Killers’ fate connected to KCA reservation status

  • Killers’ fate connected to KCA reservation status

LAWTON – Whether the Kiowa-Comanche-Apache Reservation is still intact or has been dissolved will determine whether two killers will have their state court convictions set aside.

The Supreme Court of the United States ruled in July, in McGirt v. Oklahoma, that Congress never disestablished the Muscogee (Creek) Nation; therefore, major crimes committed by or against Native Americans within the boundaries of the Creek Nation in eastern Oklahoma must be prosecuted in federal courts.

Several state judges have since advised the Oklahoma Court of Criminal Appeals that the McGirt rationale also extends to the Cherokee, Choctaw, Chickasaw and Seminole nations in eastern and southern Oklahoma.

In fact, “Every tribe benefits from McGirt,” said Stephen Greetham, senior counsel for the Chickasaw Nation.


The legal fallout from the McGirt decision has advanced from eastern Oklahoma to the western side of the state.

Two men who claim to be Native Americans contend they were wrongfully convicted in a state court of committing murders that occurred in Comanche County, which is/was part of the Kiowa-Comanche-Apache (KCA) Reservation. Their attorneys argue that the KCA Reservation has never been dissolved by Congress, but Attorney General Mike Hunter argues that the Congressional Record proves conclusively that the reservation was disestablished 120 years ago.

Both convicts lodged appeals, maintaining that their cases should have been filed in a federal court, not a state court. The cases are those of: 

• Mica Alexander Martinez, 40, convicted in 2013 of first-degree murder in the beating deaths of Carl and Martha Faye Miller during an attack that occurred at their residence in Cache on October 12, 2009. He received two death sentences for the slayings and a 10-year sentence for assault and battery with a dangerous weapon.

• Joshua Tony Codynah, 32, who pleaded guilty on 25 September 2017 to first-degree murder in the death of Michael Lee Mithlo Jr.; first-degree burglary; child neglect – exposure to illegal activities; and assault and battery with a deadly weapon.

Codynah was sentenced to life imprisonment for murder and 15 years in prison for assault and battery with a deadly weapon, sentences to run consecutively, plus 20 years suspended for burglary and child neglect, to run concurrently to each other but consecutively after the murder and assault sentences.

The Oklahoma Court of Criminal Appeals remanded both cases to Comanche County District Court for evidentiary hearings on their claims arising from the Supreme Court’s McGirt decision. Those hearings are not expected to be held for some time, perhaps not until early next year, District Judge Emmit Tayloe indicated in a conversation with the Ledger.


Martinez claims to be a member of the Comanche Tribe. A document filed by the state Attorney General’s Office stipulates that Martinez is a member of the Comanche Tribe and has one-quarter degree Indian blood.

Emma V. Rolls and Michael W. Lieberman, assistant federal public defenders in Oklahoma City, maintain that the crimes of which Martinez was convicted occurred within the confines of the Kiowa-Comanche-Apache Reservation. They assert the KCA Reservation remains “intact,” but the AG’s office contends the reservation was dissolved by an agreement between the tribes and Congress in 1900.

During Martinez’s trial, his attorneys urged the jury to consider several mitigating factors: Martinez “was under the influence of untreated depression at the time of this offense”; he suffers from depression and mental illness; has received multiple head injuries during his lifetime and experienced brain damage “due to chronic alcoholism and/or head trauma”; is “a good father” who “has maintained contact with his children while incarcerated”; was sexually molested at a young age; has never known his father and was abandoned by his natural mother when just a child; and “grew up thinking his mother was his sister and that his grandmother was his mother,” and when he discovered the truth “it had a tremendous negative impact on his life and his development.”


The evidentiary hearing ordered by the Court of Criminal Appeals focused solely on the issues of the defendant’s blood quantum and whether the crimes of which he was convicted occurred in Indian Country. Those questions address a jurisdictional issue: whether Martinez should have been prosecuted in federal, rather than state, court.

But Martinez’s attorneys have raised another issue that could determine whether his death sentence is over turned. The jury that handed down the death sentence “was subjected to impermissible external influences” – a Bible in the jury room during their deliberations – the lawyers asserted.

While deliberating an appropriate sentence for Martinez after his conviction, the jury asked the presiding judge – now-retired Comanche County District Judge Mark R. Smith – for a Bible. “The court responded to the request by telling the jury, ‘You have all the law and evidence necessary to arrive at a verdict. Please continue your deliberations.’”

Long after the trial, an investigator for Martinez’s legal team interviewed three jurors who said that after two other jurors balked at imposing capital punishment, the jury “talked about scripture and asked for a Bible.” Yet after the judge denied the request, “a court official, likely the court’s bailiff, brought the jury one anyway.”

Afterward, one of the jurors who had been “holding out” against imposing death “looked up passages in the Bible” and led the jury in prayer, “with all jurors holding hands.” Subsequently, the jury then voted unanimously for death.

“In a series of decisions, the U.S. Supreme Court has recognized and held that the contamination of a jury’s deliberations by an improper external influence contravenes a defendant’s right to an impartial jury,” Martinez’s legal advisers wrote. “The external influences recognized by the Court in those decisions are factually diverse but they share a single, constitutionally significant characteristic: they are external to the evidence and law in the case, and carry the potential to bias the jury against the defendant.”

Whether that issue ultimately affects Martinez’s appeal will be left to an appellate court to decide.


Codynah entered “blind” pleas in 2017 to four crimes: first-degree murder, first-degree burglary, child neglect – exposure to illegal activities, and assault and battery with a deadly weapon.

[A blind plea is a guilty plea without a set sentence. That is different than a standard plea bargain, in which the defense attorney and the prosecuting attorney agree on a guilty plea for the accused, and in exchange, the prosecuting attorney recommends a lighter sentence, typically an amount of time that both attorneys and the accused have agreed to. A blind plea is accompanied by no such agreement, thus leaving it up to the judge’s discretion to sentence the defendant as he or she sees fit, within the bounds of the law.]

Codynah, 32, admitted killing Michael Mithlo Jr., 27, on 8 August 2016, after he surprised Mithlo taking a shower with the mother of Codynah’s two children.

Judge Tayloe sentenced Codynah on December 6, 2017 to life imprisonment for murder, 20 years imprisonment suspended plus a $1,000 fine on count 2 and on 3, and 15 years for assault and battery with a deadly weapon. Counts 1 and 4 were to run consecutively, and counts 2 and 3 were to run concurrently to one another.

On September 29 the state Court of Criminal Appeals directed the Comanche County District Court to conduct an evidentiary hearing on two specific issues: whether Codynah is a Native American and whether the crimes he admitted committing occurred in Indian Country.

Codynah’s latest appeal includes documents showing that he is a registered member of the Kiowa Tribe, a federally recognized Indian tribe based in Carnegie, and that he has a blood quantum of one-quarter. Mithlo was of one-quarter degree Indian blood and a member of the Comanche Tribe.

Also, the crime occurred in an apartment in the 2100 block of NW 38th Street in Lawton, in Comanche County. Codynah’s legal advisers contend that Comanche County is entirely in the Kiowa-Comanche-Apache Reservation and that Congress “did not disestablish” the KCA Reservation. Therefore, “If Mr. Codynah were to be prosecuted at all, it should have been by the federal authorities,” his lawyers asserted.

The state Attorney General’s Office contends the reservation was dissolved by an agreement between the tribes and Congress in 1900.


Codynah’s attorneys from the Oklahoma Indigent Defense System also argue that the trial judge erred in accepting Codynah’s guilty plea to the child neglect charge.

“This alleged crime depends on the children’s location during the altercation” between Codynah and Mithlo, the appeal petition noted.

Although testimony presented during the trial showed the children were in the apartment at the time of the confrontation, “the testimony does not ... place them in the bathroom where the altercation” occurred. Evidence produced during various court hearings indicated the children did not witness the attack in which Mithlo was fatally stabbed, but instead were in their bedroom, the defense attorneys maintain.