Oklahoma Criminal Defense Blog

As the economy continues to struggle in Oklahoma, revenues to the state come in at lower levels than last year.  The state must therefore cut expenditures.   All state agencies are now planning a five percent reduction in spending.   Some projects may do worse.

One of these is the Oklahoma Indigent Defense System. It pays for the defense of those accused of crimes who cannot afford their own lawyer.  The Indigent Defense System pays for attorneys and some investigators in separate departments, broken down into cases involving charges of capital crimes and non-capital crimes, and broken down for trials and for appeals for both capital and non-capital.

The capital division, for those charged with cases facing the death penalty, is adequately funded.  Funding for non-capital crimes is less sure.

Capital crimes are probably more certainly funded because any failure in representation in these cases will likely result in a reversal on appeal and the necessity to try cases all over again.   And capital cases are already costly for the state to prosecute due to the courts’ demands for detailed and careful proceedings when such an extreme penalty is at issue.

The Indigent Defense System says it needs $1million more in funding, and the legislature is looking everywhere in its budget for the money.  One pot of money the legislature is now considering shifting the Indigent Defense System is the funding the legislature gives to Legal Aid of Oklahoma.

The state is not required to fund Legal Aid, which provides legal services of a non-criminal nature to those who truly unable to afford legal services.  Legal Aid guidelines are strict and their income level required for someone to be represented is demandingly low. But Legal Aid does have other funding sources, and the legislature is not required to fund Legal Aid.  The legislature is required to fund Indigent Defense, required by the constitution, which could ultimately be enforced by the federal courts.

As criminal defense lawyers well know, attorneys appointed by the Indigent Defense System have a heavy workload.   There are always plenty of people charged with crimes who have no money to pay a lawyer.  But now that workload is increasing.

During the 2009 budget year which ended last June 30, the staff of criminal defense attorneys who work for the indigent defense office handled 39,369 cases.  Estimates are for an increase to approximately 44,100 cases by the end of the 2010 budget year.

The legislature may not get to use the money from Legal Aid for indigent defense, however.  The legislature and the governor agreed earlier this year on the funding levels for indigent defense and Legal Aid, and the governor’s office is sticking with that agreement.  For now, that means the legislature will have to look elsewhere for its $1,000,000 funding shortfall for indigent defense for next year.

Governor Brad Henry has indicated the Pardon and Parole Board may be able to examine old convictions, now pardoned, and determine which parolees are actually innocent of the crime for which they were convicted.  The governor says he is unable to make such a determination.

Such a finding is necessary for someone convicted of a crime to later have the records of his conviction expunged, or sealed up.   Oklahoma has been at the forefront of wrongful convictions, thanks to Joyce Gilchrist, the discredited forensic chemist who was employed by the Oklahoma City Police laboratory and testified in many criminal trials in Oklahoma County District Court.   Later examinations of the evidence by scientists and DNA evidence have proved innocent too many of the defendants Gilchrist helped convict.

The Oklahoma legislature is still working out the procedures for those wrongfully convicted.  One new wrinkle just this year is a provision that allows one to expunge the records of his conviction – if …

“4. The person has received a full pardon on the basis of a written finding by the Governor of actual innocence for the crime for which the claimant was sentenced.” Oklahoma Statutes, Title , Section 18 (Supp: 2009).

How is the Governor to determine “actual innocence” so he can make that written finding?  No one knows.  That is why he has passed the ball to the Pardon and Parole Board.  But this board does not know how they will do it, either.

Gene Weatherby was given a pardon by Governor Henry in 2007.  He cannot seal up the records of his conviction, however, until the Governor gives him a written finding of “actual innocence.”  So the Governor asked the Pardon and Parole Board to investigate and make such a finding, if appropriate.

The Pardon and Parole Board might better have been consulted about these new duties, according to Board Chairwoman Susan Loving.  “This is huge that we now have this responsibility,” she said. She said the Board might need to seek more money from the legislature for this, as staff members have been directed to develop a new procedure for such requests.

“The Pardon and Parole Board is not a jury,” Board executive director Terry Jenks said.  “We don’t hear witnesses and evaluate evidence.  We need to figure out some options about where we are going.”   As criminal defense lawyers know, however, the board does hear witnesses on a regular basis, although not in such a formal setting as in a courtroom with rules of procedure and evidence.

Weatherby was convicted in Oklahoma County in 1984 of fatally stabbing a woman.  Joyce Gilchrist testified mud and fibers on Weatherby’s shoes proved he had been in the woman’s home.   An FBI chemist later testified that Gilchrist’s findings were unsubstantiated, but there was other evidence presented to the jury that convicted Weatherby, including testimony from the stabbed woman herself.    So, it is not perfectly clear from the record whether Weatherby is innocent, and that is why Governor Henry wanted someone else to give it a closer look.