Former Tulsa Police Officer Shannon James Kepler was charged with first degree murder in federal court yesterday. Officer Kepler was convicted of manslaughter in 2017 for the killing of his daughter's black boyfriend Jeremey Lake. He was sentenced to 15 years in state prison and is currently incarcerated at the Oklahoma State Penitentiary. Following the Supreme Court's decision in McGirt v. Oklahoma, 591 U.S. ___ (2020), Kepler requested that his conviction be dismissed. The federal indictment followed.
In McGirt the Supreme Court of the United States (SCOTUS) ruled that the state of Oklahoma lacks jurisdiction over Native Americans on lands promised to their ancestors by the federal government as parts of broken treaties (https://supreme.justia.com/cases/federal/us/591/18-9526/). Those lands include most of eastern Oklahoma including the city of Tulsa. Kepler appealed immediately following the landmark decision because he says that he is a member of one of the tribes, so the state lacked jurisdiction to charge him in the first place. Unfortunately for Kepler, the SCOTUS ruling clearly classified those lands in the same category as Indian reservations and the federal government has jurisdiction over violations of federal law that take place on those lands. That is why there are so many natives in federal prisons because when they commit crimes that would ordinarily be prosecuted by their state they get prosecuted federally if the acts were committed on a reservation. By claiming native heritage in an effort to get out of prison Kepler conceded jurisdiction of the matter to the federal government where he faces a much harsher sentence if convicted.
Is This Double Jeopardy?
The Fifth Amendment to the US Constitution states "No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb." That is commonly known as the double jeopardy clause. It prohibits people from being tried for the same crime twice if the prior trial ended in acquittal. Kepler was tried for murder in state court four times for the killing of Lake. The first three trials ended in mistrials and the fourth trial ended with a manslaughter conviction. How is it possible for Kepler to be tried for the same murder that he was acquitted of without violating double jeopardy? It is possible because of what's known as dual sovereignty. The federal government is considered a second and separate sovereignty from the states. As a result one can be tried in state and federal courts for the same acts without violating the double jeopardy clause.
We are generally against this because it gives the government two stabs at the apple. A person that beats the state in court can find themselves placed in jeopardy a second time based on a technicality. Technically being found not guilty of a state statute does not mean someone is not guilty of a federal statute even if the statutes are basically the same. We believe that violates the intention that the founding fathers had when the Fifth Amendment was created. In the late 1700 there was little in the way of federal law enforcement, so there was no reason to think that people would twice be placed in jeopardy for life or limb for the same accusations after being found not guilty in a state or federal court. We think that if the founding fathers were to see the type of federal law enforcement apparatus that exists today that they would apply double jeopardy to cases like this one.
Is This Vindictive Prosecution?
A prosecution is legally considered vindictive if it is motivated by a defendant exercising a legal right. Kepler has a legal right to ask that his state conviction be dismissed. The federal government does not have the right to retaliate against him with criminal charges. To succeed on a vindictive prosecution claim Kepler must show that the intervening circumstance behind the decision to prosecute was him asking that his manslaughter case be dismissed. That is how it is supposed to work, but unfortunately things rarely work out the way they should (https://copblaster.com/blast/185/making-a-carjacker-starring-vindictive-fed-prosecutor-leah-bolstad). The government is quick to find other intervening circumstances to blame instead of the real one. Then they argue that those circumstances changed public safety needs. We are not sure what circumstances the government will argue in this case, but so far it looks like he is being vindictively prosecuted for exercising his legal right to seek dismissal of his state case.
Shannon Kepler is a dirty ex-cop that got away with murder in state court and is in prison where he deserves to be, but he does not legally belong there because of McGirt. As much as we like to see justice served on murderous ex-cops, we do not want to see it served in ways that expose others to double jeopardy and vindictive prosecution.
Supplemental information about Kepler from the Oklahoma DOC website:
Offender: Shannon J. Kepler
Height: 6 ft 0 in
Weight: 200 lbs
Hair Color: Brown
Eye Color: Brown
OK DOC#: 776556
Birth Date: 5/20/1960