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Tulsa, OK Criminal Defense & Family Law Blog

Monday, April 25, 2016

Dire Need for Prison Reform in Oklahoma


 Why are dwindling oil revenues making prison reform a priority?

It is not only politics that make strange bedfellows -- economics can do the job as well. These days, the collapse of oil prices in 2014 that contributed to a massive $1.3 billion budget deficit in Oklahoma is creating a rare collaboration among state politicians. Distressed by the state's expensive, overcrowded and dysfunctional corrections system, and under pressure to solve budgetary concerns, more and more legislators are coming to agree with Joe Allbaugh, the interim director of the Department of Corrections who states that "Reform is desperately needed."

Possible Reform Measures

Allbaugh, a conservative who served in the Bush Administration, now supports efforts to steer nonviolent drug offenders into rehabilitation programs instead of prison and to eliminate mandatory minimum prison sentences, all in an effort to decrease prison populations that overwhelm facilities and decimate budgets.
Read more . . .


Friday, April 1, 2016

Legislation Proposed to Overhaul Oklahoma Seizure Laws


As practitioners of criminal defense in Oklahoma, we are keenly aware of the search and seizure laws in place in the state. Under the Fourth Amendment to the U.S.
Read more . . .


Wednesday, March 30, 2016

The Perils of Juvenile Detention

Why don't juvenile facilities comply with U.S. rape prevention standards?

Incarcerated juvenile offenders are at a greater risk of being sexually assaulted because they are being held in certain facilities that do not meet U.S. rape prevention standards under the Prison Rape Elimination Act (PREA). The standards are mandated for all adult prisons, half-way houses and a number of county jails.

Three state facilities run by the Office of Juvenile Affairs reportedly comply with PREA guidelines, but facilities the state contracts with are not required to comply because officials say compliance would be too costly. The state outsources juveniles to privately run group homes and county-run juvenile centers where they are at greater risk of being assaulted.

PREA Requirements

In 2012, the U.S. Department of Justice issued standards and required states to ensure that state-run and state-contracted juvenile facilities adhere to the federal standards. Under PREA, facilities that confine offenders in the criminal adult and juvenile justice systems must take specific steps to reduce incidents of sexual abuse including:

  • Training staff on prevention and proper behavior
  • Having staff-to-detainee ratio minimums
  • Having cameras to eliminate blind spots
  • Reporting incidents of sex crimes

Failing to do so places the states at risk of losing 5 percent of its annual Justice Department grant funds. Oklahoma, however, exempts county detention centers, claiming that these facilities are outside of its operational control, while group homes rely on different detention models. The governor also has argued that many of the requirements are costly and unrealistic.

The Prevalence of Assault

While the prevalence of sexual assault is unclear, possibly because these crimes are underreported, a DOJ survey of juveniles held in the system between 2007 and 2012 found that more than 18 percent reported being assaulted by another youth or facility staff member. Some argue that many of those surveyed made false accusations and that the recent findings show that the rate of sexual abuse is declining.

The Detention System

The state's juvenile detention system consists of three state-run secure detention centers, 15 privately run group homes, 17 county detention centers, where offenders stay for anywhere from a day to three months, and community intervention centers. Presently, 160 juveniles are housed in state-run centers, 244 in group homes, and "unknown numbers" in the 309 beds in county centers. Based on the rate of incidents reported, the potential for more juveniles to be assaulted is alarming, and this is a very good reason to avoid being detained in a juvenile facility. In the meantime, it remains unclear whether the state will require contracted facilities to comply with PREA. If you have a loved one who has been charged with a juvenile offense, a criminal defense attorney can advise you about options to avoid detention facilities.


Tuesday, March 29, 2016

Don McClean and Wife Splitting Up

Can you file for divorce on grounds of domestic violence?

You can seek a divorce on many different grounds. Fault grounds include adultery and abandonment while no fault grounds include irreconcilable differences and incompatibility. While most couples do not divorce based on domestic violence, there are unfortunately still people in abusive relationships all over the country. Even high profile individuals find themselves in abusive relationships on occasion.

The singer of ever-famous "American Pie," Don McClean, has been recently accused of domestic violence by his wife of 30 years, Patrisha McClean. He was arrested at his Maine home on January 18, 2015. Although he has pleaded not guilty to the charges relating to the incident, it is unclear what will happen in his criminal case.

What is clear is that his wife has filed for divorce on the basis of cruel and abusive treatment. If this case took place in the State of Oklahoma, this domestic abuse related ground would be called extreme cruelty. Extreme cruelty is mental or physical abuse that takes place within a domestic relationship. It can be isolated to a single incident or present in a routine course of conduct.  Extreme cruelty is not just nastiness or meanness. The conduct must rise to the level of abuse and make it unsafe for the parties to continue their relationship.

Leaving a relationship is never easy. It becomes even more difficult when abuse already exists. If you are the victim of domestic violence and are hoping to get a divorce, it is imperative that you seek qualified legal advice. Your safety depends on how you go about obtaining a dissolution of marriage. Our Tulsa, Oklahoma divorce attorneys are experienced in the field and can offer you the peace of mind you deserve.


Monday, March 21, 2016

Prosecutors Sending Juveniles to Adult Courts

What is the rationale for sending juvenile offenders to adult courts?

A myth generated in the 1990s and reported in The New York Times referred to as "The Superpredator Scare," demonized young people, particularly boys and girls of color. The mistaken belief that they would grow up without consciences, and be "brutally remorseless" led to laws making it easier to prosecute juveniles as adults. Unfortunately, this policy has continued until the present day. According to Al Jazzara, there are currently about 250,000 juveniles in the United States who are being "tried, sentenced or incarcerated each year as adults."

Downside of Demonizing Youngsters

Up to the present time, the courts have continued to send kids to adult prisons in spite of the predictably terrible results. Some of the negatives about imprisoning young people with adults are:

  • There are few or no resources available to encourage normal teen development
  • There is an extremely high risk to the youngsters of being assaulted, raped, or becoming suicides
  • Youths tried in adult courts can end up with lifelong criminal records
  • In 15 states & the District of Columbia, judges can make unilateral decisions about this matter*
  • There is no requirement that the court proceedings be made intelligible to the child being tried

    *Judges have this discretion in California, Michigan, DC, Florida, Louisiana, Georgia, Pennsylvania, Montana, Nebraska, Oklahoma, 

       Vermont, Wyoming, Virginia, Arizona, Arkansas and Colorado.

The inequity of the system now in place is blatant. Not only is there no real standard applied in regard to which children can be incarcerated with adults (which means a child's fate may lie in the hands of a particular judge who answers to no one or may differ depending only on the state in which the child resides), but the child in question may have no delinquency record, may have played only a minor part in the crime in question, and may have been previously diagnosed with a mental illness.

Worst Offender States

More cases of 15- to 16-year-olds being sent to adult court occur in Florida than in any other state. Further evidence of injustice is evident in the fact that 39 percent of these children lived in poverty before they were imprisoned. Additionally, there is racial bias at work in the state (and elsewhere), since 60 percent of the children arrested in Florida are Black or Latino, but 76 percent of those are sent to adult court. In Louisiana, the Louisiana Center for Children's Rights, found that "13 percent - more than one in eight - of New Orleans' transferred children, are eventually found not guilty, have their charges dismissed, or are found to be incompetent and legally ineligible to be prosecuted." This means that a large number of children are put through this trauma without cause.

Medical Studies Repudiate the Way the Legal System Functions

Various medical studies in the field of neuroscience back up the understanding that the juvenile brain differs from the adult brain in a number of ways. Children's brains have been proven to be more geared toward:

  • Impulsivity
  • Risk-taking
  • Poor planning for the future
  • Lack of foresight of consequences
  • Poor decision-making
  • Bad judgment
  • This indicates that adolescents will make different decisions as adults, assuming they are given the chance to develop normally.

    Harsh Punishment of Children Only Increases Recidivism

    Far from discouraging youngsters who have committed crimes from behaving badly again, adult prison reinforces a negative perspective against authority and a distorted world view, greatly increasing the rate of recidivism. While some states have improved laws regulating the transfer of youngsters into the adult courts, much more needs to be done.

    If your child has been suspected of, or charged with, a crime, you should waste no time in contacting an experienced and compassionate attorney who specializes in juvenile defense. Such an act could change the course of your child's life.


    Tuesday, February 23, 2016

    Oklahoma Bill to Begin Criminal Justice Reform by Reducing State Sentencing Mandates

    Is it safe to reduce mandatory sentences for non-violent crimes?

    During this election year, criminal justice reform is a big issue. Candidates from both parties agree that major changes have to be made in law enforcement and incarceration practices in this country. As always, the pressing question is -- Where do we start?

    The Proposed Bill to Redefine Some Property Crimes

    Gov. Mary Fallin may have the right idea. She is backing a bill that would set a higher monetary bar for some property crimes to be prosecuted as felonies and it was overwhelmingly approved by a legislative committee a couple of weeks ago. Without debate, the House Criminal Justice and Corrections Committee passed the measure 8 to 1 and it will now proceed to the full House for consideration.

     

    Though there are those who fear that lessening penalties for crime in any way puts us on the road to increasing crime rates, Rep. Pam Peterson (R-Tulsa), chair of the Justice and Corrections Committee, defends the bill, saying "We were tough on crime for some many years. We want to get smart on crime."

     

    In addition to other measures, the proposed bill raises the threshold for a felony charge for property embezzlement from $500 to $1,000. It is one of several proposals designed to help reduce the disturbing overcrowding that presently exists in the state prison system.   

    Oklahoma's Rate of Incarceration

    According to records provided by the state Department of Corrections, Oklahoma's prisons are presently filled beyond operating capacity at 112 percent. A total of 28,119 inmates in the state give Oklahoma the highest incarceration rate for women and the second highest incarceration rate for men in the nation. Not only is this a social justice problem, it is a financial one for the state of Oklahoma where lawmakers expect a projected shortfall of at least $900 million in the upcoming budget.

    Goals of Reducing Mandatory Sentencing

    Far from making the state of Oklahoma a more dangerous place, Peterson, Gov. Fallin, and Oklahoma County District Attorney David Prater agree that the proposed changes bring Oklahoma more in line with at least 30 other states that have increased their thresholds in recent years without experiencing any increase in property crimes.

    Twenty states currently have $1,000 thresholds for felony property crimes and at least 30 states have increased their thresholds in recent years, all without experiencing a higher rate of property crimes, she said. The threshold in Texas is $2,500.

     

    The goal of lowering the mandated prison sentences for some property crimes is multifold:

    • Prisons become less overcrowded
    • Less money is spent on housing and feeding petty criminals
    • Offenders are guided into treatment programs and away from prison

    Since offenders are more likely to emerge as better citizens from treatment programs and more likely to be released from prison sentences as confirmed criminals, the proposal will, hopefully, make Oklahoma a safer state in which to reside.

    While the state of Oklahoma seems to be moving in the right direction in terms of prison reform, no one wants to be incarcerated. If you have been charged with a crime, you should contact an experienced criminal defense attorney promptly so that your rights will be vigorously defended. 


    Monday, February 22, 2016

    Grandparents Have Rights Too!

    What are the grandparent visitation rights in Oklahoma?

    Unfortunately, many marriages end in separation or divorce which can have dramatic consequences on the entire family, including grandparents. The divorce process involves resolving a number of issues, including child custody and visitation rights. Courts generally prefer to grant legal and physical custody of children to both parents.

    In cases where a court awards one parent sole physical custody, however, it usually awards the non-custodial parent reasonable visitation rights. Of course, giving the complexities of family life today, grandparents also have visitation rights.

    The laws regarding grandparent visitation rights in Oklahoma are detailed, designed to grant visitation rights to grandparents providing such visitations are in the best interests of the child. In order to be granted these rights, a grandparent must be able to show that the child would suffer harm without visitation, or that the parents are unfit.

    What factors do the courts consider is granting grandparent visitation rights?

    In determining what is in the best interest of the child, the law provides for a number of factors, including:

    • The importance to the child of continuing the relationship with the grandparent
    • The age and preference of the child
    • The emotional ties between the parent and child
    • The nature of the preexisting grandparental relationship
    • The mental and physical health of the grandparent
    • The mental and physical health of the child
    • The mental and physical health of the parent
    • The permanence and stability of the family unit and environment

    Parental Unfitness

    In some cases, parental unfitness may also be grounds for grandparent visitation rights. Parental unfitness includes:

    • Chemical or alcohol dependency
    • A history of violent behavior or domestic abuse
    • An emotional or mental illness that impairs judgment
    • A failure to provide the child with proper care, guidance and support

    In most cases, visitation rights also require that there was a strong, continuous pre-existing relationship between the grandparent and the grandchild. Finally, a number of situations can arise that lead to visitation rights being sought, such as death, divorce, incarceration and desertion. If you are seeking visitation rights of your grandchild, you should consult with an attorney who has expertise in family law.


    Sunday, February 21, 2016

    Johnny Football Facing Domestic Violence Investigation

    Cleveland Browns quarterback Johnny Manziel, aka, "Johnny Football," is under investigation in Dallas after his ex-girlfriend, Colleen Crowley, recently filed a domestic violence complaint.  According to police, Manziel allegedly hit the woman “several times” at a Dallas hotel in the wee hours of the morning of January 30.

     "Detectives will thoroughly investigate the case to determine what criminal charges, if any, will be filed, and victim services will be offered," police said at the time.

    What is domestic violence?

    Domestic violence is the willful intimidation, physical assault, battery, sexual assault, and/or other abusive behavior by an individual against another person in the home. This conduct is said to be part of a pattern of power and domination by one "intimate" partner against another. Domestic violence includes  psychological, and emotional abuse and can occur in any relationship between those in a close living arrangement.

    The “MO” of abusers can vary, but these individuals may deny the existence of violence or downplay the seriousness of a violent situation. Abusers often blame their actions on their partner’s behavior, stress, alcohol, drugs and other factors.

    Manziel's History of Problems

    Johnny Manziel has had a history of problems during his short NFL career, largely centered on drinking and violating team policies. This long-standing pattern of behavior dates back to his college days. In the wake of his latest troubles, his agent, Erik Burkhardt, has cut ties with the quarterback.

     "Though I will remain a friend and Johnny supporter… it has become painfully obvious that his future rests in his own hands,” said Burkhardt.

    Moreover, Manziel’s father also expressed concerns about his son’s behavior and how it might lead to an untimely end for the flailing NFL star. It has also previously been reported that the Cleveland Browns intend to part ways with the beleaguered quarterback. Meanwhile, Manziel has reportedly denied that he hit his girlfriend.

    The Police Report

    Ms. Crowley told police the two were alone at an upscale hotel in Dallas after a night of partying when Manziel "became aggressive, and hit her several times.” Then, after insisting on driving her home because she was drunk, he hit her again in the car. Upon arriving home, she fled to a neighbor’s home and called police. Fort Worth police did not charge Manziel at the time because they did not believe there was evidence of a crime. Ms. Crowley also had made conflicting statements and refused to let investigators photograph her injuries.

    While it is uncertain what the outcome of this incident will be and whether or not charges will be brought is unclear, this adds to Manziel’s tarnished legacy. He went to an alcohol- and drug-treatment center in Caron, Pennsylvania in early 2015, soon after the end of his rookie NFL season.

    As with any other individual facing such allegations, Mr. Manziel has a legal right to the presumption of innocence. Nonetheless, domestic violence is a serious issue and anyone facing criminal charges should consult with a qualified criminal defense attorney. 


    Thursday, February 18, 2016

    UPDATE: An in-depth look at the 236-year sentence imposed on Oklahoma police officer Holtzclaw

    Last year, we reported on the case of Oklahoma City police officer Daniel Holtzclaw. The officer targeted vulnerable minority women – particularly African Americans with extensive drug and/or prostitution histories – while surveying his beat in one of Oklahoma City’s poorest neighborhoods. Holtzclaw forced the women to perform acts ranging from oral sex to brutal rape, relying on their underlying criminal backgrounds as a way to undermine any claims made against him.

    The victims, who ranged in age from a 17-year old minor to a 57-year old grandmother, paraded through the courtroom recounting the tales of abuse – all while Holtzclaw’s team vehemently denied the allegations to the all-white jury.

    In the end, the jury had no problem believing the 13 victims’ stories, which included rape in a hospital room (while in custody), on a victim’s front porch, and in the police squad car. After deliberating for just a short while, the jury found Holtzclaw guilty of 18 counts of rape and sexual assault, and recommended the maximum possible sentence of 263 years in prison.

    The convictions include four counts of first-degree rape and four counts of forced oral sodomy – both of which are punishable as serious felonies.  Following the conviction, victims and their family members read tearful statements to Holtzclaw. As well, Holtzclaw’s former boss and Oklahoma City Police Chief Bill Citty reiterated that “[Holtzclaw’s] offenses committed against women in our community constitute the greatest abuse of police authority I have witnessed in my 37 years as a member of this agency.”

    Oklahoma maintains several dozen varied sex crimes in its state code, the most severe of which is first degree rape. Other punishable offenses – requiring registry as a sex offender – include unwanted or offensive touching (“sexual assault”), rape by instrument, and forcible sodomy. If you are facing sexual assault charges, you should consult with a criminal defense attorney.


    Saturday, January 30, 2016

    Foster Parents Sue Oklahoma Department of Human Service for Violating Gun Ownership Rights

    When do state requirements for adopting or foster-parenting a child go too far?

    Becoming an adoptive or foster parent can be an obstacle course. Would-be parents must be able to demonstrate their fitness to raise children in ways that biological parents do not. They have to prove that they not only understand the responsibilities of accepting and loving a child but also have the resources to meet a child's practical needs. Interviews, background checks, financial inquiries, home assessments, and other evaluations are all part of this process.

    But some adoption requirements could violate the constitutional rights of prospective parents. Since 2014, the Oklahoma Department of Human Services (OKDHS) has barred adoptive and foster parents from possessing firearms in a number of circumstances. The OKDHS requires foster and adoptive parents to sign a "Weapons Safety Agreement" providing that parents keep weapons locked in storage when not in use, that they not carry weapons if a child is present unless required to by their employer, and that they make sure that weapons in a car are unloaded and in a locked container. The agency considers these safety measures rather than a ban on owning guns.

    The plaintiffs in a new federal lawsuit, a married couple with a history of raising numerous foster and adopted children, don't agree. In their view, the rule deprives them of the right to possess and carry weapons for self-defense when around their adoptive or foster children. One of the plaintiffs has had a concealed carry permit for over a decade but fears carrying a weapon lest it result in his children being taken away.

    According to the suit, by preventing adoptive and foster parents from lawfully possessing guns and by treating them differently from other law-abiding parents, the policy violates the couple's rights under the Second Amendment of the Constitution and under the Equal Protection Clause of the Fourteenth Amendment, as well as under Oklahoma's state constitution. They are seeking an injunction to block enforcement of the policy.

    The agency says it is reviewing its policies on foster parents who have firearms permits, though the safety of children remains its priority.

    Not all those applying to adopt or foster-parent a child in Oklahoma will find the firearms policy burdensome. But other requirements may prove too intrusive or onerous. The help of a concerned and committed adoption attorney can level the playing field when state agencies overreach, helping prospective parents—and the children they hope to raise—achieve their dreams. 


    Saturday, January 30, 2016

    Ferguson, Missouri Justice Department Reaches Tentative Agreement Re Police Procedure

    Is the agreement to systemic changes in Ferguson police dept. indicative of a national movement?

    It is possible that the tentative agreement to systemic changes in the Ferguson Police Department is a harbinger of positive changes in towns and cities nationwide. The changes agreed to are the result of seven months of careful negotiations following the fatal police shooting of 18-year-old Michael Brown in 2014. It is hoped, and seems likely, that this current deal will avert a civil rights lawsuit in that case. Such a lawsuit, charging the police department with resisting necessary changes, could have been brought against the Ferguson Police Department by federal officials.

    The agreement, posted on the city's website, is 131 pages in length. Three public forums over the next two weeks have been scheduled so that residents can have input into the final document. The federal agency also plans to hold a public hearing on the topic.

    Provisions of the Agreement

    According to the tentative agreement, the following changes must be implemented, the first three within 180 days:

    1. All patrol officers, supervisors and jail workers must wear body cameras and microphones; the equipment will be installed inside all squad cars.
    2. The cameras must be activated during all traffic stops, arrests, searches and interactions with individuals perceived as being in mental health crises.
    3. The municipal code will be altered to repeal sections authorizing jail for people who fail to pay fines for violations.
    4. All police officers and court employees will undergo annual training on "bias-free policing" in which they will be taught to recognize and dismantle their own subconscious prejudices.
    5. New training will also be required in procedures for stops, searches, arrests, use of force, and proper responses to protesters and demonstrators.

    Perhaps most importantly, the agreement states that Ferguson will have to develop an innovative recruitment plan specifically focused on attracting more minority applicants to the police force. At the time of Brown's death, one of the major points of contention was that the police force was practically all white in a city that is largely comprised of people of color.

    Though a St. Louis County grand jury did not indict former Ferguson police officer, Darren Wilson, who is white, in the death of Brown, who was black, deciding that evidence supported the officer's claim that he shot Brown in self-defense, this discrepancy remained a flashpoint for turmoil in the country.

    Who will pay for the changes?

    One of the reasons that public forums on the topic are considered essential is that the required changes in policing are going to cost the city a good deal of money. Either citizens will have to pay for the new services through increases in their property and sales taxes or there will have to be municipal layoffs.

    Why the Changes to the Policing Procedures Are Necessary

    After Brown's tragic death, followed immediately by community and national outrage, a federal investigation into the Ferguson police force uncovered widespread racial bias within the city's criminal justice system. The following defects in policing were reported in March by the Justice Department:

    • Routine use of excessive force
    • Common issuing of petty citations
    • Frequent baseless traffic stops
    • Heavy dependency on fines as a source of city revenue

    The recent document, if it is enacted appropriately, is hoped to go a long way towards calming local tensions and providing a model for increased justice in other parts of the country.

    If you have been charged with a crime, or are under suspicion, the sooner you contact an experienced criminal defense attorney to protect your interests, the better the outcome is likely to be.


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