Tulsa Attorney BlogMcGirt: Why Pursue Expungement Instead of Post-Conviction Relief for Some Completed Cases

A Major Benefit Is That an Expungement Is a Civil Case, It Is Filed in the Same County That the Case Was Prosecuted

Video Transcribed:  Why pursue expungement instead of post-conviction relief for completed sentences that fall under McGirt? I’m Tulsa attorney James Wirth, and we’re talking about procedurally how to handle some of these McGirt issues.

So as you’re probably aware, the United States Supreme Court on July 9th of 2020 in the McGirt v Oklahoma case, decided the Muskogee Creek nation was never disestablished, and therefore state courts have lacked subject matter jurisdiction to charge Native Americans for crimes that occurred within the boundaries of that reservation.

That includes most of Tulsa County, many surrounding counties, and that that decision is likely to be applied to the other four of the civilized tribes covering about 43% of the state of Oklahoma.

So if you have a conviction and you’re Native American, or you’re not Native American but the victim of the crime was Native American, and the court lacked jurisdiction because of the McGirt precedent, how do you handle that procedurally?

Many people are filing post-conviction relief, and we’re doing that for cases where people are still serving their sentence. And for ones that are pending, we’re filing it with the trial court. And for ones that are up on direct appeal, depending on the timing, we’ll handle it on direct appeal.

But for cases that are old, where the sentence has been completely served, in time, probation, binds and costs, it’s all been resolved and taken care of and it’s all in the past, a lot of people are filing post-conviction relief on those.

But I’m suggesting, and what we’re doing, is on many of those we’re filing for expungement instead. And I’ll tell you why we’re doing that.

So first off, because it’s a subject matter jurisdiction issue, that’s an issue that should never be able to be waived. And it’s an issue that can be attacked, collaterally, meaning that you can file it in a separate action. You don’t have to go back to the original case that has the conviction to attack it.

And even in Justice Gorsuch’s opinion, Supreme Court opinion in McGirt, he acknowledges that that is the case. That it could be attacked collaterally, which means that we don’t have to file the post-conviction relief in the criminal case.

seal of the state of OklahomaWe can file it in a separate case, like an expungement case. And when we file it in the expungement case, we would not be asking the court to vacate it. We would be asking the court to determine that it’s already void, because if the court lacks subject matter jurisdiction it’s not voidable, it’s void ab initio, from the beginning.

Meaning it is void at the very earliest. The moment it was entered it was void because it was never properly done. And because it was void then, it would qualify for expungement now because it was a case where there was arrest, but there was never any prosecution or conviction because both of those things were void.

So that means it would qualify for an expungement, and one benefit of the expungement means not only is the conviction acknowledged to have been void, but you also get all those records sealed as part of the expungements. That’s the first benefit.

The second benefit is that an expungement is a civil case. So it is filed in the same county that the case was prosecuted. And at least in Tulsa County, they sent it to a randomly assigned criminal judges docket, but it’s actually civil when it’s appealed.

And Oklahoma has a strange appeal process where we have a bifurcated appellate system, where criminal cases go to the Oklahoma Court of Criminal Appeals, civil cases go to the Oklahoma Supreme Court, which could then assign them to an Oklahoma Court of Civil Appeals.

But the highest court in Oklahoma for a criminal case is the Oklahoma Court of Criminal Appeals, the highest court for a civil case in Oklahoma is the Oklahoma Supreme Court, and we have a very different makeup on the Oklahoma Court of Criminal Appeals as we do on the Oklahoma Supreme Court.

Generally speaking, the current Oklahoma Court of Criminal Appeals is very conservative. Defendants do not get a lot of favorable decisions out of them. Whereas the Oklahoma Supreme Court is much more liberal. Much more willing to give a break in certain circumstances. And we’ve seen certain types of cases that can go both directions.

We could have a criminal DUI where the DUI conviction goes to the Oklahoma Court of Criminal Appeals, but where the driver’s license issue goes to the Oklahoma Supreme Court, and they may be deciding the same fourth amendment issue that’s relevant to both.

And you may see different decisions that are more favorable to the defendant and the Supreme Court, less favorable to the in the Oklahoma Court of Criminal Appeals.

We also saw a divergent of opinions, or at least attitudes, from the court in our recent death penalty cases, where certain parts of that went to the Oklahoma Supreme Court and other parts went to the Oklahoma Court of Criminal Appeals.

Ultimately, it was decided that those opinions go to the Oklahoma Court of Criminal Appeals. They fought that issue, but the decision was going to be more favorable from the Oklahoma Supreme Court. So if you have a choice and you’re a defendant, you probably want it in the Oklahoma Supreme Court.

And I’m saying, if you’re a defendant with a McGirt issue where you’ve already completed your sentence, you do have the choice. You can file the expungement, then you can appeal to the Oklahoma Supreme Court, and you can avoid going to the Oklahoma Court of Criminal Appeals.

And that’s why I’m suggesting for some of our clients we do it through expungement rather than post-conviction relief. But this is all very new, so nobody knows exactly how it’s going to work out. But that’s the strategy that we’re looking at.

If you have a case where that is an issue, or you have another McGirt case and you have questions, you’re going to want to talk to an attorney about your specific circumstances. If you want to talk to somebody at my office, you can go to makelaweasy.com.

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