The Bosse Case Is Important For a Couple Of Different Reasons
Video Transcribed:
Does SCOTUS’s Bosse stay affect your post-conviction relief case? I’m McGirt attorney James Wirth, and we’re talking about post-conviction relief cases based on McGirt and the effect that the Bosse stay by the United States Supreme Court may have on those.
So first off, the Bosse case is important for a couple of different reasons. It expanded the McGirt decision to the Chickasaw Nation. It also is the first big case that shows its application where the defendant is a non-Indian but the victims are Indian.
And lastly, it is important because there were procedural defenses that were brought up by the state, and the Oklahoma Court of Criminal Appeals found them inapplicable because it’s an issue of subject-matter jurisdiction, which could be attacked at any time and must be attacked at any time in the language of the court. And it is not subject to procedural defenses, like waiver or laches or things like that.
So that’s why Bosse is important. The fact that the United States Supreme Court has stayed that decision is an indication they may accept an appeal of that, and it may reverse the Oklahoma Court of Criminal Appeals.
However, that doesn’t change the fact that at the moment there is a court opinion, a published opinion from the Oklahoma Court of Criminal Appeals that is out there for Bosse that is precedent, that the court has already used as precedent.
But because that may change, if you’ve got a PCR case that has arguments that there are procedural defenses, or you have a case where you are non-Indian but the victims of the crime are Indian, then that may be a basis for the state to request that your case be delayed.
And it may be a basis for the judge to grant that request, to hold that case, to hold it in abeyance, to find out what the United States Supreme Court is going to do.
So, Bosse may not have a direct effect on your case because it’s a separate defendant, it’s not technically holding up your case.
However, we’re seeing in practice that it’s a good excuse the state is using to delay things and that judges are going along with that in many different counties and cases.
And that’s likely to increase based on a couple of movements that we’ve seen with the stay being granted, and with another case where the Oklahoma Court of Criminal Appeals has requested briefing on the issue on whether McGirt has a retroactive application.
So, may not have a direct effect on your case at this time, but we’re seeing that there’s likely to be further delays. That’s how it may affect your PCR case.
If you have a direct appeal or you have a pending case that McGirt is applicable, Bosse should not be an excuse to delay that, it is only going to be relevant on those issues.
Unless of course you are non-Indian and it’s an Indian victim. But mostly it’s related to procedural defenses that are inapplicable for a pending criminal case or for a case on direct appeal. It’s going to be for the later cases on post-conviction relief, habeas corpus, issues like that.
But if you’ve got a question about your specific circumstances for yourself or a family member, you’re not going to want to take this general information.
You’re going to want to talk to an attorney specifically, confidentially about that. To get that scheduled with somebody at my office, you can go online to makelaweasy.com.
