Criminal – Page 128 – Turtle Talk

New Paper on the Tribal Law and Order Act

March 7, 2011Matthew L.M. Fletcher

Gideon Hart has posted his paper, “A Crisis in Indian Country: An Analysis of the Tribal Law and Order Act of 2010,” on SSRN. It was published in the Regent University Law Review.

The abstract:

Crime and violence have long been a serious problem in Indian Country. In recent years, though, the extraordinary levels of gang activity and high rates of sexual violence against Native American women have received a large amount of media attention. Responding to this problem, Congress passed the Tribal Law and Order Act of 2010. Through this legislation, Congress seeks to lower the rates of crime in Indian Country, particularly with regard to crimes committed against Native American women; the Act significantly increases the resources and authority of federal prosecutors and agencies in Indian Country and increases the sentencing authority of tribal courts.

This Article considers the major provisions of this landmark Act and concludes that it is an important piece of legislation that could potentially have profound effects in many parts of Indian Country. Although the Act was widely supported, however, this Article argues it does not do enough and is instead only a short-term remedy to the problems facing Indian Country. The Article proposes several pieces of legislation that would provide long-term solutions, including increasing the sentencing authority of tribal courts and legislatively overturning the jurisdictional limitations imposed on tribal courts by the United States Supreme Court in Oliphant v. Suquamish Indian Tribe. Both of these major reforms could be used as tools to increase the status and skill of tribal courts, eventually making them a much more equal third sovereign.

Navajo Nation Supreme Court Issues Omnibus Order in Massive DiscretionaryFund Fraud Cases

March 4, 2011Matthew L.M. Fletcher

Here is the opinion in Acothley v. Perry. (H/T Pechanga)

As you may recall, the Navajo Special Prosecutor filed more than 250 criminal cases in the Window Rock District Court a few months back, creating a logjam of complex criminal cases (our post here).

The court’s syllabus:

Acothley et al v. Perry, Opinion and Omnibus Order and Writ of Superintending Control. In this application for a Writ of Superintending Control, the Court denies Petitioners’ request for dismissal and disqualification of Judge Carol Perry and Judge T. J. Holgate of the Window Rock District Court and further, issues a writ requiring consolidation of co-conspirators into joint trials in the Discretionary Fund Cases. (March 1, 2011)

SCOTUSblog Commentary on Bullcoming: Scalia Biggest Defender of Bullcoming’s Position

March 3, 2011Matthew L.M. Fletcher

From SCOTUSblog:

Two days after winding up, quite angrily, on the losing end of a major criminal law ruling, Justice Antonin Scalia moved energetically on Wednesday to try to make sure it does not happen again — at least not in the next case up on the same issue. The Court’s most determined protector of criminal suspects’ rights to confront their accusers, Scalia spent a good deal of time trying to bolster the argument of a defense lawyer for a New Mexico man convicted of drunk driving based, in part, on a crime lab report. As it turned out, the lawyer did not seem to need all that much help.

The case of Bullcoming v. New Mexico (09-10876), heard Wednesday, is not a direct sequel to the Court’s decision, handed down Monday in Michigan v. Bryant (09-150), but each of the two cases provides an important test of where the current Court is going with its interpretation of the Sixth Amendment’s Confrontation Clause. For the past five years, the Court has been moving, more or less steadily, to expand the right of confrontation.

Bryant, however, created — over Scalia’s strenuous dissent — what may turn out to be a sizable loophole in the right of confrontation, by widening an exception to the Clause’s requirement that an out-of-court statement cannot be used if the source of the statement does not show up to be challenged at trial. A statement making an accusation, the Court ruled, may be used as evidence if police got it while trying to deal with an emergency, even if the source of that statement had died before the trial.

Bullcoming gives Scalia — and defense lawyers — a chance to shore up confrontation, if the Court were to hold that a crime lab report cannot be used unless prosecutors bring to court for cross-examination the lab technician who actually did the test and signed the report. Stanford law professor Jeffrey L. Fisher, representing convicted drunk driver Donald Bullcoming, found in his argument — early and throughout — that the Justices were mainly interested only in the details of how such a requirement would work. The notion that the lab expert most acquainted with the report could be replaced by a substitute witness seemed to draw no noticeable support from the bench.

Still, each time Fisher gave an answer to a question that suggested to Scalia that a concession might be in the making, the Justice pounced, seeking to solidify Fisher’s basic point that the Confrontation Clause demands the presence at trial of the person whose statement is to be used against the accused — the “default rule” of actual confrontation. Indeed, when Justice Ruth Bader Ginsburg opened with a question about letting a lab expert testify by video rather than in person, and Fisher resisted but left an opening for some future case, Scalia moved in rapidly to scotch the idea.

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Eighth Circuit Affirms Use of “Indescribed” Tribal Court Convictions in Federal Sentencing

March 3, 2011Matthew L.M. Fletcher

Here is the unpublished opinion in United States v. Jones, for a crime committed on the Red Lake Reservation:

CA8 Opinion in Jones

And the briefs:

Jones Opening Brief

USA Brief in Jones

An excerpt:

Here, the district court did not procedurally err in considering Jones’s tribal convictions. The Guidelines specifically permit a district court to consider tribal court convictions for the purpose of determining the adequacy of a defendant’s criminal history, see U.S.S.G. § 4A1.3(a)(2)(A), and this court has consistently approved tribal convictions as a permissible basis for departing upward from the advisory Guidelines range. See, e.g.,United States v. Cook, 615 F.3d 891, 893 (8th Cir.2010);United States v. Harlan, 368 F.3d 870, 874-75 (8th Cir.2004).

Bullcoming v. New Mexico Argument on Wednesday

February 28, 2011Matthew L.M. Fletcher

Here are the details from Scotusblog:

Issue: Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Plain English Issue: When the prosecution introduces a forensic evidence report, it ordinarily must bring the author of the report to the trial so the defendant can question him. Is it sufficient for the prosecution to bring the analyst’s supervisor, when the supervisor did not actually perform or witness the forensic tests?

Briefs and Documents

Merits Briefs

Amicus Briefs Continue reading →

Habeas Petition Challenging Peremptory Striking of Native Jurors Dismissed

February 24, 2011February 24, 2011Matthew L.M. Fletcher

Here is the order in Munoz v. McDonald (N.D. Cal.): Munoz v McDonald.

An excerpt:

Appellant, who is Native American, argues that he was denied a fair trial because the prosecution used its peremptory challenges to exclude three of the five Native American prospective jurors on the panel and no Native Americans were seated on the jury. In addition to the three jurors excused by peremptory challenge, the court excused for hardship reasons prospective juror R.B., the tribal chairperson for the Elem Indian Colony. After the jury was sworn, but before opening statements, the court excused for cause an alternate juror described by defense counsel as “the only Native American juror that we have” after it came to light that the juror had failed to disclose information about his prior arrests and convictions. Appellant does not challenge the court’s decision as to either of those two jurors.] We disagree.

ICT Article on Tribal Law and Order Commission

February 19, 2011Matthew L.M. Fletcher

Here. An excerpt:

Federal justice on reservations is discriminatory and harsh, especially for youth, but recently enhanced tribal justice systems – a potential remedy – may not be easy to implement, says a noted advocate for Native rights.

The 2010 Tribal Law and Order Act (TLOA) initiated a nine-member Indian Law and Order Commission that includes Denver-based Troy Eid, a former U.S. Attorney, who has worked with a number of tribes. He and other Commission members have held informal discussions pending full Commission funding.

The Major Crimes Act of 1855, which covers Indian perpetrators and victims on tribal lands, is discriminatory in that it provides harsher penalties for Indian offenders than for non-Natives for essentially the same crimes, he said. It strikes hard at teenaged Indian offenders, about one-third of whom are sentenced as adults as compared to only one to two percent of non-Native youth.

The federal system the Native youth enter requires them to serve about 85 percent of their sentences and there is no parole, while in the state of Colorado, for example, the average proportion of sentences served is 32 percent. There are no juvenile diversion programs, alternative sentencing, restorative justice or other federal rehabilitative programs comparable to those at state level, he said.

Enter TLOA: It reauthorizes substance abuse programs and grants for summer youth programs, constructs youth shelters and detention and treatment centers, develops long-term plans for Indian juvenile detention and substance abuse treatment centers, and supports tribal juvenile delinquency prevention services and care of juvenile offenders.

The Tribal Youth Program would authorize $25 million annually through 2015 for juvenile delinquency prevention services and the care of juvenile offenders.

South Dakota Rep. Kevin Killer (D -Pine Ridge) hailed the potential of the youth programs for his district, where more than half of residents are under age 18, and his state, where nearly 40 percent of those in the juvenile justice system are Native youth. Restorative programs are probably among those the Oglala Lakota would be interested in pursuing, he said.

Other major TLOA provisions allow participating tribal courts to impose penalties of up to three years’ imprisonment compared to the existing one-year limit and require tribal courts to provide court-funded licensed defense attorneys for indigent defendants, with more stringent qualifications for both attorneys and judges.

TLOA offers some financial support for enhanced tribal justice systems – a cost, which Eid himself says is “substantial” and which the Congressional Budget Office estimated at about $1 billion over the first five years.

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