ICRA right to counsel – Turtle Talk

As previously noted, Defendant has provided the Court with a copy of the transcript of her guilty plea proceeding. [Doc. 194-1] Since there is no indication in the transcript that Defendant was represented by counsel, the Court will not assume that Defendant was informed of her rights by counsel. Rule 12(c) of the Navajo Rules of Criminal Procedure required the judge, prior to accepting Defendant’s plea, to explain to Defendant that she had the rights (1) to remain silent, (2) to have counsel at her own expense or appointed counsel if defendant cannot afford counsel, (3) to plead not guilty, (4) to confront and cross-examine witnesses; (5) to be released on bail unless certain findings are made, (6) to trial by jury, (7) to a speedy and public trial, (8) to call witnesses, and (9) to file a writ of habeas corpus. Instead of the detailed enumeration of her trial rights contemplated by the Navajo Rules of Criminal Procedure, the page-and-a-half transcript shows a cursory, rudimentary colloquy. Although Defendant was asked “Do you understand your rights as explained to you?” the transcript does not include any enumeration of those rights, nor does the record show that Defendant was told that she was giving up those rights by pleading guilty. Under the Navajo Rules of Criminal Procedure, the advisement of rights pursuant to Rule 12(c) is the sole procedure for advising a defendant of her rights. Further, Defendant’s counsel has represented to the Court that an examination of the tape of the proceedings before the tribal court for April 22, 2009 fails to show any explanation of rights to Defendant or any other person. [Doc. 194 at 3, n.1] It appears that this prerequisite to a valid guilty plea was entirely overlooked in Defendant’s case. The Court finds that Defendant was not advised of key rights guaranteed by ICRA–the privilege against self-incrimination, the right to confront her accusers and to compulsory process, the right to counsel at her own expense, and the right to trial before a jury of not less than six persons. Section 1302 (4) (6) and (10). The transcript also shows that there was no inquiry into the factual basis of Defendant’s plea. Defendant has made a compelling showing that her guilty plea was not knowing and voluntary. Under ICRA due process of law is itself a right. Section 1302(8). The Court concludes that Defendant’s guilty plea was obtained in violation of the due process provision of ICRA, and under Shavanaux is inadmissible as substantive evidence in a subsequent federal prosecution.

In a footnote, the court added:

Given the solicitude of the Navajo Supreme Court for the rights of accused tribemembers, e.g. Eriacho v. Ramah District Court, 6 Am. Tribal Law 624 (Navajo Sup. Ct. 2005); Navajo Nation v. Curley, 6 Am. Tribal Law 697 (Navajo Sup. Ct. 2005); Curley v. Navajo Nation, 4 Am. Tribal Law 622 (Navajo Sup. Ct. 2002), the Court has considerable doubt whether a prior conviction based on a demonstrably invalid guilty plea would be admissible in Navajo tribal court over the defendant’s objection.

Barbara Creel on the the Right to Counsel in Indian Country

May 24, 2013Matthew L.M. Fletcher3 Comments

Barbara Creel has posted “The Right to Counsel for Indians Accused of Crime: A Tribal and Congressional Imperative,” published in the Michigan Journal of Race & Law (my law school journal!), on SSRN. Here is the abstract:

Native American Indians charged in tribal court criminal proceedings are not entitled to court appointed defense counsel. Under well-settled principles of tribal sovereignty, Indian tribes are not bound by Fifth Amendment due process guarantees or Sixth Amendment right to counsel. Instead, they are bound by the procedural protections established by Congress in the Indian Civil Rights Act of 1968. Under the Indian Civil Rights Act (ICRA), Indian defendants have the right to counsel at their own expense. This Article excavates the historical background of the lack of counsel in the tribal court arena and exposes the myriad problems that it presents for Indians and tribal sovereignty.

While an Indian has the right to defense counsel in federal criminal court proceedings, he does not in tribal court. This distinction makes a grave difference for access to justice for Americans Indians not only in tribal court, but also in state and federal courts. The Article provides in-depth analysis, background, and context necessary to understand the right to counsel under the ICRA and the U.S. Constitution. Addressing serious civil rights violations that negatively impact individual Indians and a tribe’s right to formulate due process, this Article ultimately supports an unqualified right to defense counsel in tribal courts.

Defense counsel is an indispensable element of the adversary system without which justice would not “still be done.” Tribes, however, were forced to embrace a splintered system of justice that required the adversary system but prohibited an adequate defense. The legacy of colonialism and the imposition of this fractured adversary system has had a devastating impact on the formation of tribal courts. This legacy requires tribal and congressional leaders to rethink the issue of defense counsel to ensure justice and fairness in tribal courts today. The Article concludes that tribes should endeavor to provide counsel to all indigent defendants appearing in tribal courts and calls upon Congress to fund the provision of counsel to reverse the legacy of colonialism and avoid serious human rights abuses.

Highly recommended!

Tracing the Right to Counsel in the VAWA Reauthorization Act

February 28, 2013Matthew L.M. Fletcher3 Comments

Been asked this so here goes. Does the new statute require tribes to guarantee counsel to indigent defendants in special tribal domestic violence prosecutions of non-Indians? Yes, the answer is (as Yoda would say) (and assuming President Obama doesn’t veto).

Here is the new statute, of which section 904(d) reads:

In a criminal proceeding in which a participating tribe exercises special domestic violence criminal jurisdiction, the participating tribe shall provide to the defendant—
(1) all applicable rights under this Act;
(2) if a term of imprisonment of any length may be imposed, all rights described in section 202(c);

The section 202(c) to which VAWA references is the current version of the Indian Civil Rights Act requiring tribes that choose to assert expanded sentencing authority to provide counsel to indigent defendants (25 U.S.C. § 1302):

(c) Rights of defendants

In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall—

(1) provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and

(2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;

(3) require that the judge presiding over the criminal proceeding—

(A) has sufficient legal training to preside over criminal proceedings; and

(B) is licensed to practice law by any jurisdiction in the United States;

(4) prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and

(5) maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.