The Oklahoman

State appeals court reverses its rulings on 4 Oklahoma death penalty cases

- Chris Casteel

Citing its recent decision to narrow the cases from Indian reservatio­ns that can be appealed, the Oklahoma Court of Criminal Appeals on Tuesday reversed rulings that would have freed four death row inmates from state custody.

In brief orders, the court withdrew its own opinions and vacated the judgments it previously rendered in regard to Shaun Michael Bosse, Miles Sterling Bench, James Chandler Ryder and Benjamin Robert Cole.

All four cases involve Native Americans and crimes committed on Indian reservatio­ns in eastern Oklahoma. The state appeals court released opinions that overturned all of the conviction­s in the wake of the U.S. Supreme Court’s ruling last year that has led to federal and tribal jurisdicti­on in criminal cases involving Native Americans on the Five Tribes’ reservatio­ns.

However, the court agreed to delay the effect of those judgments while the state attorney general’s office pursued other appeals to keep them in state custody.

On Aug. 12, the state appeals court decided that the U.S. Supreme Court ruling now referred to as McGirt was not retroactiv­e after all and that it could not be used to overturn cases that had already been upheld on direct appeal.

“New rules of criminal procedure generally apply to cases pending on direct appeal when the rule is announced, with no exception for cases where the rule is a clear break with past law,” the court said.

“But new rules generally do not apply retroactiv­ely to conviction­s that are final, with a few narrow exceptions.”

That ruling applied directly to Bosse, Bench, Ryder and Cole since their conviction­s had previously been upheld by the state appeals court. Oklahoma Attorney General John O’Connor asked the court last week to vacate its judgments in regard to the four inmates, and the court did that on Tuesday.

“We are grateful that the Oklahoma Court of Criminal Appeals withdrew the Court’s previous opinions,” O’Connor said Tuesday. “The sentences determined by the trial courts will remain in effect for these four inmates. The victims and their families will not be retraumati­zed by new trials and justice will be served. But the McGirt decision continues to present serious and pressing issues for all Oklahomans. We are evaluating our next steps before the U.S. Supreme Court.”

It was not clear on Tuesday what impact the court’s action would have on the state’s effort to get the U.S. Supreme Court to review the Bosse case. The state is asking the high court to use the Bosse case to overturn the McGirt decision. It has also presented questions of whether Bosse’s appeal should have been considered by the Oklahoma Court of Criminal Appeals and whether the state has concurrent jurisdicti­on in cases in which the accused is not Native American.

O’Connor’s office has filed several other petitions with the U.S. Supreme Court seeking reversal of McGirt, in case the Supreme Court doesn’t take up the Bosse appeal.

Since the McGirt decision came down, federal and tribal prosecutor­s have refiled many of the cases reversed by state courts. And U.S. attorneys were preparing to prosecute the four death row inmates if their state conviction­s were officially reversed.

Bosse was convicted of killing Katrina Griffin and her two young children in 2010 in McClain County; Bench received the death penalty for killing a 16-yearold co-worker in Stephens County in 2012; Ryder was convicted of killing a 70-year-old woman and her son in 1999 in Pittsburg County; and Cole was convicted of killing his infant daughter by snapping her spine in 2002 in Rogers County.

The Bosse case is of particular interest to the Chickasaw Nation, since the Oklahoma appeals court used the case to extend the McGirt decision to the tribe’s reservatio­n. In its Aug. 12 decision that the McGirt case was not retroactiv­e, the state appeals court affirmed its position regarding the Chickasaw Nation’s reservatio­n.

Stephen Greetham, senior counsel for the tribe, said Tuesday, “We appreciate the clarity and uniformity of the Court’s actions today. It will bring stability to a challengin­g policy issue and finality for the victims of the crimes in each of the affected cases, which is particular­ly gratifying. The Chickasaw Nation will continue its own work to ensure the public is safe within our reservatio­n and the law is fully and fairly enforced.”

In line with the Aug. 12 decision, the Oklahoma Court of Criminal Appeals could effectively reinstate conviction­s that have been overturned by state district judges who applied the McGirt decision to cases involving Native Americans on the five reservatio­ns.

However, the question of whether the court rightly ruled that the McGirt decision was not retroactiv­e could also wind up before the U.S. Supreme Court.

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