John Guest Stars on Ask the Experts Podcast
August 29, 2020: John Cannon criminal defense attorney guest starred on Steve Sleeper’s podcast, “Ask the Expert.” John discussed Oklahoma criminal defense practice and military justice defense practice from his years as an Oklahoma criminal defense attorney and Judge Advocate in the National Guard. List to the podcast by clicking the link below or feel free to simply red the transcript of the interview below:
Ask the Expert with Steve Sleeper – 8/29/2020
STEVE: Our Guest today is Attorney John cannon with Cannon and Associates in Edmond, Oklahoma. They have extensive experience in a variety of jurisdictions and will fight for your rights as Fierce advocates. I began the interview by asking John about his firm.
JOHN: With the attorneys and staff we have we dedicate our services to those facing criminal charges, divorce and custody issues, or going through the pain of suffering a personal injury.
STEVE: Well, let’s talk about criminal defense. What should I expect from a good criminal defense lawyer?
JOHN: lawyer should have a firm grasp on not only all the laws that apply to the cases or charges that you may be facing or handling, but also should have any play firm grasp on the procedures for how that case may or may not move through the process and also be ready and willing to fight your case both in motion hearing and suppression hearings, bond hearings and if necessary and also ultimately a jury trial or sentencing hearing if need be.
STEVE: I also know that you’re in the National Guard and you’re a Jag lawyer so: what’s the difference between criminal defense and military defense?
JOHN: There’s as many types of practice areas for military law as there is in the civilian context. Military law deals with all aspects of family law, criminal law, administrative law. There is a wide gambit, but in military criminal defense there is a set of procedures set by army regulations, a branch of the military orders or regulations are put in place by commanders or directives, and the governing documents are in the Uniform Code of Military Justice, and there you would find the Military Rules of Evidence, the Military Rules of Criminal Procedure, and other administrative rules and also the Military Code. So, all the military crimes as well as general crimes are codified there. So, you have murder, burglary, and getting intoxicated and those kinds of offenses, but you also have military offenses such as fraternization and things where you are violating military specific rules.
STEVE: Let’s go back to criminal defense and let me ask you this: what happens after a person is arrested?
JOHN: After a person is arrested, they either have bond set by the agency that would be holding them, or the bond will be set by a judge. In Oklahoma district courts, their sheriff’s department will have a bond schedule for when someone is arrested. The law enforcement agent that brings them into custody will tell the sheriff what they’re being arrested for, so that will determine what their initial bond is set at.
Obviously the prosecution, the District Attorney’s Office, the US Attorney’s Office; they will make decisions about what charges they are going to offer or file charges on to present to a grand jury indictment and those will determine the bond after a judge has reviewed the case. But the bond initially is typically set by a schedule. After someone is taken into custody, they remain in custody, and they will typically appear in front of a judge or a for semi-informal process called arraignment where they are advised of what their initial charges are, their bond is set, the interplay of not guilty, and they’re given a date that they can go to court, and for today the attorney and the prosecutor could start talking about potential for working out the case or what it look like to fight the case.
STEVE: What’s the difference between a felony and a misdemeanor?
JOHN: Under OK law, anything that carries more than a year in jail is qualified as a felony and anything that carries a year or less is a misdemeanor. Now that is the black and white definition but there’s lots of things that go into how serious those things are and what the impacts are from those charges. So, someone charged with a misdemeanor offense is looking at collateral consequences that are less serious than someone looking at a felony charge. There are lots of other aspects, but the biggest and most obvious factors is that felonies carry up to life in prison or even death for capital murders but always carry a year or more jail.
STEVE: I know you also do DUI defense. When a person gets pulled over for a DUI what kind of probable cause do the police need? Are they pulling you over for a DUI or so maybe something else like a blinker out or headlight out or how does that work?
JOHN: So, the police have the authority to stop someone that is driving a vehicle or walking down the street during any other context, if they witnessed or believed they committed a crime. So yes, a traffic violation or an alleged traffic violation such as swerving in between lane lines, floating a stop sign, running a red light, speeding. If you are in a place that has a minimum speed limit, any type of violation or the believed commission of a DUI offense or if you believe that person has reasonable grounds or suspicion that person has committed a crime, then you can initiate a traffic stop and that’s where the fun really starts in defending DUI cases.
STEVE: With a DUI, does a person have to take the roadside breath test?
JOHN: No, a person is not required under Oklahoma law to do the field sobriety test, though the failure to do so can have consequences such as in passing your driver’s license proceeding but refusing to take the field sobriety test especially later when road conditions or circumstances with a person performing the test don’t line up, can have a serious negative impact in defending your case, especially if they’re not performed correctly.
STEVE: Do police make procedural mistakes and if so, how often do you see that?
JOHN: Unfortunately, it’s quite common that we do that. Law enforcement get to wear more hats than many people should and there’s only a few people that are in law enforcement that do traffic stop that have their proper training and qualifications to perform field sobriety test and perform them correctly perform all over the state of Oklahoma prisons every night, more often than day time for obvious reasons, but often times there are mistakes in how they are performed and that among other issues, principally our client’s constitutional rights were violated. There is a number of things we do and another experienced DUI defense attorney do to try and defend clients from DUI traffic stops and from the field sobriety test.
STEVE: In Oklahoma what are the penalties for a DUI first?
JOHN: So, first time DUI offense in Oklahoma is a misdemeanor unless it is a circumstance that amounts to a felony which would be, you know, if a negligent homicide was caused, or great bodily injury was caused, but a first time DUI offense carries 2 years in jail, a $2,000 Bond as of today, but there’s also aggravated DUI and that is where someone has alcohol content that is perceived today or documented it be above .15 blood alcohol content and that carries additional administrative punishments, additional community service requirements, additional treatment requirements that every first time DUI, unless there are other factors, is a misdemeanor defense and only carries up to a year in jail.
STEVE: Let’s talk about plea bargains. How often do you see that in the system? How often do people accept them?
JOHN: So plea bargains are a necessary evil to some extent because 95 + percent of criminal cases are resolved by agreement or dismissal. That comes from a number of places, but it is very common. One thing to keep in mind when considering the case yourself or as an attorney, is that typically when the prosecutor is facing a criminal defense attorney they know like and trust that they know is a fierce advocate, one that would fight for a client, they know that if they don’t give that person a fair deal that they may have to take that case to trial and fight that lawyer.
So although plea agreements are very prevalent, we go to trial on a pretty regular basis given the right set of facts and right case, but the punishment ranges in so many cases are excessive, are punitive beyond what in my humble opinion is appropriate and leaves many people to enter pleas. Also, on a simple misdemeanor case sometimes it carries up to a year in jail so if that person chooses to fight their case, they can be sentenced to a year in jail and something that does not warrant that.
And in Oklahoma, we are one of the few jurisdictions in the country where sentencing if done by the jury. If you have a jury trial decide the outcome of your criminal court case in Oklahoma in state court, then that jury will not only decide guilty or innocent, but if they decide that you are guilty then they will decide what the sentence is, and so that is placing your fate in the hands of six individuals in a misdemeanor or 12 in a felony case and typically the judge will review those recommendations and enforce what the jury pronounces, whereas in 40-46 other states it is my understanding that sentencing is handled by the judge. So, it’s pretty scary for someone to know that 12 strangers will not only be deciding the facts of the case but the future in a sentence of our client.
STEVE: As we do this interview it is the end of August 2020 so we’re about 6 months into the Covid pandemic. How are you dealing with that? How are you meeting with clients? What about the courts in Oklahoma? Talk about that.
JOHN: So, the courts in Oklahoma have been a strain on not only the court staff but the attorneys and litigants across the state. Administratively they’ve tried to do things to make it a safe environment but unfortunately it has caused a pause for many cases. Until we’ve done with a lot of frustrated clients where their cases are moving forward and they like them to be and we’d like them to be, and the opposing parties would like them to move forward, just procedurally that has been difficult.
As the courts have started to reopen, we’ve found some really great tools that we hope will stay in place: I appeared by zoom or video conference for multiple court appearances today, I’ve got a telephone conference court appearance on Friday, or a case that’s on the opposite side of the state, and so it’s our hope that we can continue using the technology available to avoid some of the less substantive court appearances as being in person for everyone, but the courts have done a lot of those issues.
Jury trials have just started to resume and the logistics of spacing 30 or so people for a potential jury pool has been difficult. Some of the things that we have done is put in place that currently we don’t accept in-person appointments by clients. If someone does have to come into the office and person required after temperature taken and to put on a mask and use hand sanitizer before they come in the building. We have also been doing quite a few consultations for potential and current clients by video conferencing and by telephone meetings.
STEVE: Our Guest today has been Attorney John Cannon. He can be reached at 405-657-2323. Thanks for listening to ask the expert with Steve Sleeper.