McAlester News-Capital, McAlester, OK

October 31, 2013

Attorneys argue double jeopardy in Marcum case

By James Beaty
Senior Editor

McALESTER — Prosecution and defense attorneys in the Angela Marcum embezzlement case are locked in a dispute over whether six counts included in an indictment issued against her constitute double jeopardy.

Marcum is the former coordinator for District 18 Drug Court, which includes Pittsburg and McIntosh counties. She’s charged with multiple counts of embezzlement in connection with money, equipment and records allegedly missing from the District 18 Drug Court during the time that Marcum served as its coordinator.

An Oklahoma Multicounty Grand Jury issued an indictment containing the accusations in 2011.

Marcum has pleaded innocent to the charges.

The 2011 indictment accuses Marcum of embezzlement of public money, embezzlement of public property and six counts of “stealing, destroying and/or secreting a public book or record.”

It’s the six counts of “stealing, destroying and/or secreting a public record” that’s the center of the double jeopardy issue — a reference to drug court records the state alleges are missing.

Double jeopardy in this case refers to claims of being charged twice for the same alleged offense. The Fifth Amendment to the U.S. Constitution prohibits any person from being prosecuted twice for the same crime; it’s also considered a protection against the state using multiple forms of prosecution.

Prosecutors with Oklahoma Attorney General Scott Pruitt’s office and Marcum’s defense attorney Shannon McMurray have different legal viewpoints on the matter.

The defense contends that counts three through eight, regarding the alleged missing drug court records, contained in the Oklahoma Multicounty grand jury indictment should constitute a single count — not the six counts filed by the state.

Oklahoma Assistant Attorneys General Charles Rogers and Megan Tilly contend Marcum allegedly committed six different offenses and that the six separate counts accusing her of “stealing, destroying and/or secreting a public record” should stand.

It could be a crucial point, since conviction of each individual count carries a possible term of up to six years in prison.

The charges in question accuse Marcum of taking receipt books or records which belonged to the District 18 Drug Court while she served as the District 18 Drug Court coordinator.

It’s the prosecution’s theory that the records were allegedly taken to help cover up missing money.

Attorneys are presenting their legal arguments in written briefs to District 24 District Judge Ken Adair, of Okmulgee County, who was assigned to the case after judges in Pittsburg County were recused from hearing it.

The state’s brief has already been filed by Rogers, who makes two key arguments.

One, the burden of proof regarding the double jeopardy argument should lie with the defendant, in this case, Marcum and her attorney, McMurray, Rogers contends in the brief.

Two, at any rate, the double jeopardy argument should not be applied in this case.

Basically, while disputing the allegations in the first place, the defense contends that if Marcum is going to be accused of taking receipts or other records, she should be charged with only one offense accusing her of doing so.

Adair had asked for written responses to the legal questions from both the prosecution and defense in the case.

McMurray could not be reached for comment Wednesday, but a worker in her Tulsa office said she had mailed in her response. It had not arrived at the Pittsburg County Courthouse as of Wednesday afternoon.

Judge Adair is expected to issue a ruling on the dispute after he receives all of the legal briefs and any other legal arguments pertaining to the matter.

In addition to the charges stemming from the 2011 multicounty grand jury indictment, Marcum also faces a conspiracy charge resulting from a separate multicounty grand jury indictment. She has also pleaded innocent in that case, which is also making its way through the court system.

Contact James Beaty at jbeaty@mcalesternews.com.