IN THE DISTRICT COURT IN AND FOR
KAY COUNTY
STATE OF OKLAHOMA
In Re: Grand Jury of Kay County Case No. CV-2003-18
Final Report of the Grand Jury
We, the Grand Jury, duly empanelled on the 11th day of February,
2004, and charged with the responsibility of investigating:
1. The shooting death of Lunden Shane Miller in Kay County
on or about the 1st day of December, 2002; and
2. All other relevant matters to come before the Grand Jury
for their consideration and
as contained within the Petition for the calling of the Grand
Jury duly filed in the Office of the Court Clerk of Kay County,
Oklahoma on the day of 31st day of December, 2003, and having,
in a fair and impartial manner, to the best of our abilities
and understanding, with due regard to the Court's instructions
and the laws of the State of Oklahoma and Kay County, after having
received written inquiries submitted through the District Judge,
and after having heard the testimony of twenty-one (21) witnesses,
some of whom testified more than one time, and having fully investigated
any and all complaints alleged to exist in Kay County, and after
having been in session for six (6) working days and having heretofore
deliberated and voted according to law, submit to this Honorable
Court its Final Report as follow.
KAY COUNTY JAIL
The Grand Jury would like to commend Kay County Sheriff Craig
Countryman and the employees of the Kay County Sheriff Department
for the efficient and secure operation of all aspects of maintaining
the Kay County Jail Facility. Grand Jurors found the Kay County
Jail Facility to be well organized and maintained in a clean
and orderly manner.
PONCA CITY JAIL
The Grand Jury wishes to commend Ponca City Police Chief Johnson
and his staff of the Ponca City Police Department for the efficient
and secure operation of all aspects of maintaining the Ponca
City Detention Facility.
TONKAWA JAIL
The Grand Jury wishes to commend the Tonkawa Police Chief,
and his staff of the Tonkawa City Police Department for the efficient
and secure operation of all aspects of maintaining the Tonkawa
Detention Facility.
BLACKWELL JAIL
The Grand Jury wishes to commend the Blackwell Police Chief
and his staff of the Blackwell Police Department for the efficient
and secure operation of all aspects of maintaining the Blackwell
Detention Facility.
PRISONERS CURRENTLY INCARCERATED
The Grand Jurors found that inmates currently incarcerated
in the above described facilities appeared to be safe, secure
and well nourished and have adequate space for housing during
time incarcerated.
GRAND JURY GENERAL COMMENTS
It is apparent that some members of our community are confused
about the authority a Grand Jury possesses. They view the Grand
Jury as having unlimited authority when, in fact, a Grand Jury's
authority is stringently limited by the laws of the State of
Oklahoma.
A Grand Jury cannot change or enact municipal ordinances,
overturn decisions of city councils or commissions. A Grand Jury
cannot determine liability of parties in pending lawsuits before
the courts or express any opinion as to the merits of any potential
legal actions.
Furthermore, a Grand Jury cannot create competent public officials
concerned only with the good of the people and not their own
political aim or personal gain. This type of power comes at the
ballot box and not in the courtroom.
INDICTMENTS
NONE
ACCUSATIONS
NONE
RECOMMENDATIONS
The Grand Jury recommends or states as follows:
1. Be it known, that on most occasions such as this, a Grand
Jury would not attempt to discuss or explain their decision but,
it is the opinion of this Grand Jury, that there are some things
that are just so important that they should be discussed openly
for all to see and understand. The members of this Grand Jury,
as members of this community, do state, without hesitation that
they believe in and will take all lawful efforts to preserve
the sanctity of human life. No one takes exception with the fact
that the death of Lunden Shane Miller is a tragic loss. At the
same time, this Grand Jury recognizes that each of us, based
upon our laws and our beliefs, know that one must feel secure
from harm for themselves and their family in their own home.
Those who choose to bring violent behavior to our homes are invading
a space protected both by the law and our heritage. The law in
the State of Oklahoma concerning self defense and the use of
deadly force are clearly defined and are probably best stated
in the Oklahoma Uniform Jury Instructions -Criminal (these instructions
are those that would be given to a jury seated to determine this
issue at trial) and the relevant ones are stated below:
· Self-defense is permitted a person solely because
of necessity. Self-defense is not available to a person who was
the aggressor, no matter how great the danger to personal security
became during the altercation unless the right of self-defense
is reestablished.
· A person is justified in using deadly force if that
person reasonably believed that use of deadly force was necessary
to protect himself (or his immediate family) from imminent danger
of death or great bodily harm. Self-defense is a defense although
the danger to life or personal security may not have been real,
if a reasonable person, in the circumstances and from the
viewpoint of the defendant (emphasis added), would reasonably
have believed that he was in imminent danger of death or great
bodily harm.
The application of this law to the following facts led us
to our ultimate conclusion:
- the victim of the shooting was asked to leave the residence
of the shooter numerous times the day of the shooting and said
victim was, without doubt of this jury, the aggressor as defined
by the law.
- Due to the struggle over the weapon we, the Grand Jury,
determined that the shooter reasonably believed that he and his
family were in imminent danger of death or great bodily harm
and any reasonable person could have reacted in the same manner.
- The decision of the Grand Jury was made after a complete
review of all law enforcement agencies involved with this case,
eye witnesses and numerous others having concerns being questioned
by the Grand Jury in great detail.
- We expect that the family of the victim will take exception
to this finding. We, as Grand Jurors, took an oath to uphold
the laws of this state. We did not take that oath lightly. Therefore,
the facts were clear, the law well established, and our duty
as jurors well defined. Sympathy can not and should not be a
deciding factor; no matter how great that sympathy is for the
family.
2. That the City Charter of the City of Newkirk be followed
to the letter, as required by law. Also, the Grand Jury noted
that the Open Meeting Act of the State of Oklahoma was enacted
to insure that the taxpaying citizens of this state would or
could be informed of the performance of their elected officials.
The law was enacted to protect the public and the officials from
allegations of back-room maneuvers. It is up to the elected officials
to take all necessary precautions to insure that the public is
fully informed and notified of the purposes of public meetings
and to protect the integrity of each and every public meeting.
When the integrity of a meeting is questioned, then the officials
of the City should make every effort to correct any shortcomings
or explain why such actions occurred. Attached to this report
are some excellent suggestions for preparing agendas for and
conducting of public meetings as prepared by the Office of the
Attorney General for the State of Oklahoma. Ail parties should
recognize that some of these items are general rules and are
not strict, mandatory statutory requirements as is clearly stated
in the document, therefore violation of these general rules may
or may not result in criminal violations. Such decisions are
based upon the facts and circumstances surrounding each of the
specific alleged violations. The Grand Jury would question why
any public board would jeopardize their actions by not complying
with these simple, general rules of construction of the agendas.
3. It has been brought to the attention of the Board of County
Commissioners and the remaining county officers that the practice
of Kay County of allowing certain county personnel to "trade"
annual leave for cash is not authorized by state statute. Therefore,
it is the recommendation of the Grand Jury that the Board of
County Commissioners take immediate action to end this practice.
Failure of them to take such corrective action after being informed
that said practice is not authorized by state statute is not
criminal in nature, but could subject both them and the effected
employees to suffer possible future corrective action.
4. This Grand Jury would further recommend that said Robert
E. "Gene" Christian, our legal advisor, so advise and
deliver to the proper authorities, and if so authorized pursuant
to statute, to personally investigate and, if warranted, to bring
criminal actions against those allegedly involved in violations
of state statutes about the misuse of county property. This matter
will require more extensive investigation than this Grand Jury
can provide at this time based upon restraints of time and resources.
EXPRESSIONS OF APPRECIATION
The Grand Jury wishes to express its most sincere appreciation
to the following individuals for the excellent professional assistance
provided by each:
1. The Honorable D.W. Boyd, District Judge, for his judicial
patience, understanding and intellectual abilities displayed
through the proceedings;
2. Robert E. "Gene" Christian, District Attorney, and
his investigators Justin Scott and Carey Rouse for their competent
advice, understanding and assistance during these proceedings.
3. Ms. Lois Drouhard, our Certified Court Reporter;
4. Mrs. Dorothy Dewan, our bailiff, and her trusted helper, Ms.
Sheralyn Eubanks, for their diligent efforts in keeping us comfortable
and informed during the long hours of the day and these proceedings.
COMMENDATIONS
The Grand Jury wishes to bring special recognition to C.M.,
a juvenile. This young lady appeared and testified to the Grand
Jury on a matter totally removed from that considered by the
original petition. She showed great courage and conviction in
her appearance and in her testimony.
CONCLUSION
This Final Report concludes the investigation of the Grand
Jury and we respectfully request that we be adjourned.
Dated this 19th day of February 2004, in the City of Newkirk,
County of Kay, State of Oklahoma and signed by all members of
the Grand Jury including those seated as alternate jurors.
Suggestions for Complying with the Open Meeting
Act (Quoted from "OKLAHOMA'S OPEN MEETING ACT" as updated
by John A. Maisch, Assistant Attorney General)
Agendas:
While no statutory or case law sets forth precisely what information
must be contained in an agenda some guidelines for preparing
agendas have emerged.
As a general rule, agendas must be "worded in plain language,
directly stating the purpose of a meeting," and '`the language
used should be simple, direct and comprehensible to a person
of ordinary education and intelligence." 1
Aside from these general considerations, the best guide for
writing a proper agenda item is to prepare it so that an ordinary
citizen with no specialized knowledge of a particular board's
prior actions or deliberations will be able to understand from
the agenda what the public body will be doing at the meeting.
Public bodies often ignore this rule by preparing overly brief,
topical agenda items such as "contracts," "personnel
actions," or "warrants and claims." Although such
agenda items may appear clear to a board member or staff person
who has enough background information to know what particular
contract, warrant or personnel matter is at issue, a citizen
without any such background information will not be able to glean
the precise nature of the proposed board action from reading
such topical items. More specific agenda items that focus on
the particular actions contemplated by the board are required.
(e.g., "Discussion and vote on whether or not to approve
employment contract for Teacher 17 See 25 O.S. Supp. 2000, §§
304, 311(A)(10)
Close attention is needed to insure that agendas clearly communicate
the contemplated board actions to the average citizen.
1 Andrews, 737 P.2d 931 (citing Haworth Bd. of Educ. v. Havens,
637 P.2d 902, 904 (Okla. Ct. App. 1981)).
Executive Sessions:
The Open Meeting Act allows public bodies to conduct executive
sessions under limited circumstances. Although not expressly
defined in the
Act, an executive session generally denotes a proceeding that
is properly
closed to the public. Such executive sessions may be attended
only by board
members and
individuals who are invited by the board because their presence
is necessary
to the business at hand.
Under the Open Meeting Act, executive sessions are not justified
by any such personal privilege. As the Attorney General has opined:
Executive sessions are not permitted under the law because
the matters to be taken up are in the private domain of public
officials. Such matters are the business of the public. Executive
sessions exist only for the purpose of compromising equally important
policy commitments which come into conflict[.]28 Section 307(A)
of the Act expressly states that `'[n]o public body shall hold
executive sessions unless otherwise specifically provided in
this section."
Section 307 sets forth reasons justifying the use of executive
sessions only for the purpose of:
1. Discussing the employment, hiring, appointment, promotion,
demotion, disciplining or resignation of any individual salaried
public officer or employee;
2. Discussing negotiations concerning employees and representatives
of employee groups;
3. Discussing the purchase or appraisal of real property;
4. Confidential communications between a public body and its
attorney concerning a pending investigation, claim, or action
[but only] if the public body, with the advice of its attorney,
determines that disclosure will seriously impair the ability
of the public body to process the claim or conduct a pending
investigation, litigation or proceeding in the public interest;
5. Permitting district boards of education to hear evidence and
discuss the expulsion or suspension of a student when requested
by the student involved or his parent, attorney, or legal guardian;
6. Discussing matters involving a specific handicapped child;
7. Discussing any matter where disclosure of information would
violate confidentiality requirements of state or federal law;
or
8. Engaging in deliberations or rendering a final or intermediate
decision in an individual proceeding pursuant to Article II of
the Administrative Procedures Act.
In some instances the Legislature has expressly provided various
public bodies with specific executive session authority. Public
bodies should consult their statutes accordingly. In light of
the Act's presumption against executive sessions, these statutory
justifications must be read narrowly. Thus, the first reason
set forth above authorizes executive sessions not for all employment
matters, but rather only for matters concerning individual salaried
employees. Similarly, the fourth reason authorizes executive
sessions not for all legal matters, but only for legal matters
that a board attorney advises should be kept confidential and
that the public body itself determines will be impaired if handled
in an open meeting.
More importantly, each of the four statutory justifications
for an executive session involves only the discussion of particular
matters. As a result, no action may be taken in an executive
session. Actions arising out of executive session must be taken
in an open meeting at which the proper procedures for publicly
casting and recording votes are followed.
Section 307 also provides that no executive session may be
held unless a majority vote of a quorum of members present at
an open meeting and the vote is recorded. As a result, neither
the staff of a public body, nor an individual member may determine
that an executive session will be held. That decision must be
made by the public body itself at an open meeting. The Act's
agenda requirements apply to matters discussed in executive session.
Moreover, in 1992, the Legislature amended the Open Meeting Act
such that agenda items announcing that an executive session will
be proposed must "state specifically the provision of Section
307 . . . authorizing the executive session."35 The Legislature
also provided that a willful violation of the Act's executive
session requirements "shall: (1 ) Subject each member of
the public body to criminal sanctions . . .; and (2) Cause the
minutes and all other records of the executive session, including
tape recordings, to be immediately made public."
|