Tulsa Attorney BlogMcGirt: When Jurisdiction Not Addressed at Trial and Direct Appeal is Pending

This Example Comes From the Oklahoma Court of Criminal Appeals

Video Transcribed: What happens when you did not question the jurisdiction of the court under McGirt at your trial and your case is now on direct appeal?  I’m Tulsa attorney James Wirth and we’re talking about how to handle that circumstance, where you’ve got a direct appeal pending, you are Native American, and you believe you were improperly tried in state court, but that issue was not brought up at trial.

So we have a case like that that has come from the Oklahoma Court of Criminal Appeals. We have a decision down and essentially on a direct appeal for the first time they alleged the court lacks subject-matter jurisdiction based on the McGirt v Oklahoma precedent.seal of the state of Oklahoma

And the attorney, in that case, filed an application for an evidentiary hearing to supplement the record, essentially requesting that the court send it back to the trial level so you can have a hearing determining whether the person is Native American or not, and determining whether the crime occurred within the boundaries of the reservation.

And the Oklahoma Court of Criminal Appeals denied the request for an evidentiary hearing and denied the direct appeal. Basically, providing if there’s nothing in the trial record to support your issue regarding subject-matter jurisdiction, then they’re not going to let you address it on direct appeal.

That appeal is denied. So where do they go from there? Well, they need to file for post-conviction relief at the trial level. And then they can allege ineffective assistance of counsel for not making an issue of it at trial, and then moving forward on an appeal from there if necessary.

So if you’re in those circumstances, you have a question about how to handle it and looking for an attorney, you can talk to somebody at my office by going to makelaweasy.com.

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