Tulsa Attorney BlogBosse Order Vacated & Withdrawn from Publication by OCCA

McGirt Impacts Oklahoma

Video Transcribed: Bosse Order vacated and withdrawn from publication by the Oklahoma Court of Criminal Appeals. I’m McGirt attorney, James Wirth, and we got an update regarding the saga of Bosse and the back and forth that we’ve seen on a lot of these McGirt cases lately and this is the next chapter in that.

The Bosse case ultimately was a post-conviction relief case based on McGirt and the Oklahoma Court of Criminal Appeals when it was decided initially held that subject matter jurisdiction means that the decision was void. It can be attacked at any time and it can be attacked collaterally.

I think it said something along the lines of it can be attacked, and indeed, must be attacked at any time because the court has a duty to ensure that it has jurisdiction, and where the court lacks subject matter jurisdiction the duty’s on the court to address that issue.

That’s why the court said it can, and indeed, must be challenged at any time. However, as we have learned since that time, although Bosse was decided, and it was a final or final-ish order by the Oklahoma Court of Criminal Appeals, it was stayed by the United States Supreme Court. Then ultimately, the state filed to appeal by filing a petition for certiorari to the United States Supreme Court.

Now, things have changed because the Wallace decision came out. The Oklahoma Court of Criminal Appeals did a complete 180 and published that decision, which says the exact opposite of what it said in Bosse. It says that “Well, you have subject matter jurisdiction, but we’re going to call it a new procedural rule and we’re going to adopt the federal rule, which says that if it’s a new procedural rule, you can decide whether it’s retroactive or not.

We’re going to decide that it’s not retroactive in order to deny all these people seeking relief.” So even though the court never had any jurisdiction to hold this person in jail and you know that person is still being held in jail on an order that the court never had the authority to do, or we’re going to say, we can’t make it retroactive, or we won’t make it retroactive because it’s a new procedural rule.

attorney in OklahomaAll right. So then that leaves Wallace, a direct contradiction to Bosse. And they’re both published decisions. When they decided Wallace, they overruled the precedent in Bosse, but now they’re going one step further. The Court of Criminal Appeals. And what is now published in 2021, OKCR 23 for the Bosse case filed August 31st, 2021. It says that it’s vacating the previous order entered. And it’s withdrawing the opinion for publication. That’s somewhat unusual.

When you have a new decision that contradicts an old one, it’s common that you would overrule the old one, but it’s not normal that you withdraw it from publication. It’s already a published order. It’s been picked up by west for publication. Now they’re withdrawing that and basically undoing the past acting like that never existed before.

So even though it doesn’t have precedent anymore, because it was overruled by Wallace, now they’re almost trying to make it disappear. And it’s not just the Bosse case that’s going on. They have done that to a lot of the recent decisions, the ones that are still up on potential appeal to higher courts, the United States Supreme court.

So you’ve got the Ryder case, the Cole case, the Bench case, all of those, they’re withdrawing their opinions granting post-conviction relief. And then new orders are going to be filed in those at a later date.

So Bosse, been withdrawn from publication, been overruled with Wallace, and now the orders in those cases, Bosse and some of the related ones are being vacated with new decisions to come. That’s going to have an effect on a lot of things.

One, I would predict based on that or have predicted since Wallace came out, that that would probably mean that the state’s appeal to the United States Supreme Court in Bosse is going to be withdrawn. It looks like that is going to be happening as well.

If you’ve got further questions on how this might affect your rights, your case, or other issues, you’re going to want to talk to an attorney confidentially about that. To get that scheduled with somebody at my office you can go online to makelaweasy.com.

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