alcohol concentration level, relating to the following: BREATH TESTING 1. The results of any standardized field Chemical tests for alcohol and drugs for pur- sobriety test including, but not limited to, poses of DUI prosecutions and implied consent the horizontal gaze nystagmus (HGN) test matters are governed by the Oklahoma Board administered by a person who has complet- of Tests for Alcohol and Drug Influence (BOT). ed training in standardized field sobriety The rules for the breath tests are found in testing; or 40:30-1-1 et seq. Before a chemical test can be admissible, the state must show that the test 2. Whether a person was under the influ- was administered within two hours of arrest ence of one or more impairing substances and that the rules of the BOT were followed.5 and the category of such impairing sub- The rules dictate which testing and simulator stance or substances. A witness who has devices can be used, the sequence to be fol- received training and holds a current certifica- lowed, the method of reporting the results tion as a drug recognition expert shall be quali- and the maintenance of the devices. It is the fied to give the testimony in any case in which job of the state director of the BOT to see that such testimony may be relevant.” these rules are carried out and to provide Since the law has changed, this issue has not training for operators. come up to the court regarding the DRE. Two There are only two devices that are currently issues which need to be addressed are: the fact still approved, but only one is actually used that the statute declares such a witness to be statewide. The Intoxilyzer 8000 is made by qualified to give testimony about drug impair- CMI Inc., and is currently the device in Okla- ment when, for example, a pharmacologist homa. Its older cousin, the Intoxilyzer 5000 has

1600 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 been phased out here in Oklahoma, but is still substances are suspected, the officer can request used in other states. The 8000 is similar but that the person submit to a blood test. with some notable differences. For example, BLOOD TESTS most of the data entered can be done by scan- ning the officer’s permit card and the subject’s Ask a group of ordinary people which test driver’s license card, which saves time and they think is more reliable, and most will likely typing errors. A big difference is that it uses a say a blood test. Whether or not that is true is dry gas canister as a simulator, which can last debatable. What is true is that blood tests cost up to two years, compared to the wet-bath more in time and money, which is why, in this simulator which had to be changed out often. author’s opinion, it is not used as the primary Because of this, the BOT does not allow main- test. Blood test results were less likely to be tenance by anyone other than the BOT. The challenged, but even that is changing. More BOT trains its operators to “push the green but- defense attorneys across the nation have ton and follow the prompts” and, if it prints an stopped being intimidated by forensic science affidavit, then the test was successfully adminis- and have instead, embraced it. One of Okla- tered. Operators are also taught that if the device homa’s own, Josh D. Lee, of Vinita, is now a detects certain things, it is programmed to abort forensic science co-chairman for the chemistry the test to prevent invalid results.6 But like any and the law Division of the American Chemis- machine, it is not infallible. try Society, and he teaches other attorneys across the nation about chromatography, which Across the nation, defense lawyers have is used to test blood and ways to challenge it. stopped accepting the number printed and have been successfully attacking the various Just like the other tests, blood test results, in breath testing devices or the results through order to be admissible, must have been collected and tested in accordance with the rules of the cross-examination and expert witnesses who 8 can testify about how the machine can give BOT. If the lab is accredited, then it is excluded from the rules as to analysis, but is, of course, incorrect results and raise enough doubt so required to meet the standards of the accredita- that no longer is a number a given win. When tion. Accreditation requires record keeping, the 8000 first came on the scene, a few states which can also be subject to challenge. rejected it. In Florida and Arizona, courts have ordered discovery to be produced from CMI to In recent years, the United States Supreme allow defense attorneys an opportunity to Court has made decisions in some blood test challenge, but CMI refuses, and cases have cases that have created quite a stir in DUI cases been dismissed as a result. Just this year, the nationwide. It began when the court held that State Police of Pennsylvania have announced to admit the contents of certain documents, they have ceased to do any more evidentiary such as lab reports, a witness must be called to breath tests in response to a successful chal- allow cross-examination about the contents lenge to their 5000.7 before they can be admitted at trial.9 Then, most recently, the court addressed the issue of Here in Oklahoma, there have been success- warrantless forced blood draws for DUI cases. ful attacks to the admissibility of both the 5000 and now the 8000, alleging the device is not In Missouri v. McNeely, 569 U.S. ___ (2013), maintained in compliance with the rules of the the court held that the natural dissemination of BOT as required. The most current challenges, alcohol in the blood is not a per se exigent cir- first made by Stephen G. Fabian Jr., involves cumstance that would allow a forced blood the dry gas canister produced by ILMO and the draw without a warrant for a DUI case. Mis- ability of the state to prove compliance with souri law allows for a forced blood draw at a maintenance. At the time of this writing, a few medical facility when the suspect refuses to judges have found insufficient proof of compli- submit to a test under the implied consent ance and have not allowed test results to be laws. The majority agreed in the result in the admitted into evidence. Some of these cases are case before it, but did disagree as to the reason. being appealed. Justice Sotomayor, writing the opinion, said there must be a case by case determination as However, the breath test is not the only chem- to whether or not an emergency exists to force ical test available. If a proper breath testing a blood draw without a warrant. While time device is not available, the person cannot give a can be a factor, it should not be the only factor sufficient breath sample or if other intoxicating for every case. Chief Justice Roberts wrote that

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1601 more guidance was needed for police officers 1. NHTSA’s Training Manual for DRE, 2002, p. HS 172, R5/02. 2. NHTSA’s DRE Training Manual 2002, HS 172, R5/02, p.I-1, and, in his opinion, if a warrant could be emphasis added. obtained in the time it took to get the person to 3. See, generally, NHTSA’s DRE Training Manual, 2002. 4. DRE Manual, HS 172, R5/02, p. 12, p. # I-1 and Anderson v. State, the hospital, then the officer must get a warrant. 2010 OK CR 27, 252 P.3d 211, emphasis added, holding that “a scien- But if the distance is too short or the officer tific foundation for the test was not required as field sobriety tests are not based upon scientific evidence and are not ‘a scientific test in the does not get a response to his request in time, sense it requires a certain scientific reliability’, so that neither Fry, then the officer could proceed without a war- Daubert or any other test establishing reliability or trustworthiness is rant. Justice Sotomayor responded that this applicable.” 5. 47 O.S. §756 and Westerman v. State, 1974 OK CR 151. would render those arrested closer to an emer- 6. This author received the training by the BOT and holds a permit gency room automatically subjected to a forced as an independent operator of the 8000. 7. See court’s opinion in Commonwealth of Pennsylvania v. Schidlt, blood draw than those farther away. Only Jus- Court of Common Pleas of Dauphin County, PN, NO 2191 CR 2010 tice Thomas completely dissented because, he and http://articles.philly.com/2013-02-01/news/36661972_1_dui- cases-blood-samples-dui-convictions . claims, evidence disappears with every min- 8. See 47 OS §752. ute that passes. 9. See Crawford v. Washington, 541 U.S. 36; Melendez-Diaz v. Massa- chusetts, 557 U.S.__; and Bullcoming v. New Mexico, __U.S.__, 131 S. Ct. Oklahoma does not permit forced blood 2705, 180 L.Ed. 2d 610 (2011). draws without a warrant except in cases of death or serious bodily injury, so it will be About The Author interesting to see what, if any, impact this case has on us, especially in light of Sotomayor’s Sonja R. Porter, aka “the DUI reference to this limited warrantless blood Diva,” has a solo practice in draw in her analysis, but without particular Oklahoma City which is primar- comment in favor or against. ily focused on DUI defense and expungements. She is a former CONCLUSION associate of the DUI defense Tests of some type will always be a part of firm of Fabian & Associates PC the DUI case. Therefore, it is imperative that and a former Oklahoma County the attorneys involved on either side under- assistant district attorney. She holds permits issued stand the tests if they hope to either effectively by the Board of Test as an independent specialist of submit them or discredit them. There are good the Intoxilyzer 5000 and as an independent operator resources and classes that are accessible to the of the Intoxilyzer 8000. She has completed the attorney who wants to learn more about the NHTSA training for SFSTs and attends advanced tests being used and what is to come. Knowl- seminars on DUI defense. She has also presented edge is definitely power in a DUI case. CLEs across Oklahoma.

YOU ARE NOT WWW.OKBAR.ORG/MEMBERS/LAWYERSHELPINGLAWYERS 800.364.7886 ALONE. FREE 24-HOUR CONFIDENTIAL ASSISTANCE

1602 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Legal Aid Services of Oklahoma, Inc. EJW Disaster Legal Corps Fellows Position

Equal Justice Works and AmeriCorps have partnered together to provide the Disaster Legal Corps Fellowship opportunity to aid the legal needs of disaster victims across the nation. The Disaster Legal Corps (DLC) Fellow will provide civil legal assistance to victims of disasters in Oklahoma, including the recent May 2013 tornadoes. Two Fellowship positions are available in LASO’s newly-created “Disaster Relief Unit” in LASO’s Norman, OK law office. Based on Equal Justice Works AmeriCorps guidelines, the term of service will begin in September of 2013 for one year (with a possible renewal). Positions requires comple- tion of NSOPR, state(s), and FBI Fingerprint criminal background checks as well as compliance with all CNCS Federal Regulations throughout the fellowship program. The AmeriCorps DLC Fellow will: 1) Provide direct representation to income eligible disaster victims on issues including, but not limited to, landlord tenant matters, home foreclosures, FEMA issues including recoup- ment and appeals, problems with homeowner’s insurance, problems with health and dis- ability benefits, child support and other family law matters, consumer and medical debt, legal matters related to financial planning, drivers’ license reinstatement, and expunge- ment issues. (55%) 2) Work with community partner agencies, including case management staff at the unified Disaster Case Management Center to create protocols and facilitate referrals. (15%) 3) Develop materials to publicize the project to a variety of audiences. (10%) 4) Deliver “Ask a Lawyer” presentations at various locations on legal topics of broad appeal and create educational materials to be shared with host staff statewide. (15%) 5) Other administrative tasks related to AmeriCorps and Equal Justice Works program com- pliance. (5%) Qualifications The Fellow will be required to have excellent oral and written communication skills, as well as interpersonal, organizational and negotiation skills and the ability to work as a team member. Diverse economic, social and cultural experiences and a second language are preferred. The Fellow must be admitted to practice law in the state of Oklahoma and must have graduated from an Equal Justice Works member law school. COMPENSATION is $38,300 which includes: • AmeriCorps living allowance of $24,200 • Supplemental benefits paid by LASO of $14,100 for housing, student loans, relocation, professional dues, life & disability insurance, and retirement plan expenses. Other benefits: • $5,550 AmeriCorps Legal Education Award upon successful completion of service • AmeriCorps provided childcare assistance • LASO professional development and training assistance • Student loan forbearance and interest accrual payment for eligible loans upon successful completion of service • Participation in Equal Justice Works training opportunities and conferences, as applicable • LASO fringe benefits, including health insurance (medical, dental, vision, Rx), disability insurance, life insurance, and flex benefit plan TO APPLY: Please send a résumé, cover letter, and a list of three (3) references with mailing and/ or email addresses and telephone numbers, law school transcript and legal writing sample to Bud Cowsert, Director of Human Resources, at [email protected]. Deadline for Application: Sept. 2, 2013

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1603 1604 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Criminal Law Human Trafficking: Beyond Pretty Woman and Huggy Bear By Robert Don Gifford Pimpin’ ain’t easy. – Big Daddy Kane1 The Runaway he was nine years old when she ran away for good.2 Just like other young girls who are “recruited” at malls, nightclubs, schools, group homes, homeless shelters, foster homes, bus S 3 stops, parks and even hallways of court buildings, she was 11 when she was first “turned out” to her first “John” by a boyfriend and pimp.4 She learned to respect the “bottom bitch,”5 there cannot be any “shame in your game,” and that the “game” is “sold and not told.”6 She went to parties. She went on the road.

Now at 15, she came to Oklahoma City after a life for themselves and the hope to someday multi-state tour with her pimp and his stable. bring their families over as well. Once in the He set her up in a hotel, fed her and gave her no United States, they are forced through threats of options.7 The pimp got her a cell phone with an deportation or harm to their families to continue Oklahoma area code and he advertised her “ser- the slave-wage work in restaurants and massage vices” on a popular public website. Like many of parlors. They sleep on mattresses in the back- these women and children in the sex trade, she room and eat very little. With the language bar- has some of the same traits as women who are riers and control by fear and intimidation, they abused in domestic relationships, i.e., psycho- remain in servitude. Each day they surrender logically traumatized and begin to identify with their meager tips and earnings until they have their traffickers, falling victim to Stockholm Syn- paid their smuggling debts. You eat at this small drome.8 Finally after an arrest, she realizes she restaurant once a week and often bring work has nowhere to turn. No family, no education with you as you enjoy your meal. They assume and no future. She needs someone to help her by your dress and your work, that you are navigate the legal minefield and life in general. important and smart. One day you find a cryptic She needs to know where to turn. She sees you note with your bill as they pick up from your talking to another county inmate at an arraign- meal. They ask for help. ment. She asks you for help. AFTER THE STORM THE SLOW BOAT FROM CHINA On the roofs of storm damaged homes of The women came from the same small village Oklahoma, in the fields and meat packing plants in a rural province of China. They arrived in the and on the work crews of lawn maintenance, United States on promises of jobs and a better undocumented Mexican and South American

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1605 immigrants work for low wages, no insurance civil remedy for trafficked victims.21 In 2003, up and no future under the threat of calls to law to 20,000 foreign national victims were enter- enforcement. If they try to leave, “El Jefe” will ing the U.S. every year.22 withhold their meager paycheck if they attempt Sex trafficking is defined by the TVPA as the to leave their jobs before paying off debts to “recruitment, harboring, transportation, provi- labor contractors. sion or obtaining of a person for the purpose of HUMAN TRAFFICKING: THE NEW a commercial sex act.”23 Under TVPA, sex traf- CRIME DE JOUR fickers whose victims are between 14 and 17 years of age, face a mandatory minimum sen- Fast, I got to find out the secrets of pimping. I 24 really want to control the whole whore. I want to be tence of 10 years to life imprisonment. If the the boss of her life, even her thoughts. I got to con child is under the age of 14 or force, fraud or them that Lincoln never freed the slaves. coercion is used, the trafficker faces a manda- Iceberg Slim9 tory minimum sentence of 15 years to life imprisonment.25 Only victims of “severe forms In 1865, the United States first outlawed of trafficking in persons” are eligible to receive involuntary servitude,10 and Congress acted in services and benefits under federal and state 1910 to outlaw both white slavery and the programs.26 TVPA defines severe forms of traf- interstate transport of females for the purpose ficking as commercial sex acts “induced by of prostitution (Mann Act or the White Slave force, fraud, or coercion,” or those in which the Traffic Act).11 Heavyweight Champion Boxer person induced is under the age of 18.27 Jack Johnson, Frank Loyd Wright and Charlie INVOLUNTARY SERVITUDE AND Chaplin became some of the more notorious SLAVERY STATUTES Mann Act prosecutions.12 Four individuals involved with the running the “Emperor’s The involuntary servitude and slavery stat- Club,” a prostitution service visited by former utes28 include a prohibition against involuntary governor Elliot Spitzer, were charged with vio- servitude and slavery, enticement and peon- lating the Mann Act. Spitzer was never age.29 Involuntary servitude requires that a charged.13 The sad reality is that pimping can person was held in unlawful service to another be profitable.14 One study showed a pimp’s for a term through means of coercion. Peonage “stable” of four prostitutes produced $632,000 requires evidence of involuntary servitude a year.15 along with facts that demonstrate the servitude was linked to a debt owed to another such as In 2005, the United States signed the United paying off a “coyote” for transportation across Nations Convention Against Transnational the U.S. border. Organized Crime, which in-cludes protocols regarding human trafficking and smuggling.16 In a “forced labor” prosecution, there must In 2011, the U.S. Department of Justice an- be evidence to show a defendant knowingly, nounced the Human Trafficking Enhanced by threats of serious harm to or physical Enforcement Initiative to combat human-traf- restraint of any person, or by means of abuse or ficking threats.17 The Oklahoma Bar Association threats of abuse of law or legal process to and the American Bar Association’s Task Force obtain the labor services of another person. on Human Trafficking under OBA President Jim “Serious harm” is defined to include both Stuart and ABA Governor and OBA member physical and nonphysical types of harm. Fur- Jimmy Goodman are a part of a nationwide ini- ther, the statute applies to threats toward third tiative to combat human trafficking. persons like the family of a victim. THE FEDERAL RESPONSE The sex trafficking statute30 prohibits the recruiting, enticing, harboring, transporting, Jesus is just a guy who cuts my lawn. providing or obtaining a person for commer- Gemma, Sons Of Anarchy18 cial sex. That statute further requires proof the In 2000, the Trafficking Victims Protection defendant knew that force, fraud or coercion Act (TVPA), was passed to make human traf- would be used to cause the person to engage in ficking a federal crime.19 Before the TVPA’s commercial sex or knew that the person was enactment, over 12 million persons were being under 18 years of age. When there is a minor, sold annually into some form of slavery, more there is no requirement to prove force, fraud or than any time in human history.20 In 2003, the coercion. The statute also prohibits a defendant TVPA was specifically amended to include a from knowingly benefitting financially or

1606 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 receiving something of value by participating state hotlines and that they may be eligible for in a venture that engages in such acts and, like medical assistance and counseling from the most federal prosecutions, the conduct must federal or state government due to their status affect interstate or foreign commerce. as human-trafficking victims.36 The TVPA contains additional criminal provi- CONCLUSION sions including the withholding of identification Vivian: That would make you a . . . lawyer. documents in connection with a trafficking Edward Lewis: What makes you think I’m a offense,31 trafficking a person into servitude32 lawyer? and attempted violations punishable to the same Vivian: You have that sharp, useless look about extent as a completed violation.33 The TVPA you. also requires mandatory restitution and forfei- 37 ture for any violation. Pretty Woman THE OKLAHOMA RESPONSE This year marks the 150th anniversary of the Emancipation Proclamation, and each year, Nationwide, more than half the states in the there are up to 300,00038 youth at risk of com- country have enacted laws to combat human mercial sexual exploitation39 in the United trafficking, punish traffickers and help survi- States. While known as the “oldest profes- vors.34 In Oklahoma, laws are being amended sion,” it is also the youngest, with estimates of and added to address issues in trafficking of domestic underage victims of sex trafficking persons. House Bill (HB) 1067 requires any in the U.S. somewhere between 100,000- peace officer who comes into contact with a 200,000.40 Out of the estimated 450,000 chil- victim of human trafficking to inform the vic- dren who run away each year, “one out of tim of the emergency hotline number and hand every three … will be ‘lured [[into] prostitu- the victim notice of certain rights. HB 1067 also tion within 48 hours of leaving home.”’41 requires if a child may be a victim of human Approximately 80 percent of current adult trafficking or sexual abuse, the officer shall prostitutes began their profession when they notify the Oklahoma Department of Human were younger than 18.42 The average age of Services (OKDHS) and the child shall be accept- entry into the industry is between 11 and 14.43 ed in OKDHS custody. In another piece of legis- lation, HB 1508 allows sex trafficking victims to Research has provided that nearly 2 million ask courts to clear prior prostitution convic- people are trafficked worldwide every year tions. In addition, HB 1508 grants the Oklahoma with an estimated 15,000 to 18,000 in the Unit- Bureau of Narcotics the ability to issue investi- ed States. Estimates place the global financial gative subpoenas for human trafficking cases. impact of this illicit industry at $32 billion. Furthermore, Governor Mary Fallin signed two Human trafficking can be found in the fields, bills to further protect victims. The first shields sweatshops, suburban upper-class homes, on- all minors from prostitution charges. line escort services and strip clubs. Because of enhanced state and federal criminal statutes, Federal government agencies involved in victim-protection provisions, and public aware- legal actions against traffickers include the FBI, ness as well as sustained dedication to combat- the U.S. Department of Homeland Security ing human trafficking, the numbers of traffick- (DHS), and the Department of Labor. Included ing prosecutions have increased dramatically. within DHS is the Customs and Border Protec- tion (CBP), Immigration and Customs Enforce- Nonprofit organizations, such as the Trinity ment (ICE) and U.S. Citizenship and Immigra- Legal Clinic of Oklahoma, Catholic Charities tion Services (UCIS, formerly known as INS). Archdiocese of Oklahoma City, DaySpring The Labor Department includes the Wage and Villa in Sand Springs, the Native Alliance Hour Division as well as the Office of Inspector Against Violence as well as federal and state General. State agencies like the Oklahoma agencies consistently focus on human traffick- State Bureau of Narcotics and the Oklahoma ing to raise awareness and ensure that victims State Bureau of Investigation, as well as sher- get the services they need. iffs’ departments, tribal law enforcement and If you have information related to sex traf- municipal police vice squads have all joined ficking call the National Human Trafficking together to fight human trafficking.35 Resource Center at 1-888-373-7888 or visit the Most victims of severe forms of human traf- website for more information. As a member of ficking do not know that there are national and the bar and an officer of the court, do not turn

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1607 a blind eye when you see them on the street, in 22. Trafficking Victims Protection Reauthorization Act of 2003, H.R. 2620, 108th Cong. (2003), available at http:// www.state.gov/docu- the hotel lobby, sleeping on the garage floor of ments/organization/28225.pdf. This number has since been amended that house you drive by, etc. Pick up the phone in the 2006 Trafficking in Persons report to be 14,500 to 17,500, avail- able at http://www.state.gov/j/tip/rls/tiprpt/2006. and call. To quote Sean Connery’s character 23. Trafficking Victims Protection Act, 22 U.S.C. §7102(9) (2006). Jim Malone in his challenge to Elliot Ness in 24. 18 U.S.C. §§1591(b)(2), 3559(a)(1), 3571(b)(3) (2006). 25. Id. §§1591(b)(1), 3559(a)(1), 3571(b)(3). the 1987 film The Untouchables, “What are you 26. 22 U.S.C. §7105(b)(1)(A) (2006). prepared to do?”45 27. Id. §7102(8)(A) (2006). 28. 18 U.S.C. §§1581-1584 (2000), 29. United States v. Kozminski, 487 U.S. 931, 952 (1988) (requires very 1. Big Daddy Kane, Pimpin’ Ain’t Easy, on IT’S A BIG DADDY specific forms of coercion limited to physical force or restraint, threats THING (Cold Chillin’/Warner Brothers 1989) with a sampling of Do of physical force or restraint, or threats of legal coercion tantamount to the Funky Penguin by Rufus Thomas. incarceration.). 2. “She” is a real person and her identity is protected due to pri- 30. 18 U.S.C. §1591. vacy, current litigation, and hope for her future. 31. 18 U.S.C. §1592. 3. Polaris Project, Domestic Sex Trafficking: The Criminal Operations 32. 18 U.S.C. §1590. of the American Pimp 1, available at https:// na4.salesforce.com/sfc/ 33. 18 U.S.C. §1594. play/index.jsp? oid=00D300000006E4S&d=6FuMhnn2HQpD2dARadzU 34. Polaris Project, www.polarisproject.org. 1Ow7p6I% 3D&viewId=05H60000000JDNk&v=068600000008UtA (last 35. 8 USC §1101(a)(15)(T)(i)(III). visited Nov. 23, 2011) (quoting Iceberg Slim, a local pimp). 36. www.polarisproiect.org; http://www.dhs.gov/human-trafficking- 4. Milner, C.A., & Milner, R.B. (1972). Black players. Boston, MA: victim-assistance-program. Little, Brown. 37. Pretty Woman (Touchstone Pictures 1990). 5. The term “bottom bitch” or just “bottom” refers to a pimp’s 38. See Richard J. Estes & Neil Alan Weiner, The Commercial Sexu- “most senior prostitute, who often trains new prostitutes and collects al Exploitation of Children in the U.S., Canada and Mexico 142 (2001), their earnings until they can be trusted.” United States v. Brooks, 610 available at http:// www.sp2.upenn.edu/restes/CSEC_Files/ F.3d 1186, 1196 (9th Cir. 2010). Complete_CSEC_020220.pdf). 6. Celia Williamson & Terry Cluse-Tolar, Pimp-Controlled Prostitu- 39. See Cheryl Hanna, Somebody’s Daughter: The Domestic Traf- tion: Still an Integral Part of Street Life, 8 Violence Against Women 1074, ficking of Girls for the Commercial Sex Industry and the Power of 1078-88 (2002). Love, 9 Wm. & Mary J. Women & L. 1, 10-17 (2002). 7. See Janice G. Raymond & Donna M. Hughes, Coalition Against 40. Richard Estes & Neil Alan Weiner, The Commercial Sexual Trafficking in Women, Sex Trafficking of Women in the United States: Exploitation of Children in the U.S., Canada and Mexico, University of International and Domestic Trends 50 (March 2001), available at Pennsylvania, 2002, available at http://www.sp2.upenn.edu/restes/ https:// www.ncjrs.gov/pdffiles1/nij/grants/187774.pdf (noting that CSEC_Files/Complete_CSEC_ 020220.pdf. “[pimps’] methods are to befriend women, create emotional and/or 41. See Birckhead, supra, at 1060-61 (identifying the youth most chemical dependencies, and then convince them to earn money for the at-risk for sex exploitation as “including runaways, throwaways, vic- pimp in prostitution.”). tims of physical or sexual abuse, drug users and addicts, homeless 8. The Stockholm Syndrome http://medical-dictionary.thefree youth, female gang members, transgender street youth, and unaccom- dictionary.com/Stockholm+Syndrome. panied minors who enter the United States on their own”). Tamar R. 9. Polaris Project, Domestic Sex Trafficking: The Criminal Operations Birckhead, The “Youngest Profession”: Consent, Autonomy, and Pros- of the American Pimp 1, available at https:// na4.salesforce.com/sfc/ tituted Children, 88 Wash. U. L. Rev. 1055, 1061 (2011). play/index.jsp? oid=00D300000006E4S&d=6FuMhnn2HQpD2dARadzU 42. Id. 1Ow7p6I% 3D&viewId=05H60000000JDNk&v=068600000008UtA (last 43. The Untouchables (Paramount Pictures 1987). visited Nov. 23, 2011) (quoting Iceberg Slim, a local pimp). 10. U.S. Const. Amend. XIII §1. 11. 18 U.S.C. §2421, The Mann Act (amended in 1986 and 1998). 12. Eric Weiner, The Long, Colorful History of the Mann Act, PR About The Author (March 11, 2008), http://www.npr.org/templates/story/story.php? storyId-88104308. 13. See Sentencing Memorandum (Doc. 64) authored by Joseph L. Robert Don Gifford serves on Wells in United States v. Turner, Case No. CR-13-25-C (Western District the OBA Board of Governors of Oklahoma). 14. Moira Heiges, Note, From the Inside Out: Reforming State and and is an Assistant United Local Prostitution Enforcement to Combat Sex Trafficking in the Unit- States Attorney in Oklahoma ed States and Abroad, 94 Minn. L. Rev. 428, 434 (2009). City serving as the Human Traf- 15. Polaris Project at 4. 16. http://www.unodc.org/unodc/en/treaties/CTOC/. ficking Coordinator for the 17. U.S. Dept. of Justice, Office of Public Affairs. Feb. 1, 2011. Western District of Oklahoma. 18. Sons of Anarchy, Season 1, Episode 12 “The Sleep of Babies” 19. Victims of Trafficking and Violence Protection Act of 2000, Pub. The views expressed herein are 1, 106-386, 114 Stat. 1464 (codified as amended at 22 U.S.C. §7101). those of the author and do not 20. U.S. Department of State, 2005 Trafficking in Persons Report, available at http://www.state.gov/j/tip/rls/tiprpt/2005/46606.htm. necessarily reflect those of the 21. 18 U.S.C. §1595. Department of Justice.

1608 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1609 1610 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Criminal Law

Thoughts on the Plea Bargain Process in Oklahoma Ethics, Philosophy and Strategic Approaches By Jim Drummond

he Oklahoma Court of Criminal Appeals decision in Malone v. State1 hugely impacts criminal justice in Oklahoma. In Tthis 3-2 decision, the court withdrew an earlier opinion to the contrary in the same case and held that there is no right for a defendant to present mitigating evidence in a jury trial unless it is a capital trial,2 though the non-capital defendant may do so in a bench trial. However, the prosecution may of course present evidence of prior convictions to the jury, as well as prior uncharged acts necessary to maintain its burden of proof.3

In other words, the only defendants entitled to Both the state and the defendant have a right individualized sentencing are those for whom to a jury trial. Where there are strong mitigating the prosecution seeks the penalty of death. factors, therefore, an aggressive prosecutor may Everyone else is subject to any disproportionate certainly decide not to waive jury trial even if sentence that does not “shock the conscience of the defendant wishes to be able to present miti- the court.”4 gation to the judge as sole sentencer. A judge cannot modify the sentence recommended by What does this mean for the plea bargaining the jury, unless the judge is allowed to sentence process? It essentially means that any mitigation either by both parties waiving a jury or abdica- of the crime charged must persuade the prose- tion by the jury of its power to recommend a cutor, not the impartial judge or unbiased jury. It sentence, which is so rare as to be disregarded.5 also means defendants who might be less cul- pable, in fact, than as they are charged may Roughly 95-97 percent or more of all state plead guilty when they are either innocent or cases are settled by plea bargain.6 In the federal less culpable, because their cases will go to a courts it is 95 percent.7 Last year the U.S. Supreme jury without the opportunity to present evi- Court, Justice Kennedy writing for the majority, dence in mitigation of their crime. Of course said in Missouri v. Frye8: defenses such as duress are still defenses to the To a large extent ... horse trading [between mens rea element of the crime; but unless the prosecutor and defense counsel] determines penalty sought is death, there is no right to let a who goes to jail and for how long. That is jury know about traumas the defendant has suf- what plea bargaining is. It is not some fered, such as childhood abuse or mental health adjunct to the criminal justice system; it is issues. the criminal justice system.” Scott & Stuntz,

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1611 “Plea Bargaining as Contract,” 101 Yale L.J. ably, the resulting system is one which has 1909, 1912 (1992). See also Barkow, “Sepa- devolved into an exercise in game theory, and ration of Powers and the Criminal Law,” 58 the literature is replete with game theory anal- Stan. L.Rev. 989, 1034 (2006) (“[Defendants] yses of criminal justice. A plea bargain is a who do take their case to trial and lose contract12 under the law, but some argue it is receive longer sentences than even Con- often a contract of adhesion. gress or the prosecutor might think appro- THE UNINTENDED RESULTS OF PLEA priate, because the longer sentences exist BARGAIN JUSTICE on the books largely for bargaining pur- poses. This often results in individuals who Martin Yant, a nationally known journalist accept a plea bargain receiving shorter sen- and investigator, refers to the plea bargain sys- tences than other individuals who are less tem as coercive: morally culpable but take a chance and go Even when the charges are more serious, to trial” (footnote omitted)). In today’s prosecutors often can still bluff defense criminal justice system, therefore, the nego- attorneys and their clients into pleading tiation of a plea bargain, rather than the guilty to a lesser offense. As a result, people unfolding of a trial, is almost always the who might have been acquitted because of critical point for a defendant. lack of evidence, but also who are in fact An increase in 10 percent, or even 5 percent, truly innocent, will often plead guilty to of cases going to a jury could well cripple the the charge. Why? In a word, fear. And the criminal justice system, overwhelming prose- more numerous and serious the charges, cutors, defenders and dockets.9 What this has studies have shown, the greater the fear. created is the world’s most imprisoning coun- That explains why prosecutors sometimes try per capita. At the beginning of 2010 the seem to file every charge imaginable against United States incarcerated 743 adults per defendants.13 100,000 population, for a total well over 2 mil- There are several types of plea bargaining. In lion adults. Nearly 5 million more were on “charge bargaining,” a defendant pleads to a probation or parole. Russia was second in the less serious charge, which has only to fit some world at 577 per capita.10 Among the U.S. part of the actual facts such that the defen- states, Oklahoma has ranked as high as fourth dant’s allocution truthfully encompasses the — and first for women.11 crime charged to the judge’s satisfaction. But this is not a labor union issue wherein In “count bargaining,” the defendant pleads uniting against authority is likely to increase guilty to one or more counts while one or more the power of all defendants to get individual- other counts are dismissed. Usually (and as is ized sentencing. Lawyers cannot ethically really ethically necessary to urge from a defend- advise their clients to join in a mass effort to er’s standpoint) the bargain includes the pro- refuse plea bargains and thus cripple the sys- viso that the sentences for each count pled are tem. Lawyers represent individuals, not groups. to run concurrently. In “sentence bargaining,” This will be discussed further below, but it is there is an agreement as to what the sentence important to observe that there may well be a should be; if the judge feels differently, the plea connection between the plea bargaining sys- bargain is voidable by the defendant. tem and our nation’s world-highest rate of incarceration. In “fact bargaining,” the parties agree that they will stipulate to certain facts which will Because prosecutors are usually de facto sen- affect sentencing, e.g., the quantity of drugs for tencers, and because their sworn duty is also to which the defendant is responsible or the protect the public as well as to accomplish jus- defendant’s importance of role in a conspiracy. tice, they often experience crosscurrents of In state charges, the prosecutor may now waive motivations: let the punishment fit the crime “Page 2” enhancements for prior crimes. but take no chances on further harm to society. Defenders are also subject to conflicting moti- Thus there are many tools in the belt of the vations: taking a tough and vigorous motion bargainer. Always in the back of the bargain- practice approach in non-capital cases, work- ers’ mind is the uncertainty of what a jury will ing the DA harder may help the current client, do, and how strapped for time the lawyers are. but may result in worse offers to future clients The resulting outcome, as a result, is frequently who have “caught-red-handed” cases. Argu- not ideal. This is well illustrated by the classic

1612 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 exercise in game theory called any reflection that the client had “The Prisoner’s Dilemma.” The placed blame on any co-defen- situation is that two defendants For the dants, because his gang mem- who committed a crime togeth- prosecution, the bers would demand to see that er are caught and arrested, and report on his return to prison. held incommunicado from one dilemma is the What is clear is that the first another. Each is offered the snitch to the trough often (but same deal: if one confesses and mandate to seek not always) wins the lion’s share the partner does not, the confes- justice for victims of sentencing or charging bene- sor gets six months and the fits. In drug conspiracy cases non-confessor gets five years. If and survivors as this sometimes means the ring- neither confess both get one leader who is smart enough to year. The loser in the snitch race well as to protect cooperate instantly — to under- gets five years. How can either society… stand the need to give up his trust the other? So both confess partners and subordinates. In and both get three years, where- many federal drug conspiracy as if they had clammed up, they cases everyone cooperates and each would get only one year. pleads guilty, but the sentences are determined This was re-ferred to in an illustrative cartoon primarily by the sentencing guidelines after fact by livingeconomics.org as “individually smart, bargaining regarding quantities of drugs. collectively dumb.”14 The video is available at http://goo.gl/DFDG9. A recent study (2012, draft) attempted to re- create a real-life controlled plea bargain situa- As endnote 14 indicates, in real life it is not a tion, rather than merely asking theoretical game for the individual defendant, who may responses to a theoretical situation — a com- or may not behave altruistically in the situation mon approach in previous research. It placed against their own interest. In game theory subjects in a situation where an accusation of models, logically the two individuals will academic fraud (cheating) could be made, of betray each other continuously. But game theo- which some subjects were in fact by design rists do “not claim … that real human players actually guilty (and knew this), and some were will actually betray each other continuously. In innocent but faced seemingly strong evidence an infinite or unknown length game there is no of guilt and no verifiable proof of innocence. fixed optimum strategy…”15 Each subject was presented with the evidence For the prosecution, the dilemma is the man- of guilt and offered a choice between facing an date to seek justice for victims and survivors as academic ethics board and potentially a heavy well as to protect society, in conflict with the penalty in terms of extra courses and other need to dispose of cases, as well as the conflict forfeits, or admitting guilt and accepting a between the natural impetus to obtain convic- lighter “sentence”. The study found that as tions and the need to ensure that real justice is expected from court statistics, around 90 per- done for the defendant. For the defender, the cent of accused subjects who were in fact guilty dilemma is the need to represent vigorously chose to plead. It also found that around 56 and hold the prosecution’s feet to the hottest percent of subjects who were in fact innocent fire possible, in conflict with the need to pre- (and privately knew it) also plead guilty, for serve the defender’s utility to future clients reasons including avoiding of formal quasi- whose fate depends on his negotiation skills legal processes, uncertainty, possibility of and relations with prosecutors. For the inno- greater harm to personal future plans or depri- cent accused, the dilemma is whether to roll val of home environment due to remedial the dice or to plead guilty when really inno- courses. The authors stated: cent, to avoid a much harsher sentence. Previous research has argued that the inno- For the culpable accused, the dilemma is cence problem is minimal because defen- whether to snitch on co-defendants, a decision dants are risk-prone and willing to defend informed not only by sentence harshness but by themselves before a tribunal. Our research, whether this will expose the defendant to dan- however, demonstrates that when study ger in prison. As one of the author’s federal cli- participants are placed in real, rather than ents once explained to him, the client needed the hypothetical, bargaining situations and pre-sentence investigation report to be free of are presented with accurate information

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1613 regarding their statistical probability of The competitive strategy “seeks to force success, just as they might be so informed the opposing party to a settlement favor- by their attorney or the government during able to the negotiator by convincing the a criminal plea negotiation, innocent defen- opponent that his case is not as strong as dants are highly risk-averse.16 previously thought and that he should settle the case.” One tactic employed by such ne- The goals of corrective rehabilitation and gotiators is to open with a high initial de- deterrence seem to have been lost in this elabo- mand. In the criminal setting, this is most rate shuffle. There is evidence that harsher apparent when a prosecutor “throws the sentences and the death penalty do little in the book” at a defendant by charging crimes way of deterrence,17 and that in fact longer sen- more severe than a reasonable jury would tences which expose the offender to more support and crimes so trivial and numerous prison culture actually increases recidivism; that defense counsel knows the prosecutor and some prosecutors including former Attor- will not pursue them to conviction. Through- ney General Drew Edmondson have acknowl- out the negotiations on a single case, com- edged that obtaining an acceptable outcome petitive negotiators limit the disclosure of for victims and survivors drives the bargaining information on the facts of the case and do process, regardless of deterrent effect. Our cor- not reveal their preference and expectation rections system, in the meantime, is over- of an outcome. Because the primary objec- whelmed and underfunded. Rehabilitative tive is to “win” and to force the opponent to programs are starved. Oklahoma prison guards “lose,” the few concessions that are made who face daily dangers make so little money are minor. Further, threats and arguments (starting pay is $11.83 per hour) that some 30 are often used to reach a favorable settle- percent of prison employees with families ment. Finally, a competitive negotiator will qualify for food stamps.18 employ false issues and feign commitment Arguably, then, plea bargaining as a system to positions that may be compromised with- is coercive and crude as a driving tool in crimi- out consequence. nal justice. It arguably is, further, the driving In contrast to competitive negotiators, force behind the fact that the freest country on cooperative negotiators “make concessions earth has more people in prison per capita than to build trust in the other party and encour- any country on earth. As early as 1978, when age further concession on his part.” Such our incarceration figures were a fraction of cur- negotiators open with a moderate bid that rent figures, Yale Law professor John Langbein is barely acceptable to the opponent. When commented: the opponent opens with such a bid, the There is, of course, a difference between two negotiators “should determine the having your limbs crushed if you refuse to midpoint between the two opening bids confess, or suffering some extra years of and regard it as a fair and equitable out- imprisonment if you refuse to confess, but come.” [citations and footnotes omitted]19 the difference is of degree, not kind. Plea Obviously, from a defender’s standpoint, the bargaining, like torture, is coercive. Like relative merits of competitive and cooperative the medieval Europeans, the Americans strategies depend in part on the strength of the are now operating a procedural system prosecution’s case and the strength of the that engages in condemnation without defender’s defense. But it also depends on the adjudication. objectives of the prosecutor and defender REAL STRATEGY CONSIDERATIONS FOR which may have little to do with the client’s THE PRESENT own interests. As Vanover points out, the pros- ecutor may take a hard line occasionally on a Nonetheless, both prosecutors and defenders minor case, and force it to trial, just to show have to live in the now, and the dilemmas do passion for justice and that he is a bit “crazy” not disappear because the author does not like at times: the system. In every case, different negotiation strategies may apply best to a particular case. A To gain better negotiating position, how- Missouri prosecutor, Joseph W. Vanover, wrote ever, the prosecutor may follow through on the differing strategies of competitiveness on what is believed by the defense bar as and cooperation: an idle and irrational threat to take a minor case to trial. As one prosecutor put

1614 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 it, “if the defense lawyers think the pros- in a system wherein the plea bargain process so ecuting attorney is a little crazy and will dominates the criminal justice landscape, can spend a ton of money on a case, then the any defense lawyer afford to overlook the for- prosecutor’s threats won’t be idle and the est of future clients and focus only on the tree defense lawyers will agree to a settlement she represents now? earlier.”20 Fortunately, one imagines, most criminal It is axiomatic that a lawyer’s readiness to go cases are not whodunits. In the vast majority of to trial and thoroughness are a factor in plea criminal cases, the issue is not innocence but negotiations. Similar to a prosecutor’s more rather degree of culpability coupled with crim- complex stratagem just illustrated, a defense inal history. This author has thus found that lawyer may decide to try to take a high profile the best approach to negotiation involves a case to trial no matter what, partly in order to recipe combining the competitive and coopera- enhance his future credibility with prosecutors. tive approaches, starting with a cooperative Vanover’s conclusions are illustrative of how assumption that the opposing party will be plea bargaining may lose sight of the interests reasonable. It is never wise to assume that a of the public AND of the individual client: prosecutor’s reputation for being hard-line or unreasonable will be unvarying. In one of the Choosing the best strategy to use becomes author’s cases, a supposedly intractable and complicated when the maximum utility aggressive prosecutor of broad reputation resulting from a series of negotiations is looked at the quantities of a drug distribution not achieved through the use of the opti- case, second offense with a large quantity of mal strategy for each singular negotiation. marijuana involved, slam-dunk 12-page DEA In this situation defense lawyers face an probable cause affidavit, and ultimately moved ethical dilemma: should a defense attorney from 10 years incarceration to eight years pro- employ the optimal negotiation strategy bation on the background equities. That client for the present plea negotiation despite the made an absolutely successful turnaround. The fact that it will be detrimental to future author counts that outcome as no less a victory negotiations with a particular prosecutor than many jury verdicts of acquittal. or in a particular jurisdiction? In other words, should a defense attorney sacrifice A defender can negotiate cordially from a his ability to serve future clients by vigor- position of strength by accurately reflecting to ously serving the interests of his present the prosecutor the strength and weaknesses of client? both sides’ cases. This approach often enhances credibility far more than bluster or attempts to On the other side of the negotiation pro- paw the earth. In every case, the defender must cess, prosecutors may neglect the interests balance the approach taken to negotiation of the public if they lose sight of the effect keeping foremost in mind the interests of the a particular negotiation will have on future client served, while recognizing when a coop- negotiations by submitting to caseload erative approach will be more or less effective pressure and granting concessions when with any particular prosecutor. One cannot threatened by defense counsel with a purge game theory from the plea bargaining costly, hard-fought court battle. Similarly, process, but one can play the game ethically in prosecutors, at times, should make an every situation with a clear focus on the forces apparently irrational decision to pursue a at work. case by expending excessive amount of time and effort to favorably adjust defense Prosecutors may have the temptation to over- bar expectations. Whatever the situation, it charge either in number of counts or in degree of is important to understand that what crime in order to force a plea agreement: appears to be a good decision today may “[T]he scarcity of prosecutorial resources, turn out to be a bad decision tomorrow. and the corresponding inability to prose- Ethical rules require absolute diligence by cute all cases, creates an inherent motiva- defenders in representing the interests of the tion to overcharge defendants during plea individual client. It seems patently wrong for negotiations. . . . However, for the plea- defenders to sacrifice the best interests of an bargaining process to serve the public fair- individual client in order to preserve reputa- ly, it must be implemented with careful tion or future effectiveness in negotiations. But discretion, particularly when evaluating

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1615 who should be charged and what should mendations presented to the Legislature were be charged, to fairly and accurately reflect ever adopted. It is past time to evolve beyond the criminal conduct involved. If compro- the primitive “hug-a-thug,” to take note of mised, the potential for injustice and the Mental Health Commissioner Terri White’s specter of coercive plea bargaining move approach to mental health issues in the crimi- front and center.”21 nal justice system, as reflected in her seminal Prosecutors must have the courage to charge proposal presented to the Oklahoma Academy 24 fairly and put in proper balance public or vic- in 2008, “Our Plan to be Smart on Crime.” tim cries for retribution with the mitigating In the interim, if this is an interim rather than and aggravating circumstances, and should a permanent state of affairs, the plea bargain avoid iron-clad “policies” for every crime. A system of justice needs careful scrutiny. It is a former Oklahoma prosecutor, Jon Lagerberg, fact that prosecutors, defenders and judges, once said to the author that he would much not to mention the accused, have a lot to gain rather have a skilled and diligent defense attor- by such scrutiny. ney opposing him than a lax or unskilled attor- 1. 2002 OK CR 14, 58 P.3d 208. ney; it made his job much simpler and easier. 2. Lockett v. Ohio, 438 U.S. 586 (19768) held that in capital cases the As a defense attorney I can attest to the same as Eighth and Fourteenth Amendments require “individualized consider- ation of mitigating factors.:” However, the plurality in Lockett said: to prosecutors; I have found that the best nego- “We recognize that, in noncapital cases, the established practice of tiations and trial processes occur with respon- individualized sentences rests not on constitutional commands, but on sible, ethical, vigorous prosecutors who have public policy enacted into statutes.... Given that the imposition of death by public authority is so profoundly different from all other the confidence to do the right thing and admin- penalties, we cannot avoid the conclusion that an individualized deci- ister justice. sion is essential in capital cases.” Walton v. Arizona, 497 U.S. 639, 682, 110 S. Ct. 3047, 3072, 111 L. Ed. 2d 511 (1990) overruled by Ring v. Ari- That said, the social and political conse- zona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). 3. Burks v. State, 1978 OK CR 10, 594 P.2d 771, 775. quences of plea bargaining processes need 4. Rea v. State, 2001 OK CR 28, 34 P.3d 148, 149: “Appellant further strong examination by the public and by legis- suggests that we abandon our “shock the conscience” standard of lators. While the likelihood of this is not appar- sentence review in favor of a “proportionality” standard, citing People v. Milbourn, 435 Mich. 630, 461 N.W.2d 1 (1990), as support. We decline ent, the interests of justice would be served by to do so.” As the Milbourn court noted, id. at 2, the “preeminent implementing rules that require more individ- requirement” in fashioning proper appellate review of sentences is to respect and give purpose to the sentencing scheme promulgated by the ualized sentencing in non-capital cases, and by legislature. Legislatures, not courts, define punishment. State v. Young, organized ethical and proportionated over- 1999 OK CR 14, at ¶26, 989 P.2d 949. Oklahoma law permits the sen- tencing body (judge or jury) to impose a sentence anywhere within a sight of the bargaining process. The idea that specified statutory range. Given that our state Legislature has afforded the right to a trial effectively answers objec- such broad discretion to the sentencer, our “shock the conscience” tions to defects in the plea process is explicitly standard provides an appropriate scope of review.” Judge Chapel’s 22 vigorous partial dissent that this is so subjective as to be “no standard rejected by the U.S. Supreme Court. The at all” is worth reading. Id. at 150 et seq. “shocks the conscience” standard was rejected 5. 22 O.S. §973-975: “After a plea or verdict of guilty in a case where the extent of the punishment is left with the court, the court, upon the in Michigan, and should be replaced here by suggestion of either party that there are circumstances which may be proportional considerations, because a state properly taken into view, either in aggravation or mitigation of the with mandatory jury sentencing must be better punishment, may in its discretion hear the same summarily at a speci- fied time and upon such notice to the adverse party as it may direct.” able to account for inflamed passions which Okla. Stat. Ann. tit. 22, §973. “No affidavit or testimony, or representa- may make a sentence disproportionate. Malone tion of any kind, verbal or written, can be offered to or received by the court or member thereof in aggravation or mitigation of the punish- v. State, supra, endnote 1, should be revisited in ment, except as provided in the last two sections.” Okla. Stat. Ann. tit. light of the Oklahoma Constitution, and miti- 22, §975 (West). 6. Michael M. O’Hear, “Plea Bargaining and Procedural Justice,” 42 gation should be allowed in non-capital jury GA. L. REV. 407, 409 (2008). trials as Judge Chapel urged. We need to real- 7. In the year 2000, over 95 percent of cases involving federal con- locate federal resources away from drug victions were settled through the entry of a guilty plea. Bureau of Jus- tice Statistics, U.S. Dept. of Justice, Compendium of Federal Justice Statis- enforcement and toward rehabilitative correc- tics 2000, 51, 59 (2000). Indeed, as observed by Ronald Wright and Marc tional programs that work, to the point of Miller, professors of law at Wake Forest University and Emory Univer- sity respectively, the criminal justice system’s dependence upon the decriminalizing some drug offenses and treat- guilty plea structure has greatly increased in recent years: ing others as psychological and medical prob- The proportion of guilty pleas has been moving steadily upward lems. Finally, a set of ethical guidelines appli- for over 30 years, and has seen a dramatic increase of over 11 percentage points just in the past 10 years, from 85.4 percent in cable to both prosecutors and defenders should 1991. Indeed, the aggregate national guilty plea rate in federal be developed and specifically tailored for the cases remained under 92 percent until 1997, in line with the rough national norm for all criminal systems of about 90 percent; it is only plea bargaining process, with ethical account- in the past five years that we have witnessed the rise to a bizarrely ability oversight. The Oklahoma Academy high plea rate. In some districts now, the percentage of convictions attributable to guilty pleas reaches over 99 percent. approved such a program, in its 2008 report Ronald Wright & Marc Miller, “Honesty and Opacity in Charge focusing on corrections,23 but few of its recom- Bargains,” 55 Stan. L. Rev. 1409, 1415 (2003) (citation omitted).

1616 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 8. 132 .Ct. 1399, 1407 (3/21/2012). 9. However, Alaska has banned plea bargaining since 1975. In 1991, an unofficial study funded by the Alaska State Justice Institute found that the ban on plea bargaining had not caused gridlock. www.ajc. state.ak.us/Reports/plea91Exec.pdf. 10. See www.wikipedia.org/wiki/Incarceration_in_the_United_ States. 11. “Oklahoma, in fact, has ranked No. 1 for per capita incarcera- tion of women for years and, according to the latest figures from the Department of Justice, Oklahoma ranks fifth highest in the nation in its overall incarceration rate per capita. With a population of 3.6 million, we have more than 25,000 people behind bars.” Tulsa World, 12/20/2008: http://goo.gl/XS5bK. 12. Puckett v. United States, 556 U.S. 129, 137 129 S.Ct. 142, 1430 Do the (2009). 13. Yant, Marvin: Presumed Guilty, Buffalo, N.Y., Prometheus Books 1991, at 172. 14. The Wikipedia entry on the prisoner’s dilemma poses a slightly different scenario, and also observes that real people behave more cooperatively and altruistically than their self-interest in a game would indicate: “ In this classic version of the game, collaboration is domi- nated by betrayal; if the other prisoner chooses to stay silent, then betraying them gives a better reward (no sentence instead of one year), and if the other prisoner chooses to betray then betraying them also right gives a better reward (two years instead of three). Because betrayal always rewards more than cooperation, rational self-interested prison- ers would betray their counterparts, and the only possible outcome for two rational self-interested prisoners is for them to betray each other. The interesting part of this result is that pursuing individual reward logically leads the prisoners to both betray, but they would get a better reward if they both cooperated with each other to stay silent. In reality, humans display a systematic bias towards cooperative behavior in this and similar games, much more so than predicted by simple models of “rational” self-interested action.” http://goo.gl/ZuAIu. 15. Id. thing. 16. http://en.wikipedia.org/wiki/Plea_Bargain Quoting Edkins & Dervan: “The Innocent Defendant’s Dilemma: An Innovative Empirical Study of Plea Bargaining’s Innocence Problem,” draft, 2012. 17. See Jeffrey Zilkowsky’s commentary at http://goo.gl/t40lu. 18. “The employees of the Department of Corrections (DOC) deserve a pay raise. Thirty percent of them qualify for food stamps, and 85 per- cent qualify for the federal free and reduced school lunch program.” Sean Wallace, executive director of Oklahoma Corrections Professionals, column in the Oklahoma Gazette, 3/27/2013. http://goo.gl/E9hqJ. 19. Vanover, Joseph W. (1998), “Utilitarian Analysis of the Objec- tives of Criminal Plea Negotiation and Negotiation Strategy Choice,” 1998, J. Disp. Resol., p. 183, at 184. 20. Id. at 191-192. 21. Caldwell, H. Mitchell (2011), “Coercive Plea Bargaining: the Unrecognized Scourge of the Justice System,” 61 Catholic Law Review 63, at 63 and 65. 22. Missouri v. Frye, supra, at 1407. 23. http://okacademy.org/PDFs/08Final_Findings.pdf. 24. http://okacademy.org/PDFs/2008-research.pdf At 127. This We will be civil, entire 160-page report needs to be revisited by any concerned advocate or citizen. courteous, respectful, About The Author honest and fair in

Jim Drummond practices communicating with criminal defense in Norman, handling trials and appeals in adversaries, orally federal and state courts. Previ- and in writing. ously he has worked as a state and federal public defender. He Standards of is currently panel coordinator Professionalism §3.1a for the OBA Legal Ethics Advi- sory Panel. He was the inaugural The OBA Professionalism chairperson of the OBA Crimi- Committee encourages you nal Law Section, and also serves on the boards of the Oklahoma Criminal Defense Lawyers Association to review all the standards at and the Oklahoma County Criminal Defense Lawyers http://bit.ly/14ErsGp Association. He was a member of the Oklahoma Sen- tencing Commission from 2001-2006.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1617 DISASTER RELIEF

Oklahoma Attorneys Answer the Call of Storm Victims By Jarrod Houston Beckstrom

Legal issues resulting from the May storms kept the Okla- homa Bar Association’s free legal advice hotline ringing, and OBA volunteer attorneys answered the call. Over the course of June and July, demand for the hotline and service has tapered off, leading Lincoln, Logan, McClain, ATTORNEYS ON to the service being concluded Okfuskee, Okmulgee, Okla- THEIR SIDE on Aug. 1, 2013. homa, Pawnee, Payne and With the tremendous amount Victims in 19 counties were Pottawatomie counties were of destruction that came with eligible to receive free legal eligible to receive legal advice back-to-back record-breaking advice and while intake for the from OBA volunteers. storms, many of the issues program ended on Aug. 1, vol- In addition to the OBA OBA volunteers assisted with unteer attorneys continue to hotline, Legal Aid Services of involved property loss, mort- work with victims who have Oklahoma Inc. and OBA volun- gages and landlord/tenant previously requested advice. teers were boots on the ground issues. MUCH HAS BEEN AND at relief centers in Moore, El For example, a Cleveland WILL BE DONE Reno, Shawnee, Little Axe and County man’s rented apart- Midwest City, allowing storm Since the OBA enacted its ment was hit by the May 20 victims to receive immediate disaster relief program in late tornado. Just days after the face-to-face legal advisement. May (in cooperation with the storm, he received a termina- Attorneys staffed the centers Federal Emergency Manage- tion of lease notice from his from May 23 to when the last ment Agency) over 600 storm landlord informing him he center closed on July 3. victims have been paired with would be required to remove 265 volunteer OBA attorneys to ANSWERING THE CALL all of his belongings from the address a wide array of legal apartment and less than a week OBA President Jim Stuart of problems related to recovery. to do so. With the help of an Shawnee commended the work Thirteen cases are open, OBA volunteer attorney, he and diligence of the bar associ- meaning the attorney and was informed of his rights as a ation’s volunteers, saying, “I’m victim are still working tenant, resolved his issues and incredibly proud of the OBA towards a resolution. was able to find new housing. attorneys who have volun- Victims of the May tornadoes teered their unique skillset Some storm victims had and subsequent flooding in and experience to help disaster loose ends when the storm hit, Caddo, Canadian, Cleveland, victims in the wake of these leaving them with a complex Comanche, Creek, Garfield, storms.” legal mess and little or no Grant, Greer, Kiowa, LeFlore, documentation intact.

1618 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 One family was hit twice with tragedy. First, a man’s father died on May 18 and two days later, his recently deceased father’s home was destroyed in the Moore torna- do. The family came to find out that insurance on the home had lapsed and taxes were owed on the home. Under- standably, there were many legal questions that needed answers. An OBA attorney is helping that family through that process. Some victims simply don’t Richard Vreeland (left) and Charles Wetsel at a disaster want to be taken advantage of. relief center. For example, one woman called the OBA hotline seeking including various storms and including contacting storm vic- advice to ensure she was treat- tornadoes as well as the 1995 tims, recruiting volunteers and ed fairly by contractors and terrorist attack on the Alfred ensuring proper procedures are insurance adjustors. Small P. Murrah Federal Building. followed and so on. A great things like that can make a big Other bar associations have deal of coordination between difference in a family’s life for even modeled their disaster FEMA, the OBA and Legal Aid years to come. assistance plans after the Services of Oklahoma, among HISTORY OF HELPING OBA’s. others must occur. Many OBA attorneys compassionately Providing legal assistance to HEROES BEHIND THE SCENES answered the call, but a few victims of disasters is, unfortu- deserve special recognition. nately, nothing new to the The OBA’s disaster assistance OBA. In the last 18 years, the program doesn’t just happen, it Tulsa lawyer Molly Aspan of OBA has enacted its disaster involves many moving parts Hall, Estill, Gable, Golden & response plan seven times, Nelson, PC, served as liaison between FEMA and the OBA. In that difficult and complex role coordinating efforts with OBA DISASTER RELIEF an enormous national organi- zation, Ms. Aspan performed at By the numbers. a very high level, serving as an incredible ambassador for both Cases submitted to the OBA: 619 her state and the OBA. Addi- tionally, OBA Disaster Relief 174 Lanlord/Tenant issues coordinator Jacob Jean of Edmond was brought on Insurance issues: 139 shortly after the Moore tornado and worked diligently to pair 26 Contract/Contractor problems victims with volunteer attor- neys whose practice area was Volunteers: 265 relevant to the victim’s needs. OBA members can and 41 Consecutive days attorneys should all take pride in their staffed relief centers association’s response to the May tragedies. Number of relief centers staffed: 5 Mr. Beckstrom is an OBA communications specialist.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1619 LAWYERS HELPING LAWYERS

Argus Hamilton to Perform at LHL Cornerstone Banquet II By Lance Schneiter

Once again, the OBA Lawyers Let’s face it. The practice Helping Lawyers (LHL) Assis- of law can be hard work as a tance Program and the OBA business and demanding as a Work/Life Balance Committee profession. Sometimes pressure will join forces, presenting the takes its toll on OBA members. Second Annual Cornerstone Ban- Maybe it took its toll on you, quet and Auction on Tuesday, your law partner or a friend. Sept. 10. Oklahoma’s own Argus Many days, attorneys are at odds Hamilton will perform at the not only with the opposing event for an evening of “all party, but also with clients, staff laughs and no liquor.” and the court. Some OBA mem- bers may retreat to their homes Mr. Hamilton was honored by and face different but equally Oklahoma Gov. Brad Henry as Argus Hamilton difficult issues. the official comedian of the Oklahoma Centennial and was The Lawyers Helping Lawyers by seeking to curb the negative dubbed the “The Will Rogers of Assistance Program and the LHL impact of attorney impairment the Baby Boom” by Robin Wil- Foundation offer numerous ser- on clients and the public. liams. Millions of readers and vices including consultations, radio listeners enjoy his daily crisis stabilization, interventions, Doors open at 5 p.m. for a humor column, now in its sec- education, anonymous support silent auction from 5:30 to 6:30 ond decade. For one unforgetta- groups, peer support services, and a seated dinner and live auc- ble evening, Mr. Hamilton will free counseling services, mentor- tion beginning at 6:45. One hour join OBA members as we raise ing and financial assistance to of MCLE credit is provided with money to support the assistance OBA members. All calls to Law- the cost of your ticket. A mere programs that help OBA mem- yers Helping Lawyers are confi- $50 ticket promises you the most bers struggling with addiction, dential and free. fun you’ve ever had for MCLE alcohol or drug abuse, and men- in Emerson Hall! Guest tickets tal health issues including These programs offer assis- for non-lawyers and those who depression. tance to OBA members when don’t need MCLE are only $30. they need it. Now, LHL needs your help and generosity. As Join Argus Hamilton and your the old slogan goes, “the life or brothers and sisters of the OBA practice that you save may be on Sept. 10 to learn why you your own.” should “Pass the Bar — Every Chance You Get!” Order your The Second Annual tickets now by using the form on Cornerstone Banquet presents an page 1622 — if you miss this opportunity to assist our col- evening, it won’t be funny! leagues and increase overall Cornerstone Banquet awareness of these issues in Mr. Schneiter practices in King- & Auction the legal profession. This event fisher. He is a Lawyers Helping is an opportunity to give back to Lawyers Assistance Program mem- Sept. 10, 2013 • 5 p.m. the larger Oklahoma community ber and LHL Foundation director. Oklahoma Bar Center

1620 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 10 LHL Facts 4 The OBA Lawyers Helping Lawyers 5 Assistance Program is a Assistance to affected FREE, lawyers often prevents The LHL Foundation confidential assistance program future ethical violations, is promoted and 1 providing consultation, referral, thereby reducing the facilitated by the intervention, and crisis counseling number of disciplinary LHL Assistance for lawyers and judges actions Program

The work of the program con- tributes to the protection of the The LHL public and the improvement of Foundation is the integrity and reputation of 2 funded solely by the legal profession 6 gifts, grants and contributions

Age groups of those seeking assistance are 53-55% between ages 25 and 45; 3 7 45-46% between ages The missions of LHL are to PROTECT 46 and 65; 0-1% over the interests of clients, litigants and the 60 years old general public from harm caused by impaired lawyers or judges; to ASSISTimpaired To date, issues addressed include members of the legal profession to begin and • alcohol and drug-related issues • mental health • marital conflict continue recovery; and to EDUCATE • financial distress the bench and bar to the causes of and • performance productivity 8 remedies for impairments affecting members • cognitive impairment • stress of the legal profession • eating disorder and domestic abuse

Members of the assistance program and the foundation give presentations to University of Tulsa, University of Oklahoma and Oklahoma City University 9 law students, county bars, law firms and interest groups Self- referrals remain the largest source of referrals at 75% Other referral sources include judges, OBA staff, Board of Bar 10 Examiners, law firm leadership, colleagues and the OBA Professional Responsibility Tribunal

If you or someone you know needs assistance, visit www.okbar.org/members/LawyersHelpingLawyers or call 800-364-7886

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1621 LHL Foundation, Inc. Cornerstone Banquet & auction BLUEPRINT FOR PROGRESS September 10, 2013 Oklahoma Bar Center • Oklahoma city

Number of reservations: o VISA o MasterCard o Discover o AmEx

Account No. ______CVC ______CORNERSTONE sponsor - $5,000 Contribution: Reserved premium seating Signature ______for table of eight; Name recognition in program and signage at event Exp. Date ______

___ KEYSTONE sponsor - $2,500 Contribu- tion: Reserved premium seating for four ______seats at table of eight; Name recognition Table name (if applicable) in program and signage at event

______MARBLE sponsor - $1,000 Contribution: Name & OBA No. Reserved seating for three seats at table of eight; Name recognition in program ______Company ___ GRANITE sponsor - $500 Contribution: Reserved seating for two seats at table of eight; Name recognition in program ______Address ___ BRICK & MORTAR sponsor - $250 Contribution: Reserved seating for one; ______Name recognition in program City, State, Zip All sponsorships include 1 hour MCLE credit. ______Phone ___ BENEFACTOR TICKET - $50 Seating for one and 1 hour MCLE credit ______Email ___ GUEST TICKET - $30 Seating for one Number in your party ______UNABLE TO ATTEND – but would like to make a donation Please reply with payment by Tuesday, Sept. 3, 2013 to My check for $______is enclosed. LHL Foundation, c/o Oklahoma Bar Association, (Please make checks payable to LHL Foundation, Inc.). PO Box 53036, Oklahoma City, OK 73152 or call Fair market value of reservations is $30 per person. 405-416-7000; 800-522-8065

1622 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 LEADERSHIP ACADEMY

Oklahoma Attorneys Selected for Leadership Academy

The Oklahoma Bar Associa- The academy class will par- Christensen & Associates PC; tion announces the 25 partici- ticipate in sessions led by expe- Craig Regens of the Office of pants of its fourth annual rienced leaders from various the Attorney General; Kara OBA Leadership Academy backgrounds including military Smith of the Oklahoma Office class selected from applicants officers, former OBA presi- of Management and Enterprise throughout the state. dents, leadership experts and Services; Cullen Sweeney of the high profile public officials. Tenth Circuit Court of Appeals; “The Oklahoma Bar Associa- Jennifer Tupps of the Okla- tion’s Leadership Academy is OBA LEADERSHIP homa Department of Trans- about preparing those who ACADEMY PARTICIPANTS portation; and Diana Vermeire want to serve our profession, Enid of Gable Gotwals our bar and our state. The academy is the perfect forum Christopher Trojan, Okmulgee Solo Practitioner to recognize and celebrate Sarai Geary of Muskogee lawyers who volunteer, serve Jenks (Creek) Nation and give of themselves,” said Lloyd Landreth of Skiatook OBA President Jim Stuart of Landreth Law Firm PLC Shawnee. Sheree Hukill of P&S McAlester Legal Advocacy PLLC The OBA Leadership Acade- Blake Lynch of Wagner and my will offer five sessions set Stillwater Lynch PLLC to begin in September 2013. Jimmy Oliver of the Law Office The academy will conclude Norman of Melissa DeLacerda in April 2014. Thad Balkman of Thad Tulsa Balkman, Attorney at Law ABOUT THE LEADERSHIP Maureen Johnson of Jarboe ACADEMY Oklahoma City Law Firm PC; Jason McVicker Originating from the OBA’s Mary Caldwell of Miller Dol- of Atkinson Haskins; Scott Leadership Conference in 2007, larhide PC; Adam Christensen Morgan of Moyers, Martin, the academy is aimed at devel- of Christensen Law Group; Tai Santee & Imel LLP; Cesar oping the future leaders of the Chan Du of Tai C. Du PC; Mat- Tavares of Gable Gotwals; OBA by giving Oklahoma thew Felty of Lytle, Soule & and Lorena Rivas Tiemann attorneys training in the core Curlee PC; Stephanie Jackson of Sobel & Erwin PLLC principles of effective leader- of Jackson Law Firm PLLC; More information about the ship and how to communicate, Brittini Jagers of Jagers & Leadership Academy is avail- motivate and succeed in their Johnson PLLC; Jennifer Prilli- able on the OBA website at legal careers and also as man of Oklahoma City Univer- www.okbar.org/members/ community leaders. sity; Ashley Rahill of Cathy leadership.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1623 BAR NEWS

2013 OBA Member Survey Results Now Available By John Morris Williams

The Member Survey Task Force has com- The ABA survey has been utilized by a pleted its work and now presents the 2013 number of states. It differs from previous member survey for the Oklahoma Bar Asso- member surveys in that it is not a “scientific” ciation. The 2013 survey varies in method survey based upon a random number of and reporting from prior membership sur- select contributors. The survey this year was veys. In the past, the OBA has surveyed the sent to 15,807 members with email addresses membership every 10 years at considerable on March 19 and was closed in May 2013. A expense. The task force submitted request total of 1,792 responses were received, yield- for proposals to a number of entities that ing an 11 percent overall response rate. Not conduct membership surveys for organiza- all responders answered every question. tions. The cost range was dramatic, and the The information provided gives guidance task force chose the less expensive electronic and can help identify trends and member sat- survey offered by the American Bar Associa- isfaction. The task force expressed a desire for tion Division for Bar Services. more frequent and targeted surveying in the future. Due to the lesser expense of electronic surveying, this new model is achievable with- out significant cost to the OBA. Much appre- ciation is to be shown to those who responded. We hope that you will take some time and review the survey results. It is also our hope that in the future you will respond to smaller and more targeted surveying. The OBA is a member organization, and your opinion is needed and appreciated to help us better serve you, our members. Mr. Williams is OBA executive director.

We promised those who took the time to complete the survey a chance to win a $500 Apple gift card. And the winner is Oklahoma City attorney Mack Martin.

1624 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Survey Highlights

Practice Information – 77 percent of respon- dents practice law full-time; 10 percent practice part-time and 12 percent are employed, but not in the practice of law.

Oklahoma Bar Association Services - Respondents were asked to rate the importance of OBA services to them. The five services rated highest were: • Continuing legal education (80 percent rated very important; 17 percent rated somewhat important) • Professional discipline (76 percent rated very important; 14 percent rated somewhat important) • OBA E-News (32 percent rated very important; 49 percent rated somewhat important) • Opportunities for public service The OBA Member Survey (31 percent rated very important; results are in. 47 percent rated somewhat important) • Practice assistance management (37 percent rated very important; We asked. 37 percent rated somewhat important)

Bar Association Communications – You told. Respondents feel email updates are the most effective way to share information with them Here’s what we learned. Oklahoma Bar Journal – 92 percent of respondents indicate they read the Oklahoma View the survey results Bar Journal, up from 80 percent in 1992.

online at Challenges Facing Your Practice — Respon- dents ranked these issues the highest: www.okbar.org/ • Keeping current in the law members/Members/ • Earning a living • Providing good service to my clients Governance/ with limited time 2013MemberSurvey • Balancing work and personal life/family • Keeping up with and using technology

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1625 PHOTO HIGHLIGHTS

Sovereignty Symposium 2013 Ok l a h o m a Ci t y • Ju n e 5-6

Oklahoma Supreme Court Chief Justice Tom Colbert welcomes participants to the Sovereignty Symposium during the opening ceremony.

Winston Scambler makes a presentation to Retired U.S. Supreme Court Justice Sandra Day O’Connor.

From left Oklahoma Supreme Court staff attorney Barbara Kinney, Annabelle West and Justice O’Connor during the symposium.

From left Gayleen Rabakukk, author of Art of the Oklahoma Judicial Center; Justice O’Connor; and Neil Chapman, photographer of Art of the Oklahoma Judicial Center during a reception at the Oklahoma Judicial Center.

1626 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Sovereignty Symposium Board of Directors President Alison Cave presents the 2013 Sovereignty Symposium Hargrave Prize for Best Faculty Writing to Mike McBride during the Sovereignty Symposium opening ceremony. Seated is Retired Oklahoma Supreme Court Justice Rudolph Hargrave, for whom the award is named.

Oklahoma City University President Robert Henry visits with Justice O’Connor during the symposium.

Oklahoma Supreme Court Justice Noma Gurich and Vice-Chief Justice John Reif at the symposium.

From left Oklahoma Court of Criminal Appeals Vice Presiding Judge Clancy Smith; Justice O’Connor; Oklahoma Court of Civil Appeals Judge Jane Wiseman; and Justice Noma Gurich at the symposium.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1627 Gov. Mary Fallin welcomes the audience to the Sovereignty Symposium Opening Ceremony.

“A Fair, Impartial and Independent Judiciary” was the topic of a panel discussion during the symposium. Speaking were (from left) Phil Lujan, presiding judge, Citizen Potawatomi Nation Tribal Court; Bruce Fisher, administrative programs officer, Oklahoma Historical Society; OBA Immediate Past President Cathy Christensen; Council on Judicial Complaints General Counsel Terry West; and Tom Walker, appellate magistrate of the Court of Indian Offenses for the Southern Plains Region.

Justice Steven Taylor (left) and Justice Joseph Watt of the Oklahoma Supreme Court visit during the symposium.

Oklahoma Court of Criminal Appeals Presiding Judge David Lewis (left) greets Oklahoma Sen. Al McAffrey at a luncheon.

All photos by Stuart Ostler

1628 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 BOOK REVIEW

Business and Commercial Litigation in Federal Courts, Third Edition Robert L. Haig, Editor-in-Chief Reviewed by Robert Duran

There are few areas of Within each chapter, the the law more complex and authors discuss rules, issues demanding than business and and topics in narrative fash- commercial litigation in feder- ion, complete with extensive al court. Most practitioners in footnotes, current case annota- this niche also find it to be tions and references to other highly remunerative. For materials such as forms and those specialists, the ABA’s further research sources. Business and Commercial Litiga- The third edition represents tion in Federal Courts is invalu- several important additions to able. For the rest of the bar, and improvements over previ- the anthology is accessible, ous iterations of the series. At informative and, in the event 12,742 pages; hardcover the outset, the third edition you find yourself with a busi- plus CD-ROM; $1,351 expanded the number of chap- ness case in federal court, published by ters from 96 to 130 and the indispensable. Thompson Reuters/West and the ABA Section number of volumes from eight Business and Commercial of Litigation (2011-2014) to eleven. Examples of new Litigation in Federal Courts is topics included in the third unique among legal reference edition include internal inves- books. Its third edition is com- is astounding — this is tigations; comparison with prehensive by any measure, the federal commercial liti- commercial litigation in state containing 130 chapters gator’s bible. courts; coordination of litiga- spread across 11 volumes and tion in state and federal more than 12,000 pages of The collection is organized courts; international arbitra- material. Yet notwithstanding by chapters, each of which tion; crisis management; pro its depth and breadth, it is represents a particular topic bono; regulatory litigation both readable and accessible, that is germane to commercial with the SEC; derivatives; complete with a detailed federal practice. The first 57 medical malpractice; reinsur- index that makes locating any chapters address the complete ance; consumer protection; topic quick and easy. More- life cycle of a federal business immigration; executive com- over, the collection combines case, through a chronological pensation; prior restraint on exhaustive treatment of the discussion from cradle (sub- speech; white collar crime; multivarious procedural rules ject matter jurisdiction) to administrative agencies; gov- of the federal system with grave (enforcement of judg- ernment contracts; tax; project timely and relevant attention ments). Thereafter, the remain- finance and infrastructure; to the substantive legal issues ing chapters deal with a wide sports; entertainment; and that often accompany each range of issues and topics that information technology. In procedural milieu. The result appear to completely cover addition to the new chapters, the federal legal waterfront.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1629 the third edition also substan- At the end of the day, Busi- and business litigation. This tially revised and updated the ness and Commercial Litigation compilation is a revelation in pre-existing 96 chapters. The in Federal Courts represents a its field, representing a rarity third edition also boasts a soft- herculean undertaking and in the law: a comprehensive sided index which includes accomplishment, with nu- treatment of a daunting topic multiple references to each anced and informed contribu- that is readable, accessible form, checklist, case and topic tions from 251 accomplished and, most of all, useful. contained in the series. The authors from the bench, bar Mr. Duran practices in Shaw- index will be reprinted annu- and academe. It is a “must nee and was recruited by the ally so that it will address new have” resource for any firm Board of Editors to write this matters included in the antici- and/or attorney specializing review. pated pocket parts. in federal court commercial

8:00am - 8:45am : Registration, Coffee & Doughnuts 1:00pm - 1:50pm : Jon Ford - Practicing Collaborative Law in Family Disputes

9:00am - 9:50am : Rex Travis+RZWR1RW6KDUH

10:00am - 10:50am : Justice John F. Reif - Ethics 3:00pm - 3:50pm : Brian K. Morton - DUI and Revocation of Driving Privileges in Oklahoma 11:00am - 11:50am : Attorney General Scott Pruitt - 3:50pm - 5:00pm : Social Hour A Primer on the Mortgage Settlement

12:00pm - 1:00pm : Barbeque Lunch (Included in 5:00pm - 7:00pm : Steak Dinner (Included in Registration Fee) Registration Fee) & Recognition of Honored Guests

Approved for Continuing Legal Education of 6.0 hours (including 1 hour of ethics). Registration fees: $175.00 for pre-registrations received prior to the Institute date; $200.00 for walk-in registration. Lunch, Dinner and materials included in Registration Fee. Pre-registration is required for lunch and dinner. Cancellations will be accepted at any time prior to the Institute date; however, a $50.00 fee will be charged for cancellations made within three (3) days of the Institute date. No requests for refunds of cancellations will be considered after the date of the Institute.

2013 Boiling Springs Legal Institute Registration Form Full Name Firm Name Address E-mail Phone Fax OBA Member? OBA Number (for CLE credit) I will be unable to attend the seminar. Please send materials only. ($50.00) Do you plan to stay for the Evening Social Hour and steak dinner? Yes No *Please note that the Boiling Springs Golf Course will be open on September 17, 2013.

Please make check payable to the Woodward Bar Association and mail this form with check to Erin N. Kirksey, Woodward Bar Association, P.O. Box 529, Woodward, OK, 73802. For more information, please call Erin N. Kirksey at 580.256.5517.

1630 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 BAR NEWS

2014 OBA Board of Governors Vacancies

Nominating Petition deadline: 5 p.m. Friday, Sept. 13, 2013 OFFICERS Summary of Nominations Rules Not less than 60 days prior to the Annual Meeting, President-Elect Current: Renée DeMoss, Tulsa 25 or more voting members of the OBA within the Ms. DeMoss automatically becomes Supreme Court Judicial District from which the OBA president Jan. 1, 2014 member of the Board of Governors is to be elected (One-year term: 2014) that year, shall file with the Executive Director, a signed petition (which may be in parts) nominating Nominee: Vacant a candidate for the office of member of the Board of Vice President Governors for and from such Judicial District, or one Current: Dietmar Caudle, Lawton or more County Bar Associations within the Judicial (One-year term: 2014) District may file a nominating resolution nominating Nominee: Vacant such a candidate. BOARD OF GOVERNORS Not less than 60 days prior to the Annual Meeting, 50 or more voting members of the OBA from any or Supreme Court Judicial District Two all Judicial Districts shall file with the Executive Current: Gerald C. Dennis, Antlers Director, a signed petition nominating a candidate Atoka, Bryan, Choctaw, Haskell, Johnston, Latimer, to the office of Member-At-Large on the Board of LeFlore, McCurtain, McIntosh, Marshall, Pittsburg, Governors, or three or more County Bars may file Pushmataha and Sequoyah counties appropriate resolutions nominating a candidate for (Three-year term: 2014-2016) this office. Nominee: Vacant Not less than 60 days before the opening of the Supreme Court Judicial District Eight Annual Meeting, 50 or more voting members of the Current: D. Scott Pappas, Stillwater Association may file with the Executive Director a Coal, Hughes, Lincoln, Logan, Noble, Okfuskee, signed petition nominating a candidate for the office Payne, Pontotoc, Pottawatomie and Seminole of President-Elect or Vice President or three or more counties County Bar Associations may file appro-priate reso- (Three-year term: 2014-2016) lutions nominating a candidate for the office. Nominee: Vacant If no one has filed for one of the vacancies, nomina- Supreme Court Judicial District Nine tions to any of the above offices shall be received Current: O. Chris Meyers II, Lawton from the House of Delegates on a petition signed by Caddo, Canadian, Comanche, Cotton, Greer, not less than 30 delegates certified to and in atten- Harmon, Jackson, Kiowa and Tillman counties dance at the session at which the election is held. (Three-year term: 2014-2016) Nominee: Vacant See Article II and Article III of OBA Bylaws for complete information regarding offices, positions, Member-At-Large nominations and election procedure. Current: Robert S. “Bob” Farris, Tulsa (Three-year term: 2014-2016) Elections for contested positions will be held at the Nominee: Vacant House of Delegates meeting Nov. 15, during the Nov. 13–15 OBA Annual Meeting. Terms of the present OBA officers and governors will terminate Dec. 31, 2013. Nomination and resolution forms can be found at www.okbar.org/members/bog/bogvacancies.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1631 FROM THE EXECUTIVE DIRECTOR

What is Going on at the OBA? By John Morris Williams

That is probably the ques- As we noted when we pub- I cannot believe that summer tion I am most frequently lished the survey, we did it a is coming to an end so quickly. asked. Believe me there is bit different this time. The task Since I have to meet a publica- always something going on. force that worked on conduct- tion deadline in advance of the It is increasingly harder to ing the survey decided to use actual printing, even more of it schedule rooms and meetings our familiar format but decid- is gone by the time you read due to our very active commit- ed to utilize email to distribute this. In reflection, it has been a tees, sections and task forces. the survey to all OBA mem- summer of devastation and Additionally, the Oklahoma bers who had provided the disaster, compassion and giv- Bar Foundation, Lawyers OBA an email address. ing — and hopefully, rebirth Helping Lawyers Foundation Approximately 1,800 members and rebuilding following the and a number of other groups responded, and there were tornadoes. More than 260 OBA comprised of OBA members some good “take aways” from members volunteered and utilize our facilities. So, in the responses. In the future the helped hundreds of disaster short, there is almost always OBA will be conducting small- victims with free legal servic- something going on at the er, more targeted surveys. I es. Much thanks to Molly OBA! hope that you will take a few Aspen who chairs the OBA On the bigger scale we are in minutes to answer the next Disaster Response and Relief the planning phases for host- survey. We are a member orga- Committee. Oklahoma lawyers ing the Southern Conference of nization, and we really want truly are Oklahomans! I am Bar Presidents, OBA Day of to know what you think and proud of you, the people I Service and the OBA Annual how we can better serve you. work for, and proud to be part of the ranks of such a compas- Meeting. The Annual Meeting DAY OF SERVICE will be held on Nov. 13, 14 and sionate and giving profession. Sept. 20-21, 2013, is the 15 in Oklahoma City at the So, that is what is happening scheduled OBA Day of Ser- downtown Sheraton Hotel. at the OBA. I hope that you vice. Like some holidays, this Mark your calendar now! In will be as much a part of all will most likely be more of a addition to great speakers and that is happening as your season than a day. The Young excellent CLE, the OBA sec- schedule will allow. May the Lawyers Division and the tions will be spotlighted. We coming fall season bring you Board of Governors are heavi- are hoping for a special oppor- a winning team, happy family ly involved in the planning tunity for all section members gatherings and some special and implementation of this to come together for some big memories as we gather for event. Each county has been time fun. Also, another event the Day of Service and the assigned a contact person, and taking place next month is the Annual Meeting. the planning is well underway. Lawyers Helping Lawyers In this year of “Stuartship” banquet on Sept. 10. There’s I hope you will give at least a story with all the details in one day to public service this issue. beyond your usual contribu- MEMBER SURVEY tions. This should be a fun To contact Executive Director In July we received the final and productive day for all of you who give so much. Williams, email him at johnw@ product of our member survey. okbar.org

1632 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 LAW PRACTICE TIPS

Big Ideas Can Come in Small Packages By Jim Calloway

This month I’m going to Sensei Enterprises Inc. I had Mazzone, featuring Jordan claim a point of personal privi- done the magazine guest editor Furlong and Bruce MacEwen lege to tell you about some- duty before, but this time I had • “Brainstorming Your thing big that I have worked no idea how this project would Future: A Forward-Thinking on. There is a valuable payoff grow in scope. Lawyers’ Roundtable” by included for each of you. You’ll We asked many of the lead- Jim Calloway and John Simek get a free gift. After you have ing thought leaders in law taken advantage of your free • “A Big Idea for BigLaw? practice from the U.S. and Can- gift, you may not feel like it Just One Word: Strategy” by ada to participate in the Big was entertaining or amusing. Michael J. Ostermeyer Ideas issue, and we got great But hopefully you will feel that responses. They wrote articles. it was of value. • “Venture Capital Invest- They granted interviews. They ments in Legal Services” by As a part of my work, I have shared their wisdom. Collec- Mary E. Vandenack been an active member of the tively they gave us many American Bar Association Law thought-provoking and pro- • “Big Data: Big Pain or Big Practice Management Section. vocative ideas about the future Gain for Lawyers?” by Sharon Over the years, I have served of our profession. You will not D. Nelson and John W. Simek in various roles in the LPM sec- agree with everything you • “As the World Goes tion, including serving on its read. These experts do not Mobile, Is Your Marketing council and chairing the ABA all agree with each other in Up to Speed?” by Robert J. TECHSHOW. Chairing ABA every way. Ambrogi TECHSHOW was certainly a Famed legal futurist Richard huge amount of work and an • “Cybersecurity & Law Susskind, who wrote The End of honor. But my latest “big” proj- Firms: A Business Risk” by Lawyers?: Rethinking the Nature ect with the ABA LPM was, Jody R. Westby of Legal Services wrote our cover again, a huge amount of work, story, with the same title as his • My column, “Practice Man- but is also a different type of new book Tomorrow’s Lawyers. agement Advice: The Small- honor because I able to be a Firm Lawyer Considers Big part of a team who delivered a Other features include: Ideas” by Jim Calloway very interesting result to the Oklahoma Bar Association • “The Innovation Impera- members as well as lawyers tive: Adapt or Die?” by Erik across the country. Many months ago I was selected to be the guest co- editor of the inaugural July/ August 2013 Big Ideas issue of Law Practice magazine, along with my friend and colleague John Simek, vice-president of

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1633 • “Virtual Law Firms: The some of the LPM section offi- are only free to Law Practice Next Iteration” by Chad E. cials decided this issue should magazine subscribers and the Burton be widely distributed and so cost for others is $19.99 for the they decided to make the annual subscription to the • “Taking the Lead: Carrots mobile edition of this magazine magazine or $4.99 for a single & Sticks” by Linda Klein free via mobile publishing on issue.) This issue only is a free So here’s the free part. After the Law Practice magazine app. download for anyone who has the magazine was finished, (Normally issues via the app an Apple or Android device with the free Law Practice mag- azine app. There is a lot to read so getting the free issue via app New Republic Article Focuses on “Big Law” Troubles at your app store makes it real- ly convenient to read on your The New Republic’s controversial cover story, “The Last Days of mobile device. I’m sure LPM Big Law — You Can’t Imagine the Terror When the Money hopes this encourages you to Dries Up,” certainly created a lot of buzz when it was pub- subscribe for a year. They also lished on July 21. The story focuses on recent troubles at very decided to give out free physi- large law firms. The author, Noam Scheiber, is not a lawyer cal copies of this magazine to (although he was named a Rhodes Scholar.) He writes from the all of the attendees at this perspective of an economist and outlines the business model of month’s ABA Annual Meeting the very largest firms: in San Francisco. “There are currently between 150 and 250 firms in the Unit- If you don’t want to bother ed States that can claim membership in the club known as Big with the app, you can read the Law, the group of historically profitable firms that cater to the articles online at http:// country’s largest corporations. The overwhelming majority of tinyurl.com/p7mwqkc. these still operate according to a business model that assumes, at least implicitly, that clients will insist upon the best legal You may have already seen a talent instead of the best bargain for legal talent.” notice about this in the OBA E-news, my Law Practice Tip It is likely that those who champion those firms would not have blog or an OBA section elec- reacted so strongly had he left it at that. But he continued: tronic mailing list. I’m trying “That assumption has become rickety. Within the next hard to get the word out to our decade or so, according to one common hypothesis, there will members because this is not be at most 20 to 25 firms that can operate this way — the firms just doom and gloom (although whose clients have so many billions of dollars riding on their there is some of that), but legal work that they can truly spend without limit. The other includes a lot of ideas and sug- 200 firms will have to reinvent themselves or disappear.” gestions. My best law practice tip this month really is to read Whether that prediction becomes true is obviously left for the this magazine “cover to cover” future. in whatever format you prefer. But reading Mr. Scheiber’s long, detailed and well-researched So enjoy your freebie and feel story will be of interest to many lawyers at law firms of all sizes as free to let me know what you a historical record if nothing else. think. The article is freely available online at http://tinyurl.com/ Mr. Calloway is director of the m9vm7j2 He also wrote a follow-up piece in response to the OBA Management Assistance negative feedback. “Yes, Big Law Really is Dying — Dear Lawyer: Program. Need a quick answer to It’s Not You, It’s Your Profession,” online at or http://tinyurl.com/ a tech problem or help resolving a kou8kcm. management dilemma? Contact One thing that is for certain is that The New Republic had a lot him at 405-416-7008, 800-522- more readers from the legal profession that week than usual. 8065 or [email protected]. It’s a free member benefit!

1634 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 ETHICS & PROFESSIONAL RESPONSIBILITY

Synopsis of Select 2013 Attorney Discipline Decisions by the Oklahoma Supreme Court By Katherine M. Ogden

The Oklahoma Supreme subpoena and judicial process, for a period of five years until Court exercises exclusive, obstructed access to evidence Feb. 5, 2018, in both cases to original jurisdiction in lawyer and failed to disclose negating run concurrent to each other. disciplinary proceedings. In or mitigating evidence result- The court found Mr. Cooley’s deciding whether discipline is ing in violations of Rules guilty pleas to felonies involv- warranted and what sanction, 3.4(a) (unlawfully obstructing ing intentional dishonesty for if any, is to be imposed for another party’s access to evi- personal gain facially demon- alleged professional miscon- dence), 3.8 (timely disclosing strated his unfitness to prac- duct, the court conducts a full- evidence), 8.4(d) (engaging in tice law. The court suspended scale, non-deferential, de novo conduct prejudicial to the him from the practice of law examination of all relevant administration of justice) of for the duration of the de- facts. The court has repeatedly the Oklahoma Rules of Profes- ferred sentencing. He may adhered to the proposition sional Conduct (ORPC). The thereafter seek reinstatement that the disciplinary process court considered comparative of his license to practice law is designed not to punish the disciplinary matters, the time pursuant to Rule 11, RGDP. delinquent lawyer, but to safe- span of the conduct in relation • State ex rel. Oklahoma guard the interests of the pub- to the disciplinary proceeding, Bar Association v. Joan God- lic, those of the judiciary and Mr. Miller’s cooperation with love, 2013 OK 38. This disci- the legal profession. the process and lack of prior plinary proceeding arose out discipline and suspended him Below is a summary of of Ms. Godlove’s multiplica- for 180 days and imposed select attorney discipline cases tive, frivolous filings in two $12,834 in costs. decided by the Oklahoma trust matters. The court found Supreme Court this year to • State ex rel. Oklahoma Ms. Godlove repeatedly failed date: Bar Association v. Christo- to provide competent repre- pher Mark Cooley, 2013 OK sentation, failed to act with • State ex rel. Oklahoma 42. This Rule 7, Rules Govern- reasonable diligence, failed Bar Association v. Robert ing Disciplinary Proceedings to act in good faith, asserted Bradley Miller, 2013 OK 49. (RGDP) summary discipline issues and claims which were This disciplinary proceeding proceeding arose from Mr. frivolous, failed to make rea- stemmed from Mr. Miller’s Cooley entering pleas of sonable efforts to expedite liti- professional misconduct dur- guilty on the felony charges of gation, was less than candid ing events before, during and false declaration of ownership with the court when she con- after two capital murder trials (59 O.S. 2011 §1512) and false- tinuously filed repeated which he prosecuted as an ly personate another to create actions regarding the same assistant district attorney for liability (21 O.S. 2011 §1531.4) issue which had already the Oklahoma County District in two separate criminal been determined by a final Attorney’s Office. The court matters. The district court order, not keeping her address found, among other miscon- deferred his sentencing date current with the court and duct, Mr. Miller abused the

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1635 opposing counsel, and by fail- attempted intimidation and two years and ordered to pay ing to appear and prosecute intimidation of witnesses, $960.47 in costs as a condition motions that she had filed. unlawful obstruction of anoth- of reinstatement upon the The court further found she er party’s access to evidence, completion of her suspension. knowingly disobeyed an order requesting a person to not vol- • State ex rel. Oklahoma of the court, made numerous untarily provide relevant evi- Bar Association v. Lewis B. irrelevant and frivolous dis- dence to a party, intentionally Moon, 2013 OK 7. Mr. Moon covery requests and complete- filing misleading documents had been previously disci- ly dis-regarded her obligations with the court and a continu- plined by a public censure to respond to inquiries in the ous pattern of disregard of and deferred suspension of disciplinary proceeding. The local rules. The court found two years and one day with court noted Ms. Godlove not Mr. Bednar’s actions violated conditions for alcohol-related only overstepped the fine line Rules 1.1, 1.3, 3.2, 3.3, 3.4(a)(f) misconduct. Shortly thereafter, between zealous advocacy and 8.4(c)(d), ORPC and Rule proceedings were initiated and harassing, frivolous litiga- 1.3, RGDP and suspended him based on an alleged incident tion, but “trampled it.” God- from the practice of law for where Mr. Moon represented love at ¶27. The court found one year and ordered him to himself as a police officer and she violated Rules 1.1, 1.3, 3.1, pay $2,662.78 in costs. discharged firearms while 3.2, 3.3, 3.4, 8.1 and 8.4(a) and • State ex rel. Oklahoma intoxicated and another inci- (d), ORPC and Rule 5.2, Bar Association v. LaGailda dent where he became intoxi- RGDP. The court disbarred Barnes, 2013 OK 19. This dis- cated and attempted to extort her and ordered her to pay ciplinary action arose out of money from, assaulted and $1,994.76 in costs. Ms. Barnes’ conversion of cli- battered another attorney, • State ex rel. Oklahoma ent funds. The court found and threatened bodily harm to Bar Association v. Alexander that she did not intend to per- the attorney and his children. Bednar, 2013 OK 22. This manently deprive her client of The court found Mr. Moon’s reciprocal disciplinary action the funds in question and actions were dishonest, deceit- was filed after Mr. Bednar acted with diligence to secure ful, misleading and an embar- resigned pending disciplinary a loan to repay the client in rassment to the legal profes- proceedings in the U.S. Dis- full, with interest. Ms. Barnes sion and the court. In finding trict Court for the Western acknowledged the seriousness Mr. Moon went well beyond District of Oklahoma and his of her wrongdoing and took violating his previous sus- suspension from the U.S. 10th full responsibility for her pended discipline sentence, Circuit Court of Appeals for a actions. The court found Ms. the court disbarred him and minimum of one year. The Barnes violated Rules 1.15 and ordered him to pay $2,415.79 basis for the federal disciplin- 8.4(c), ORPC and Rule 1.3, in costs. ary action arose from an RGDP. She was suspended Ms. Ogden is an OBA assis- alleged pattern of neglect, from the practice of law for tant general counsel.

1636 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 BOARD OF GOVERNORS ACTIONS Meeting Summaries

The Oklahoma Bar Association REPORT OF THE PAST meeting and TCBA past presi- Board of Governors met at the PRESIDENT dents’ luncheon. Governor Oklahoma Bar Center in Oklaho- Gifford reported he attended ma City on Friday, April 19, 2013. Past President Christensen, the Postoak retreat and Okla- unable to attend the meeting, homa County Bar Association REPORT OF THE reported via email she attended Board of Directors meeting. PRESIDENT the Postoak retreat, Southern He was one of the presenters Conference of Bar President President Stuart reported he at the OBA CLE Boot Camp. committee meetings, Law- attended the Postoak retreat, Governor Hays reported she related Education Committee OBA Day at the Capitol, OETA attended the board retreat at meeting and Oklahoma County Festival, Oklahoma Justice Postoak Lodge, OBA Section Bar Association Bench and Bar Commission press conference Leaders Council meeting, OBA Conference. at the state Capitol, Southern Professionalism Committee Conference of Bar Presidents REPORT OF THE meeting, Solo and Small Firm planning meetings and OBA EXECUTIVE DIRECTOR Planning Committee meeting, Annual Meeting planning. He OBA Family Law Section exec- Executive Director Williams utive planning meetings, Tulsa participated in meetings to reported he attended numer- create a Human Trafficking County Bar Association Fami- ous meetings relating to the ly Law Section meeting, TCBA Task Force. He also gave the Legislative agenda, a Dobson welcome at the OBA Boot Law Week Committee meet- Communications presentation ing, TCBA Golf Committee Camp, filmed a segment for on its new business model, the Law Day Ask a Lawyer and OBA FLS monthly meet- High School Mock Trial Pro- ings, at which she presented TV show, made committee gram finals, OBA Day at the appointments, presented 50-60 the budget report. She also Capitol, OETA Festival, ABA co-chaired two Women in Law year member certificates at the Bar Leadership Institute, Washington County Bar Asso- Committee meetings, partici- monthly staff celebrations, pated in Women in Law Com- ciation meeting and Pottawat- Annual Meeting planning omie County Bar Association mittee speaker research and meetings, OCU open house planning, communicated with reception, served as a panel for its new downtown location member for the OBA/CLE the OBA Law Day Committee, and Muskogee County Bar assisted in planning with OBA “Liar Liar” movie night pre- Association dinner. sentation and monitored FLS leadership for a future pending legislation. BOARD MEMBER REPORTS Trial Advocacy Institute and communicated the Board of Governor Coogan reported REPORT OF THE Governors report at two TCBA she attended the Cleveland VICE PRESIDENT Board of Directors meetings. County Bar Association lun- Governor Jackson reported he Vice President Caudle cheon/CLE in March and attended the Garfield County reported he attended the Com- April, CCBA executive board Bar Association monthly meet- munications Committee meet- meetings in February and ing. He also worked on the ing, Clients’ Security Fund March, planning committee county bar’s Law Day events meeting, monthly Comanche meeting for Law Day activities including the Ask A Lawyer County Bar Association CLE/ and CCBA “Justice is Sweet” free legal advice. Governor luncheon and various Law event. Governor Farris report- Meyers reported he attended Day planning functions. ed he attended the Postoak the Postoak retreat, Comanche retreat, OBA Day at the Capi- County Bar Association meet- tol, Tulsa County Bar Associa- ing and the county bar Law tion board meeting, OBA Day planning meeting. Gover- Work/Life Balance Committee

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1637 nor Pappas, unable to attend 25 receptions for new lawyers of cases against the OBA. She the meeting, reported via in Tulsa and Oklahoma City. said there are two new matters email she attended the board’s being monitored. In depart- COMMITTEE LIAISON retreat, February and March ment staffing news, she report- REPORTS Payne County Bar Association ed Assistant General Counsel meetings, Section Leaders Governor Hays reported the Deborah Maddox resigned to Council meeting and Logan Women in Law Committee accept another position, and County Bar Association meet- will hold its annual conference Steven Sullins has been hired ing. She also interviewed an on Sept. 27 at the George Nigh to fill the vacancy. Written sta- attorney for a future Oklahoma Center on the University of tus reports of the PRC and Bar Journal article, spoke to Central Oklahoma campus. OBA disciplinary matters for one of four YLD representa- She also reported the Tulsa February and March 2013 tives for the September Day of County Bar Association will were also submitted for the Service, worked on contacting hold an all-day celebration of board’s review. the other three representatives its 110th anniversary on Oct. 4, OKLAHOMA JUSTICE and wrote to her 10 county bar 2013. She also reported the COMMISSION association presidents regard- Law Day Committee has fin- ing the OBA Day of Service. ished the Ask A Lawyer TV Commission Chair Drew Governor Parrott reported she show that will air May 2. Vice Edmondson reviewed the attended the Postoak retreat, President Caudle reported the purpose of the commission, two Oklahoma County Bar Communications Committee and copies of the final report Association Board of Directors will hold a joint meeting with were handed out. The report meetings, two OCBA Awards the Law Day Committee. Gov- contains many recommenda- Committee meetings, Law ernor Parrott reported she tions in a variety of areas. Mr. Day Committee meeting, attended an iCivics training Edmondson reported that pro- reception, open house and for lawyers on how to utilize posed state legislation regard- tour of the new OCU law iCivics programs in schools, ing access to DNA testing school building, Oklahoma and she encouraged others to looked like it would be passed, County Youth Services Gala take advantage of the training. which would accomplish one honoring the county bar and REPORT OF THE SUPREME of the recommendations. He its Community Service Com- COURT LIAISON said that even though the mittee and training for Justice commission will expire with Sandra Day O’Connor iCivics Justice Kauger reported 165 the submission of the final program. Governor Thomas bar members attended the report, commission members reported she attended the most recent movie night CLE are committed to submitting March and April Washington at the Oklahoma Judicial Cen- an annual report each year County Bar Association meet- ter. She said “Legally Blonde” documenting progress on its ings in addition to the WCBA was the next movie to be recommendations. President reception in honor of 50- and shown, and the panel discus- Stuart commended Mr. 60-year members, at which sion will be moderated by Past Edmondson for his leadership Presiding Judge David Lewis President Christensen. A clas- and work of the commission. and President Stuart presented sic movie to be shown in the The board voted to issue a res- service pins and certificates to fall will be “Inherit the Wind.” olution of appreciation to each five members. She also said her office is commission member. working on Sovereignty REPORT OF THE YOUNG OBA REIMBURSEMENT LAWYERS DIVISION Symposium,which will feature U.S. Retired Justice Sandra POLICY Governor Vorndran reported Day O’Connor as a keynote President Stuart said chang- he attended the Postoak speaker. Justice Kauger report- es to the policy have been dis- retreat, Pottawatomie County ed another piece of artwork cussed previously. The OBA’s Bar Association meeting and a will soon be unveiled at the policy was compared to state YLD executive meeting. He judicial center. and federal policies. It was reported the YLD board will REPORT OF THE suggested that reimbursement vote on the proposed revised GENERAL COUNSEL policies of other mandatory budget at its meeting tomor- state bar associations be row. He encouraged board General Counsel Hendryx reviewed. The board voted to members to attend the April briefed the board on the status form a task force to review

1638 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 other policies and to make a system will be installed the REPORT OF THE proposal at the June meeting. first or second week in May. VICE PRESIDENT Task force members will be She said we will need to Vice President Caudle President-Elect DeMoss and migrate the systems one reported he attended the Governors Hays, Meyers, evening, but the downtime Comanche County Bar Associ- Parrott, Smith and Vorndran. will be minimal. ation Law Day luncheon, bar- They will determine who will LAW DAY becue and golf tournament, chair the task force. General Payne County Bar Association Communications Director Counsel Hendryx will serve Law Day dinner event at the Manning updated board mem- as staff liaison. Stillwater Country Club, bers on preparations for the Comanche County “Ask a AWARDS COMMITTEE Ask A Lawyer TV show and Lawyer” Law Day event and RECOMMENDATIONS the statewide free legal advice April Board of Governors President Stuart reported the that will both take place on meeting. He noted that OBA Awards Committee is recom- May 2. Day of Service is gaining mending the definitions of the u attention. Outstanding Service to the The Oklahoma Bar Association REPORT OF THE Public Award and the Award Board of Governors met at the PRESIDENT-ELECT for Outstanding Pro Bono Oklahoma Bar Center in Oklaho- Service be expanded to allow ma City on Friday, May 17, 2013. President-Elect DeMoss the option for the recipient reported she attended the REPORT OF THE to be a bar-related entity and April Board of Governors PRESIDENT not exclusively an individual. meeting, Tri-County Bar All other awards would President Stuart reported he Association Law Day dinner remain the same. The board attended the Muskogee Coun- in Idabel, Payne County Bar approved the committee’s ty Bar Association dinner in Association Law Day dinner recommendations. Muskogee, Tulsa County Bar in Stillwater, Tulsa County JUDICIAL NOMINATING Association luncheon, Tri- Bar Association Law Day COMMISSION ELECTION County (Choctaw, McCurtain luncheon, TCBF/TCBF Capital PROCEDURE and Pushmataha) Bar Associa- Campaign Steering Committee tion dinner in Idabel, Oklaho- meeting, OBA human traffick- Executive Director Williams ma County Bar Association ing CLE seminar and Strategic reviewed the procedure for luncheon in Oklahoma City, Planning Committee Finance electing members to the Pittsburg County Bar Associa- Subcommittee meeting. She JNC that has been used in the tion dinner in McAlester, also participated in planning past. The board approved the charity golf tournament, on budget issues. procedures. Payne County Bar Association REPORT OF THE OKLAHOMA DOMESTIC dinner in Stillwater and PAST PRESIDENT VIOLENCE FATALITY Finance Subcommittee of the REVIEW BOARD OBA Strategic Planning Com- Past President Christensen reported she attended the The board approved Presi- mittee meeting in Oklahoma Payne County Bar Association dent Stuart’s recommendation City. He presented 50-year Law Day dinner, OU alumni to nominate Cindy Pichot, membership pins at the Lin- luncheon honoring Justice Col- Noble; Heather Cline, Oklaho- coln County Bar Association bert and Judge Lewis, Law- ma City; and Karen Pepper- dinner in Chandler, Seminole related Education Committee Mueller, Oklahoma City, to the County Bar Association lun- meeting, LRE subcommittee attorney general for consider- cheon/CLE seminar and Pot- meeting to develop “Lawyers ation for one appointment to tawatomie County Bar Associ- in the Classroom” and Finance the review board. ation event. He spoke at the new attorney swearing-in cere- Subcommittee of the OBA TECHNOLOGY PROJECTS mony in Oklahoma City, gave Strategic Planning Committee IT Director Watson reported the welcome at the human meeting. She also worked on the new OBA website will go trafficking CLE in Oklahoma planning for the Southern live May 8, and she showed City and gave a Law Day Conference of Bar Presidents them a preview of the new speech at the Seminole County meeting. design and organization. She Bar Association luncheon in also reported a new telephone Wewoka.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1639 REPORT OF THE response at the OBA human tion board meeting, Oklahoma EXECUTIVE DIRECTOR trafficking CLE seminar, par- County Awards Committee ticipated in the listserv of the meeting and the OCBA Law Executive Director Williams Military and Veterans Law Day luncheon. Governor Smith reported he attended the Section and participated in reported he attended the Mus- swearing in of new lawyers, discussions on OBA-Net. He kogee County Bar Association Tulsa County Bar Association attended the April Board of banquet and April Board of Law Day luncheon, Oklahoma Governors meeting. Governor Governors meeting. Governor County Law Day luncheon, Hays reported she attended Thomas reported she attend- Tri-County Bar Association the OBA Professionalism Com- ed the Washington County Law Day dinner, Muskogee mittee meeting for which she Bar Association meeting and County Bar Association din- prepared the minutes, Tulsa April Board of Governors ner, Comanche County Bar County Bar Association Board meeting. She noted that she Association Law Day picnic, of Directors meeting at which met the deadline for submit- Pittsburg County Bar Associa- she presented a Board of Gov- ting her assigned bar journal tion Law Day dinner, Payne ernors report, TCBA Family article about a lawyer in her County Bar Association Law Law Section meeting, Women district to Melissa DeLacerda. Day dinner, monthly staff cele- in Law Committee meet and REPORT OF THE YOUNG bration, staff directors meet- greet social event, TCBA Golf LAWYERS DIVISION ing, Strategic Planning Finance Committee meeting, TCBA Subcommittee meeting, por- Law Day Luncheon and by Governor Vorndran reported tion of the human trafficking phone the OBA Strategic Plan- he chaired the April YLD CLE seminar, Diversity Com- ning Committee’s Finance Board of Directors meeting mittee meeting and Bar Asso- Subcommittee meeting. She and spoke at the swearing-in ciation Technology Committee chaired the OBA Family Law ceremony. He attended the meeting. He presented CLE Section monthly meeting at April Board of Governors at the Seminole County Bar which she presented the meeting, Pottawatomie Coun- Association Law Day lunch- budget report, co-chaired the ty Bar Association meeting, eon and attended a meeting Women in Law Committee Seminole County Bar Associa- with Supreme Court MIS per- meeting, participated in tion Law Day luncheon, Potta- sonnel regarding training for Women in Law Committee watomie County Ask A Law- the unified case management planning and communicated yer event and PCBA Law Day system. with OBA Family Law Section golf tournament. He reported BOARD MEMBER REPORTS leadership regarding FLS Trial the division held a reception Advocacy Institute planning. following the swearing in and Governor Farris reported he Governor Jackson reported he receptions for new attorneys attended the Tulsa County Bar attended the monthly Garfield in Oklahoma City and Tulsa. Foundation Capital Campaign County Bar Association meet- The YLD is gearing up for its meeting, Tulsa County Bar ing, county bar committee midyear meeting at the Solo Association Law Day lunch- meeting and the April Board and Small Firm Conference, eon, OBA human trafficking of Governors meeting. Gover- and he described events that CLE in Oklahoma City and nor Meyers, unable to attend would be taking place at the Finance Subcommittee of the the meeting, reported via conference. Work on the OBA OBA Strategic Planning Com- email he attended the Tri- Day of Service Sept. 20 and 21 mittee meeting in Oklahoma County Bar Association Law is already underway. Commu- City. He gave free legal advice Day dinner in Idabel, swear- nications Director Manning for the “Lawyers in the Li- ing-in ceremony for new attor- was asked to write a letter brary” TCBA Law Week proj- neys that included his son, for board members to use to ect at the Kendall-Whittier Comanche County Bar Associ- encourage participation in the Library, gave a presentation at ation Law Day dinner, Coman- statewide community service the Legal Aid Services of Okla- che County Bar/Fort Sill SJA event. President Stuart will homa CLE held at OSU Tulsa Law Day golf tournament and send letters soon to county bar and gave free legal advice for Ken Sue’s cookout. Governor presidents asking them to des- the TCBA Law Week “Call A Parrott reported she attended ignate a project in their coun- Lawyer” project. Governor the April board meeting, OBA ties. Law schools and inns of Gifford reported he presented human trafficking seminar, court will also be invited to a session on the federal Oklahoma County Bar Associa- take part.

1640 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 REPORT OF THE SUPREME The board was provided with members for failure to pay COURT LIAISON a written report, and Mr. Vree- 2013 dues and for noncompli- land used a PowerPoint pre- ance with 2012 mandatory Justice Kauger displayed the sentation to share additional continuing legal education Sovereignty Symposium post- information. He reported par- requirements is an annual er and said U.S. Supreme ticipation in the contests for task. Executive Director Wil- Court Justice Sandra Day students pre-K through 12th liams said the lists of names O’Connor will be the keynote grade was down 9 percent, will change as members com- speaker at the symposium. and he described how the con- ply. The board approved the Justice Kauger reported the tests were promoted. The cere- recommendations as submit- movie night CLEs are gaining mony for first-place contest ted subject to the removal of popularity and attendance is winners with Chief Justice bar member names when they up. She also said she has been Colbert was very successful. come into compliance. working on a new court bro- He called board members’ APPLICATIONS TO STRIKE chure that will be printed and attention to the April Oklahoma OBA MEMBERS available online. It is her goal Bar Journal Law Day theme to add biographies of trial issue that showcased the win- judges to the oscn.net website. Executive Director Williams ning contest entries. He out- explained to board members COMMITTEE LIAISON lined the Ask A Lawyer TV the difference between sus- REPORTS show segments produced with pending bar members and OETA and shared that OETA striking names from mem- Governor Hays reported gave the show rave reviews, bership rolls. The board the speaker for the Women saying it was one of the best approved the recommenda- in Law Conference has been shows ever. Reports on the tions to strike names of confirmed. She said the Tulsa number of calls for the state- members for failure to pay County Bar Association Bench wide Ask A Lawyer free legal 2012 dues and for noncompli- and Bar Committee will orga- advice project are still coming ance with 2011 mandatory nize a Think Pink event Oct. 8 in, but total calls will be more continuing legal education for which judges will wear than last year. This was the requirements. pink robes, associated with OBA’s 35th year to offer this breast cancer awareness/pre- community service, and more PROFESSIONAL vention. She announced the county bars participated this RESPONSIBILITY TCBA has selected Kevin year than in 2012. Mr. Vree- TRIBUNAL Cousins as its new executive land reviewed the promotion APPOINTMENTS director to succeed Sandra efforts that were expanded this The board approved Presi- Cousins, who is retiring. She year to make the public aware said the county bar is working dent Stuart’s recommenda- of the toll free phone number tions to reappoint William on a new website and will for the free legal advice. The hold its annual luncheon LaSorsa, Tulsa, and appoint increased efforts did produce Charles M. Laster, Shawnee, Aug. 22. She reported the results. He answered ques- Family Law Section is moving to three-year terms on the tions, and Communications PRT. Their terms will expire its Trial Advocacy Institute Department Assistant Director to 2014. June 30, 2016. President Stuart Lori Rasmussen was recog- noted there are three more REPORT OF THE nized for her work in coordi- positions to fill. Board mem- GENERAL COUNSEL nating the Law Day project. bers were asked to submit The Law Day Committee and suggestions. General Counsel Hendryx OBA Communications Depart- briefed the board on the status ment were thanked for their BUDGET COMMITTEE of cases against the OBA. hard work in making the APPOINTMENTS LAW DAY REPORT annual event a success. The board approved Presi- APPLICATIONS TO dent-Elect DeMoss’ recom- Law Day Committee Co- SUSPEND OBA MEMBERS mendations to appoint to the Chair Richard Vreeland Budget Committee: President reviewed the committee’s President Stuart reminded Stuart, Past President Chris- activities and results achieved board members that sending tensen, Governor Meyers, with assistance from the OBA a recommendation to the Governor Parrott, Governor Communications Department. Supreme Court to suspend Stevens, Governor Thomas,

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1641 Governor Vorndran, Judge disaster relief in Oklahoma. meeting and memorial service Richard Woolery, Sapulpa; He said he has received for Governor Coogan. She Glenn Devoll, Enid; Phil numerous emails from other participated in a Sovereignty Frazer, Tulsa; John Heatly, bar association presidents Symposium panel discussion, Oklahoma City; David Poarch, regarding disaster assistance. presented the 2013 Sovereign- ty Symposium Friend of the Norman; and Susan Shields, REPORT OF THE Court Award, participated in Oklahoma City. VICE PRESIDENT SCBP planning, met with a REIMBURSEMENT Vice President Caudle Lawyers Helping Lawyers TASK FORCE reported he attended meetings subcommittee to plan the 2013 The task force will meet of the Board of Governors, Cornerstone Banquet, moder- next week to continue work Comanche County Bar Associ- ated movie night for “Legally reviewing the OBA reimburse- ation, Board of Editors in Blonde,” participated in OBA ment policy. Oklahoma City and Oklahoma disaster relief planning, volun- Fellows to the ABA. He partic- teered in Moore, spoke to vic- OBA HUMAN ipated in a tour of the Oklaho- tims about the OBA Disaster TRAFFICKING CLE ma Judicial Center conducted Relief Program and concluded litigation for an OBA hero that It was noted the seminar by Justice Kauger and attend- has lasted over two years. She was well attended and attract- ed the memorial service for encouraged board members ed media attention. The pre- Governor Sandee Coogan. He volunteering in disaster areas sentations, which included also submitted his article for to obtain OBA fliers about the Governor Gifford, were very the November Oklahoma Bar free legal assistance and hand good. Corporate and law firm Journal, worked on plans for them out. support allowed the registra- OBA Day of Service and start- ed planning discussions with tion fee to be lowered, which REPORT OF THE other board members for the helped increase attendance. EXECUTIVE DIRECTOR January has beens party. u REPORT OF THE Executive Director Williams PRESIDENT-ELECT reported he participated in the The Oklahoma Bar Association disaster relief teleconference in Board of Governors met at the President-Elect DeMoss addition to numerous calls Choctaw Casino Resort in reported she attended the May and emails, did a 30-minute Durant in conjunction with Board of Governors meeting, TV interview for disaster the Solo & Small Firm Confer- reimbursement policy review relief, meeting with FEMA ence on Friday, June 21, 2013. subcommittee meeting, Section regional manager, staff direc- REPORT OF THE Leaders Council meeting, joint tors meeting, monthly staff PRESIDENT Communications/Law Day celebration, Section Leaders Committee/LRE meeting, Liti- Council meeting, conducted President Stuart reported he gation Section meeting and staff evaluations, spoke at the participated in various confer- OAMIC meeting. She worked OBA Hatton Sumner’s Insti- ences and email correspon- on the reimbursement policy tute, met with a designer dence on activating OBA draft, participated in OBA regarding artwork for the bar disaster relief services, Section disaster relief planning and center west wing, legislative Leaders Council meeting, joint participated on the committee update webcast meeting, con- Communications, Law Day selecting a Tulsa County spe- ference call with Inreach and LRE Committee meeting, cial judge. She also worked regarding online CLE services Solo & Small Firm Conference on 2014 OBA budget matters. and attended the Solo & Small planning meeting, Lawyers Firm Conference and Sheep REPORT OF THE Helping Lawyers planning Creek event. PAST PRESIDENT meeting, OBA Annual Meeting BOARD MEMBER REPORTS planning meeting and wel- Past President Christensen come at the Sovereignty Sym- reported she attended a Law- Governor Farris, unable to posium. He also attended the related Education Committee attend the meeting, reported Louisiana and Arkansas bar meeting, joint Communica- via email he attended the association annual meetings. tions/Law Day Committee/ Tulsa County Bar Association At the Louisiana meeting, they LRE meeting, Lawyer in the board meeting. Governor Gif- presented him with a check for Classroom subcommittee ford reported he attended the

1642 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 May Board of Governors meet- he attended the May Board of next OBA Leadership Acade- ing, Oklahoma County Bar Governors meeting and sub- my is July 1, and she encour- Association board of directors committee meeting reviewing aged board members to urge meeting, Section Leaders Coun- the OBA reimbursement poli- someone in their counties to cil meeting and service cele- cy. Governor Stevens report- apply. Educational Programs brating the life of Governor ed he attended the May Board Director Krug has organized Sandee Coogan. He presented of Governors meeting. Gover- the programming. Past Presi- the session, “Federal Response nor Thomas reported she dent Christensen reported a to Human Trafficking” at the attended the May Board of Lawyers Helping Lawyers OBA CLE seminar on human Governors meeting, Washing- subcommittee met and is plan- trafficking. Governor Hays ton County Bar Association ning a second fund-raising reported she attended the May monthly meeting and service banquet for the foundation on Board of Governors meeting, celebrating the life of Sandee Sept. 10 at the bar center. Key- OBA Professionalism Commit- Coogan. She reviewed the note speaker will be comedian tee meeting for which she pre- OBA membership survey Argus Hamilton, Oklahoma pared the minutes, OBA Family results and participated in City native. She asked board Law Section monthly meeting an initial planning session members who have vacation for which she prepared and for OBA Day of Service. homes to donate the use of them for the banquet auction presented the budget report, REPORT OF THE YOUNG and to ask friends with vaca- Tulsa County Bar Association LAWYERS DIVISION Board of Directors meeting at tion homes to donate. Those which she presented a report Governor Vorndran reported items were popular last year. on OBA matters and OBA the YLD has been busy work- DISASTER ASSISTANCE Family Law Section executive ing on several CLE programs REPORT planning meeting. She also geared toward young lawyers conducted the Women in Law as well as organization and President Stuart reported Committee meeting and partici- planning related to OBA Day that Tulsa attorney Molly pated in conference planning, of Service. A joint meeting of Aspan, Disaster Response and participated in Solo & Small the YLD and OBA board will Relief Committee chairperson, Firm Conference planning and be held immediately following deserves kudos for her work studied various reimbursement this board meeting to coordi- on leading the OBA’s efforts in policy alternatives. Governor nate plans for Day of Service response to Oklahoma’s dev- Jackson reported he attended in each district. He also said astating severe weather. She the May Board of Governors the division attempted its first has been asked by the ABA to meeting and Garfield County virtual meeting in May and present a session on how to Bar Association monthly encountered some technical deal with disasters. Executive meeting. Governor Meyers issues, but decided overall it Director Williams reported reported he worked on his can be an effective method current stats were nearly 300 unsung hero Oklahoma Bar by which to conduct short requests for legal assistance Journal article, studied various meetings. from victims and more than 250 lawyers who have volun- reimbursement policy alterna- COMMITTEE LIAISON teered to help. tives, attended the Comanche REPORTS County Bar Association meet- REPORT OF THE ing and volunteered for tax Governor Hays reported the GENERAL COUNSEL section aid to tornado victims. Women in Law Conference Governor Pappas, unable to theme this year will be com- General Counsel Hendryx attend the meeting, reported munication and include a ses- explained the details of the via email that she attended the sion on human trafficking. The report that is submitted Payne County Bar Association committee is currently recruit- monthly. Written status reports monthly meeting and Section ing sponsors for the event. She of the PRC and OBA disciplin- Leaders Council meeting. also reported that Ken Wil- ary matters for May 2013 were Governor Parrott reported she liams has been elected Tulsa submitted for the board’s attended the memorial service County Bar Association presi- review. She said the calendar for Governor Coogan and the dent-elect, who will follow Jim year for the Professional Oklahoma County Bar Associ- Hicks as president. Governor Responsibility Tribunal ends ation board of directors meet- Thomas reported the deadline June 30 and will hold its ing. Governor Smith reported to submit applications for the annual meeting next Tuesday.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1643 The event will welcome new is not printing binders any- Sandee Coogan is that it members and thank out-going more to reduce expenses and would be a Board of Gover- members for their service. instead is sending materials nors appointment. Possible Additional vacancies still electronically in advance. candidates were discussed. need to be filled. Upon request printed materi- JUDICIAL NOMINATING als are available for $25; other REIMBURSEMENT POLICY COMMISSION ELECTION bar associations charge much President-Elect DeMoss more. It was noted Ms. Krug Executive Director Williams reported the subcommittee has recently celebrated her first reported the deadline for sub- met. She said Executive Direc- anniversary working for the mitting ballots is June 21, and tor Williams was helpful in OBA, and she was thanked ballots will be counted on gathering other state bar poli- for doing a good job. Monday. He reviewed the cies, and a draft of a revised NEW MEMBER BENEFIT procedure. OBA policy has been created PROPOSAL ANNUAL MEETING and revised. Work continues on the draft. The subcommit- Member Services Committee Executive Director Williams tee will meet again at this con- Chairperson Sarah Schumach- shared an idea for a new social ference, and plans are to sub- er reported the committee event at the Annual Meeting mit a proposal at the next recommends the board that would involve participa- meeting. approve a vendor relationship tion of OBA sections. He with WordRake, a software OBA CLE 2012 ANNUAL reported work continues on that edits Microsoft Word doc- REPORT confirming a luncheon speak- uments suggesting changes to er. He also described efforts to Educational Programs Direc- accept or reject to create clear get sections more involved in tor Krug reported continuing and concise documents by the CLE programming. Presi- legal education revenue fell eliminating useless words and dent Stuart shared his recent short of projections, but phrases. OBA members would experiences at the Louisiana expenses were also down, and receive a 10 percent discount, and Arkansas annual meet- the result was net revenue of and the OBA would receive a ings, which were both well nearly $58,000. Evaluations 5 percent payout on purchases. attended. He noted both meet- show OBA programming is The board authorized Execu- ings involved participation of considered to be high quality tive Director Williams to nego- judicial members. It was sug- with the majority of partici- tiate the three-year contract to gested that more judges be pants rating speakers and offer WordRake as an OBA asked to be presenters at the materials as “excellent.” As member benefit. OBA meeting and that topics expected, the demand for elec- PROFESSIONAL identified by OBA members as tronic CLE (audio programs, RESPONSIBILITY important in the recent mem- on-demand and CLE-to-go TRIBUNAL ber survey should be consid- seminars, webcasts and webi- APPOINTMENTS ered for Annual Meeting CLE nars) remained strong, and programs. Other ideas were to live program attendance The board approved Presi- issue an invitation to county decreased. Videocasts were dent Stuart’s recommendation bar presidents for a special added in 2012, and the OBA to appoint Mike Edward meeting and to schedule more partnered with the Office of Smith, Oklahoma City, to a events on Friday afternoon. the Attorney General to pro- three-year term on the PRT. NEXT MEETING vide mortgage foreclosure The term will expire June 30, CLE. She said competition 2016. President Stuart noted The Board of Governors met remains a factor with the there are two more positions at the Oklahoma Bar Center in number of MCLE providers to fill. Oklahoma City on July 19, increasing by more than 50 VACANCY OF SUPREME 2013 and Aug. 16, 2013. A last year. When asked about COURT DISTRICT 5 summary of those actions will trends, she said webcasts have POSITION be published after the minutes been popular but so was a live are approved. The next board seminar on a good topic like President Stuart stated that meeting will be held at human trafficking with spon- the procedure to fill the Board 1:30 p.m. on Thursday, sors to bring down registration of Governors vacancy created Sept. 19, 2013, at the Oklaho- costs. She said the department with the death of Governor ma Bar Center.

1644 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 BAR FOUNDATION NEWS

OBF Awards Grants to District Courts Across the State By Susan Shields

At its July meeting, the actions. The Court Grant to replace outdated system Oklahoma Bar Foundation Program was established in to be used by a court report- Board of Trustees was pleased 2009 and is funded through er shared between two to approve court grant awards a series of cy pres awards counties. $5,197 for 2013 benefitting 13 district directed to the OBF. • District Court of Jeffer- courts across Oklahoma total- The 2013 OBF court grants son County: Funding to ing $89,375. These awards were awarded to the following provide one court reporting were recommended by the district courts: system to replace outdated OBF’s grant committee, system to be used by a chaired by Judge Millie Otey, • District Court of Cimar- shared court reporter which worked diligently to ron County: Funding to between two counties. review the court grant award provide a multi-channel $5,197 applications submitted and to digital court recording sys- interview representatives of tem and sound system • District Court of Jackson the prospective grantees. equipment to enable the County: Funding to provide court reporter to perform courtroom video and pro- The Oklahoma Bar Founda- off-site transcriptions with- jector equipment. $4,889 tion District and Appellate out being present at court Court Grant program is • District Court of Kay proceedings, with one court unique in that it is targeted to County: Funding to provide reporter being shared by provide specific funding for hearing assist devices for five counties. $6,766 technology, capital improve- two courtrooms and light- ments and extraordinary • District Court of Beaver ing devices for three court- expenditures for Oklahoma County: Funding to provide rooms to complete a prior district and appellate courts in two multi-channel digital funded technology project. order to promote the adminis- court recording systems and $2,755 tration of justice in our court sound system equipment so • District Court of McCur- system. The Court Grant Fund the court reporter will be tain County: Funding to guidelines define the phrase able to do off-site transcrip- provide courtroom video “capital improvements and tions without being present arraignment and sound sys- extraordinary expenditures” to at court proceedings, with tem technology equipment. include improvements to one court reporter being $8,222 courtrooms such as audio/ shared by five counties. visual equipment, computer $13,531 • District Court of Nowata equipment, court reporting County: Funding to provide • District Court of Caddo equipment (including equip- audio and visual technology County: Funding to provide ment for “real time” report- equipment for the main courtroom audio and video ing), other furniture and fix- courtroom of the court- technology equipment. $8,656 tures and extraordinary expen- house. $9,199 ditures made necessary for the • District Court of Cotton • District Court of Oklaho- proper administration of com- County: Funding to provide ma County: Funding to plex litigation, such as class one court reporting system

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1645 provide four public access A total of approximately abused, protection and legal computers and software for $360,000 has been awarded to assistance for children, public creation of a new public district and appellate courts in law-related education pro- media center. (Six public 33 different Oklahoma coun- grams, including programs for access computers and soft- ties since the court grant pro- school children, and other ware were provided by a gram was established in 2009. activities that improve the prior court grant award). These court grants meet the quality of justice for all Okla- $7,415 critical needs of our court sys- homans. The public purpose tem for items not normally OBF law-related grant awards • District Court of Ponto- funded through existing bud- will be approved in a separate toc County: Funding to pro- getary channels. grant cycle later this year. vide one court reporting system and portable digital In addition to the court grant For more information on the recorders. $5,695 awards made since 2009, over Oklahoma Bar Foundation the last 30 years the Oklahoma and the process to make • District Court of Rogers Bar Foundation has also award- application for future court or County: Funding to provide ed more than $10 million to public purpose law-related three automated projectors Oklahoma law-related nonprof- grants, visit our website at for three third floor level its. The OBF is the primary www.okbarfoundation.org or courtrooms. $7,000 grant-making organization in feel free to contact Executive • District Court of Wash- Oklahoma supporting law-re- Director Nancy Norsworthy, ington County: Funding to lated services and education, at 405-416-7070 or visit with provide audio and visual providing a funding umbrella one of our OBF Officers or technology equipment for for many diverse law-related Trustees. the main courtroom. $4,853 programs and projects. The Ms. Shields is OBF president OBF provides funding for free and can be reached at susan. legal assistance for the poor [email protected]. and elderly, safe haven for the

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Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1647 YOUNG LAWYERS DIVISION

OBA Day of Service Closer Than You Think By Joe Vorndran Counties and Groups Planning OBA Day of Service Projects*

Alfalfa County Bar Association Beaver County Bar Association OKLAHOMA BAR ASSOCIATION Canadian County Bar Association Comanche County Bar Association Cimarron County Bar Association DAY OF SERVICE Cleveland County Bar Association Garfield County Bar Association September 20-21, 2013 Grant County Bar Association Haskell County Bar Association Latimer County Bar Association LeFlore County Bar Association Logan County Bar Association Major County Bar Association Procrastination is an pressing matters. Whether Mayes County Bar Association enemy of every profes- we are ready for it or not, McIntosh County Bar Association sional, but for me and the OBA Day of Service is Noble County Bar Association many of the lawyers Sept. 20-21 and county OKLAHOMA COUNTY I know, it has taken on bars, law firms, law OCU School of Law arch-nemesis status. schools and businesses Oklahoma County Bar Association Tomorrow always seems across the state are gear- OU College of Law more open and less treach- ing up for this important Payne County Bar Association erous than the day at initiative. Pittsburg County Bar Association hand, and before you The Young Lawyers Pontotoc County Bar Association know it you are up on a Division has always Pottawatomie County Bar Association deadline and yesterday served as the community doesn’t seem quite so hec- Pushmataha County Bar Association service arm of the OBA tic. It is my sincere hope Sequoyah County Bar Association and as such it is incum- that the frequent remind- Texas County Bar Association bent upon our member- ers about the OBA Day of TULSA COUNTY ship to contribute our pas- Service have prompted TU College of Law sion and energy to these you to identify the project Tulsa County Bar Association worthwhile projects. I am in your area that you will Woods County Bar Association frequently asked what is be participating in, but I Woodward County Bar Association the best way to get suspect many of you still involved with the YLD, see this as a future task *Information current as of Aug. 15, 2013. and my answer is always buried on a list by more

1648 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 the same — show up, roll up have not reported and plan- get involved, please contact your sleeves and participate. ning that needs to be done. If the YLD Community Service The OBA Day of Service is you have not been contacted Committee Chairperson a perfect opportunity to do by someone in your area, Brandi Nowakowski at brandi just that. reach out. If you are in a rural nowakowski@thewestlawfirm. area, devise your own project com and she will direct you to HOW TO GET INVOLVED or participate in one in a a project or contact in your Organizers within the Board neighboring county. Please area. of Governors and YLD have engage yourself in this oppor- Mr. Vorndran practices in been working tirelessly to tunity for service and fellow- Shawnee. He can be reached at identify and coordinate each ship within our respective [email protected]. project to be undertaken, but communities. If you have any there are still counties that questions about how to best

Sept. 20-21 Day ofService Project submissions due Aug. 26 To submit your county’s Day of Service project, email Brandi Nowakowski at EQRZDNRZVNL#WKHZHVWODZÀUPFRP

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1649 WHAT’S ONLINE

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1650 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 FOR YOUR INFORMATION

JNC Elections Results This Will Affect the Way You Announced Practice Law! – New Amend- ments to Rules for E-Filing in Congratulations to attorneys Oklahoma Courts Michael C. Mordy of Ard- more and Peggy Stockwell Amendments to Oklahoma of Norman, who have been Supreme Court Rules and District elected by their fellow law- Court Rules have been posted to yers to serve on the state’s www.oscn.net. These amendments Judicial Nominating Com- are related to e-filing in Oklahoma mission. Each will serve as courts and affect every practitioner one of six lawyers on the in Oklahoma. Be sure to take a Michael C. Mordy 15-member commission, look at this information — failure which plays a key role in to comply with any rule or order the selection of Oklahoma of the court could have negative judges. More information consequences for your client or about the newly elected cause. Supreme Court information commissioners is available can be located at www.oscn.net/ at www.okbar.org/news/ applications/oscn/DeliverDocu Recent/2013/JNCElection ment.asp?CiteID=470696, and dis- Results.aspx. trict court information is at www. oscn.net/applications/oscn/De liverDocumentasp?CiteID=470708. Peggy Stockwell Annual Meeting Interest on Judgments Notice Luncheon Amended Speaker Selected Due to a recent decision by the Oklahoma Florida defense attor- Supreme Court regarding Douglas v. Cox ney Jose Baez will Retirement Properties, Inc., 2013 OK 37, in discuss “Why Casey which the Comprehensive Lawsuit Reform Anthony Was Found Act of 2009 (Laws 2009, HB 1603, c. 228), Not Guilty” during was deemed unconstitutional, interest the Annual Lunch- rates on judgments have been amended eon to be held in effective upon mandate issued July 1, 2013. conjunction with More recent changes in legislation mean the OBA 2013 the interest rates will change again effec- Jose Baez Annual Meeting, tive Nov. 1, 2013. To see the explanation of set for Nov. 13-15 at current interest rates on judgments visit the Sheraton Hotel in downtown Oklahoma http://goo.gl/3hLjlE or see (July 13, 2013) City. Make plans to attend now! All the 84 OBAJ 1357. details and event highlights will be available in the Sept. 14 Oklahoma Bar Journal.

Free LHL Discussion Groups Available to OBA Members “Coping with the Challenges of an Addicted Loved One or Colleague” will be the topic of the Sept. 5 meetings of the Lawyers Helping Lawyers discussion groups in Oklahoma City and Tulsa. Each meeting, always the first Thursday of each month, is facilitated by committee members and a licensed mental health professional. In Oklahoma City, the group meets from 6-7:30 p.m. at the office of Tom Cummings, 701 N.W. 13th Street. The Tulsa meeting time is 7-8:30 p.m. at the TU College of Law, John Rogers Hall, 3120 E. 4th Place, Room 206. There is no cost to attend and snacks will be provided. RSVPs are encouraged to ensure there is food for all.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1651 Bar Center Welcomes Law Students From China The OBA welcomed nearly two dozen special guests in July when students and professors from several university law schools in China paid a visit to the bar center. The students were in Okla- homa City attending the OCU School of Law Certificate in American Law Pro- gram. The program, which consists of four weeks of legal coursework and a mock trial, provides an extensive back- ground on the American legal system for the participating Chinese students. This four-week certification program, which began in 2007, grew from a partnership between OCU School of Law and Nankai Uni- versity School of Law. It has since expanded to include several other Chinese universities.

New Member Benefit: WordRake Editing Software for Lawyers Have you ever felt that your writing could stand to benefit from a little bit of editing? Do you rely on “legalese” to make your point? WordRake may be the solution for you. Developed for lawyers, the software provides editing suggestions for clarity and brevity. WordRake instantly edits documents right in Microsoft Word, suggesting changes that eliminate unnecessary words and phrases. A new partnership with WordRake means OBA members receive a 10 percent discount on the product. Visit www.wordrake.com to check it out or download a free three-day trial The MS Word add-in is easy to install, and annual licensing plans offer increased saving based on subscrip- tion duration. When you purchase, enter coupon code OKBAR on the final purchase page to receive the special OBA member discount. Says OBA member Jarod Morris of Oklahoma City who uses the product, “I ‘raked’ a motion that I’m about to file and love it. I bought it and use it all the time, and it’s worth every penny. I’ve noticed things with my writing that I didn’t notice before. I recommend it for everyone who will not file briefs in opposition to mine.”

OBA to Celebrate Constitution Day and Freedom Week 2013 The OBA Law-related Education Committee invites you to observe this year’s Constitution Day, Sept. 17; and Freedom Week, Nov. 11-15. As lawyers, you have a unique responsibility to promote civics education among the public, particularly relating to information about the third branch of government. Check out www. okbar.org/public/LRE/LREConstitutionDay. aspx to see resources you can share with your local schools and civic groups.

1652 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Tulsa Lawyers Sponsor Household Item Drive The Tulsa County Bar Foundation Community Outreach Committee recently sponsored a household item drive benefitting residents of the Tulsa Day Center for the Homeless. The committee assem- bled 50 “housewarming” kits val- ued at $125 each to provide assis- tance and support to homeless families and individuals in mak- ing the transition to their own homes or apartments.

Members of the TCBF gather items for the Tulsa Day Center for the Homeless. From left: Talia Campbell, Shelley Holmes, Meredith Lindaman, Kevin Cousins, Jennifer Waeger, Matt Farris

Governor Appoints Laypersons Lawyers Encouraged to Devote to PRT Time, Talent to Serving Communities in 2013 Gov. Mary Fallin has appointed four non- lawyers to serve on the Professional Respon- OBA President Jim Stuart is encouraging all sibility Tribunal, the panel of masters Oklahoma lawyers and law firms to make charged with conducting hearings on formal giving back a top priority. During 2013, the complaints filed against Oklahoma lawyers. Oklahoma Bar Journal is supporting this effort The new appointees are James W. Chappel, by spotlighting those lawyers and law firms Norman; Linda C. Haneborg, Oklahoma who give their time, talent and financial City; Kirk V. Pittman, Seiling; and Mary Lee resources to make their communities a better Townsend, Tulsa. place. Have a great story or photos to share? Email Lori Rasmussen at [email protected]. Mr. Chappel is a community affairs manager for OG&E Energy Corp. Ms. Haneborg is the principal/owner of Linda Haneborg Associates, a public relations firm. Mr. Pitt- Aspiring Writers Take man is the president/CEO of First National Note Bank of Seiling, and Ms. Townsend is a We want to feature your retired University of Tulsa professor. work on “The Back Page.” The PRT consists of 21 members, seven of Submit articles related to whom must be non-lawyers appointed by the practice of law, or send the governor. The remaining 14 must be us something humorous, active OBA members in good standing. transforming or intriguing. Members are appointed on rotating terms Poetry is an option too. Send submissions of three years expiring on June 30 of the no more than two double-spaced pages given year. All masters serve without com- (or 1 1/4 single-spaced pages) to OBA pensation except for reimbursement for Communications Director Carol Manning, travel and other incidental expenditures [email protected]. incurred in connection with the performance of their duties. PRT non-lawyer members rotating off the Holiday Hours panel this year are Norman Cooper and The Oklahoma Bar Center will be closed John Thompson. Mr. Pittman and Ms. Monday, Sept. 2 in observance of Labor Day. Townsend are being reappointed to the panel.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1653 BENCH & BAR BRIEFS

als by the Tulsa Business & cial reform legislation that led Legal News. to a modified plan for the selection of appellate judges. immy K. Goodman of JCrowe & Dunlevy recently klahoma City attorneys received the Journal Record’s ONick Harroz and Mike Leadership in Law award, Voorhees have been elected Michael McBride III has which recognizes Oklahoma’s chairman and vice chairman, D. been appointed to the outstanding leaders in the respectively, of the Oklahoma Greater Tulsa Area Indian field of law who are doing City Board of Adjustment Affairs Commission. The valuable community service. for a one year term from 2013-2014. commission aids in the pres- auren Austin Thomas, ervation of cultures of Indian Lassistant district attorney sther Roberts Bell, CEO people and enhances and pro- and managing attorney for Eand founder of Global motes educational opportuni- Payne and Logan counties Intellectual Property Asset ties among Indian citizens. district attorney’s child Management PLLC, has been Additionally, at the Oklaho- support divisions, was named named a finalist in the 29th ma Supreme Court’s Sover- 2013 attorney of the year annual YWCA Tribute to eignty Symposium he was during the Oklahoma Child Women awards for her efforts presented with the inaugural Support Enforcement As- towards equality, empower- Justice Rudolph Hargrave sociation’s annual training ment and transformation. Prize for the outstanding conference and awards avid Hickens received scholarly article from a facul- presentation. ty member. His article, “Fifty Dthe NASA Johnson Shades of Regulation: A Sur- ike Redman of Neuens Space Center (JSC) Director’s vey of Internet Gaming Issues MMitchell Freese, PLLC, Commendation Award for in Indian Country and a was recently elected to the outstanding leadership and Framework for Future Devel- American Civil Liberties management of the JSC Envi- opment,” examines the state Union, Oklahoma Chapter ronmental Affairs Program. of iGaming in the U.S. and board of directors. Additionally, at the Environ- mental Protection Agency how regulation has pro- rdmore attorney, Gary Region 6 Federal Facilities gressed and will continue W. Farabough of Pasley, A Conference in Dallas, Mr. to develop. Farabough and Mouledoux, Hickens was awarded the has been nominated by the Russell Woody graduated Green Challenge National mayor and city commission- . from the Leadership Award for success in achiev- C ers to serve a three-year term Oklahoma City program, a ing significant waste reduc- as a trustee on the Ardmore 10-month series of classes tions at the JSC. focusing on various commu- Development Authority Trust nity issues. Board. The authority has the ssistant Attorney General power to build, lease, own, AJennifer Miller has been on Ricketts of Gable- buy, sell and otherwise deal selected to the board of direc- RGotwals has been induct- in activities that benefit tors for the Association of ed as a fellow in the Academy industrial development Government Attorneys in of Court Appointed Masters, for Ardmore. Capital Litigation. Ms. Miller the only Oklahoma attorney serves as chief of the Attorney ormer OBA President admitted to the academy. General’s office Criminal Tony Massad received the F Appeals Unit. hristopher S. Heroux, Oklahoma Supreme Court’s Cfounder of Heroux Part- Sovereignty Symposium sage County District ners PLLC, has been named Award in recognition of the OJudge M. John Kane of to the 2013 Tulsa Power Frederick attorney’s contribu- Pawhuska was recently elect- Attorneys & Legal Profession- tions as an advocate for judi- ed as the president of the

1654 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Oklahoma Judicial Confer- CO professor Marty Lud- ence at its annual meeting in Ulum recently presented Norman. The conference on “Recent Events in Employ- supervises the education and ment Law” to the Texas training of members of the Funeral Directors Convention judicial branch of the state in Austin, Texas. government and assists the ike Turpen of Riggs Supreme Court and legisla- need Lang PC announces Abney Neal Turpen ture in analyzing the needs M that Douglas L. Inhofe, J. Orbison and Lewis recently S of the trial courts. David Jorgenson and Rich- spoke at the Oklahoma Dis- ard E. Warzynski have joined trict Attorneys Association the firm. Mr. Inhofe has training conference in Okla- joined the firm of counsel. He homa City concerning vic- is a 1971 graduate of Cornell tims’ issues, trial tactics and Law School and practices pri- special tips to help district marily as a trial lawyer and attorneys improve their office. as counsel on appeal. His aith Orlowski of Sneed experience includes lender FLang PC presented “The liability, securities questions, ric L. Johnson recently Ethics of Third Party Use of construction disputes, prod- Emoderated “Compliance: Oil and Gas Title Opinions” ucts liability, employment The General Counsel Perspec- and “How Do We Cloud Title discrimination and other tive” at the Auto Finance Risk — Let Me Count the Ways business litigation matters. Summit in Dallas. Mr. John- to the Mid-American Associ- Mr. Jorgenson has joined the son also presented “Tricks ation of Division Order firm of counsel. He is a 1978 and Traps of Auto Finance” at Analysts in Wichita, Kan. graduate of the University of Texas Law School and prac- the Counselor Library’s 2013 atthew D. Stump Consumer Financial Services tices primarily as a trial law- Mrecently served on a yer and as counsel on appeal. Conferences in Annapolis, panel at the 2013 American Md., “Hot Regulatory Issues” He has experience in oil Immigration Lawyers Associ- and gas litigation, defense of at the Credit Union Associa- ation (AILA) Annual Confer- tion of Oklahoma’s annual individual and class action ence in San Francisco. He royalty owner claims, gas bal- meeting in Norman and “The spoke about the U.S. Depart- Consumer Financial Protec- ancing disputes and pricing ment of Labor’s Foreign claims, and in other business tion Bureau” at the Graduate Labor Certification process. School of Banking of Louisi- tort and contract litigation. Mr. Stump also served as Mr. Warzynski has associated ana State University in Baton vice-chair of AILA’s Vermont Rouge, La. with the firm. He graduated Service Center (VSC) Liaison from TU College of Law in eith D. Magill presented Committee. VSC is a major 1991. His practice includes K“Oklahoma Estate Plan- service center of U.S. Citizen- general litigation, employ- ning” at the Oklahoma Good ship and Immigration Servic- ment law, personal injury, Sam “Spring Samboree” at es and the U.S. Department products liability and insur- the Oklahoma Exposition of Homeland Security. ance litigation. Center in Shawnee. cAfee & Taft litigator molen, Smolen & Roytman an S. Dumont of Riggs MMark Christiansen will SPLLC announces that JAbney recently presented present “Litigation Update on Gregory Bledsoe, Ray Yasser to 75 area employers regard- Recent Court Decisions and Steven A. Novick have ing “Pay or Play” under Resolving Issues Under Oil joined the firm of counsel. Mr. the Affordable Care Act in and Gas Industry Contracts” Bledsoe’s practice will focus Ardmore. at the American Conference on plaintiff’s employment-re- Institute’s forum on oil & gas lated litigation including dis- litigation in Houston crimination, wrongful dis- on Sept. 12. charge and claims under the Fair Labor Standards Act as well as civil rights including

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1655 first amendment and police in the fair housing division, Wilkin/McMurray PLLC. Mr. misconduct claims. He will litigating cases on behalf of Wilkin holds a J.D. and B.A. also continue to advise small victims of housing discrimi- from the University of Arkan- businesses and individual nation and dealing with fair sas, graduating magna cum defendants involved in housing, civil rights and laude from both undergradu- employment and civil rights administrative law. He holds ate and law school. His prac- disputes. He holds a J.D. from a B.A. from TU and earned tice area includes employ- TU. Mr. Yasser was most his J.D. from OU in 2008. ment and labor law, complex recently a law professor at commercial litigation, class obert S. Jackson TU, with an academic back- action defense and general announces the opening of ground in sports law, Title IX R business litigation. He is his solo practice in Oklahoma issues and torts. He had been licensed to practice law in City. His practice will focus at the university since 1975 Kentucky, Tennessee and on criminal and family law. before joining the firm. Mr. Texas, in addition to Oklaho- He worked previously as Yasser holds a bachelor’s ma. Mr. McMurray graduated an assistant federal public degree from the University of with honors from TU College defender in the Western Dis- Delaware and earned his J.D. of Law and holds a B.A. in trict of Oklahoma. As a public at Duke. Mr. Novick’s prac- business administration and defender, he practiced habeas tice focuses on plaintiff’s finance from San Diego State corpus litigation in Oklaho- employment matters, disabili- University. He has practiced ma’s federal district courts, ty rights, plaintiff’s civil in Tulsa since 1998 and his the 10th Circuit Court of rights cases and plaintiff’s practice focuses on banking Appeals and the United personal injury. Prior to join- and commercial law, business States Supreme Court. He ing the firm, he spent 18 years law, business transactions, holds a B.A. in economics with Oklahoma Legal Aid civil litigation, contracts, real from the University of Texas and two years as Oklahoma estate, foreclosure, collections and earned his J.D. from OU Disability Law Center direc- and construction law. in 2008. tor. He also has 20 years of obert P. Skeith and private practice experience. elly Comarda has joined Audra K. Hamilton have Mr. Novick holds a J.D. Hall Estill’s Tulsa office R K joined the recently formed from OU. as an associate. His practice Wilkin/McMurray PLLC. Mr. focuses on litigation in health- all Estill announces Ste- Skeith graduated with honors care and medical malpractice. phen E. Hale has joined from TU College of Law and H He is a graduate of the Univer- the firm’s Tulsa office as a also attended TU for his sity of Arkansas School of Law shareholder. Hale has prac- undergraduate studies. He and holds a bachelor’s degree ticed exclusively in family has practiced law in Tulsa from Tulane University. law for 15 years with an since 1994 and his practice emphasis on parent coordina- ean Couch has joined focuses on banking, business tion and guardian ad litem DGableGotwals as an of transactions, collections, work. Mr. Hale holds a J.D. counsel attorney in the firm’s appellate practice, commer- and a master’s degree from Oklahoma City office. His cial litigation and real estate. TU as well as a bachelor’s practice will focus on water Ms. Hamilton graduated degree from OSU. law and the complex issues with highest honors from the surrounding rights, access University of Arkansas law ames Wylie has joined the and management of this natu- school and earned her B.A. Consumer Financial Protec- J ral resource. Mr. Couch magna cum laude in English tion Bureau’s Office of Regu- served for almost 30 years as from Hendrix College. She lations in Washington D.C., the general counsel of the has practiced in Tulsa since where he will work on federal Oklahoma Water Resources 1998 and her practice focuses regulations dealing with con- Board. He holds a J.D. from on employment law. She is sumer financial protection OU and a B.A. from Central also licensed to practice in laws. He was previously a State University. Arkansas. trial lawyer for the U.S. Department of Housing and Charles Wilkin III and iggs Abney Neal Turpen Urban Development where R . Kurston P. McMurray ROrbison and Lewis he served as a trial attorney announce the formation of announces the purchase of

1656 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 the office building at 528 NW corporate and transactional Order of the Curule and Order 12th (12th and Dewey) as the participants and stakeholders of Barristers. new home of its Oklahoma in a broad array of mergers, How to place an announce- City office. The firm plans to acquisitions and other trans- ment: The Oklahoma Bar Journal renovate the building and actional-based work. Mr. welcomes short articles or anticipates moving in Jan- Stanford will continue to news items about OBA mem- uary 2014. focus his practice on repre- bers and upcoming meetings. senting corporate entities and eginald O. Smith was If you are an OBA member and individuals in a wide variety you’ve moved, become a part- promoted to the rank of R of litigated matters. The firm ner, hired an associate, taken Commander (O-5), U.S. Pub- can be reached at 405-285- on a partner, received a promo- lic Health Service on July 1, 8588 or via the firm website tion or an award, or given a 2013. Presently, he works in at www.crooksstanford.com. talk or speech with statewide the Health Resources Services or national stature, we’d like Administration in the U.S. oerner, Saunders, Dan- to hear from you. Sections, Department of Health and Diel & Anderson LLP committees, and county bar Human Services. announces Michael Linscott associations are encouraged has joined the firm’s Tulsa to submit short stories about elley N. Feldhake an- office. His practice focuses on upcoming or recent activities. nounces the formation of K complex litigation including Honors bestowed by other Feldhake Law. Her practice business disputes such as publications (e.g., Super Law- focuses on family law and breach of contract and fiducia- yers, Best Lawyers, etc.) will not guardianships. She graduated ry duty claims, insurance cov- be accepted as announcements with distinction from OU (Oklahoma-based publications erage, contract and bad faith with a B.A. in political science are the exception.) Information claims, securities, arbitrations, and holds a J.D. from TU. selected for publication is construction cases, intellectual printed at no cost, subject to inslie Stanford and property matters and collec- editing, and printed as space AMichael Crooks an- tion disputes. He will also permits. nounce the opening of their provide general business Submit news items via email to: new law firm, Crooks Stan- counseling on logistics and Jarrod Beckstrom ford PLLC. Mr. Stanford has acquisitions as well as pre- Communications Dept. spent the last several years as litigation advice and strategy Oklahoma Bar Aassociation a partner at Corbyn Hamp- for companies. He is a 1991 (405) 416-7084 ton, while Mr. Crooks has graduate of TU College of [email protected] been the managing partner Law where he served as man- at the Crooks Law Firm. Mr. aging editor of the Tulsa Law rticles for the Sept. 14 Crooks will continue his prac- Journal and is a member of the Aissue must be received by tice of advising individual, Aug. 19.

To get your free listing on the OBA’s lawyer listing service! Just go to www.okbar.org and log into your myokbar account. Then click on the “Find a Lawyer” Link.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1657 IN MEMORIAM

oseph Francis Clark Jr. died tions can be made to Christ the court to write public opin- JJuly 16. He was born on Jan. the King Parish in Tulsa. ions. In 1982, he was appoint- 20, 1949, and graduated from ed as a judge to the Oklahoma aynard Ungerman died Cascia Hall Preparatory Court of Appeals by the Okla- July 27. Born in Topeka, School and went on to attend M homa Supreme Court. He co- Kan., on Dec. 5, 1929, he grew Villanova University for his founded the nonprofit up in Tulsa, graduating from undergraduate studies. He “Neighbor for Neighbor,” and Will Rogers High School in earned his J.D. from TU and was recognized as Volunteer 1947. He graduated cum laude was admitted to the bar in of the Year by the organiza- from Stanford University and 1974. He was a partner at tion in 2009. He was also earned his J.D. from Stanford Clark and Warzynski, with his involved with the Community University Law School in practice focusing on ERISA Service Council of Tulsa and 1953. He served on the law and insurance cases. Mr. the Day Center for the Home- Stanford Law Review Board of Clark was a member of the less, among various other Editors. He served in the Air Christ the King Parish and the honors for his service work. Force JAG Corps and eventu- Knights of Columbus, Council He was known for his civil ally joined his father’s law 1104. He was a past grand rights work in Tulsa through- firm. He was appointed as a knight and a 4th degree out the 1960s and was a mem- special master of the Oklaho- knight. Memorial contribu- ber of the Congress on Racial ma Supreme Court, assisting Equality.

OKLAHOMA COUNTY PRO SE WAIVER DIVORCE PROJECT

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Saturday, August 24, 2013 9 a.m. – 2 p.m. Oklahoma City University School of Law

Pre-register: 405-208-5332 or [email protected] Breakfast and lunch will be provided.

1658 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 In Remembrance

Sandee Coogan Oct. 2, 1950 – May 22, 2013 The OBA Board of Editors honors the life of its fellow editor, whose many contributions to the Oklahoma Bar Journal, Oklahoma Bar Association, Cleveland County Bar Association and to the practice of law will long be remembered.

Norman, Oklahoma Sole Practitioner OBA Board of Editors Associate Editor OBA Board of Governors • OBA Awards Committee OBA Women in Law Committee • OBA Family Law Section Oklahoma Bar Foundation Sustaining Fellow Cleveland County Bar Association Past President Cleveland County Bar Foundation Trustee Post-Adjudicatory Review Board Chairman Cleveland County Bench and Bar Committee Judicial Resources Board Vice President Mary Abbott House Founding Member

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1659 CLASSIFIED ADS

SERVICES SERVICES

OF COUNSEL LEGAL RESOURCES — SINCE 1992 — Appeals and litigation support Exclusive research & writing. Highest quality: trial and Expert research and writing by a veteran generalist appellate, state and federal, admitted and practiced who thrives on variety. Virtually any subject or any U.S. Supreme Court. Over 20 published opinions with type of project, large or small. NANCY K. ANDER- numerous reversals on certiorari. MaryGaye LeBoeuf SON, 405-682-9554, [email protected]. 405-728-9925, [email protected]. Creative. Clear. Concise.

BUSINESS VALUATIONS: Marital Dissolution * Es- LEGAL RESEARCH: retired law professor/trial attor- tate, Gift and Income Tax * Family Limited Partner- ney available to do research, brief writing, investiga- ships * Buy-Sell Agreements * Mergers, Acquisitions, tions, trial preparations, special projects, leg work, etc. Reorganization and Bankruptcy * SBA/Bank required. on hourly basis. Les Nunn 404-238-0903. Not admitted Dual Certified by NACVA and IBA, experienced, reli- in OK. able, established in 1982. Travel engagements accepted. Connally & Associates PC 918-743-8181 or bconnally@ BRIEF WRITING, APPEALS, RESEARCH AND DIS- connallypc.com. COVERY SUPPORT. Eighteen years experience in civil litigation. Backed by established firm. Neil D. Van HANDWRITING IDENTIFICATION Dalsem, Taylor, Ryan, Schmidt, Van Dalsem & Wil- POLYGRAPH EXAMINATION liams PC, 918-749-5566, [email protected]. Board Certified Court Qualified FORENSIC ACCOUNTING SERVICES Diplomate — ABFE Former OSBI Agent BY FORMER IRS SPECIAL AGENTS Life Fellow — ACFEI FBI National Academy Litigation support, embezzlement and fraud investi- Arthur D. Linville 405-736-1925 gations, expert witness testimony, accounting irregularities, independent determination of loss, due diligence, asset verification. 30+ years investigative TRAFFIC ACCIDENT RECONSTRUCTION and financial analysis experience. Contact INVESTIGATION • ANALYSIS • EVALUATION • TESTIMONY Darrel James, CPA, [email protected] or 25 Years in business with over 20,000 cases. Experienced in Dale McDaniel, CPA, [email protected], automobile, truck, railroad, motorcycle, and construction zone 405-359-0146. accidents for plaintiffs or defendants. OKC Police Dept. 22 years. Investigator or supervisor of more than 16,000 accidents. INSURANCE EXPERT - Michael Sapourn has been Jim G. Jackson & Associates Edmond, OK 405-348-7930 qualified in federal and state courts as an expert in the DO YOU OR YOUR CLIENTS HAVE IRS PROBLEMS? Insurance Agent’s Standard of Care, policy interpreta- Free consultation. Resolutions to all types of tax prob- tion and claims administration. An active member of lems. Our clients never meet with the IRS. The Law the Florida Bar, he spent 30 years as an Insurance agent Office of Travis W. Watkins PC. 405-607-1192 ext. 112; and adjuster. He is a member of the National Alliance 918-877-2794; 800-721-7054 24 hrs. www.taxhelpok.com. faculty, a leading provider of education to agents. Call 321-537-3175. CV at InsuranceExpertWitnessUS.com. Want To Purchase Minerals AND OTHER OIL/GAS INTERESTS. Send details to: P.O. Box 13557, BUYING MINERALS, OIL/GAS. Need help prepar- Denver, CO 80201. ing prospect? Angel may furnish maps, title, permit, for ORRI, WI, Net Revenue. PEs, Landmen wel- comed. Contact Wesley, Choate Engineering , 209 E. Broadway, Seminole, Oklahoma 74868, 405-382-8883, [email protected]. Kirkpatrick Oil & Gas is interested in purchasing producing and non-producing oil and gas interests OFFICE SPACE Please Contact: HIGH-VOLUME LAW FIRM IN GAILLARDIA with [email protected] or 405-840-2882 attorney office space sharing available. Strong case re- 1001 West Wilshire Boulevard ferral potential with long-standing working relation- Oklahoma City, OK 73116 | Kirkpatrickoil.com ships. Great location in northwest Oklahoma City with easy access to all major highways and away from all INTERESTED IN PURCHASING PRODUCING & downtown hassle. Large conference rooms, reception- NON-PRODUCING Minerals; ORRI; O & G Interests. ist and other amenities available if needed. Beautiful Please contact: Patrick Cowan, CPL, CSW Corporation, views, great space and a wonderful opportunity. E- P.O. Box 21655, Oklahoma City, OK 73156-1655; 405- mail all inquiries with resumes attached to: info@ 755-7200; Fax 405-755-5555; email: [email protected]. lawofficesoklahoma.com.

1660 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 OFFICE SPACE POSITIONS AVAILABLE

MIDTOWN – 13TH & DEWEY. 2 offices (1 executive, 1 KOZENY & MCCUBBIN, L.C. is seeking an experi- mid-size) plus 2 secretarial bays. Parking, new fax/ enced Attorney for our Edmond, OK office. The Associ- copier, auto voice mail, wireless internet, library/con- ate Attorney is responsible for providing legal services, ference room, reception area, kitchen. 405-525-0033 or transactional and legal research and for advising the [email protected]. Company of legal rights and responsibilities regarding client matters. We are a “paperless” office and candi- EXECUTIVE SUITES @100 PARK, Downtown OKC dates must be comfortable learning new systems, using has 9 suites to fill in the next 30 days. Unprecedented file management software and working in multiple move-in incentives! Will be at capacity after suites are systems. Minimum requirements: 10 years’ experience filled. Occupancy will then be based on waiting list. A in OK foreclosure (including confirmation, redemption couple of blocks from the courthouses, minutes from and ratification matters), bankruptcy, loss mitigation, the Capitol, directly across from Skirvin Hotel. Mem- eviction and default-related litigation; OK License ac- bership with EXS based on application process. Fully tive and in good standing; willingness to obtain addi- turnkey. All bills including secretarial service included tional licensures; Experience using LexisNexis or other in rate, starting at $1,400/month. Short- term leases relational databases; Outstanding verbal and written available, daily rental for conference rooms also avail- communication skills; Professional demeanor; excel- able. You won’t find the elegance, service or great loca- lent analytical and problem solving skills; Flexibility to tion anywhere else in OKC. Virtual Offices also avail- adapt to ever-changing business environment; Must able for attorneys looking for branch office in OKC work with minimal supervision and demonstrate ap- starting at $500/month. Call Tatum for details. 405-231- propriate initiative when making decisions; Excellent 0909 www.executivesuitesokc.com. time-management, organization and communication MIDTOWN TULSA LAW OFFICE SUITES located near skills; Ability to handle a high-volume of work effec- TU, four miles from downtown, includes 5 newly reno- tively. Full time, Monday – Friday. Benefits: medical, vated offices, reception area, kitchen, large conference dental, vision, life, 401k, paid holidays, paid time off, room, outdoor patios, parking lot. For more informa- voluntary ancillary benefits. Final candidates for this tion call 918.582.6900. position will be required to pass pre-employment drug- screening, credit and criminal background checks, and OFFICE SHARE education / credential verification. Kozeny & McCub- bin, L.C. is an Equal Opportunity Employer dedicated SOUTH OKLAHOMA CITY LAW FIRM seeks attorney to workforce diversity. Kozeny & McCubbin, L.C. is an for office sharing arrangement. Rent is negotiable. The AV rated law firm Apply online only at https://home. firm may refer clients, and or have available additional eease.adp.com/recruit/?id=5844091. legal work. Inquiries should contact Reese Allen at COLLINS, ZORN & WAGNER PC, an AV-rated Okla- 405-691-2555 or by fax at 405-691-5172. homa City firm, seeks an EXPERIENCED PARA- LEGAL for assistance in preparing cases for trial and POSITIONS AVAILABLE attending trials across the state. Position requires com- puter knowledge, trial assistance experience, organiza- THE CITY OF ARDMORE is seeking qualified candi- tion, self-motivation and all aspects of moving a case dates for the newly created position of City Attorney. toward trial. Please submit résumé and salary require- Applicants must be members in good standing of the ments to “Box BB,” Oklahoma Bar Association, P.O. Oklahoma Bar Association with a minimum of four (4) Box 53036, Oklahoma City, 73152. years of experience in general areas of practice includ- ing commercial and real estate transactions. Preference GROWING NORTHWEST OKLAHOMA CITY GEN- will be given to applicants with experience in repre- ERAL PRACTICE FIRM SEEKS ASSOCIATE ATTOR- senting governmental entities. The City offers excellent NEY WITH 0-3 YEARS EXPERIENCE. We are looking benefits and competitive salaries. Interested candidates for a motivated individual able to handle a heavy case- should submit an application, along with a writing load consisting of family law matters, estate planning sample, to the attention of the Human Resources Direc- and probates, juvenile cases, adoptions, criminal cases, tor at 23 S. Washington, Ardmore, Oklahoma 73402 by collections, corporate transactions and other areas of September 30, 2013. the law. Compensation including retirement will be based upon education and experience. Send résumé COLLINS, ZORN & WAGNER PC, an AV-rated Okla- and writing sample to P.O. Box 720241, Oklahoma City, homa City firm, seeks COMPETENT AND CONFI- OK 73172. DENT ATTORNEY with 1-3 years experience. Firm specializes in civil rights, employment law and insur- MILLER DOLLARHIDE seeks skilled, well-organized ance defense cases. Position will emphasize trial prep; and self-motivated paralegal/legal assistant with ex- must be able to conduct discovery, take depositions cellent communication skills and analytical ability. and attend court proceedings throughout the state and Individuals with 5+ years civil litigation experience in Federal Court. Please submit résumé and salary re- interested in securing a position that supports a diverse quirements to “Box AA,” Oklahoma Bar Association, and interesting case load are encouraged to apply. Sal- PO Box 53036, Oklahoma City, OK 73152. ary commensurate with experience. Please submit ré- sumé to [email protected].

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1661 POSITIONS AVAILABLE POSITIONS AVAILABLE SMALL TULSA LITIGATION FIRM seeks experienced ASSOCIATE ATTORNEY: Brown & Gould, pllc, a research, discovery, and brief writing attorney. Prefer downtown Oklahoma City litigation firm has an im- 3+ years experience, but will consider all candidates mediate position available for an attorney with 3-5 with strong writing abilities. Excellent opportunity for years of litigation experience. A qualified candidate growth. Salary plus bonuses and benefits. Please sub- must have solid litigation experience, including a prov- mit a cover letter, résumé and writing samples to: “Box en aptitude for performing legal research, drafting mo- CC,” Oklahoma Bar Association, P.O. Box 53036, Okla- tions and briefs and conducting all phases of pretrial homa City, OK 73152. discovery. Salary is commensurate with experience. Please send resume, references, writing sample and LAW FIRM SEEKING ASSOCIATE ATTORNEY in law school transcript to [email protected]. downtown Oklahoma City, with 3-10 years experience in Indian Law and litigation, with a commitment to THE OKLAHOMA DEPARTMENT OF HUMAN SER- representing tribes and tribal organizations. Preference VICES (Legal Services) is seeking qualified applicants will be given to attorneys with demonstrated experi- for an Assistant General Counsel position in its Tulsa Of- ence and/or education in American Indian Law. Ap- fice location. The successful applicant will primarily plicant must be licensed to practice in at least one juris- provide legal representation and advice in adult protec- diction; membership in good standing in the Oklahoma tive services (APS) and emergency guardianship cases Bar is preferred, if not a member of the Oklahoma Bar, in Tulsa County and surrounding area. This position the applicant must pass the Oklahoma Bar within 15 also requires expertise in the sale of real and personal months. Applicant should possess excellent analytical, property belonging to wards. This attorney provides writing and speaking skills, and be self-motivated. training to agency APS specialists on how to prepare for Compensation commensurate with experience. Excel- guardianship hearings and serves as the facilitator for lent benefits.P lease submit the following required doc- the Vulnerable Adult Task Force by conducting case re- uments: a cover letter that illustrates your commitment views and also working closely with assistant district to promoting tribal government and Indian rights, cur- attorneys when cases are criminally prosecuted. Appli- rent résumé, legal writing sample, proof of bar admis- cants must have at least three years of relevant experi- sion, and contact information for three professional ence as an attorney. Salary based on qualifications and references to: [email protected]. experience. Excellent state benefits.P lease send résumé, THE CITY OF OKLAHOMA CITY IS CURRENTLY references and writing samples to Retta Hudson, Office ACCEPTING APPLICATIONS for an Assistant Mu- Manager, Legal Services, Dept. of Human Services, P.O. nicipal Counselor II. This position is located in the Box 25352, Oklahoma City, OK 73125. Trust, Utilities and Finance Division of the Office of the OFFICE MANAGER/LEGAL SECRETARY NEEDED Municipal Counselor and applicants must be licensed FOR SMALL DOWNTOWN OKC FIRM. Excellent to practice law in Oklahoma State courts and eligible bookkeeping and organizational skills required. Civil for admission in the U.S. District Court for the Western and criminal experience preferred. Competitive salary District of Oklahoma. Experience in municipal, public and benefits. Send résumé, references, and writing trust, public construction contracting, land transaction, sample to “Box G,” Oklahoma Bar Association, P.O. commercial leasing, public financing, grants adminis- Box 53036, Oklahoma City, OK 73152. tration, airport, oil and gas and/or environmental law is desirable. This position will predominately provide legal representation to the Oklahoma City Airport Trust CLASSIFIED INFORMATION and its staff, including the Director of Airports, and will focus upon the architectural, engineering, con- CLASSIFIED RATES: $1 per word with $35 minimum per in- struction, and development activities of the three air- sertion. Additional $15 for blind box. Blind box word count must include “Box ___, Oklahoma Bar Association, P.O. Box ports the Trust operates and manages for the benefit of 53036, Oklahoma City, OK 73152.” Display classified ads with the City. Applications and resumes will be accepted bold headline and border are $50 per inch. See www.okbar.org through August 23, 2013 . Apply online at http://www. for issue dates and display rates. okc.gov/jobs. Additional information may be obtained at Jobline: 405-297-2419 or TDD (Hearing Impaired) DEADLINE: Theme issues 5 p.m. Monday before publication; 405-297-2549. EEO. Court issues 11 a.m. Tuesday before publication. All ads must be prepaid. EXPERIENCED LITIGATION ASSOCIATE (2-5 years) SEND AD (email preferred) stating number of times to be pub- Downtown Oklahoma City law firm Chubbuck Dun- lished to: can & Robey seeks litigation associate with experience [email protected], or in civil litigation to augment its fast-growing trial Emily Buchanan, Oklahoma Bar Association, P.O. Box 53036, practice. Salary commensurate with experience. Send Oklahoma City, OK 73152. resume and salary requirements to Law Office Ad- ministrator, 119 N. Robinson Ave., Ste. 820, Oklahoma Publication and contents of any advertisement is not to be City, OK 73102. deemed an endorsement of the views expressed therein, nor shall the publication of any advertisement be considered an en- dorsement of the procedure or service involved. All placement notices must be clearly non-discriminatory.

1662 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013 Staff Attorney McAlester Law Office Legal Aid Services of Oklahoma is seeking an attorney for the McAlester Law Office serving Pitts- burgh County. The attorney will be responsible for cases involv- ing general legal issues. LASO is accepting applica- tions from all levels of experience; however, prefers lawyers with more than two (2) years of practice experience. View the complete version of the Staff Attorney position at this link: http://www.oklaw.org/ link.cfm?2878. We are a statewide, civil law firm providing legal services to the impoverished and senior population of Oklahoma. With twenty-three offices and a staff of 125+, we are committed to the mission of equal justice. Successful individuals will possess litigation skills and experience and a true empathy for the impover- ished. In return, employee’s receives a great benefits package including paid health, dental, life insurance plan; a pension, generous leave benefits, and a loan repayment assistance program for law school loans. Additionally, LASO offers a great work environment and educational/career opportunities.

Vol. 84 — No. 21 — 8/17/2013 The Oklahoma Bar Journal 1663 THE BACK PAGE

Adventures in Work/Life Balance By Linda Redemann

When I was a very new in the corral, I used the lawyer, I lived on an garden hose to rinse my acreage west of Skiatook feet and ankles. and commuted to the My feet were mostly offices of Rhodes, Hiero- dry by the time I reached nymus, Holloway and Tulsa. I stepped back into Dobson in downtown my heels as I dropped Tulsa. One beautiful my son at day care. He spring morning I carried didn’t seem to mind the my briefcase, my 2-year- lightning speed drop-off old and his diaper bag to after his exciting morn- the car. I was dressed in ing. I walked into the the appropriate court courtroom just as the attire for female lawyers judge was calling my in those days of a skirt case on a disposition suit, nylon stockings docket for the second and heels. and last time! I made As I started to back my announcement and out, I noticed that my returned to my office horse, Joe, was standing feeling pretty proud of beside the driveway myself for making it staring at me from the find or deal with the breach through the morning wrong side of the pasture in the fence. I quickly unscathed in spite of the fence. (Doesn’t everyone decided that Joe would early morning crisis. I who fulfills their dream of have to spend the day in wasn’t feeling quite so moving from the city to the the barn corral. Luckily, smug when later that country, immediately get a instead of playing his usual afternoon, my secretary horse?) I pulled back into game of “catch me if you stuck her head in my office the driveway and opened can,” Joe came right to me. exclaiming, “What is that the rear car door so I could I left my heels on the drive- awful smell?” keep an eye on my son, way and led Joe through Ms. Redemann practices in Tyler. I had to be in court at the muck, muck, muck to Tulsa. 9 a.m. and had no time to the barn. After securing Joe

1664 The Oklahoma Bar Journal Vol. 84 — No. 21 — 8/17/2013