18 NICS App. 38, PHAIR v. TULALIP (December 2020)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

Gerad Phair, Defendant/Appellant,

v.

The Tulalip Tribes, Plaintiff/Appellee.

NO.    TUL-CV-AP-2019-0419 (December 2, 2020)

SYLLABUS*

Appellant claimed an unconsented two week continuance past the tribe’s speedy trial guarantee, resulting from an insufficient jury panel, violated his right to a speedy trial and that the trial court no longer had subject matter jurisdiction. Court of Appeals determined appellant’s right to a speedy trial was not violated by the continuance in question based on its analysis of factors considered in prior cases where speedy trial violations were claimed. Appellant also argued prosecutorial misconduct violated his right to a fair trial and sought mistrial. Court of Appeals found the decision of the trial court to deny a mistrial, considering the prosecutor’s rebuttal statement, was an abuse of discretion. Court of Appeals vacated appellant’s conviction and remanded to trial court for further proceedings.

Before:	Daniel A. Raas, Chief Justice; Jane M. Smith, Justice; Michael E. Taylor, Justice.
Appearances:	Brenda Williams, for Appellant; Megan James, for Appellee.

OPINION

Raas, C.J.:

INTRODUCTION

A jury convicted Appellant Gerad Phair of violating TTC 3.20.018 - Rape.¹ He timely appealed, alleging numerous errors committed before, during and after his trial. Upon a joint motion of the parties the initial briefing schedule was suspended due to the outbreak of Covid-

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19, which resulted in the closing of the tribal offices, including the Prosecutor’s and the Tribal Defense Clinic. When these offices reopened, briefing and oral argument were completed.

STANDARD OF REVIEW AND ISSUES BEFORE THE COURT

The Standards of Review are set out in TTC 2.20.090 and will be discussed below as they apply to each issue. TTC 2.20.080 reads in part: “Parties may not present arguments orally that have not been properly raised in a written brief or motion.” Thus errors alleged in the Notice of Appeal but not briefed or argued will not be considered.

TTC 2.05.030(1) sets the stage for the administration of Tulalip Justice:

(1) Purpose and Construction. The provisions of this title [Title 2: Tribal justice System] and TTC Title 3 [Criminal Offenses and Infractions] shall be construed in accordance with Tribal custom as well as to achieve the following general goals: (a) To secure the just, speedy, and inexpensive determination of every civil action; (b) To provide for the just determination of every criminal proceeding; (c) To protect the rights of individuals; (d) To secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay; and (e) To enhance public safety on the Tulalip Reservation.

These principles guide the interpretation of Tulalip Law as applied to the facts of every case that comes to this Court.

SOURCES OF LAW

TTT 2.05.030(2) directs:

”The Tulalip Tribal Courts shall apply the laws and ordinances of the Tulalip Tribes, including the custom laws of the Tribes, to all matters coming before the Courts; provided, that where no applicable Tulalip Tribal law, ordinance, or custom law can be found, the Courts may utilize, in the following order, the procedural laws of other Federally recognized Indian tribes, Federal statutes, Federal common law, State common law, and State statutes as guides to decisions of the Courts.”

Thus, when there is no Tulalip law on point, this sets the priority of the laws in other jurisdictions may be used as precedents. This Court has routinely used the decisions of other Tribal Courts as persuasive precedent.

FIRST CLAIM: VIOLATION OF APPELLANT’S RIGHT TO A SPEEDY TRIAL

FACTS RELEVANT TO THIS ASSIGNMENT OF ERROR

Appellant was arrested on early June, 2019, and charged with one count of violation of TTC 3.20.018. Cash bail was set at $50,000. He was unable to post bond, and remained in custody until his trial. Well before trial, and over Appellant’s objections, the Court allowed a DNA sample to be taken. The DNA sample was sent to the Washington State Crime Laboratory

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for analysis.² TTC 2.25.070(7) requires that trial of an in custody defendant begin not more than sixty (60) days from the date of arraignment. TTC 2.25.070(2)(f) permits a defendant to waive the right to a speedy trial. For various reasons, including explicitly that the results of the DNA test had not been received from the State Crime Lab, the Appellant waived his speedy trial right until October 9, 2019. On that day an insufficient number of potential jurors appeared to allow the Tribal Court to empanel a jury, and the Tribal Court continued the trial for 14 days, until October 23, 2019, over the objection of Appellant, who refused to waive his speedy trial right longer than October 9, 2019. It is this unconsented two week continuance that Appellant claims violated his right to a speedy trial. On October 23, 2019, the Tribal Court granted a two week continuance due to an unforeseen injury to Appellant’s counsel. This continuance is not challenged, save that, as Appellant argues, the prosecution should have been dismissed when no jury was available on October 9, 2019, when the speedy trial waiver expired. Subsequently, the Tribal Court empaneled a jury and the trial began. Appellant urges that the unconsented continuance violated his right to a speedy trial guaranteed by the Tulalip Constitution, the Tulalip Tribal Code, and the Indian Civil Rights Act, 25 U.S.C. Section 1302(6).

RELEVANT TULALIP AND FEDERAL LAW TO THIS ASSIGNMENT OF ERROR

The Constitution of the Tulalip Tribes guarantees defendants in Tulalip Tribal Court the right to a prompt trial. Art. VII, Sec. 3. The Constitution does not define what constitutes a ‘prompt trial’. Jones v. Tulalip Tribes, 6 NICS App. 187, 188 (Tulalip, 2004). The Tulalip Tribal Code, TTC 2.25.070(2)(f) echoes this right: “(f) To have a speedy and public trial by Judge or a jury, unless the right to a speedy trial is waived or the right to a jury trial is waived by the defendant;” As above, TTC 2.20.070(7) requires a trial for an in custody defendant such as Appellant to be held within 60 days from the date of arraignment.

The Indian Civil Rights Act, in 25 U.S.C. Sec. 1302(6) imposes upon the Tulalip Tribes the requirement that the Tribes provide defendants with a speedy trial.

ANALYSIS

Appellant initially argues that the Tulalip Constitutional and statutory guarantees of a speedy trial impose a bright line rule: any violation mandates that the charges be dismissed. If that argument is rejected, he then argues that, taking all of the circumstances of this case into account, the violation of his speedy trial right requires that his conviction be vacated and the charge be dismissed. These arguments challenge the subject matter jurisdiction of the Tribal Court: once the speedy trial guarantee has been violated, either as a direct result of the failure to have trial during the allowable period or as a result of considering all of the relevant factors surrounding the failure to begin trial within allowable time period, the Tribal Court, and ultimately, this Court, no longer has the power to hear the case because the violation of Appellant’s constitutionally guaranteed right cannot be remedied in a new trial. See: TTC 2.20.100 Thus, unlike Appellant’s other assignments of error, the speedy trial issue must be addressed before turning, if necessary, to the other errors that he advances, for the remedy for each of those errors is to vacate the conviction and remand for a new trial or, for one assigned error, to remand for resentencing.

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This Court has twice addressed the meaning of the Tulalip guarantee of a speedy trial. Tulalip Tribes v. Cultee, 2 NICS 190 (1992), and Jones v. Tulalip Tribes, supra. In 1992, when Cultee was decided, the Tulalip Constitution was the same as it is now but TTC 2.21.1 provided that all criminal cases be tried during a thirty day period between sixty days after arraignment or filing of a complaint and ninety days after the same event. Mr. Cultee’s trial was held twenty-two days outside the thirty day window set out in then TTC 2.21.1. Upon appeal, this Court considered his claim of a speedy trial violation as a matter of first impression. Cultee, 2 NICS App. at 192. The Court adopted the balancing test for a speedy trial violation enunciated by the Lummi Nation in Lummi Tribe. v. Kinley, 19 Indian Law Reporter 6027 (1991), and the Navajo Nation in Navajo Nation v. McDonald, Jr., 19 Indian Law Reporter 6079 (1992). Cultee balanced (1) the length of the delay, (2) the prejudice to the defendant and (3) whether the defendant was at fault in causing the delay. McDonald, Jr. phrased the factors as : (1) the length of the delay, (2) the reason for the delay, (3) whether the defendant asserted his right to a speedy trial, and (4) the prejudice resulting to the defendant from a delay in trial proceedings, 19 Indian L. Rep. at 6083. Using this four part analysis led to the conclusion that Mr. Cultee’s right to a speedy trial was not violated by the twenty-two day delay in his trial. This Court observed that the United States Supreme Court used the same four part analysis in Barker v. Wingo, 407 U.S. 514 (1972), when analyzing a defendant’s right to a speedy trial guaranteed by the Sixth Amendment. Cultee, at 193-4.

Twelve years later, Jones v. TTT clarified a defendant’s right to a speedy trial under the Tulalip Constitution and laws. Jones, 6 NICS App. 187 (Tulalip, 2004). Jones framed the consideration of the effect of a speedy trial violation:

The constitutional right to a speedy trial has ancient roots. Traditionally, wrongdoing within the community needed to be addressed quickly, so the wrongdoer could change his behavior, make reparations to the injured, and be accepted again into the group. In that way wrongs could be healed, rather than festering and leading to revenge and more disruption. In modern times, the right insures that the uncertain cloud of prosecution passes quickly over an accused community member, and it promotes fair trial, based on fresh evidence. In sum, the speedy trial right protects the individual, but also promotes accountability of both the accused and of the community that accuses him.

Appellant’s rights to speedy or prompt trial under the ICRA, the Tribes’ Constitution, and the applicable part of Ordinance 49, however, are framed in general language, which will not support a bright line rule. The general language must be interpreted to fulfill its purposes of fairness, reliability, and accountability. Longer delays frustrate all these purposes, so the length of delay is a key factor. Promoting accountability requires that we also consider who is to blame for the delay and whether it was justifiable or manipulative. Fairness requires that we show greater vigilance for the right where we find greater prejudice from its possible denial. These factors are similar the same ones used by other courts in applying similar constitutional and statutory provisions. E.g., Barker v. Wingo, 407 U.S. 514, 530 (“we identify four factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant”); accord Suquamish Indian Tribe v. Randi Purser, 2 NICS App. 176 (Suq. Ct. App. 1992).

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Jones, at 188-9 (emphasis added). Jones and Cultee foreclose Appellant’s proposition that any delay of a speedy trial mandates dismissal and instead instructs that the balancing test of Jones must be used in order to determine whether Appellant’s right to a speedy trial was violated.

The first factor to be considered is the length of the delay. The parties agree that the maximum time that Appellant’s trial was delayed was fourteen days.³ This is less than the twenty-two day delay in Cultee and far less than the one year delay in Jones. Of interest, Jones found the one year delay to be “presumptively prejudicial” which is important because prejudice is a threshold inquiry in Barker, but not part of the test used in Jones. Other courts have found delays longer than the fourteen days here not to violate the right to a speedy trial: twenty-one days, Lambert v. Confederated Colville Tribes, 6 CTCR 31, 12 CCAR 32 (2015), citing the eighteen day delay in Stensgar v. Colville Confederated Tribes, 1 CTCR 76, 2CCAR20, 20 ILR 6151 (1993); Following Cultee, the fourteen day delay does not weigh in favor of the Appellant.

The second factor is the reason for delay. The Tribal Court made detailed findings as to why the trial could not begin on the appointed day due to the lack of a sufficient jury panel from which a qualified jury could be chosen. This is an unavoidable circumstance (and Appellant makes no claim that either the Tribal Court or the Prosecution took any actions to reduce the available jury pool) and was reasonably unforeseen,⁴ which are reasons for delay beyond the speedy trial date under TTC 2.20.070(d)(2). This provision requires a continuance beyond the speedy trial period to be for no longer than a week and be justified on the record. Additional continuances are also required to be justified on the record. The Tribal Court’s Order recites that it schedules jury trials on Wednesdays and the trial schedule for the following Wednesday was already set. Due to that crowded trial schedule the Tribal Court continued Appellant’s trial for two weeks, or until October 23, 2019. These facts are not disputed by Appellant. Although Appellant is blameless regarding the delay, the delay is justifiable, not manipulative, and was purely the result of a rare administrative problem. Trial was rescheduled for the next available jury trial date. Appellant also notes that TTC 2.24.070(7)(d)(2) requires that any extension of the trial beyond the speedy trial date can only be for seven calendar days (five ‘judicial days’) at a time, but the Tribal Court failed to follow this ordinance in that no separate Order was entered addressing the second seven day continuance. We decline this invitation to require the Tribal Court to waste time to enter new findings repeating what it has already found simply to satisfy the sterile requirements of the ordinance. TTC 2.05.030(1)(b)-(d), supra. The second factor does not assist the Appellant.

The third factor is the assertion of the speedy trial right by Appellant. Appellant here timely asserted his speedy trial right.

The fourth factor is the prejudice to the defendant. Appellant was in custody from the date of his arrest to the date of trial. Trial was postponed several times in order to receive DNA test results and other normal reasons, with Appellant waiving his speedy trial right to a date certain each time. The trial was also continued, with an appropriate waiver, when Appellant’s

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counsel was ill and unable to proceed to trial. As discussed above, Appellant remained in jail for the two weeks between the day when an insufficiently large jury pool appeared for trial and the trial was held. The sole prejudice averred by Appellant is this two week period of additional incarceration. In Cultee, Mr. Cultee claimed he was prejudiced by the absence of two witnesses. The Tribal Court ruled that these two witnesses could offer no assistance to Mr. Cultee, and thus their absence did constitute prejudice caused by the delay in trial. Cultee, at 194. The Jones Court held:

Of all the factors, the fairness or prejudice factor is most important in a speedy trial analysis in this case. The constitutional violation is clear where delay leads to the disappearance of key defense witness, or the destruction of exculpatory evidence because no one knew it could save an innocent person from jail. Appellant did not show such grave prejudice. In fact, he showed no specific prejudice. The best argument he could make was that denial of speedy trial rights was itself prejudicial. This is circular, and it is not sufficient to establish a constitutional violation in the absence of other factors like a longer delay, or more diligence by the defendant, or some deliberate prosecutorial efforts to postpone trial. Cf., U.S. v. Olano, 507 U.S. 725 (1993) (if prosecution is reasonably diligent, defendant must prove specific prejudice to show speed trial violation).

Jones, at 190. While incarceration is a severe restriction upon a defendant’s liberties, the period of time here, two weeks, in the absence of any misconduct by the Prosecution delaying the trial or defects the Tulalip justice system targeting the Appellant or delaying trials routinely beyond the speedy trial period without a waiver from the affected defendant, this fourth factor in determining a speedy trial violation does not help Appellant.

Appellant has not argued that the Tulalip Ordinance is in violation of the ICRA, and thus that issue is not present here. In any event, the analysis of a speedy trial violation under the ICRA is that mandated by the U.S. Supreme Court in Barker, which the same as used under Tulalip law. The result is the same: Appellant’s federally guaranteed right to a speedy trial was not violated by the Tribal Court’s fourteen day continuance past the Tulalip speedy trial date.

SECOND CLAIM – PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT

Appellant makes several claims of prosecutorial misconduct during the trial. A discussion of the Prosecutor’s rebuttal closing argument follows. Appellant argues, in part, that “prosecutor's comments [in her rebuttal closing] that she was telling the truth as the accuser contradict all notions of fairness”.

FACTS RELEVANT TO THIS ASSIGNMENT OF ERROR

The recording of the trial shows that the Prosecutor made these statements in her rebuttal closing argument:

None of it gives him [Appellant] a pass to say well she lied to me about not having a beer so she must have wanted me to rape her. [Inaudible] The accuser in this case is the Tulalip Tribes of Washington. Counsel mentioned the accuser as [the victim]. [The victim] is a witness yes, and a victim of a horrendous crime. She is not the accuser.

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We're the ones that, I'm the one, who filed the charges against the defendant based on the information I have. I am the accuser. I have been honest. (emphasis added)

Appellant timely objected that these statements violated Appellant’s right to a fair trial and sought a mistrial. The Tribal Court overruled the objection. These statements remained in the record considered by the jury, which subsequently convicted the Appellant.

STANDARD OF REVIEW

This ruling by the Tribal Court during the trial is well within the discretion of the trial judge, and is reviewed for an abuse of that discretion. TTC 2.20.090(8). “Abuse of discretion” is synonymous with a failure to exercise a sound, reasonable, and legal discretion. Robinson v. Wilbur, 16 NICS App. 18, 20 (Tulalip 2018), citing Fern v. Torres:

Abuse of discretion is

…synonymous with a failure to exercise a sound, reasonable, and legal discretion. It is a strict legal term indicating that the appellate court is of the opinion that here was commission of an error of law by the trial court. It does not imply intentional wrong or bad faith, or misconduct, nor any reflection on the judge but means the clearly erroneous conclusion and judgment—one is that clearly against logic and effect of such facts as are presented in support of the application or against the reasonable and probable deductions to be drawn from the facts disclosed upon the hearing; an improvident exercise of discretion; an error of law. State v Draper, 83 Utah 115, 21 P2d 39; Ex Parte Jones, 246 Ala. 433, 20 So.2d 859, 862. Abuse of Discretion, page 10, Black's Law Dictionary, Sixth Edition, 1990, emphasis added.

Fern v. Torres, 6 NICS App. 200, 201 (Chehalis, 2004)

DISCUSSION

The Tulalip Constitution does not explicitly guarantee a defendant a ‘fair trial’. Article VII – Bill of Rights, Section 4, Rights of Accused, neither speaks of guaranteeing a ‘fair trial’ nor contains language that incorporates the concept of a ‘fair trial’ into the specific rights it enumerates. However, at least four sections of the Tulalip Tribal Code guarantee that a party, such as Appellant, in Tulalip Tribal Court is entitled to a ‘fair trial’:

TTC 2.05.060 provides that a party to any case in Tulalip Tribal Court may disqualify a Judge assigned to their case by filing an affidavit that they cannot receive a “fair and impartial trial” from that judge.

TTC 2.25.130(6) permits a dismissal of a prosecution … “(b) On Motion of Court. The Court, in the furtherance of justice, after notice and hearing, may dismiss any

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criminal prosecution due to arbitrary action or governmental misconduct when there has been prejudice to the rights of the accused which materially affect the accused’s right to a fair trial.”

The Tulalip Rules of Court 2.5.1 Grounds for a New Trial, says in Section A that a new trial may be granted if conduct by an adverse party, or a discretionary ruling by the Tribal Judge, prevented the aggrieved party “from having a fair trial.”

The Tulalip Tribes recently enacted a comprehensive Domestic Violence Code, which in Section 6 of the Rules for the Domestic Violence Court provides an extensive list of the rights of a defendant accused of a crime involving domestic violence, including Section 6.4, Rights of a Defendant, and Section 6.4.1 N), which reads in relevant part:

N) All other rights whose protection is necessary under the Constitution of the United States including … the right to due process and equal protection of the law and rights in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise Special Domestic Violence Criminal Jurisdiction over the defendant.

This is an explicit incorporation of the due process and equal protection portions of federal law into Tulalip jurisprudence regarding the rights of defendants in the Tulalip Tribal Court.⁵     

Parks v. Tulalip Gaming Commission, 3 NICS App. 326, 330 and 331 (Tulalip 1994), holds that when the Tulalip Tribes decides to revoke a gaming license then due process requires a “fair hearing” also termed “an impartial administrative hearing” if the licensee challenges the revocation.

The overall conclusion is clear: the Tulalip Tribal Code and relevant case law guarantees a fair trial in the Tulalip Tribal Courts to each and every party.⁶

“A defendant charged under TTC Chapter 4.25 [Domestic Violence Code] has a right to a trial by jury of six fair and impartial jurors drawn from the community according to TTC 2.05.110.” Tulalip Rules of Domestic Violence Court 6.4.3. (emphasis added) No reason exists to distinguish the rights of a defendant charged under the Domestic Violence Code from the rights

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of a defendant charged under any other provision of the Tribal Code, including the Appellant here.

Every defendant in Tribal Court is entitled to trial by jurors who are fair and impartial. TTC 2.05.110(3). TTC Chapter 4.25, Rules of Domestic Violence Court 6.4.3. However, a juror who is seated as a fair and impartial juror may lose that status as a result of improper argument during the course of a trial.

While Appellant argues several instances of prosecutorial misconduct throughout his trial, only two need be discussed here. A prosecutor cannot vouch for the credibility of a witness nor can they argue to the jury that they personally believe the defendant is guilty:

Improper prosecutorial vouching occurs when the prosecutor "place[s] the prestige of the government behind the witness ‘by providing "personal assurances of [the] witness's veracity.”’ United States v. Roberts, 618 F.2d 530, 533 (9th Cir.1980), cert. denied, 452 U.S. 942, 101 S.Ct.3088, 69 L.Ed.2d 957 (1981).

United State v. Smith, 962 F.2d. 923, 934 (9th Cir 1992).

The prosecutor’s statements here were improper on both counts: She argued forcefully that she personally, representing the Tribes, brought the charges, thus placing the prestige of the government behind her statements. In so doing, the prosecutor also implied that the Tribes, speaking through her, had concluded that Appellant’s guilt was not only based on the evidence adduced in the trial, but that the Tribes may have additional evidence which led the prosecutor to bring this case. She also made it clear that the victim, the Tribes’ witness, should be believed because the prosecutor believed the victim. This misconduct was exacerbated because it occurred in rebuttal, when the defense had no opportunity to bring these issues to the jury. There is no way of knowing whether this argument influenced the jury, but it was clearly intended to do so. See: Rule of Domestic Violence Court 6.4.3, supra.

The Tribes essentially agrees that the prosecutor’s closing remarks were improper, but argues that they were not so egregious an error as to require reversal of Appellant’s conviction. But the error here was the Tribal Court’s overruling of the motion for a mistrial, not the degree of impropriety of the argument.

The decision of the Tribal Court to deny a mistrial in light of these statements in the rebuttal closing statement was an abuse of discretion. The Tulalip Rules of Court 2.5.1 A).

CONCLUSION

The conviction of the Appellant is vacated and the matter is remanded to the Tribal Court for further proceedings as that Court may find appropriate.

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The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.

3.20.018 Rape. (1) A person who knowingly has sexual intercourse without consent with another person commits the offense of rape.

The results of the DNA test were not introduced as evidence in Appellant’s trial.

Under TTC 2.25.070(7)(d) it may be argued that only “judicial days” which are days the Tulalip Courts are open, as opposed to calendar days are considered when a trial is delayed beyond the speedy trial date. The trial was delayed ten judicial days. In this case the difference is not important.

At oral argument the Tribes stated that a failure to have a large enough jury pool respond to Tribal Court summons was quite uncommon.

Potential conflicts between the Indian Civil Rights Act regarding the right to counsel and First Amendment guarantees are not present in this matter and this opinion takes no position on how to resolve these, and any others that might be argued.

This conclusion relies on Tulalip law and it is thus unnecessary to discuss whether the due process clause of the Indian Civil Rights Act, 25 U.S.C. Sec 1302(8), requires the Tribes to provide a “fair trial”, although other Tribal Courts have done so. See, e.g., Port Gamble S’Klallam Tribe v. Callihoo, 10 NICS App. 124, 128 (Port Gamble, 2010) “…. the ICRA, at a minimum procedural due process requires … and the opportunity to be heard in a fair hearing before a neutral fact finder.” and Metlakatla Indian Community v. Lang, 4 NICS App. 86, 88 (Metlakatla, 1996) “One of the requirements of due process is the meaningful opportunity to be heard in a full and fair hearing. In re the Welfare of D.D., 3 NICS App. 269, 270 (Port Gamble S’Klallam 1994)”.