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Sunday, December 10, 2023 | Back issues
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Oklahoma appeals court rules McGirt decision does not apply retroactively

The ruling cites the "disruptive and costly consequences" of voiding hundreds of convictions due to the technicality of the crimes occurring on Native American lands where the state lacks criminal jurisdiction.

(CN) — Oklahoma’s highest criminal appeals court decided Thursday that the U.S. Supreme Court’s controversial ruling that the state lacks criminal jurisdiction on Native American tribal lands does not apply retroactively. The decision may stem the flow of thousands of post-conviction appeals by convicts wanting to be released on the technicality.

In a 4-0 decision, the Oklahoma Court of Criminal Appeals reversed a post-conviction dismissal of a murder case against Clifton Parish, a member of the Choctaw Nation. Parish was convicted of felony second-degree murder in 2010 for killing Robert Strickland on Choctaw land. A lower court threw out the case after McGirt v. Oklahoma held last year that large sections of Oklahoma remain Native Americans lands due to Congress never dissolving the reservations and that the tribes retain criminal jurisdiction.

Judge David Lewis, a Democrat appointee, wrote the lower court’s vacating of Parish’s murder conviction was “unauthorized under state law” in spite of McGirt.

“We cannot and will not ignore the disruptive and costly consequences that retroactive application of McGirt would now have: the shattered expectations of so many crime victims that the ordeal of prosecution would assure punishment of the offender,” the 31-page opinion states. “[T]he trauma, expense, and uncertainty awaiting victims and witnesses in federal re-trials; the outright release of many major crime offenders due to the impracticability of new prosecutions; and the incalculable loss to agencies and officers who have reasonably labored for decades to apprehend, prosecute, defend, and punish those convicted of major crimes; all owing to a longstanding and widespread, but ultimately mistaken, understanding of the law.”

Oklahoma officials cheered the Thursday’s ruling, as they have implored Congress to pass legislation allowing the Cherokee and Chickasaw Nations to compact with the state on criminal jurisdiction.

Oklahoma Attorney General John O’Connor thanked the judges for handing “a significant victory” to Oklahomans.

“There are thousands of cases that would have to be retried if the State had lost this case,” O’Connor said in a statement. “In many of those cases, the crimes were committed long ago. Witnesses may be gone. Evidence may be lost. Re-prosecution might be barred by statutes of limitations.”

Governor Kevin Stitt, a fellow Republican, touted the ruling as a win for public safety and for crime victims.

“I am pleased that the Court agreed that retroactively applying McGirt to tens of thousands of cases would unnecessarily traumatize victims and give dangerous criminals opportunities to fall through the cracks,” Stitt said in a statement. “While today’s ruling is a significant step forward, McGirt still presents major challenges that threaten the future of Oklahoma.”

The post-McGirt burden has since fallen on federal prosecutors to assert criminal jurisdiction and bring federal charges against those with voided convictions. Federal prosecutors have been tasked with charging Shaun Bosse, who was convicted to death in 2012 for killing  girlfriend Katrina Griffin and her two young children, Christian Griffin and Chastity Hammer, in a mobile home south of Oklahoma City on Chickasaw Nation land. The Court of Criminal Appeals threw out his conviction five months ago, citing the state’s lack of jurisdiction to prosecute under McGirt.

Federal prosecutors were forced to charge former Tulsa cop Shannon James Kelper last November after he demanded his release under McGirt. He was convicted of manslaughter in 2017 and sentenced to 15 years in state prison for shooting and killing Jeremy Lake, 19, his daughter’s boyfriend.

Judge Lewis said the reversal of Parish’s final conviction “would not be justice” even if it is a “monumental” victory for him. Lewis was joined by judges Robert Hudson, Gary Lumpkin and Scott Rowland — all Republican appointees. In a concurring opinion, Hudson criticized Congress for missing the opportunity to “implement a practical solution which, at this point, seems unlikely” to come.

“It is now up to the leaders of the state of Oklahoma, the tribes and the federal government to address the jurisdictional fallout from the McGirt decision,” Hudson wrote.

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Categories / Appeals, Courts, Criminal, Law

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