Bill Would Abolish the Oklahoma Court of Criminal Appeals (Part 1)

Lawmaker Proposes Constitutional Amendment

When two parties cannot live under the same roof, the outcome is often inevitable. One of them must go.

So it is with Oklahoma’s two highest courts. In public, they are so entwined most Oklahomans might not even know the state has two nearly co-equal high courts. Yet in competing rulings laced with bitter barbs, the courts’ disputes have grown.

Their spats have ranged from subjects as insignificant as how deadline days are counted to, on the other extreme, matters of life and death. In 2014, with two death-row inmates’ lives in the balance, the two courts battled over the state Supreme Court’s authority to delay an execution.

Now a Stillwater legislator has a plan to stop the conflict. Rep. Cory Williams has proposed a constitutional amendment to abolish Oklahoma’s Court of Criminal Appeals. (HJR 1051)

Williams’ bill is scheduled for a first reading in the legislature on Feb. 2, 2018. If House and Senate majorities approve the measure, Oklahoma voters would settle the question during the next statewide general election. A simple majority of voters could enact the proposed amendment.

Oklahoma’s Rare Two-Headed System

Oklahoma’s two-headed court system stands as an oddity among state courts nationwide. Only one other state – Texas – divides authority for criminal and civil matters between two courts. Various efforts in Texas have failed at least three times to merge that state’s two court systems, most recently in 2010.

At the county level, Oklahomans are unlikely to notice a difference. Some courthouses have signage for family law divisions, but no building is named “criminal court” or “civil court.” Although larger courts assign civil and criminal cases to different judges, people go to the same courthouse for civil cases and for criminal trials.

In smaller counties, the same district judge hears both civil and criminal cases. Even in courts that have separate civil and criminal dockets, the same judges might rotate or substitute among dockets.

For district judges, however, rules and precedents can vary depending on whether a case is criminal or civil. District judges’ decisions are reviewed by two distinct appellate systems. Civil cases generally go to the intermediate Court of Civil Appeals before the Oklahoma Supreme Court exerts ultimate authority. Criminal appeals move directly from district courts to the Court of Criminal Appeals, which weilds ultimate authority in all criminal cases.

Criminal or civil decisions from either of Oklahoma’s highest courts could be reviewed by the United States Supreme Court. Yet review by the nations’ highest court is exceedingly rare. It is exceptionally rare for any court to intervene in state court cases. Even when an Oklahoma case is ripe for federal review, the costs are usually prohibitive.

Then, when a litigant might otherwise be able to afford the costs or have representation as an indigent, the U.S. Supreme Court denies certiorari in 99 percent of cases. In other words, the U.S. Supreme Court accepts only one in 100 cases submitted for review. For practical purposes in all but the rarest and most exceptional cases, the state Court of Criminal Appeals is the highest courts in the land for criminal cases filed in Oklahoma courts.

The Problem with the Court of Criminal Appeals

Structurally, the lack of an intermediary criminal appeals court leaves Oklahoma with a thin judicial system. Criminal cases move directly from district courts to the highest state court.

That court answers to no other court except, in circumstances so rare as to be little more than a theoretical possibility, the United States Supreme Court. The state criminal appeals court’s lofty status as solitary arbiter of justice might breed hubris.

One federal court recently questioned whether the Oklahoma Court of Criminal Appeals would decide a case based on merits. The 10th Circuit judges suggested the state’s only criminal appeals court had toyed with an imprisoned defendant’s understanding of court rules to avoid reviewing the merit of his appeal.

The criminal court appeared to have directed the pro se defendant toward several dead end procedural requirements, all of which served to block review of the appeal on its merits.

Given the Oklahoma appeals judges’ ready reserve of reasons to throw out the appeal on technical grounds, “we express some doubts as to whether, in practice, an appellant who proceeded in the manner suggested by the OCCA in this case would actually have his appeal decided on the merits,” the 10th Circuit court concluded.

Oklahoma defense lawyers have long chaffed at what many consider to be a prosecution friendly Court of Criminal Appeals. Some suspect the criminal court’s prolonged exposure to nothing by criminal cases dulls its sensitivity to nuanced matters of legal procedure.

The judges’ perceived prosecution friendly bias could have something to do with their background. Recent courts have all been staffed by former prosecutors. All five judges now seated on the court previously worked as prosecutors. One of two judges who resigned in 2017 was likewise former prosecutors.

Of seven former judges recognized on the OCCA website, four previously worked as prosecutors. Hon. Charles Chapel (retired), who served from 1993 to 2010, is among a minority of modern judges who did not formerly work as a prosecutor. He was recognized at his retirement as “a great dissenter” by a peer on the court.

The peer who recognized Chapel as a “great dissenter” was one of two other recent judges appointed to the court without a background as a prosecutor. Yet Hon. Charles R. Johnson (retired) nonetheless had a very conservative streak. Stanford University political science professors rated Johnson as three times more conservative than his otherwise conservative peers in Oklahoma appeals courts.

An anomaly among the courts’ otherwise prosecution-honed judges, the court’s great dissenter betrayed a rare disdain for the prosecution side in comments at the 1999 retirement of Hon. James F. Lane. Chapel recounted Lane’s move into private practice after serving in the Army “saving our country from the evils of communism” followed by a stint as a County Attorney in Beaver, Ok. 

“In 1960, he got religion. He got out of the persecution business,” Chapel mused.

Staffed exclusively with experienced prosecutors, today’s criminal appeals court has at times refused to recognize its own more moderate precedents. It has done so in a rather unsettling fashion for a state court, defying published precedent with new directions buried within unpublished decisions.

When the US Supreme Court in 1984 carved out a good faith exclusion to 4th Amendment search and seizure protections, Oklahoma’s Court of Criminal Appeals set a contrary precedent. Our state’s constitution affords residents better protection, the OCCA ruled in a published, precedent setting decision. United States v. Leon, 468 U.S. 897 (1984); Beeler v. State 1984 OK CR 55.

The good faith Leon exception lets prosecutors introduce evidence gained without lawful search warrants if police unwittingly discovered evidence by way of an honest mistake. The Oklahoma criminal court repeatedly recognized Beeler as the standard in subsequent rulings.

In 2010, the OCCA muddied the waters in an unpublished decision, recognizing the federal Leon exception as opposed to Oklahoma’s equally longstanding Beeler precedent. Unpublished decisions do not establish precedent that future courts are expected to follow.

Four years later, the OCCA recognized the unpublished 2010 decision as precedent, reversing with little justification a precedent the court had recognized since 1984. State v. Marcum, 2014 OK CR1

The Path to Change

Because Oklahoma’s two-sided court system is baked into the state constitution, only a constitutional amendment can modify the two-sided system. An amendment can be adopted by a simple majority of voters in a popular vote, but it must first win a spot on the ballot.

Oklahoma provides two ways for amendments to appear on the ballot. Majorities in both sides of the legislature can move an amendment onto the ballot.

Oklahoma residents may also petition to place a constitutional amendment on the ballot. A petition could be expensive and difficult to accomplish. Among states that allow ballot initiatives for constitutional amendments, Oklahoma ties with Arizona as requiring the highest number of signatures – 15 percent of the number who voted in the most recent general election.

In a 2015 article on the Oklahoma Bar Journal, political consultants estimated a ballot petition for a constitutional amendment would cost about $450,000. Either way an initiative makes it on the ballot, campaign or voter education costs can approach $2 million.

In part 2 of our report on the move to abolish the Oklahoma Court of Criminal Appeals, we don’t give the proposal good odds. We will look at Rep. Williams standing among legislators, and how likely the legislature is to favor the criminal appeals court over a state Supreme Court that has repeatedly reversed legislative initiatives.

We conclude that Rep. Williams effort to get a constitutional amendment on the ballot is unlikely to succeed, but might open dialogue that will help Oklahomans understand flaws in our rare two-sided court structure.

Strategy Session: Oklahoma Attorney

When you have a matter pending in Oklahoma courts, consult an attorney who knows how to navigate the complicated landscape of a two-sided court system. To schedule your initial strategy session about any criminal or civil matter in Oklahoma courts, contact a Tulsa attorney at Wirth Law Office. Call (918) 879-1681