6 NICS App. 187, JONES v. TULALIP (October 2004)

IN THE TULALIP TRIBAL COURT OF APPEALS

TULALIP INDIAN RESERVATION

TULALIP, WASHINGTON

William L. Jones, Jr., Appellant,

v.

The Tulalip Tribes, Appellee.

No. TUL-CR-01/03-004 (October 19, 2004)

SYLLABUS^*

Trial court denied defendant’s motion to dismiss a criminal complaint for violation of right to a speedy trial. Court of Appeals articulates a four-part test for analyzing whether the right to a speedy trial has been violated and holds, in regards to the matter at bar, that defendant suffered no prejudice as a result of the delay and so no right was violated. Trial court affirmed.

Before:            Jane Smith, Chief Justice; Douglas Nash, Justice; John Sledd, Justice.

OPINION

Sledd, J.:

PROCEDURAL HISTORY

This case is before the Court of Appeals for a second time. The issue is whether Appellant’s rights to a speedy trial were denied. We rule that those rights were not denied and we affirm. In the process, we clarify the right to speedy trial under the Constitution of the Tulalip Tribes.

On February 7, 2002, Appellant was stopped by Tulalip Tribal Police, who suspected he was intoxicated. Appellant was issued a citation for Reckless Driving and was booked into Snohomish County Jail. Four days later he was released unconditionally¹. The parties don’t know why, and the record doesn’t say why he was released. Nearly one year later, on January 30, 2003, a complaint for Reckless Driving was filed in the Tribal Court. Appellant first appeared before the Court on April 14, 2003, for arraignment. On June 30, 2003, Appellant

6 NICS App. 187, JONES v. TULALIP (October 2004) p. 188

moved to postpone trial and waived future speedy trial rights, reserving any claim that those right had already been violated.

Appellant’s motion to dismiss on speedy trial grounds was denied. The Tribal Court found that Appellant had been released from jail unconditionally, and so his speedy trial rights had not attached. In addition, the Court found that Appellant had failed to prove prejudice from the delay. Appellant was then convicted of Reckless Driving.

Appellant appealed. At oral argument, both parties referred to the citation that Appellant had received. The citation, however, was not in the record. This Court remanded to give the Trial Court the first chance to consider the citation’s significance to the speedy trial question. Based on a brief factual stipulation, the Trial Court found the citation to be of no significance.² The trial judge reaffirmed both his prior denial of the motion to dismiss and Appellant’s conviction. With the benefit of a fuller record, the question now returns to the Appellate Court.

APPLICABLE LAW

A citizen’s right to a speedy trial of Tulalip Tribal criminal charges has three sources: the Indian Civil Rights Act (ICRA), the Tulalip Tribes’ Constitution, and Tulalip Tribal Ordinances. None of these sources set specific timelines for prosecuting Appellant. The ICRA assures a “speedy and public trial.” 25 U.S.C § 1302(6). The Tribes’ Constitution, Art VII, §4, similarly assures a generic “prompt … hearing.” The Tribal Ordinance that applied to Appellant’s prosecution also protected only a general right to a “speedy trial.” Ordinance 49, § 2.1.4.1(f) (2002).³ For simplicity, we refer to this general right as the “constitutional right,” to distinguish it from a statutory right to trial in a fixed number of days.

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

6 NICS App. 187, JONES v. TULALIP (October 2004) p. 189

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).

APPLYING THIS LAW

Applying the length of delay factor, we must first ask, when does the right attach and the speedy trial clock start ticking? Appellant argues that the right attaches with the arrest; the Tribes argue the right arises only when a person is charged. The trial judge apparently agreed with the Tribes’ argument, and moreover, appears not to have considered the citation to be a charge.

We think Appellant, the Tribes, and the Trial Court are each a little wrong. The constitutional right to a speedy trial attaches when its purposes so require. If an arrest is followed by prolonged restraint of liberty, prior to charging, the purposes of fairness, reliability and accountability may justify invocation of the right. At the latest, the right attaches when a crime is charged, casting the citizen into the full shadow of prosecution.

Unlike the Trial Court, we hold that Appellant’s speedy trial right attached when he received a citation and was arrested. We so hold for two reasons. First and most importantly, Tribal law says that traffic crimes may be charged by citation. Ordinance 49, §§ 2.3.1. Indeed, the Ordinance allows any prosecution to begin with a citation. Ordinance 49, § 2.4.3.6. The Trial Court judges may have had a policy requiring a complaint, but it is the policy of the Tribes’ elected legislative body, not that of the Court which counts. Admittedly, the Legislature has not expressed its policy clearly. Contrary to the provisions cited above, Ordinance 49 § 2.3.2.1 mandates a complaint to prosecute Class B through E offenses, which are elsewhere defined as those penalized by jail time. Ordinance 49, § 3.1.9.1. The more specific provision allowing

6 NICS App. 187, JONES v. TULALIP (October 2004) p. 190

citations to charge criminal traffic cases, however, seems to us controlling, especially since the Code does not expressly state a class of offense for Reckless Driving.⁴

The second reason to treat the citation as a charging document is that a reasonable citizen would think he had been charged when given a document labeled “Citation” and placed in jail for 48 hours. Subsequent release from custody would not eliminate the fear and uncertainty of a pending prosecution. Fairness requires a speedy effort o resolve this uncertainty. Therefore, the speedy trial clock should have started ticking when Appellant was cited and arrested.⁵

After the citation, almost an entire year passed with no apparent action in the case. We find that one year delay between charging and trial of a simple traffic crime is presumptively unconstitutional. This factor usually weighs in favor of reversal absent some good reason for the delay.

The record reveals no such reason. Most of the delay is wholly unexplained. The Tribes suggested on appeal that Appellant made himself scarce. The record does no substantiate that, and it wouldn’t explain in any case the delay before a complaint was even filed. Moreover, it is the governments’ obligation to prosecute offenses and protect the community, Ordinance 49, §1.13.1, so we are inclined to lay blame for this delay at the Tribes’ feet. On the other hand, Appellant also did nothing to resolve the case, despite the lengthy passage of time. We understand why he might let sleeping dogs lie, but his failure to show responsibility and to inquire of the Court or demand resolution diminishes our constitutional sympathy. The “reason for the delay” factor therefore weighs in favor of finding a constitutional violation, but only modestly so.

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 trail 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).

6 NICS App. 187, JONES v. TULALIP (October 2004) p. 191

Summing up the factors, we find no violation of Appellant’s constitutional speedy trial rights.

AFFIRMED

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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.

Appellant was booked on a Thursday and released the following Monday, which constituted two judicial days.

The stipulation read as follows:

In June, 2003, the Tribes adopted new ordinance provisions requiring trial within sixty days after arraignment, for a person in custody, and ninety days after arraignment otherwise. Ordinance 49, § 2.9.2.2 (2003).

The citation issued to Appellant may have a formal defect, in that it apparently does not set a hearing date. Cf., Ordinance 49, § 2.1.2.5 (“citation” defined as “direction to appear before the court at a stated time to answer a charge….”). The Code tells use to ignore a formal defect in a criminal complaint, however, Ordinance 49, § 2.3.2.4, and we see no reason not to do he same with a citation, at least for speedy trial purposes.

The parties stipulated on remand that a citation was issued to Appellant only because the County requires one, before the Tribes can book an arrested person in the County’s jail. The reason for citation are immaterial; what counts is its status as a charging document and the constitutional consequences of the charge, which include the attachment of speedy trial rights.