A state appellate court on Tuesday vacated orders granting post-conviction relief to four death-row inmates who it previously said shouldn’t have been tried in state court due to the Supreme Court’s McGirt ruling.
The Oklahoma Court of Criminal Appeals in four separate two-page orders reversed itself and vacated earlier rulings that threw out the convictions and death sentences of Benjamin Robert Cole Sr., 56; James Chandler Ryder, 59; Miles Sterling Bench, 30; and Shaun Bosse, 38.
The rulings were based on the same appeals court’s Aug. 12 decision that overturned a Pushmataha County judge’s ruling that had dismissed a 2010 second-degree felony murder case against Clifton Parish, a Choctaw Nation citizen.
The gist of the Aug. 12 appellate decision was that the McGirt ruling, which determined that state prosecutors did not have the jurisdiction to try crimes involving tribal citizens in much of the eastern half of Oklahoma, was not retroactive, meaning those convicted of crimes prior to the McGirt ruling were not eligible to have their cases reviewed on those grounds.
Three of the death-row inmates have yet to be publicly charged in federal court, while Cole, sentenced to death for the 2002 Rogers County death of his 9-month-old daughter, Brianna Cole, was indicted April 6 in Tulsa federal court on one count of first-degree murder in Indian Country.
A spokeswoman for the U.S. Attorney’s Office in Tulsa provided the following update on the status of Cole’s case in federal court:
“Benjamin Cole’s federal case remains open and charged. The United States Attorney’s Office will wait to proceed on federal charges until all underlying appeals are exhausted following the decision to vacate his post-conviction relief.”
Ryder was sentenced to death in connection with the 1999 double murder of a Pittsburg County couple.
Bench was sentenced to death in connection with the 2015 Stephens County beating death of Braylee Henry, 16.
Bosse was convicted and sentenced to death in a 2010 McClain County triple murder that included three counts of first-degree arson.
The state has already appealed the Court of Criminal Appeals decision in the Bosse case to the U.S. Supreme Court in the hope that it will overturn or narrow the McGirt ruling in some way. Bosse’s victims were members of the Chickasaw Nation, and the crimes were committed in Indian Country.
The state’s petition also asks the Supreme Court to rule that the state still has the authority to prosecute non-Native Americans who commit crimes against Native Americans in the Muscogee Nation reservation.
The U.S. Supreme Court ruled in July 2020 that the Muscogee Nation’s 1860s-era reservation boundaries still existed because Congress never disestablished the reservation.
State courts have since expanded the ruling to include the Cherokee, Choctaw, Chickasaw and Seminole reservations.
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