Tulsa Attorney BlogMcGirt Victim Impact Report Lays Out Risk of Prosecution After McGirt Dismissal

Your Case Could Be Picked up by a Different Agency

Video Transcribed: McGirt Victim Impact Report lays out the risk of prosecution. I’m Tulsa lawyer, James Wirth and we’re talking about the aftermath of McGirt and what to expect. And one of the issues that we get is what is the risk of prosecution or re-prosecution.

If your case has been vacated and is being submitted for prosecution, what’s the risk that it gets picked up by a different agency, such as the United States attorney’s office for prosecution, the Feds, or the tribe, or maybe you have a new case that is charged initially in state court and gets dismissed based on McGirt and it gets referred out. What’s the likelihood it’s going to be picked up by the Feds or by the tribal government?

And for the purpose of substantiating their claims that McGirt is causing that precedent of McGirt and those dismissals are causing for lots of crime not to be prosecuted and lots of victims not to get justice, the Tulsa County District Attorney’s Office commissioned a report to kind of stack up how many cases have been referred, how many have been prosecuted, and those results came out August 20th of 2021, but they’re being released to the public more recently, just got a copy of it.

And the whole purpose of that was to get information together to try to support an Amicus brief filed in the United States Supreme Court, to try to overturn McGirt or at least limit it to where you have Indian defendants.

But some of the numbers in here are interesting. So what they found for the purposes of this study is that the Tulsa County District Attorney’s Office has referred a total of 1,495 cases. And we’ve got some information related to the Feds of how many of those have been prosecuted and related to the Cherokee Nation, how many have been prosecuted.

What we don’t have is numbers for the Muskogee Creek. According to the authors of this report, they were not able to get those numbers, but what it finds for the United States attorney’s office for the Feds, that they were referred 780 cases for prosecution from the Tulsa County District Attorney’s Office. And only 76 have been indicted, picked up for prosecution. So that’s 10%. 90% of those cases are not being filed for prosecution. Only 10 are.

Obviously, the more serious ones, the more recent ones, the commons sense ones that you would think would be more likely to be picked up, this seems to be confirmed that that is what’s going on, but it is only 10% that are being prosecuted there. Now, as far as the crimes being prosecuted… Oh, I’m sorry, dismissed and referred for prosecution to the Cherokee Nation. That’s a 298 of which 115 have been filed for prosecution. That’s 39%.

attorney in OklahomaSo for the available data, that’s excluding Muskogee Creek Nation, for the available data, they average those out and it’s a total of 18% of referred cases are being picked up for prosecution by the Feds or the Cherokee Nation for that. So that’s obviously a small percentage, but that doesn’t necessarily mean that justice is not being served. I mean, that could be used to say a lot of cases are falling through the cracks, but it’s also important to remember the differences between how these agencies handle cases.

The United States Attorney’s Office is very selective. They have FBI agents that are very well-trained professionals, and you have to compare that to some of the local municipalities, law enforcement, to some of the smaller counties’ law enforcement. They’re on different levels. The expectation the United States attorney receives in getting police reports, they hold them to a little bit higher standard for law enforcement in deciding what cases to file and what they expect from their law enforcement.

So even if the attorney’s office, the US attorney’s office, the Feds are using the same standard they’ve historically used. And it’s not that it’s just more cases and they can’t get to them all, there would be a lot of state cases that would likely be weeded out because there’s not enough evidence.

The reports aren’t well crafted enough, and that’s not necessarily to shame any particular law enforcement agency. It’s just that they’ve got different standards, particularly based on some of the smaller sized agencies, that they’re not used to meeting the standards of the federal government for the United States attorney for prosecution. So those are some of the things that were going on.

Obviously, there’s a lot of speculation that it just has to do with lack of boots on the ground, as far as prosecutors in the tribes, as well as with the federal government, that they don’t have enough. That obviously plays a part, but there are other things as well. When the feds pick up a case, they want to make sure that they are going to be able to get a conviction. They require a much higher certainty level to be able to do so than with the state.

So what that means is that some people who are… There’s less evidence of a crime, less evidence of guilt, essentially potentially innocent people, less likely to be prosecuted under the federal system than the state system. And that’s something to be factored in, where exactly is the perfect level of prosecution.

Is it more the requirements up here with the Feds, or is it more the lower requirements perhaps with the state? What’s the appropriate level? Those things have to be complicated before you throw too many stones about the Feds not picking up enough cases, but it is interesting information for people to see the numbers and how many are being referred. How many are being picked up?

If you’ve got questions about your circumstances, how this may be applied in your decision-making on how to move forward with your legal strategy in your case, you’re going to want to talk to an attorney about that privately, confidentially. To get that scheduled with somebody at my office, you can go online to makelaweasy.com.

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