Tulsa Attorney BlogOCCA Uses Incredible Intellectual Gymnastics to Redefine Custody in Order to Save a Conviction

Judge Kuehn’s Opinion Is Clear Cut

Video Transcribed: The Oklahoma Court of Criminal Appeals uses incredible intellectual gymnastics to redefine custody in order to save a conviction and obliterates protections for children accused of crimes in the process.

I’m an attorney in Oklahoma James Wirth and that’s the topic that we have before us and a lot of those words are not mine. Those are actually the words from other judges dissenting to this recent decision by the Oklahoma Court of Criminal Appeals. Let me get to those quotes first, then we’ll explain what this decision does and what some of the implications for that are.

So what we’ve got here is the dissent from Judge Kuehn. And what it notes is, “That the majority goes through some incredible intellectual gymnastics to conclude that charged means charged or when police in good faith think the subject will be charged”.

That is the quote from Judge Kuehn. And we’ve got another dissenting quote from Judge Lewis. What it provides is, “The majority opinion obliterates the Juvenile Statute 10A Section 2-2-301A, which provides protection for children by requiring law enforcement to have their parents present for questioning”. So that is what the two dissenting judges have to say about this opinion.

I have to actually agree with both of them. What this comes down to is, is a decision regarding whether a juvenile, a child, can be questioned outside the presence of parents. And the court is interpreting that and interprets it in a very strange way in order to maintain this conviction. In this case, we’ve got a juvenile 17 years old who is convicted of possessing a firearm after juvenile adjudication.

Now the only evidence of that possession is a confession made by the 17-year-old after he is questioned without an adult guardian parent or anybody on his behalf present. And the question is, is that admissible evidence?

attorney in OklahomaThe conviction was appealed stating that’s not admissible evidence because there is a statute directly on point and it’s a rule of evidence. So it provides that, “No information gained by a custodial interrogation of a youthful offender under 16 years of age or a child, nor any evidence subsequently obtained as a result of such interrogation shall be admissible into evidence against the youthful offender or child unless they’ve got a parent or guardian present for them”.

So it talks about who is entitled to those protections, a youthful offender under 16 or a child. Okay. Now, so the question becomes, how is youthful offender going to be defined here?

And Judge Kuehn in her dissenting opinion makes it pretty clear cut that we’re talking about a youthful offender, we’re talking about somebody who has been previously convicted as a youthful offender in court. Not somebody accused of a crime, but somebody who’s already been determined to be a youthful offender through a conviction as a youthful offender.

So then when it talks about youthful offenders under 16, if you have a prior conviction on a YO offense, you are protected under 16 years of age. If you don’t have a prior conviction as a youthful offender, then it’s any child. So anybody under the age of 18 has these protections.

Nowhere in here, does it talk about charged or what charged means. But the majority opinion uses another statute that says, “Any person, 15, 16, or 17 years of age, who is charged with murder in the first degree at the time shall be held accountable for his actions as if the person was an adult and shall not be subject to the provisions of the Youthful Offender Act or the provisions of the Juvenile Code”.

Okay. So this child in question was questioned and interrogated about a murder. However, he was never charged with murder, never convicted of murder. He was only charged and convicted with possession of a firearm.

So the majority court is saying because he was questioned about a murder, then they should be able to interrogate him because it says that the other parts of the Juvenile Code are not applicable. However, there are two problems with that. One, he was never charged with murder. And two, this statute is not applicable to the one that we’re looking at in the rules of evidence.

Nonetheless, in order to save this conviction, as judge Kuehn said, they used some incredible intellectual gymnastics to say that this 17-year-old was not entitled to have a person there. Not because he was charged with a crime, not because he was convicted of a crime, but because they were asking him questions about a serious crime.

So that’s why Judge Lewis in his opinion says that “It completely obliterates the rules and the protection for children” because they’re saying it’s not based on the status of the person, i.e. previously convicted as a youthful offender. It is based on what they’re being questioned about, which is fully within the compass of law enforcement, what they want to question somebody about.

So this is concerning is the fact that it severely undermines protections for minors. Obviously, as a criminal defense attorney, something that we are concerned about and that we see and have seen particularly in wrongful conviction cases is false confessions.

And most of the time that you see those is with people that maybe have intellectual disabilities or specifically children that are easily coerced into a confession, even for crimes that they didn’t commit.

So the fact that the court would bend over backward to save this one conviction at the expense of Oklahoma children and the rule going forward, rather than follow what according to Judge Kuehn’s opinion is very clear intent and what this means under the law. Instead, work all of these other interpretations in there to make it say the exact opposite.

It’s unfortunate, but that is just my opinion and the opinion of two judges in the Oklahoma Court of Criminal Appeals. But two is not a majority. So we’re stuck with this decision. It is 2021 OKCR20, AMC vs. the State of Oklahoma. And it is J2020882. It has been approved for publication. So this is going to be a binding precedent. If you’ve got questions about those scenarios or anything, in this case, you’re going to want to talk to an attorney about that confidentially.

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