Tulsa Attorney BlogNew OCCA Ruling Requires Judges to Act like Prosecutors!

OCCA Wants Prosecutors To Be Impartial

Video Transcribed: New Oklahoma Court of Criminal Appeals ruling requires judges to act as prosecutors. I’m Oklahoma attorney James Wirth. We’re talking about the case of the State of Oklahoma v. Emily Suzanne Akers. That case number is S2021378.

That deals with a mother who had a miscarriage at 20 weeks, went to the hospital, and was found to have methamphetamine in her system and the system of the fetus. And the state got word of that, and they decided to charge her with manslaughter related to the miscarriage.

tulsa attorneyThat went to a preliminary hearing, and that’s where the state is required to prove each element of the offense of manslaughter by the burden of proof of probable cause, probable cause that she committed this crime.

And ultimately, the judge, the magistrate judge at the preliminary hearing, found there wasn’t sufficient evidence to meet under these facts, manslaughter. Essentially, what the judge is finding is, that under these facts, it doesn’t really fit manslaughter.

So the case was kicked at that point and went up to appeal to the district judge, and the district judge agreed with the magistrate. From that point, the state appealed to the Oklahoma Court of Criminal Appeals. Once the Oklahoma Court of Criminal Appeals got that case, they made an interesting ruling.

They essentially agreed that it did not meet the requirements for manslaughter. But they noted that five, six months prior to the preliminary hearing, in this case, they had ruled that under these facts, the mother could be charged with child neglect.

The court remanded the case back, in order for the state essentially, to prosecute a child neglect case, telling the prosecutor what to do, and that essentially, putting the onus on the judge to determine the appropriate charge, rather than just deciding what the state has brought is appropriate or not.

So there was a dissent filed in this case by Judge Rowland. And I want to read some of that, gives you the idea of how unusual this is. It says, “Six months before the preliminary hearing was held, this court held in Green v. State 2020OKCR18, that exposing an unborn child to methamphetamine causing death could be prosecuted as child neglect.

Unlike in Green, however, the state in this case neither charged Akers with child neglect nor argued the existence of evidentiary support for that offense of the preliminary hearing. And child neglect has never been raised or mentioned in any of these pleadings, talked about in the appeal. It is true that Title 22 section 264 requires a defendant to be bound over for any charge supported by the evidence.

But this court has never interpreted that section to require the preliminary hearing magistrates who search the books to make sure the district attorney has not inadvertently or otherwise failed to file some supported charge to direct the District Court, to revisit the case with an eye toward charging it differently than elected by the prosecution, when there has been no intervening change in the law, or the facts seems to me an improvident incursion into the discretion of the district attorney, that could invite future mischief, we have not considered.

So there you have it. For the first time ever, rather than just ruling on the issue before it, and whether the elements based on the probable cause have been met from manslaughter, this court has decided that it wasn’t met for that. It was met for something else that was not charged, and we’re going to send it back, directing the magistrate to allow it to be bound over on that.

So what that means is, that the court is telling the magistrate, you did it wrong. You should have searched the law books. You should have fixed the issue for the prosecutor, and you should have made sure the prosecutor did it the right way. That puts the magistrate judge in the position of being a prosecutor, rather than trying to be somebody who is more neutral.

Now, if the defense makes a mistake, I can guarantee you, the Oklahoma Court of Criminal Appeals is not going to require that the magistrate fix that mistake. But here that’s what is happening, and it’s a little bit concerning that the Oklahoma Court of Criminal Appeals is pushing magistrates to the side of the prosecutor to act like a prosecutor, rather than being neutral.

If you got any questions about that case or any matter of law in Oklahoma, you’re going to want to talk to an attorney about your circumstances privately, confidentially. Get that scheduled with somebody in my office, you can go online to makelaweasy.com.

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