ARBITRARINESS: Oklahoma Case Illustrates Capriciousness of the Death Penalty

An Oklahoma man could be executed or spared based on which side of a gravel road in rural McIntosh County a murder took place. Patrick Murphey, who is borderline-mentally retarded and was drunk at the time of the crime, was originally sentenced to death for the murder in 2000. His trial attorney failed to notice that the prosecution had made a two-mile mistake in locating the site of the crime. Murphey's second attorney, who spent 11 years as a geologist with Conoco before becoming a federal public defender in Oklahoma City, later located the actual murder site and determined that the crime was committed on a stretch of road given to the Creek Indians by the United States in 1902. A federal law forbids the imposition of the death penalty in such prosecutions unless the relevant tribe's governing body allows it. Murphey is a Muscogee Creek Indian, and his tribe has not consented to seeking a death sentence in the case. Had the murder been committed a few inches away, Oklahoma would have jurisdiction in the case.

To complicate matters, Murphey's attorney later discovered that the Creek Indians had sold and transferred most but not all of their rights to the western half of the road where the crime was committed. The surface rights to the land were gone, as were eleven-twelfths of the mineral rights. The law defining "Indian country" notes that land remains Indian country until rights have been "extinguished." The Oklahoma Court of Appeals said the case presented a "challenging issue," but ruled that underground rights do not count. Now, the United States Supreme Court is considering whether to hear the case and asked the federal government to offer its views by June.
(New York Times, February 5, 2007). See Arbitrariness and Federal Death Penalty (Native Americans).