Possible Challenge to Jury Venire for Native-American Defendants in Washington Counties Overlapping Reservations

I have run into an interesting issue that I raised in court, only to have the matter settle. If anyone encounters this problem and seeks assistance, I would not mind the pro bono work.  Due to their locations, an Okanogan or Ferry County attorney could challenge the current method of selecting juries.

Under Washington Law, jurors must be selected evenly from the populations as a whole. A problem arises when State Courts conduct jury trials of Indian Defendants. The current method of drawing jurors does not reach Indian residents living on trust or allotted land. Such summonses are a form of state court civil process. Under the case of North Sea Products v. Clipper Seafood, such state civil matters are unenforceable on Indian Reservations. 92 Wn. 2d 236, 595 P.2d 939 (1979) (invalidating a state-court garnishment). Additionally, the punishments under RCW 2.36.170 for failing to report for jury duty do not apply to Indians on trust or allotted lands. RCW 37.12.010 provides that the “…state of Washington hereby obligates and binds itself to assume criminal . . . jurisdiction over Indians and Indian territory,… but such assumption of jurisdiction shall not apply to Indians when on their trust lands or allotted lands within an established Indian reservation…” Indians are 16.5% of the Okanogan county population according to the U.S. census. In Ferry County, the figure is 20%. The exclusion of this body invalidates the process.  Who comes to serve, and who does not come to serve, must be random. One case on point is Brady v. Fibreboard Corp., 71 Wn. App. 280, 857 P.2d 1094 (1993), review denied, 123 Wn.2d 1018, 871 P.2d 599 (1994). In Brady, the court of appeals reversed a jury verdict because of procedural irregularities. When several jurors on the list did not appear, plaintiff’s counsel asked why, and “the judge responded that they had never been called in.” Id. at 282. Other judges had excused the jurors, and the court of appeals reversed the verdict and explained: “The procedures used here abridge the statutory mandate of random selection. It is undisputed that the initial panel of 90 was randomly selected. However, the randomness of the panel was destroyed when 14 of the 90 were eliminated by the process employed here.” Id. at 283. Like the 14 missing jurors in Brady, many native jurors will have “never been called in.” Aside from the constitutional precepts violated, this is a violation of statute mandate reversal. “When statutory jury selection procedures are materially violated, the claimant need not show actual prejudice; rather, prejudice is presumed.” Id. at 283. One case I looked at is Taylor v. Louisiana, 419 U.S. 522 (1975). In that case, Louisiana’s method of drawing jurors to court was found to be unconstitutional. Louisiana summoned men to appear, but made women’s attendance optional or voluntary. The court in Taylor v. Louisiana visited earlier cases and explained:
A unanimous Court stated in Smith v. Texas, 311 U.S. 128, 130 (1940), that “[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.” To exclude racial groups from jury service was said to be “at war with our basic concepts of a democratic society and a representative government.”

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We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power – to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge. Duncan v. Louisiana, 391 U.S., at 155 -156. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool.

The court struck down a murder conviction due to the failure to compulsorily include women in jury pools. The best solution would be to ask our Federal Courts or the Colville Tribal Court to issue jury summonses to the Tribal member for the State. This procedure would render the summonses valid. Unlike a mailed state-court jury summons, a summons of a Federal Court of Tribal Court will compel attendance. It is, of course, a crime to ignore a court order or summons under Federal and Tribal law. The Federal Court clearly can enforce, or re-issue State Court process on reservations. As to the Colville Tribal Courts, their cooperation with State Court process is largely discretionary under Section 1-1-102 of their code. The Ferry County Superior Court Judge could order the Ferry County Clerk to send all on-reservation summonses to the Colville Tribal Court for compulsory lawful services under tribal law.

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Steve Graham is a criminal defense lawyer, and he splits his time between Spokane and Seattle, Washington. Visit his website by clicking: www.grahamdefense.com
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