Jacqui Ford: Welcome to Your Best Defense podcast. My name is Jacqui Ford and we’re continuing our series today on sex crimes involving children.

Some of the things we’ve been seeing in the Oklahoma City metropolitan area lately is several teachers from local school districts who have been charged with sex crimes for having inappropriate relationships with their students. Of course, it’s easy to find outrage in our teachers engaging with our students. But when we look closely at the law, what we realize is it can be a rather confusing situation for both the teacher and the student.

A number of times we see these students who are 16, 17, or 18-years-old who are otherwise legally able to consent. They believe that they are following the law when they’re engaging in activities with their teacher. They think that they have the legal, lawful authority to consent. And, sometimes, even by the government’s account, the children, if you will in these cases, the 16, 17, and 18-years-olds are the ones pursuing the sexual activity.

Not to make excuses for what’s appropriate and inappropriate, but the law says that a 16, and 17, and 18-year-old can, in fact, consent to sexual intercourse in certain situations. What they don’t understand, and what many people don’t understand, is that there are special circumstances for teachers. There is a statute, that is separate and distinct from all of the other rape cases, that defines having sex with a student, or an employee of a school. And what it says is that no student can consent to sexual intercourse with a teacher.

It arises with a bunch of questions – why is that so? If the teacher is a consenting adult, and the teacher can engage in a consensual sexual act. And the teenager is a consenting adult, for the purposes of this conversation, and can consent to a consensual sexual act. Why can they two of them not do it together?

Well, it’s not just because it makes us fell icky. Okay? The idea is that the teacher is in an authoritative position over the student. Whether they are actually in an authoritative position over the student, or they can be perceived by the community, or more correctly spoken, perceived by the student to be in an authoritative position. And that’s why the legislature has carved out this special set of circumstances.

It doesn’t always shake out to be fair. Because people are unaware of this law, and it’s only found in one little, tiny paragraph in a very complicated statute in Oklahoma laws. But because the teacher maintains an authoritative position over the student, the law just says under zero circumstances is this okay.

People in the community have different, varying opinions on this. And this is not a moratorium. I’m not ‘pro’ teachers having sex with kids, or ‘anti’ teachers having sex with kids. The fact of the matter is that we all owe a duty to each other, and to our children, to talk to them about what the law is. We have a duty to them so that they know when they engage that they think is fun and exciting and is meaningful to them because they’re not really being forced to do it by their teacher in an authoritative position. That they think they’re doing okay because they’re not being coerced, or threatened, or bribed, or promised good grades, or any of those things, that the student needs to know. Because in these cases the student, oftentimes, is not only a victim of the crime charged. The student becomes the victim of the media.

The student, especially when we’re dealing with young men, when they’re not seeking charges to be sought against the teacher, the damage to the teacher being charged is as great upon the child, as it is to the teacher. The child now has a reputation in the community of whatever the community wants to accuse him of. But, he’s oftentimes not brought back in and coddled and taken care of because he’s not a child and he’s not a victim of a rape as you and I know rape to be.

Oftentimes, he’s embarrassed. Oftentimes, it prohibits him from being able to continue school in that school because he cannot stand to go back and face his peers. Oftentimes, the only way the story gets out is because the student is bragging about it to their friends. And we also know, in those situations, if we’re dealing with teenage boys talking about sex, that those stories oftentimes get drastically exaggerated and embellished, especially in a locker-room setting where we’re bragging and slapping butts, and talking about how much action we got the night before.

So, this young man, who, for all intents and purposes, just got to put a new notch in his belt, is now drug through the mud as some child-victim of rape. And having that label placed upon them is as damaging to them in their future as having the label of rapist be placed on the teacher.

It’s probably time for the laws to change, but it’s not likely to happen here in Oklahoma. So, we have to understand is where the law is, and what it is what we need to do to inform our kids and not find ourselves in this position.

If you’re a student out there listening to this and you’re engaged in that kind of activity, I would encourage you, if this is not something that you want to be made public and to be drug into court to talk about it and testify about it, that you keep your mouth shut.

If you’re a teacher engaged in this type of activity with a student I suggest that you stop it right now. Because the damage to your relationship, and the damage to your career is greater than you can ever imagine. And the results of how this is going to shake out just can’t be measured.

So, if we’re dealing with student on teacher sexual assault, or rape, as it’s defined in Oklahoma, it carries a mandatory minimum of one year, and a maximum of 15 years in the Department of Corrections. That teacher will be required to register as a sex offender for the rest of their life. Which not only means they’re going to never teach again, but they’re likely not going to be able to live in the metropolitan-area because of sex offender registration laws, and restrictions on where folks can live.

Although, the idea of a child being the aggressor in these situations is, although it may be factually true, it has some appeal for a jury because I think jurors understand day-to-day activities and real life way better than legislators ever could. But it is not a legal defense. And it’s important for us to recognize the difference between legal defenses and arguments made to a jury. To run the risk of taking a case like this to jury trial carries with it a huge burden when the teacher is facing 15 years in the Department of Corrections.

Prosecutors in this state have no interest in making deals with teachers because our prosecutors are elected officials. And as soon as they don’t charge you, or make a deal where you’re not a convicted felon, or don’t require you to register, that will be their first ad against them in their next election. It’s going to draw opponents. And, unfortunately, elected positions make decisions based upon their future electability, and not what’s right and wrong.

In the same vein, our legislators continue to make laws that don’t make any sense, and aren’t designed to protect anybody, justified to criminalize activity that people are going to engage in, and have been engaging in for hundreds of years. And they’re not going to loosen up the ties on these laws, so we owe it each other, and to our kids, to inform them.

So, what if you’re a teacher, or you’re a student, and you find yourself in this situation? Is this all doom and gloom and everything’s awful, and we should just pack up our bags and go to prison for the rest of our lives? No. The most important thing you need to do if you’re involved in this situation now, whether it’s been disclosed, or has come out publicly, is you need to contact an experienced sex crimes defense lawyer that knows how to handle the cases from the get-go.

The worst thing you can do is go give a statement to law enforcement without the advice, sound advice of an experienced criminal defense lawyer. And, worse than that, is to go out publically and answer questions with the media.

So, we would encourage you, if you have any questions about rape, or sex crimes, in Oklahoma City, or sex crimes involving children, specifically with regards to teachers and students, and other employees of a school district, please give us a call and let us at least be able to advise you, if not represent you in the future.

I think it’s an important note to make that I’ve been representing teachers, and teachers alone, but it doesn’t apply just to teachers. It applies to any adult employee of a school district. You know? Including the principals, or a counselor, or a coach, anyone who’s employed by the school district is deemed to have an authoritative position over the children. And all of them are off limits.

Jacqui Ford, Jacquelyn Ford Law, P.C.

Jacqui Ford: Welcome to Your Best Defense podcast. My name is Jacqui Ford, and today we’re going to be talking more about sex crimes. Today’s topics are going to include sex crimes involving children, but not as you might understand. The laws in Oklahoma have very strong protections for minors and children under the age of 18 from being exploited for the purposes of child pornography.

The problem the laws in Oklahoma have right now is that the law can’t keep up with technology. And what we see is that these children, who the laws were designed to protect from adult predators, are now becoming defendants charged with possession, and distribution, and procurement of child pornography. How is this happening?

There is a word that I imagine most of our parents are familiar with called ‘sexting.’ And I’ve learned this word from my teenaged clients and friends. Sexting is the act of texting in a flirtatious or sexual way. What we see more and more these days with cameras and videos on everyone’s phones is that our children, mostly our teenagers, but they’re still children under the law, are engaging in an act of exchanging photographs with their friends, and their boyfriends and girlfriends.

What they children don’t know is what they’re doing is a crime. It’s a felony crime in the state of Oklahoma to possess child pornography. It is a felony crime in the state of Oklahoma to manufacture child pornography. And it is a felony crime in the state of Oklahoma to distribute child pornography. Each and every one of those crimes is a registerable offense. How do our teenagers find themselves charged with possession, manufacture, or distribution?

Oftentimes, the situation is it’s a boyfriend/girlfriend, and one, or the other, for the purposes of our argument we’ll pick on the boys, sends a text to his girlfriend. They’re flirting back and forth and talking about all of the things they want to do to one another. And boyfriend says, “Hey, why don’t you send me a pic?” Girlfriend, whether she’s inclined to do so, or not, ultimately decides she’s going to send a sexy pic of herself to her boyfriend because, “Who wants to be rejected? Who doesn’t want to give their boyfriend what he’s asking for?” And she takes a photograph of herself. If she is under the age of 18, she has now manufactured child pornography.

Once she has that has that photograph, or video, on her phone she’s committed the secondary crime of possessing the child pornography that she manufactured. And the moment she hits ‘SEND’ she has participated in the distribution of child pornography.

These are very, very serious crimes. Possession of child pornography, including showing it, or publishing it to others, or sending it, are all registerable offenses. They carry a minimum of 30 days and up to 10 years in the Oklahoma Department of Corrections.

We’ve talked numerous times on this podcast about this special kind of probation terms that you can receive in Oklahoma which include ‘deferreds’ and ‘suspendeds.’ And suspended sentences are, in fact, felony convictions. They will follow you for the rest of your life. A felony conviction cannot be expunged off of your record. Therefore, the law permits for deferred sentences. But in these cases, the state legislature has said that you are not entitled to a deferred. Which means that your precious 17-year-old child who was either the textor, or the textee, who is in possession of these sexy pics, is now a convicted felon for the rest of his, or her, life.

What a terrifying result for kids just doing what kids do. Unfortunately, ignorance of the law is not a defense. And, depending on where you’re located, and who your prosecuting agency is, the consequences can be quite grave.

If you solicit pictures of child pornography, ask for them, send out a request, it carries up to 20 years in the Oklahoma Department of Corrections. That is an ‘85% crime.’ Again, there are no ‘deferreds’ and you will register for the rest of your life.

The fines are astronomical – more money than teenagers can fathom making in their lifetime. So, it’s incredibly problematic. We owe a duty to our children to talk to them about sexting. To talk to them about the consequences of sexting.

And it’s important that we all know that just because we know it’s ‘just kids being kids’; the cops don’t care and the district attorneys don’t care. It is a violation of the law and they do arrest these children. And they do take them to jail. And they do, in fact, charge them with felony crimes. Sometimes these children will be charged in adult court; sometimes they will be charged in juvenile court. But, regardless, the consequences are life-long. You cannot go back and fix it.

So, as parents, and educators, and friends of kids, and aunts and uncles, we all have to be able to have these hard conversations. And nobody wants to go talk to their children about sex or sexting. And nobody wants to have a conversation as to whether, or not, their beautiful has sent nude photographs of herself, or if their handsome son is sending nude photographs of himself. But we owe it to them as their parents, and the people here to teach them, because ignorance of this law is no defense, and the consequences last a lifetime.

So, with all this information it sounds pretty desperate. That there’s no defense, and that our children are going to be destroyed forever. The fact of the matter is that’s not the case. That is the way the law is designed, but when you hire an experienced criminal defense lawyer who works in these kind of cases, we understand how to negotiate these matters and how to navigate you, and your child, through the incredibly traumatic criminal justice system.

These cases can be worked out. We can work with the district attorney to do things to mitigate the damages. Although, they’re not legal defenses as if we we’re in front of jury, there are ways to be able to save our kids in certain situations. So, if we’re a parent listening to this, I don’t want to leave you feeling sad and desperate and hopeless. That’s absolutely not the case. In fact, there’s a lot of hope and there’s a lot of light at the end of this tunnel. It’s just going to take some work.

So, you want to make sure when you seek counsel that you find someone who’s experienced in defending children who are charged in these kinds of child pornography cases. Who are familiar with sexting and the laws surrounding sexting in Oklahoma today. If you ever need any information on these matters, please feel free to contact our office. It would be our pleasure to at least be able to advise you, if not represent you and your child.

Jacqui Ford, Jacquelyn Ford Law, P.C.: Welcome to Your Best Defense podcast. My name is Jacqui Ford. Today we’re going to be talking about assault and battery, and defending assault and battery cases in the state of Oklahoma. Assault and battery comes in a huge variety of shapes and sizes. The number of statutes dealing with assault and battery are very many. We’ll not be able to talk about all of them today, but we’re going to hit the big ones to be able to give you the information you need in case you, or a friend, or family member, is charged with assault and battery.

First of all, there’s the simple misdemeanor assault and battery. You think about the bar-fight guy. You know? And you’ve had a little bit too much to drink, and we get mouthy, and we put hands on one another. But there’s no major injuries, no broken bones, no weapons are used, it’s just fist-on-fist, ‘boys being boys’, or you know ‘girls being girls.’

Simple misdemeanor assault and battery is a very, very common charge. And as long as there’s not some sort of familial relationship that gives rise to a domestic violence case, then we’re dealing with generally just a misdemeanor simple assault and battery. Simple assault and battery is a misdemeanor, and it generally carries no time to up to 90 days in the county jail. Generally, up to a $1000 fine, the jury could assess prison, or jail time, or the fine, or both. So, it carries up to about 90 days. That’s for simple misdemeanor assault and battery.

Oftentimes, people get confused about the difference between assault and battery, or simple assault. The example that I generally give is if I’m pulling my fist back and say, “Oh, I’m going to hit ya!” That’s an assault. You’re threatening an act of violence. The battery doesn’t occur until actual contact is made. So, we could be charged in simple assault by threatening someone with harm. But to get to the rise of assault and battery actual contact must be made from the perpetrator to the victim, or some extension of their body.

Many times we see assault and battery charged as a felony. And people don’t understand how it goes from misdemeanor to felony. So, a misdemeanor means no major injuries, there’s no scarring, maiming, you know, and no weapons were used. But the minute you pick up a weapon, no matter how benign that weapon may be, you given rise to being charged with what we call assault and battery with a dangerous weapon. A dangerous weapon could be anything. It could be the stapler on your desk. It could be your shoe. It could be anything that you take in your possession to use as force against another person. Oftentimes, that item is being used in a manner it which it was not described to be used. So, if we pick up a trash can and throw it at somebody that’s assault and battery with a dangerous weapon. We just went from what should have been a very simple misdemeanor charge, to a felony charge. And it carries up to 10 years in The Department of Corrections. Many folks are surprised to know that.

If we use another kind of weapon, a weapon that is otherwise deemed deadly, and using it oftentimes has deadly results. Let’s think of a knife, a gun, nunchucks, a sword, something to that effect that is going to be used to cause serious, serious damage. Or, a car. Oftentimes, we see assault and batter with a deadly weapon with the use of a car. That is an 85% crime. This is a big deal. It’s a huge difference between assault and battery weapon with a dangerous which is deemed a violent crime, and assault and battery with a deadly when we’re attempting to use deadly force on another person. With no priors, that carries 0 to 20 years. And it’s 85% meaning if you’re sentenced to 10 years you must server 8.5 years before even being eligible for parole.

The real scary part about these felony charges is: if when you’re charged with these crimes you have prior felony conviction in your history, especially within the last 10 years, the laws of enhancement in Oklahoma drastically change your range of punishment. If you have one prior felony, and you pick up an assault and battery with a dangerous, as opposed to being faced with 0 to 10 years, you’re looking at 10 to life. With two priors, you’re getting up to 20 to life.

And the same rules apply over there on that deadly weapon. You know? It’s 0 to 20 with no priors. 10 to life with one prior. 20 to life with two priors. And every bit of those sentences on the deadly weapon charges carry and 85% penalty. Meaning, if you are sentenced to the minimum of 20 years because you have two or more priors, you’re going to serve 17 calendar years before even being eligible for parole.

And it’s important to inform yourself so that we can make quality cost-benefit analysis before we choose to engage in picking up weapons to defend ourselves, or make our point. Most people don’t know, and ignorance of the law no defense.

You start adding in other elements to assault and batteries, specifically with a dangerous weapon and you have a mask on. And now you’ve got a minimum of five and upwards of 20 years in The Department of Corrections. Like I say, the statutes go on and on. So, there are a lot of ways and variations to enhance your punishment.

One that we see a lot of, especially in today’s environment of, you know, kind of a rogue police force, and this militarization of police that’s being used against citizens, they like to charge now assault and battery upon a police officer. Assault and battery on a police officer, with no prior felony charges, carries up to five years in The Department of Corrections. So, what 10 years ago would have been treated as resisting arrest, now has it’s own statute that can possibly incarcerate you for up to five years. If a law enforcement officer says that you threatened him, and that you made an offensive contact with his body, or some extension thereof, we went from resisting, which is simply a misdemeanor, up to a felony charge. It’s unfortunate, but the law does treat law enforcement as more entitled to be free from unlawful touching than anyone else.

Certain other things that sometimes come up, you don’t see it all the time, but threatening judges, or lawyers, or witnesses, any kind of court reporter, also carries up to five years in the Department of Corrections. If we’re messing with a juror who’s sitting in jury, that extension of time extends six months. So, you really have to be careful about engaging in threatful or violent behavior.

Oftentimes, people ask, “Are these violent charges?” And violent charges have different meanings to different people. For the purposes of our discussion, it is, the question is whether or not it’s violent under Oklahoma Statute Title 57 Section 571. If you’re convicted of a violent crime, and that violent crime is in Oklahoma Statutes, and what that means is you have to serve upwards of 45% of that sentence in The Department of Corrections. Now that is not statutorily required like the 85% crime. That’s just policy-wise.

You can also be required after a conviction, or a plea of guilty, to register as a violent offender. Not many people know that we have a Violent Offender Registry in the state of Oklahoma. It’s very similar to the Sex Offender Registry in the state of Oklahoma. If you’re convicted of a violent offense, and you’re required to register as a violent offender, and you refuse to do so, or you do not comply with the rules and conditions of the Violent Offender Registry, you have now exposed yourself not only to a new felony charge, but also to a possible probation violation if you’re on probation for that underlying felony.

So, these are things that are important to keep in mind. Assault and battery with a deadly is 85%. It is also deemed a violent crime. When we’re filling out job applications, loan applications, apartment applications, these are oftentimes questions that are asked. “Have you ever been arrested for, or charged, with a violent crime?” These are very different questions than, “Have you been convicted of a violent crime?” So, it’s important that we think about our actions before we engage in them. And we do good, strong cost-benefit analysis.

One of the other assault and batteries that we’ve seen pop up lately is assault and battery on school employees. And that could include a coach, or a teacher, or things like that. It’s still deemed a misdemeanor as long as there’s no great bodily injury or no weapon used. But it carries up to a $2000 fine. The legislature’s really trying to encourage folks to keep their hands to their self .

Aggravated assault and battery can increase your range of punishment. Causing great bodily injury, and maiming, and scars increases your range of punishment.

What I generally find with assault and battery cases is most folks don’t engage in putting their hands on one another. Right? If has happened we’ve got some underlying issues. And part of our job is to figure out what those underlying issues are. Is it because I was drunk and intoxicated? Was it because there’s an incredible amount of stress going on in the home, and we need to figure out how to deal with these stressors? Oftentimes, the court wants to know what the heck was going on too. Why is this person acting so far outside of the norm of socially-accepted behavior? So, if we’re trying to work a deal for you. Or, you going to be put on probation in the future. It might be part of what your lawyer asks you to do, which is to go get a drug and alcohol assessment. Or, go get an anger-management assessment. Maybe we can put you in some anger-management classes. These classes are different than the mandatory domestic violence classes that we’ve talked about in previous podcasts that are 52- weeks long. Batterers’ intervention courses are much shorter. There are several programs locally that are just 13 weeks. Some are 26 weeks. They include an assessment ahead of time, and the assessor makes some sort of, you know, recommendations on how long you should be involved in those classes. And clearly it’s more than you go to class and they tell you to keep your hands to yourself. It’s really designed to help you figure out how to better deal with stressors, so that we don’t find ourselves in this position. And maybe the issue is drug and alcohol. Maybe it’s, you know, impulse control. Maybe it’s that we’re hanging in the wrong group of people and they don’t bring out the best in us. And we have to find a way to separate ourselves from that.

There are a number of different things that your experienced criminal defense lawyer might ask you to do. And all of these things are designed and geared up to be able to make you look better to the prosecutor than you look on paper. So, just listen to them, and make sure you find someone who knows exactly what it is they’re talking about, who’s dealt with these kinds of crimes in the past.

Thank you for talking to us today about assault and battery in Oklahoma.

Jacqui Ford, Jacquelyn Ford Law, P.C.: Welcome to Your Best Defense podcast. My name is Jacqui Ford, and we’re talking today about DUIs, DWIs, and what Oklahoma calls actual physical control. These are all crimes that you could be facing if you engage in an activity including drinking and driving.

There is a huge misconception in this world about what is legal, and what is not legal. There’s no law that says you cannot have a drink, and then drive a car. The law says you cannot drive a car while impaired or under the influence of alcohol. What does that mean in application?

Well, real briefly, we have three different types of drunk-driving in Oklahoma. The first one is DWI. We don’t see a whole lot of DWI charges because it’s a very limited number of folks. DWI stands for driving while intoxicated, and it’s something less than DUI. It generally applies when your blood alcohol content 0.05 to 0.07. So, it’s less than the mandatory requirement for DUI which is a 0.08 blood alcohol content. But it’s something greater than, “I’ve had a drink, and I got in the car.”

So, DWI is the first charge that you might see when dealing with DUI charges in the state in Oklahoma. Although, it’s not applied as often, it is certainly a nice benefit for individuals who were charged with DUI, and the scientific evidence comes back and says maybe they weren’t. It carries pretty much the same range of punishment. The consequences for probation are pretty much the same.

So, we’ll kind of skip over DWI for those purposes, and talk about what most of us know to be drunk driving in Oklahoma. It’s called driving under the influence – DUI. Sometimes, referred to as a ‘dewey.’ DUI simply means that you are driving a vehicle under the influence of alcohol, law enforcement believes that either by scientific evidence, or subjective evidence of their observations, that you’re body is under the influence, and therefore, you’re not safe to drive.

The range of punishment for DUI in Oklahoma is very great. Much like some of our other charges, like possession of marijuana, and domestic violence that we’ve talked about in the past. Your first time DUI is almost always treated as a misdemeanor, unless it has some aggravating characteristic. So, most folks first-time DUI is a misdemeanor. The range of punishment is a mandatory 10 days in the county jail, up to a year, and up to a $1000 fine.

Many people think about DUIs and they realize that a lot of their friends and family members have them. It has a very morally unsound connotation. And judges are harsh on DUIs. And prosecutors are harsh on DUIs. And our legislature, as we speak right now, are trying to make DUI charges and convictions enhanceable so that people will be charge with felonies in a quicker, more efficient way. So, they can be very, very dangerous. They’re also one of the most common crimes we commit, and also one of the safest crimes to commit.

What you have to know, if you’ve been charged with a DUI, or you’re being arrested for a DUI, is how to interact with law enforcement, and what to expect moving forward. So, if you’re pulled over, and you’ve had a few drinks, and you know that the police officer’s going to ask you a serious of questions. My first advice to folks is you’re not require to answer any of their questions. You’re only required to give your driver’s license and insurance verification. And if you can find a polite, respectful way to decline other questions, that’s my first piece of advice.

You have a Fifth Amendment right to remain silent. I strongly encourage that you use it. And you can do it in a simple way as saying, “Officer, I do not wish to engage in consensual contact, and answer any of your questions at this time.” That sounds a lot easier said than done. We want to engage with law enforcement, and we want to answer their questions, and they know that. They’re banking on the fact that we’re going to be a little bit nervous. But, what you have to understand is that these questions are designed to elicit answers that give rise to arrest you for DUI. So, if you answer those questions, you are causing yourself more harm than good.

One of the that a law-enforcement officer will ask you to do if he believes that you’re driving under the influence of alcohol, is engage in field-sobriety tests. And you’re not required to engage in field-sobriety tests. And, in fact, I encourage most people not to do so. The tests are incredibly subjective. They’re set up for you to fail, and the officer’s observations, especially if you’re not recorded, and here in Oklahoma City most law-enforcement officers are not equipped with dash-cams or body-cams to be able record your actions. So, the evidence that’s going to be presented against you is simply the police officer’s interpretation of how well you followed those instructions. And usually, that is not to your benefit. So, I would encourage you to resist the urge to prove your sobriety by getting up and doing field-sobriety tests. Those tests are designed to make you look guilty, and have you arrested.

The next question everybody always asks is, “Do I blow, or do not blow, into the Breathalyzer machine?” And this is a very sensitive topic. And everybody asks drunk-driving lawyers this question all the time. If we represent people in DUIs, should I blow, or should I not blow? And, 10 years ago, the answer was if you think there’s a possibility that you might be DUI don’t blow. Because you’re giving them evidence to convict you criminally.

Now, a DUI charge has two elements to it. Not only do you have a criminal battle to fight – whether, or not you’re going to jail and paying $1000 fines for your actions. But, you also have a civil matter going on. And that’s through The Department of Public Safety. And The Department of Public Safety says that you do not have a right to drive a vehicle in the state of Oklahoma. You have the privilege to drive a vehicle in the state of Oklahoma. And they, with all of their incredible lobbying, expenses, have lobbied the legislature, and have really changed the way DUI laws are handled and how people give advice.

If you refuse to blow in a Breathalyzer, and law enforcement has suspected and accused you of DUI, your refusal to blow will result in the revocation of proceedings from The Department of Public Safety. Depending on your history, and if you’ve ever had DUIs in the past, how long you’ll be revoked, and how long you’ll be subjected to what we call a modified driver’s license, is determined based upon your priors. But a refusal’s going to revoke you for at least six months. And in order to get re-instated you will have to put a breathalyzer in your car for an additional 18 months. So, a refusal means two months of a breathalyzer in your car if we lose DPS hearings, and we don’t have any other issues to deal with there.

So, whether to blow, or not blow, only you know how much you’ve had to drink. If you know you are not above the legal limit of 0.08, then I would certainly encourage you to consider blowing for two reasons. Number one, it will give exculpatory evidence to you DUI charge, and we may be able to get it down to a DWI or complete dismissal. In the alternative, it keeps your driving privileges intact with The Department of Public Safety.

There are other ways that DUIs can go down. We could talk for hours about defending DUIs in Oklahoma, but we just have a limited amount of time. So, we’re going to move quickly to how you find yourself charged with a felony DUI. If you have been arrested, and entered a plea, and been convicted for a DUI within the last 10 years, your next DUI is very likely to be filed as a felony charge. So, you get one shot a misdemeanor, and if you pick up another one it’s very likely you’ll be dealing with a felony charge. The range of punishment there is one year to five years in The Department of Corrections, and an increased fine. Your second felony within 10 years carries 1 to 10 years in The Department of Corrections, and a $5000 fine. And your third felony DUI within 10 years carries up to 20 years in The Department of Corrections and up to a $5000 fine.

It is clearly obvious that the legislature is trying to discourage folks with chronic drinking problems from getting behind the wheel of the car. Not telling you not to drink. They’re telling you not to get behind the wheel of the car and put at risk the lives of everybody else on the road.

How else do you find yourself with felony charges with a DUI? One of the things we see more, and more often, is that the driver has a child in the car. If you have a child in the car, and you’re arrested for, suspected of, and charged with DUI, you can likely expect to get charged with child endangerment, as well. Which is a felony crime – carries up to four year in The Department of Corrections and up to a $5000 fine.

Another quick way to make an otherwise benign, simple DUI a felony is if you’re involved in an accident that results in personal injury of another person. That is problematic, and it is an enhancer, and depending on your priors, and facts and circumstances could give rise to felony charges. It could give rise to simply a misdemeanor charge of personal injury DUI which carries up to a year and up to a $2500 fine.

What happens if you are charged, and you go to court, and you decide to enter a plea. Well, Oklahoma laws are pretty specific. And each municipality kind of deals with these things in their own vein. But if we’re dealing strictly with state court, and that’s probably the best way to do it for these purposes, is upon a plea of guilty, or no contest, and a finding of guilt by a judge, whether we’re convicted of the DUI, or we’re placed on a simple deferred, Oklahoma law mandates that we do some things.

The first thing you’re going to have to do is a drug and alcohol assessment, and any follow-up that they recommend. That’s conducted by a state-qualified assessor. It’s a battery of questions. They take you’re answers and plug them into a formula and they make recommendations as to what you need to do address the issues that found us here. Oftentimes, experienced assessors also know what the law is. And they know upon a finding of guilt, or a plea, that you’re going to have to engage in two other programs.

So, we know we’re going to have to do a drug and alcohol assessment of some kind. And it’s very likely, that as a result of that assessment, the follow-up recommendations will be that you go to a DUI school, and a victims’ impact school. DUI schools come in different varieties. First-time offenders are generally only required to do a 10 hour DUI school. That means you go to class for 10 hours. It’s an active participation. There’s a workbook. There’s some defensive driving skills in there. Basically, it’s about informing you what physiologically happens in your body when you drink to discourage you from engaging in further drinking and driving. If you’re a repeat offender it is possible that you will be required to do a 24 hour DUI school.

Almost everyone is required to go through a victims’ impact panel. A victims’ impact panel is something that has kind of been supported, and pushed through, by Mothers Against Drunk Drivers. It is designed to inform, scare, and shame the participants into seeing what is the worst-case scenario. Although, most people engage in driving while having had a couple of drinks, and most people will do this repeatedly throughout their entire life, and never be in a car accident. It is the rare occasion that a car accident occurs, and fatalities occur. And this fear of this happening is what is really driven DUI laws to become so strict.

Victims’ impact panel is a one-time event that you go, and you will listen to three individuals who have been directly impacted by DUI. Most likely, you’re going find a first responder, a police officer, an EMSA driver, a fireman. They’re going to show you a series of videos and images of mangled cars, and damaged bodies. And they’re going to talk to you about the impact that arriving on these scenes have upon them personally. It’s a very emotional experience. The next person you’re likely to hear from is someone who has been directly affected. Either they’ve lost a loved one, or they’ve been mangled and majorly injured themselves. They are the victim of the DUI, and they will share their story to explain to you the impact that this has had on their life. And then, the third person you generally hear from is an offender. Usually working some rehabilitative program. And part of that is to come out and share his story. And he will come out and talk about the consequences he suffered both emotionally, mentally, and legally when he engaged in drunk driving and was ultimately, probably caused someone some very serious harm. And has suffered long-term effects, as opposed to most folks who just get to plead to probation.

And that’s a quick overview of what to expect in a DUI case. Every municipality deals with the order in which you’re going to do it, and where you need to go, in different specific ways. So, it’s important that if you’re charged with DUI, or DWI, that you contact an experienced DUI lawyer. Someone who deals in defending drunk driving cases, so they can direct you so you’re not using your money superfluously and doing things that are unnecessary because you’re going to have to do it another way.

Finally, one of the ways that you can be charged under a drunk driving statute in the state of Oklahoma is a thing called actual physical control. Actual physical control is a real interesting charge in the state of Oklahoma, because what it’s saying is that you’re not driving a vehicle, but you have keys, the vehicle is operational, and you’re drunk. Therefore, they hold you to the same level of responsibility as if you had actually put the keys in the ignition and got on the road. This is dangerous and scary because many folks have been told, you know, if you’re driving and you realize you that you’re a little too drunk to drive the best thing to do is to pull over. Crawl in the backseat and take a nap. Sleep that off so that you don’t continue to put yourself and others at risk. Because of our aggressive legislative needs, and our policies here in Oklahoma, actual physical control, when you make a decision to not drive, but to remain in, or around, your vehicle while your intoxicated, the court system and the cops are going to treat you exactly the same as if you’d gotten in that car and driven off. The statute fall under the same statute of DUI. The range of punishment is exactly the same. And the motivation to do the right thing quickly goes away.

People come all the time and ask, “How could this have happened? I was trying to do the right thing by not driving my vehicle.” The sad reality is, the way the laws as they exist today almost encourage DUI because it’s better to take the risk of going and not getting pulled over, than to do the right thing and pull over in a parking lot in a safe, lit environment. Because there’s a strong likelihood that someone’s going to report you. Or, law enforcement will show up. And the damage is just as bad as if you had just gone ahead and driven home.

With respect to DUI defense in Oklahoma, those are the three primary things that you would see: DUI, DWI, and actual physical control. It’s important that if you are arrested for this charge, the sooner you get in with a lawyer the better. Because we can start navigating your way through this obstacle that is the criminal justice system. And the sooner we get started, the easier it is for you. and the more beneficial it is for defending your case. Whether, or not, we’re working towards a plea negation. Or, whether, or not, we’re working towards an .ultimate trial for the purposes of acquittal. The sooner you get in with your lawyer, and start strategizing the better.

And that’s all we have to say today about drunk driving in Oklahoma. Thanks for joining us. We’ll be back next week with another topic.

Jacqui Ford, Jacquelyn Ford Law, P.C.: Welcome to Your Best Defense podcast. My name is Jacqui Ford, and we will be talking about domestic violence in Oklahoma. So, if you are charged with domestic violence, or a friend or a loved one, is charged with domestic violence in the state of Oklahoma, here’s some information you must know. Domestic violence can be charged in a number of different ways. It can be charged as a misdemeanor, or a felony. And we’ll talk about the different reasons as it might be filed either way.

One of the first, and most important, things to know that domestic violence is different than simple assault and battery, based upon who the players are. So, you can’t have a domestic violence charge without the victim, or the abuser, being a spouse, or a former spouse, or boyfriend/girlfriend, a parent, some sort of foster parent, a child, some sort of blood relative, or relative by marriage, parent of a mutual child. There has to be some sort of relationship there. And it even extends to someone who’s currently living in a house, even if there’s no familial relationship. So, you might see that in a roommate situation. So, domestic abuse requires some sort of pre-existing relationship before the crime occurs, to give rise, to enhance it from a simple assault and battery. You know? A stranger bar fight or something. To give it this extra bump of domestic violence.

And why does that matter? It matters because when you’re charged with domestic violence the community and the legislature has decided that that act is much more offensive than the act of getting in a fight with a stranger in a street. That we somehow owe each other a greater duty because we have this familial relationship, or dating relationship. That we should engage in behavior that’s even greater than the amount of respect guaranteed to strangers.

So, if someone has been arrested, and you know that they’re being charge with domestic violence you should know that that means the government believes there’s some sort of relationship there. As a general rule, the first-time offense of domestic violence, if there’s no great bodily injury, and no strangulation, and no aggravating factors, most likely will be treated as a misdemeanor. If it’s just a run-of-the-mill domestic violence case, then it will be treated as a misdemeanor.

What does that mean? A misdemeanor means that you’re only looking at up to a year in the county jail. In Oklahoma, it also carries a $5000 fine. Your first-time offense could be charged in a municipal court, like the City of Oklahoma City, or Mustang, or Yukon, or Piedmont. Or, you could be charged in state court. And oftentimes, dv cases do get transferred over to state court because they carry with them extra obligations, as opposed to a simple assault and battery.

First off, it’s important to talk about bond. If you’re arrested for domestic violence, especially if you’re arrested close in time to the allegations, the fight is on at the house, someone calls the police, the police come out and they remove you, and they take you to jail. You can almost guarantee that you’re going to be held in jail without bond. That means, unlike a DUI, or a simple possession of marijuana, where you know your bond is going to be set at $1000 or $2000, you call a bondsman and you pop on out. In a domestic violence case the law permits the government to hold you for 72 hours. They call it ‘cooling-off period.’ Allows emotions to calm down, and whatever gave rise to allowing the situation to get out of control will have an opportunity to subside.

Many say it gives the victim an opportunity to pack their bags and get out. But either way, there’s a 72 hour hold.

Does that mean your stuck in jail for three days? No. It does mean you’re stuck in jail for three days if you don’t hire an experienced lawyer to defend you on these domestic violence cases. How do we get that 72-hour hold lifted? Well, we go to the district attorney, we come meet you, we find out the information about your case, and we go make an argument to the judge that this cooling-off period is not necessary. There’s a 1000 different ways we can do that, and we could be here all day talking about. But what’s important is if you’ve been arrested, or your loved-one has been arrested, and they’re being held with a 72-hour hold, contact us. We’ll get in there and see what we can do to get that bond lifted so that we can get the accused person out and back to work so that they can get back to life as usual.

What else do we need to know about domestic violence? A second charge of domestic violence most likely give rise to a felony charge in the state of Oklahoma. So, your first-time arrest they give you a nice little slap on the wrist. Your second-time offense you’re looking at felony charges that carry up to four years in The Oklahoma Department of Corrections. Again, up to a $5000 fine.

Each time we find ourselves charged with domestic the possible range of punishment could be greater. But the facts really matter more than anything. Domestic violence carries a number of differently qualifying statutes. What does it mean to have ‘great bodily injury?’ So, you may not have any prior domestic violence charges, but in this situation, the actions that gave rise caused an incredible injury to one of the parties. Maybe a nose got broken, or a finger got broke. We would call that great bodily injury. First-time offense carries up to 10 years in The State Department of Corrections. Heaven forbid, we’re charged with, accused of committing domestic violence against a pregnant woman, whether it’s your first-time offense, whether she suffers any injuries or not. If she’s pregnant, and you know it, the range of punishment is up to 10 years in The State Department of Corrections and a $10000 fine.

Sometimes we see people charged with domestic violence by strangulation, and all that means is that someone put their hands on, or around, your airways in an attempt to stop you from breathing naturally. That carries up to three years, a minimum of one year, which means one year in the Department of Corrections, and up to three years, and up to a $3000 fine. These are pretty serious allegations. Each one of the enhancers does not require a misdemeanor to give it rise to be a felony.

If, during any of these charges, you are found guilty, either by a judge or a jury, in the course of a trial or by plea, even if you receive a deferred sentence, (Which we’ve talked about before which is a special kind of probation, that’s not a conviction, but allows the court to make a finding of guilt, and put you on probation to meet your certain probationary needs, at the end of that sentence the case is dismissed.) Even in a domestic violence situation where you’re charged and sentenced, under a deferred sentence, you’re still required under Oklahoma statute to engage in a 52-week batterers’ intervention course.

What does that mean? Well, that is a domestic violence course. And you are required to participate for 52 weeks – that’s an entire year. Any finding of guilt, either by a jury or a judge, based on a plea or trial, will result in such a requirement. This is important because that is a stringent probationary requirement. There’s no other law in the state of Oklahoma that requires mandatory one-year’s worth of classes for any other action. So, it’s important to know if you’re going to enter a plea, if that’s your planned anticipated solution, that you might want start enrolling in those classes early. You start engaging in those classes, you learn the skills and tools necessary to be able to better deal with better conflict within the home environment. And that helps us assist you in negotiating a better deal on your behalf.

52-weeks batterers’ intervention course is not an option. It is mandatory. So, it’s important to know that any plea, of any kind, no matter what your lawyer says, will require 52 weeks. And that’s every week. You know? Maybe you miss a week here or there, you can make it up. But they’re pretty serious about you starting it and completing it with the same groups of folks you started it with.

One the things people always ask about domestic violence is, “Is this a violent offense?” Well, by its very name it must be deemed violent because it’s violent, domestic violence. However, it’s not violent for the purposes of whether, or not, you’re a violent offender in the state of Oklahoma. Do you have to register as a violent offender on the Violent Offender Registry? The answer is no.

It is a violent offense for other reasons. People who are looking at an application for you to rent from their rental property. Maybe you’re trying to rent a house, or a duplex, or even an apartment. Domestic violence charges can, and oftentimes do, prohibit you from having access to that rental property. People will just say, “No. We’re not doing it.” If you are currently renting, and you are charged with domestic violence, and the police have been called out to your apartment complex because of a domestic violence issue, in many leases you will find a term that says they can terminate you, and everyone who’s in that house, if you return after a domestic violence case.

These are things people don’t know about. So, it’s important when you think about how to move forward, and where you’re going to positon yourself on probation, what are some of the consequences? And it’s very prohibitive in a number of differ ways. Employers look at domestic violence with a special eye, oftentimes, too. People judge it one way, or the other. And it’s very much, kind of the same as DUI. Right? If you’ve got 10 friends of average, ordinary character probably two or three of them have experienced a DUI in their life. Many people look at DUIs as this horrible, awful, violent crime that puts at risk the lives of everybody in the world. Many people look at DUIs as very simply, the safest crime in the world to commit. And everybody does it, and sometimes we get caught.

Same kind of thing on domestics. People either look at it with a grain of salt, which is, this happens. Relationships are wired-up. Men get out of control. Women get a little crazy. And they either kind of dismiss it, or they look at it with a very, very judgmental eye. And it’s very likely that you could risk being fired from your job based up a plea or conviction for domestic violence.

The power of accusation in these cases is so great. I think we’ve talked about the power of accusation before in sex crimes cases. But in domestic violence cases it’s just ‘off the hook.’ Why? Because to find ourselves in this situation where the temperatures are so high, that law enforcement has to be called, someone’s going to be pretty upset. If it’s you, or your spouse, that’s called the police then they’ve made a decision for themselves that they need help out of this situation. The power of that accusation’s pretty great.

The federal government gives grant money to district attorney’s offices especially to prosecute domestic violence cases. By the district attorney’s office acceptance of this grant money their hands are tied in how they can negotiate some of these cases. It used to be that you could call the alleged victim in the case and say, “Do you really want to prosecute this matter?” And she might say, you know, “No. Johnny and I we’re just – we had too much to drink that night. And it just got really frustrating. I wanted him to leave, and I didn’t know how to make him leave. So, I called the police, and asked him to leave.” And they don’t necessarily always go as far as to say they lied, because who wants to admit to lying to the police and opening themselves up for a new charge themselves. But, maybe they exaggerated the truth, and they ask the government, “Hey, can we not press charges in this case?”

I hear it from clients and their alleged victims all the time. “I don’t want to press charges. Do I have to go to court?” The fact of the matter is, if law enforcement is involved it’s not up to you to make that decision anymore. That is a TV novelty. Wherein we get to say, “I don’t want to press charges.” The crime is not her against him. You against him. The crime is the state of Oklahoma against the offender. The alleged victim, although she’s given an awful lot of power (And I say ‘she’, and I understand that it can oftentimes be the other way around. But let’s just be realistic, and oftentimes it’s the woman who’s accusing the man.) that she has an incredible amount of power. To admit that she lied is an awful lot to ask for her to do. And even if she does that, she receives a lot of pressure from the district attorney’s office because they have agreed not to dismiss these cases for failure to have a cooperative witness.

They put an incredible amount of pressure on the alleged victim. They threaten them with arrest. They threaten them with perjury charges, or making false police reports. This is against the law. If you are an alleged victim of domestic violence, and the government is doing this to you, either through the district attorney’s office, or through an arm of law enforcement – specifically police officers or district attorney’s investigators. Then I suggest you contact a domestic violence lawyer who can help advise you of you rights. There are protections specifically in the law for you to prevent them from doing this. And we all know that they do it every day because I hear every single day from alleged victims. That the government is the one becoming the abusive, overpowering person in their life, and trying to force them to do something against their will.

I take these kinds of allegations against the government very seriously, and I would strongly encourage you to contact my office, or another experienced domestic violence lawyer. Because they cannot threaten you in that way. It’s actually a crime for them to do so. However, it is common practice, and it’s an awful lot to ask for a person to admit that they were wrong, or lying, or exaggerating.

So, it’s difficult to get the case dismissed. Oftentimes, you have to litigate it. If you’re charged with a misdemeanor you have to set the thing for trial and see if she shows up. Deal with the evidence as they have it, and ask a jury to see it your way.

If you’re charged with a felony you have a little bit more options. Certainly, it’s not a good thing to be charged with a felony, but at least in a felony you have a right to a preliminary hearing. That’s the first time that they’re going to call her in, and get her story on the record. Whatever she reported to law enforcement is not evidence. And that’s important to remember. It’s important for the person who notified law enforcement to remember that it’s not evidence, either. And you’re not stuck to the story that you told. Especially, if that story isn’t truthful. You have a right, a duty, and an obligation to clear up the record. Not only for yourself, but also for the person who’s been accused.

So, domestic violence claims come with really a dark cloud. And it can really be debilitating. Oftentimes, we see domestic violence claims accompanied in other cases. Let say you and your spouse are getting a divorce. Oftentimes, we see what we call the ‘divorce trifecta.’ I filed a petition for divorce. I filed a domestic violence case. And I filed a VPO. Boy, that person’s showing you. It is a very common scenario that lawyers, especially divorce lawyers who don’t practice in criminal court and don’t understand the grave consequences of making such false allegations, oftentimes encourage their clients to use the court system’s resources, whatever they might be, to best advantage them for a battle over silverware and custody of their children.

So, if your charged with a domestic violence case, and you’re also going through a divorce, talk to your divorce lawyer about their experience in this matter. Most divorce lawyers that I know, know that they don’t want to mess with this. And they’ll send you to an experienced lawyer in Oklahoma City to represent you.

That’s the short, sweet bit we have about domestic violence. It could be a misdemeanor, it could a felony. It could be a year, it could carry up to 10. Any finding of guilt, any conviction of any kind, is ultimately going to result in 52-weeks of batterers’ intervention courses, along with a slew and series of other probationary requirements. In order to limit that, limit your amount of time that you’re on probation, and limit the amount of hoops that you have to jump through, it’s important that you find someone experienced in defending domestic violence cases. We hope that you give us a shot. Thanks.

Jacqui Ford, Jacquelyn Ford Law, P.C.: Welcome to Your Best Defense Podcast. My name is Jacqui Ford. And today we’re going to talk about defending murder charges. So, if you’re in Oklahoma City, or the Oklahoma state area, and you’ve been charged with murder you’ve big, big problems on your hands. Most likely, if you’re listening to this podcast you may have a friend or family member who’s been charged with some version of murder in the state of Oklahoma, and you need to know what their rights are and how we can move forward in defending them.

I’ve got good news. You’re listening to someone who happens to know a little bit about this. There are all kinds of different murders that we all think about – levels of murder. But, in Oklahoma, we really only have two: that’s murder in the first degree and murder in the second degree. There are lots of other homicide cases, and we’ll save those for another podcast, for another day.

But, let’s talk about murder. So, if we’re charged with murder in the first degree, one of two things the government is alleging. Either, this crime was committed with malice aforethought. Which means that you planned it, and you thought about it, and you executed that plan. Or, that this murder occurred during the commission of an inherently dangerous felony. You hear it on the news, and people use the language the felony murder rule. The felony murder rule picks up more murder charges than most other types of murders here in Oklahoma. And that’s because the legislature has decided if you are engaged in behavior that is so inherently dangerous, that you should be able to foresee a death occurring, and a death occurs, whether you did it, or your co-defendant did it, or the person that’s actually being shot at committed the homicide, the perpetrator of the underlying felony can, and will, be charged with murder in the first degree.

It’s kind of a head scratcher. It goes against what we naturally think about when we think about murder in the first degree. Most of us think when you’re charged with murder in Oklahoma, that you must have had some sort of evil intent, or malice aforethought.

One of the interesting things to know is that malice aforethought, and that intent, can happen in Oklahoma, in a second. There’s no need that you plan it, or think about it. You’re decision to take someone else’s life can happen in a moment’s time. And that is the same charge as if you were plotting and planning it for months on end. That’s incredibly scary, because in that very moment that you make a decision to either pull the trigger, or slash that knife, or engage in whatever activity that’s given rise to the death of this individual, you are now facing very, very serious punishment.

Punishment for murder in the first degree in Oklahoma is very simple – minimum life in prison. Maximum penalty – death. The only thing in between is life without the possibility of parole. We’ll talk about all three of those really briefly. Life, in the state of Oklahoma, is calculated at 40 years. Basically, you have to serve 38 years and three months of any sentence before you’re ever even eligible for parole. So, if you’re sentenced for murder, and you’re sent to The State Department of Corrections, and you don’t have an appellate relief anywhere, you are going to sit there day-for-day for 38 years and three months before the Parole and Pardon Board even looks at your case to determine whether, or not, you’re eligible for early release. That’s a pretty overwhelming number.

Many states in this country have a range of punishment. Our good friends down south, Texas, the wild, wild west if you will. In Texas, you can murder somebody, and murder in the first degree has a range of punishment of a minimum of five years, and a maximum of life. Why does that matter? Because, man it makes working these cases out on a plea deal next to impossible.

The same rule applies with murder in the first degree felony murder. The punishment is life calculated at 45 years. You’ll serve 38 years and three months before being eligible for parole. Or, life without the possibility of parole. Life without the possibility of parole is exactly what it sounds like. That means you go into The Department of Corrections and you never, ever step out. You will die and buried in an unmarked, sad grave somewhere in The State Department of Corrections. You will never, ever breathe another breath of fresh air.

Life without the possibility of parole is an incredibly harsh, oftentimes, deemed unjust punishment. Because, people who engage in this activity, unfortunately, oftentimes are young people. They’re young people who’s brains haven’t even developed so much that they can do a nice cost-benefit analysis of whether, or not, to engage in the behavior that they’re engaged in. Life without the possibility of parole is the thing that drives most people into pleading guilty to a murder charge, even if they’re not guilty. It’s a very, very scary proposition because that judgment is very final. And, it leaves very little room for a jury to justify some of your actions, or mitigate the fact that you were young and inexperienced. Or, that you suffer from mental health illnesses. Or, that you do not have the requisite education to make a cognizant decision.

All of these things matter for the purposes negotiating a plea on murder charges. They do not matter when a jury is assessing punishment. They are not given the opportunity to reduce your sentence because you’re a 17-year-old that functions at a seventh-grade level. And you have mental health issues, and a life and history of abuse. The law in Oklahoma doesn’t care.

The other type of murder that we see, oftentimes charged in the state of Oklahoma, is murder in second degree – depraved mind. What does that mean? Well, it means that you’ve walked into a situation, and you’ve almost ‘lost it.’ It’s almost a moment of insanity. You’ve lost your good judgment. Your mind is depraved of good will. The example that we oftentimes see is if you walk in and you see your spouse in bed with another person, and you absolutely lose it. And, you jump on the bed and you just choke the living life out of one of the two of them. If that happens you may be charged with murder in the second degree. It is my experience that you’re likely going to be charge with murder in the first degree, and we can ask a jury to convict you murder in the second degree.

Murder in the second degree is very uncommonly charged. I think the point of that is because our law allows malice aforethought to happen in a second, the district attorneys use that knowledge, and that use of the law to be able to charge you with murder in the first degree to force a plea down your throat for a depraved-heart murder.

Why would you ever want to plead to depraved-hear murder? Well, because it has a range of punishment of 10 years in The Department of Corrections, and a maximum of life. Therefore, we have something to work with. So, oftentimes cases are negotiated down from murder one to murder two. Also, giving a jury an opportunity to convict you of murder two, as opposed to murder one, if the facts fit the crime. And not all facts fit murder two. It’s very, very specific. And it’s case law driven, and it’s very fact specific. It’s something that you need to sit down with your Oklahoma murder defense lawyer, and talk to them about it.

The second type of second degree murder is murder in the second degree felony murder. These are different that felony murder in the first degree. Felony murder in the first degree have the specific crimes enumerated that tell us exactly what crimes would give rise to murder in the first degree. And they’re the big ones that you would think: armed robbery, rape in the first degree, bank robbery, where you’re engaged in behavior that is so inherently dangerous that you should able to foresee something going wrong. That list includes distribution of CDS. A drug deal gone bad, and somebody dies, that gives rise to felony murder in the first degree. Any other felony, that is not enumerated in the Oklahoma statutes, meaning it is not listed out specifically in law, but if the person is accused of being engaged in any one of the other felonies, and a homicide occurs as a result thereof, you could be looking at murder in the second degree felony murder.

There’s funny things about murder. The sound, the word, always drives home a very different feeling to the listener than any other charge. Many lawyers find themselves a little intimidated by taking on a murder case, because the stakes are so high. People who are charged with murder feel like it’s a greater challenge to defeat, because, again the stakes are so high. But, even more importantly, the risks are very, very high.

That’s why it’s important that you find someone who has experience in defending these cases. Experience in not only defending them in front of a jury, and successfully. But, you need to find someone who is experienced in negotiating murder cases for the purposes of a plea agreement. And what does that look like? You know? When we take away the overlying fear that someone is dead, and that someone is facing life in prison, it’s just a simple assault and battery with a dangerous case. You don’t have a complaining witness, obviously. But, that witness is simply replaced with a medical examiner, and a medical examiner’s report.

So, the challenge in sorting it out for the purposes of going to trial, should not be so great. I understand why it is, but we’ve tried a lot of those cases and we’re incredibly successful in it. It’s not so intimidating that an experienced criminal defense lawyer can’t take it on.

One of the other things that people concern themselves with murder cases, is this idea that jurors, as well as law enforcement and the community, believe that if someone’s dead, somebody must pay. And that’s a very sad reality. I think that is a natural inclination for people to look at these cases and say, “Well, this life ended - short of it’s natural expiration. And someone should have to pay the consequences for that.” And maybe on a morality basis that’s true. But, I don’t believe that’s true legally. And so, it’s our job as your defense lawyers to express that, not only to the government and the prosecuting agencies, but, more importantly, to the 12 members of the community that will be sitting in judgment of you.

One of the things that’s important to understand, with respect to the accused in a murder case, it is very, very common, especially in Oklahoma, for you to be held with no bond. The jail-bail schedule in Oklahoma County will automatically assign ‘No Bond’ if you’re charged with murder in the first degree. So, not only do you have to worry about defending yourself. You have to worry about defending yourself while locked up in a cage for 23 hours a day, for upwards of two years, before you ever get yourself to a jury. That’s incredibly overwhelming. How can someone imagine sitting there that long to get their speedy trial, and be able to face their judgment day. That is the reality. It is not impossible to get bonds set on murder cases, but it is very, very difficult. And in order to do it, you want to go an Oklahoma City criminal defense lawyer who has a lot of experience in defending murder cases.

We can set a bail hearing in front of the judge. We can call witnesses. We can present evidence the same way that the government can present evidence to hold you without bond. We have a right to request a bond. The fact that you’re being held without bond doesn’t mean that you’ll never get it. We just have to the court the tools and the justification to allow you out. Holding without bond, on it’s face, is generally deemed inappropriate, but one of the considerations that the court looks at is the seriousness of the crime. And there’s very few people that would say there’s a crime more serious than murder. The likelihood of conviction, and in Oklahoma County the likelihood of conviction is very great, unless you arm yourself with an experienced murder defense lawyer.

Another thing they look at is your likelihood of fleeing based upon your past history, and the possible range of punishment. When the range of punishment is life without the possibility of parole, or even possibly death, the court justifies it in their minds, oftentimes, to hold you without bond. Because, if you were to ever run, this is what you would run from.

Our job is to convince that judge that that’s not the case, and to give them the valid tools and resources to ensure that you would reappear for court, while you can still be out and help us in defending you. This is probably the most serious thing that you, or your family member, will ever face. And it’s important to have a good, close working relationship with your lawyer. Different than in a DUI case. Or, different than in a drug case, even. This is hands-on. The witnesses that we will call to defend you are probably only your friends and family members. Even if you’re falsely accused, we’ve got to alibi you out. You have to be able to get out and help us defend you. So, it’s my job to work hard to get you out on the streets, as opposed to having you locked up in the county jail.

Because the range of punishment is so limited it really makes murder cases kind of an all-or-nothing thing. It’s not to say that you can’t work them out in some sort of plea agreement. Because, certainly, I’ve had a lot of experience in doing that. But, oftentimes, there’s no middle ground. If the government believes you’ve committed a murder with malice aforethought, or felony murder in the first degree, there goal, their mission, and their duty under their oath, is to convict you. It is to convict you and to incarcerate you for a minimum of 45 years, or life without the possibility of parole, or ultimately, death. That all-or-nothing mentality really forces these cases to trial more than any other case. The only other types of cases that go to trial this often are sex-crimes cases. For the same obvious reason – you either did it, or you didn’t. And it you didn’t you’re probably going to have to defend that in front of a jury. The government’s not going to scratch your back to give you a break. They’re not afraid of trying these cases. Prosecutors take them very seriously, and it’s a badge of honor for them to try a murder case. It’s the only kind of case they want to try. They think it means something more important than any other case we try.

So, it forces us to trial, and I tell you that because there are a number of lawyers who will take these cases and promise you a lot of things. And if you haven’t checked their records and their experience you might be signing yourself up for a real bad deal in the future. The quality of your representation from the very, very, beginning determines how much the government is going to be willing to work with you, or against you. And they know who tries cases in this community, and who does not. So, you don’t want to hire the cheapest lawyer in town. You want to hire somebody who can ‘show you the money.’ Show you that they’ve tried these cases and they’ve been successful in doing so. It’s really important. Because if the government isn’t afraid of your lawyer, they’re darn sure not going to be afraid of you. And if they’re not afraid of you, and they’re not afraid of your lawyer, you’re putting 12 in the box. And you only options is a straight acquittal, or spending the rest of your life in prison. This all-or-nothing mentality is what really makes murder cases so overwhelming and so scary. Not only to the defendant, but to the less-experienced lawyer.

My advice to you is if you, or a friend or family member, has been charged with one of these incredibly powerful charges, murder in the first degree malice, murder in the first degree felony murder, murder in the second degree depraved mind, or murder in the second degree felony murder, that you find yourself an experienced Oklahoma City murder defense lawyer to help represent you through the entire process: from bond, to plea negotiations, through your preliminary hearing wherein you get to find the government’s evidence against you, and mostly likely, all the way to verdict with 12 members of the community.

We are proud to be able to represent people in these kinds of cases. Because we’ve been doing this for over 10 years we are very well-equipped. We are not afraid of these charges. We are not afraid of the consequences. And we’re ready to fight with you to walk you out of that courtroom right along with us. It’s an honor and a pleasure to represent folks. Guilty folks, as well as innocent folks. And it would be my pleasure to help represent you, or your family member, if you have anyone charged with these kind of crimes make sure you find yourself an experienced murder defense lawyer here in Oklahoma City.

Jacqui Ford, Jacquelyn Ford Law, P.C.: Welcome to Your Best Defense podcast. My name is Jacqui Ford. And we are talking this week about sex offender registration. It’s part of the important things you have to consider when you're charged with sex offenses in Oklahoma. Is whether or not you're going to have to register. How long you have to register. And what are some of the constraints within that. registration

I'm joined here today with my friend, mentor and law partner Mr. Jack Dempsey Pointer. Jack literally wrote the book on sex offender registration in Oklahoma. He is a go to expert in the field. Lawyers, prosecutors, judges alike rely on his expertise in understanding the sex offender registration act and how it is applied to offenders within the state. So, thanks for joining us Jack.

Jack Dempsey Pointer, Jacquelyn Ford Law, P.C.: Miss Ford, thank you very much for your solicitous remarks concerning me. I appreciate that very much. But I’m still going to be a little bit hesitant to talk about some of this.

JF: Okay.

JDP: Simply, because it’s so fact intensive – literally fact intensive. I had an individual call me about sex offender registration. The man was a Kansas resident. This is out in the panhandle He was a Kansas resident who was convicted of a sex crime in Oklahoma. He then moved, he didn’t move, he just went back to Kansas on probation. And he had to register in Kansas. There are some provisions, I don’t know all the particulars because the attorney’s not coming in until next week. But apparently there are some provisions in the Kansas registration scheme would allow him to get off of sex offender registration. That’s an unusual situation. You’re convicted in one state requiring registration – a crime that requires registration. And you’re serving your registration period in another state that has different provisions. It almost sounds like a law school quiz. But, it basically is. But that remains to be seen.

One of the important things, and the reason I’m kind of hesitant to talk about in any specifics, is simply because the law is written so, and has been amended so many times. I can give you just a perfect example. Before April 26, 2004, and individual had to register 10 years from the date of the conviction. After April 26, he had to register 10 years from the date of completion of the sentence. Now, that’s kind of important because the completion of the sentence, for instance, if a guy got 20 years suspended sentence, he doesn’t complete the sentence until 20 years after his

JF: Conviction date.

JDP: Yeah, after his conviction has expired. And, so, the guy would have to register 10 years after that. That’s a total period of 30 years, as compared to 10 years.

JF: And the laws just continue to get worse, it seems like. Each year, more and more crimes are registerable offenses. The Department of Corrections has their own administrative policies. And the legislation really isn’t, at this time, geared towards limiting the amount of registration. Or giving any relief to the offenders. It’s more geared up towards making people register longer, and limiting rights and options of offenders for longer periods of time. And with it being ever-changing, that’s why it’s so important that we find criminal defense lawyers that are qualified in defending sexual offense crimes, and can and understand and explain this to folks. Because it’s complicated.

JDP: A qualified attorney in sex offender defense, or sex offender cases, is a critical decision. You’re not going to open up the phone book, or get on the internet, or anything like that, and find somebody who says, “Hey, I’m a sexual defense attorney.” We can’t say specialization in Oklahoma, but a lot of us are. But finding somebody qualified to represent you in a sex charge is important because if there’s a conviction, then sex offender registration comes to the forefront immediately. And not only does if affect where you live. It also affects how you can go to school, church, the things of that nature.

JF: It affects the romantic relationships that you’re allowed to be in. It affects the internet use, and computer use.

JDP: And who can live in your house. Okay? In another words, if one of the victims of your act of, lewd molestation or something like that, if one of your children is the victim, you can’t live in the house. If you can’t move the kid out, you can’t live in the house. However, grandchildren, step-children, so-on and so-forth, it they were not victims of the crime – that’s okay. Because, in this day and time of blended marriages and divorce and all that kind of good stuff, you get a lot of questions about that.

But back to this qualified attorney to represent you in sex offense charges. That individual will, if they don’t know the specifics of sex offender registration, and quite frankly, if they do I’d shocked. Because it’s an entire statute, of 10 or 12 statutes, that are constantly being amended, and also amended by court cases. They at least know to pick up the phone and call somebody like me who knows something about this stuff to answer these questions.

Because the judge is supposed to, at the time of sentencing, designate this individual that was convicted, whether it be a jury or plea or whatever, a level, an offense level for registering. And that’s very important. Because in the state of Oklahoma there are three levels. Number one, two, and three. The Oklahoma Department of Corrections has set forth those levels in their regulations. And very few people know how to get to those sites, too.

But, you know, the first level is like 20 years. You also, in the state of Oklahoma, can commit a first offense, and actually be designated as a habitual or aggravated sex offender. Which means that you got to register for life. Registration for life means just that. Life. No relief whatsoever. We’ll talk about relief in a little while.

But when you’re talking about committing the following acts as a first offense, to become habitual sex offender you got to have a second conviction of a sex crime from any particular date. Or, you enter the state of Oklahoma after 1997 and been convicted of additional sex crimes. They declare you a habitual sex offender, and you register for life.

An aggravated sex offender, and this is the one people worry most about. If you commit the crime, the first crime, just the first time (child sex abuse, incest, forcible sodomy, rape one or two, lewd acts with a child, and then rape by instrumentation, or the person was a victim in custody of a school or state institution, etc.) you’re declared an aggravated sex offender and you must register for life. Period.

Law enforcement shall notify the family of the offender, the victim of the offender, neighbors, churches, parks, schools, convenience stores, businesses, and other places kids may hang out, nursing, residential, assisted living, and adult day care centers that there’s a habitual or aggravated sex offender living in the neighborhood. Or living in a town. There’s no limit on what they can do.

JF: There’s really no hiding from this.

JDP: None.

JF: So, let’s talk a little bit about how you find yourself getting on the sex offender registration. If you don’t want to be a registered sex offender, it’s real easy to say, “Don’t commit a sex crime.” Right?

JDP: Yes.

JF: But how is it we find ourselves on the sex offender registration, and what does registration really mean? What does it mean to have to register as a sex offender?

JDP: Well, to register as a sex offender, it kind of depends on where you live. In metropolitan areas Oklahoma City, Tulsa, probably Lawton, and maybe of the larger towns, they have sex offender registration units, of those police departments. I think maybe even Canadian County, El Reno has one. You have to go over there, and within three days of moving into the county, or within three days of being convicted, and actually sit down, go make an appointment, find out where it’s at, go sit down, and fill out the information – where you live, social security number, so-on and so-forth, and all that good stuff – and register.

The registration requirements depend on what the crime was, how long you’re on registration for, and things of that nature. I mean, there is a Department of Corrections sex offender registration which writes the rules and regulations. But at a local level, you actually sit down to do that.

JF: And how many times do you have to that? Do you just do it one time?

JDP: You do that one time. Unless, if you move to, say Oklahoma City to Guthrie, you got to go register with the local police department. And the police department’s probably going to send you over to the sheriff’s department. Okay? Fill out the same paper work. So-on and so-forth. Do you have a DOC number? Even though you have not been in prison, you still have a DOC number in the sex offender registration unit. They’ll pull you up, and they say, “Okay. You got to register like this.”

The worst kind of sex offender registration is the habitual and the aggravated. You got to, like, every 90 days go in and say, “I live here. I still live there.” You verify and so-on and so-forth like that, for the rest of your life.

JF: Are you subject to interrogation or questioning from law enforcement while you’re registering?

JDP: It really depends on who you’re involved with. The Oklahoma Court of Criminal Appeals held years, and years and years ago, that when the Department of Corrections had a sex offender unit, and a sex offender treatment plan, that you could not refuse to say, “Hey, I did it.’ Some of the people that went were in prison. They said they we’re wrongfully accused, along with wrongfully convicted. And they were back in there for the sex offender, and they refused to say, “I did it.” Well, at that point in time they were kicked out of the program. Well, one person didn’t like that so he took it to the Oklahoma Court of Crims. And the Oklahoma Court of Criminal appeals said, “Oh, no. You don’t have to admit to it. All you do, is you just go in and do the program and so-on and so-forth.”

JF: Acknowledge that you we’re convicted of it without having to admit guilt.

JDP: That program no longer exists – state funding. Usually, it’s not a situation of why their trying to interrogate you, or anything like that. When there is a sex offense committed, I think one example here in Oklahoma City was somebody was driving down a street in a pick up truck, and he looked like this, and so-on and so-forth. Making lewd remarks to kids, and trying to get them in the truck. Well, the Oklahoma City police has a handy-dandy list they can pull up. What kind of car the person drives. Where they live. Where the proximity to the area where this took place. And they can go out and talk to these people.

So, I have not decided whether sex offender registration is an effort to keep people from re-offending, or it’s just a huge monstrous pot for the cops to be able to go and check out people who are recidivist, and predators, and are always going to be available to the list. I personally am of the opinion that sex offender registration, has never, never stopped an individual from committing sex act after they have been convicted.

It is a way, and they use it, and they use it very, very heavily. They rely on it very heavily to go out and talk to people about – you’re kind of automatically a suspect if you want to do it like that.

JF: Well, it keeps the neighbors on alert, too. So, the government then gets to pry into your personal and private life. Not only by interviewing those around, but understanding is also during your registration process they get to ask you all kinds of questions. “Who lives in your home? Who are you dating? Does that person have children? How does that interaction work? And so, part of the registration is having to be able to answer those questions that the average Joe is not going to have answer those questions to law enforcement. So, we kind of compel people to give up their Fifth Amendment right to remain silent. And we’ve compelled them also to kind of waive some of their Fourth Amendment rights to be free from warrantless searches and seizures.

JDP: If you’ve committed a murder, and you’ve served your time, and you come out, and you’re on parole, they’re not going to ask you all those questions. They want to know where you live. If you’ve got a phone. Where you work. The car you kind of drive. But not all those other questions. Murder, you know? Somebody committed a murder. Sex offender registration they dig in as far as they can. And it’s not an interrogation, but it comes across like one, because if you don’t answer these questions we’re not going to supervise you.

I want to talk about people, and where people live.

JF: Okay.

JDP: There are two different zones of prohibitions for sex offenders. One is 2000 feet. And that’s from property line to property line of any school, church, day care, playground, any state institution that deals with children or anything like that. You can’t live in that area.

There’s a second one called a safety zone of 300 feet from a school that sex offenders cannot loiter. You can’t go out there and park your car in the parking lot at a grade school and smoke cigarettes and watch the kids. Bang. That’s 300 feet. They don’t need any probable cause. They come in and say, “Hey, are you a registered sex offender?” “Yes, I am” You’re within 300 feet, there not going to tell you just, “Move,” they’re going to arrest you.

The 2000 feet exclusion. They’ve had some problems with that. You start taking 2000 feet, and I think in Cleveland County, in Norman, I don’t think there’s any place in Noman where you can live.

JF: I think they’ve almost limited that in the Oklahoma City metropolitan area, too. And when you know this, you start paying attention. You look around and there’s a swing-set on the side of the road. That’s not in a neighborhood. It’s attached to a church, or a day care. It’s just a swing-set in a kept area with the grass mowed. We’re calling that a park. And those swing-sets and playgrounds, are specifically designed to keep sex offenders out. I know one of my old neighborhoods in Edmond had three separate playground areas for one, little neighborhood. And that was why. Because the big neighborhood couldn’t protect everybody with their one playground. So they put one at each entrance, and one in the middle.

JDP: Very few people realize this, that when a subdivision, nowadays, is created, I think it’s mandatory that they build in a park - for the subdivision. Or some type of facility where there is a swimming pool, or something like that, where people can go and kind of enjoy themselves, and everything like that.

I had a case one time where an individual was charged with being within 2000 feet of park. I drove out there, and there wasn’t any swing-set. There wasn’t anything. There wasn’t anything. It was vacant land. It had never been funded. It had never been built. But it doesn’t make any difference. It was designated as a park, and actually given to the city of, I can’t even remember what town it was, Bank. It was owned by the city. And, even though it wasn’t a functioning park, the guy couldn’t live within 2000 feet of it.

The one exception, and this is a huge exception, if you own property, a house, before you were convicted of a sex offense, and it was within 2000 feet of a, one of these prohibited places, you can still go back there and live. They cannot kick you out. It would be a punitive act. There is an Attorney General’s opinion from the state of Oklahoma specifically on that issue. They can’t make you move.

Now, rental? Yeah, you’re done. You can’t go back and rent. And it says if you intentionally establish a residence within the 2000 foot, you can be arrested. Whether you’re habitual, or whether you’re a first-time registration, or 15 years, or 10 years, or whatever the hell it is.

JF: So, when we talk about these people getting arrested. They’re getting arrested and charged with a new felony of failure of failure to comply with the Oklahoma Sex Offender Registration Act. Right?

JDP: Yes. That’s absolutely correct.

JF: And that new felony can be used, not only to violate the probation that you may be placed on, but also to give you new time that you’d be facing incarceration on new charges.

JDP: And that’s absolutely true. And, in other words, it’s just not, like I gave the example of the guy that was sitting in the parking lot of the school. He probably on some type of probation. And, in other words, he spent some time in prison, or he got probation after he’s still serving out his suspended sentence. There are serious, serious consequences about them doing that. Now, whether they’re all told this – they’re supposed to be told this, and they sign a certificate when they leave prison. By the way, when you’re in prison your sex offender registration period does not run. It only begins to run when you leave prison.

Now, these are, the applicability of these provisions are specific statutory provisions of which a person must be convicted to be a sex offender registration - that’s been held by courts. Abuse, neglect, and exploitation of a child under 18, if sexual offense, abuse is involved. Attempt to commit a felony, if sexual offense is involved. Kidnapping, if sexual abuse or exploitation is involved. Caretaker abuse, if sexual assault. Child endangerment, if sexual abuse is involved. Trafficking in children, incest, sodomy, forcible sodomy, child stealing, if sexual abuse is involved.

That’s the example that’s that woman that went over, stole her kid, and they were in a domestic dispute. She went over to seize and kept him over there, no sexual abuse involved. Just straight kidnapping, child stealing.

Indecent exposure. Computer drawings, CDs, you know, all that kind of good stuff, for child porn. Obscene materials, where minors are procured. Obscene materials regarding, or appearance involved, or children involved. Possession of child pornography. Publishing, distribution of child pornography. Aggravated possession of child pornography. Import, distribute, child pornography. Facilitate sex with a minor. Trafficking obscene materials. Procuring a child under 18 for prostitution. Procure and restrain a child for prostitution. Rape by instrumentation. Rape 1 and 2. And lewd molestation.

That involves about 20 or 30 separate crimes in that one statute. And you’ve really got to use it very, very, carefully.

Those are all the crimes that, right now, are, you have to register. Now, one other thing, is there’s several crimes that are not on there. ‘Peeping Tom’s’ haven’t seen that. There’s are some exceptions, but they pretty well get them. But, like I said, these are the ones. And most of them are 85% crimes, too. These guys serve 85% of their time.

So, that’s how you get on the sex offender registration list.

JF: Is there any way to get off, once you’re on?

JDP: Yes. There is, and we call that, I think. If you are a Level 1, which means you’re registered for 10 or 15 years, you have not been arrested, arrested only for a felony or a misdemeanor. Now, it remains to be seen, a traffic stop is not an arrest. You’re being detained. So, you got to be straight – no arrests. You were not convicted of felony or a misdemeanor in 10 year, since a release from confinement. You petition where you reside to remove the risk number, and no longer register. The district attorney, of course, has the right to object to that. And, the district judge must, must, agree to that. And then they can take you off.

There is one other thing, too. And this we call the ‘Romeo and Juliet’ registration.

JF: ‘Romeo and Juliet’ is the scenario, wherein the teenagers who love each other engage in a consensual act. And they fail to recognize that they are not lawfully of consenting to one another. So, it’s a strict liability crime. We’ll talk about some of that in some of the other podcasts. But ‘Romeo and Juliet’ is the boyfriend/girlfriend, no harm, no force, no violent act. Just two kids who didn’t know they couldn’t do what they did. Right?

JDP: That’s correct. And, by the way, I just recently heard of some people who were being prosecuted for a sex crime starting at the age of 10. So, you need to be careful. This ‘you show me and I’ll show you’ and this ‘doctor stuff’ for kids is gone.

JF: Because sex offender registration we don’t have to spend a lot of time talking about it . But the registration applies to juveniles as well.

JDP: It does.

JF: If you’re in juvenile court, and you’re charge with a sex crime, especially if it’s one those enumerated as an aggravated sex crime, you may very well be facing lifetime registration before you even hit the age of an adult.

JDP: That’s absolutely true. ‘Romeo and Juliet’ – the removal of the requirement to even register as a sex offender. If you’re convicted of 21 OS 1111.1, that’s second-degree rape. And, 21 OS 1114, that’s first-degree rape, or rape by instrumentation. You have no prior violation of the above two sections. You’re required to register based solely on violation of those two section. And your age requirement. Listen to this, the defendant is not more than four years older than the victim. And the victim was at least 14 years of age, or older. But, the victim, not more than 17-years old at the time of the violation. I know that seems a little, if you stop and think about it, the numbers don’t add up. Well, yeah, they do. If the kid’s 17, we’re into an adult situation.

If the defendant meets the above requirement, then they can be considered for removal. You must petition the court where the conviction occurred for removal. And the requirement must allege that removal does not conflict with the Adam Walsh Sex Offender Registration Notification Act. And that, is offenses involving consensual sexual conduct, if an adult, or was at least 13-years old. And the offender was not older than four years older than the victim. And then there’s a bunch of other stuff. And you may not have to even register then.

JF: But, of course, that’s not automatic. You’re going to have to hire a lawyer, petition the court, have a hearing, and the court’s going to make that determination for us.

JDP: This is not what we call pro se. Where you go in and say, “You know, the girl was 15. My son was 18. That works.” The court’s going to, “Who’s you lawyer?” That’s exactly what it comes down to. This is not something that you get training wheels to learn how to get out of automatic sex offender registration.

JF: So, when we’re looking for lawyers, not only in our original charge, that might give rise to sex offender registration, but as we’re already registered. And we need relief. We have find someone who has experience dealing with the Sex Offender Registration Act. Because, quite frankly Jack, let’s be real serious, most lawyers don’t like touching these cases.

JDP: No, they hate them.

JF: And most lawyers will say whatever they can to get that person off the phone. And you can’t necessarily rely on the advice that’s given to you if you’re talking to someone who has some pretty strong experience, and has worked in this field for quite some time.

JDP: That’s correct. That’s correct. You cannot, under any situation, when you’re involved with an allegation of committing a sex offense. That’s almost as bad, as I just pointed out here, it’s worse than murder. I mean, the consequences go on forever.

JF: Absolutely.

JDP: And, you know, think about this, if you commit murder, you’ve served your time, and you were on parole, and you committed another crime. You’re going to go back to prison. They’re not going to charge you with another crime. You go back to prison.

Sex offender? You get caught within 300 feet of a school. You’re just sitting there loitering. You’re going to get charged with loitering within 300 feet, and you’re going to be charged. And if you’re on probation, these charges are probably going to be in addition to whatever probation is going to be revoked.

JF: This is a ‘stack on’ kind of statute. We can stack on, and pile on the charges.

JDP: And the reason that sex offenders are treated so harshly is they don’t have much of a constituency among the electorate.

JF: Well, in our Sex Offender Registration Act, one of my big criticisms of it, is it doesn’t really differentiate on the registry the difference between a home invasion serial rapist committing violent acts, offensive to anybody who you ask, versus the ‘Romeo and Juliet’ situation. It’s not like if I want to Google up the sex offenders in my neighborhood, the ‘red’ ones are really, really, bad, and the ‘purple’ ones are. You know? This was just a boyfriend/girlfriend situation that got out of control. There’s no difference when the public is looking at these folks. One is just as bad the other.

JDP: Yeah, as a criminal defense attorney, Jacqui, you’re aware that sexual battery is a crime?

JF: Yes, sir.

JDP: And you aware that it’s a registerable crime?

JF: That’s correct. All sex offenses appear to be pretty registerable.

JDP: And, I’m going to ask you if you’re been in a bar someplace, and you’ve had a little too much to drink, and somebody walks by, and you pinch their butt. And they don’t seem to, male or female, and they don’t seem to like that, and report that to the police. Is that a crime?

JF: That is a crime.

JDP: And is it registerable?

JF: Yes, it is.

JDP: So, we’re not talking about something where you now have free reign to be as wild and crazy as you want to be in some kind of a bar, or something like that. You really, really need to kind of watch yourself. And this, we’re talking about this, a legislator was charged in Oklahoma City, county charges I should say, about 10 years ago. I never heard what happened to that case. Which means if you never heard what happened, it resolved in a very satisfactory manner to the defendant.

Very few people know that ice cream truck or vending things. You know? You see the guy walking down the street. If he’s a sex offender he’s got to register. If he engages in ice cream vending without a registration he could be arrested without a warrant. Same for sole proprietors.

If you are harboring or aiding a sex offender. If a person believes a sex offender is in violation of sexual registration requirements, and withholds information about their whereabouts, they’re in violation of a misdemeanor.

JF: So, if you know someone should be registering, and they’re not, you too have committed a crime if you don’t report them?

JDP: That’s absolutely right.

JF: If you know someone is, in fact, registered. But their living arrangements are not purported to be true, and you’re facilitating that. You now, have also committed a crime.

JDP: See, it says, sex offender is in violation of sex registration requirements. All of them. Living too close to a school, a park, a day care, a victim of sex abuse is in the home. I mean, there’s so many things that a person becomes responsible with. That’s why people don’t want to hang out with sex offenders. They carry so much baggage.

Sex offenders are, or were, subject to Sex Registration Act, and child custody and guardianship. There’s a rebuttable presumption, a rebuttable presumption. Miss Ford, can you tell me what that is, please?

JF: That means that you are presumed to have violated. And you, the accused, have the duty and burden to prove that you did not violate.

JDP: A rebuttable presumption is created that it is not in the best interest of a child to have custody or guardianship granted to a person who has, or is, subject to sex offender registration. So, if you are in a divorce proceeding, and you’re registered sex offender, or a prior registered sex offender, the court’s not going to give you that kid. They’ll allow visitation.

JF: Even if that is you’re kid from the ‘Romeo and Juliet’ set of circumstances, if you didn’t go to the trouble of getting off the registration. And, even if you did. That court may deem that you are not suited to raise you own children.

JDP: That’s true.

JF: That’s a devastating impact that most people don’t think about.

JDP: Now, let me tell you some of the things that are not registerable sex offenses: use of profane language in public, or breach of the peace. So, you can get up and curse at the barmaid. Just don’t pinch her butt.

Running a whorehouse, keeping a whorehouse, providing property for a whorehouse. Pimping. Being a prostitute. Every possible sex act that you can think of, as long as it’s paid for. Opening and running a strip bar. Outraging public decency.

JF: Now, this is the one that everybody says, “I know a guy who has to register on the sex offender registry, and he was doing was peeing in a park.” That guy’s full of crap. He’s not getting on the registration list because he urinated in a park? Am I right?

JDP: Under 21 OS 22, it used to be a registerable offense. Now, it’s only registerable if you’re urinating in public, and getting a little excited about it.

JF: For the purpose of sexual gratification.

JDP: And the only person that could possibly be sexually gratified is yourself. So, be careful.

You can’t curse in front of women and kids – not registerable. ‘Peeping Tom’, there it is. It’s a misdemeanor. ‘Peeping Tom’ with a cell phone, and/or publishing such images. I think it says up-skirt photos? At my age you cant’ get down and up that easy. So you’re going to have to read about it. Obscene phone calls – not registerable. A projection that’s showing obscenity. Showing dirty movies in a drive-in theater. Pandering and procuring prostitution. Restraining, pandering, seduction of an unmarried female of previous chaste character by promise of marriage. Abduction of a person under 15-years old for the purpose of marriage, or concubinage. And dealing with seduction, marriage, and abandonment, and indecent exposure. That’s an entirely different section that we really don’t have time to get into.

‘Peeping Tom’ again is not registerable. Unless you do it over, and over, and over, and over. Those are not registerable offenses. They are few and far between.

JF: Thank you so much Jack for imparting your knowledge and wisdom to us today. Is there anything about Sex Offender Registration Act that you think we need to know that I wasn’t smart enough to think of to ask?

JDP: One of the things of the Sex Offender Registration Act that I think is unconstitutional is if you receive a deferred sentence in Oklahoma

JF: And a deferred sentence, for people who may not have listened to some of the other podcasts, is a special kind of probation, in which you enter a plea of guilty or no-contest, but the court does not find you guilty and convict you at that time. He places you on a deferred. Meaning he’s going to set off sentencing for a time. It is not a conviction under any circumstances, except a few. And this is one where it will be treated just like a conviction. Even though you’re not convicted.

JDP: Yeah, it’s basically a withholding of the adjudication of guilt. But, the Department of Corrections – you got to register. Period. Okay? Now, if you get a deferred sentence in Kansas, and you come to Oklahoma, you don’t have to register. That’s not fair. That’s what you call unequal protection of the law, which is a violation of the 13th and 14th Amendments. That’s right.

We had a decision two years ago, now, I think, called Starkey vs. Oklahoma County, or something like that. And it was a groundbreaking case that said you can’t apply all these Acts, and all these ‘you can’t live here, and you can’t do this, and so-on and so-forth,’ You can’t apply those things retroactively. Starkey was a gentleman that had been convicted before all these things were passed. One of the big things is, and you have to look, and look, and look – aggravated and habitual sex offenders they had a great big go-over ‘S.O.” on their driver’s license.

JF: That’s right. We haven’t talked about that. But, much like if you’re on a modified driver’s license for a DUI, and you have to have a Breathalyzer. The new way of identifying sex offenders is they put it in great big letters on your ID. Which you have to present for any reason – buy beer, buy cigarettes, get through TSA. There’s no hiding.

JDP: Then all of a sudden everybody’s ears are perked up, “Hey, look at that perv. He’s a sex offender.”

JF: And again, the sex offender stamp, doesn’t say, “Had sex with his girlfriend when he was 17 and she was 15.” Right?

JDP: That’s correct. Just broadly says bang, you’re a habitual sex offender. Very few people know that that does exist. A normal, or usual, a non-aggravated, non-habitual sex offender, does not get his driver’s license with a sex offender thing on it. It is, what it is.

JF: So, there’s room, oftentimes, from the perspective of helping our client. Just because we’re accused of doing it, even if we’re guilty of the violation or guilty of the original act. There’s room for negotiating around the sex offender registration. But, that has to happen at the onset of initial criminal act, almost.

JDP: That goes back to: you cannot go down through the phone book and say, “Oh, this guy advertises he does criminal law.”

JF: “Or, this guy helped my Aunt Susie with her DUI onetime. I’ll go see him.”

JDP: This thing has become such a, the Oklahoma County District Attorneys office has a unit.

JF: The Special Victims Unit.

JDP: And that’s all they do is prosecute sex offenses. Now, if they are, there’s like four people, I think running that thing. And if they have unit that is dedicated to sex offenses. They don’t have any other unit. I mean, all the rest of the other DA’s can handle it, and everything like that. Why would you go out and hire somebody who helped Aunt Janie get out DUI 20 years ago? When you’re going up against people who have multitudes of years of experience in trying cases, and putting them on, and taking them down here to the nature house, and letting them give good interview, and so-on and so-forth. And use dolls. All of those things are subject of all kinds of problems.

And don’t get me wrong. There are some people that practice law, that try cases all the time, that don’t handle sex offenses, that are damn good lawyers. But, by God, you get a sex offense, you better find somebody that knows what the hell they’re doing. And all you have to do is ask one question. “Sir, or ma’am, what is the child accommodation syndrome?”

JF: It’s important, at that point, to check your lawyer. Interview them. This is your case. It’s not their interview. They’re not here to pick and choose which case they’re going to have. They have that right. But, you, as the offender, or the accused, have a very, very, very special position where you get to put the lawyer in the hot seat. And we suggest that you do it. Because there’s only a handful of law firms in the metropolitan area that I would think are qualified, and experienced enough, that I would trust them to handle a case for my friends or family.

JDP: It’s a situation, and a lot of people go, “I’ve never dealt with a lawyer before.” And they go in. And they think because they’re talking to them, they have to hire them. Not so. Conduct an interview. Ask them if they know what a child accommodation syndrome is. If they don’t, and you don’t have a clear understanding of what it is, excuse yourself and say, “I’m sorry. I need to go to somebody else.”

JF: This is not a case in which you want to discount shop. You’re not looking for the cheapest lawyer in town.

JDP: And, by the way, finding a criminal defense attorney, that does not judge you, does not question you, does demean you, does not embarrass you, but, yet, is competent to handle these cases ain’t cheap.

JF: That’s right.

JDP: Because 99% of the lawyers, they don’t want to have a reputation of being next to those people, or next to them. Because they don’t want to answer a question at a party, “Why do you represent these sex offenders?”

JF: I get asked that question all the time. And we’ll talk about it in another podcast. Thank you so much Jack Dempsey Pointer for joining us today. I could not be more grateful for you for sharing with us.

JDP: You’re quite welcome. And I hope it goes well.

JF: You’ve been listening to Your Best Defense podcast. Join us next week.

Jacqui Ford, Jacquelyn Ford Law, P.C.: Welcome to Your Best Defense podcast. My name is Jacqui Ford, and today we are going to talk about sex. Specifically, being accused of sex crimes cases in the state of Oklahoma.

The first, and most important, piece of advice that I have to give you, and if you hear nothing else in this entire podcast or series of podcasts dealing with sex crimes cases in Oklahoma, hear this: Do not talk to the law enforcement. Most times when people are charged with this, our natural inclination, especially if we're innocent, is to defend ourselves. It is really imperative that you understand that law enforcement are not your friends. They are not asking you questions in order to clear you of these allegations. They are trained to take your words out of context, and use them against you in the future. So, the first and most important thing is, stop talking to the police.

Sex crimes allegations gives some extra kinds of concerns that most other cases don't really have. A lot of times, especially if we are falsely accused we want to talk to people about it, about, "How do I get out of this?" And so, we go to our safe places. We talk to our counselor or our psychiatrist, some of us share this information with our preacher, or our friends in the church community. Maybe you know someone at DHS? Or, DHS is the one who's come to you with these kinds of allegations, and they just want to hear your side of the story? You cannot talk to these folks. You can't talk to your primary physician. You can't talk to anybody. You really can't even talk to your wife, your mother, your father, or your kids.

And this is why: in Oklahoma these people are deemed mandatory reporters. If these allegations include a minor, which means anyone under the age of 18, even if they're 17-years old, even if you're innocent, even if she consented to the act, they are children. And Oklahoma law requires that these people in power (law enforcement, DHS, doctors, including doctors at the emergency room, your counselors and your preacher) all of these people, with cops as the exception, all of these people kind of have a fundamental confidentiality with you. We protect your communications with your preacher. We protect your communications with your doctor. Often times, the law will even provide a privilege for talking about things with your wife or your husband.

But in Oklahoma, these people are called mandatory reporters, which means if they hear that there's an allegation, or they have a suspicion, that a child has been the victim of any kind of abuse, physical abuse, sexual abuse, if those children have been exposed to things that are outside of what the reported person believes to be community standards, they are obligated under law, not they "can" report you, they are obligated to report you. And their failure to so will put them at risk of being charged criminally.

So, all of the places that we generally go to as a safe place are no longer safe when we're being accused of a crime against children or a crime involving sex. With that said, who can you talk to?

You have to find a lawyer. The attorney-client privilege that attaches is sacred, and we are not mandatory reporters. You can come into my office and admit that you did every single thing that they said that you did, and I cannot report that. And I will not report it. My ethical obligations as an attorney prohibit me violating that confidence. And I am not a mandatory reporter.

So, how do you figure out who to talk to? Well, you don't just want to talk any lawyer. You want to find the lawyer that has experience in sex crimes cases. You have to find an Oklahoma City sex crimes defense lawyer. How do you know if they're sex crimes defense lawyers? Well, we're not allowed to specialize. I can't put on my website, or on my business card, or on a billboard, that I specialize in sex crimes, that I specialize in defending folks accused of crimes against children, or crimes involving sexual acts. My ethical obligations prohibit me from doing that.

So how do you figure out whether or not the person you're talking to is experienced enough, and qualified to handle these kinds of allegations? You have a duty and an obligation to yourself to interview those lawyers. The lawyer that you chose, this is as important to you in this matter as the doctor you would choose if you had a brain tumor. You are quite literally putting your life in their hands. It is their honor to represent you. You should not be honored to have them represent you. That's not how this works.

So, take advantage of your free consultation. Most lawyers offer them. I certainly do. Come in and interview me. Ask me about my experience. Ask me how many cases I've taken like this to trial. Ask me if I have to go to trial in these cases. Because I'm going to tell you as an experienced criminal defense lawyer who does a lot of work dealing in sex crimes: these cases don't have to go to trial. We have a lot of tools at our disposal that we can help you through this process. And each case is so fact-specific that you really have to get in and visit with me, and you have to do it sooner, rather than later.

If you know you're being accused you cannot let fear, shame, or embarrassment stop you from picking up the phone. With most of my clients charged in these things, often times they are falsely accused. And they report to us that picking up the phone and asking for help in this regard was one of the hardest things they ever had to do. And I understand that. It's embarrassing. Even if we did nothing wrong, our reputation has been damaged in the community, and we are afraid that people are judging us.

What you'll find here is that you walk into this door with no judgment. You will not be judged. You will not be shamed. You will not be made to be in fear of what's going to happen. You're going to walk into this door, and be welcomed by me and my staff who are equipped and experienced in dealing with these kinds of cases. We understand the emotional turmoil that it puts on you, and you families, and your employers, and the people in your community. This does not just affect the accused. It is a wide-reaching, damaging accusation, and you have to have people who are prepared to defend you, not just in a courtroom, but with those other people in your lives.

We know how to do that. Most lawyers that don't practice in this area don't know how to do that. These accusations are very different than any other kind of accusation. It's not like you've been accused of DUI, wherein everybody we know has been arrested for DUI at least once. Most people know somebody who's been through the criminal justice system on a simple possession of marijuana charge. Or, even a domestic violence, wherein they got into a scuffle at home. These cases are very, very different. And you have to go somewhere where they understand the nuances of what's going on in sex crimes litigation.

Every district attorney's office has lawyers that are skilled and trained to prosecute sex crimes, specifically. In Oklahoma County they have an entire division of their district attorney's office dedicated to what they call the Special Victims Unit. We know that society looks at these cases differently. We know because Law & Order has an entire series dedicated simply to the Special Victims Unit. Where this show's been on the air for years. We do not have a Law & Order that deals with the Domestic Violence Unit, or the DUI Unit.

That's because these cases are different than every other case. And you have to interview the lawyers to find out in a position to trust them to take your life and your family’s life future in their hands. Once you find that criminal defense lawyer, and you've hired them, the most important advice I can give to is you must be brutally honest. Many times we want to defend ourselves, or withhold information because we think it makes us look bad. Often times, when we're falsely accused of sex crimes it's because we've done something wrong to somebody. Not necessarily raped them, or violated them in any way, but if they're putting that false allegation on you it's because you've hurt them in some way. We don't want to acknowledge our own wrongdoings.

But it's important when you sit down with me, and I ask you, "What happened?" That your honesty is unmatched to anywhere else you've ever been. And it kind of goes against most of what we've learned. Most of the time defense lawyers tell you to shut your mouth. “We don't want to hear the details. The details will make it harder for us to defend you.” In sex crimes cases the devil is in the details. The only way you will be freed from these allegations, and not have the stigma riding with you for the rest of your life, is if you are brutally honest with me.

You have to tell me everything. And you can't bank on me being smart enough to ask you all the right questions. So, prepare yourself to come into that room, and really expose your soul. It's important because it's the only way I have to defend you. If we start building a defense based upon on a lack of truthfulness, or not having the whole story, that can really blow up in our face quicker in a sex-crimes case than anywhere else. Remembering that that confidentiality that you have with an attorney-client is sacred. We've engaged in an oath to Oklahoma Bar Association, that says if we violate that confidentiality, they can take away my license to practice law. I will not ever violate that privilege. Any information that is shared within this office can only be repeated with your permission. So, you will be instrumental in building your own defense. Therefore, we have to start out this process open, and honest, and with a free-line of communication. It's the only way that we can really help you. Holding back from me is only going to hurt you in the future.

So, the first thing you have to know is stop talking. Do not engage in any interview with anyone that is asking you questions that sound like you're being investigated. You ask whoever's asking you, "Am I a suspect? Am I free to leave?" And if the answer is, "You're free to leave." Then you kindly thank them for their time, and you exit the room. Do not be bullied, do not be pushed. The reason that people get tied up in this idea of lawyering-up is because we believe that only guilty people ask to talk to a lawyer. This is insanity. This is what the cops want you believe, because they don't want you to ask for a lawyer. The first thing I will do is stop the interrogation. No further questions of my client. And if you're not under arrest, we're leaving - you're walking out with me. If I don't stop that interrogation, they are just going to take your statements and use them against you. And it quite common that those statements get pulled out of context. If, and when, we decide it is in your best interest to engage in an interview with law enforcement, or DHS, or anyone else, we will record that interview ourselves. So, that we cannot ever be faced with our words being taking out of context, and being presented to a jury of our peers, twisted and misunderstood.

It is not guaranteed that I won't help sit down with law enforcement to engage in these conversations. But you have to give us the opportunity to make that decision together. It is a strategic decision, and it must be made with the advice of counsel. If law enforcement is giving you a hard time about it, you'd better believe it's because they're scared for you to lawyer-up, that they wont be able to continue to gather information to put you in prison for a very, very long time.

These cases are different than any other case, because law enforcement and those involved in the investigatory purpose, or process, are trained to believe the accuser. The accuser will be forced to tell her story over and over and over again, but not once will she ever be challenged until she's sitting in a courtroom being cross-examined by me with your assistance. They will not ever look at her and say, "This isn't true. Is it?" And start picking apart their stories, but they will do that to you. They are trained to believe the accuser at all costs. And if they start their investigation believing that you are guilty, then nothing you say can get you out of that presumption. You have to leave it to the professionals to do that for you. I cannot stress enough how important it is that you exercise your Fifth Amendment right to remain silent until you've engaged with a qualified sex crimes defense lawyer in Oklahoma City. That is the only way you can protect yourself, and the best way to have a chance of ever walking away from this situation a free person.

Outro: Thanks for listening to Your Best Defense podcast. If you need a passionate, energetic, and unintimidated defense attorney contact Jacqui at fordlawokc.com. Or, call 405-604-3200. Remember, your best defense is a good offense. Jacqui Ford – not afraid of a fight, and always fighting for what is right.

Jacqui Ford, Jacquelyn Ford Law, P.C.: Welcome to Your Best Defense podcast. My name is Jacqui Ford, and I am your Oklahoma sex crimes defense lawyer. We're working on a series this week about defending sex crimes in Oklahoma. This podcast is going to talk about the defenses. And, quite frankly, if you've been accused of rape, you only have one of two defenses. Number one: "it wasn't me." Or, two: "it wasn't rape."

In 2016, with the technological advances that we have, the defense of "It wasn't me" is almost obsolete. Law enforcement has abilities to identify the offender better now than they ever could before. So, and it's also very uncommon that rape allegations come from a "stranger" event. More times than you would imagine, these allegations come based upon someone that you knew. You know them either socially, they are someway affiliated with you or your friends or family. Or, oftentimes, they are, in fact, the people that we love the most - our children, our girlfriends, our friends. ,

So, this podcast we're going to talk about, "What do we do?" We're not going to spend a whole of time on the defense of "it wasn't me" for those reasons. We can prove it up with our DNA mostA of the time. Those aren't the cases that generally get litigated. The cases we see 9 times out of 10 is, "I'm falsely accused." And if you're falsely accused, how do you defend yourself? The problem with these cases, and there are lot's of problems with these cases, but a big one is the allegation tends to be something that takes place in private. Prosecutors oftentimes preach to jurors that it's hard for them to prove these cases because rape is a private act that happens in the dark corners of society. If you're guilty of rape, that's probably true.

But. what if you're falsely accused of rape? Many people are falsely accused of rape in this country. Although, rape is oftentimes been described as one of the most underreported crimes. I'm here to tell you it is one of the most falsely reported crimes. And it's incredibly hard to defend because we're dealing with a "he said/she said" scenario. And most of the times, even in false allegations, the accuser isn't saying this happened in a room full of people with a bunch of witness. So, you can't call folks in and say, "I was there. Billy didn't rape Susie. I saw everything."

So, now it's just a matter of what she said versus what you can prove. And this causes a lot of problems in defending these cases. Because, number one, you have a right to remain silent. You are not compelled to take the stand in your own defense. It is my belief that if we can avoid a criminal defendant mounting the stand, we should do so at all costs. There is nothing more uncomfortable than sitting in a witness chair and being subjected to cross examination. As a criminal defense lawyer, I have sat in that chair, and I have been subject to cross examination by very skilled lawyers, who are there and designed and trained to ask loaded questions and leading questions. And it's a very uncomfortable place to be. It's a dangerous place for a defendant to sit. If I can avoid you from having to take that stand to defend yourself, that's going to be my goal.

So, how do we do that? How do we defend against the false allegations? In this country we have this idea that you are innocent until proven guilty. Although, fundamentally, I think that is not a reality in practice. When it comes to sex crimes defenses, it's even less of a reality. A person accused of rape, or child molestation, or anything sounding in sexual abuse starts the game way far behind the starting line. People are not generally inclined to give that person the benefit of the doubt. And I know this because I've practiced this in social settings. You can go into a barroom full of people, and ask them for your attention for a moment, and just ask them questions. And you can say, "Can anybody in this room find a reason why you might be justified in killing somebody?" And hands will just pop up all over the place. People can justify murder. "I was defending myself." "I was defending my family." "It was an accident." There are lots of ways we can get there. My favorite defense in murder cases often times is, "The son a bitch had it coming." But in sex crimes cases that’s not where we're at. In no setting that I've ever conducted this little, mini-experiment, has no person ever raised their hand and were able to justify forcing yourself upon a woman. At no time have I ever had a juror raise their hand and say, "Yeah, I can understand why he might have raped her, and that be okay.”

Sex is very taboo in this country. It's even more taboo in Oklahoma. We reside in Bible Belt. It's not something we're supposed to talk about. Even though most of us enjoy it, it's not something we're generally supposed to enjoy. So, to talk about it openly and freely in a room full of strangers is almost impossible. And as you listen to some of our future podcasts, you'll hear how lawyers struggle with talking to jurors about these things. But you and I have to talk about it when we're defending you if you've been accused of such a horrid crime. You have to understand that you do not sit there and bear the presumption of innocence. It's very unlikely that anyone is going to be willing to help you, or let you off the hook.

So, what does that mean? Although the law doesn't say you have to prove yourself innocent. In practice, we're pretty much riddled with that burden. We have to present evidence to the jury that will make them disbelieve the accuser. They have to, not only disbelieve what she is saying, but like you well enough to let you off the hook. And that's a terrible, terrible place to sit as an innocent person falsely accused of a crime. How do we prove a negative? How do we prove a negative without you having to mount that stand in your own defense

There are a number of ways. When you have gone to the trouble of interviewing lawyers, and have come to an experienced Oklahoma criminal defense lawyer who has been qualified, by your standards, to represent you in such a specialized kind of case, part of our job is to not only get your version of events. But figure out where the truth lies, and why this accuser would lie against you. Why would someone make up such a horrible story, and put it on somebody else? What must you have done to deserve this kind of accusation? These are the questions the jurors have.

And part of our job is to be able to figure out that motive, and be able to present that story to the jury so they can not only allow you to go home and acquit you, but they also don't have to make a personal judgment against the accuser. And that's really important. It's really easy to imagine being angry at the person who pointed the finger and lied against someone in this way. We can go in there as criminal defense lawyers and attack her, and bully her, and get all of her different versions of events, and make her explain to this jury why she can't tell the same story twice. But it's my professional experience that jurors don't much like it when criminal defense lawyers get up attack the "victim". Even when you and I know she's not the victim of anything. The prosecution’s going to call her a victim. The cops will call her a victim. And the judge, against all of my objections, will likely refer to this woman as a victim. And nobody likes to be part of re-victimizing a victim. So, what do we do? Our job is to figure out what is her motive to lie. And we'll work together on that to figure out what it is. She's probably never going to mount the stand and admit it.

So, before we get to what are some possible defenses. I want to talk just real briefly about what is not a defense to rape. In a situation where you're engaged in sexual activity with a minor who has not reached the age of consent, consent is not a defense. It gets rather complicated dealing with Oklahoma law - who can't can consent to whom, to what, and when. But let's just assume for the purposes of podcasting that the accused is 25-years-old, and he's engaged in some sort of sexual activity with someone who he finds later to be a minor. And a minor simply means under the age of 18. If the law does not permit this person to consent, it matters not how much she asked for it. It matters not how much she wanted it. Or, if she was the instigator. You can have it on video, of her dancing, and jumping around, and being more than excited. If she is not of the lawful age to consent, consent is not a defense. This is called strict liability. In Oklahoma, many of our sex crimes cases fall under this term of strict liability - which means she was either old enough, or she wasn't.

A good example, of what I've seen on numerous occasions, is a man meets a woman in a bar. In Oklahoma, in order to be in a bar, she must be 21-years of age. And let's say your sitting at there at the bar when she walks in. And she walks up and orders her first drink. The bartender gives her, or asks her for her ID. She passes an ID over to him, looks at it, confirms that she's 21-years of age or older, and proceeds to serve her alcoholic beverages. Fast-forward a couple of drinks later, and maybe you've mustered up the courage to go visit with this pretty, young lady. In fact, she looks kind of young to you, and you just want to protect yourself, and make sure that she is who she says she is. And you ask to see her ID. Her ID indicates that she's 21-years or older. It's got her address, and it looks quite legitimate. One thing leads to another, and you find yourself engaged in intimate activities later on in the evening. And you take her home the next day, and drop her off at mommy and daddy's house. Mom and dad find out what happened. Look at you and seeing the graying in your beard, or whatever, that indicates to them that you are much older than her, and they call the police. They've got your tag number, they've got her phone, and of course, they've shamed her into telling them everything about it. You're drug into law enforcement, and you're being asked questions. And you say, "But she had an ID that said she was 21. The bartender was serving drinks. I relied upon that." When you're accused of rape in the state of Oklahoma, ignorance of her age is not a defense. It is a strict liability. She was either old enough to consent, or she wasn't. And nothing you say, and no set of the circumstances change that.

Another realm of issues that we have, and we'll talk more about child pornography in a future podcast, but child pornography is also a strict liability claim. You either possessed it, or you didn't. There is no gray area. If it is deemed that this is a person under the age of 18, and you're in possession of photographs, audio, or video, or still photos, of this individual, you are in possession of child pornography. There is no defense to that. Ignorance, again, is not a defense. It can mitigate the damages. It can be used in negotiating a plea deal for you. But it is not enough to get you acquitted in front of a judge or jury.

Another thing that you cannot do when you've been accused of rape, or some other sex crimes violation in the state of Oklahoma, is blame the victim, or the accuser. Oklahoma has very strict rape-shield laws. Meaning, that you don't get to bring in the fact that she's had sex with everybody on the football team, so she must have consented to you. Her previous sexual history is not relevant. And in trial, most of the time, the judge is going to rule it inadmissible. She could be a prostitute who consented to engage in repeated sexual activity with 25 partners. And when you get up to your turn in line, she decides she didn't want to have sex with you, whether you paid your fee to ride the ride or not, you don't get to have sex with her. She could have consented to 1-23, and you're lucky number 24, and she say, "No." And then she says, "yes" to 25 - none of that comes in. Her sexual history, and her sexual behavior, and her reputation for sexual behavior is not a defense.

So, what is a defense? This is were it really takes some artful skill. Our job together is to discover what the truth is. Whether you know it, or not, if you're being falsely accused, there's a good chance that there's a motive for her accusing you. So, we have to figure out what that motive might be. And these options are endless. We don't have time in this podcast to exhaust every possibility. These crimes, these allegations of sexual abuse and rape are very, very fact-specific. There's no way for me to give a "How To" defend these cases that would be applicable to every case.

What I can give you is some overviews; what we see a lot of times. A lot of times, one of the things we see is it's consent gone wrong. In that case, what do I mean? Well, much like our example of the young lady having the fake ID, if she ain't old enough, it matters not that she consented. It is a strict liability crime. Rape in the second degree falls into that category. Oftentimes, we see rape in the second degree between boyfriend and girlfriend. Wherein they think that they've waited for her to turn the right age, but they're just mistaken about the law. Her consent is not enough, and your ignorance of the law is not enough.

How else can consent go wrong besides her lying, or you being mistaken about what is legal and what is not? This category of defenses, I kind of refer to as "buyer's remorse." And not to belittle what's happening, but that's exactly what's happening. They consent to the activity, and the next day they wake up and decide this was a bad idea. Much like going and buying that big, fancy car. You get real excited by all the bells and whistles. And how fast it goes, and how new it smells, and it's so great, and you want to do this. And the day you wake up and you think, "Oh! I don't want to be riddled with this car payment. I shouldn't have bought that warranty. This is more than I can handle." Well, we don't get to go and do a take-back. Oftentimes, we see this where alcohol is involved. Everybody's had a bit too much to drink. The "yesses" are flowing. And the next morning the accuser regrets her actions. Why could this be?

Well, number one, maybe she doesn't pride herself in engaging in casual sex. Although, it is rather acceptable to a lot of folks, it’s really unacceptable to a number of people as well. Maybe, she got seen leaving your dorm room, and she doesn't want people to tell her boyfriend that she spent the night in your place. In order to protect herself, she now has to accuse you of drugging her, or holding her against her will, and having sex with her in a manner that was not within her consent because she doesn't want to face the fact that she cheated on her boyfriend. That can flipped around, wherein she doesn't want to accept the fact, or be riddled with the knowledge and the burden of knowing that she engaged in sex with a married man. She regrets her decision, and in her mind twists it around in a desire to protect herself and her reputation. And oftentimes, these women have no idea the damage they're causing. But that's a version of consent gone wrong.

Another way we see this is in a scorned woman. And this might still kind of be consent gone wrong, right? Maybe it's your girlfriend, and you've decided to break-up with her because you want to date someone else. And she doesn’t let you off the hook that easily. Maybe you were engaged in what you thought was acceptable, casual sex. I've seen in many cases, and we'll talk about one in particular in future podcasts, wherein if you had just stayed and showed her some respect, all of this would have never happened. In an environment where sex is such a casual thing and we see it everywhere. And hooking-up in this environment is a very acceptable part of sexual activity, not everybody is okay with the hook-up. If she thinks that it's more than what you think it is, and you reject her, she might have a desire to teach you a lesson. And maybe it's not even revengeful and hateful. Maybe it's her own personal way of dealing with her own self-disrespect for allowing herself to go that way. And we have to explore these options. And see if we can find evidence to support that as a motive for her lie.

Another area, wherein I see this, is when we have a prostitute. And a prostitute who has not been paid. A prostitute is oftentimes working for someone, and if you engage in that kind activity and think that she's an easy mark to walk out after her services are completed. That consent ended when you did not complete the transaction as agreed. It's much like walking into a Wal-Mart. You walk into a Wal-Mart, and you look at the price on the shelf, and it says this item will cost $20. And you say, "Oh, I like this item. It's worth $20." You don't get to go home and use the item before you pay the $20. Wal-Mart did not consent for you to have use of that item without first paying for it. So, when you refuse to pay, you have violated the communal contract that you've engaged in with Wal-Mart. The same thing happens with the prostitute. She did not consent to have free sex. When she reports back to her pimp, or her manager, or whoever we want to, or whatever name we want to give him, and she hasn't been paid, somebody's going to have to pay. There's a strong likelihood it's the man who stiffed the bill.

Unfortunately, another area in which we see false allegations of sexual abuse, or sexual abuse of children, occurs during a divorce. And it's incredibly difficult for people to imagine being in a situation wherein someone you once loved, would conjure up a lie to cause such damage and wrongdoing that will forever riddle the accuser with horrible, horrible perceptions from the community. We see it a lot of times when you're going through the divorce, and the oftentimes unfortunately, and this is not always the case, but it's easier to talk about wherein the women are falsely accusing the men. It is not impossible for men to falsely accuse women, either. But, that's not the norm. Oftentimes, what we see in this scenario is where a parent coaches their child to make allegations against the parent. Or, the other parent's newfound love interest in a custody dispute. Because what we know for certain, is that in family law cases a judge is required to do what is in the best interest of the child. And there is not a judge in the state of Oklahoma that is going to find that it is in the best interest of the child to reside in the house with someone whom the child has accused of molestation or rape. It happens more often than you think.

It is important, that when we go out and engage in the very adult activity of sexual encounters, that we do so with respect in our minds. I don't know how we, as a society, have gotten to the place where casual sex is so readily accepted, but that is where we are. And when we accept that level of casual sex, what we also must accept is the ability to falsely accuse somewhat strangers. So, my advice to people all the time is if you don't want to find yourself in a position of being falsely accused, start out by treating your women and your love-interests with respect. At the end of the day, most people don't want to be used and put away, or thrown away. If you're engaged in a relationship treat her with respect. The false allegations come from a place of hurt. They come from a place of a need to, maybe it's seek revenge, but maybe it's just to validate one's own actions when we can't face the consequences that we made bad choices.

What I have found is men who find themselves in this position have usually engaged in some sort of activity that is hateful, or rude, or just disrespectful. And women have an incredible amount of power to make these accusations. The power of accusations of sex crimes is greater than the power of accusations of anything else. Because even if we do everything right, and we get this case dismissed. And that is going to be our ultimate goal. I would rather the case be dismissed, than run the risk of putting you through a jury trial. But, if we get to that point and we’re successful, and you are vindicated. The rest of the world is just going to look at you as somebody who got away with it. So, you need think about our actions, and recognize that it could happen to you. It happens everyday in this country. And once it's happened, your life, as you know it, will never, ever be the same.

I've seen false allegations of rape be used to extort men. To extort women. Wherein we've cut off some sort of financial responsibility to someone in an attempt, oftentimes, to protect ourselves, and possibly in an attempt to stop enabling them so that they can stand on their feet. When people make these allegations they have no idea how fast and furious this snowball rolls down the hill, and builds and builds and builds and builds and builds. It is natural, once you're in it so deep, that to admit that you ever lied is so hard, that most people just can't do it. They can't face the fact that they've done this, in and of it's own self. Or, they've convinced themselves at this point that it really happened. Or, they recognized that it didn't happen. The case exploded greater than they could have ever imagined, and they're afraid if by telling the truth that they will then be in trouble for making false allegations.

So, that kind of wraps up possible defenses to a rape case, wherein, the defense is not "it wasn't me." You're an identified person that they know and they love, and a relationship exists. The defense can't be "it wasn't me." It must be something else. Although, the law doesn't say the burden shifts to us, it does in fact shift to us. And we have to work together to come up with the perfect defense. Tying back into what we've talked about in the past, you must, must, must be brutally honest with your defense lawyer when we're talking about this so that we can figure out really what's going on. And we're probably not going to figure it out in the first setting. It's going to take work. And it's going take investigation. And it takes time. But the best news I have for you is that it is not hopeless. Many people find that being falsely accused of something like this is not hopeless. Many people walk away from this without conviction. Many people away from this without having to register as sex offenders. Many people walk away from this without ever having to sit in that witness stand and defend themselves in front of a jury. But the only way that you can ensure that you have that opportunity is to make sure that you hire a qualified Oklahoma sex crimes defense lawyer. And when you do that, you can trust that you're in the best hands, and that the hope is still alive.

JDP: And always remember this. In this country, the US Supreme Court has said a man’s home is his castle; you cannot get into that castle without a search warrant.

 

JF: Now, come on, Jack. If you’re not guilty and you didn’t do anything wrong, only a guilty person wouldn’t let them in and only a guilty person would ask for a lawyer.

 

JDP: That’s why we have to be very careful in the selection of our jurors, Ms. Ford. Because we don’t want to have a juror on our panel that thinks like that, because in this country, our constitution says you are presumed innocent until found guilty beyond a reasonable doubt by a jury of your peers.

 

JF: So it matters not what the agent at the door says or thinks or threatens; you should exercise those rights so that you can best protect yourself.

 

JDP: That’s correct. If you let that agent cross that threshold, he could go anywhere in that house he wants to go. It’s a little tough to revoke your permission for him to go in when he’s got a badge and a gun. And he just kind of wanders around and looks in all of your stuff, and you think, “Well, he can’t do that.” But yeah, he can. You let him in. Don’t let him cross that threshold. You come outside and talk to him. They’re looking for evidence. And why are they talking to you? They want you to confess or tell them somebody is doing another crime or something like that. They’re very adept at their jobs.

 

JF: And they’re nice guys; they’re not mean guys.

 

JDP: Oh, they’ve got kids and dogs and houses and lawns and lawnmowers and a whole routine. They’re all nice guys. Some of these guys are my best friends. But if he thought I was doing something, if he sat down to have a conversation with me, then you always have to say, “Is this conversation for the record?”

 

JF: It’s always for the record with the feds, right Jack?

 

JDP: That’s exactly right. And it’s always for the record when you talk to a police officer. “Officer, I only had one beer,” and the officer says, “Yes, I can smell not very heavy alcohol on your breath. By the way, do you take those oxycontin for pain?” “I certainly do; my back is killing me.” “When’s the last time you had an oxycontin?” “I’ve had four today.” “Sir, you’re under the influence of drugs.” Be careful. They’re your friends until… Okay, now, if I have a problem and I need someone who makes a quick decision and takes no prisoners, I’m not calling a defense attorney. I call a cop. I want it done. “Help me, brother.” I have tremendous respect for our law enforcement guys in the field.

 

JF: I do, too.

 

JDP: But anyway, back to federal criminal defense at your arraignment. If you’re indicted by a jury of 16-23 people, you do not have a right to have a preliminary hearing. You do have a right to have a hearing for detention. Will you be detained or not? That judgment call is usually by a United States Attorney who says, “I want him to be detained; he’s a flight risk, and he is therefore a danger to the community.” You must always know what to do, and that’s why it’s important to have an experienced Oklahoma City Criminal Defense Attorney in federal matters like Ms. Ford and myself. It’s critical that you have somebody who knows which stage the proceeding is and what law is involved—how the procedure works. I can assure you within the sound of my voice, in Oklahoma, there are probably not more than a dozen experienced federal criminal defense attorneys. It’s just a field of endeavor that a lot of people don’t like to do. Maybe because of the 70-Day Rule. When they file their indictment, they’re ready to go to trial.

 

JF: Well, and you have to have a trial lawyer, too, because there’s no such thing as a plea agreement in federal court, right?

 

JDP: All plea agreements are blind.

 

JF: Which means the judge is making decisions. Litigation is going to happen. Whether you’ve agreed and admitted your guilt or not, you still have to argue to the court, so you have to be with a lawyer who is experienced in the courtroom, who is able and willing to stand up to the federal court judge or to a jury because you don’t get to agree to a deferred, and everybody goes home, and everybody goes on about their business. This not state court, so at every proceeding, you have to have someone who is ready, willing, and able to put 12 in a box. That’s why a trial lawyer is what you’re looking for.

 

JDP: A federal trial lawyer. There are a lot of good state trial lawyers, but they don’t come to federal court. Two reasons, it’s a rocket docket, and you’ve got to be prepared—you can’t take the time reading through Title 18 and see what the federal rules are and all of that; you have to know that stuff.

 

JF: You’ve got to know it and be ready to go on the fly.

 

JDP: That’s exactly right.

 

JF: That’s why I’m so glad I have you, Jack. I get to piggyback on the back of your 45 years of experience and have the benefit of learning about those sentencing guidelines from the best of the best.

 

JDP: Oh, those sentencing guidelines. You know, I actually was—that was in 1984, and I don’t even think you were born, then, were you?

 

JF: I was born in ’84. I’m not going to tell you how old I was then, but I was born.

 

JDP: Well, I was trying a case.

 

JF: I was not even in school.

 

JDP: That’s kind of what I figured. Well, when the sentencing guidelines were passed by Congress, and everybody was going, “Oh my gosh!” You know how government likes charts and menus.

 

JF: Oh, their demonstrative aids and towers of power!

 

JDP: And they go down through here, and it says this over part I and part B—that’s what the sentencing guidelines are. They were passed in 1984, they were ruled constitutional by the United States Supreme Court in 1987, and in the year 2003, the United States Supreme Court found the United States sentencing guidelines were no longer mandatory, but were advisory. And it gave the judges back the ability to look at a certain defendant who’s already paid back a couple of hundred thousands of dollars in a bank embezzlement case—no harm, no foul—and what a waste of time it is to put this guy in jail to the tune of $3,800 a year. Let’s just put him on probation, make sure he does all of these things, and when he finishes his probation, “Thank you very much. You can become a citizen.” Unfortunately, he’s already a convicted felon, but you can’t play—particularly when you get caught in a federally-insured bank. It’s very important—I cannot emphasize the experience of a federal criminal defense attorney such as Ms. Ford or myself. Federal criminal defense is no place to have training wheels on; it’s impossible. It’s the wrong place. Too much is involved. The crimes and penalties are too draconian. Right now, the emphasis is on human trafficking, a deplorable crime. We’ve handled some human trafficking cases.

 

JF: Yes, we have.

 

JDP: Before that, it was the HIDTA—high impact drug enforcement—that basically worked with methamphetamine. They were after that. Before that, it was the section 924©. Guns. A convicted felon in Oklahoma can possess a long rifle for hunting purposes. Shotgun or rifle.

 

JF: That’s the state law.

 

JDP: That’s the State of Oklahoma law. You can’t have any pistols. A convicted felon under the federal system cannot even possess ammunition. No gun involved, just ammunition.

 

JF: So not only is the punishment sometimes harsher, the procedure sometimes harsher, but also the constitutional rights you walk away from are much greater than what you might see in state court. And that’s another reason there’s such a difference between a state court lawyer and a federal criminal defense lawyer.

 

JDP: I get a kick of these people who say, “Oh, he got off on a technicality.” Very few people realize these technicalities are fundamental rights. They are constitutional protections that were given to us over 200 years. “Here, they can’t have a warrant until they come into your house. And it’s got to be issued by an impartial magistrate upon probable cause. We’re not going to let you cross that man’s threshold at all.” That works for the feds as much as it does for the state. And it’s more important than people understand—their constitutional rights are granted to them in federal courts in bigger portions than in state court. And I’m not saying that state court doesn’t care about them; it’s just the volume of people who are charged in state court. Ms. Ford, how many times have I told you what the conviction is for a federal criminal defendant?

 

JF: Several times.

 

JDP: And what would that number be?

 

JF: 98%

 

JDP: 98% of the people charged across the United State; 98% are convicted. What have I told you about the 2%?

 

JF: There aren’t very many of them around.

 

JDP: And what is the 2% club?

 

JF: Those who have received an acquittal in federal court. It is a badge of honor.

 

JDP: Ms. Ford, you and I are in that category, aren’t we?

 

JF: Yes, sir. We are. We’ve had a lot of good luck in federal court.

 

JDP: Nobody understands the 98% and the 2% club because people just go merrily on their way, going to the movies, and they’re in theaters, and at concerts, and this, that, and the other. And they never think about the federal government. Ms. Ford, do you know what the federal government did—they told you when to get up this morning?

 

JF: Apparently they did, Jack. Tell us why the federal government told me when to get up this morning.

 

JDP: Did you ever hear of Daylight Savings Time?

 

JF: I have.

 

JDP: And who established that?

 

JF: Is that the feds?

 

JDP: That’s correct! And, Ms. Ford, when you go to the ladies’ room, do you know the federal government tells where you can go to the ladies’ room?

 

JF: Man, I haven’t ever thought of the feds when I was in the ladies’ room, but tell me how they control that, too, Jack.

 

JDP: Did you ever hear of the EPA?

 

JF: Yes, sir.

 

JDP: And have you ever looked at your water bill at your home or apartment where it says, “Unfunded federal mandate.”

 

JF: I’ve always wondered what that fee was.

 

JDP: Basically what that is is the federal government has said, “You build this kind of sewer system” or “You build this kind of a waste water system” and we don’t have any money for you.” It’s just “You build it, and we don’t care how you build it.” That’s why it’s called federal unfunded mandate. So there’s just two examples of how the federal government has encroached in our lives now. When you get in trouble with the feds, you’ve got to have someone who knows what they’re doing like Ms. Ford—knows what questions to ask and specifically knows what to do. People in state court—I cannot tell you the admiration I have for any attorney that goes in front of a jury, their peers, 12 people, and actually tries a case on the behalf of a defendant. But it’s not that easy to take that person out of a state courtroom and put him into a federal courtroom.

 

JF: Well it was a hard transition for me when I moved from state court practice to federal court practice. It is a very different beast, if you will. I’m enjoying it, learning the ropes, but it is quite different than anything I’ve ever done before as an attorney. And it’s very different to even talk to my friends and colleagues about it. They oftentimes are shocked at the pace, at the rules, at how bound we might get up in the rules. And it’s a difficult thing to move forward with, and I think our clients are very lucky because when they come here, they don’t just get the benefits of the energy and the mouth and the fire, but they also get you with the great experience. I think it’s okay to tell our listeners that, oftentimes, federal court cases (almost every one of them—not every one of them, but most of them) we do together, whether they’re your clients or my client. I think it’s an incredible service they get—they get both your experience and my youthfulness, but together they’ve got a lot of attention, a lot of love, and a lot of dedication to what’s going on in their defense.

 

JDP: I would not be associated with you and our staff if I did not believe that wholeheartedly. It’s a journey you and I began together, and hopefully we’ll end together. Anyway, I think that’s enough.

 

JF: Thank you so much, Jack, for talking to us today. I know you’re going to talk to us again soon, and we’re going to do more on federal court practice—the ins, the outs, what our clients need to know, and what people need to know about federal criminal defense here in Oklahoma City. So thank you very much, Jack, for joining us today.

 

JDP: You’re quite welcome.

JDP: Everybody says, “Why does it take so long for the federal government to investigate things?” What you have to remember is these FBI agencies and all of these guys with the alphabet agencies have a specific US Attorney they are assigned to. A case begins with the US Attorney, and the federal agent has to sit down and say, “You need this and this and this, and you need this and this and this. Go out and do this and this and this.” It just takes time. I’ve seen it take as long as 3-4 years. The investigations where they come in and catch a bank teller with a twenty-dollar bill in their hand—that’s the extent of the investigation? No. For instance, on the Oklahoma City side, an Oklahoma City police officer stops someone for speeding, writes a ticket, sees a joint. That investigation is over right then. And then you go to court and it may take 2-3 years to get conclusion. This is just the opposite. The feds will take their time investigating that person. This could be a larger embezzlement than just twenty dollars. They will go to the casinos and see if this person has a player’s card. They have a player’s card? How active were they? You will be shocked that people use those player’s cards like they’re crazy. There’s just a complete history of their gambling history.

 

JF: And they’re just giving their evidence over to the government. Here it is in a nice little bow.

 

JDP: That might as well go straight to the agent. So they continue their investigation and do all those kinds of things, because they have to make sure. They have to come up with an exact amount of money that is missing, and believe me, every dime, dollar, hundred-dollar bill that is missing or has been misplaced, whether this person did it or not, is all going to get thrown on that person. So they may make a twenty-dollar bill, and it may turn into several hundred thousand. You never know. Anyway, then they back it up because they have all of these gambling records, but she’s only making ten dollars an hour. That kind of thing.

 

JF: So the feds didn’t get their act together early on, they get their case ready to present and when they indict or when they charge by complaint, they’re ready to go.

 

JDP: A complaint is usually charged, as I say, supported by affidavit, but it’s when something immediate is happening. So a person may flee the jurisdiction, or they feel he is going to commit more harm—something like that. They bring these people into court with an affidavit, and they will be arraigned.  It’s really a strange thing, when you go in front of a magistrate in any federal court in the United States—and that’s one nice thing about it—it’s very easy to practice in Kansas, Texas, Nebraska, Minnesota, and New York—it’s all the same rules and procedures.

 

JF: And, by golly, they hold you to hose rules unlike state court. Isn’t that right?

 

JDP: Yes, continuances have to be completely written with an accompanying order.

 

JF: And it doesn’t come with that Good Ole’ Boy system: “I know this judge, and we go golfing together, and I had lunch with his secretary.” There’s none of that favoritism. There’s none of that relationship building. I mean, the relationships are important, but when you’re in front of a federal court judge in Oklahoma City, you’re held to a level of standard of anybody else who would walk in that courtroom.

 

JDP: To give you an example of how powerful a federal judge is—we have examples right here in Oklahoma City. A federal judge took over the Oklahoma City school system, and he segregated. A federal judge right here in Oklahoma City took over the Oklahoma Department of Corrections and ran the corrections department. A federal judge in Tulsa took over the Department of Human Services—their foster care unit and so forth—and ran it. Now think about it. One man—

 

JF: Or woman.

 

JDP: Or woman—and, by god, we’ve got some good judges that are women, I might add—

 

JF: Yes, we do. They’ve taken me to school a couple of times.

 

JDP: Well, you know, it’s a long schooling process, I might add.

 

JF: Yes, it is, and that’s okay.

 

JDP: --one man or woman has the authority to affect the lives of hundreds of thousands of people, whether they are people being served by that state agency or whatever. And that’s an awful lot of responsibility and power to invoke in one person. That’s why they go through an extremely hard and difficult vetting process. And for the United States Senate, they say in Washington, it’s all about politics. I’m sorry, I want somebody that I know a little bit about who we’re going to be standing in front of in court, and I want to know a little bit about them.

 

JF: Absolutely.

 

JDP: Those Senate hearings are public, and it’s all printed and things of that nature. Once you’re arrested and you come in front of a magistrate—the comparable thing in state court of a magistrate is a special judge. A magistrate is hired for a specific term. We used to have a magistrate in Lawton, Enid, and several other places, but we don’t have them here anymore. However, we still have bankruptcy courts in Lawton, Enid, Oklahoma City, Tulsa, Muskogee—all over the state. Bankruptcy is another matter altogether. On a criminal level, you’re in front of the magistrate and the magistrate says, “Okay, I hereby find there is probably cause to have you arrested and to detain you.” A lot of people get caught in Oklahoma County, and they say, “What’s the jail bail? I’ll pay ten percent.” And they get out…

 

JF: All the bondsmen will help you get out of here.

 

JDP: Bondsmen don’t practice in federal court. Period. You get out on an O.R. or you don’t get out at all. And, if the government requests, they can ask for three days of detention.

 

JF: To get their ducks in a row.

 

JDP: Or to make a point. Because you know all of the jail calls are reported. And people like to talk.

 

JF: It’s the worst thing a criminal defense lawyer can ever do is pop open a discovery disc and hear, “This is a phone call from the Grady County Jail. These phone calls are recorded. Please press 1 to continue.” And the next voice is often our client saying or doing something they shouldn’t be saying.

 

JDP: “I didn’t do that deal!” and I’m going. “This is Jack Dempsey Pointer and Jacqueline Ford, and we have been on a conference call. This is an attorney-client conference, and it is therefore confidential. I had no choice but to speak to my client, other than to be forced to press button number one. I hereby revoke the right of the state to record my phone conversation. Do you agree, too, Mr. Jones?” “Yes, I do.”

 

JF: “Please press one, Mr. Jones.”

 

JDP: But anyway, they can hold you up to three days without bond. Then when you come back in, if you’re not indicted on complaint, then you have the right to a preliminary hearing, which means, one, that the alphabet agency guy gets up there and says what everybody else said. And the second thing is, are you a continuing threat to the community or a flight risk and need to be detained further without bond until this matter is over? Pretty high burdens on both of them. The nice thing is, the hearsay swings both ways. We can make proffers—and that by the way, Ms. Ford, is not a federally recognized word in criminal defense. It’s just whatever you’ve been told, that this man is not a flight risk or risk to the community or something like that.

 

JF: So our first step at defense, oftentimes, is in that first hearing. We’re defending his right to be released on an OR bond. We’re defending her right to go back home pending the outcome of this trial.

 

JDP: That’s correct. Now, let’s compare that to an indictment. An indictment is given by a jury of 16-23 citizens of Oklahoma who meet for six months at a time to hear evidence by a prosecutor all by the prosecutor—no cross-examination, no any type of spin, or anything like that.

 

JF: Nobody’s there to challenge the evidence that’s being presented.

 

JDP: That’s absolutely correct.

 

JF: Sounds fundamentally unfair.

 

JDP: Well, and it’s really kind of strange when you say it’s fundamentally unfair, because the unusual thing about it is that the founding fathers thought it would be our protection from the government. Now it’s being turned into being used as a club against our clients. Usually in that situation, somebody has received a target letter from the US Attorney’s office. “You are being targeted in an investigation.” That means you have a target on your back and you are who they’re coming after. “We hereby give you this opportunity to come in, spill your guts, and throw yourself at our mercy.”

 

JF: And let’s just stop right there. Maybe that’s the first time you meet an Oklahoma City Criminal Defense Attorney, when you open that target letter.

 

JDP: It’s probably after you get your first interview from the FBI, IRS, whatever, that comes out and says, “I’d like to talk to you about this little matter concerning money. Or this little matter concerning ownership.” And you go, “I didn’t even realize it, but I just talked to the FBI, and I wasn’t even Mirandized.” Voluntary conversations with the FBI?

 

JF: So I say again, when you receive that target letter, it’s time to call an Oklahoma City Criminal Defense Lawyer.

 

JDP: Actually, the time you need to all a criminal defense lawyer, Ms. Ford, is when they’re out there, “Can I just talk to you for a minute and let you explain this?”

 

JF: Stop talking to the alphabet agencies. You have the right to remain silent; exercise it. You have the right to a lawyer; exercise it.

Jacqui Ford: Welcome to Your Best Defense Podcast. My name is Jacqui Ford, and I’m excited to be here with you today. We’re going to be talking about federal criminal defense and what it means to be charged in federal court, the processes—how they’re different from state court—and why it’s important that, if you’re being investigated for a federal crime, have committed a federal crime, or are charged with a federal crime, you need to find the best Oklahoma City Federal Defense Lawyer you can find. I’m excited today—we have with us my friend and colleague, Mr. Jack Dempsey Pointer. Mr. Pointer has been practicing criminal defense for well over 40 years in the state of Oklahoma. His practice is primarily in the federal courthouse. Jack, thanks for being with us today.

 

JDP: Thank you very much. I did not bring my chisel so I could show you how I wrote Hammurabi’s Code. Ms. Ford and I have embarked on a journey in federal court that very few people have admitted to that privilege. Of course, she’s a tremendous trial lawyer in Oklahoma City—and civil, in the state court. But in federal court, I felt like she needed a little more experience, and that’s why I have kind of taken her under my rather exhaustive wings.

 

JF: And, for that, I could never be grateful enough, Jack. Thank you.

 

JDP: You’re quite welcome. Believe me, you’re going to be paying the price. Ms. Ford approached me about talking about federal criminal defense in Oklahoma City. It’s something that I know something about. As she said, for 45 years, I’ve been doing this. That takes it back to probably when most of the people listening to this’s parents were still in at least junior high school. To start off with, federal criminal defense by Ms. Ford and myself in Oklahoma City is a very unique area. In fact, you’re not going to be able to go to the phone book and say “Federal Criminal Defense.” It’s not going to bring up anybody who has any experience. On the Internet, it’s a little bit of a different deal. A lot of people pay for that privilege, but Ms. Ford as a federal criminal defense attorney has taken this method, which I’m highly impressed with. Let’s start about how Ms. Ford and I approach a case. Indicted in federal criminal court in Oklahoma City.

 

JF: What does it mean to be indicted in federal criminal court, Jack?

 

JDP: The federal government, in criminal cases, does them one of two ways. One is a complaint. A complaint is just a written document supported by an affidavit from one of the alphabet agencies. One of the Is—IRS, ATF, DEA—and secret service does not go by SS. They find someone or it has been reported to them that a crime has been committed under federal jurisdiction, and you have to remember that federal jurisdiction is limited. For instance, in civil cases, in federal jurisdictions all over the country, there’s a minimum of $75,000—the amount has to be $75,000 in controversy—or a constitutional issue. If it’s not $75,000, then it goes to the state court. The federal courts are courts of limited jurisdiction, and they are presided over by what we call Article 3 judges that are set forth in the Constitution. Article 3 judges are district court judges that are appointed by the President of the United States, and they serve for life. There’s no elections, no votes of confidence; they’re actually in there for life. Federal judges—there are three judges in Oklahoma, the northern district, which takes in Tulsa; the eastern district, which is surrounded by Muskogee; and then the western district, which roughly is from west of I-35 south to the Texas border and north to the Kansas border. It’s one of the largest districts in the United States. There are 93 federal districts in the United States. All of them have district judges in varying amounts. There are also 93 United States Attorneys. Those individuals are political appointees. You may remember a case when there was recently an election. The President took office and immediately sent out 93 faxes to the people who had been appointed under the prior administration: “Thank you for your service. It’s no longer needed.“

 

JF: So they worked at the will of the President, and whatever that administration’s agenda might be is strongly influenced by what their US Attorneys and all of the different districts are motivated by. Is that right?

 

JDP: Yes. For instance, here in Oklahoma City, we have a US Attorney, Mr. Sanford Coats. He has a staff of probably 35-50 US Attorneys. These people are highly experienced in federal criminal practice. There of course, is the civil section, but mainly it’s criminal that they handle. And these individuals are the ones responsible and directly connected to the alphabet agencies, and when you’re practicing federal criminal defense in Oklahoma City with Ms. Ford and I, you get an education on this pretty quick. One of the things you have to remember is—when I was talking about the limited jurisdiction of the federal government—we have interstate highways, which are nationally funded and built by states’ highways. (Little highways are enforced by Oklahoma State Troopers.) They could be enforced by the FBI, DEA, ATF—whomever—to go out there to write traffic tickets and whatever, but that’s a terrible waste of a very experienced resource. FBI agents don’t need to be writing traffic tickets is what I’m saying.

 

JF: So what do these alphabet agencies do? How do we find ourselves in the limited jurisdiction of the western district of Oklahoma—or any court in Oklahoma, Jack?

 

JDP: Let’s go to some examples. Federal banks that are federally insured by the FBI see if a teller, a bank officer, or someone like that commits a crime like laundering money or misincorporating it or misplacing it or misusing it, that is automatically reported by management to FBI, or secret service, IRS—it just depends on what it is.

 

JF: And we have some experience here, right? It’s not just you get caught and you pony up all the money like we’ve seen in the past, and so they don’t say anything—no harm, no foul. In fact, there’s not a “Pay it back, and we won’t say anything” kind of deal, is there, Jack?

 

JDP: No, Ms. Ford and I’ve prosecuted a federal court case in Oklahoma City where the individual was caught, and he paid every dime—several hundred thousand dollars back immediately.

 

JF: Prior to the feds even knowing anything had even gone missing.

 

JDP: Nobody was involved. We were dealing with a civil lawyer on the money, okay? And we paid the check—and of course, attorneys and civil attorneys aren’t criminal attorneys. They can’t guarantee there won’t be prosecution. So we tried to nail him down and say we’re not going to tell anybody, and we were quickly informed that this instance must be reported to federal regulators.

 

JF: It was mandatory.

 

JDP: Yes, it’s absolutely. Or the person would get in trouble. So we had a situation where the next thing, we got a phone call from the lawyer for the FDIC in Dallas and we got a phone call from the FBI, and we began our merry journey through the federal defense system here in Oklahoma City, Ms. Ford and I did. Fortunately for the gentleman, he received one of the few sentences I have ever seen where probation was granted. That’s highly unusual. The federal sentencing guidelines and the federal law provide that there is no longer any parole in the federal system. If you get a 10-year sentence, you’re going to do eight-and-a-half years flat.

 

JF: Now, Jack, that doesn’t sound like easy time. It sounds a little different than state court, too. In state court, I can get a 10-year sentence, depending on the crime I committed, and let’s just say it’s a measly little white-collar crime, as people like to downplay white-collar crimes in this country. I might not serve all 10 of that in state court, but in federal court, with there being no “Good Time” credit and no parole, we’re serving every day.

 

JDP: The state court sentence you’re talking about is probably a deferred sentence and pay the money back and so-on-and-so-forth. The sentence you would receive in federal court is not only pay the money back, but under the sentencing guidelines, we have chart and we have a table. We compare how many points are added, and so-on-and-so-forth, and then you come up with a range of punishment. That range of punishment used to be mandatory, but now it’s advisory to the federal judges. However, the judges follow it pretty closely, but I can assure you, that if it’s embezzlement from a federally-insured institution, a federal agency, beating up a postal officer, you don’t like the SEC—all that kind of stuff—that’s all going to federal, and you’re going to do flat, hard time. We have three types of prisons on the federal system. There are the camps—the ones that are so notorious that everyone calls them “Camp Fed”—I believe you try to envision yourself that in 24-hours, they tell you to get up, to go to sleep, and you do what they say. You take a banker who has owned several banks who has to go out in the morning and has to milk cows. It’s not too easy for him. Then you have the federal correction institutions—FCI. (The camp and FCI in Oklahoma—we have one in El Reno.) It’s a federal camp, and it’s also a federal correction institution. The federal correctional institution is behind wire, not walls. It’s very difficult to get in and get out of. Of course, you hear of no escapes from there. The third type of institution is basically a prison, and that would be places like Leavenworth, Kansas. And Leavenworth, Kansas is very much like McAlester—it’s a very strict environment behind walls.

 

JF: So it’s not a place any one of our clients, future or current, want to find themselves.

 

JDP: No.

 

JF: This is not easy time. So, as criminal defense lawyers in Oklahoma, what do we do? What do we do to keep them from finding themselves in one of these three places?

 

JDP: Well, it’s like any other case except for it’s accelerated. You must understand that, under the federal system, they have something called the Speedy Trial Act, and the Speedy Trial Act basically says the first time you appear before a federal magistrate or judicial officer, a clock begins to run. And that clock is 70 days. At the end of that 70 days, we’re not talking about talking to get a jury—the judge is calling the jury. You’re getting ready to try this case.

 

JF: 70 days from indictment to jury trial.

 

JDP: From initial appearance to jury trial.

Brad Post: You’re listening to Your Best Defense Podcast. We are speaking to Oklahoma City Criminal Defense Attorney Jacquelyn Ford. Jacqui, how are you?

Jacquelyn Ford: I’m doing well. Thank you.

BP: Good. Well, we’re just going to jump right in because it’s going to be an interesting podcast. Let’s talk about when you have a typical interaction with police. Basically, how to not get arrested. Let’s talk a little about that.

JF: Fair enough. I think the best way to avoid being arrested, clearly, is to not engage in criminal activity. But second, I advise people to avoid contact with law enforcement officers as much as possible. You can’t get arrested if you’re not in their presence, right? And you can’t get arrested if they’re not coming for you. Unfortunately, we live in a world, I think, that is different than where we lived even when I was growing up. This isn’t Mayberry anymore, and law enforcement’s position is no longer to protect and serve the public. I know that. I’ve cross-examined them. They have testified to this under oath. Their mission as today’s modern-day police is criminal law enforcement, not protecting and serving the community. So when you have that in mind, you need to understand that they are not necessarily your friends, and calling them and inviting them into your life may result in a less than pleasant experience. A lot of times the police get called because there’s some sort of domestic situation, and you and your old lady are fighting or he’s being a jerk, and she’s being crazy, and somebody wants somebody to leave. The fight escalates, and somebody eventually calls the police. Well, if you’re not in fear of imminent bodily harm or danger, there are probably bad things that are going to happen based on that phone call. A domestic situation has arisen; law enforcement is on their way. They are on their way armed and ready to defuse a highly stressful situation, which puts them at great stress, too. It increases their alertness, and they are there, you would hope, to just help you defuse. But more than likely, someone is going to get arrested. So how do you not get arrested? Don’t call the police on yourself. Don’t call the police on your loved ones because you’re mad and want to teach them a lesson. You should really reserve calling law enforcement into your life when it’s the last option, when you can’t resolve it in any other way. So I think our problem in this country right now is that we don’t know our neighbors, we don’t know our law enforcement officers. We don’t get to interact with them all the time, so they’re not your friends. They used to be, but now they’re not. They are here to arrest and put bad people in jail. When you know that’s their mindset, and that they approach every single interaction with you ready and prepared to kill you if necessary, then maybe think twice about inviting them in unnecessarily. Does that make sense?

BP: It does. Let’s talk about a typical traffic stop. You get pulled over. The police come (hopefully you have your seatbelt on), and you’re in an area where they can come directly to your car. What are some ways to respond in that type of situation?

JF: I advise everybody to handle law enforcement officers with respect. They are not approaching that car expecting to encounter a good, law-abiding citizen. For whatever reason, in their training (and I know this from their own words and from speaking to their training officers), they are approaching a normal traffic stop assuming you are a bad person and their life is in danger. Now, I don’t like to function under fear. We know what happens to our bodies when we’re in fear; we have two options, fight or flight, and let me tell you something. You can’t flee the police during a traffic stop because that will make it worse, and you also can’t fight the police officers in a traffic stop. So we need to make sure that we’re not functioning from a place of fear, number one. Number two, answer only the questions that are asked of you, and don’t try to explain anything. You have to be kind of careful of some of the questions they are asking, because their questions are designed to be very conversational, but what they’re doing is seeking probable cause. They’re asking you questions to determine whether or not they believe you’re up to good or no good.

BP: And these are kind of cop tricks, right? Them interviewing and asking questions?

JF: Right. And this is how they’re trained, and it’s been accepted by most courts most often. So when you know that cops are allowed to lie to you—and they are allowed to lie directly to your face—and nobody is going to do anything about that for you, then you now have to be suspect about some of the things that law enforcement is saying to you. They are not usually there to help you out of a bad situation, right? They have you pulled over, you’ve already violated the law in their eyes. Their goal now is to get into the car, search the car, see if there’s more criminal activity going on, ask you a battery of questions, ask your passengers a battery of questions. My advice to clients is this: if you’ve been pulled over on a traffic stop, treat the officer with respect. He hasn’t done anything to you to earn anything other than respect. And he may or may not be respectful for you in return. That doesn’t matter; we can’t control that. So you provide your driver’s license and insurance verification. As the follow-up questions start coming in, I often tell my clients to politely refuse to answer those questions. Where I am going and where I’ve been aren’t relevant to whether or not I’ve been speeding. Those questions are designed to ask me and my passenger what’s going on because, in their training and experience, those answers not matching up give them what they believe to be probable cause. This starts working toward probable cause to search your car, search you, and eventually arrest you. So these questions are not necessary for the purpose of their traffic stop. I advise my clients to politely say, “I’ve given you my license and registration. Is there anything you need from me to complete this traffic stop?” Now, depending on the temperature of our officer, that’s either going to be received well or not well. We have business cards in our office we’ve printed out based on Supreme Court cases and cases dealing with answering law enforcement questions. A lot of times clients get frustrated because they say, “Oh, I wasn’t read the Miranda.” Well, your Miranda Rights are only applicable if you are in custody and being interrogated. So they don’t have to read you Miranda Rights to ask where you’re going, where you’ve been, or your travel plans. What I tell my clients to do—and it’s on the business cards. I’ll just read it to you. It’s on the back of the card we provide clients in the office. It says, “On the advice of my attorney, I respectfully decline to answer on the basis of the Fifth Amendment, which according to the United States Supreme Court, protects everyone, even innocent people, from the need to answer questions if the truth might be used to create the misleading perception that they were somehow involved in a crime that they did not commit.” Is this going to be well-received? I guess it just depends on the police officer. The police officers who aren’t going to like the tone of this podcast are the police officers who won’t like the tone of that response. But always keep your own personal cool. You can’t help escalate the situation. We’ve seen it on videos and the CopBlock of how these people are trying to avoid answering questions at DUI checkpoints. The fact of the matter is, you have the right to refuse to answer those questions. If they want to arrest you, you have the right to refuse to answer questions then, too. If it’s going to get worse before it gets better anyway, then stop talking. That’s a huge problem that people have. You have a very important Fifth Amendment right to remain silent. It’s in the United States Constitution—in the Bill of Rights. And it’s there because it’s a very important right. Exercise it! The less you say, the less information you can give them to either rightfully or wrongfully believe that criminal activity is afoot. So I tell my clients to be respectful, answer the limited number of questions regarding your driver’s license and insurance. The rest of it, you really just need to keep your mouth shut. “Officer, I’d like to not answer those questions at this time. Is there anything you need from me for the purposes of this traffic stop?

BP: Usually are they required to tell you what they pulled you over for?

JF: Yes, I think most police officers know they have to tell you—they’re going to have to tell somebody why they pulled you over. It’s going to be in the PC affidavit at some point. So yeah, they should tell you why they pulled you over. Often they like to ask questions like, “Do you know why I pulled you over?” That’s a tricky one. I’m asked that question—I have a lead foot and tend to get pulled over a lot—and sometimes, I say, “Yes, Officer Smith. I was speeding. I apologize.” But I feel very comfortable interacting with law enforcement, and I also understand that me acknowledging the fact that I was speeding is probably going to help me move the situation along. Sometimes maybe I don’t know why I got pulled over, or sometimes I think it was speeding but I’m not sure, so sometimes I say, “No, Officer. Why did I get pulled over?” because maybe he pulled me over for something besides speeding and now I’ve just ponied up to another crime and I’m not taking my own personal advice. So do as I say and not as I do. But I don’t like answering the question “Do you know why I pulled you over?” because the much more appropriate thing is the officer telling you why he or she pulled you over.

BP:  When do you consent to a search if they want to search your car?

JF: My advice is always don’t consent ever. People ask me why, and because unless nobody else has been in your car for the entire time you’ve owned it, then you probably don’t know everything that’s in your car. And law enforcement doesn’t ask for your permission unless they need it. They don’t have a right to search your car without a warrant first or your consent. They must be able to, in the future in legal documents, articulate reasonable facts that gave them a reason to believe that criminal activity was afoot before they searched that car. That right is so important. Why just give it away? That’s my position on consent: why just give it away if people literally have lost their lives defending it? So, I generally advise not to consent to a search. Sometimes, if you know the dog’s coming anyway and you know you’re about to get busted anyway, people wonder what to do. If it’s going to happen, let it happen. Don’t let your own words “put you in the pokey.” Don’t say, “Oh no, please, Officer. Don’t search. Here’s the marijuana in my console.” You’re hurting my ability to help you in the future. And law enforcement would disagree. They’ll say you’re cooperating and they’ll tell the DA. But that’s absolutely not true. I’ve represented well 5,000 criminal defendants, and not one district attorney has said, “You know, your client confessed and handed over the smoking gun, so we’re just going to let him slide on this one.” That’s a cop trick, the idea that they’re going to work with you on this one and make this better for you. They can, theoretically, by not arresting you, but what law enforcement officer do you think is going to not arrest you with the marijuana or the smoking gun in your car? So, my advice? Don’t consent. My advice with respect to making voluntary statements? Don’t do it.  If you’re going to make a statement to law enforcement and you don’t have a lawyer with you, you’re doing yourself an incredible disservice. Call me. I have taken my clients in and made statements before, but those are strategic, thoughtful, meaningful decisions that we made together, not in a fast environment, not on the fly. You have to have the advice of counsel, and you have to have somebody representing your interests when you’re talking to law enforcement, because they are not there to represent your interests. So you’re protecting your Fourth Amendment right by not consenting to a warrantless search. Good job. Protect your Fifth Amendment right by not saying anything that can be used against you because they will, if they can, use it against you. It’s not that it might be used, it’s that it can and will be used against you. And the third important right is your Sixth Amendment right to an attorney. That’s why you don’t talk without a lawyer, and it goes back to why do you hire a lawyers? Because we have these important rights that have to be protected against government intrusion. The Fourth, Fifth, and the Sixth Amendments specifically apply to all of my clients, so you never want to waive any of them without the advice of counsel. You have the right to record law enforcement. I tell all of my clients to have a recording mechanism on their phone—and I don’t mean your phone’s recorder, because unfortunately, not all officers but some officers will take your phone and destroy that. So I advise my clients to put some sort of app on their phone (and there are plenty through the app store) that allow you to record law enforcement. That recording is sent via the Web to a streaming service, and it’s there if and when your phone gets “lost” or “broken” or “misplaced” in the evidence room. I believe that any law enforcement officer who’s doing his job and doing his job right would want that, too. I advocate very strongly for police cameras—body cams, dash cams, interior car cams—because it protects everybody. It’s not designed to punish the officer; it’s designed to protect the citizen accused.

BP: All right. You’ve been listening to Your Best Defense Podcast with Attorney Jacquelyn Ford, and you can see her website at www.fordlawokc.com.