
A new Court of Criminal Appeals order limiting challenges to pretrial evidentiary motions sparked fiery discussion at today’s meeting of the Oklahoma District Attorneys Council, with several prosecutors calling the decision “ridiculous” and one DA calling a judge a “moron” and questioning whether the appellate judges have spines.
The Court of Criminal Appeals released an order declining to take up the case Oklahoma v. Bowles on Dec. 16. In the order, the court said district court decisions on motions in limine, which are pretrial motions to exclude evidence or arguments, are not appealable before trial.
According to the Bowles order, Oklahoma law requires a prosecutor who objects to evidence being excluded through a successful motion in limine to raise the issue again during trial before appealing the decision after the trial. If they fail to re-raise the issue during trial, prosecutors waive their right to appeal. In the Bowles case, Oklahoma County District Judge Amy Palumbo granted two motions suppressing evidence on the same day the defendant’s trial was set to begin.
Adam Panter, the district attorney for Lincoln and Pottawatomie counties, presented an agenda item for discussion of the order at Thursday’s meeting of the District Attorneys Council. With other DAs agreeing that the order could spur defense attorneys to choose filing motions in limine instead of motions to suppress evidence — which can be appealed before jeopardy applies — Panter initially directed his ire at Palumbo.
“Essentially, what it comes down to is it’s a moron judge that’s folding for her friend who is a defense attorney,” Panter said. “But how are we going to combat that across the board? What’s going to stop other judges from doing that? Are we going to have to file a peremptory motion to not suppress certain evidence just so it has the right title for the Court of [Criminal Appeals] to hear it?”
Moments later, Panter criticized the appellate judges.
“It kind of worries me, because I’m just like, when you get appointed to the Court of [Criminal Appeals], do they ask you to turn in your spine?” Panter said, drawing murmurs from some in the room. “That’s my fear. Are they actually going to do the right thing or not?”
Kay County and Noble County District Attorney Brian Hermanson cautioned Panter that his comments on judicial backbones were inappropriate.
“I’d like to say that I want to take issue with one thing you said, Adam, and that is the Court of Criminal Appeals treats us very fairly,” Hermanson said. “That statement about turning in your spine I think is an inappropriate statement.”
Panter agreed.
“I agree with that. It was incorrect of me,” Panter said. “It just upsets me a little bit because it feels like they take away one of our essential abilities, because a lot of time we have to get pre-trial rulings on evidentiary issues, and the mechanism we do that (by) is filing a motion in limine in most cases. (…) And they’re essentially saying that, here forward, you can’t do that. In my opinion, that is just going to lead to defense attorneys talking to each other, and they’re just going to ambush us with motions in limine prior to trial excluding evidence.”
After the meeting, Panter acknowledged the flippant comments regarding several sitting judges were inappropriate.
“First off, I do not speak on behalf of the other DAs on this issue,” Panter said. “It’s just my personal opinion. Sometimes I get very passionate about issues, especially in a case dealing with the sexual abuse of a child (…) Sometimes my mouth keeps going when my brain says stop.”
Christopher McCuen Bowles, the case’s namesake, was charged in Oklahoma County District Court in 2021 with nine counts related to the alleged sexual abuse of his stepdaughter when she was between the ages of 11 and 16. The case was set for trial in April 2024 when Bowles’ attorneys filed several motions in limine to exclude evidence from trial. The two motions to suppress evidence Palumbo granted included Bowles’ internet search history for the “teen” category on legal pornography websites and an alleged photo of his victim’s breast taken from his phone. Bowles’ defense attorneys maintained that the identity of the person photographed could not be verified and argued that the pornography-related internet searches were legal.
Oklahoma County District Attorney Vicki Behenna said the prosecution is still “pending” and that she has little choice but to proceed.
“Go to trial and then try to get a stay of the case in order to take the issue up,” she said when asked by a DAC member about her plan. “It’s a ridiculous way to handle that.”
Matt Ballard, district attorney for Craig, Mayes and Rogers counties, said the appellate court order could encourage defense attorneys to avoid filing motions to suppress evidence, which can draw immediate appeals unlike motions in limine.
“That’s what my concern would be. If you’re a defense, why file a motion to suppress?” He said. “File a motion in limine. Motion to suppress, we can take that up and get a ruling on it.”
Speaking after Thursday’s DAC meeting, Tulsa County District Attorney Steve Kunzweiler noted that the motion in limine was addressed by the court the same day the trial was scheduled to begin.
“This issue came up literally the day of trial in a discretionary ruling by the court,” Kunzweiler said. “From a professional standpoint, I tend to direct my prosecutors, ‘Let’s deal with that three months earlier.'”
Palumbo ruled that the admission of either piece of evidence would be unduly prejudicial to Bowles, who worked for Oklahoma County as a jailer from 2008 to 2018. The Court of Criminal Appeals sidestepped the controversial nature of the appeal and focused solely on the issue of whether motions in limine were appealable orders.
“We do not reach the merits of the claims raised for review because this appeal does not fall within the state appeals authorized by [Title 22, Section 1053],” the unanimous Bowles order read. “We agree with Bowles that a motion in limine decided before jury selection is not a final appealable pretrial order under section 1053(6).”
Jimmy Harmon, who serves as chief of Attorney General Gentner Drummond’s criminal division, said during Thursday’s meeting he does not think the decision was an accurate interpretation.
“I think it does raise another point that we should be careful on raising pre-trial evidentiary hearings for the court,” Harmon said. “I’m not talking about this case. I think this is the perfect case to raise an issue and take it up. I think it’s a ridiculous ruling just based upon the [law] that I know.”
The appellate court’s order says that even an “incorrect ruling on a pretrial motion in limine is not grounds for reversal.”
“When a motion in limine is sustained, the party seeking to introduce the excluded evidence must make an offer of proof at trial to afford the trial court an opportunity to make a final ruling on the evidence. Failure to adhere to the proper procedure to contest a ruling on a motion in limine results in the waiver of the issue for appellate review,” the court’s order states.
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Hermanson floats a legislative fix, Kunzweiler says focus on procedure
After Thursday’s meeting, Kunzweiler downplayed the grumbling over the Bowles order and said he was glad Panter raised the issue for discussion.
“This isn’t anything unusual for district attorneys when some decision comes out,” Kunzweiler said. “I am glad Mr. Panter came up and said, ‘Hey, listen. You guys need to be aware of this.’ I think in a way, he’s saying, let’s not wait until the last minute because you got caught, or somebody got caught, in a situation where they probably had to really struggle to figure out, ‘How I’m going to put that case on.’ We have these cautionary discussions all the time about, ‘Alright, here’s an issue that came up in my court and how did you handle that.’”
He also downplayed the effects of the order, noting that district attorneys could avoid most of its implications by raising evidence issues earlier in the case.
“My position, typically, on motions in limine is, if it’s going to deal with a piece of evidence that is critical to your case, well, you should be able to recognize that when you file the case,” Kunzweiler said. “You need to have a much earlier hearing to put on the evidence so that the judge can make a ruling with enough reflection to say, ‘OK, I understand the circumstances under which this was taken.’”
Other DAs, however, thought the Bowles order was worth action to reverse its effects. During the meeting, Hermanson suggested the council support a legislative fix in the upcoming legislative session to allow the appeal of motions in limine. Since the appellate court relied on statute for their decision instead of constitutional principals, changing the statute would effectively overturn the court’s interpretation.
“And this decision may give us an opportunity to do some legislative changes to change [motions in limine] specifically,” Hermanson said.
Panter declined to endorse a specific remedy, but he reiterated the case needed to be addressed.
“I just hope this is an issue that we can get corrected going forward,” Panter said.
(Update: This article was updated to include additional information at 10:40 p.m. Thursday, Jan. 16, and 8:45 p.m. Friday, Jan. 17.)