The U.S. Supreme Court’s decision in the controversial McGirt case was the “worst thing that’s happened in law,” a Stephens County judge said recently.
District Judge Ken Graham said the case, which has overturned literally hundreds of state court convictions of Native Americans who committed offenses in “Indian Country,” has created an unstable situation in a lot of Oklahoma courts.
Jimcy McGirt, the defendant at the center of the Supreme Court case, was convicted in 1997 for raping and sexually abusing a 4-year-old. He was sentenced to two 500-year prison terms and life without parole on a third charge.
His Wagoner County District Court convictions ultimately led to the U.S. Supreme Court ruling that the State of Oklahoma cannot prosecute criminal cases against American Indian defendants within the boundaries of the Muscogee (Creek) Reservation in eastern Oklahoma, which includes most of Tulsa, the state’s second-largest city.
The Oklahoma Court of Criminal Appeals has since extended that ruling to Native American criminal defendants whose crimes were committed within the boundaries of the Cherokee, Choctaw, Chickasaw and Seminole Nations, as well. The reservations of those tribes, like that of the Muscogee (Creek) Nation, were never disestablished by Congress, jurists determined after conducting evidentiary hearings.
“It’s caused us a great deal of problems,” Graham, who will not seek re-election, said of the McGirt case. “Thank God, the federal government had the resources to charge them. The [Chickasaw] tribe picked up a couple of cases, but the tribe doesn’t have a jail. It’s a terrible, terrible mess.”
A portion of Stephens County is located inside the Chickasaw Nation.
In most cases, the criminal cases against Native Americans whose state convictions were tossed out because of McGirt have seen those charges refiled in federal or tribal courts.
Graham also criticized Congress for failing to disestablish the reservations of the Five Tribes and chastised U.S. Rep. Tom Cole for filing a friend-of-the-court brief in the McGirt case. In that filing, Cole wrote McGirt would not have much of an impact on Oklahoma since the state and the sovereign tribes have worked closely on several issues, Graham recalled.
“But that (Chickasaw Nation) is probably where Tom Cole gets the biggest share of his campaign funds,” the judge said.
Graham was upset that he’s been forced to release prison inmates because of the McGirt decision. Some of those prisoners have included convicted murderers and child molesters.
DEATH PENALTY
During his time on the bench, Graham has sentenced convicted murderers to die by lethal injection based on a jury’s recommendation, but he hasn’t always agreed with their decision.
“There is no redeeming quality about it (the death penalty),” the judge said. “I understand it but I don’t necessarily agree with it.”
Nevertheless, Graham said he’s never reversed a jury’s sentencing recommendation even in cases where he disagreed with it.
The death penalty nationwide was ruled unconstitutional in 1972 because it was deemed to be “cruel and unusual” punishment. Four years later the death penalty was reinstated by the U.S. Supreme Court. Oklahoma did not execute anyone after the reinstatement until 1990, but has executed 113 convicted felons since then.
Graham said one of the most egregious cases he presided over involved a life-threatening home invasion. During the crime the husband was shot in the back, instructed to open a home safe and then forced to watch as the two invaders tied his elderly wife to a chair, the judge recalled. Before leaving the residence, the two men shot the husband in both knees so he couldn’t walk. One of the defendants was sentenced to 99 years in prison.
When Graham leaves the bench next year, he won’t miss those types of cases or the defendants accused of the crimes.
“I’m at the age where I don’t have as much patience as I should have,” he said. “I’ll be 77 when I retire. Oh, there’s certain parts of the job I’ll miss, like the people I work with and the lawyers I’ve known for so many years. I like to see two good lawyers battling it out because there’s an art to it.”
Although Graham says he doesn’t like sending people to prison, he admits some people belong there. For others, prison and drug rehabilitation programs serve as an incentive to turn their lives around.
“I’ll miss helping people and we do that a lot,” he said.
After retirement, the longtime lawyer and judge will spend time with his horses and travel with his grandchildren and wife, who served 19 years as the school superintendent at Snyder.
Graham practiced law in southwest Oklahoma for 33 years before he was elected as a district judge in 2014 and then re-elected in 2018. Prior to his law career, Graham taught school, was a football coach, served in the U.S. Army and owned a sale barn.
He worked one year in the Comanche County District Attorney’s Office before going into private practice.