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Fallout from McGirt and testimony about future crimes

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, a direct challenge to the court’s ruling in McGirt v. Oklahoma, a confrontation clause question involving statements about possible future crimes, and a split over the scope of who is covered by the qualified immunity doctrine.

Last year, the Supreme Court ruled 5-4 in McGirt v. Oklahoma that the eastern half of Oklahoma (nearly 43% of the state) qualifies as “Indian country” for the purposes of the Major Crimes Act. The court thereby stripped Oklahoma state courts of jurisdiction over crimes committed by “any Indian” in “Indian country,” and bestowed the federal government with exclusive jurisdiction to try these crimes. Now, Oklahoma alleges in Oklahoma v. Bosse that due to the fallout from McGirt, district courts are overwhelmed and numerous crimes are going uninvestigated and unprosecuted.

The state invokes Chief Justice Roberts’ McGirt dissent, which predicted that the burdens on the state and local governments would be “extraordinary.” As a result of McGirt, the state says, over 3,000 applications for postconviction relief have been filed, and the Oklahoma Department of Corrections has released custody of over 150 prisoners (almost half of whom have been set free). More fallout is still to come as approximately a quarter of the postconviction challenges involve crimes already beyond the federal statute of limitations. Currently, almost two million people in Oklahoma reside in areas affected by the McGirt ruling and only 10-15% of these people are Native Americans. The total population of Oklahoma is just under four million residents.

Oklahoma’s new petition involves Shaun Bosse, who is not a Native American. Bosse murdered his girlfriend, Katrina Griffin, who was a Native American, and her two young children. Bosse was convicted of three counts of murder in Oklahoma state court and sentenced to death; however, 10 years after the murders occurred, the Oklahoma Court of Criminal Appeals granted postconviction relief – based on McGirt – reasoning that the crime occurred against an Indian in Indian country, and the federal government thus has exclusive authority to prosecute. In response, Oklahoma requested and was granted an emergency stay, which allows the state to retain custody of Bosse while its cert petition is pending. Oklahoma claims the appellate court improperly extended McGirt by applying it to crimes committed by non-Native Americans and asks the justices to resolve the issue by overruling McGirt.

In July, we covered two petitions involving the Sixth Amendment’s confrontation clause – in the context of sexual assault nurse examiner testimony and accomplice testimony. An important feature of the confrontation clause is that it prevents admission of “testimonial” evidence unless the defendant has an opportunity to cross-examine their accuser. Wisconsin v. Jensen presents the justices with a new confrontation clause question over whether statements of fear about a possible future crime are “testimonial.”

Prior to Julie Jensen’s death, she told police that she was not suicidal and that if she died, her husband, Mark Jensen, should be considered a suspect. Julie later died and her husband was found guilty of her murder. Among the evidence presented at trial was a handwritten letter and voicemails to a police officer, in which Julie expressed fear that her husband was planning to kill her. The Wisconsin Supreme Court held that these statements were “testimonial hearsay” and thus inadmissible under the confrontation clause. The petition argues that other courts have held that statements about possible future crimes are almost never testimonial, and that the definition adopted by the Wisconsin Supreme Court is overly broad. The justices are asked for their review to consider whether forward-looking statements about future crimes should be considered testimonial.

Finally, Estate of Madison Jody Jensen v. Tubbs involves the scope of who is covered by the qualified immunity doctrine. Kennon Tubbs is a private medical doctor who provided medical services at a county jail in Utah. In 2016, Madison Jensen was arrested and detained on drug charges. Upon arrival at the jail, she began experiencing opioid withdrawal, but no medical treatment was provided. Four days later she died of dehydration, alone in her cell.

Madison’s estate sued Tubbs, alleging a constitutional rights violation under 42 U.S.C. § 1983. The district court found that the responsibility of Tubbs was a question of fact that should be decided by a jury. But the U.S. Court of Appeals for the 10th Circuit reversed, holding that qualified immunity barred the claim. This decision deepened an existing split over whether the doctrine is available to private medical professionals in prisons. The estate argues that doctors are subject to malpractice suits even for ordinary negligence, so Section 1983 liability should not be barred. The court is asked to resolve the split by determining whether private medical professionals may be entitled to qualified immunity.

These and other petitions of the week are below:

Rojas v. Federal Aviation Administration
Issue: Whether the 9th Circuit, in a sharply divided en banc decision, erred by adopting the consultant corollary and holding that “intra-agency memorandums or letters” in Freedom of Information Act’s Exemption 5 (5 U.S.C. § 552(b)(5)) encompasses documents prepared by APTMetrics, a private, outside consultant.

Estate of Madison Jody Jensen v. Tubbs
Issue: Whether private medical personnel working in correctional or mental-health facilities can assert qualified immunity.

Oklahoma v. Bosse
Issues: (1) Whether a state may impose procedural or equitable bars to postconviction relief on the claim that the state lacked prosecutorial authority because the crime of conviction occurred in Indian country; (2) whether a state has authority to prosecute non-Indians who commit crimes against Indians in Indian country; and (3) whether McGirt v. Oklahoma, should be overruled.

Knights v. United States
Issues: (1) Whether a court analyzing if a Fourth Amendment seizure has occurred is categorically barred from considering a person’s race; and (2) whether a seizure occurred under all the circumstances of this case.

Behrman Capital IV, L.P. v. Reynolds
Issue: Whether the derivative jurisdiction doctrine precludes federal courts from exercising personal jurisdiction following removal from state courts that lacked personal jurisdiction “of the parties.”

Wisconsin v. Jensen
Issues: (1) Whether a person’s statement expressing fear about a possible future crime is testimonial under the Sixth Amendment’s confrontation clause; and (2) whether, when a person reports ongoing psychological domestic abuse and expresses fear about future physical harm, the person’s statement aimed at ending an ongoing emergency is non-testimonial.

Recommended Citation: Mitchell Jagodinski, Fallout from McGirt and testimony about future crimes, SCOTUSblog (Aug. 20, 2021, 8:48 PM),