Criminal

Raeder on Orenstein on Character Evidence in Indian Country Rape Cases

Matthew L.M. Fletcher

Interesting discussion from Jotwell on this paper (we posted it a while back here), discussed by Myrna Raeder:

Aviva Orenstein, Propensity or Stereotype?: A Misguided Evidence Experiment in Indian Country, 19 Cornell J. Law & Pub. Pol. 173 (2009), available at SSRN.

An excerpt (or two):

Changing evidentiary policy to make it easier to convict rapists and child abusers has been high on the agenda of many feminists who have decried the difficulty of holding such perpetrators accountable, even when they commit serial crimes. In 1994, in a well documented trade, Congress adopted Federal Rules of Evidence 413-415 as the quid pro quo for securing the deciding vote necessary to pass the then pending Violent Crime Control Act. Rules 413-414 specifically permit propensity evidence in sexual assault and child molestation cases. Professor Aviva Orenstein investigates how these rules have been (mis)applied in federal court. Her thought-provoking essay decries the disproportionate use of the rules against Indian defendants, and suggests the repeated presence of negatively stereotyped Indian defendants may actually help perpetuate the myth that rapists are easily identified “others,” an attitude that makes acquaintance rapes incredibly difficult to prove. She also suggests that stereotyping reinforces the propensity evidence and may lead judges to more willingly accept character evidence beyond sex crimes.

***

What I particularly appreciated about the article was that Orenstein did not downplay that the victims in these cases are Indian women and children who are more likely to be raped or sexually assaulted than other females in the United States. She explains that Indian women also face stereotyping that can lead to discounting their testimony, and discusses their no-win dilemma that can result in their complaints further stereotyping their entire culture. Importantly, Orenstein suggests why propensity may harm victims. She cites reports implying prosecutors appear reluctant to bring charges in sexual assault cases arising on reservations, and argues that the propensity rules may furnish a convenient reason for prosecutors to refuse cases without evidence of prior sexual crimes.

Prisoner Response Brief in Miranda v. Nielson (Ninth Circuit)

Matthew L.M. Fletcher2 Comments

Here: Responsive Brief in Miranda 111010

Parties Agree that Bustamante v. Valenzuela Ninth Circuit Appeal is Moot

Matthew L.M. Fletcher

Here are the materials:

Pascua Motion to Dismiss

Bustamante Consent

Opening brief is here, and lower court materials here.

Details here, from the Bustamante filing:

Respondents argue that because Mr. Bustamante has completed his sentence and been released from custody, and because Mr. Bustamante’s habeas petition challenges only the length of his sentence, his appeal should be dismissed on grounds of mootness. Upon review of Respondents’ motion and pertinent authorities, including North Carolina v. Rice, 404 U.S. 244 (1971), Mr. Bustamante, by and through undersigned counsel, agrees with Respondents’ contention and does not oppose Respondents’ motion.

Utah Appellate Court Affirms Conviction of Man Claiming Indian Status (with No Blood Quantum)

Matthew L.M. Fletcher

Oh, and Rule 11 sanctions for failing to raise adverse authority regarding this unusual claim.

Here is the unpublished decision in State v. Clark.

Tenth Circuit Affirms Sentence in Major Crimes Act Conviction

Matthew L.M. Fletcher

The case is United States v. Warrior, and here is the unpublished opinion.

The case apparently involves the Tonkawa Tribe of Oklahoma.

 

Former AIM member pleads guilty to accessory in Anna Mae Aquash (Mi’kmaq) 1975 murder – given suspended sentence

Peter Scott Vicaire

Rapid City Journal – November 8, 2010

Thelma Rios pleaded guilty Monday to being an accessory to the 1975 kidnapping of American Indian Movement activist Annie Mae Aquash, three weeks before she was scheduled to go on trial on charges related to Aquash’s murder.

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Federal Court Grants ICRA Habeas Petition of Kewa Pueblo Prisoner

Matthew L.M. Fletcher1 Comment

Here are the materials in Pacheco v. Massengill (D. N.M.):

Pacheco Habeas Petition

Pacheco Motion to Expedite

Order Granting Petition for Writ of Habeas Corpus

Ninth Circuit Panel Issues Amended Order in Colville Death Penalty Case

Matthew L.M. Fletcher

Well, it’s complicated. Colville has not reinstated the death penalty in accordance with the Federal Death Penalty Act, which removes capital murder from the Major Crimes Act unless the tribe “reinstates” it. But apparently a split panel of the Ninth Circuit held (and holds) that federal prosecutors can still pursue the crime of capital murder under the Major Crimes Act, they just can’t impose the death penalty. And the CA9 panel majority says that therefore the 5-year statute of limitations for capital crimes is therefore waived. Interesting. Here is the opinion (and the earlier opinion).

The majority panel writes:

If we were to limit the federal statute of limitations for murder to five years when a tribe has not opted to permit imposition of the death penalty against its members under the Federal Death Penalty Act, we would in fact be limiting sovereignty by burdening the choice created by the Act. “[T]here is typically no statute of limitations for first-degree murder — for the obvious reason that it would be intolerable to let a cold-blooded murderer escape justice through the mere passage of time . . . .” United States v. Quinones, 196 F. Supp. 2d 416, 418 (S.D.N.Y. 2002), rev’d on other  grounds, 313 F.3d 49 (2d Cir. 2002); see also Story v. State, 721 P.2d 1020, 1026-27 (Wyo. 1986) (stating that no state has adopted a limitations period for murder). If the statute of limitations for murder were to shorten so dramatically as a consequence of a tribe’s decision not to reinstate the death penalty, tribal governments would be forced to choose between capital punishment — to which they may have religious or political objections — and justice for the most heinous of crimes.

Judge Tashima disagreed:

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Ninth Circuit Affirms Major Crimes Act Conviction for Murder at Lummi

Matthew L.M. Fletcher

Here is the opinion in United States v. Redlightning. No Indian law issues apparent.

Special Prosecutor Files Criminal Complaints against Multiple Navajo Council Members

Matthew L.M. Fletcher1 Comment

Here:

A special prosecutor has filed criminal complaints in an investigation of the Navajo Nation Council’s discretionary funds.

The tribe’s Department of Justice said Wednesday that criminal complaints allege conspiracy, fraud, theft, forgery and abuse of office related to management of the funds.

Tribal justice officials didn’t immediately say how many complaints had been issued. Navajo lawmakers were told to call the prosecutor’s office to determine if they are the subject of a criminal complaint.

But lawmakers curious to find out were told they would have to wait until Thursday to see if they’re on the list. Defendants have until the close of business Friday to pick up the complaints and summons or they will be served by police, justice officials said.

“This is probably one list you really don’t want to be on,” said council Delegate LoRenzo Bates.

Tribal Council spokesman Alastair Bitsoi said the position of lawmakers has been that the funds are available to give out to those in need and as they see fit. He said the 88-member council bases its decisions on respect and upholding the public interest.

“They’re innocent until proven guilty,” he said. “They still have to go through the process, and if this is the process, we’ll continue.”

The complaints were announced during the Tribal Council’s weeklong fall session in Window Rock and just ahead of the Nov. 2 election in which nearly three dozen lawmakers are on the ballot.

The council receives millions of dollars a year though supplemental budget appropriations to dole out to elderly Navajos on fixed income, college students, organizations in need or Navajos looking for emergency funding.

Any Navajo can seek financial assistance from a single lawmaker every six months, according to the policy, which has been amended over the years to exclude a limit on how much an individual could receive.

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