Tulsa Attorney BlogHey OCCA, Is This Enough to Warrant a New Trial?

You Have the Right to a Fair, Impartial Trial


criminal defense lawyer in TulsaVideo Transcribed: Hey, Oklahoma Court of Criminal Appeals, is this enough to be granted a new trial? I’m Tulsa attorney James Wirth and that’s the topic of our video today. And it comes from a real-life case that was recently published by the Oklahoma Court of Criminal Appeals. It is 2022-OKCR-12, that’s Fort v. State of Oklahoma, published on July 21st of 2022.

It deals with a situation that we can look at as a hypothetical, even though it’s a real case, but putting yourself into the shoes of the defendant, you’ve been charged with a serious crime. You’re presumed under the law in the United States and the state of Oklahoma to be innocent of that crime until you are proven guilty at trial, and you’ve got certain rights at that trial. And one of those rights as articulated in the opinion here is that the Oklahoma constitution guarantees the defendant the right to a fair, impartial trial, not tainted by the personal bias or prejudice of the trial court.

And arguably, if you do not get that fair, impartial trial or a trial that is tainted by personal biases or prejudice of the court, then you should be entitled to a new trial. So the question we’re dealing with is under these circumstances, are you entitled to a new trial? Well, here’s the first error that is alleged by the defendant upon appeal. The question is whether the trial court committed structural error when the trial judge sexually assaulted and/or had an illicit affair with the prosecuting attorney on the case, which resulted in judicial bias.

So that is what you find out after the fact. Now, during the trial that’s put on, the judge is going to make numerous rulings regarding what evidence comes in, what evidence does not, and other issues regarding the case. And then it goes to the jury, and the jury finds you guilty and sentences you to 23 years. And then you find out after the fact that the prosecutor that was prosecuting you was sleeping with the judge.

Now there’s a dispute on whether that is a relationship that was only illicit or illegal. The prosecutor is claiming that she was sexually assaulted by the judge. It sounds like it was an ongoing thing, but during the time period this trial occurred, the judge is asserting that it was just an affair that was consensual, but still, it is undisputed that it was going on during the time that this trial occurred. However, because the defense didn’t know about it, they didn’t request the recusal of the judge and did not object to anything related to it. Meanwhile, a trial was put on at the trial level after the fact by a different court to get the facts regarding the situation to see if they’re entitled to a new trial.

And at that hearing, the state of Oklahoma ultimately conceded that yes, this is a structural error. Yes, this is serious. The defendant, you, in this case, should get a new trial. Now it goes up to the Oklahoma Court of Criminal Appeals and ultimately the Oklahoma Court of Criminal Appeals agrees that this is a serious enough issue, that it’s not that the charges get thrown out and you go free, but it’s that you’re entitled to a new trial, one that we can ensure is fair and free from bias. But the reason why I’m doing this video is that not everyone on the Oklahoma Court of Criminal Appeals agreed with that. Judge Lumpkin had a different opinion.

And even though the prosecutor was sleeping with the judge during the timeframe that the trial occurred, nobody knew about this and even though the state of Oklahoma conceded that this was a structural error and that the defendant should be entitled to a new trial, Judge Lumpkin determined that it was not structural error and found that they needed to use the plain error analysis. So generally, the plain error analysis means that there was a mistake at trial, there was an error, but the defendant did not object, therefore it was waived. So you only apply the plain error, which requires the defendant to prove that they were prejudiced and highly prejudiced by that in order to get a new trial or something else.

So Judge Lumpkin says, “Well, plain error doctrine should be used here, that the defendant has failed to overcome the presumption of judicial impartiality and that the conviction should stay in and the defendant should not get a new trial.” So how would you feel if you’re in the circumstances of the defendant where you’re entitled to the presumption of innocence until it’s proven guilty? Would you feel like you’ve gotten a fair trial if you find out that the person prosecuting you is sleeping with the judge?

More than likely, you probably would not. However, we do have somebody on the Oklahoma Court of Criminal Appeals who thinks differently. And I think that’s somewhat indicative of a lot of the decisions that we get from the Oklahoma Court of Criminal Appeals that are extremely conservative, that bend over backward in order to favor the prosecution, to keep convictions where we don’t lose a lot by sending it back and getting a new trial. It’s not like we’re allowing criminals to go free. No, we’re sending them back for a new trial that is free from bias so that we can ensure that we do have a fair verdict in the case rather than just pushing forward with whatever verdict we have, no matter how unfair it is, if it was a conviction.

So that’s just an interesting decision there that I wanted to talk about, that even though the state agreed, they weren’t even arguing for that position, Judge Lumpkin still says, “Even though you’re not arguing, even though the defendant and the state are in agreement that you get a new trial, and even though the trial judge was sleeping with the prosecutor, we’re still going to try to affirm this conviction.” However, in this decision, he was in the minority. So that is not the decision that stood. The defendant will be entitled to a new trial on that.

All right, if you’ve got questions about judicial bias, fair trials, appeals, or any other legal issue in the state of Oklahoma, a video online is not going to be enough for you, you’re going to need to talk to an Oklahoma criminal defense lawyer privately and confidentially to get legal advice. To get that scheduled with somebody at my office, you can go online to makelaweasy.com.

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