Monday, September 17, 2007


Sometimes, the dry and dusty old Oklahoma Bar Journal is hard to read. The issue that came in today's mail was one of those that was especially difficult to get through but for a different reason. The following is an excerpt from Malone v. State, 2007 OKCR 34 :


¶5 What happened on Booher Road from the time of Green’s arrival until his death can be largely pieced together from the physical evidence at the scene, statements made by Ricky Ray Malone, and the contents of a videotape recorded by the “Dashcam” video recorder mounted in Green’s vehicle. According to statements made by Malone, Trooper Green arrived at the scene and attempted to rouse Malone by talking to him and shining a flashlight in his face. Officers who investigated testified that it was obvious from evidence left at the scene that someone had been manufacturing methamphetamine outside his or her car that night. It would have been obvious to Green as well. 7

¶6 Green apparently informed Malone that he was under arrest and was able to get a handcuff on his right wrist, before Malone decided that he was not going to go quietly back to jail. 8 Malone somehow broke free and a battle ensued between the two men that tore up the grass and dirt in the area and knocked down a barbed wire fence. Malone’s John Deere cap ended up in the barbed wire fence, and Green’s baton and a Glock 9 mm pistol were left lying in the ditch. 9 The fight resulted in numerous scrapes, cuts, and bruises to both men.

¶7 Trooper Green’s Dashcam recorder was switched on sometime during the course of this monumental struggle. 10 Because the Dashcam was directed forward, the video shows only the things that appeared immediately in front of Green’s vehicle. The video never shows Trooper Green, but the audio on the videotape, though garbled and sometimes hard to understand, contains a poignant and heartbreaking record of the verbal exchanges between Malone and Green during the six minutes preceding Green’s death.

¶8 The initial sounds on the audio are mostly grunting and unintelligible, as the men seemingly struggle for control. Then Malone appears to gain control and tells Green to lay there and not turn over. Green tells Malone that he didn’t have a problem with Malone and that he came to help him. He tells Malone, “Hey, run if you want to go, but leave me.” Green pleads, “Please! Please! I’ve got children.” Green also tells Malone that he is married and begs Malone not to shoot him. Meanwhile, Malone repeatedly asks Green where “the keys” are, apparently referring to the keys for the handcuff that is on his wrist, and demands that Green stop moving and keep his hands up. Malone threatens to kill Green if he moves, but also promises that he won’t shoot him if Green holds still. Malone searches at least one of Green’s pockets, but fails to find the keys. 11 When Green suggests that he has another set of keys in his vehicle, Malone responds, “I don’t need to know.” Green apparently recognizes the significance of this statement and after a few seconds begins pleading again, “Please don’t. For the name of Jesus Christ. He’ll deliver. Lord Jesus!” 12 At that moment a shot can be heard, followed by eleven seconds of silence, and then another shot. 13

¶9 Just after the second shot, Malone appears in the videotape, walking in front of Trooper Green’s car and behind the open trunk of his white, four-door vehicle. Malone can be seen hurriedly “cleaning up” his makeshift methamphetamine lab—dumping containers of liquid that are sitting on the ground, loading numerous items into the back seat and trunk, throwing and kicking things off the road, and lowering the front hood. 14 Less than two minutes after shooting Green, Malone starts his car to drive away, but the car stalls. After almost thirty seconds, the car starts, and by 6:55 a.m. Malone has left the scene ....


¶52 In this prepared statement, which covers over nine transcript pages, Mrs. Green described how she felt like she “prayed Nik into [her] life,” since she prayed that God would send her “a Godly man, a good husband, and a loving dad,” and her husband was all of these things and more. 102 She described being in denial about his death for months and about how hard it was to find herself raising three children alone. She described experiencing deep, gripping, physical pain, which she attributed to “broken heart syndrome,” and having difficulty breathing and feeling her heart racing, with no apparent physical cause. She also described the emotional struggles of “living single in a double world” and always feeling “lost and out of place.” Mrs. Green testified that she had lost her best friend and soulmate, but that the hardest thing was “to press on with our daughters.” She testified that their oldest child, Cortni, suffered from depression and severe headaches and had become afraid of the dark; that their middle daughter, Brooklyn, suffered from abdominal pain, for which a physical cause couldn’t be found, and that she wouldn’t talk about her feelings and fears to anyone; and that their youngest child, Morgyn, frequently had nightmares and pronounced separation anxiety.

¶53 Mrs. Green testified that prayer had always been important in the family, but that now their prayers “reflect pain and their longing for their dad.” She testified about how she wanted to lift the spirits of the family toward the future, but that they were “caught in the present, our lives revolving around what we’ve lost, and, quite frankly, who is responsible for putting us in this situation.” She testified that birthdays, anniversaries, and holidays had become “horrible experiences that we just have to endure and just hope that we can get the day over with as soon as possible.” She added that “the most painful thought” she could conjure up was of the future weddings of her three daughters, with “no proud father to walk them down the aisle.”

¶54 Mrs. Green then concluded her testimony with the following recommendation of punishment for Malone:

I know, as you all do here today, that Nik begged for his life that day. He asked for mercy. There was no mercy shown. Here on earth our government and those in positions of authority, including law enforcement, are given a devine [sic] charge outlined in Romans 13 of the Holy Bible. Nik took that charge very seriously every time he went 10-8. Perhaps that is why he was honored to be named Trooper of the Year two of the six years he proudly served the citizens of the State of Oklahoma.

Also found in that same chapter of the book of Romans is our charge as citizens to do our duties and obligations, including those as jurors in a court of law, as a devine [sic] undertaking in upholding and enforcing the laws of our country. We know that Nik was murdered beyond a reasonable doubt. It is for this reason today, ladies and gentlemen, that I beseech you to show no mercy to him. I beg for you to give him the maximum penalty under the laws of the State of Oklahoma, which is the death penalty, and leave the business of mercy for Malone in the hands of the Heavenly Father, where it belongs.

Defense counsel asked only a few questions, in an attempt to establish that since her husband’s death, Mrs. Green had spoken at schools and other organizations about the dangers of methamphetamine and how it can ruin lives.

¶55 The State acknowledges that this Court has consistently held that victim sentencing recommendations should be limited to “a straight-forward, concise response to a question asking what the recommendation is” or “a short statement of recommendation in a written statement, without amplification.” 103 The State does not attempt to argue that Mrs. Green’s sentencing recommendation can pass this test—or even that it is not plain error. Rather, the State argues that any error in this regard was harmless, in light of the totality of the evidence presented at Malone’s trial.

¶56 We find clear plain error in this regard. We do not blame or criticize this grieving, widowed spouse for her statements or question the sincerity or appropriateness of the feelings she expressed. Nevertheless, the parties who are repeat players in our criminal justice system—the trial court, the prosecutor, and defense counsel—all had an obligation to ensure that her victim impact testimony was appropriately limited, in the manner required by this Court. 104 We are particularly troubled by Mrs. Green’s sentencing recommendation, which so obviously violates the simple rules established by this Court.

¶57 Mrs. Green literally “beseeches” and “begs” the jury to sentence Malone to death. She focuses on the idea of mercy, notes that her husband begged for mercy, but was given none, and implores the jury to show “no mercy” to Malone and “leave the business of mercy for Malone in the hands of the Heavenly Father, where it belongs.” Furthermore, and particularly troubling to this Court, Mrs. Green invokes the Bible and suggests that jurors have a religious obligation, beyond civic duty, in their work as jurors, in a way that seems to suggest that giving a death sentence may be part of the jury’s “divine undertaking in upholding and enforcing the laws of our country.” This invocation of religious belief and obligation in the context of a capital sentencing recommendation is totally inappropriate. 105 We find that the trial court committed plain error in allowing this extended and unduly prejudicial sentencing recommendation to be presented at Malone’s trial. 106


¶116 In Proposition XI, Malone argues that the cumulative effect of the prejudicial errors committed in the second stage of his trial, combined with improper prosecutorial argument in the State’s final closing remarks, together produced a situation where the jury’s decision to sentence him to death was influenced by passion, prejudice, and other arbitrary factors.242 Malone notes that during voir dire the prosecutor asked prospective jurors, over and over again, to remember that this case was not just about Malone, it was about Trooper Green and those he left behind. The prosecutor concluded his initial second-stage closing argument, just before defense counsel got up to present his final remarks, by referring back to this voir dire.243

¶117 If there was any uncertainty that the prosecutor was referring to Trooper Green’s family and also Green himself, it was erased by his final second-stage closing argument. The prosecutor addressed the jurors directly about how each of them would be “marked by this case in some way or the other,” but also noted, “You’ll walk out of here probably later today and you’ll go on with your lives.” He contrasted this ability of jurors to walk away and move on with the plight of others, who “will not have that option.” He continued as follows:

I pray that you’re never involved in a case from the standpoint of losing a family member or being a victim. You can’t imagine what it’s like to go through. You can’t take the law into your own hands as much as [you] may want. You cannot take the law into your own hands. Everything that’s been done in this case has been done for you. The victims—they have to rely on the investigators. They got to hope investigators they’ve never met, don’t know anything about—they’ve got to hope those investigators can get enough information, enough evidence to satisfy twelve people so that some day justice can be done.

They’ve got to let their loved ones go to Oklahoma City where a doctor opens them up, checks organs so that that doctor someday can testify to a panel of twelve people that they’re certain that the cause of death is a gunshot to the back of the head.

You can’t hire your own attorney to prosecute these cases. You got to rely on a prosecutor that you’ve never met before. You hope they’ve got the time and the fortitude to try the case like it ought to be.

But you know the hardest part if you’re the victim? The hardest part is right now. Twelve people that didn’t know Nikky, twelve people that don’t know anything about them other than seeing them on the stand for 15, 20 minutes—is going to decide—make a decision on the person that took Nikky Green’s life. Each of those people—and it was difficult. Difficult to take that stand and say the things they had to say. But something that’s very important: The law says that we have the right to consider the wishes of the family. Each of those people asked you for the death penalty, and it’s appropriate. If you’re ever going to set on a case where the death penalty is warranted, you’re setting on it right now.

When you go back there to deliberate, there’s some strengths on this jury for the death penalty. There’s going to be some people, probably, that may have some reservations. Work with them, talk with them; spend some time with them. We’ve been 15 months waiting on this verdict; if it takes an hour, a day, a week, work with those that may not want the ultimate punishment. This case cries out for it. Anything less would be a travesty.

The prosecutor returned to this same theme again as he began wrapping up his final remarks.244

¶118 The prosecutor concluded by returning to the theme that the case was about more than Malone; it was about Trooper Nik Green. He did this by directly contrasting the situation of Malone, though incarcerated, with the plight of his dead victim. The prosecutor ended Malone’s trial with the following comparison:

And I’d like you to think about this when you go back there—and we heard this from Colleen. This man has human contact. He has known human contact since early morning of December 22nd [sic]. He’s got to visit with his wife. He’s got to determine how his kids are doing. He’s been able to determine what’s happening in the world.

Nik Green has had none of that since shortly before 7 that morning. Nik Green will never know human contact again. Nik Green will never read a magazine, a paper. He’ll never talk with his wife. He’ll never see his kids grow up. He’ll never know how they turn out in life.

The death penalty. This case cries out for it. You, the strengths on this jury, bring it back.
I thank you.

Malone’s jury was then released to begin its deliberations. The jurors returned two hours later, bringing with them the death penalty verdict for which Mrs. Green and the prosecutor had so powerfully “begged” and “prayed.”


¶123 For the reasons discussed in this opinion, the CONVICTION of Malone for the first-degree murder of Trooper Nik Green is AFFIRMED. Malone’s DEATH SENTENCE, however, is REVERSED, and this case is REMANDED to the District Court FOR RESENTENCING.250 Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch. 18, App. (2006), the MANDATE is ORDERED issued upon the delivery and filing of this decision.

From Judge Lumpkin's dissent:

¶5 As for the victim impact evidence, I agree that the trial court erred in failing to hold a hearing to determine the admissibility of the evidence, pursuant to Cargle, and that trial court and counsel alike failed in their responsibility to review the victim impact evidence and determine its admissibility prior to the second stage. If a hearing had been held, hopefully it would have prevented the overly emotional victim impact evidence from being presented. However, I find any errors in the admission of the victim impact testimony harmless beyond a reasonable doubt. Evidence of Appellant’s cold-blooded execution of Trooper Green, as seen on the Dashcam video, when viewed in conjunction with the evidence in aggravation of Appellant’s prior assaults and attempts to escape, show that no reasonable juror would have chosen any punishment other than death. To say that the death sentence in this case was improperly influenced by the victim impact evidence is to turn a blind eye to the other legally admitted evidence. I find the majority is overly generous in giving Appellant another chance to find one juror who will save him from the death penalty.

6 Further, I find nothing inappropriate about references in victim impact evidence to God and the Bible. It seems as though courts have become overly phobic of any references to God or the Bible. When we review the works of great American orators and trial lawyers such as Abraham Lincoln, William Jennings Bryan and even the agnostic Clarence Darrow, we find quotations from the Bible and references to God. It is hard to determine exactly when such comments became anathemas, but there is certainly no basis in history for such an approach. It is interesting to note the majority finds such references too emotional when included in victim impact evidence or made by the State. However, defense counsel is criticized for not being emotional enough and no objection is raised to his closing arguments calling on the name of God to save his client. The majority’s standard for determining what comments are appropriate or inappropriate seems inconsistent.

Thursday, September 13, 2007

Lambda Legal Celebrates Oklahoma Decision Not to Appeal 10th Circuit Court Gay Parent Adoption Decision

From the Gay News Blog:


August 17, 2007

'This is a monumental decision, not just for the couples involved in the case, but for lesbian and gay parents nationwide.'

(New York, NY) ---- Lambda Legal is applauding the Oklahoma Health Department's announcement that it will not appeal a federal appeals court ruling earlier this month that struck down a state law refusing Oklahoma birth certificates to children adopted by out-of-state same-sex couples.

"This is a monumental decision, not just for the couples involved in the case, but for lesbian and gay parents and their children nationwide," said Jon Davidson, Legal Director of Lambda Legal. "It means that when same-sex couples have an adoption decree recognizing both of them as parents, the adoption, and their status as their child's parents, must be honored no matter where they go."

The Adoption Invalidation Law, hastily passed at the end of the 2004 Oklahoma legislative session, had said that Oklahoma "shall not recognize an adoption by more than one individual of the same sex from any other state or foreign jurisdiction." In a 35-page decision on August 3, a panel of the U. S. Court of Appeals for the 10th Circuit rejected the Oklahoma Department of Health's challenge to a lower court decision striking down the law, so extreme that it threatened to make children adopted by same-sex couples in other states legal orphans if the families traveled or moved to Oklahoma.

Lambda Legal argued that the law was unconstitutional based on the United States Constitution's guarantees of equal protection and due process, as well as the Full Faith and Credit Clause, which requires that court orders (including adoption decrees) from one state must be respected and enforced in another. The 10th Circuit decision upheld a ruling by the U.S. Court for the Western District of Oklahoma that agreed with these challenges and held that the statute indeed violates the United States Constitution by refusing to honor adoption decrees obtained in other states.

In addition to same-sex couples raising children in Oklahoma, the ruling benefits same-sex couples and their families in other states, including two of the couples who brought suit, Heather Finstuen and Anne Magro , now living in Houston, and Ed Swaya and Greg Hampel of Seattle, by ensuring they can travel in Oklahoma without fear their children will be rendered legal orphans.

Ken Upton, Senior Staff Attorney in Lambda Legal's South Central Regional Office in Dallas, was lead attorney on the case, with assistance from Senior Staff Attorney Brian Chase. Sandy Ingraham of Ingraham & Associates, P.L.L.C. in McLoud, Oklahoma, served as cooperating attorney in Finstuen et al v. Edmondson et al.


One question, since the majority of Oklahomans support Oklahoma's DOMA and other laws restricting "gay rights" in family law WHY WAS THERE NO APPEAL TO SCOTUS?

Sunday, September 09, 2007

Evangelicals must stay the course

Note: Ken Connor is the former President of the Family Research Council.

Evangelicals must stay the course

By Ken Connor
Sunday, September 9, 2007

There are reports of a growing disaffection for politics among American evangelicals. This should come as no surprise.

"Values voters", many of whom pinned their hopes for cultural transformation on politics, have suffered a series of bitter disappointments. Some of these disappointments have names, not the least of which include Tom Delay, Jack Abramoff, Mark Foley, and Larry Craig. Additionally, the lack of meaningful progress in eliminating abortion, the collapse of the campaign to pass a Federal Marriage Amendment, the explosion of congressionally approved "earmarks", and wanton spending by the Federal legislature—all of which occurred while Republicans, of all people, controlled the White House and the Congress—have also contributed to the current malaise. There is also the matter of the war in Iraq which many feel is being prosecuted poorly by the President in whom they initially reposed great confidence.

The danger, of course, is that evangelicals, who are known to suffer from what Howard Hendricks described as the "peril of the pendulum", will abandon their engagement in the public square and retreat pietistically to their prayer closets.

Lest we forget, however, it was the fruit born of a lack of civic engagement by people of faith that propelled evangelicals into the political arena. For decades in America, there was little organized involvement by evangelicals in the public square. Politics was deemed a "dirty business." Christians were discouraged from sullying themselves with such base and worldly pursuits. Pietism prevailed over politics.

Into that vacuum crept the indicia of an increasingly secularized society—abortion on demand, an explosion of sexually transmitted diseases, public schools stripped of prayer and hostile to religious expression, to name just a few. Awakened from their slumber by the likes of Jerry Falwell, Cal Thomas, Paul Weyrich, and others, evangelicals scarcely recognized their country. The Moral Majority was born, and in its wake followed groups that proudly advertised their faith-based roots, such as the Christian Action Council, the Christian Coalition, and The Center for Reclaiming America for Christ. Evangelicals became a political force to be reckoned with and provided the decisive margin of victory in a number of elections. The efforts of this brand of faith-based political engagement were so successful, the movement was dubbed the "Christian Right" by its adversaries. Intended as a pejorative term, Falwell and others wore the moniker with pride.

As the Christian Right "matured", however, it began to downplay its "Christian" distinctive. In order to achieve a more broad-based appeal, the movement increasingly described itself as "pro-life" and "pro-family." And with its increasing emphasis on direct mail, grass roots organization, and get out the vote campaigns, it became more and more difficult to distinguish the Christian Right from the rest of the political pack. The names of evangelical leaders became household words, and they were increasingly in demand as political, rather than spiritual, commentators.

Evangelicals became such a large part of the political landscape that they became known as the "base" of the Republican Party. And they became inextricably intertwined with the GOP and the Bush Administration. Now, however, the Grand Old Party has become increasingly identified with serial scandals involving pedophilia and bathroom sex, and in the wake of Mr. Bush's plummeting popularity, many evangelicals are scratching their heads and wondering how it all came to this. They are utterly embarrassed and sorely tempted to return to their prayer closets.

To do so would be a mistake.

Evangelicals would do well to remember the following:

First, notwithstanding human advances, man remains sinful and power still corrupts. There was a reason, after all, that the Founding Fathers embraced the concept of "separation of powers." They did not want to concentrate too much power in the hands of flawed human beings. They were not naïve about the nature of human beings or politics, and we should not be either. We should expect that the results of human frailty will surface in the political arena no less so than other areas of life. As James Madison observed in Federalist #51, "If men were angels, no government would be necessary." But even those who govern are infected with the same sin nature that caused us all to be in need of a savior.

Second, retreat is not an option. G. K. Chesterton rightly noted, "All that is necessary for evil to triumph is for good men to do nothing." He also pointed out that "[t]he fate of good men who refuse to get involved in politics is to be ruled by evil men." (Were he here today, I am sure that he would doubtless be gender neutral and use the word "people" instead of "men.") Human experience has proved Chesterton right over and over again. When Christians hide their light under a bushel, the world goes dark—very dark. Jesus' admonition to his followers to be salt and light is no less applicable today than when first he uttered it 2000 years ago.

Third, Christians should be committed to principle in the public square, over party or personality. Principles are timeless and enduring (that's why they are called principles!). Right principles do not disappoint. People and parties do. Principled engagement in the public square requires that we apply the same standard to both Democrats and Republicans. We should affirm members of both parties who affirm our principles and we should exhort members of both parties who don't. Double standards invite criticisms of hypocrisy and duplicity. If we consistently cling to our principles, we will have clear consciences and be able to weather any political storm.

Fourth, we must not weary in well doing. It takes time to reform a culture. We didn't get into this mess overnight and we won't get out of it quickly. William Wilberforce labored for decades to end the slave trade in the British Empire. Though mocked and ridiculed for his efforts by fellow members of Parliament and by the powerful special interests of his time, he clung to his principles and his faith. In the end, he was successful and the world was changed for the better.

Fifth, expect opposition and ridicule. The Savior encountered it. As his servants, we are not exempt from it. The servant is not better than his master. (See Matt. 10:24)

Finally, we should reflect on Jesus' example. The writer of Hebrews understood the natural tendency on the part of people who experience opposition or persecution for their faith to become discouraged. He offered a surefire antidote for discouragement by exhorting Christ's followers to "fix our eyes on Jesus…who for the joy set before him endured the cross, scorning its shame.… Consider him who endured such opposition from sinful men that you will not grow weary and lose heart." (Heb. 12:2-3, NIV)

Tempting though it may be for evangelicals to drop out of the race and to repair to the sidelines, we must stay the course. There are many more laps to run. May God grant that when we have finished the race we will hear the words, "Well done good and faithful servant.… Enter into the joy of your Master." (Matt. 25:21, ESV)

Ken Connor is Chairman of the Center for a Just Society in Washington, DC and a nationally recognized trial lawyer who represented Governor Jeb Bush in the Terri Schiavo case.

Copyright © 2006 Salem Web Network. All Rights Reserved.

Saturday, September 08, 2007

Listen to Dave Ramsey? I Won't Represent You!

I am seriously thinking about adding a very pointed question at the beginning of my intake interview for new clients, “Do you listen to Dave Ramsey?” If the answer is yes, the interview is over and the folks can either find another attorney or call Dave Ramsey for their legal advice.

Dave Ramsey is a nationally syndicated, Christian crossover, talk show host. His financial advice is usually sound. His business advice is sometimes questionable, particularly on quasi-legal regulatory and business organizational matters. But, his legal advice, and he does give pure legal advice on a regular basis, is often just plain misinformed.

I just heard a caller complaining because a probate matter had been dragging out. The caller was upset that they were going to have to go to mediation over what the caller and Ramsey both judged to be a simple matter. Never mind the fact that the other side had no input in the conversation. Never mind the fact that probate matters ALWAYS drag out. Ramsey just pronounced the caller’s current attorney a “bad lawyer” and advised the caller to fire his lawyer and find one who would “kick butt” and get the matter over with.

I didn't hear Ramsey ask whether or not that court required mandatory mediation. I didn't hear Ramsey ask if the judge ordered the mediation. I didn't hear Ramsey ask if the other side's disputed claims had been granted at least minimal due process. As a matter of fact, I didn't hear Ramsey ask where the judge was on the subject at all. Some judges will not grant a dispository motion. As a matter of fact some whole states, Oklahoma for example, officially frown upon dispository motions. What Ramsey did do was feed his audience some red meat … in this case a probate lawyer who is probably just trying to do his job with what sounded like a difficult case and a whiny client who listens to too much talk radio.

Dave Ramsey is not an attorney. He is a radio personality. An entertainer. Dave Ramsey has never spent a day in probate court as an attorney. He is not subject to the professional discipline of a probate judge, a bar association or any state or federal court system. If he were, he would learn very quickly to temper his comments and not judge matters before their time. But, it is much easier (and better entertainment) to take cheap shots at attorneys when you have no legal education, don’t know all of the facts, and face no professional consequences for making mistakes that may ruin client’s case.

These days, one of the most quoted lines from Shakespeare is,"First, let's kill all the lawyers." The pity is that the people using this quote don't know enough about its context to realize that it is an illustration of the danger of uneducated rabble rousers using mob sentiment to pervert justice. Might be a lesson in there for Dave and the mob of his listeners.

I would bet you dollars to doughnuts that Dave Ramsey has a team of lawyers handling his own legal affairs. But, he has never had a problem advising his listeners to do their own legal work and practicing law without a license for others on his radio program. Now, he is advising his listeners to fire their attorneys. One of these days, Ramsey is going to get nailed by a state bar association for practicing law without a license. Sadly, he deserves it. The pity is it the complaint will probably originate from a Christian radio station that aired his program.