McGirt Has Had Major Impact in Oklahoma
Video Transcribed: Does Edwards v. Vannoy affect McGirt in Oklahoma? I’m McGirt attorney James Wirth. We’re talking about a new case from the United States Supreme Court, and how it may be relevant to McGirt V Oklahoma. So what is Edwards v. Vannoy?
Well, Edwards was a defendant that was criminally charged in Louisiana for some pretty bad offenses; armed robbery, rape kidnapping, and the such. And in Louisiana, at the time, the law provided that as long as you have at least 10 of the 12 jurors find in favor of guilt, that was enough for the person to be convicted and sentenced. And in his case for some of the counts, 10 of the jurors voted that he was guilty. For other accounts, 11 of the jurors voted that he was guilty. But for none of the counts, was a unanimous verdict.
The state didn’t get 12 jurors to agree on guilt on any of the counts. So subsequent to his direct appeals a few years later, he files for collateral review in federal court, and he argues that his rights were violated because he did not have a unanimous decision of his guilt. And while his case was pending, the United States Supreme Court decided another case. That was the Ramos case, and that’s Ramos v. Louisiana.
And in that case, the United States Supreme Court held that it is unconstitutional not to have a unanimous verdict. And that basically got rid of the two states that were still doing that, so now all 50 states should be following the law and the constitution and requiring unanimous verdicts. But what are we to do about Edwards here, who did not have a unanimous verdict? And that’s what the Edwards v. Vannoy case is about.
It’s whether does this Ramos case has a retroactive application to the thousands of criminal defendants that were convicted without a unanimous verdict prior to the decision in Ramos. And the historical rule for that to determine is, was there a new law of criminal procedure? And then if there was a new law of criminal procedure, was it a watershed moment under the law? This means if it is a watershed, it applies retroactively. If it’s not, it only applies prospectively.
And the court found that this was a new rule related to criminal procedure, but it found that it did not meet the standard of a watershed decision that applies retroactively. In fact, the court went beyond that and said that in all the time that we’ve had this rule on whether it’s a watershed decision or not, we have never found one to be a watershed case.
And therefore, the court pretty much threw out that exception and basically ruled that “We don’t have to determine whether it’s watershed anymore. We’re not following that. If it’s a new rule of criminal procedure, it never applies retroactively in cases like this.”
So how is that relevant to McGirt in Oklahoma? Well, when this decision came out in November of 2020, few months down the road, when we’re litigating these McGirt cases, the state of Oklahoma found that that was an excellent argument to say that McGirt does not apply retroactively.
Sure, the state of Oklahoma doesn’t have jurisdiction and can’t prosecute Indians cases occurring on tribal territory going forward, but as far as the thousands and thousands that we convicted in Oklahoma courts where we didn’t have jurisdiction, it doesn’t apply to those because it’s a new rule of criminal procedure and it’s not a watershed moment.
So that’s what they are currently arguing in the Bossy case that is likely to be, well, it’s going to be filed with the United States Supreme Court, we don’t yet know whether the United States Supreme Court is going to accept the case or not, but they at least did accept that enough to stay the decision by the Oklahoma Court of Criminal Appeals, which found that none of these procedural defenses apply, and those defendants can move forward.
That’s being appealed to the United States Supreme Court, and they’re saying that McGirt should be relegated to current cases and appeals and ones going forward, not retroactively.
So, is this decision in Edwards v. Vannoy going to help the state of Oklahoma? Well, obviously the state is hoping that it will. I don’t think it will because ultimately, McGirt is very different than a new interpretation of constitutional law.
The court lacked jurisdiction in these cases, always. It’s just the court was mistaken about it, didn’t know about it. It’s not a change of law. For the first time, we had the United States Supreme Court that found that these travel reservations were never disestablished. And that means the court lacks subject matter jurisdiction.
So it’s not that the court did things improperly. It’s not that the court violated rights, didn’t follow the right rules. No, it’s that the court never had the jurisdiction in the first place. And because it’s a subject matter jurisdiction issue that is so fundamental, the law in Oklahoma is pretty clear.
Those can be raised at any time, cannot be waived, and therefore, these have to be retroactive because we’re not asking the court to find that these convictions where the court had no jurisdiction are void, we’re asking the court to find that they were always void.
We’re asking the court to acknowledge that they were always void because the court always lacked jurisdiction, rather than the court vacating them now, they’re vacated ab into, from the very beginning, because they were never lawful.
And under those circumstances, it’s easy to cause easily distinguished from Edwards v. Vannoy, so that although the state is arguing that, I don’t think that’s a good argument for the state. I don’t think it will be a winner, but I’ve been surprised before.
If you have questions about this decision or McGirt in general or your specific circumstances, you’re probably going to want to talk to an attorney privately about that. To get that scheduled with somebody at my office, you can go online to MakeLawEasy.com.
