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Ousted Lawyer Opened Payne Co. Decus Tecum Brawl

The Oklahoma Supreme Court on Tuesday yanked the law license of a Ponca City attorney convicted on cocaine charges. Along the way, lawyers for former Ponca City attorney Gale Eugene McArthur II brought to Payne County a simmering statewide dispute over how defense attorneys obtain police reports.

McArthur’s cocaine case ended up in Payne County courts after judges in Kay County recused. In Payne County, McArthur’s attorneys filed a subpoena decus tecum seeking police records related to the felony charge against McCarthur. Payne County Judge Phillip Corley denied the request, sparking further discussion among Payne County officials about the extent to which police are required by state law to release crime reports to the public.

Some Oklahoma defense attorneys have used subpeonas decus tecum in efforts to obtain more complete police records than are sometimes provided in response to inquiries filed as Oklahoma Open Records Act requests. Some police agencies redact portions of police reports provided in response to Open Records Act requests. Those portions – including officers’ narratives – are not redacted when the same records are produced in response to a subpoena.

Prosecutors argue that defense attorneys should get records instead through the discovery processes that precede a criminal trial. For defense attorneys, that process can mean waiting until prosecutors decide to release records, then relying on prosecutors’ opinions of what evidence should be released.

While prosecutors are obliged to hand over exculpatory evidence, defense and prosecution attorneys often disagree about which evidence might suggest a defendant is not guilty. Some defense attorneys would rather review complete police reports then decide for themselves whether the contents may be exculpatory. Redacted reports provided in response to Open Records Act requests don’t satisfy their need to independently review investigative procedures, some defense attorneys assert.

After McArthur’s trial and an unrelated decus tecum ruling by Special District Judge Michael Stano denying a defense counselor’s subpoena, Stillwater police scaled back the scope of information they provide in response to Open Records Act requests. Reporter Anita Pere from Stillwater NewsPress noticed the changes and wrote an article summarizing a statewide debate over the role of defense attorneys subpoena’s decus tecum in decisions about access to Stillwater police records.

As for McArthur, he eventually pleaded guilty and was sentenced to 10 years in prison, all but two of which were suspended. Officers had snared McArthur in a sting operation after intercepting cellphone messages allegedly arranging the sale of an ounce of cocaine.

Pursuant to disciplinary rules, the court allowed McArthur until Feb. 4 to show cause why a final order of discipline should not be imposed, or to request a hearing in the matter. Pending a final order, the court indefinitely suspended his license to practice law in Oklahoma.


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