McGirt lawyer: Gov’t seeking retribution
Says anger shouldn’t affect client’s sentence
Jimcy McGirt, whose victory in the U.S. Supreme Court last year has reshaped the criminal justice system in eastern Oklahoma, shouldn’t receive a longer sentence than federal guidelines require because of anger about the high court’s ruling, McGirt’s attorney told the judge in the case.
“We all know in our system, you do not necessarily get justice, merely the opportunity for justice,” defense attorney Richard O’Carroll said in a brief filed last week in federal court in Muskogee. “Mr. McGirt earned that opportunity and his fate should be determined by reasoned judgment, not anger, as seemingly advocated by the Government.”
McGirt, 72, is set to be sentenced on Wednesday in Muskogee by U.S. District Judge John F. Heil III for sexually abusing a 4-year-old girl in 1997. A federal jury found McGirt guilty in November of two counts of aggravated sexual abuse In Indian Country and one count of abusive sexual contact in Indian Country.
The federal case was filed after the U.S. Supreme Court overturned
McGirt’s state convictions for first-degree rape by Instrumentation, lewd molestation, and forcible sodomy. The high court ruled that McGirt should have been tried in federal court because he is Native American and the crimes occurred on the Muscogee (Creek) Nation’s reservation, which was never officially disestablished by Congress.
Under federal law, crimes involving
Native Americans in Indian Country must be prosecuted in federal or tribal courts.
U.S. attorneys in the federal judiciary's eastern district of Oklahoma, based in Muskogee, want McGirt sentenced to life in prison, a punishment that would exceed the recommended 210 to 262 months under federal sentencing guidelines. McGirt was serving two 500-year sentences and a life sentence in state prison.
In a recent request to the judge to depart from the guidelines, prosecutors recounted McGirt's convictions of sexually abusing two young boys in Oklahoma County before he abused the 4-year-old girl in Wagoner County. “The Defendant is a man who is sexually attracted to very young children,” the prosecutors said. “The Defendant has demonstrated that if released from prison, he will find yet another child victim. The Defendant must be held accountable for all of the children hurt by his conduct … the Defendant should be sentenced to Life in prison, as such a sentence would be sufficient but not greater than necessary.”
Prosecutors told the judge that they were not suggesting McGirt should be punished for the “historic ruling” that resulted from his case. But, they said, the victim in the case has been repeatedly traumatized by the ruling while McGirt “demonstrates his lack of remorse.”
The ruling in the McGirt case has been extended to the Cherokee, Chickasaw, Choctaw and Seminole reservations, which has led to dozens of convictions being overturned and backlash among district attorneys and law enforcement agencies. Meanwhile, federal, tribal and state prosecutors and investigative agencies have been working to adapt to the new rules in an area that makes up more than 40% of the state and nearly half the population.
Despite prosecutors' claims that they're not trying to punish McGirt for “upending criminal jurisprudence in Oklahoma … an undercurrent of anger and retribution pervades this case,” McGirt's attorney told the judge.
“The (Oklahoma) Attorney General and county prosecutors are holding rallies blaming the courts. News articles of supposed injustice are in the national media.”
In requesting a life sentence, prosecutors were offering “a political fig leaf,” McGirt's attorney said.