U.S. Supreme Court

SCOTUS accepts pro se appeal that could upend hundreds of convictions

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The U.S. Supreme Court accepted Friday a pro se cert petition to once again consider whether a large part of eastern central Oklahoma is an American Indian reservation, which could call into question hundreds of state convictions.

The court apparently split 4-4 in a case raising the issue last term when Justice Neil M. Gorsuch recused himself, the New York Times reports. On June 27, the court said it would hear new arguments in the case this term, “but that has not happened, and it was not clear that another argument would break the deadlock,” the New York Times says.

By accepting the pro se appeal in the new case, the issue will be decided by a nine-member court. The petitioner is Jimcy McGirt, who was convicted in state court for sex crimes against a child. He claims that the case should have been tried in federal court because he is a member of the Muscogee (Creek) Nation, and the alleged crime occurred on tribal land.

The 10th U.S. Circuit Court of Appeals at Denver had ruled in August 2017 in the prior case that Congress never formally abolished the reservation, which meant that death-row inmate Patrick Murphy should have been tried in federal rather than state court.

Arguing for the state in Murphy’s Supreme Court case in November 2018, Lisa Blatt said Congress had long ago diminished the tribe’s authority by ending tribal sovereignty over the land to create Oklahoma. If the court was to rule for Murphy, “155 murderers, 113 rapists and over 200 felons who committed crimes against children” would have to be retried, Blatt said.

A prosecutor told the ABA Journal last year that the Tulsa County district attorney’s office estimates that up to 1,000 of its past cases could be vulnerable to challenge if the Supreme Court upholds the 10th Circuit decision.

McGirt challenged his conviction the month following the 10th Circuit ruling, arguing that his conviction is void because he is a member of the Muscogee (Creek) Nation, and the alleged crimes occurred on a reservation, he wrote in his cert petition. He faced several challenges as he attempted to challenge his conviction from prison without the aid of a lawyer.

His first challenge was dismissed because it had been filed in the wrong county. He then sought a writ of habeas corpus with the Oklahoma Court of Criminal Appeals.

The appeal was dismissed because McGirt failed to include the certified case record.

In June 2018, McGirt filed another case, this time in the proper county. The court paused the case because McGirt was apparently relying on Murphy’s case, which was pending before the Supreme Court.

McGirt followed with another appeal, alleging that the state failed to consider other claims in his petition. The Oklahoma Court of Criminal Appeals ruled that McGirt was seeking a rehearing, which is not allowed.

Parts of McGirt’s cert petition cite case law and read as if they were taken from other legal documents. His statement of the case appears to be his own, as does a statement that explains why he left some facts out of his document.

“I struggle with undiagnosed and untreated constant confusion, serious loss of recall, dizziness, constant fatigue, constant nausea and mental distress,” wrote McGirt, who is 71. He also has constant throat irritation and a sore mouth and gums. It “feels like chewing cellophane” when he eats, he wrote.

“I inadvertently omit important facts due to the above, and we are allowed to copay (collect when money becomes available in inmate account) only one original document and one copy to the district attorney or attorney general,” he wrote.

On Friday, the lawyer who represented Murphy, Ian Gershengorn, told the Supreme Court he is now representing McGirt, the Oklahoman reports.

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