Jimcy McGirt, whose name rose to prominence this summer when he won a landmark Supreme Court decision that acknowledged that the Muscogee (Creek) Nation’s historical reservation boundaries were never dissolved, will be retried this week in Muskogee federal court.
Jury selection for McGirt’s trial is scheduled to begin Wednesday.
A federal grand jury indicted McGirt after the Supreme Court ruled in July that the state of Oklahoma didn’t have jurisdiction over him when a Wagoner County jury convicted him in 1997 of rape, sodomy and lewd molestation of a minor.
McGirt was serving terms of life without parole and two 500-year sentences when the Supreme Court in a 5-4 decision agreed with McGirt’s lawyers that the Muscogee (Creek) Nation reservation boundary, which dates to 1866, has never been diminished by Congress.
The court in its July 9 ruling said the federal government should have tried McGirt because the crime occurred within the historic boundaries of the Muscogee (Creek) Nation, the federal government has jurisdiction over major crimes that occur in “Indian Country” and McGirt was an enrolled member of a tribe, in this case, the Seminole Nation.
The Muscogee (Creek) Nation reservation has an 11-county footprint that includes most of Wagoner County and much of the city of Tulsa.
The ruling has set off a cascade of events related to the prosecution of major crimes that involve American Indians.
While county prosecutors in eastern Oklahoma have moved to identify and dismiss cases that clearly meet the McGirt criteria, federal and tribal prosecutors have picked up both old and new cases that fall under the ruling.
A grand jury named McGirt in a three-count indictment that alleges the 72-year-old sexually abused a 4-year-old girl left in his care in 1996.
McGirt has been in Sheriff’s Office custody in Muskogee since his release from prison.
Both federal prosecutors and McGirt’s attorney were tight-lipped when asked to comment last week about the pending trial.
Doug Horn, senior litigation counsel for the U.S. Attorney’s Office in Muskogee, declined to provide the Tulsa World a statement prior to the trial.
McGirt’s attorney, Richard O’Carroll, said little more.
“The evidence can be managed,” O’Carroll said. “The concern is the jury will be aware of the previous conviction, which makes the case difficult.”
The indictment alleges McGirt sexually abused a girl related to his former wife.
Prior to trial, U.S. District Judge John F. Heil III ruled on a handful of evidentiary issues related to the case.
In one instance, Heil ruled prosecutors can admit evidence that McGirt allegedly wrote a letter while in prison to his now ex-wife. In the letter, which has apparently been lost, McGirt allegedly wrote to say that “the devil made him do it.”
O’Carroll argued that the evidence should not be admitted because the original supposed letter cannot be located and that it is prejudicial to McGirt.
In another instance, Heil agreed with O’Carroll that evidence of McGirt’s prior convictions for child molestation should be kept from the jury.
Prosecutors had sought to admit at trial evidence that McGirt pleaded guilty in 1989 to forcibly sodomizing a 5-year-old and an 8-year-old boy in Oklahoma County.
Heil also ruled that jurors can hear evidence from a physician who examined the female victim in 1996 for signs she was sexually abused.
Prosecutors plan to call about seven witnesses to testify, including the victim, who would be in her late 20s now.
The trial is projected to last three days.