OKLAHOMA CITY — The U.S. Supreme Court, providing some clarity to a controversial decision it issued a year and a half ago, upheld the Oklahoma Court of Criminal Appeals’ opinion that the landmark McGirt ruling will not be applied retroactively to criminal convictions.
Without comment, the nation’s highest court on Jan. 10 turned away applications from three criminals from Oklahoma who cited McGirt in appeals of their convictions.
“This is a major victory for the State of Oklahoma,” Attorney General John O’Connor said.
“This is a victory for the safety of victims, families of victims, and the people of Oklahoma,” he said. “Victims and their families will not be required to relive their tragic experiences by testifying in new trials, or worse, seeing the perpetrators out in society.”
O’Connor said he is “hopeful that this is the first step in having the McGirt decision overturned or clarified and limited. Even without retroactive application, McGirt has opened prison doors and let violent criminals go free.”
The Oklahoma Criminal Defense Lawyer’s Association viewed the situation differently.
“The reality is that tribal courts and federal courts in Oklahoma have already adjusted to the consequences of McGirt, including handling cases vacated on post-conviction appeal,” the OCDLA wrote in a brief to the Supreme Court.
In a 5-4 decision announced July 9, 2020, that is reshaping the criminal justice system in Oklahoma, the Supreme Court ruled that the Muscogee (Creek) Nation’s reservation was never disestablished by Congress; the tribe’s reservation encompasses portions or all of 11 counties in eastern Oklahoma.
Consequently, crimes committed by or against Native Americans in “Indian Country” must be prosecuted in federal or tribal courts.
As a direct result, the criminal convictions of child molester Jimcy McGirt in a state district court were tossed out.
Subsequently, after a series of evidentiary hearings conducted by trial courts, the Oklahoma Court of Criminal Appeals ruled that Congress never dissolved the reservations of the Cherokee, Choctaw, Chickasaw or Seminole Nations – the other members of the Five Tribes – either.
Consequently, literally hundreds of Native Americans have successfully appealed to have their convictions for crimes that occurred within the boundaries of the Five Tribes vacated and either refiled in federal courts or dismissed entirely.
Although they declined to file a brief with the Supreme Court, the Cherokee, Chickasaw, Choctaw, and Muscogee (Creek) Nations previously filed a brief in Oklahoma’s Court of Criminal Appeals, encouraging the judges to apply McGirt retroactively to void long-final criminal convictions, O’Connor said.
The OCDLA’s 400 members include private practitioners, public defenders, law professors, and agency attorneys who defend criminal cases in state, tribal and federal trial and appellate courts. Its stated mission is “to protect and ensure by rule of law those individual rights guaranteed by the Oklahoma and federal constitutions…”
McGirt convicted anew in federal district court
In 1997 a Wagoner County jury convicted McGirt of first-degree rape by instrumentation, lewd molestation, and forcible sodomy of a 4-year-old girl at a residence in Broken Arrow.
McGirt was sentenced to 500 years’ imprisonment on the first two charges and life without parole on the third, at least in part because he previously was convicted in 1989 on two counts of forcible oral sodomy of two children in Oklahoma County.
In his appeal to the Supreme Court of the United States, McGirt’s attorney pointed out that his client is a citizen of the Seminole Nation and the crimes occurred at a residence in Wagoner County within the boundaries of the Muscogee (Creek) tribal reservation. The victim, too, is a member of the Seminole Tribe.
After McGirt’s state convictions were vacated, the case was picked up by the U.S. Attorney’s office for the Eastern District of Oklahoma, which secured a grand jury indictment against McGirt on three counts of sexual abuse in Indian Country.
At the conclusion of a three-day trial in November 2020 in Oklahoma’s Eastern District federal court at Muskogee, a jury deliberated for an hour and 20 minutes before finding McGirt guilty. The victim, who is now 29, testified at the retrial in federal court that McGirt sexually molested her three times in August 1996 while she was staying with her grandmother and McGirt, who was married to the grandmother.
McGirt, 72, of Holdenville, was sentenced to life imprisonment and five years’ supervised release for two counts of aggravated sexual abuse in Indian Country, and one count of abusive sexual contact in Indian Country. The life sentences on each count were ordered to run concurrently.
SCOTUS declined to consider cases of 3 Oklahoma convicts
In affirming the Oklahoma Court of Criminal Appeals’ ruling that McGirt will not be applied retroactively to convictions that are considered “final,” the Supreme Court of the United States (SCOTUS) refused to consider appeals from three Oklahoma convicts.
Ÿ Clifton Merrill Parish was convicted in 2012 of second-degree murder in the 2010 beating and shooting death of Robert Strickland in Hugo and was sentenced to 25 years in prison.
The state Court of Criminal Appeals affirmed the conviction and sentence in 2014 on Parish’s direct appeal, and he did not petition the U.S. Supreme Court for relief within a requisite 90-day time frame. Therefore, his conviction became final in June 2014.
However, five weeks after the SCOTUS McGirt decision was announced, Parish filed another appeal seeking to have his conviction overturned. Parish, who turns 37 this month, pointed out that he is an enrolled member of the Choctaw Nation and the homicide occurred within the tribe’s boundaries.
The state asserted that McGirt should not apply retroactively to invalidate convictions that were final when SCOTUS issued that ruling.
When McGirt was decided, it was recognized that many state inmates who attempt to seek release because of that ruling would nonetheless remain in state custody “thanks to well-known state and federal limitations on post-conviction review in criminal proceedings,” the State of Oklahoma argued.
Parish had a lengthy criminal record in Choctaw County prior to his murder conviction.
He pleaded guilty in 2004 to second-degree burglary and conspiracy to commit burglary and received a suspended sentence. However, the suspension was revoked in 2006 after he pleaded guilty to domestic abuse, obstructing a law enforcement officer and unlawful entry.
Parish also pleaded guilty in 2004 to misdemeanor charges of malicious injury to property and trespassing.
In 2009 he pleaded guilty to possession of a controlled dangerous substance and possession of drug paraphernalia and received a two-year suspended sentence.
Three misdemeanor charges against Parish of “pump piracy” – theft of gasoline – were dismissed in 2010.
Ÿ Keith Elmo Davis, 79, was convicted by a Latimer County jury in 2005 of forcible sodomy and lewd or indecent proposal or act to a child under the age of 16; the crimes occurred in Wilburton.
Davis was given 20 years in prison on the sodomy conviction and 15 years for the lewd/indecent act, the sentences to run consecutively (back-to-back). Subsequently the state Court of Criminal Appeals affirmed the convictions and sentences.
On Sept. 20, 2021, after multiple applications for post-conviction relief, Davis asserted a McGirt defense, on the grounds that he is a member of the Cherokee Tribe, the victim is an Indian, and the crimes occurred on the Creek Reservation.
Ÿ Gary Franklin Compelleebee, 40, has a record of multiple convictions in two counties.
Those include escape from confinement and car theft in McIntosh County in 2002; first-degree robbery, grand larceny, and domestic assault and battery in Henryetta in 2005; and possession of a controlled substance in Okmulgee County in 2014.
After McGirt was announced, Compelleebee said he is a Creek Nation member with 1/16th degree Indian blood, and the crimes of which he was convicted in 2005 and 2013 occurred in the Muscogee (Creek) Reservation.
The Court of Criminal Appeals noted that he never raised those issues during his first appeal and ruled that his convictions in those cases were final before McGirt was decided.