Tulsa Attorney BlogPro Se McGirt Post-Conviction Relief Fail

The Hearing Did Not Go Well

Video Transcribed: Pro Se McGirt Post-Conviction Relief Fail. I’m McGirt Attorney James Wirth, and I’m talking about a case that I just reviewed where a defendant filed on their own for post-conviction relief.

They’re incarcerated, they are alleging that they’re Native American, that their alleged crime occurred when what is now understood to be Tribal territory based on the McGirt precedent, and they filed for post-conviction relief, asserting the state lacked jurisdiction to prosecute them, and they should be released.

However, they decided to proceed Pro Se, they got a continuance one time in order to obtain their attorney. The court found that they’re not entitled to a court-appointed attorney, and actually the court made some interesting findings indicating that the defendant appears to be capable to fully litigate in the issue raised in his application. The court found that he had an understanding of McGirt, and could do this on his own.

However, the hearing did not go well and that’s why it’s a good idea to have representation on these, don’t go it Pro Se, it didn’t work out for this guy. Essentially what he did, once the case was had, the trial was going on, the hearing was happening, he called one witness and he called his sister to the stand. He asked his sister, “Am I a Tribal member?” And she said, “Well, I remember growing up that we received some benefits and food benefits from the Choctaw tribe. I think we’re part Choctaw, or something along those lines.”

But they didn’t get into specifics of roll number, or CDIB card, or Tribal membership card, or any of those things. It’s important to note what you are required to prove on this because initially, the courts are seeing that this burden of proof is put on the defendant.

Now, it’s a subject matter jurisdiction thing, so the court should take it upon the court itself, sua sponte, to make sure it’s got jurisdiction. But what we see courts doing, pretty much across the board, is saying that the burden is on the defendant to show three things; one, that the alleged crime occurred within Tribal reservation land. Two, that the person or the victim, is a member of a federally recognized tribe, and three, that the person has some quantum of Indian blood.

He called the sister, sister did not give great testimony, certainly wasn’t specific and wasn’t that authoritative, and then the judge essentially overruled the motion, denied it, and then he’s out of court with no relief whatsoever.

Normally under these circumstances, when the state is finding these cases hard, it should be easy to agree upon some things. It’s really simple to know at this point where the Tribal land is. Most of these counties that are in Tribal land, it’s the entire county, so the DA should be able to agree to that pretty simply. The court should be able to take judicial notice of that because everybody pretty much knows it at this point.

But, if it’s a contentious case, you can bet that the state’s going to dismiss, and you might get scrutiny from the judge. You want to get a Tribal representative there. You want to subpoena a record’s custodian, a Tribal representative that could testify on behalf of the tribe, and say, “Yes, I’m aware of what the Tribal boundaries are. I work for the tribe, I’m a custodian, this is my job. I’m an expert, and I could testify as to that, and this location is within Tribal boundaries.” That’s pretty definitive. That’s pretty authoritative. That’s good evidence.

And then when it comes to the individual, you can have a testimony in that regard as well. “Are you familiar with the defendant and his name, or do you have access to roll numbers? Have you reviewed the roll to see if he is a member of the tribe?” “Yes.” “What day did he become a member? Is he a member currently?” “Okay, great. Do you have any documentation of that?” “As a custodian of records, this is the documentation we have.” You get those in, and if you do the same basically with the CDIB card that shows the quantum of blood.

There are only three things you got to do, you just got to make sure you do it in the right way. And if you’re not familiar with the rules of evidence and how to get those things in, as far as avoiding hearsay, authenticating your documents, and meeting your burden, it can be very difficult. You probably don’t want to go it alone. You probably don’t want to go Pro Se on it. You are going to want to have competent, good representation to get it done right the first time.

On many things, you only get one bite at the apple. If you go to trial and it goes badly, you can file an appeal, but that doesn’t mean you’re getting a new trial, necessarily, most of the time it doesn’t. And a lot of things, once they’re decided once, based on Race Judicata, can’t be re-litigated again.

However, where we’re talking about subject matter jurisdiction that can never be waived, you may get another bite at the apple, so he may have another way to get relief on this, but you don’t want to risk that. Get it right the first time.

If you’ve got a question about your case, or your circumstances, how it applies, what you need to prove at trial and how to do it, or if you want representation from an attorney to help on that, you can talk to somebody in my office by going to MakeLawEasy.com.

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