The Oklahoman

McGirt lawyer: Gov’t seeking retributio­n

Says anger shouldn’t affect client’s sentence

- Chris Casteel The Oklahoman

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 filed 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 filed after the U.S. Supreme Court overturned

McGirt’s state conviction­s for first-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 officially 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 find 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 sufficient 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 offering “a political fig leaf,” McGirt's attorney said.

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