Tulsa Attorney BlogMcGirt: Direct Appeal Denied at the Trial Level?

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Video Transcribed:  What happens when you make a McGirt argument on direct appeal after being denied at the trial level? I’m Tulsa attorney, James Wirth, and we’re talking about procedurally, how is this going under McGirt v Oklahoma in these various circumstances?

So in this case, luckily, it came around a timeframe where the Murphy case had been decided by the Tenth Circuit. So we knew that this was an issue attorneys did, and they were starting to make arguments in various cases where the defendant is Native American that the state court lacks jurisdiction.

However, at that time, because the Murphy decision was published, but was put on hold waiting for an appeal to the United States Supreme Court, the trial judges, for the most part, were not hearing much of this and were moving the cases forward to trial, wherein this case there was a conviction.

So now it’s on direct appeal of that conviction, where they’re again addressing the issue of McGirt. And the court, in that case, they filed a request for an evidentiary hearing in order to get evidence to substantiate that the defendant is Native American and that the crime occurred within the boundaries of the Muskogee Creek Nation.

Because the trial court wouldn’t hear it at the time, now they’re requesting that the Oklahoma Court of Criminal Appeals force the trial court to hear it. And in this case, the Oklahoma Court of Criminal Appeals, because it wasn’t at least requested at the trial level, did grant the request for an evidentiary hearing, it was put back to the trial court to have a hearing to determine those two things. Is the defendant Native American? Member of a tribe, has a CDIB card, has evidence of that, and did the crime occur within the boundaries?

Once that hearing happens, the trial level judge will make a decision on those limited issues and issue an order back to the Oklahoma Court of Criminal Appeals. That’ll be part of the appeal record added in with the trial records, and then the Oklahoma Court of Criminal Appeals can decide the McGirt issue based on that. So procedurally, that’s how it’s going under those circumstances.

If you have a pending case, it’s going to be different. If you have a conviction that is not on direct appeal, it’s going to be different. If you have a conviction where you’ve completely served your sentence, it’s going to be different.

If it’s going to be a tribe other than the Muskogee Creek Nation reservation where the crime occurred, at least for now, it’s going to be different. So for your circumstances, you’re going to want to talk to an attorney. If you want to talk to somebody in my office, you go to MakeLawEasy.com.

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