Oklahoma Criminal Defense Blog

Veteran’s Court was created to help people.  Veterans Treatment Court in Tulsa treats veterans who would otherwise face criminal charges in a different courtroom in the Tulsa Count District Court.  It is one of four in the country   It is being considered as a model by the National Drug Court Institute.

Representatives from five states have come to observe Tulsa County Special District Court Judge Sarah Day Smith conduct proceedings.  The participants report to the judge on their progress through the five phases of the program.

Veterans of wars in Vietnam, Iraq, Afghanistan appear.  They carry the psychic wounds of their service.  It usually manifests itself to the courts as drug problems, but those are only part of the problems in the lives of the veterans.  Some of them homeless, unable to hold a job, they need help instead of prosecution.  Of the homeless in Tulsa, 20% are veterans.  Many have been to drug treatment center after center.

They tell their story in open court.  Just as in drug court or in AA, they share their lives and their success in the treatment program.  The others in attendance share their feelings of accomplishment, their hopes for the future, since they will address the court in turn.  There are 48 participants now in the court, and they each have up to 12 months to complete the program.

District Judge Tom Thornbrugh and District Attorney Tim Harris have pledged their support of the program.  The District Attorney acknowledged that the veterans need to be looked at differently once they come into the criminal justice system.

Judge Day instigated the Tulsa veterans court in 2008 after she had seen one in Buffalo, New York.  She was convinced it worked.  Veterans commonly suffer from post-traumatic syndrome and traumatic brain injuries related to their military service.  No matter how desperate, they rarely ask for help.

As in drug court, familiar to criminal defense lawyers, the participants had to plead guilty to the criminal charges they were facing in order to enter into the Veterans Court process.  If they violate the terms of their probation, they face the maximum sentence of the charge to which they pled guilty.   Only two have dropped out and went to prison.  But veterans organizations and the U.S. Department of Veterans Affairs help out with services.   Only about 10% of the participants in the program had applied for the veterans benefits before entering Veterans Court.

Joel Stoval filed a motion to withdraw his guilty plea in Freemont County District Court in Canon City, Colorado.  He had pled guilty to first degree murder in 2001 shootout which left a deputy sheriff dead and another police officer paralyzed.

District Judge Julie Marshal denied the motion to withdraw the plea,  She said Stoval’s attorney’s performance “not deficient.”  The judge heard six hours of testimony from Stoval and from his attorneys at the time of the plea, assistant public defenders Patrick Murphy and Doug Wilson.

Stoval had entered a plea to first degree murder of Freemont County Deputy Sheriff Jason Schwartz and the attempted of Florence Police Corporal Toby Bethel, who is paralyzed from the shooting.  He also pled guilty to 16 other counts of attempted murder for shooting at other police officers at the shootout.  He was sentenced to life imprisonment plus 800 years.

The shootout had arose when  Deputy Schwartz arrested Stoval and his twin brother, Michael, because Joel Stoval had shot a neighbor’s dog and a heated altercation began between the Stovals and the law enforcement officers.

At the hearing to withdraw his plea, Stoval testified he felt like he was defending himself, but his attorneys never discussed the issue of self-defense with him.  “They excluded the fact that Toby Bethel was reaching for his handgun,” Stoval testified, at which Bethel’s wife, Mary jumped up out of her seat in the courtroom and yelled, “You are such a #@& liar.”  She then left the courtroom.

Murphy testified to the contrary that Stoval had told him, “Officer Bethel did not see Joel because he was in the shadow next to the truck he had stolen.  I didn’t see any way the argument of self-defense could be made.”  Wilson testified similarly.  “I did not think we had a self-defense that we could have sold to the jury,” Wilson testified.

Joel Stoval testified the entire focus of the plea bargain was to prevent his brother from receiving the death penalty.  “I had to just take the advice of my attorneys.  I had no choice.”

Both Murphy and Wilson testified Stoval did have a concern for his brother, Michael, both attorneys nevertheless thought it was in Stoval’s best interest to accept the plea agreement to avoid the death penalty for himself, especially since they did not know if Bethel would survive.   If Bethel died, the chances of Stoval’s receiving the death penalty would increase significantly.

Assistant District Kathy Eberling asked Murphy and Wilson whether they thought their representation of Joel Stoval was deficient.  Both replied, “No.”  “We spent sufficient time to make sure he understood the charges, evidence and potential of the death penalty.  This was a case in which the facts were not greatly in dispute,” Murphy testified.

The irony is that even if Stoval had gone to trial and the District Attorney had sought the death penalty and a three-judge panel had then awarded the death penalty, it would have been overturned when the United States Supreme Court ruled three-judge panels were unconstitutional.  Stoval would therefore have ended up with a life sentence, instead of the life imprisonment plus 800 years, which he received.

The Oklahoma Office of the Chief Medical Examiner lost its accreditation in July, 2009, from the National Association of Medical Examiners.  In June, 2008, Dr. Jeffery Gorton, the chief medical examiner, announced he planned to quit performing autopsies in Tulsa.  Legislators from Tulsa objected, and he resigned.   An employee in the Tulsa office who was in charge of petty cash and checks was discovered to have a felony conviction and promptly resigned.  Then the chief investigator, Kevin Rowland, resigned last March, claiming the reason for his resignation was job stress.  Four months later in July, however, he was indicted in Tulsa County District Court for sexual battery and harassment.

Tom Jordan, long-time employee and former deputy director of the Oklahoma State Bureau of Investigation was hired a couple of months ago as chief administrative officer of the Medical Examiner’s office.  Then, a new chief medical director, Dr. Collie Trant, was hired as chief medical examiner in . Those two did not get along, as illustrated by the fact that Tom Jordan informed the board that Trant was a “liar.”  The Oklahoma Board of Medicolegal Investigations then fired Trent on February 5th after nine months on the job. The board gave reason for the dismissal, and Trant has filed suit to get his job back.  Trant claims he was fired when he presented evidence of employee misconduct to the board.

Last month was busy month at the medical examiner’s office with other events.  The governor ordered an investigation into the office.  The board hired another acting chief medical examiner, Dr. Eric Duvall, but he promptly resigned.  Citing financial irregularities, leaders of both houses of the legislature asked for a special audit of the medical examiner’s office, and Chief Administrative Officer Tom Jordan then fired the medical examiner’s long-time budget director, Steve Slater. The board is still looking for a chief medical examiner.

Governor Brad Henry has urged the Medical Examiner’s office be merged into the Oklahoma State Bureau of Investigation to save money.  Speaker of the Oklahoma House estimates it will save $5.3 million annually with that merger and the merger of the Oklahoma Bureau of Narcotics and Dangerous Drugs also into the Oklahoma State Bureau of Investigation. However, Representative Randy Merrill, chairman of the house public safety and judiciary appropriations subcommittee, proposes that the Office of the Chief Medical Examiner be moved to the University of Central Oklahoma campus, where the agency can lease a facility built to specification but also maintain its autonomy. This contrasts with a previous push by some to make the agency part of the Oklahoma State Bureau of Investigation.

This recognition of the importance of autonomy for the medical examiner’s office is surprising.  It is also vital, as any Oklahoma criminal defense lawyer can tell you.  The National Research Council of the National Academics of Science, Engineering and  Medicine’s recently published report on the state of forensic science in the United States cites many reasons why the medical examiner’s office should not be part of the Oklahoma State Bureau of Investigation.

That report even urged the establishment of a wholly independent federal agency to address the problems with the current system of forensic science to govern and improve the forensic science community. There is also a need for institutional independence of public forensic laboratories, which the National Research Council found to have a prosecutorial bias.

In times of fiscal want, such as Oklahoma now finds itself, it is difficult to justify any expenditure except the very cheapest.  It is understandable the force to merge the medical examiner’s office into the State Bureau of Investigation.  But without an independent medical examiner, we can expect medical findings to follow the dictates of “law enforcement.”   The lessons of the fiasco with our former medical examiner, Joyce Gilcrest would be lost.

As the economy continues to struggle in Oklahoma, revenues to the state come in at lower levels than last year.  The state must therefore cut expenditures.   All state agencies are now planning a five percent reduction in spending.   Some projects may do worse.

One of these is the Oklahoma Indigent Defense System. It pays for the defense of those accused of crimes who cannot afford their own lawyer.  The Indigent Defense System pays for attorneys and some investigators in separate departments, broken down into cases involving charges of capital crimes and non-capital crimes, and broken down for trials and for appeals for both capital and non-capital.

The capital division, for those charged with cases facing the death penalty, is adequately funded.  Funding for non-capital crimes is less sure.

Capital crimes are probably more certainly funded because any failure in representation in these cases will likely result in a reversal on appeal and the necessity to try cases all over again.   And capital cases are already costly for the state to prosecute due to the courts’ demands for detailed and careful proceedings when such an extreme penalty is at issue.

The Indigent Defense System says it needs $1million more in funding, and the legislature is looking everywhere in its budget for the money.  One pot of money the legislature is now considering shifting the Indigent Defense System is the funding the legislature gives to Legal Aid of Oklahoma.

The state is not required to fund Legal Aid, which provides legal services of a non-criminal nature to those who truly unable to afford legal services.  Legal Aid guidelines are strict and their income level required for someone to be represented is demandingly low. But Legal Aid does have other funding sources, and the legislature is not required to fund Legal Aid.  The legislature is required to fund Indigent Defense, required by the constitution, which could ultimately be enforced by the federal courts.

As criminal defense lawyers well know, attorneys appointed by the Indigent Defense System have a heavy workload.   There are always plenty of people charged with crimes who have no money to pay a lawyer.  But now that workload is increasing.

During the 2009 budget year which ended last June 30, the staff of criminal defense attorneys who work for the indigent defense office handled 39,369 cases.  Estimates are for an increase to approximately 44,100 cases by the end of the 2010 budget year.

The legislature may not get to use the money from Legal Aid for indigent defense, however.  The legislature and the governor agreed earlier this year on the funding levels for indigent defense and Legal Aid, and the governor’s office is sticking with that agreement.  For now, that means the legislature will have to look elsewhere for its $1,000,000 funding shortfall for indigent defense for next year.

Governor Brad Henry has indicated the Pardon and Parole Board may be able to examine old convictions, now pardoned, and determine which parolees are actually innocent of the crime for which they were convicted.  The governor says he is unable to make such a determination.

Such a finding is necessary for someone convicted of a crime to later have the records of his conviction expunged, or sealed up.   Oklahoma has been at the forefront of wrongful convictions, thanks to Joyce Gilchrist, the discredited forensic chemist who was employed by the Oklahoma City Police laboratory and testified in many criminal trials in Oklahoma County District Court.   Later examinations of the evidence by scientists and DNA evidence have proved innocent too many of the defendants Gilchrist helped convict.

The Oklahoma legislature is still working out the procedures for those wrongfully convicted.  One new wrinkle just this year is a provision that allows one to expunge the records of his conviction – if …

“4. The person has received a full pardon on the basis of a written finding by the Governor of actual innocence for the crime for which the claimant was sentenced.” Oklahoma Statutes, Title , Section 18 (Supp: 2009).

How is the Governor to determine “actual innocence” so he can make that written finding?  No one knows.  That is why he has passed the ball to the Pardon and Parole Board.  But this board does not know how they will do it, either.

Gene Weatherby was given a pardon by Governor Henry in 2007.  He cannot seal up the records of his conviction, however, until the Governor gives him a written finding of “actual innocence.”  So the Governor asked the Pardon and Parole Board to investigate and make such a finding, if appropriate.

The Pardon and Parole Board might better have been consulted about these new duties, according to Board Chairwoman Susan Loving.  “This is huge that we now have this responsibility,” she said. She said the Board might need to seek more money from the legislature for this, as staff members have been directed to develop a new procedure for such requests.

“The Pardon and Parole Board is not a jury,” Board executive director Terry Jenks said.  “We don’t hear witnesses and evaluate evidence.  We need to figure out some options about where we are going.”   As criminal defense lawyers know, however, the board does hear witnesses on a regular basis, although not in such a formal setting as in a courtroom with rules of procedure and evidence.

Weatherby was convicted in Oklahoma County in 1984 of fatally stabbing a woman.  Joyce Gilchrist testified mud and fibers on Weatherby’s shoes proved he had been in the woman’s home.   An FBI chemist later testified that Gilchrist’s findings were unsubstantiated, but there was other evidence presented to the jury that convicted Weatherby, including testimony from the stabbed woman herself.    So, it is not perfectly clear from the record whether Weatherby is innocent, and that is why Governor Henry wanted someone else to give it a closer look.