Tulsa Attorney BlogCan the Court Delay a McGirt Dismissal to Allow Time for Charges in Federal or Tribal Court?

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Video Transcribed:  Can the court delay dismissal in order to allow criminal charges from a tribal court or the federal court in a McGirt case? I’m McGirt attorney James Wirth, and we’re about to talk about delaying dismissal in these cases where we know the state doesn’t have subject matter jurisdiction.

So we’re starting to see these in some cases where the Oklahoma Court of Criminal Appeals may have remanded it for a McGirt hearing, and then the McGirt hearing is about to go on but the state agrees to enter into stipulations that the defendant is an Indian and that the commission of the crime or alleged crime occurred on the reservation.

So those are the two main things that the Oklahoma Court of Criminal Appeals needs in order to find that the state lacked jurisdiction based under the McGirt precedent.

But in these cases, even though the state is readily stipulating to those things, because it’s easy enough for the defendant to prove those at the McGirt hearing, the request in the pleading, and I’m getting this from one particular case, it is the Travis Hogner case that is pending for the Oklahoma Court of Criminal Appeals.

And it’s basically saying that even though we’re stipulated all these things that will probably result in a dismissal of this, it says, “Now, if this court finds the defendant is entitled to relief based on Judge Priddy’s findings and conclusions,” the ones that the state stipulated to, “The state respectfully requests this court stay in the order reversing the conviction in this case for 30 days so that the appropriate authorities can review his case and determine whether it is appropriate to file charges and take custody of the defendant.”

So what the state is saying here is, even if you find that the state had no jurisdiction to charge this person, hold this person, try this person, incarcerate this person for all this time, and even if all of that was completely unlawful, we want you to continue to unlawfully hold this person for 30 days in order to allow the feds or the tribe to get caught up.

And they cite one statute as authority for that, and that’s an Oklahoma statute, but that statute is not applicable here. That statute has to do with where the state files in the wrong venue. So they filed in Muskogee County, it turns out that Tulsa County is the appropriate authority.

Well, that’s an issue of venue and where it needs to be prosecuted. And that can come down to some subject matter jurisdiction issues, but it’s not the same, because here, the state, the entire state, statewide completely lacks jurisdiction, whereas there, it’s just that that subdivision of the state maybe shouldn’t be prosecuting, it should go to another one. But that statute does, under those circumstances, allow it to be delayed in order for it to be refiled in another county.

But I don’t think that can be applicable here because we’re not talking about venue one county versus another. We’re talking about completely different legal entities, where the state of Oklahoma completely lacks authority to hold them, and maybe the feds have that authority, maybe the tribes have that authority, but that is yet to be determined whether they’re going to move forward. So I don’t think that the Oklahoma court of criminal appeals should grant that. I think that once the court determines that there’s no jurisdiction by the state, any moment they hold that defendant any longer is knowingly unlawfully incarcerating that person.

But nonetheless, those are the requests that the state is making in practice. We’re seeing that the feds, where there are cases that they are reviewing and charging, they’re not waiting for them to be dismissed. They are filing new criminal charges in federal court prior to the vacation of the state ones.

And double jeopardy does not apply from state to federal so they can do that. And we see them being aggressive in doing that, and that’s why for our clients, we’re looking at any potential bars to re-prosecutions, Statute of Limitations, and deciding whether we want to file McGirt. We’re looking at how weak the case was and whether they want to retrial on that. All of those things have to be looked at before we decide whether to move forward on that.

So if you’re dealing with one of these cases and these circumstances and you have questions about your case, you’re going to want to talk to an attorney about your specifics and do so privately under privilege. You can do that by contacting my office by going to makelaweasy.com

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