Tulsa Attorney BlogCan Criminal Charges be Refiled After a Dismissal at the Preliminary Hearing in Oklahoma?

Once the Court Makes Their Decision, That’s a Binding Decision

Video Transcribed:  Can criminal charges be refiled in Oklahoma after dismissal at a preliminary hearing or after a dismissal based on a motion to quash? I’m Tulsa lawyer James Wirth, and that is the question before us.

In Oklahoma, most cases are filed by information or a charging document as opposed to by a grand jury indictment. Now, because of that, in our system, you are entitled to a preliminary hearing where the state has the burden of proving by probable cause that a crime was committed and that the defendant committed the crime.

And only once that occurs in a preliminary hearing can that case go on forward towards trial. Nobody can be tried until you have a probable cause determination at a preliminary hearing.

But what if at that preliminary hearing the judge finds that there’s no probable cause and that case is dismissed? Or what if you put on the preliminary hearing and the magistrate judge at the preliminary hearing does find probable cause, but then when it goes to the trial judge, a motion to quash could be filed by the state asserting that the preliminary hearing judge got it wrong, and if that district judge determines, or that associate district judge, determines that there’s not probable cause for the bind over, then that motion to quash is granted and the case is kicked. So under those circumstances in Oklahoma, can the state refile those charges? That’s the question that we have.

And the reason that it’s coming up before us now is there’s a new case unpublished from the Oklahoma Court of Criminal Appeals and the state of Oklahoma v. Michael Smith, it’s 2021 1169. And in that case, the preliminary hearing was put on and the state made a mistake. They failed to get in the age of a victim into the record. And the age of the victim was a necessary component of the crime.

So without that age, there’s no probable cause that the crime was committed. So it was bound over by the magistrate judge, but then it was kicked by the district judge who noted they failed to meet that element. And in this case, the state appealed, asserting that they should be allowed to have a rehearing or perhaps separate from that appeal, that they could file again, once it’s dismissed, file again.

So the question is, should they be allowed to do that? Generally speaking, the common sense of due process argument is that once you’ve already had a hearing, the state had an opportunity to bring in their witnesses and their testimony to get it on the record. Once you have a decision, that’s a final binding decision.

To allow the state to reopen the record and do it all over again is going to be prejudicial to the defense because I can tell you, there’s no way that if the defendant failed to bring something in, we didn’t call this witness, this witness didn’t get everything we needed.

There are other materials we wanted to get in the record. There’s zero chance that the state and the judge are going to allow it to be reopened for the defense to present more of a defense.

So if the parties are going to be on equal footing, which they really even shouldn’t be on equal footing, the defendant is charged with all the power and the might of the state government, with all the constitutional rights given to the defendant and not to the state, it shouldn’t even be a fair hearing.

The defense should be provided a presumption of innocence that kind of tilts the playing ground in the favor of the defendant, but in the best case… Or in the worst-case scenario, it should be an even hearing. So if the defense is not allowed to reopen the record, why should the state be allowed to reopen the record?

And what we have is case law going back all the way to the seventies and the most detailed case on it is the Jones case. It’s Jones v. State 1971 OK CR 27.

And it says that such a ruling, meaning by the preliminary hearing magistrate or on a motion to quash, is binding and final on the defendant and any other examining magistrate unless the state produces additional evidence or proves the existence of other good cause to justify a subsequent preliminary examination.

If the state has sufficient evidence to bring an accused to trial, it should be prepared to offer such at one preliminary examination, not rely on bolstering its case at a subsequent preliminary examination, if necessary.

It is dilatory to present evidence on an installment basis at different preliminaries. Let the state present its case at the preliminary hearing and be done with it. If it is insufficient, then the prosecution is at an end, unless new evidence becomes available or another good cause is shown.

Not only is refiling without cause unnecessarily burdensome on our overcrowded courts, but it may constitute harassment of an accused.

attorney in OklahomaSo that’s the decision back from 1971, which is if the case is kicked, then the state doesn’t seem to get to refile and re-litigate it. And no matter how many times it gets kicked, we just get to refile, and eventually, they’re going to get it the way that they want it. That would be harassment.

That would be a violation of due process. That would be government overreach. That’s going to be problematic. So that’s what the court decided in 1970.

Now, since that time, there’s been an update to our criminal procedure and the rules regarding motions to quash and whatnot. So when this issue came up after that, back in 1993 was the Tilley case. And the Tilley case without any getting into a lot of detail essentially said, yeah, our reasoning back from the 1970 case is the same today.

Even though the statutes have changed a little bit, all that logic has not changed, which is if the state wants to refile after it gets kicked at the preliminary hearing, they need to show not only is there new evidence but that new evidence could not reasonably have been obtained and produced at the original preliminary hearing.

Or some other good cause. And there are not a lot of examples of what a good cause would be. So generally we’re looking at, there has to be new evidence that could not have been discovered before.

Okay, now we’re back to the present day. Looking at this case was decided by the Oklahoma Court of Criminal Appeals where the state failed to get in the age of the victim, and that was necessary to the case. And we’ve got a new, relatively new judge on the Oklahoma Court of Criminal Appeals, Judge Musseman from Tulsa County.

So we’re getting an idea of how he is going to decide things, and he and one other judge on the court basically said, it’s time to revisit Tilley, which implies that they’re okay with the state getting any number of preliminary hearings until they can get somebody bound to the the over.

So no matter how many times they fail, perhaps they get to try again until they get it right. Meanwhile, the defense, any mistake that they make, something’s not brought into evidence, some witness can’t make it to trial or to the preliminary hearing, and it goes forward anyway. Whatever the case may be.

Most of the time, defendants don’t call witnesses at the preliminary hearing, but sometimes they do, but the defendant’s never going to get a second shot, but the state under their reasoning should.

So let’s look at what they said. So we’ve interpreted this provision to allow the state to refile this case only based upon new information acquired since the dismissal. So that’s going back to the precedent that I was speaking about before. And then it notes. Tilley is a judge-made rule that rationalizes not only refiling without cause and necessarily burdensome or overcrowded courts, but it may constitute harassment of the accused.

In the second part, there is a quote from the Jones case, but the first part is the judge’s own words indicating that Tilley has a judge-made rule that rationalizes, that’s the quote.

So it seems to be downplaying the significance of Tilley by saying it’s judge-made meaning, it’s not statutory, meaning that we can overrule it. And second, says that it rationalizes as if the reasoning in Tilley is not sound. So that is the dissenting opinion from Judge Hudson.

And it goes on to say, “Perhaps it’s time to reconsider Tilley in future cases.” All right, then we’ve got Judge Musseman’s dissent. That’s our new judge on the local Court of Criminal Appeals.

And it says, “Moreover, while the language in Tilley requiring the state to base its refiling on new information after a successful motion to quash is mere dicta, the fact that this language may be a source of confusion in the district court suggests that we should revisit the question and clarify the state’s duty.” So he’s calling it dicta, meaning that the decision in Tilley was not necessary to decide that case and perhaps it shouldn’t be considered precedent, and then saying that we should revisit Tilley.

So what that means is we’ve got two judges on the Oklahoma Court of Criminal Appeals right now that think that perhaps the state should be allowed to keep putting on preliminary hearings until they get it bound over.

That just because they fail the first time, that’s not a final ruling. They can perhaps go try it before a different magistrate or refile it 10 times if that’s what it takes. Meanwhile, the defense is obviously always stuck with the record that was presented.

So to me, that seems fundamentally unfair and it looks like a further turn from the Oklahoma Court of Criminal Appeals to be even more prosecution friendly, even though they have been historically for the last five, 10 years, very prosecution friendly. It appears with the appointment of Judge Musseman, it may go further in that direction.

So that’s a long video about this issue. If you’ve got questions about an Oklahoma criminal defense charge, you’ve got a case pending. You’re going to want to talk to an attorney about that privately and confidentially. To speak with an attorney at my office on that, you go online to makelaweasy.com.

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