Tulsa Attorney Blog“Lackadaisical Attitude” Drives Oklahoma’s High Wrongful Conviction Rate

Conservative Columnist Calls Out “Outlaw” Bureaucrats

wrongful convictions in Oklahoma

Michelle Malkin

A scathing criticism of Oklahoma’s red-state justice system from a pundit on the other side of the political spectrum would be no surprise. There is plenty to criticize. And selective outrage at the sins of one’s political foes seems to be the number one hit on political popularity charts lately.

Yet when renowned conservative pundit Michelle Malkin tore into a “lackadaisical attitude toward matters of life and liberty (that) pervades Okie culture,” something seemed amiss.

Did someone in Oklahoma conservative circles get crosswise with the fiery maven of conservative ideals?

We did not thoroughly investigate Malkin’s extensive opus of opinion and analysis, but as long-time Okies, we might hastily associate conservative rhetoric with tough-on-crime agendas. One might hastily expect as much from Malkin, too.

Wrong. Guess again.

The reaction of Gov. Mary Fallin’s administration to a voters’ mandate legalizing medical marijuana would tend to validate a hasty generalization about knee-jerk, tough-on-crime conservatism. Except Malkin – and many other conservatives – are on the other side of the fence with regard to marijuana. Malkin has a been a pro-legalization conservative for decades.

Is it possible Malkin was reminded of Oklahoma’s dismal record when a conservative administration tried to use bureaucratic maneuvers to thwart enforcement of a 57% landslide vote in favor of legal marijuana for those with a doctor’s recommendation?

Or maybe Oklahoma just has a very bad record for ham-fisted justice that often sweeps innocent people into prison.

Malkins’ evidence of Okies’ lackadaisical attitude? Exonerations – specifically 35 convictions overturned since 1993.

That’s a lot, and Malkin explains them in her typically scathing language.

“Prosecutorial Terror”

“The reign of prosecutorial terror and forensic error by the late Oklahoma County district attorney Bob Macy and rogue Oklahoma City Police Department crime-lab analyst Joyce Gilchrist” resulted in 11 of the 35 wrongful convictions in Oklahoma, Malkin charges, citing Innocence Project research.

But that’s not all. It’s not just a few bad apples in Oklahoma City, she said.

“Law enforcement and legal insiders alike have shared stories with me about good-ol’-boys-club corruption that crosses party lines in the Sooner State. Government prosecutors and criminal-defense attorneys routinely cut deals. Judges bend over backward to preserve ‘harmless errors’ caused by flawed investigations, faulty verdicts, and clerical incompetence. Police brass retaliate against whistleblowers. And, according to one veteran cop, Oklahoma City is a hopeless ‘nest of incestuous nepotism.’”

Okay, then. Go get ‘em, Michelle!

But could it be this really about the pot? After all, Oklahoma is tied with Indiana and Georgia at the 17th spot among 50 states in the wrongful convictions tally. There were 16 other states with more recorded exonerations. Texas tops the list with 337 exonerations, yet Malkin had compliments for Texas as compared to Oklahoma.

Dallas County officials established the nation’s first conviction integrity unit, leading a movement that resulted in 30 conviction integrity agencies around the nation. Not one is in Oklahoma.

Scandals in Texas forensic labs led to the creation of a Forensic Science Commission that investigates professional misconduct among forensic scientists. In Oklahoma, not much changed.

The forensic-lab scandal involving Oklahoma City analyst Joyce Gilcrest was followed 25 years later by a high-profile sex crimes trial of a police officer in which the integrity of forensic testimony was addressed only in a secret hearing. A defense attorney was excluded from the secret hearings. The crime lab analyst in that case, Elaine Taylor, was the mother-in-law of a lead detective in the same case Malkin explains.

Kathleen Zellner, an attorney who represents convicted Oklahoma City police officer Daniel Holtzclaw in civil lawsuits related to the convictions, is surprised “they have not put crime-scene tape around (the) OKC crime lab.”

Yet, a ranking of 17 out of 50 does not exactly put our state into the top one-third of the list for wrongful convictions. Pundits are going to do what pundits are going to do, right?

Malkin has previously reported on the Daniel Holtzclaw case. Among the examples of wrongful convictions and prosecutorial misconduct she mentions, Holtzclaw is the only example she offers where a court has not found a wrongful conviction. Maybe her interest in that case inspired her recent focus on Oklahoma.

There’s more though. Malkin’s article focused on examples of outrageous prosecutorial misconduct. She did not take us deep into the weeds with the math to see where Oklahoma ranks against other states. So we went there.

Oklahoma 7th in Wrongful Convictions Per Capita

We found 16 states with more wrongful convictions, but we also wanted to look at each state’s per capita wrongful conviction rate. That was a different story.

Oklahoma ranks seventh in the nation for wrongful convictions per state resident. That is a clear-headed reason to zero in on Oklahoma as evidence that, in modern American justice, sometimes “outlaws operate inside the bureaucracy to secure criminal convictions at all costs,” as Malkin writes.

But still, there were six other states that might have made better examples – Illinois topping the list with one wrongful conviction for every 58,000 state residents. In seventh place, Oklahoma wrongfully convicted one in 107,000 residents. (Those are loose but reliable estimates based on three decades of wrongful convictions and current population estimates.)

Yet no other state with a high wrongful conviction rate also tried to snub voters’ exercise of direct democracy in the past month.

We cannot say why Malkin decided now was a good time to call out the nation’s seventh-ranked wrongful conviction state. She’s a prolific writer, but we found no mention of other states’ “wretched record” of wrongful convictions in her other recent work for National Review.

We are not complaining at all about the long due attention to this state’s dismal record of imprisoning the wrong people. The pattern of wrongful conviction warrants attention any time. Now will do.

Malkin does not mention medical marijuana in her assessment of “Oklahoma’s incompetent and corrupt criminal justice system.” And we did not ask her why the number seven state is such a prime example of injustice.

She wraps up with a reminder that Oklahoma is “set to resume putting people to death next year come hell or high water.”

A False Moral Clarity

We would assert that the Fallin administration’s reluctance to fully embrace voter’s expansive medical-marijuana statue is symptomatic of a state that has long simplified justice beyond reason. The drug war provided moral clarity to those prosecuting drug crime. By that view, the person who politely sips a hit from a joint passed around a party is as guilty of supporting terror as the drug kingpins murdering whoever gets in their way.

Likewise, for some prosecutors, the defendant is the embodiment of moral failure, regardless of the facts of the case. The prosecution’s goal, by that view, is to gain convictions at any cost. If evidence is not enough to convict the defendant, they would have few compunctions against framing someone they see as an otherwise guilty person.

We wish law was that easy, but it’s not. For defense attorneys and for prosecutors, criminal charges involve complexities that require training, experience and careful review to understand.

We make law easy for our clients by shouldering the complex thought processes related to criminal defense. Prosecutors on the other hand cannot rightly make every case so simple. Their job is like ours – they are supposed to think things through. Yet they often try to make their case as simple as possible for jurors to understand. They hide uncertainty behind a pretense of confidence, fueled by a false sense of moral certainty.

We have a long way to go but we want to believe the people of Oklahoma can build a government that embodies an enthusiastic view toward the principles of liberty and justice. We do what we can to promote fair justice throughout the state. We’ll keep our day jobs, though.

Our day job is to untangle prosecutors’ suspiciously simplified cases involving our clients, and to show courts where the public’s right to a fair, equitable justice system outweighs prosecutors’ urge to win convictions at all costs.

Free Consultation: Criminal Defense Attorneys in Tulsa

If you are facing criminal charges in Oklahoma, it is urgent that you retain an aggressive, skilled criminal defense attorney. For a free consultation with a criminal attorney in Tulsa, Okla., call Wirth Law Office at 918-879-1681.

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