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Counterpoint: Blunder, not crime


Andrew Spiropoulos December 20th, 2007

It has not been a good autumn for Oklahoma's national reputation. In November, The Wall Street Journal compared us to Pakistan and Forbes magazine compared us to North Korea. Why all the criticism? A ...

It has not been a good autumn for Oklahoma's national reputation. In November, The Wall Street Journal compared us to Pakistan and Forbes magazine compared us to North Korea. Why all the criticism? A decision by Attorney General Drew Edmondson to indict three political activists for actions related to their attempt to place the Taxpayer Bill of Rights, or TABOR, on the ballot.

 

Let's get two preliminaries out of the way. First, anyone who tells you that the grand jury, not the AG, is responsible for the indictment is insulting your intelligence. Anyone who has watched "Law & Order" knows that grand jurors will indict a ham sandwich if that's what the prosecutor wants them to do.

 

Second, some of the accusations against the AG surrounding this case have gone too far. I don't think Mr. Edmondson is engaged in some kind of master plan to send his political opponents to prison. As Charles-Maurice de Talleyrand-Périgord aptly put it, Edmondson's decision was worse than a crime: It was a blunder.

 

Why is this prosecution so profoundly wrongheaded? Start with the reality that there are never enough resources to investigate every crime. Even the AG admitted to The New York Times that he doesn't have enough money and personnel to sue the poultry companies for polluting the state's waters " he has to entice private trial lawyers to do it for him.

 

Given these limited resources, you should only prosecute when you're sure the defendants are guilty. How can that be the case here? Charging them with conspiracy to defraud the state, Edmondson argues that the defendants "knowingly, willfully, fraudulently and feloniously" filed false initiative petitions by knowingly and willfully employing signature solicitors who were not legally Oklahoma residents.

 

It is true that some solicitors were not originally from Oklahoma. The problem here is that the defendants " experienced in running these campaigns " claim that they contacted state authorities and asked how these people could become state residents. They were told, and, more importantly, the law at the time arguably held, that all the new residents needed to show was an intent to be an Oklahoma resident.

 

Now, the Oklahoma Supreme Court has decided much more is required for a circulator to establish state residency " but that decision was made in the case rejecting the defendants' TABOR petition (which will effectively deter the use of these circulators in the future, making this prosecution unnecessary). In other words, the defendants are being prosecuted for violating a law that was not clarified until after they acted " so how could they have been violating the law "knowingly" and "willfully" when no one was really sure what the law was? In fact, we're still not sure what the law means " it's being challenged in federal court.

 

This unjust prosecution harms the state even more deeply than we imagine. Most Americans don't know Oklahoma, but many assume we are a parochial people, hostile to outsiders, and saddled with a reactionary and partisan political establishment. Unfairly or not, Edmondson's decision to prosecute political activists, for what most observers see as the crime of coming to Oklahoma to advocate their cause, confirms everything they think about us. If Edmondson cares about the state as much as he professes, he will drop this case before it embarrasses us further.

 

Spiropoulos is professor of law and director of the Center for the Study of State Constitutional Law and Government at Oklahoma City University. He is also an adjunct scholar for the Oklahoma Council of Public Affairs.

 
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