Posts Tagged ‘Washington Supreme Court’

When a person thinks of their constitutional rights, they often think of their right to free speech, or to bear arms, or the right to a jury trial.  The Washington Supreme Court dealt last week with a right that we do not always think of.  That is, the right to a “public” trial.   This was in the case of State v. Strode, a case originating out of Ferry County.  The right to a public trial is in the 6th Amendment to the U.S. Constitution, which reads:   In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

In the case of State v. Strode the Supreme Court had to decide whether it was appropriate for a judge to question potential jurors in chambers, as opposed to the open courtroom.   On certain cases, the parties obviously want to know whether a juror has been the victim of, or been charged with the crime in question.   The practice usually involves the judge inviting the juror back to chambers, along with the prosecutor, defense attorney, and defendant.   The State Supreme Court ruled that this may be acceptable in certain circumstances as long as a certain analysis is done on the record justifying the decision.

Although we learn about our constitutional rights in school, lay people I work with are often surprised at the way that the right to a public trial works.   It is often thought that it is acceptable to “close the courtroom” at certain times or even to allow a child witness, for example, to speak to the judge privately in chambers.   Such practices are prohibited by the U.S. Constitution for criminal trials.

This right to a “public” trial has come up several times in my practice as a criminal defense lawyer.  I once had a trial where an undercover cop was testifying about work he did on a case.  Although his identity was known to me and my client, the agent still had other cases that he was working elsewhere in the state.  The prosecutor moved to close the courtroom, but the judge had to deny the motion.

As we know courtrooms are often pretty empty during a trial.  Often times the defendant’s family will be present or a spouse of a juror will attend. However, it is any person’s right to just come in to a court and watch a trial or a docket.  When I travel to different places I often like to visit the local courthouse.  I once sat through a half-day trial in New York City, and when I was in law school, I often sat through jury trials in Spokane.  The right to a public trial belongs to a defendant, but also to the public.  Often times, it is the news media who raises this issue.

I once worked as a defense lawyer on a First Degree Murder case in Ferry County where the issue of a public trial arose.   The electronic locks on the courthouse doors lock automatically at 4:00 p.m.  The attorney general prosecuting the case stepped outside for a breath of fresh air during the recess and was locked out.  After a while, when court was set to resume we wondered where he went and found him outside.   Needless to say, the settings were changed on those locks.  Although it may seem a bit silly to some, locked doors at a courthouse would have required a new trial had it not been fixed.

Several years ago, I had a case in Okanogan County where a 6-year-old child was testifying during a non-jury trial.   The case dragged on through the morning, and people started to arrive for the afternoon traffic court docket.   The courtroom that had been previously empty started to fill up, and the pro tem judge directed the bailiff to post a sign on the door directing defendants to wait outside until their case was called.  I wondered if this was permissible, but the issue never got to the appeal level.

In the case of State v. Strode, the Supreme Court granted the request of the defense attorney for a new trial.

The Washington Supreme Court ruled Friday that Tribal police officers may pursue suspects off of reservations to make arrests.    That surprised me.  I always viewed the Tribal authority to make arrests as stopping at the border.

The case is State v. Loretta Eriksen.  A Lummi Nation police officer saw Eriksen commit traffic infractions, and then followed her off the reservation and detained her.   The case analyzed what authority the officer had to detain her off of the reservation.  Eriksen was later charged with DUI.  Her criminal defense lawyer questioned the legality of her stop in district court.

The subject of police officers acting outside of their jurisdiction arises often in my practice.  People often ask me what jurisdiction a city cop has in the county and vice versa.  Under Washington law, the police agencies of Washington State permit vehicle pursuits between local governments under the  Washington Mutual Aid Peace Officers Powers Act of 1985.  The Supreme Court rationalized that the Lummi Nation could act just like a local Washington police force.  However, under Washington law, the Mutual Aid Act (RCW 10.93.120(1)) states  “[a]ny peace officer who has authority under Washington law to make an arrest . . . .”  I guess I just don’t read that as applying to the agents of sovereign political tribes.  I tend to think of Indian Tribes or Nations as separate nations, and was taught this in law school.  Would you expect the police of Mexico or Canada to follow suspects across the border and detain them in the U.S.?

The attorney for the Lummi Tribe, in a persuasive friend-of-the-court brief, argued that to interpret the Mutual Aid Act to apply to local Washington governments but not Tribes would be discriminatory.   I really wonder in the long term if Native-Americans really want their Tribes to be analogized to another local Washington government.  In just about any other court case, the attorneys for the Tribes are analogizing themselves to separate nations such as foreign countries.  Local municipal entities in Washington are not sovereign entities in any way shape or form.   All cities, whether Republic, or Okanogan, or Seattle exist because the state legislature allows them to under RCW title 35.  Local governments are not sovereign or even quasi-sovereign.

The point of the Washington Supreme Court in this case was that people should not be able to flee accountability to Tribal police officers simply by driving off of the reservation.    That is true, but it should really be up to the legislature to fix this with a new statute.  Instead, the court created this rule with a somewhat strained reading of the current Washington Mutual Aid Peace Officers Powers.   Another problem I had with this court decision is that the Whatcom County Sheriff’s Department could have eliminated this problem by cross-commissioning the Lummi Nation police.   The defense attorney for Ms. Eriksen pointed this out in his brief.   He explained: “Sheriff of Whatcom County can give tribal officers the power to arrest under Washington law by cross deputizing them, but he has not done so.”  While it is common for Sheriff’s departments to cross-deputize Tribal officers, there is also some discrimination too.  Some county or city law enforcement agents view Tribal Police departments as inferior to their departments.  In my experience, the Tribal Police departments are certainly on par with local agencies, and often exceed local agencies in manpower, and with expertise in the collection of evidence.  The decision of the Supreme Court does not mention the failure of the Whatcom County Sheriff to cross deputize the Lummi Officers.  I feel this kind of lets him off the hook.

In the years to come, certain question will need to be clarified.  If a tribal officer is permitted to leave the reservation to make a detention, how long does an officer have?  Does the officer need to be directly following the vehicle, or can he locate the suspect many hours later at his home in Republic, or West Omak, or Grand Coulee?  If the vehicle successfully eludes the Tribal Officer, can the officer then conduct a man hunt off reservation for the suspect?  What implications will this decision have for the Spokane Tribe or Colville Confederated Tribes?

I discussed other issues related to tribal sovereignty in an earlier post on June 6th.