Oral Argument Transcript in United States v. Bryant (and Commentary)


Background materials here.

Quick commentary:

This was a dramatically less intense argument (reading from a cold transcript) than in Dollar General. Again, as in DG, much of the commentary about tribal courts depended on how much work Congress did in enacting the Indian Civil Rights Act. So long as the rights contained in that statute satisfy the Supreme Court, tribal court convictions may be used as prior convictions under 18 U.S.C.§ 117. 

If that is the case, Justices on the Court concerned about the use of uncounseled tribal court convictions must wrestle with precedents (mainly Scott and Argersinger) that affirmed there is not an absolute right to counsel in misdemeanor convictions where imprisonment is possible but not imposed.

Again, reading from a cold transcript, I was shocked that Bryant’s counsel noted that Bryant was not indigent. (p. 36, line 10) Moreover, Bryant apparently waived his right to counsel, which happens much of the time in state and federal court where incarceration is not on the table. Bryant also apparently waived a claim that the tribal court convictions were invalid, putting him a somewhat similar position to Billy Jo Lara. Bryant’s counsel was left arguing that ICRA does not confer any “rights” at all as a mere federal statute, and so there is no right to counsel at all in tribal court. So then the only way I see Bryant prevailing is if the Court holds that ICRA is a dead letter, and that there really is no federally guaranteed right to counsel in tribal courts (which I guess would mean tribes can deny counsel if they so choose). That seems like a particularly difficult holding to garner four votes (which would be enough to affirm by 4-4 split). Moreover, it’s simply not the case — I am aware of no tribal court that refuses to allow counsel to appear for criminal defendants.

The Chief Justice mentioned the National Association of Criminal Defense Lawyers brief that strongly criticized tribal court convictions (p. 12, lines 1-4), but that gave the government’s attorney a chance to note that the federal habeas right is a meaningful remedy (much as GRIC did in its controversial letter). 



3 thoughts on “Oral Argument Transcript in United States v. Bryant (and Commentary)

  1. John P. LaVelle April 19, 2016 / 3:06 pm

    Matthew, Respondent’s counsel was not saying Mr. Bryant “is not indigent.” Respondent’s counsel simply was enumerating existing waivers of a criminal defendant’s Sixth Amendment right to counsel, one of which is where “he is not indigent.”

    ~ John

  2. John P. LaVelle April 19, 2016 / 3:20 pm

    Or, perhaps more accurately, Respondent’s counsel was enumerating existing exceptions to a criminal defendant’s right to counsel under the Supreme Court’s Sixth Amendment jurisprudence, one of which is where “he is not indigent.”

    ~ John

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