Oklahoma Criminal Defense Blog

The prosecution of present and former Tulsa police officers inches closer to jury trial.  U.S. District Judge Bruce Black, from New Mexico and sitting in the Northern District of Oklahoma in Tulsa, has ruled the indictment against Tulsa police officers Nick DeBruin, Bruce Bonham and Harold Wells may proceed to trial and overruled pretrial motions by the defense.  Wells is retired from the police department.

The judge has set their trial on May 20.  Set in June is a related indictment against others arising from the same sting, an indictment against Tulsa Police Officers Jeff Henderson and Bill Yelton.
Henderson and Yelton, both are accused of multiple counts, Henderson on 58 counts and Yelton on 7 counts, respectively, including civil rights violations and witness tampering, Henderson’s including attempted bribery and Yelton’s including witness retaliation and suborning of perjury.  Both are still on the police payroll but suspended with pay, and both are held in jail pending trial.  DeBruin was indicted on 6 counts, Bonham on 5 counts, and Wells on 10 counts.  All have been released on bond.  DeBruin and Bonham are still on the Tulsa Police Department payroll while suspended without pay.  Wells is retired from the department.

The case began when a woman named Debra Clayton who had been an informant for Tulsa Police officers.  Heretofore identified in court documents only as “informant No. 2″, Ms. Clayton has now made her own name public.  A drug user claiming to have finally gotten off drugs now, she had been an informant for former officer John Gray and A.T.F. agent Brandon McFadden for some time and got tired of their continuing to pressure her to continue to participate in selling or delivering methamphetamine.  Eventually, she called the F.B.I. and told them what Gray and McFadden were up to.  The F.B.I. then set up a sting operation.  Gray and McFadden have pleaded guilty and are listed as government witnesses in both indictments.

The F.B.I. sting was set up at the Super 8 Motel on East Archer Street in Tulsa.  Video and audio recorders were set up to record the events inside the motel room.  An undercover agent posed as a drug dealer  When he was arrested his cash was seized by the arresting officers.  He had $15,000 in cash, $5,000 of which the police defendants are accused of stealing, for which they are accused of stealing government funds.  Some of the accused noticed government surveillance of the motel room, so they returned cash to the motel room.  However, defendant Bruce Bonham had already taken home the $5,000 cash before the others were alerted.  The remaining police officers accused met at a Conwy Island hot dog stand to discuss their problem and try to get Bonham’s cash back.   They were too late.

A retired Oklahoma City Police Department detective who worked as a contract employee of the Oklahoma State Bureau of Investigation has plenty of bad stuff to say about the Bureau.  Kyle Eastridge worked for the Bureau for  months on a federal contract.  He retired from Oklahoma City Police in 2009 after about 25 years on the force, the last 3 years of which were on assignment to the cold case squad?

Eastridge claims the field agents are at loggerheads with the forensic science division.  He also claims agents are lazy and have not followed up on DNA results linking suspects to murders. He gives examples.  Melissa Ann Moore was found dead in 1984 near Tulsa.  DNA was identified for a known suspect who was driving a car matching the description of a car seen where her body was found.  O.S.B.I. agents left information about the case with the local district attorney in 1984, 2002 and 2005.  Eastridge called the case agent, offering to obtain DNA testing on any other items, which Eastridge could do on an expedited basis because federal funds pay for Eastridge’s cold case investigation.  The agent declined, saying he did not have enough evidence to file a charge.

Eastridge said the case agent did not want others looking into the case.  Eastridge also said:  “The bottom line is they’ve known who killed this girl for years, and he’s never been arrested for it.  But do they know who killed this girl?  Eastridge takes evidence that proves this suspect was driving a car that matched the description of one seen at the place Ms. Moore’s body and car were discovered.  As any criminal defense lawyer will tell you, this is circumstantial evidence that, without more, would not result in a conviction.  It might lead investigators to more evidence, but Eastridge says this suspect ought to be arrested now.  Why?

Georgette Pless disappeared from Tulsa in 1992 and her body later found.  In March, 2009, semen from her body was matched by DNA to a Missouri prisoner.  Eastridge says the O.S.B.I. agent did nothing further after that, so he worked on the file for a month, obtained an arrest warrant, and the district attorney filed a murder charge.  It appears Eastridge did the right thing in this case.

O.S.B.I. has no original jurisdiction to investigate cases.   When a rural sheriff, police chief or district attorney has a criminal case that is too much for the local agency to investigate, often a homicide or other serious case, they ask the O.S.B.I.  to investigate and give their findings to the district attorney.  Only the district attorney can file an Information or seek a grand jury indictment to initiate a criminal charge.

That’s not good enough for Eastridge.  He criticizes O.S.B.I. agents for letting decide when, and if suspects should be arrested.  He says there is no legal prohibition from law enforcement making an arrest without the approval of the prosecuting attorney, and he thinks operating on his own is just fine.  He says sometimes investigators need to make arrests even if prosecutors do not want to file charges. “Let the D.A. decide to release a murder suspect that you have evidence on. That’s not going to happen, I guarantee you,” he said.

You can see Eastridge’s point.  Maybe the authority elected to do the job is not acting to Eastridge’s liking, so just go around him.  Instead of filing to be elected to that office, he will try to manipulate the elected official to pressure him into doing Eastridge’s bidding.  Eastridge claims he has evidence amounting to probable cause to justify an arrest, and assuming he has made correct judgements on what is admissible evidence and what is probable cause, judgements about which he has no legal expertise, he makes no reference to proof to satisfy a jury.  That is what the district attorney is responsible for, what he has to consider, proof beyond a reasonable doubt, and because the district attorney is responsible for taking any case all the way from filing  to presenting it to the jury, the district attorney is responsible for the case to the voters.  Eastridge wants to highjack this process and inject his own feelings, although he has received no such power from the citizen-voters.

There are some police officers and law enforcement agencies, not many, who love to dump a half-baked case in the lap of the district attorney.  That way they don’t have to do much work, just get the case filed by the D.A., even though with all the loose ends, the case in not ready to be presented to a jury.  Then, once filed, it is the D.A.’s problem alone, and those police officers, certainly not all of them, those police officers will perform no further work to help the district attorney get the case ready for trial.

When a murderer is sought, the public can forget sufficiency of evidence, issues relating to quality of evidence.  Eastridge is counting on that.  He doesn’t have to answer to the voters with too many adverse jury verdicts.  He sounds like the kind of guy who claims he can talk to someone he suspects of a crime, and then, based on a few minutes of conversation, tell a jury with confidence that he can sense the suspect is guilty.  And that should be enough for the jury- in his opinion.  He is someone who thinks he is entitled to steer the legal system by himself, but he needs to be elected to do that.

He should present himself and his ideas to the voters for their approval.  It’s easy to lecture others on public policy when one has no one to account to except one’s own local police union.  The American way provides that policy is decided by the public through the officials whom they elect.  The public can vote out those officials of whose actions they disapprove.

Not to be outdone by Arizona, Oregon, Missouri and other states, the Oklahoma legislature has been considering enactment of a law to permit the “open carry” of firearms.  Various states have various laws permitting such display of guns.  Some states permit such practice only with a permit.  Other states permit the practice but it is subject to municipal restrictions.  Vermont has no restrictions on the open carry of firearms.

Of course, the local police often have interpretations different than the plain reading of the law.  As criminal defense attorneys in Oklahoma, police routinely demand of homeowners if “they have any guns in the house.”  The police then seize the guns, regardless that the guns or their possession have nothing to do with the reason the police were called to the citizen’s home.  Then the police, regardless of lacking any legal basis for their possession of these guns, refuse to release the guns until forced by a court order to do so.

A proposal in the Oklahoma House of Representatives was recently killed as result of legislative procedures.  However, a proposal is still alive in the House to allow gun carry permit-holders, now required to carry guns concealed at all times, to also carry them out in the open.

Representative Sue Tibbs of Tulsa sponsored HB 2538.  She accepted an amendment to her bill by Rep. David Derby of Owasso, allowing those with concealed carry permits to carry the weapons in the open.  She had also accepted an amendment offered by Rep. Mike Reynolds of Oklahoma City to allow any person to carry a rifle, shotgun or pistol at any time if the person had a reasonable fear of bodily harm.

Rep. Reynolds then spoke against his own amendment because, if his amendment failed, he could introduce a stronger open-carry amendment. He was unhappy that Rep. Tibbs filed an amendment that took the title off the bill, which meant that it eventually would have to go through the committee process.

Reynolds wanted his amendment voted on with a recorded vote so that gun rights advocates could see how legislators voted.  Before a vote could be taken, however, Rep. Tibbs accepted the amendment.  Rep. Jeff Hickman, presiding in the House, then asked for a voice vote on Reynold’s amendment, and, upon that voice vote, Hickman declared the amendment adopted.  At that point, Hickman realized his mistake.  He had called for the vote and left off the amendment.

Rep. Tibbs then said she will not bring up her bill for consideration this session.  Rep. Derby’s amendment allowing concealed carry permit-holders to carry the weapons in the open may get new life, however.  Rep. Rex Duncan of Sand Springs says he will try to place this amendment into one of his proposals, HB 3354, which deals with the carrying of weapons.   Amendments may be added to legislation if they have the same general subject matter as the legislation to which they are added.

Rep. Tibbs held her N.R.A. card up for all to see during the debate on her bill.  She also stated she herself has a concealed-carry permit. She claimed that this was not one of the N.R.A.’s priorities, that this “is not an N.R.A. bill.”  Nevertheless, Tim Gillespie, vice president of the Oklahoma Second Amendment Association, said he is disappointed the measure failed.

To the horror of the “zero-tolerance-for-drug” people, the Republic of Mexico has decided to be lenient with those caught with small amounts of drugs.  The new laws allow up to about four joints of marijuana for personal use and about one-half gram of cocaine, which translates into about four “lines” of cocaine or half the weight of a paperclip.  The limits for heroin and methamphetamine are about half the size of a pencil eraser, for LSD about enough to make a few grains of salt.

Oklahomans must even show identification to purchase some cold medications at a pharmacy because those medications contain ingredients used to manufacture methamphetamine.  Previously such cold medicines were purchasable over the counter.  No more.  And some credit this tightened policy with a significant drop in the number of meth labs making methamphetamine in Oklahoma.

“That’s just a reckless policy to have,” said Mark Woodward spokesman for the Oklahoma Bureau of Narcotics about the new Mexican policy.  It takes away a huge deterrent away from someone using drugs.”  No surprise that this agency is completely against backing up one inch in the “War on Drugs.”

Are we winning the “War on Drugs?”  Most criminal defense lawyers in Oklahoma would be skeptical.  I guess the argument to continue the “War on Drugs” is that the drug situation would be even worse if we ever let up, if we ever stop prosecuting to the maximum against any use of any drugs at any time in any place no matter what.  That is one reason the United States allows those in serious, genuine pain to suffer so much, unlike European governments, because “drugs” are medically indicated to address pain and “drugs” are seen in the United States as inherently evil and criminally tainted, something to prosecute rather than to use as a medical tool to alleviate suffering.

The new Mexican laws do not make it strictly legal to possess the enumerated small quantities of drugs, but such users arrested face drug treatment instead of jail, so long as no violence is involved.

About 90-95 per cent of the illegal drugs entering the United States come across the Mexican border.  That is why drug enforcers in the United States worry about the more permissive law in Mexico.  “I think it’s going to increase the work of our customs agents,” Oklahoma Attorney General Drew Edmondson said.  Law enforcement commonly develop a prosecution for large amounts of drug distribution or trafficking from witnesses prosecuted for possession of small quantities.  Without the arrests for smaller amounts, the thinking goes, the potential for larger prosecutions diminishes.  Whether those arrested for the smaller quantities possess the smaller amounts for personal use or not, law enforcement will lose the leverage over them to reach up the distribution ladder without the threat of jail on the smaller fish.

The new law allowing possession of smaller amounts in Mexico is intended to concentrate on catching and prosecuting the big dealers rather than the smaller possessors of drugs.  Mexican President Felipe Calderon reportedly hopes the new law will help with the increasing drug addiction in Mexico.

Mexico has seen a doubling in drug addiction in six years to 307,000, according to a Mexican government study.  Meanwhile drug use in the United States has remained fairly constant at around 10 million from 2002 to 2007, according to the National Survey on Drug Use and Health.   The number of Mexicans who have tried drugs, which is not the same as “drug use” and certainly not “drug addiction”, rose to 4.5 million.  Mexico has a population roughly one-third that of the United States.

Two off-duty Oklahoma City Police department sergeants have been charged with “Drive-by Shooting.”  Sgt. Diron Carter and Sgt. Michael McKethan  were arrested, posted $25,000 bond each and were released.  Carter is a eight-year veteran and McKethan is a seven-year veteran of the police force.

The law against “drive-by” shootings was the result of gang shootings and was enacted to punish them.  From the facts made public about these charges, it doesn’t look a “drive-by” shooting took place at all.  It looks like the police officers are overcharged here, but that is par for the course for state prosecutions.  Criminal defense lawyers face this every day.  Unlike federal prosecutors, Oklahoma at least, state prosecutors routinely file charges that stretch to the absolute maximum penalty any charge possibly supportable under the law.  It is called “overcharging” because the charge does not fairly describe the nature of the offense.  The police are very much aware of this and usually involved in it.  So these police officers, who have participated for years in this  practice of over-charging and have no doubt enjoyed thus using this leverage to squeeze bad guys, to intimidate them to plead guilty, are now facing its wrath.

What happened in this ?  The facts alleged are that Carter and McKethan, off-duty at the time, went to Night Trips, a local strip club.  McKethan reportedly spoke to one of the strippers, whose child may be the child of McKethan. Police received a call that shots had been fired outside the bar, and witnesses reported that a man in a white sport utility vehicle was throwing  bottles as he drove through the stip club parking lot.  When the witnesses confronted the two men in the sport vehicle about their conduct, an argument ensued.  Eventually, the passenger, allegedly Sgt. Carter, is reported to have leaned out of the sport vehicle with a handgun, saying  “You want to see my baby Glock?”  He then fired a single shot.

Investigators later recovered a .40 caliber shell casing in the street, which allegedly came from a “baby Glock,” which is firearm carried by off-duty policeman.  Further verification of the event was obtained when investigators also recovered a slug they dug out of a metal wall at a nearby laundry supply business.  The prosecution alleges the shot was fired “in the direction of several bystanders.”  This will be the critical fact that will fuel the charge, the essential factoid that takes the charge beyond a mere technical violation and lights a fire under the jury.  True, no one was hurt, but someone could have been killed!  That will be the prosecutor’s argument.

Later Sgt. Carter admitted to being at the club that night but denied being involved in anything relating to a shot being fired.  Still later, Carter is reported to have told a fellow officer that “it was an accidental shooting.”

Both Carter and McKethan are on administrative leave while facing the charges, paid at all times by the faithful tax-payers of Oklahoma City.   Of course, they are presumed innocent of the charges until a jury finds them guilty beyond a reasonable doubt.   But many other people are charged with a crime and are immediately fired.  No one pays them to make their way through the legal system.  Any criminal defense lawyer would want that for his client.  No doubt this status of being on administrative leave with pay while awaiting disposition of the criminal charges comes from the police contract with the City of Oklahoma City.  The Fraternal Order of Police negotiates the police contract every few years, and the contract always contains provisions like this.