Tulsa Attorney BlogMcGirt’s Retroactive Effect Being Challenged (2021 OK CR 15)

McGirt Has Had Major Impact In Oklahoma

Video Transcribed:  McGirt’s retroactive effect is being challenged. I’m McGirt Attorney James Wirth, and I’m talking to you about a new decision that is out that is attacking the retroactive capabilities of the McGirt president.

Specifically, it’s a newly published case from the Oklahoma Court of Criminal Appeals. It is 2021 OK CR 15 Matloff v. Wallace. And in this case, it doesn’t involve the defendant being either one of those.

The defendant’s actually Clifton Parish, and that’s a Pushmataha County case, and he sought relief from the court, asserting that the court lacked jurisdiction based on McGirt because he is Native American.

The trial judge was Jana Wallace who found that the court did lack jurisdiction and ordered the post-conviction relief granted, sentence vacated, conviction vacated, and the charges dismissed, and the state sought a stay that is granted, and then they went ahead and petitioned for a writ of prohibition to the Oklahoma Court of Criminal Appeals.

So because it’s a writ of prohibition, it’s actually the DA suing in their official capacity, suing the judge in her official capacity. That’s why it’s Matloff v. Wallace.

And the court, Oklahoma Court of Criminal Appeals, decided on May 21st of ’21 to grant the request for stay and ordered briefing on the issue of whether the McGirt can be applied retroactively.

Now, the common sense rule here is that because the McGirt decision by showing that the tribal reservation boundaries are larger than we thought, cases that occurred within those do not… The state doesn’t have jurisdiction over those if it involves an Indian defendant or an Indian victim.

So, if the court doesn’t have jurisdiction, it’s a subject matter jurisdiction issue, which is pretty foundational, the court has to have subject matter jurisdiction to have authority to do pretty much anything, and if it lacks jurisdiction, it’s not just voidable, it’s actually void, have been issued avoid from the beginning.

So the common sense thinking on this is that if it lacks subject matter jurisdiction, it can be attacked at any time collaterally so that it would automatically be retroactive without any intent to be retroactive because subject matter jurisdiction can always be attacked.

But the state of Oklahoma is not happy with that, obviously, because that could affect thousands of convictions, and there are at least hundreds of PCRs, post-conviction relief cases, currently pending based on McGirt.

There’s likely to be a lot more. And they pointed to a couple of different cases to review, and that is why the Oklahoma Court of Criminal Appeals requested briefing on that issue from the defendant in that case.

And those cases that they’re citing, essentially most of them relate to issues that are new rule of constitutional law, and what the law provides is if it’s a new rule of constitutional law, that it’s not automatically retroactive unless the court makes it retroactive.

And the example that’s cited is a recent United States Supreme Court case that found that there is a due process requirement to the unanimity of a jury decision.

So if you have a criminal case, you’re being prosecuted, you’re entitled under the constitution to a jury, but you’re also entitled to have all the jury agree that you’re guilty. Until recently, two states in the United States allowed that you could be found guilty with only a majority or supermajority of the jury finding you guilty.

The United States Supreme Court previously found that unconstitutional but just recently found that that ruling that’s unconstitutional is only prospective in application.

So if you were convicted years ago without the totality of the jury finding you guilty, you cannot seek relief under that because that’s a new interpretation of constitutional law, only is prospective in an application unless the court rules it’s retroactive.

However, McGirt is not a new interpretation of constitutional law, it is not a new rule of constitutional law. It is simply a finding that the reservation boundaries are what they’ve always been. It doesn’t change anything except that the state of Oklahoma has been prosecuting as if they have jurisdiction when they never did.

So it’s a subject matter jurisdiction issue, which is distinguishable from a new interpretation of constitutional law, the latter being one that they have to specifically determine to be retroactive and the first automatically being retroactive just by the nature of it, depriving the court of subject matter jurisdiction, and that meaning that the judge sentences are void ab initio, void from the beginning.

They don’t need the court to now determine that they’re void because according to have jurisdiction, they just need the court now to acknowledge that they were always void.

So that is the discrepancy there, but nonetheless, the Oakland court quarter criminal appeals did request briefing on that and are going to decide whether based on that there’s a retroactive application here. Of course, it’s important to note that the court has already given retroactive application to this in the Bosse case, which is upon appeal with the United States Supreme Court if they decide to accept it.

And in other cases that they’ve thrown out convictions on, but this is a new issue. They’re showing some new authority. The state is to try to say it shouldn’t be retroactive, and there is actually cited to a 10th circuit case, which falls along the same lines of having unanimity on a jury.

They also cited a 1996 case, which’s interesting because it’s almost like the reverse of McGirt, in that case, the court found in the 90s that the reservation was disestablished, even though they’d acted like it hasn’t been. McGirt’s the opposite. The court found that the reservation was not as established, even though the state had been acting like it was.

So we’re going to be following all of those things. If you are dealing with a PCR that you’re in court on, these things that are coming out of now may cause further delays like we’ve been seeing.

If you want to see how this affects your case, specifically, you’re going to want to talk to an attorney about that confidentially. To get something like that scheduled with somebody in my office, you go online to MakeLawEasy.com.

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