giving thanks...relations board, and the federal energy regulatory commission.” the d.c. circuit...

It’s Harvest Time — Have You Heard From a Young Lawyer?

By Benjamin GrubbYLD Vice Chair

With the holiday season approaching, the Oklahoma County Bar Association Young Lawyers Division’s annual Harvest Food Drive for the benefit of the Oklahoma Regional Food Bank is well underway. The Harvest Food Drive is the worthy cause behind many YLD events each year. The YLD has met its commitment to donating at least $20,000.00 to the Regional Food Bank to help feed Oklahomans for many years; we have set the same goal for 2016. By now, you or your firm have likely been contacted by member of the OCBA YLD Board of Directors seeking tax-deductible dona-tions to the Harvest Food Drive. For nearly twenty-five years,

PRSRT STDUS POSTAGE

PAIDPERMIT# 59

OKLA CITY OK

PROTECTIVE EFFECTEven among young women

Page 8

From the President . . . . . . . . . . . . 2And The Court Said . . . . . . . . . . . . 4Old News . . . . . . . . . . . . . . . . . . . 6

Bar Observer . . . . . . . . . . . . . . . . 12Stump Roscoe . . . . . . . . . . . . . . 13Book Notes . . . . . . . . . . . . . . . . . 16

WREATH OF HOPE CEREMONYPage 7

Inside

November, 2016 Vol. 49, No. 11A P u b l i c a t i o n o f t h e O K L A H O M A C O U N T Y B A R A S S O C I A T I O N WWW.OKCBAR.ORG

You are cordially invited toTHE 2016 OCBA HOLIDAY

RECEPTIONThursday, December 1, 2016

5:00 - 7:00 p.m.Oklahoma County Bar Offices

119 North Robinson, Food Court Basement Level

Hosted by the Oklahoma County Bar Association

THE OCBA VOICES FOR CHILDREN COMMITTEE

WILL BE COLLECTING STOCKING CAPS, MITTENS& GLOVES FOR THE CARVER-MARK TWAIN HEADSTART

PROGRAM. PLEASE BE GENEROUS!

Giving ThanksBy Brandon Kemp

For thankfulness and gratitude, it hasn’t quite been a banner year in Oklahoma City. When 2016 began, oil was falling and construction projects were put on hold. As the year progressed, the Thunder finally managed to gel under Billy Donovan, only to miss the NBA Finals by one game. Then we hit the offseason. Let’s not start on politics.

But, as Robert Frost is quoted, “In three words I can sum up everything I’ve learned about life: it goes on.” Oil is trending up, there’s a new skyscraper rising at Sheridan and Hudson, and Russell Westbrook, on a con-tract extension, is leading the Thunder in what promises to be the team’s most thrilling season yet. For all the adversity 2016 has brought our city, there is so much more to be excited about and to be thankful for.

The same is true of our profession and our bar. There’s not one person reading this edition of the Briefcase that hasn’t been affected by the economic adversity that has

hit our city. But, for whatever difficulties there have been in the business of law this year, the practice of law remains a joy, a privilege, and something to be thankful for. Every day, I am grateful to be part of a profession in which my job is to passionately represent deserving clients, negotiate deals, and make law.

In this regard, I am especially thankful to be a mem-ber of this bar. In my short career, I have found all the compliments given to the Oklahoma County bar to be true without exception. We have a bar with small-town courtesy and big-city talent. We have a bar that is always accommodating to its members, but never to the detri-ment of a client. We have a bar that gives its limited time to the underprivileged and at risk, or to the advancement of the profession and the law, despite the many obstacles at 23rd and Lincoln.

This year, when sitting down to Thanksgiving dinner with my family, I will surely consider these things. It is a blessing to be a part of a profession in which I have the means to both give back and support a family. I will be thankful that I have the chance to practice among this group of lawyers, with so many mentors and role models, close to my family and my hometown. And, I will also be reminded of my personal duty to help main-tain the reputation of our bar. 2016 has had much to be thankful for. Let’s give thanks.

See HARVEST, PAGE 17

2 BRIEFCASE • November 2016

From the President

By Barbara Swinton

Have you been keep-ing track of your commu-nity service? We are fast approaching the holiday season and as most of you know, there is much need in our communi-ty. Already doing your

part? Let us know! Please take a minute to think about how and when you donate to a community need, and communicate this information to me or to the OCBA staff members. We want to let the community know that lawyers in Oklahoma County are making this a better place to live - one person or firm at a time. We will create a form for you to supply this information to us on the OCBA website to make this easier for you, but until it is posted, please email or text us the information.

No matter where your interests lie, we want to know, especially if you are involved with our new partner – Oklahoma City Public Schools Foundation.

Last month we let you know about Partners in Action, and this month I am excited to share another program with you, because it is easy to find what you care about with the program DonorsChoose.org. Take time in the next few days to visit the website, just follow the link to the Foundation on the OCBA website. Click on DonorsChoose and it will ask you for a zip code or city, depending in what area of Oklahoma County you want to be involved.

Next, the teachers seeking help with material for their classroom list the area of their need from the following:

Subject areas for giving:Math & Science, Music & The Arts,

Literacy & Language, History & Civics, Special Needs, Applied Learning, Health & Sports, Food, Warmth & Care.

Here is an example from this week’s list of teachers seeking help. Their requests are so modest; most of us could help these teachers reach their goal this week!

Mrs. Futrell, Monroe Elementary School, Oklahoma City, OK Grades 3-5Students are at the highest pov-erty level: 10 DONORS have given, $85 STILL NEEDED, $531 goal by December 2016.To Be or Not To Be (Reading Nonfiction)?My students need entertaining history books that have plenty of illustrations, are quick reads, and do not shy away from the truth.I want my students to know that they are intelligent, creative peo-ple and that learning is fun.Our school is an urban school in Oklahoma and serves 480 students in Prekindergarten thru sixth grade. Most of the students come from lower socioeconomic families. We have a very diverse population of students, including the visually-impaired and hear-ing-impaired students in our dis-trict. The library is the heart of the school and our students love coming to the library to read, hear stories, and to learn.

My Project:Students need to learn about events that happened in the past, how those events shaped the future, and how we can prevent

“history from repeating itself”. In addition, they need to learn about the real situations and conditions surrounding major events. For most students, reading and learn-ing about history has been boring because we usually teach just the dates, events, and outcomes, while leaving out what it would be like to live through those sit-uations.Learning about history doesn’t have to be boring - it can be dis-concerting, fun, and exciting!The “You Wouldn’t Want To Be.” series of books captivate students by providing lightheart-ed, but factual descriptions of historical situations. After read-ing these books, students will know what life would be like if they could go back in time.As an extension of the reading, students will write a paper com-paring two or more different historical events and decide which one they could have sur-vived and why. Students can also create their own “You Wouldn’t Want To Be” books.

This is but one of TEN pages of proj-ects to choose from in Oklahoma City alone. If you find, and I hope you will, a project you want to support, let us know so we can keep the Foundation aware of the donations from Oklahoma County Bar members.

Thank you for all you do for our com-munity and remember how blessed we are to represent our wonderful profession. Let’s go make a difference this month!

BRIEFCASEOctober 2016

Briefcase is a monthly publication of theOklahoma County Bar Association

119 North Robinson Ave. Oklahoma City, OK 73102

(405) 236-8421

Briefcase CommitteeJudge Jim Croy, Chris Deason, Ryan Dean, Ben Grubb, Justin Hiersche, Scott Jones, Matt Kane, Travis Pickens, Liz Oglesby,Miles Pringle, Austin Reams, Cari Remillard, Teresa Rendon, Rex Travis, Collin Walke, Judge Geary Walke, Judge Allen Welch and Alisa WhiteCo-editors Joi McClendon & Shanda McKenney

Contributing Editors Michael Brewer Richard Goralewicz Bill Gorden Warren Jones Kieran D. Maye

Oklahoma County Bar Association

OFFICERS:President Judge Barbara SwintonPresident-Elect David A. CheekVice President Sheila StinsonPast President Angela Ailles BahmTreasurer Robert D. NelonBar Counsel Coree Stevenson

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For advertising information,call 278-2820.

Postmaster: Send address changes to OCBA Briefcase, 119 North Robinson Ave., Oklahoma City, Oklahoma 73102.

Journal Record Publishing produces the Briefcase for the Oklahoma County Bar Association, which is solely responsible for its content.

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OKLAHOMA COUNTY BAR ASSOCIATION

MISSION STATEMENTVolunteer lawyers and judges dedicated

to serving the judicial system, their profes-sion, and their community in order to foster the highest ideals of the legal profession, to better the quality of life in Oklahoma County, and to promote justice for all.

Lawyers Can and Do Make a Difference

www.okcbar.org • November 2016 • BRIEFCASE 3

The Fourth Branch: Executive v. Independent AgenciesBy Miles Pringle

In October, the D.C. Circuit Court of Appeals ruled that the Consumer Financial Protection Bureau (“CFPB”) was “unconstitutionally structured” because it’s head officer, Director Richard Cordray, could only be removed for cause, as opposed to at will by the President. PHH Corp. v. Consumer Fin. Prot. Bureau, No. 15-1177, 2016 U.S. App. LEXIS 18332 (D.C. Cir. Oct. 11, 2016). In reaching its decision, the Court pro-vided a lengthy analysis of federal administrative agen-cies, which distinguished between executive agencies and independent agencies.

Executive agencies are ones which do not have a for-cause removal provision contained in their organizing statute(s), and, therefore “the President can supervise, direct, and remove at will the heads of those agencies.” Conversely, an agency is “independent” if the agency head(s) is removable by the President only for cause, and not at will. “Examples of independent agencies include well-known bodies such as the Federal Communications Commission, the Securities and Exchange Commission, the Federal Trade Commission, the National Labor Relations Board, and the Federal Energy Regulatory Commission.”

The D.C. Circuit Court of Appeals explained that inde-pendent agencies constitute “a headless fourth branch of the U.S. Government” and that their powers are signifi-cant. “They exercise enormous power over the economic and social life of the United States. Because of their mas-sive power and the absence of Presidential supervision and direction, independent agencies pose a significant threat to individual liberty and to the constitutional sys-tem of separation of powers and checks and balances.”

As such, the Court opined that independent agencies must be headed by multi-member groups, whether a board or commission, and not a single individual. “[T]o help preserve individual liberty under Article II, the heads of executive agencies are accountable to and checked by the President, and the heads of independent agencies, although not accountable to or checked by the President, are at least accountable to and checked by their fellow commissioners or board members.”

The Court was limited in its opinion, and determined that the remainder of the CFPB’s organizing act, the Dodd-Frank Act of 2010, was constitutional. The Court, luckily for the CFPB, took the least intrusive action it

could and simply severed the for-cause provision from the statute. Thus, “the CFPB now will operate as an executive agency. The President of the United States now has the power to supervise and direct the Director of the CFPB, and may remove the Director at will at any time.”

Oklahoma does not have this clear distinction regard-ing its government agencies. Some agencies are created by the Oklahoma Constitution, and headed by elected officials (e.g. Insurance Commission and Corporation Commission). Some agencies are comprised of boards appointed by the governor, but can only be removed for cause (e.g. Abstractors Board). Some agencies are comprised of office holders. For example, the Commissioners of the Land Office is comprised of the Governor, Lieutenant Governor, State Auditor, Superintendent of Public Instruction and the President of the Board of Agriculture.

Placing an interesting wrinkle into the removal of offi-cials by the Governor for cause, officials seeking rein-statement may seek a writ of mandamus in Oklahoma District Court. However, the removed official has the burden of proof, and must demonstrate that the remov-al was not within statutory grounds. See e.g Chandler (U.S.A.), Inc. v. Tyree, 2004 OK 16, ¶ 27, 87 P.3d 598, 605; see also Hall v. Tirey, 1972 OK 118, 501 P.2d 496.

Administrative agencies have become a ubiquitous part of our modern society. In order to keep up with tech-nological and other changes, governmental functions have become very complex. While most, if not all, offi-cials at these agencies do their best not to abuse power(s) delegated to their agencies, it is important to properly fit agencies into our system of checks and balances.

Legislative

Executive

Judicial

Independent

OCBA President Barbara Swinton pres-ents this year’s annual donation to Legal Aid Services of Oklahoma to Brian Bishop, Managing Attorney for the OKC Office.


By Jim Croy

November 7, 1916One Hundred Years Ago

[Excerpted from: Borah v State, 1916 OK CR 90, 160 P. 27.]

Plaintiff in error in this case, who will be referred to as defendant, was charged and convicted of murdering his wife, and was sentenced to life imprisonment.

The facts are among the most revolting in the annals of crime.

The defendant was born in the state of Kentucky, of worthy parents, and was reared in an atmosphere which should have produced a true and noble character, and we hesitated to believe he could be guilty of the atrocities charged. But the record forces us to the conclusion that the jury made no mistake.

In early manhood the defendant courted and won a young woman of his native state, whom the record shows, though mistreated and deserted by him, was true to him to the day of her death. She was the mother of his child, a little girl, and the testimony is, that this wife not only loved but “idolized him.” In 1910 he virtually abandoned her and took up his abode in Sapulpa, and had her to remain at Tishomingo in the little home he had provided for her during the days he loved her. At first he visited her and his little child about every 60 days, but as time went by his visits grew farther and farther apart, until he got to making only about two visits a year. And only a few days before her death her weary sub-missive soul breathed its agony in a letter to him as follows:

“My dear husband we are disappointed to tears to-day, we looked for you so hard last night, and we did not even get a letter of explanation.

“It is just one month from the 1st of Aug. before Gwen-doline starts to school, then if I look wholly to her interest as I have always done, I will be tied another 9 months. Are we to stay here alone, and you home one or twice in a whole twelve months?

“Of course if you will it, we will do it, but do wish some other arrangements could be made.

“Poor `Peter’ how he must have longed for his loved ones when he was exiled. We watch every àuto’ & train, but still we catch no glimpse of you. Per-haps as Ànnie Lee’ in Ènoch Arden’ says, we can not adjust our spyglass properly, so we wait a year? Then a month, and still you do not come. Now won’t you sit down this minute and write us a long letter all about your business, and come home as soon as you can leave without too great a loss.

“You never tell me anything

about your affairs, but here is the way I have it studied out, I do not see any profit in what you are doing more than you could make here.

“I do not think I am asking too much of you, when I ask you to come home for a while.

“With oceans of love Ellie Borah.”

This letter was written the 3d day of August, 1913, and on the 28th day of August, 1913, the husband came home. But between the time the wife penned this letter and the homecoming of the husband the record shows he received eight most affectionate letters from another woman, whom he had promised to marry in September. In fact the first of these let-ters, this woman sent him a sample of the goods of which she expected to make her wedding dress. On August 10th, in a let-ter, she says a friend “asked me my name now, so that she could introduce me to her friends, and was surprised to hear me say, Miss Hewey. Had taken you for my hus-band. So many people do that, we won’t be taken for newly-weds next month.”

* * *With letters [from the other woman,

which letters have been omitted here] in his possession the husband goes through the mockery of visiting his wife, the wife of his youth, the mother of his child. About 6 o’clock on the morning of the 30th the neighbors’ attention was attracted by human groans. They saw the defendant on the porch in night garments, wring-ing his hands and groaning: “Oh! Oh!” Before any one reached him he turned and walked back into the house, and closed the door behind him. One after another of his neighbors arrived, but the defendant did not tell any one what the trouble was, or call upon any of them for help. Some of them rushed to the window of the wife’s bedchamber, and looking through the glass saw a fire slowly kindling near the bed. Soon the room was enveloped in flames. About that time a Mr. Wheeler came; and defendant was standing in the yard groan-ing. Wheeler asked him where his folks were, and the defendant pointed toward the house and said, “I reckon they are in there.” Wheeler said, “My God Let’s see if anybody is in that house.” The defendant replied, “Do not go in there.” Wheeler said, “I am going in there;” to which the defendant replied, “No, you can’t go in there.” No one heard any screams or cries for help proceeding from the building, although the flames were scarcely notice-able when the first neighbors arrived. The voices of the wife and baby were silent. No call for help came from them, and the husband and father, though denying responsibility for their death, did not call for help for them, although he says he saw his child enveloped in flames, and admitted that he did not make any effort himself to rescue his family from the flames. The fire department was called by the neighbors, but the child was burned beyond recognition. The side on which

the wife lay was badly burned, but not charred. There were no blisters upon that side, which the physicians testify shows that she was dead before the body was burned. Her mouth was open and her charred tongue was protruding from it. A neighbor asked defendant to go over to her house and put on some clothes. He went, and before dressing stated that his hands were soiled, and asked for a pan of water in which to wash them. He left his night garments on the bed in the room where he dressed, and the arresting officer 30 min-utes later examined them and testified they had the smell of coal oil upon them. A five gallon can was found in the room where the wife and child were burned. After the discovery of the letters from the woman he had promised to marry, an officer visited him at the jail and asked him if he knew this woman, and he denied knowing her. Yet, on the witness stand, when confronted by these letters, he admitted his relations with her, that he received the letters from her, that he had given her a $185 diamond ring, and a $65 set of furs, and that he had expected to marry her in September. He also admitted that his affection for his wife had grown cold, that child, but that his affection for her had waned. There are many other incriminating circumstances, but these are the substantial facts upon which the jury found their verdict. And in our judgment they preclude every other reasonable hypothesis than that of the defendant’s guilt. But in addition to this we think the defendant’s own testimony condemns him.

His explanation of his unseemly rela-tions with his fiancee is, that in 1910 he and his wife mutually agreed to a separa-tion, and that they also had an agreement that when the child was 12 years old that he should obtain a divorce; that she reached her twelfth birthday on the 14th day of July, 1913, and that relying on this agreement, which was well understood between him and his wife, and in antici-pation of obtaining the divorce when the child was 12, he courted this woman, and expected to consummate that engagement by a wedding in September. The wife’s lips were sealed, but that letter of August 3d is a more complete refutation of his state-ment than if she had appeared in person and denied his statement from the witness stand. No one can gather from that letter that she anticipated a divorce proceeding, or that she even suspected that the time had come when she was to surrender her place as a wife to another woman. No thought was further from her mind as she penned those words and closed that touching mis-sive, “with oceans of love.”

The defendant complains because the court allowed this letter to be introduced in evidence, and insists that it should have been excluded on the ground that the defendant was not quite sure that he had ever received it. But he identified the hand-writing and admitted that it was penned by his wife. And whether he received it or not it was competent to show the frame of her mind, and to rebut his statement as to the anticipated divorce. And it does rebut it as effectually as though it were a voice from

the dead. Again the defendant states that on the

morning of the 30th he was waked up suddenly, and heard his child cry, “Oh! papa, we are about to burn up!” that he opened the door and saw his child wrapped in flames; and he says she “seemed to fall over, and it occurred to me that my wife had committed suicide or done something awful. I was just dazed or, as the lady said a while ago, I lost my presence of mind. It was the awfullest sight I ever saw, and I never had such a feeling in my life. I saw poor little Gwendoly there in the flames.” And according to his own statement, at that time the flames did not extend over more than one-third or one-half of the room. She had an open space into which to flee. Yet he made no sort of effort to rescue the child; made no outcry for help; and even when later a friend, at the peril of his own life, said, “By God! I am going into that building,” he told him, “No, you can’t go in there.” The flames had not yet done their work. They had not yet concealed the deeds he intended they should cover. It would be but natural that if this father saw his child wrapped in flames that he should lose his presence of mind, but it would be equally as natural that in his desperation he would go to the rescue, regardless of danger or death. But under the evidence the jury was justified in believing that the child’s voice had been hushed and its form stilled before it was enveloped in flames.

* * *We have examined the record, including

the instructions, in this case with the care that its importance deserves, and feel that the defendant was awarded a fair trial, and that the judgment should be affirmed.

November 12, 1941Seventy-Five Years Ago

[Excerpted from Lewis v State, 1941 OK CR 156, 119 P.2d 91.]

The defendant, F. L. Lewis, was charged in the district court of Muskogee county with the crime of forgery in the second degree, was tried, convicted and sentenced to serve a term of three years’ imprison-ment in the State Penitentiary; and he has appealed to this court.

There are many assignments of error presented by the defendant in his brief. Assignment of error No. 10, as will be hereinafter discussed, will have to be sus-tained because of a grave infraction of the rules of procedure which appears to have prejudicially affected the substantial rights of the defendant.

* * *Assignment of error No. 10 is as fol-

lows:“The court erred in visiting the jury

while said jury was in its room considering of its verdict in this case, and in conversing with at least one member of the jury, all of this being done without the knowledge or consent of the defendant or either of defen-dant’s attorneys, as shown by the record in this case.”

Assignment of error No. 11 is as fol-lows:

“The court erred in permitting the jury to separate at the noon hour after the case had been finally submitted to said jury, and

And The Court Said

An Olio of Court Thinking


after said jury had been deliberating and considering of its verdict for some time. Said jury being permitted to separate by the court without the consent of the defen-dant or either of defendant’s attorneys.”

These two assignments were discussed together by counsel for defendant in their brief; and, because the proof in connection with these two assignments was presented at the same time, we shall likewise discuss the two assignments together.

The record discloses the following:“(Thereafter the hour of twelve o’clock

noon, having arrived the jury, is returned into Court in charge of their sworn bailiff, and the following proceedings were had and done, to wit:) The Court: Gentlemen of the Jury, have you agreed upon a ver-dict? A Juror: No, sir, we have not. The Court: Now, don’t tell me how you stand but the numerical ratio. A Juror: Ten to two. The Court: Do you think there is a possibility of agreeing upon a verdict? A Juror: I don’t know, there might be. The Court: Well, I am going to permit you to go and get your lunch. In the meantime don’t permit anybody to talk to you about the case or in your presence or hearing. If any-one approaches you and attempts to talk about the case tell them you are on the jury and you can’t talk to them and if they insist in it get their names and give them to the court and the court will take care of that. The court does not want any irregularity in this trial. So you may go now.

“(Whereupon the jury are permitted to separate and get their lunch, and thereafter retire to their juryroom to consider further of their verdict.)

“(Whereupon court took a recess until one o’clock p.m. at which time court reconvened in regular session, the plaintiff, State of Oklahoma, appearing by its coun-sel as heretofore, and the defendant present in his own proper person and by his attor-ney of record, whereupon the following, proceedings were had, to wit:)

“Mr. Crump: Comes now the defendant and states and shows to the court that after the jury was permitted to separate during the noon hour and after the case had been finally submitted to the jury counsel for the defendant received information to the effect that the judge of this court who presided at all times during the trial of this case went to the jury room at some time before it was discharged for the noon recess and talked to at least some members of the jury, and that this was done without the knowledge or consent of the defendant or either one of his attorneys. We have no information as to what was said by the judge to the jurors, except the judge him-self has stated to me, W. J. Crump, what he did state to the jury, and the defendant therefore asks now that the case be with-drawn from the jury and that the jury be discharged and a mistrial ordered.

“Now, may the record show that you did go to the jury room and talk to some of the jurors in the absence of counsel?

“The Court: The record may show in response to the motion of counsel for the defendant, I may say, that I, O. H. P. Brewer, judge of the district court, who presided at all times during the trial of the case now in question, advanced to the jury room at the noon hour, 12 o’clock and knocked on the door and one man came to the door after the door was opened by the bailiff and I inquired if the jury had reached an agreement, and was informed

that they had not. I told them that the hour of noon had arrived but I would retire to my chambers and leave the matter with them a few minutes and if they could not agree then I suggested they should come down and report to the court and we would recess for the noon hour. About the hour of twelve-ten or-fifteen the jury did report to the courtroom and made their report and they were recessed until the hour of one p.m. The motion of counsel for the defen-dant is heard and denied.”

After the jury had rendered their verdict finding the defendant guilty, the defendant, through his counsel, filed a motion for a new trial, setting up, among other things, these two assignments of error.

The county attorney, acting in accor-dance with the holdings of this court, in Sealy v. State, 59 Okla. Cr. 104, 56 P.2d 903, and other cases, in which we have held where the jury is permitted to sepa-rate after final submission of the case to them, that the defendant is entitled to the presumption that such separation is prej-udicial to him, and the burden is on the state to make a showing that such action did not, in fact, prejudice the defendant; accordingly, the county attorney had each of the jurors sworn and questioned sep-arately concerning their activities during the time they were separated. When the first juror was called as a witness and examined by the county attorney, coun-sel for the defense, after questioning the juror, Breedlove, concerning his actions during the noon hour while the jurors were permitted to separate, further sought to question the juror concerning the conver-

See OLIO, PAGE 14

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Old NewsExcerpts from OCBA News:

July 1975 Part 1Back By Popular Demand

Retyped and Republished By Geary L. Walke

I was very sad when we wrapped up the last of our supply of Old News material in August. Then, Debbie Gorden informed me there was another trove of OCBA newspa-pers in her vault. Our last story ended in December, 1973. The new Old News materi-als begin in July 1975. Sometime in between is when they changed the name from the OCBA News to the OCBA Briefcase.

The Briefcase Editor in July, 1975 was John A. Claro, and his committee included Carolyn G. Hill, George D. Davis, Jr., Kurt F. Ockerhauser, Kenneth R. Webster, Carol Stevens, the Honorable Floyd Martin, Richard L. Bohannon, Irving L. Faught and Anthony F. McGuire.

John H. Halley, Jr. was the OCBA President in 1975.The first article of this collection of old bar news was truly entitled, “Back By

Popular Demand.” Despite the lack of demand, and lack of popularity as well, We Are Baaaackkkk.

“Barfly, noun, a drinker who frequents bars.” From these humble beginnings in 1965 when four erstwhile musicians bonded together to form the legendary musical group fondly referred to as the Barflies. Their brand of music is a hybrid….cross between Slappy White and the Sons of the Pioneers –a nitty gritty Conway Twitty.

Current membership consists of Eddie Haynes on fiddle, D. C. Thomas on banjo, guitar by Pete Peterson and L.L. Patterson on bass fiddle. The group hasn’t performed recently but was quite active in the late 60s. In addition to performing all over the state at various nursing homes, hospitals and children’s homes, the group found an annual home at the Mountain View Folk Festival in Arkansas.

Their special mix of music and humor has been well received everywhere. One recent observer commented that seeing them again was like experiencing the return of winter to Dachau. Combine the wit of a Mark Twain and the sound of Robert Goulet and you come up with the Barflies. Marvel at their latest hit – Placekick Me, Jesus, Through the Goalposts of Life, laugh at their zany antics and funny stories, speculate on why they returned and gag on the food. Whatever you do, be sure not to miss the Barflies.

By Kurt F. Ockerhauser

OCBA President Barbara Swinton was officially sworn-in as the newest member of the Oklahoma Court of Civil Appeals on November 1.

Brad Davenport from Andrews Davis Law Firm honored with Alma Wilson

Award

Brad Davenport was honored with the Alma Wilson Award for his dedication to the lives of Oklahoma children at the Annual Oklahoma Bar Association conference this year. Brad is an Of Counsel attorney with the firm and prac-tices in the firm’s litigation department. His diverse practice includes: Business and Commercial Litigation, Oil and Gas Litigation, Insurance and Legal Malpractice Defense, Receivership and Asset Recovery and Collections. He also has experience assisting clients with the formation of corporations, limited liabil-ity companies, and completing Section 1031 like-kind property exchanges. He serves on the board of directors for Parent Promise, a non-profit center that works to prevent child abuse and neglect. Brad is also the President of the Downtown Exchange Club of Oklahoma City.

Crowe & Dunlevy adds three to OKC and Tulsa offices

Crowe & Dunlevy recently announced the addition of three attorneys to provide enhanced service and experience to its clients. Joshua D. Burns and Gregory

S. Luster are in the firm’s Oklahoma City office, and Shawn M. Dellegar’s office is in Tulsa.

With nearly a decade of experience in complex commercial litigation, Burns is a member of the firm’s Banking & Financial Institutions, Bankruptcy & Creditor’s Rights, Energy, Environment & Natural Resources, Healthcare and Litigation & Trial Practice Groups.

Burns graduated cum laude from the University of Michigan Law School after earning a Bachelor of Arts in psychology from Yale University. He is an active member of the Energy Bar Association and volunteers for the National Immigrant Justice Center.

Dellegar serves in the firm’s Intellectual Property Practice Group. Throughout the last decade, he has advised compa-nies on complex intellectual property matters, including patents, trademarks, copyrights, global intellectual property strategies, portfolio management and more. Before becoming an attorney, he worked for an oil and gas publishing company and a global technology sup-port company.

Dellegar offers clients a unique per-spective, stemming from his scientific research and technology backgrounds. Dellegar graduated with degrees in man-agement information systems and chem-

istry from the University of Tulsa. He also graduated from the University of Tulsa College of Law, where he con-tinues to serve on the alumni board and mentors students. He is an active member of and serves on the board of directors for the Intellectual Property Law Section of the Oklahoma Bar Association.

Luster is a member of the firm’s Corporate & Securities and Energy, Environment & Natural Resources Practice Groups. His practice includes mergers and acquisitions, real estate transactions, aircraft transactions, secu-rities, oil and gas issues, environmental matters and more.

Luster graduated from the University of Oklahoma College of Law with distinction after obtaining a bache-lor’s degree in political science from Oklahoma State University.

TU Law honors Henry Hoss with 2016 Outstanding Senior Alumni

Award

Trial lawyer Henry Hoss was hon-ored with the 2016 Outstanding Senior Alumni Award by The University of Tulsa College of Law Alumni Association at its annual lunch and awards ceremony on November 2. The event was held

at the Sheraton Downtown Oklahoma City Hotel during the Oklahoma Bar Association’s annual meeting.

Since 2006, the award has been pre-sented to alumni who have exemplified strong leadership within the practice of law throughout their careers, demon-strated remarkable professional achieve-ment, personal integrity, and an ongoing commitment to the TU College of Law.

Hoss is a distinguished trial lawyer who has practiced primarily in the areas of construction litigation and commer-cial litigation for more than 30 years. Upon graduation from the TU College of Law in 1985, he joined McAfee & Taft, where he has developed extensive experience representing contractors, architects and owners in construction litigation, arbitration and mediation as well as contract negotiation; manufac-turers in products liability disputes; and buyers and sellers in commercial litiga-tion involving the purchase and sale of aircraft. He also previously served as leader of the firm’s Litigation Group.

Hoss’s achievements have earned him inclusion in The Best Lawyers in America and Oklahoma Super Lawyers. He is a member of the Oklahoma County Bar Association, Oklahoma Bar Association, and American Bar Association.

Bar Observer


Oklahoma County Bar Auxiliary Annual FundraiserBenefiting Children’s Nonprofit Organizations in Oklahoma County

OCBA is offering beautiful live poinsettias and gift certificates from TLC. Decorate your home or office withour LOCALLY-GROWN, HAND-SELECTED PLANTS. Sleeved for protection, with an attractive foil pot cover

and a card noting that the proceeds benefit Oklahoma County nonprofits serving children.

Order 10 or more Large Poinsettias and receive free delivery in downtown OKC! Delivery applies to orders of large Poinsettias only

PICK UP: THURSDAY, DECEMBER 1, 2016 from 10:00 am to 6:00 pm atThompson School Book Depository39 NE 24th Street, Oklahoma City, OK

8” pots, Red Poinsettias only $26.00 each Total Quantity ________ Subtotal: $ _________

6” pots, 3 varieties $16.00 each

_____ Red ____ White ____ Pink Total Quantity ________ Subtotal: $ _________

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Name _____________________________________________________

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Phone __________________ Email _____________________________

Order by TUESDAY, NOVEMBER 22, 2016 5:00pmWANT TO PLACE AN ORDER? Email your order form to: [email protected] and mail your check to

OCBA, c/o Ellen Morgan, 6800 N. Country Club Dr., OKC, OK 73116 (405) 842-4901

QUESTIONS? Contact Tsinena Thompson at [email protected] or (405) 232-4453

Annual Wreath of Hope

CeremonyThe YWCA of Oklahoma

City, the Oklahoma Office of the Attorney General, and the Oklahoma Department of Human Services held their Annual Wreath of Hope Ceremony on October 27 on the South Lawn of the State Capitol. Oklahoma is 4th in the nation for the number of women killed by men during domestic violence incidents. This ceremony is held each year in honor of the survivors overcom-ing abuse, the victims who need a voice, and the service providers who help them. Over 400 people were in attendance at this year’s ceremony.

Jan Peery, CEO, YWCA of Oklahoma City, greets the crowd at this year’s Wreath of Hope Ceremony .


Marcy Price, President of the Oklahoma County Bar Auxiliary, receives the annual donation from the Oklahoma County Bar Association from President Barbara Swinton.

Protective Effect...Even Among Young Women...of Exercise

By Warren E. Jones

By now you all must surely know about the protective effect of exercise against Coronary Heart Disease....among middle age and older men and women. My arti-cles and the lay press have hit that topic with great frequency.

Do you suppose the same effect would occur among young women, average age of 36....long before clinical symptoms of heart disease typically manifest? The majority of studies have been conducted in middle-aged and older populations because cardiovascular disease morbidity and mortality rates are low in women younger than 55 years. Although coronary heart disease morbidity and mortality rates are low in younger women, coro-nary heart disease mortality rate among United States women age 25 to 54 has shown minimal improvement in the past two decades, in contrast to rates in older adults that have consistently declined. A potential explanation may be the increase in the prevalence of diabetes mellitus and obesity among younger women.

The newest issue of Circulation, as I type, addresses the issue, and a few others. That is, are the odds of CHD lessened....20 years later...among women aerobically exercising at, on average, age 36? And if so, does the type of aerobic exercise matter? And does the intensity? And does the frequency? And does the volume? And are there benefits at higher BMI? That is, are there benefits even at high BMI’s?

The short answers are, yes, aerobically exercising at a young age reduces the risk

of CHD twenty years later. No, the type of aerobic exercise does not matter. No, the intensity does not matter (although, again, as so often appears in the literature, more intensity is more protective, but mere moderate intensity and low intensity pro-vide some protection). No, the frequency does not matter....as long as enough vol-ume is achieved.

And yes, protective effects of the aer-obic exercise are available among over-weight and even the obese. As you might expect, though, the protective effect of the aerobic exercise is less than among normal weight women, probably as a product of the inflammatory nature of excess adiposity. The current levels of overweight in young and middle-aged United States women (58% for women 20 to 39, and 72% for women 40 to 59)

can be reduced with moderate aerobic exercise.

The researchers found little to no pro-tective effect....against later in life CHD....among high school age and college age young women who, at those ages, were aerobically active. That is because exer-cise at those ages, while beneficial for many reasons, does not provide the acute protective effects of aerobic exercise on CHD. Exercise has acute effects on car-diovascular disease risk factors such as blood lipids, blood pressure, glucose con-trol, and coronary artery calcium. But exercise at young ages is predictive of exercise in adulthood, so exercise among youth is recommended.

So, what to do? If you are a youngish female, whether trim or not, get mov-ing. The protective effect of the exer-

cise against CHD, and often CHD death before age 50, is yours with very little effort, very infrequently, and doing the exercise of your choice. Walking as slow-ly as just more than two miles per hour offered some protection, but the greatest protection was among the very brisk walkers, those walking faster than four miles per hour. The researchers called that speed “very brisk/striding.”

Of course, women a little overweight will want to burn the cals, but they should know that even if they don’t shed the pounds, they will still reap benefits. And you trim ladies out there, you too will receive protection. Actually at rates even better than the overweight.

Many people, especially those who are really inactive, are completely intimi-dated about going to a gym or trying to run a marathon or something like that. You don’t have to go to the gym, and you don’t have to be doing anything that is strenuous. Just do the stuff that feels good, and get your heart rate up a little bit. More than a little bit is better, but a little bit is fine. It is a very good place to start.

Warren E. Jones, J.D., HFS, CSCS, CEQ, is an American College of Sports Medicine 9ACSM) Health Fitness Specialist, a National Strength and Conditioning Association Certified Strength and Conditioning Specialist and a holder of an ACSM Certificate of Enhanced Qualification. His clients range from competitive athletes to the morbidly obese. He can be reached at [email protected] or at 405-812-7612

mailto:[email protected]



The Young Lawyers Division created a special Reading Room at Adams Elementary as their main community

service project for 2016 . They took a blank canvas and created a place where the students can be mentored, read with their Lawyers for Learning partners and feel comfortable . Those of you who are Thunder fans can see that they used the various countries represented on the Thunder roster as their main theme .

YLD volunteers included: (sitting) Hayley Potts & Merideth Herald; (standing) Beth Price, Justin Meek, Lisa Black & Jacob Jean

Lisa Black, Adams Elementary Principal Zacharias & Justin Meek


www.avansic.com | 918 856 5337

PANEL DISCUSSION FOR 4 HOURS OF CREDIT:

Come & go for up to 4 hours FREE CLERSVP required to [email protected]

8 t h a n n u a l e n d o f y e a r c l e

Tulsa: Tuesday, December 6th, 8:30 am - 12:30 pm

O K C : W e d n e s d a y , D e c e m b e r 7 t h , 8 : 3 0 a m - 1 2 : 3 0 p m

E-Discovery Cost Strategy for Small, Medium and Large Cases

How to “Like” Social Media in E-Discovery, Your Case and Your Practice

Securing Your Digital Information

Ethics of ESI (1 Ethics Credit)

Panelists will include speakers from Oklahoma and out of statewith experience in IT, human resources, and the legal profession


The National Academy of Distinguished Neutrals is an invitation-only professional association of over 900 litigator-rated Mediators & Arbitrators throughout the US and a proud partner to both the DRI & AAJ. For info, visit www.NADN.org/about

OKLAHOMA CHAPTER ANNOUNCEMENT

Robert C. MargoOklahoma City

Ted SherwoodTulsa

Barry R. DavisOklahoma City

Jake Jones, IIIOklahoma City

R. Lyle ClemensOklahoma City

Daniel E. HolemanTulsa

Joseph H. PaulkTulsa

Daniel BoudreauTulsa

Ed CunninghamTulsa

Joseph A. GladdTulsa

Larry D. OttawayTulsa

Check Available Dates Calendars Online for the following Charter Members, recognized for

Excellence in the field of Alternative Dispute ResolutionCheck Available Dates Calendars Online for the following Charter Members, recognized for

Excellence in the field of Alternative Dispute Resolution


Stump RoscoeBy Roscoe X. Pound

Dear Roscoe: As an avid reader of your column, I seem to recall you writing years ago about the “Ghostbuster’s Rule” in this column. My question is, have ghosts entered the courtroom on any other occasions? D.P., Oklahoma City.

Dear D.P.: OK, ‘tis the season after all. At least, ‘tis as I write this column. To remind those gentle readers who joined the August OCBA since that piece ran, we previously discussed herein (as many of you still say, although I fervently wish you wouldn’t) the question relates to Stambovsky v. Ackley, 169 A.D.2d 254 (N.Y. App. Div. 1991). Ms. Ackley who, along with her family, experienced ghost-ly doings in her home, sold the resi-dence to Mr. Stambovsky. Although she had reported this to friends, neighbors, Readers’ Digest, and the local papers on numerous occasions, she allegedly failed to apprise Mr. Stambosky at the time of sale. Stambosky sued to rescind the con-tract, claiming that withholding informa-tion concerning the specters constituted a material misrepresentation. The trial court dismissed, taking an understandably skep-tical view of the purported poltergeists. The appellate court, by a vote of 3-2, reversed. According to the majority, the publicity to the so-called haunting gener-ated by Helen herself estopped her from denying the presence of ghosts, in effect declaring the house haunted as a matter of law. Helen died in Florida in 2003 and, given the absence of any further spooky shenanigans, has perhaps returned to ride herd on any unruly unbidden guests.

Apparently ghosts have a long history in court in the English speaking world. Kentucky bankruptcy judge Merritt S, Deitz tells us:

In the 17th century at the Bodmin Assizes, in Cornwall, England, a deceased judge by the name of Jan Tregeagle appeared in court as a witness. The case, heard in an early forerunner of the modern day bankruptcy court, involved the proof of a debt. The debtor in the case stub-bornly refused to admit, even under the sternest examination, that he had ever had a contract with the creditor or that he had borrowed any money from the man. The only witness to the transaction was the late Jan Tregeagle. At one point during the trial the debtor stated: “If Tregeagle ever saw the making of the debt, I wish to God he would come and declare it!” Tregeagle’s ghost immediately answered this informal “oral sub-poena” and appeared in court. He testified that the debtor did owe the sum, and a judgment was entered for the creditor.

In the far more famous case of Scratch v. Stone, 1 S.V. Benet 1 (Spec.Emer.Ct.N.H.1840?) (J. Hathorne) involving the valid-

ity of a chattle mortgage on an intangible (the soul of the debt-or), the ghosts served as judge and jury. After a preliminary rul-ing on the ability of the plaintiff, an alleged foreign prince, to sue in state court the trial proceeded to the merits of the case. The eminent senator, statesman and orator Daniel Webster argued the case for the defense and won on the grounds that the initial con-tract of debt was unconscionable.

Recovering English majors/teachers in the OCBA no doubt recognize the latter case as Stephen Vincent Benet’s wonderful short story The Devil and Daniel Webster. This tale served as precedent in United States ex rel. Mayo v. Satan and His Staff, 54 F.R.D. 282 (W.D.Pa. 1971).

Personally, my favorite appearance of “ghosts” in American law comes from Rd-Dr Corporation v. Smith, 89 F.Supp. 596 (N.D. Ga., 1950). At issue, an official Censor for the City of Atlanta barred the showing of a film called “Lost Boundaries” not because that picture is in any particu-lar, “lewd, obscene, licentious or profane”, but because its exhibition “will adversely affect the peace, morals and good order of said City. The trial court, lamenting that the First Amendment had not yet extended to movies, nonetheless declared:

Furthermore 35 years of progress and development have resulted in the re-admeasurement against constitutional guaranties of many regulatory statutes, particularly those which impose any sort of “gag rule” and their consequent interment in the attic which contains the ghosts of those, who arrayed in the robe of Bigotry, armed with the spear of Intolerance and mounted on the steed of Hatred have through all the ages sought to patrol the highways of the mind

We have still not fully exorcised these ghosts, and that’s what I find scary.

***Joe Innocente and I reported to the

52nd Precinct House in the Bronx. A uniformed officer led us to a muster room and left us in the care of an unsmil-ing sergeant. He checked Joe’s police credentials and my ID. Joe got to keep his sidearm. He demanded I hand over mine. I removed my holstered Mak 9, my sidearm du jour, slid it across the counter. He slid a receipt back to me as though it were an air hockey puck. I probably should have told him about the XD-S in my ankle holster but didn’t want to complicate his job. He then handed us each a Kevlar vest and a windbreaker with NYPD in bold golds across the back.

“Do we get to keep these?” I asked. He shot me a look which could have

dropped a rogue elephant in mid-charge. Luckily I had thicker skin. He led us to an elevator, pushed the up button, and said “Two” to no one in particular. He then flashed us a smile and walked off without another word. The smile didn’t reach his eyes.

“Behave,” Joe said.“Remember who’s driving,” I replied.A mountainous, helmeted fellow in

police-military chic met us on the sec-ond floor. He politely greeted us and led us to an office. The old gang from our last meeting had gotten back together. Each wore a vest and windbreaker like mine. I thought it unfair however that they also had their weapons.

“OK,” an NYPD captain said, “Mr. Pound, you’ll be glad to hear that Ismail came through for us. We have contact.”

Given the bad blood between the broth-ers, Ismail never came into The Bronx unnoticed. He stepped into Enver’s ter-ritory, and word got out. He could expect a call from his brother – invariably on a burner phone – asking the purpose and duration of his planned stay.

“Enver’s supposedly checking on an ailing uncle for his dad,” the NYPD

captain said. “He’s already bought some soup and pastry for the old guy, visited a respectable amount of time and left.”

“And so….?” Asked the Interpol gal.“So we have a hit on Enver’s location

and have it sealed. If we don’t get down there soon we may miss all the fun.”

As expected, Enver called Ismail, wisely with a burner phone. Police and FBI agents, in unmarked cars, patrolled the neighborhood with a StingRay, a false cell phone tower that can force phones in a given area to connect to it. Once connected, the stingray hones in on the target’s location. As we piled into cars and vans, police tracked the cell phone, thanks to Ismail’s cooperation to an apartment house on Jerome Avenue. From there officers used a hand held device called a KingFish to pinpoint the apartment.

We arrived shortly before the assault. After a brief huddle, team leaders deployed and moved in on the building from three sides. A helicopter appeared overhead shortly thereafter. Surprisingly, we heard no shots and no booby traps det-onated. As Joe and I discussed this, a hel-meted officer from the NYPD Emergency Services Unit exited the building and came towards us at a trot.

“One of you guys named Pound?” he asked.

“That’s me,” I replied.“A lieutenant told me to give you this.”I unfolded the note. It read:

Dear Mr. Pound:

Kudos to you on your success in frustrating my local plans. Fortunately, I am able to occupy myself elsewhere, and this is as good a time as any to do so.

EK

BTW: The officer whose uni-form I borrowed can be found in Apartment 203.


Quote of the MONTHThe best argument against democracy is a five minute conversation with the average voter.

— Winston Churchill, statesman (1874-1965)

sation which was had with the presiding judge, when the judge came to the jury room and spoke to the jury, in the absence of the defendant and his counsel, to which question the court sustained an objection by the county attorney that such question was improper cross-examination.

The record then discloses that the fol-lowing occurred:

“Mr. Crump: Well, I will offer to make him my own witness on that proposition, if your Honor thinks it is improper cross-ex-amination. You sustain the objection? The Court: Yes. Mr. Crump: We except. I now ask to make the witness our own wit-ness and ask him what happened when Judge Brewer went to the jury room. Mr. Garrett: To which the state excepts for the reason that-objects for the reason that the matters he is attempting to go into with this witness are set out in detail and in his argument on his motion for new trial and the jury was not called in for that particular matter, only as to whether the rights of the defendant were prejudiced by being allowed to separate during the noon hour. The Court: I think so, Judge Crump. I will have to sustain it. Mr. Crump: Well, give us an exception, please. Now, if your Honor please, I don’t want to be discour-teous or anything. May the record show from each juror -each witness who was a member of the jury, that the record made here is what occurred when your Honor went to the jury room, is made as to such witness? The Court: Yes.”

As to assignment No. 11, each of the jurors testified at length that no one talked to them about the case during the recess when they were allowed to separate, and that they did not hear the case discussed by any one, and that nothing happened which in any way influenced them in arriving at a verdict.

We think such a showing was sufficient on the part of the state to overcome the presumption that the defendant was preju-diced by reason of such action.

As to assignment No. 10, the Attorney General confesses in his brief that the court erred in going to the jury room, in the absence of the defendant and his counsel, and discussing the case with the jury, and further erred in refusing to allow defendant’s counsel to question the jurors as to what the judge said to them when he came to the jury room; but it is contended that, such action, when considered together with the record in this case, shows that the defendant was not prejudiced by reason of an thing that was said or done, and that said error, accordingly, is harmless.

* * *

Oklahoma is not as strict as many states in regard to this matter; but we are com-mitted to the doctrine that, when the trial judge communicates with the jury, outside of the courtroom, in the absence of the defendant or his counsel, such conduct is presumed to be prejudicial to the defen-dant, and the burden is upon the state to show that the defendant was not prejudiced by reason of such misconduct. Here, we find the state not even attempting to uphold the burden in connection with this assign-ment. They did subpoena the jurors for the purpose of testifying in connection with the question as to whether the defendant was prejudiced by reason of the separa-tion of the jury after the final submission of the case. But when defendant, through his counsel, seeks to question the jurors concerning the conversation had with the trial judge, the county attorney objected, and the trial court very promptly sustained his objection.

Since the conduct of the trial judge was being questioned, he should have been anxious to have a full, free, and frank statement from each of the jurors as to what occurred when he came to the jury room and communicated with them, so as to conclusively show that the defendant could not have been prejudiced.

The trial judge is an honorable mem-ber of the judiciary; and with our past

knowledge of his fairness to all parties in the trial of criminal cases, we are quite

certain that the court did not intend to say or to do anything which might prejudice the defendant. As was said in the case of Watson v. State: “ * * * the wisest and

best judge, when acting on the spur of the moment during a trial, sometimes makes

a mistake.”We think the language used by the court

in the case of State v. Wroth, 15 Wash. 621, 47 P. 106, 107, is applicable to the facts in the instant case. It is there stated:

“It is contended by the appel-lant’s counsel that this constitut-ed such misconduct on the part of the trial judge as requires a reversal, and we think the con-tention must be sustained. In the discharge of his official duty, the place for the judge is on the bench. As to him, the law has closed the portals of the jury room, and he may not enter. The appellant was not obliged to fol-low the judge to the jury room in order to protect his legal rights, or to see that the jury was not influenced by the presence of the judge; and the state cannot be permitted to show what occurred

between the judge and the jury at a place where the judge had no right to be, and in regard to which no official record could be made.

“But learned counsel for the state insist that the judge said nothing to the jury and hence his conduct could not have been prejudicial to the defendant. But the law does not subject parties litigant to the disadvantage of being required to accept the statement of even the judge as to what occurs between himself and the jury at a place where the judge has no right to be, and where litigants cannot be required to attend. It is the law-ful right of a party to have his cause tried in open court, with opportunity to be present and heard in respect to everything transacted. It is his right to be present and attended by counsel whenever it is found necessary or desirable for the court to com-municate with the jury, and he is not required to depend upon the memory or sense of fairness of the judge as to what occurs between the judge and jury at any time or place when he has no lawful right to be present. His right in this respect goes to the very substance of trial by jury. Aside from the rights of the parties, public policy will not sanction any departure from the rule which requires that all such communications shall be public, and in the presence of the parties or their counsel.”

We cannot agree that this error is harm-less error.

November 2, 1966Fifty Years Ago

[Excerpted from McQueen v. State, 1966 OK CR 150, 421 P.2d 284.]

James McQueen, hereinafter referred to as defendant, was charged by information in the District Court of Oklahoma County with the crime of Robbery with Firearms. He was tried by a jury, found guilty, and sentenced to life imprisonment. From that judgment and sentence he has perfected his timely appeal to this Court alleging three assignments of error. We will herein discuss only one — that he was tried in “chains and shackles” in violation of the statute prohibiting same.

The incident of which defendant com-plains occurred during the voir dire exam-

ination of the jury panel. Before any proceedings were started, the trial judge and defense counsel tried to persuade defendant to change from his jail clothes to street clothes. He would not answer, nor would he change clothes. The selection of the jury began, and defendant jumped from his chair, unzipped his pants, and tried to remove his clothes. He was throw-ing things, and observers described him as “frothing at the mouth”. He fell down on the floor, under the counsel table, and several Deputy Sheriffs had to subdue him, and placed handcuffs on him to quiet him. When he had calmed down, they placed him in his chair on the opposite side of the counsel table from the jury, with the handcuffs still on; two deputies in front of him, and two in back. The impanelment of the jury continued, and the trial judge instructed that a handkerchief be placed over the handcuffs. This was done, and the defendant sat through the remainder of the impanelment of the jury, quietly, but with the handcuffs covered as above and four deputy sheriffs surrounding him.

After the impanelment of the jury, the trial judge recessed until the follow-ing morning. The actual presentation of the case started the next morning, and defendant was calm, and remained quiet throughout the remainder of the trial, with-out restraint. It was brought out later in the trial, in the testimony of Dr. J.R. Huggins, jail physician, that he had been giving this defendant tranquilizers daily thru his imprisonment in the county jail; and that, when told of the seizure he had in the courtroom, he had prescribed a stronger drug to prevent any further re-occurrence.

Title 22 Okl.St.Ann. § 15, states: “No person can be compelled in a criminal action to be a witness against himself; nor can a person charged with a public offense be subjected before conviction to any more restraint than is necessary for his detention to answer the charge, and, in no event, shall he be tried before a jury while in chains and shackles.”

* * *This statute is to preserve the inherent

right of a man charged with a crime to appear in court with free use of his fac-ulties, both mental and physical, and to preserve his presumption of innocence.

This Court stated in French v. State, Okl.Cr., 377 P.2d 501: “A defendant shall have the unrestrained use of his limbs and shall not suffer any physical bond or burden that may lead the jury to draw a foregone con-clusion that defendant must be a dangerous and violent person and thus a prejudice created in the mind of the jury against defendant that would deny him a fair and

OLIO from PAGE 5


impartial trial.”In the instant case, the trial court had

before it the evidence that there was a medical history of blackouts, dizziness, etc., even though defendant had been com-mitted to Central State Hospital for obser-vation and was declared sane under the criminal laws existing today.

Whether this was a genuine epileptic seizure, or an act by defendant to gain a mis-trial, this Court has no way of deter-mining, other than the testimony of a phy-sician who was present in the courtroom and described it as a Jacksonian type epi-leptic seizure. And, the further testimony of Dr. Huggins, that from the description of defendant’s actions given him by this physician; he fully agreed to the type sei-zure and prescribed the drug for defendant to ward off further re-occurrence.

This question is not for us to determine at this time. The trial court should have satisfied the record at the time as to what actually occurred. The jury could have been excused, and a physician called to determine if, in fact, the defendant suffered an epileptic seizure. For if he did, was he then in a state to help his attorney with his defense, and continue the trial? The record reflects that defendant sat quietly, as in a daze, for the remainder of the impanelment of the jury; and sat quietly throughout the trial, after the administration of the drug.

The jury should not have been recalled until it was determined that defendant was, at that time, able to continue to trial with-out the need for handcuffs.

This Court is not attempting to say the defendant should not have been restrained when this incident occurred — only that the impanelment of the jury should not have continued with the defendant hand-cuffed.

The trial judge was meticulous in explaining into the record that he believed the defendant was not prejudiced by the handcuffs, in that the jury could not see them. However, there is nothing in the record to substantiate his view from any of the jurors. The trial judge had no control over this. The statute is explicit stating “In no event”. It does not say that it is permis-sible if the jury cannot see the handcuffs, or if they are covered with a handkerchief. It says “in no event”.

This Court will not make an exception to the statute. The manacling of a person when upon trial for a criminal offense, whether bringing him into court (as in the French case, supra), while in the presence of the court or jury, or at any stage of the trial, cannot be too strongly condemned.

We are, therefore, of the opinion that this was reversible error.

November 19, 1991Twenty-Five Years Ago

[Excerpted from O’Neal By and Through O’Neal v. Joy Dependent School Dist.,

No. 1, Murray County, 1991 OK 118, 820 P.2d 1334.]

On October 29, 1984, Pepper O’Neal, then twelve years old, was taken with some of her classmates on a school-sponsored activity to Wynnewood, Oklahoma. The children were transported on a bus belong-ing to the Joy Department School District (district) and were under the supervision of a teacher employed by the district. While attempting to walk across State Highway 29, Pepper O’Neal was struck and injured by a truck driven by Ronald Teves.

Pepper O’Neal, by and through her

father as next friend, filed a lawsuit against the district alleging negligence for failure to properly supervise the child. Appellants did not name Teves as a party defen-dant. The district defended on the the-ories: 1) that the chief cause of Pepper O’Neal’s injuries was her own contribu-tory negligence, and 2) that the accident was unavoidable and 3) that the injury was caused by the negligence of Teves.

To develop this last theory at trial, the district called Teves as a witness during presentation of its case-in-chief. During re-direct examination the following exchange took place:

BY MS. LINDA A. ALEX-ANDER, ATTORNEY FOR DISTRICT

Q. Sir, you were going too fast that day, weren’t you?

BY MR. McCOY: Objection, Your Honor. This is definitely outside the scope of cross-ex-amination. I asked him nothing about speed. It’s outside the scope.

BY THE COURT: Overruled.

Q. (By Ms. Alexander) You were going too fast that day, weren’t you?

A. (By the Witness) No.

Q. Sir, isn’t that what you were convicted of, sir?

BY MR. McCOY: Objec-tion, Your Honor. It’s irrelevant, immaterial to the issues in this case. Objection.

BY MS. ALEXANDER: Your Honor, I think it’s absolutely relevant in this case. We have, and I will refrain from making a speech from the podium, Your Honor.

BY THE COURT: Are you talking about a plea of guilt, or trial, or what?

BY MS. ALEXANDER: Your Honor, I’m talking about a con-viction, Your Honor.

BY THE COURT: All right, overruled. You may proceed.

Q. (By Ms. Alexander) Weren’t you, sir?

A. (By the Witness) Yeah, I was.

BY MS. ALEXANDER: Nothing further, Your Honor.

The cause was thereafter submitted to the jury who found unanimously in favor of the defendant district.

The above-quoted examination of the witness, Teves, and the trial court’s ruling on appellants’ objection constitute the sole issue to be decided on appeal.

The issue before us is this: May evi-dence be admitted over timely objection, of the conviction of a non-party witness for a traffic offense which arose from the same set of facts which underlie the civil action in which the witness has been called?

The rule in a majority of jurisdictions . . . is that evidence of such a criminal con-viction cannot be admitted over a timely objection.

The line of authority which supports exclusion of evidence of criminal convic-tions from civil actions arising from the same facts is long and venerable, both in Oklahoma and in other jurisdictions. The well-settled reasoning for such exclusion was stated in the case of Laughlin v. Lamar, where this Court said: “The rule (against allowing evidence of a criminal conviction) is supported by great weight of authority based on various reasons, such a dissimilarity of the object of the actions, issues, procedure and parties to the actions.”

One illustrative dissimilarity between criminal and civil proceedings is the doc-trine of contributory negligence. While the contributory acts of a victim are usually immaterial to the issue of criminal guilt, the contributory negligence of an injured party in a civil action is vital to the ulti-mate issue of a defendant’s liability.

While there are well-recognized excep-tions to the above-cited rule, the facts of record in the case before us make those exceptions inapplicable. Absent some exception to the settled rule, evidence of a prior conviction for a minor offense may not be admitted into evidence in a subse-quent civil action arising from the same facts and circumstances in the face of a timely objection.

The district argues that a reason does in fact exist here to not follow the general rule because here the person convicted of the offense was a witness under examina-tion and was not a party to the proceed-ings. Since this precise situation has not been previously presented to this Court the issue to be decided is one of first impres-sion in Oklahoma.

Cases which have addressed the issue of admissibility of evidence of crimi-nal conviction of a non-party are much less numerous than those involving a party. In Oklahoma, the case of Goodwin v. Continental Casualty Co. concerned whether evidence that a named beneficiary in an insurance policy had been convicted of causing the death of the insured could be admitted in an action on the policy. There the conviction was held inadmissible, not-withstanding the statute which prevents a homicidal beneficiary from receiving the proceeds of his victim’s policy.

Similarly, the Supreme Court of

Connecticut held it was not error to exclude evidence that a deceased testator had been convicted of drunken driving, where that evidence was offered in a will contest in an effort to prove testator’s succeptability to undue influence.8

In each of these cases the appellate courts found the general rule should apply to evidence of convictions of non-parties with the same force and effect as it had been applied to parties. The courts’ rea-soning was the same as that traditionally applied by courts considering evidence of a party’s conviction. Each court held that in the absence of some exception, the rule should be applied.

In an effort to provide such an exception in the instant case, the district points out that the evidence of Teves’ conviction was elicited only after he had denied “going too fast” during re-direct examination. Evidence of the conviction in this situa-tion, it is suggested, was used solely to impeach the witness’ adverse testimony.

While other courts have spoken favor-ably of using evidence of conviction for impeachment purposes, we do not believe the circumstances here justify abandoning the general rules against admissibility. In the first place, the phrasing of the ques-tion, “you were going too fast that day, weren’t you?” is somewhat vague and the answer is not dependent on whether the witness was found guilty of the offense of speeding. “Too fast” has many meanings in many contexts and the witness’ nega-tive reply could, in the context of a civil trial, be an expression of his opinion as to whether he was driving at a speed he considered not to be negligent under all the circumstances. In this instance the witness had not denied being convicted so the use of the fact of the conviction was not proper as impeachment.

Furthermore, the rule against admitting evidence of a conviction does not fore-close a party from impeaching a witness’ testimony by other means. In this case the district would have been free to offer on rebuttal any or all of the same evidence which had been presented at the criminal trial in order to persuade the jury here that Teves had, indeed, been going “too fast”. No irreparable damage to the district’s rights would have been caused by exclud-ing Teves’ conviction.

No statutory or factually compelling reason has been shown which persuades us that evidence of the witness Teves’ convic-tion should not have been excluded.


By Bill GordenThe exTra

A. B. Yehoshua Houghton Mifflin Harcourt 2016, Hardcover, 256 pages,

$24.00, Kindle $11.99.

This book was reviewed by the New York Times, and the words slack, engag-ing, and frustrating were all used. Yet, on Amazon it has a four and a half star rat-ing. How is this?

A work of fiction is embedded in the culture of its author, politically, philosophically, financially, and other ways. It is the same embedding as to its reader. Different nations, different theological backgrounds, different genders all make a dif-ference. Here we have a book about a seemingly secular Jewish woman, clearly a feminist, but with some hesitation there, written by a man, older at that. The heroine is an artist, a harpist. The writer is likewise an artist. Heroine and author are both of Israeli descent, the harpist living, though, in Holland, with no real interest in going back home, (an ex –husband is part of the reason).

The harpist is called home when her father dies, and agrees to stick around until her mother decides whether she can

make it in an assisted living atmosphere. The heroine is prevailed upon to do so because the apartment must be inhabited by someone until her mother decides, under Israeli law.

The divorce happened due to the her-oine’s decision not to have children. Her family is still upset about this decision, brother, mother, Ex. There are heavy reli-gious and nationalist overtones.

Think: substitute Holland for New York, and Alabama for Israel, and Fundamentalist Christianity for Orthodox Judaism, one could have written approximate-ly the same story. However, it does not work that way. There are so many nuances to each philosophy and lifestyle, politics and gender, that the terms of the N.Y Times Review can still be apt. This is a bit of a strug-gle to read, even if one

is well versed in the Israeli outlook. One also gets the impression that the author, a long time best seller, may have struggled himself. The end is unsatisfying, though particularly here being of one gender or the other may be decisive.

Choose this with caution. It is well done, but the reader is bringing his/her own culture also.

NOVEMBER 24 & 25, 2016Holidays – Bar Office Closed

DECEMBER 1, 2016OCBA Holiday Reception

5-7 p.m., Robinson Renaissance Food Court

DECEMBER 6, 2016CLE Breakfast Seminar – Mediation - Steve Barghols

7:30 a.m., Bar OfficeCLE Luncheon Seminar, Federal Decorum

U.S. Judges Timothy DeGiusti & Janice Loyd12 Noon, Bar OfficeCLE Evening Seminar,

SS Disability Claims – Ryan Dexter5:30 p.m., Bar Office

DECEMBER 13, 2016CLE Breakfast Seminar,

Step Parent Adoptions – David Howell7:30 a.m., Bar Office

CLE Luncheon Seminar, TBD – Judges Michele McElwee & Kevin McCray

12 Noon Bar OfficeCLE Evening Seminar, Probate Procedure –

Terrell Monks & Michael Thom5:30 p.m., Bar Office

DECEMBER 20, 2016CLE Breakfast Seminar,

“The Non-Refundable Retainer; and Oxymoron,”Kieran Maye

7:30 a.m., Bar OfficeCLE Luncheon Seminar, Crimes & Immigration – Steve Langer,

12 Noon, Bar OfficeCLE Evening Seminar, “Flashing Lights: Celebrities & the

Art of the Deposition,” Scott Jones5:30 p.m., Bar Office

JANUARY 20, 20172017 Chili Cook-Off & Silent Auction

6 – 9 p.m., Anthem Brewery

FEBRUARY 15, 2017OCBA Night at the Thunder, OKC Thunder v. NY Knicks

7 p.m., Chesapeake Energy Arena

FEBRUARY 24-28, 2017Annual Ski Trip SeminarSanta Fe, New Mexico

MAY 1, 2017Law Day Luncheon

12 Noon, Skirvin Hotel

Book Notes


NO BULLBy Michael W. Brewer

The original intent of this column has been focused on making legal practi-

tioners aware of how changes in technology affect our

profession and eth-ical responsi-

bilities. I take a quick depar-ture from that goal, but not really, to discuss a new TV series on CBS entitled “Bull”1 I am a fan of actor Michael Weatherly previously on “N.C.I.S.” and a fan of using courtroom science in appropri-ate litigation situations. However, I am not a fan of Bull.

My take away from the first episode was the mischaracterization and minimalizing of the law-yer’s role with the client and the clear trampling upon of our profession’s standing by the writers. The thought that your trial consultant’s input is more important to your client’s case than an attorney’s professional advice is a theme devel-oped throughout each storyline thus far, and is typically overtly demonstrated by the character’s dialogue. The character, Dr. Jason Bull, appar-ently has the ability to replace or subjugate any lawyer his client has retained either previously or in the future. Additionally, attorney work product privilege and ethical consideration seem to have no bearing as Dr. Jason Bull can change sides in a case that he has been retained in after he decides which party is worthy of his efforts.

Next up on my criticism hit list is the entire premise of the show is off-putting. Apparently U.S. citizens who have been taught and told that one of the fundamental hallmarks of the American way that makes our country different is our civil justice system, have been duped. According to Bull’s storylines, we as citizens serving on juries, are nothing but puppets to be manipulated by Dr. Bull and his minions. Regardless of the entertainment value, the show reminds viewers every week that when you are in a lawsuit, justice doesn’t matter, your lawyer doesn’t matter and jurors are to be manipulated such that justice prevails only to the manipula-

1. www.cbs.com/shows/bull

tors. Great thoughts for the non-lawyering public to hold about lawyers and the civil justice sys-tem, right?

The entertainment value is average to above average primarily because of the use of technolo-gy to measure juror and shadow juror responses, but I cannot get beyond my lawyer eyeglasses on this show’s inherent flaws. I am not a fan of the

mes- sages that are being sold to the viewing public by this new series.

Moreover, in a recent episode set in a fictitious Texas venue where stealing your opponents notes, strategy and playing every local good old boy trick in the book including getting the other side drunk before closing statements is just playing by the rules of the game. It is also ok to manipulate the courthouse elevators with jurors in them so as to demonstrate the points of your closing statement and the county wide weather warning system so that jurors will be forced to go in a basement where they can overhear rehearsed statements otherwise not admissible in court.

Sure, I am a believer in knowing your venue, effective voir dire, mock trials, focus groups, shadow jurors and creating juror profiles in appropriate cases. Who hasn’t been hometowned at some point in life? I even retain a high quality professional juror and trial consultant when case circumstances and a client’s budget will allow. But this show takes the good part of that technol-

ogy, such as having data feedback that shows a juror’s bias to your position on an issue with red, yellow and green lights on multiple com-puter monitors and destroys it with a negative message that potentially impacts the public percep-tion of our profession

and the civil justice system. Do

jurors now expect she-nanigans and manipulation

distrusting even the truest of motives? For that reason, I call bull on Bull.

Quickly back on point of our Open & Obvious intended

purpose, note that the Oklahoma Rules of Professional Conduct were amended by SCBD 3490 effective immediately that, among other things, in the comment section to Rule 1.1 on Lawyer Competence at note 6 the language concerning maintaining competence includes the terms “including the benefits and risks associated with relevant technology.” So there you have it, get yourself competent.

Back to last month’s article on artificial intelligence, I was thereafter greeted in my inbox by several items I refer you to including “How AI Will Change the Practice of Law”2, “Robots in Law: How Artificial Intelligence is Transforming Legal Services”3 and “AI Predicts Outcome of Human Rights Cases”. Researchers claim an artificial intelligence computer system has correctly predicted the outcomes of hundreds of cases heard at the European Court of Human Rights to an accura-cy of 79 percent.4 Have a Happy Thanksgiving!

Michael W. Brewer is an attorney, founder, and partner of Hiltgen & Brewer, PC in Oklahoma City, Oklahoma. To contact Mike, email [email protected], call (405) 605-9000 or tweet him at @attymikeb. For more information, please visit www.hbokc.law.

2. ABA Law Technology Today, Nicole Black, November 1, 2016. Lawtechnology.org/2016/11/how-ai-will-change-the-practice-of-law-by-nicole-black3. Publishing date November 18, 2015 by Ark Group Publishing USA; www.ark-group.com4. bbc.com/news/technology-37727387?source=techstories.org; Jane Wakefield, Technology Reporter, 23 October 2016

the YLD’s partnership with the Regional Food Bank has been made possible by generous donations from local attorneys, businesses, and law firms. If you are able to do so, please consider a donation to aid the YLD in fighting hunger in Oklahoma.

Oklahoma is one of the hungriest states in the nation. One in six Oklahomans strug-gles with hunger and one in four children in Oklahoma struggles with hunger every

day. Each week, the Regional Food Bank provides enough food to feed 110,000 hun-gry Oklahomans. In 2015, the Regional Food Bank of Oklahoma distributed 49.9 million pounds of food to families, seniors and children struggling with hunger in our state. A donation of just one dollar provides 5 meals for hungry Oklahomans, and 96 cents out of every dollar donat-ed is attributed directly to hunger relief. Every dollar donated provides five meals to hungry Oklahomans. In addition to col-

lecting donations, the Regional Food Bank also provides several fulfilling volunteer opportunities to assist with tasks such as sorting and storing food. Each year, the Regional Food Bank welcomes more than 44,000 volunteers who contribute more than 137,000 hours of service – saving the Regional Food Bank more than $2.4 million in labor volunteers. The YLD has also been a part of these volunteer efforts.

The YLD is honored to work with the Regional Food Bank and represent the

Oklahoma County Bar Association with good works in our community. If you would like to donate to the YLD’s Harvest Food Drive, please contact the Oklahoma County Bar Association at (405) 236-8421. The YLD is working hard to receive all donations by early December, but will con-tinue to accept donations through the hol-idays. To learn more about the Oklahoma Regional Food Bank and volunteering opportunities, please visit their website at www.regionalfoodbank.org.

HARVEST from PAGE 1



http://www.hbokc.law


The Oklahoma County Bar Association’s

38TH ANNUAL SEMINAR 2017FRIDAY, FEBRUARY 24 – TUESDAY, FEBRUARY 28

The 38th Annual Winter Seminar by the Oklahoma County Bar Association is again in a new venue – SANTA FE, NEW MEXICO! It is four nights including six hours of approved CLE credit. Spend your days skiing in Ski Santa Fe, just 16 miles away or shop till you drop and visit galleries, museums or the Spa. The price for this ultimate educational and exhilarating experience begins at $625 per person for a four-night package. Included in the package are:

• Four nights at the INN and SPA AT LORETTO, Santa Fe, NM – room, tax, and service fees• Get – acquainted Welcome party with adult beverages and Hors d ’Oeuvres• Six hours of approved CLE credit (at additional cost)

SEMINAR: Experienced practitioners in diverse areas present the seminar portion of our trip. The seminar fully qualifies for six CLE credits and will include the following topics – Ethics, Family Law, Medical/Legal Issues, and Trial Practice.

For information concerning the trip, contact Bentley Hedges Travel Service – Angie Hendricks at 237-3333 x100 ([email protected]) or your trip captains, John Heatly [email protected] 405-232-0621 and Justin Meek [email protected] 405-705-3600.

PRICES PER PERSONSuperior King or Double Double2 persons sharing a room ��$6253 persons sharing a room ��$5001 person in room – sole occupancy ��$975

Vista King (shared or private balcony):2 persons sharing a room ��$7501 person in room – sole occupancy ��$1,150

Vista Grande/Junior Suite King (shared or private balcony):2 persons sharing a room ��$8251 person in room – sole occupancy ��$1,400

Six hours of CLE ��$240

Welcome Reception without accommodations ��$50

One Bedroom Suites available upon request





Friends of the Court - enjoying doing good in the community.

The Oklahoma County Bar Auxiliary (OCBA) meets monthly for social and educational programs and to raise funds to support charitable organizations that serve the needs of our community. OCBA is open to attorneys, spouses of attorneys, law students, and anyone interested in the OCBA mission and programs.MEMBERS:OCBA members participate in monthly programs, social events and community service opportunities. Membership is $40 per year.

OCBA proudly begins our 54th year of service to the greater OKC community and local agencies. In 2016, OCBA had the honor of donating funds to Infant Crisis Services, Oklahoma Lawyers for Children, Legal Aid, Youth Services, CASA, ReMerge and to the Moore High School Mock Trial team for their national competition. Members also donated new books to John Rex Elementary.

PROGRAMS:Members meet the second Thursday of the month, September through May, 11:00 a.m. to 1:00 p.m. in a variety of venues throughout the metro. Programs offer a combination of social, educational and community learning opportunities, including presentations and tours by non-profits that serve women, children and the legal community.

Evening programs with spouses and guests include an annual Chili Supper in the winter, a summer garden party and a fundraising social event in the fall and/or spring.

Volunteer opportunities include an annual Poinsettia Sale in December and quarterly community service activities.

CONTACT INFORMATION:Marcy Price, President, [email protected], 405-833-0983

Find us on Facebook at Oklahoma County Bar Auxiliary

OKLAHOMA COUNTY BAR AUXILIARY


October 13 Home of Kay Musser – Surprise program to be announced

October 20 Strebel Creek Winery (6:00 - 8:00 p.m.) – Evening Wine Tasting & Cheese Social event

November 10 Full Circle Bookstore – Book Recommendations - Jean Ann Robison

December 8 Home of Ginnie Tack – Christmas Holiday “Artful Auction”

January 12 Uptown Market – Upstairs Cooking Demo TBD Late January Social Evening Chili Cook-Off – Full Circle Bookstore

February 9 Skirvin Hotel – Red Earth (Tentative)

March 9 The Green’s – A Cabi Fashion Show - Rebecca Thompson

April 13 Paseo Grill – Clinical Nutritionist, Keith Bishop

May 11 Home of Ellen Morgan/Distribution of funds to Recipient organizations and Installation of Officers

OKLAHOMA COUNTY BAR AUXILIARY

Annual Membership dues ($40.00 payable to OCBA)Mailed to Ellen Morgan, 6800 N. Country Club Drive, OKC 73116

For more information, please contact Marcy Price, President, [email protected]

Monthly Meetings 2016-17Thursdays 11:00 am - 1:00 pm

Average lunch costs $15

Membership includes attorneys, spouses of attorneys, law students, as well as anyone interested in the OCBA mission and programs

Find us on Facebook at Oklahoma County Bar Auxiliary

giving thanks...relations board, and the federal energy regulatory commission.” the d.c. circuit...

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