IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FORTINO ALVAREZ, Petitioner-Appellant,

Transcription

1 Case = , 09/27/2012, ID = , DktEntry = 17, Page 1 of IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT FORTINO ALVAREZ, Petitioner-Appellant, v. RANDY TRACEY, Acting Chief Administrator for the Gila River Indian Department of Rehabilitation and Supervision, Respondent-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA (CV PHX-DGC) PETITIONER - APPELLANT S REPLY BRIEF JON M. SANDS Federal Public Defender District of Arizona DANIEL L. KAPLAN Assistant Federal Public Defender KEITH J. HILZENDEGER Research and Writing Specialist 850 West Adams Street, Suite 201 Phoenix, Arizona (602)

2 Case = , 09/27/2012, ID = , DktEntry = 17, Page 2 of 28 TABLE OF CONTENTS Table of Authorities... iii Introduction... 1 Argument... 2 I. Mr. Tracey fails to refute Mr. Alvarez s demonstration that he is entitled to relief for the Community s violation of his confrontation right... 2 A. Mr. Tracey fails to overcome Mr. Alvarez s showing that the Community violated his confrontation right by using alleged victim E.C. s out-of-court accusations to convict him... 2 B. Mr. Tracey fails to show that the Community s violation of Mr. Alvarez s confrontation right was harmless... 6 II. Mr. Tracey fails to refute Mr. Alvarez s showing that the Community court failed to take adequate measures to ensure that he understood, and made a knowing and voluntary decision to waive, his right to a jury trial... 9 A. Mr. Tracey s reliance on state court misdemeanor cases is unavailing... 9 (1) The Community court failed to satisfy even the standard set forth in these cases, because it failed to notify Mr. Alvarez that he had to make a request to exercise his right to a jury trial... 9 (2) The Indian Civil Rights Act s jury right is not analogous to the jury right provided to state-court misdemeanor defendants i

3 Case = , 09/27/2012, ID = , DktEntry = 17, Page 3 of 28 B. Mr. Tracey s assertion that imposing Sixth Amendment-type waiver requirements in connection with the Indian Civil Rights Act s jury right would be unprecedented is mistaken C. Mr. Tracey s reliance on the comments of a congressional witness who opposed Congress s extension of Bill of Rights protections to Indians is misplaced D. Mr. Tracey s assertion that tribal defendants should not be required to waive their jury right on the record is irrelevant Conclusion Certificate of Compliance with FRAP 32(A)(7)(B) Certificate of Filing and Service ii

4 Case = , 09/27/2012, ID = , DktEntry = 17, Page 4 of 28 TABLE OF AUTHORITIES Cases Bryan v. United States, 524 U.S. 184 (1998)...18 Boykin v. Alabama, 395 U.S. 238 (1969)...15 Christian v. Rhode, 41 F.3d 461 (9th Cir. 1994)... 4 Confederated Salish & Kootenai Tribes v. Peone, 16 Indian Law Reporter 6136 (Confederated Salish & Kootenai Court 1989)...16 Crawford v. Washington, 541 U.S. 36 (2004)... 2 Howlett v. Salish and Kootenai Tribes, 529 F.2d 233 (9th Cir. 1976)...13 Jackson v. State, 644 N.E.2d 595 (Ind. Ct. App. 1994)... 10, 12, 14 Laramie v. Colville Confederated Tribes, 22 Indian Law Reporter 6072 (Colville Confederated Tribes Court of Appeals 1995)...15 Looper v. State, 605 S.W.2d 490 (Ark. Ct. App. 1980)...4, 6 Miranda v. Anchondo, 684 F.3d 844 (9th Cir. 2012), pet. for cert. filed (No )...14 Ohio v. Roberts, 448 U.S. 56 (1980)...2, 3 Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992)...12 Randall v. Yakima Nation Tribal Court, 841 F.2d 897 (9th Cir. 1988)...13 Red Fox v. Red Fox, 564 F.2d 361 (9th Cir. 1977)...13 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)...12 Seattle v. Williams, 680 P.2d 1051 (Wash. 1984)...15 iii

5 Case = , 09/27/2012, ID = , DktEntry = 17, Page 5 of 28 State v. Armes, 607 S.W.2d 234 (Tenn. 1980)...4, 6 State v. Farmer, 548 S.W.2d 202 (Mo. Ct. App. 1977)... 11, 12, 14 State v. Gordon, 766 A.2d 75 (Me. 2001)... 11, 12, 14 State v. Sharp, 327 S.W.3d 704 (Tenn. Crim. App. 2010)...4, 6 State v. Vernon, 356 N.W.2d 887 (Neb. 1984)... 10, 11, 12, 14 United States v. Alameda Gateway Ltd., 213 F.3d 1161 (9th Cir. 2000)... 8 United States v. Harbin, 112 F.3d 974 (8th Cir. 1997)...4, 6 United States v. Kortgaard, 425 F.3d 602 (9th Cir. 2005)... 8 Wilson v. Bowie, 408 F.2d 1105 (9th Cir. 1969)... 1, 4, 5, 6 Yee v. Escondido, 503 U.S. 519 (1992)... 8 Statutes 25 U.S.C. 1302(6) (Westlaw, USCA03 database) U.S.C. 1302(10) (Westlaw, USCA03 database) U.S.C. 1302(c)(5) (Westlaw 2012)...19 Other Authorities Constitutional Rights of the American Indian: Hearings Before the Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 89th Cong., 1st Sess. (1965)... 17, 18 Mark D. Rosen, Multiple Authoritative Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L. Rev. 479 (Nov. 2000)...16 iv

6 Case = , 09/27/2012, ID = , DktEntry = 17, Page 6 of 28 United States Constitution, Fourteenth Amendment...12 United States Constitution, Sixth Amendment... 9, 15, 16 v

7 Case = , 09/27/2012, ID = , DktEntry = 17, Page 7 of 28 Introduction In seeking to refute Mr. Alvarez s confrontation claim, Mr. Tracey makes no attempt to show that non-witness E.C. s accusations had the indicia of reliability or particularized guarantees of trustworthiness required to satisfy the confrontation standard that governed at the time of Mr. Alvarez s trial. In addition, Mr. Tracey fails to meaningfully distinguish this Court s closely on-point decision in Wilson v. Bowie, 408 F.2d 1105 (9th Cir. 1969), and he fails even to address the other caselaw that Mr. Alvarez cited, with respect to the question of whether E.C. was unavailable to testify at Mr. Alvarez s trial. Mr. Tracey thus fails to show that Mr. Alvarez is not entitled to relief on his confrontation claim. Moreover, in seeking to refute Mr. Alvarez s claim that he was improperly deprived of his right to a jury trial, Mr. Tracey overlooks the crucial fact that the Community failed to notify Mr. Alvarez that he had to make a request to invoke that right. For these and the further reasons set forth below, Mr. Tracey s Response Brief fails to refute Mr. Alvarez s showing that he is entitled to relief on both of these claims.

8 Case = , 09/27/2012, ID = , DktEntry = 17, Page 8 of 28 Argument I. Mr. Tracey fails to refute Mr. Alvarez s demonstration that he is entitled to relief for the Community s violation of his confrontation right. A. Mr. Tracey fails to overcome Mr. Alvarez s showing that the Community violated his confrontation right by using alleged victim E.C. s out-of-court accusations to convict him. In his Opening Brief, Mr. Alvarez demonstrated that the Community violated his right to be confronted with the witnesses against him (25 U.S.C. 1302(6) (Westlaw, USCA03 database)) when it used non-witness E.C. s out-ofcourt accusations to convict him. 1 (Footnotes in this brief contain only citations to the briefs and Excerpts of Record.) Pursuant to the then-governing standard set forth in Ohio v. Roberts, 448 U.S. 56 (1980), overruled by Crawford v. Washington, 541 U.S. 36 (2004), the Community s use of these out-of-court statements was improper unless E.C. was unavailable to testify in person and the statements bore adequate indicia of reliability or had particularized guarantees of trustworthiness. Id. at 66. Mr. Tracey proffers a number of arguments in opposition to this claim, but none has merit. 1 Op. Br. at

9 Case = , 09/27/2012, ID = , DktEntry = 17, Page 9 of 28 Mr. Tracey first argues that the Community did not violate Mr. Alvarez s confrontation right because E.C. was unavailable to testify. 2 This argument suffers from two independently-fatal flaws. First, even if Mr. Tracey could show that E.C. was unavailable, the admission of her out-of-court accusations would not have been permissible under Ohio v. Roberts unless these accusations also bore adequate indicia of reliability or had particularized guarantees of trustworthiness. Roberts, 448 U.S. at 66. Mr. Alvarez showed in his Opening Brief that E.C. s accusations satisfied neither of these criteria, 3 and Mr. Tracey makes no effort to refute this showing. Because it is therefore undisputed that the Community s use of E.C. s accusations failed the second part of the Ohio v. Roberts test, Mr. Tracey s insistence that it passed the first part of that test is immaterial. Second, Mr. Tracey fails to show that E.C. was unavailable to testify at Mr. Alvarez s trial. Mr. Tracey posits that [r]elying on the legal mechanism that is typically used to secure the appearance of a witness is reasonable and a good faith effort to ensure that the witness testifies. 4 Because the Community s rules provide for the use of subpoenas to ensure a witness s appearance at trial, Mr. Tracey asserts, the Community s service of a subpoena on E.C. s residence 2 Resp. Br. at Op. Br. at Resp. Br. at 6. 3

10 Case = , 09/27/2012, ID = , DktEntry = 17, Page 10 of 28 necessarily establishes that it made a sufficient good-faith effort to secure her inperson testimony. 5 But as Mr. Tracey acknowledges, [g]ood faith and reasonableness are terms that demand fact-intensive, case-by-case analysis, not rigid rules (quoting Christian v. Rhode, 41 F.3d 461, 467 (9th Cir. 1994)). 6 Thus, contrary to Mr. Tracey s assertion, there is no rule providing that the prosecution s compliance with rules governing the issuance of subpoenas automatically establishes that it has made a good faith effort to secure the witness s presence at trial. Indeed, Mr. Alvarez in his Opening Brief cited five cases in which this Court and others held that the prosecution s compliance with rules providing for the use of subpoenas to secure a witness s testimony does not necessarily constitute an adequate good-faith effort to ensure that the witness testifies at trial: Wilson v. Bowie, 408 F.2d 1105 (9th Cir. 1969); United States v. Harbin, 112 F.3d 974 (8th Cir. 1997); State v. Armes, 607 S.W.2d 234 (Tenn. 1980); State v. Sharp, 327 S.W.3d 704 (Tenn. Crim. App. 2010); Looper v. State, 605 S.W.2d 490 (Ark. Ct. App. 1980). 7 Most notably, this Court held in Wilson v. Bowie that the prosecutor failed to establish the alleged victim s unavailability when his explanation for the victim s absence was: We attempted to subpoena [the victim], your Honor. He s 5 Id. 6 Id. 7 Op. Br. at

11 Case = , 09/27/2012, ID = , DktEntry = 17, Page 11 of 28 not in court this morning. Wilson, 408 F.2d at Mr. Tracey ignores all of these cases except Wilson, and his attempt to distinguish Wilson is unconvincing. Mr. Tracey posits that Wilson is unlike the instant case because in Wilson the prosecution merely attempted to subpoena the witness, whereas here E.C. was, in fact, subpoenaed. 8 But it is hardly plausible that the United States government s attempt[] to subpoena the alleged victim in Wilson was stymied by its inability to accomplish the straightforward task of having a subpoena issued and served. The only plausible meaning of the Wilson prosecutor s statement is that the prosecution obtained and served a subpoena, but the witness nevertheless failed to appear at trial which is precisely what occurred here. Mr. Tracey also seeks to distinguish Wilson on the ground that in that case the defendant told the judge that he wanted to have the witnesses present and to question them (quoting Wilson, 408 F.2d at 1107). 9 But Mr. Tracey takes this passage from Wilson out of context: The Wilson Court found this fact significant not because it showed that the defendant preserved his confrontation objection, as Mr. Tracey suggests, but rather because it showed that the defendant did not state that he did not want the transcript of the preliminary hearing read as a result of which the government could not show that the trial judge declined to consider the transcript in rendering his decision, and the error could not have been harmless. 8 Resp. Br. at 6. 9 Resp. Br. at 10. 5

12 Case = , 09/27/2012, ID = , DktEntry = 17, Page 12 of 28 Wilson, 408 F.2d at Mr. Tracey s attempts to distinguish Wilson are thus unavailing. In any case, Mr. Tracey makes no attempt to distinguish Harbin, Armes, Sharp, and Looper all of which confirm that serving a single subpoena is insufficient to show unavailability. Mr. Tracey thus fails to refute Mr. Alvarez s showing that the Community violated his confrontation right by using E.C. s out-of-court accusations to convict him. B. Mr. Tracey fails to show that the Community s violation of Mr. Alvarez s confrontation right was harmless. Mr. Tracey next asserts that the Community s violation of Mr. Alvarez s confrontation right was harmless because Mr. Alvarez admitted the truth of the out-of-court statements from [E.C.]. 10 This assertion is both irrelevant and mistaken. Mr. Tracey s assertion is irrelevant because, as Mr. Alvarez demonstrated in his Opening Brief, the applicable harmlessness standard calls for reversal when the prosecution fails to show that the judge did not refer to the unlawfullyintroduced evidence. Wilson, 408 F.2d at Even if Mr. Tracey s assertion that Mr. Alvarez s comments could be deemed an admission of E.C. s 10 Resp. Br. at Op. Br. at

13 Case = , 09/27/2012, ID = , DktEntry = 17, Page 13 of 28 allegations were correct, these comments would not demonstrate that the trial judge did not refer to Officer Benally s testimony in arriving at the judgment. Mr. Tracey s assertion is mistaken because, as Mr. Alvarez showed in his Opening Brief, it suffers from two fatal flaws: First, Mr. Alvarez admitted only that E.C. made certain allegations to Officer Benally, not that those allegations were accurate. 12 Second, but for the unlawful introduction of E.C. s out-of-court accusations through Officer Benally, Mr. Alvarez s statement that everything that he says it be true would not even under Mr. Tracey s interpretation have amounted to an acknowledgment of guilt with respect to Mr. Alvarez s alleged offenses against E.C. 13 Mr. Tracey ignores the second of these points, and his effort to address the first is not compelling. Mr. Tracey asserts that Officer Benally testified to matters beyond allegations 14 but because Officer Benally arrived on the scene after the incident was over and witnessed only the alleged victims allegations, this assertion is plainly incorrect. In a footnote, Mr. Tracey suggests that this Court should decline to consider whether the introduction of E.C. s out-of-court statements through the testimony of her brother J.C. (as opposed to Officer Benally) violated Mr. Alvarez s 12 Id. at Id. at Resp. Br. at 9. 7

14 Case = , 09/27/2012, ID = , DktEntry = 17, Page 14 of 28 confrontation right, because Mr. Alvarez raises that violation for the first time on appeal. 15 Because this argument is confined to a cursory footnote, the Court should decline to address it. See United States v. Kortgaard, 425 F.3d 602, 610 (9th Cir. 2005) (government waived waiver argument by failing to properly preserve it); United States v. Alameda Gateway Ltd., 213 F.3d 1161, (9th Cir. 2000) (declining to consider argument confined to cursory footnote). The argument is meritless in any case, because it is well-established that [o]nce a federal claim is properly presented, a party can make any argument in support of that claim; parties are not limited to the precise arguments they made below. Yee v. Escondido, 503 U.S. 519, 534 (1992). In short, Mr. Tracey fails to refute Mr. Alvarez s showing that he is entitled to relief for the Community s violation of his confrontation right. 15 Resp. Br. at 10 n.18. 8

15 Case = , 09/27/2012, ID = , DktEntry = 17, Page 15 of 28 II. Mr. Tracey fails to refute Mr. Alvarez s showing that the Community court failed to take adequate measures to ensure that he understood, and made a knowing and voluntary decision to waive, his right to a jury trial. A. Mr. Tracey s reliance on state court misdemeanor cases is unavailing. (1) The Community court failed to satisfy even the standard set forth in these cases, because it failed to notify Mr. Alvarez that he had to make a request to exercise his right to a jury trial. It is undisputed that all that the Community did to advise Mr. Alvarez of his right to a jury trial was to inform him during an en masse advisement of rights that he had a right to a jury trial without specifying that the right was available only upon request and then to ask him whether he had questions about his rights when his individual arraignment began. 16 Mr. Tracey s efforts to show that Mr. Alvarez s failure to invoke his jury right under these circumstances can be deemed an effective waiver of the right are unconvincing. Mr. Tracey argues that, because of the differences between the Indian Civil Rights Act s right to counsel and the Sixth Amendment version, the obligation of the trial court was limited to informing [Mr.] Alvarez of the right. 17 But even if this proposition were correct, it would not advance Mr. Tracey s case, because the Community did not inform[] [Mr.] Alvarez of the right. The Community s 16 Op. Br. at Resp. Br. at 12. 9

16 Case = , 09/27/2012, ID = , DktEntry = 17, Page 16 of 28 notice to Mr. Alvarez stated only: You have the right to a jury trial. 18 The notice failed to inform Mr. Alvarez of the crucial fact that what he actually had was the right to a jury trial upon request. 25 U.S.C. 1302(10) (Westlaw, USCA03 database) (emphasis added). As Mr. Tracey acknowledges, this qualification is essential to the nature of the jury right protected by the Indian Civil Rights Act, 19 and it is self-evident that a defendant particularly a young defendant with limited education and little understanding of court proceedings 20 cannot be expected to intuit that he must request a jury trial in order to exercise this right. Indeed, the very cases that Mr. Tracey cites in seeking to analogize the Indian Civil Rights Act s jury right to the jury right provided to misdemeanor defendants in state courts illustrate the importance of notifying the defendant of his need to make a timely request in order to secure a jury trial. In finding that the defendants had effectively waived their jury right by failing to make a timely request, these courts stressed that the trial courts had expressly informed the defendants of the need to make such a request. State v. Vernon, 356 N.W.2d 887, 889 (Neb. 1984) (stressing that the trial judge had specifically advised the defendant of the necessity for a demand for a jury trial within 10 days after arraignment ); Jackson v. State, 644 N.E.2d 595, 596 (Ind. Ct. App. 1994) (noting 18 ER Vol. III at Resp. Br. at ER Vol. II at 109:23-25, 111:1-8, 151:25-152:1. 10

17 Case = , 09/27/2012, ID = , DktEntry = 17, Page 17 of 28 that defendant at his initial hearing had signed a form advising him: If you do not request a jury trial at least ten (10) days prior to your trial setting, you waive you [sic] right to a trial by jury. ); State v. Farmer, 548 S.W.2d 202, 205 (Mo. Ct. App. 1977) (noting that defendant had been contacted by the clerk a week before the trial and had been asked if he wanted a jury trial ). The Supreme Judicial Court of Maine s decision in State v. Gordon, 766 A.2d 75 (Me. 2001), is the exception but it is an exception that emphatically proves the rule: Although it concluded that the defendant had waived his jury right by failing to make a timely request, the Gordon court based this conclusion on the fact that the defendant was represented by an attorney who clearly had knowledge of the time frame within which to make a jury trial demand. Id. at 77. Moreover, contrary to Mr. Tracey s assertion that these cases show that defendants need not make a voluntary and intelligent waiver of a non-constitutional jury right in order to waive it, the Gordon court stressed that [a] waiver of a right to a trial by jury is binding only if it is made voluntarily and intelligently, adding: We have said that at arraignment a court must drive home to [its] hearers the necessity of making a demand for a jury within 21 days and that a defendant s failure to make such a timely demand constitutes waiver. Id. (internal quotation marks omitted). In short, if this Court were to accept Mr. Tracey s assertion that the Indian Civil Rights Act s jury right is analogous to the jury rights at issue in Vernon, 11

18 Case = , 09/27/2012, ID = , DktEntry = 17, Page 18 of 28 Jackson, Farmer, and Gordon, it would be obliged to conclude that Mr. Alvarez is entitled to relief, because the Community court deprived Mr. Alvarez of something that those decisions recognize as crucial: notice of his need to make a timely request in order to exercise his right to a jury trial. (2) The Indian Civil Rights Act s jury right is not analogous to the jury right provided to state-court misdemeanor defendants. In any event, this Court should reject Mr. Tracey s attempt to analogize the Indian Civil Rights Act s jury right to the jury right provided to misdemeanor defendants in state court, because it fundamentally misconstrues the nature of the Indian Civil Rights Act in two respects. First, Mr. Tracey overlooks the fact that, unlike the state statutes at issue in Vernon, Jackson, Farmer, and Gordon, which apply to defendants who are protected by the incorporation of federal Bill of Rights protections against the states through the Fourteenth Amendment (Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833, 847 (1992)), the Indian Civil Rights Act was enacted to guarantee fundamental constitutional rights to a population of criminal defendants who otherwise would not have them at all. As the Supreme Court observed in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), a central purpose of the Act was to secur[e] for the American Indian the broad constitutional rights afforded to other Americans. Id. at 61 (quoting S. Rep. No. 12

19 Case = , 09/27/2012, ID = , DktEntry = 17, Page 19 of , at 5-6 (1967)). It is for this reason because the Act serves as a conduit to transmit federal constitutional protections to those individuals subject to tribal jurisdiction (Red Fox v. Red Fox, 564 F.2d 361, 364 (9th Cir. 1977)) that this Court held in Randall v. Yakima Nation Tribal Court, 841 F.2d 897 (9th Cir. 1988), that federal constitutional standards should generally be employed in determining whether a challenged procedure violated the Act. Id. at 900. Mr. Tracey asserts that this portion of Randall should be read in conjunction with the Court s prior decision in Howlett v. Salish and Kootenai Tribes, 529 F.2d 233 (9th Cir. 1976), wherein the Court held that federal constitutional standards should be applied to Indian Civil Rights Act rights where the tribal procedures in question are parallel to those commonly employed in Anglo-Saxon society. Id. at Mr. Tracey s point is reasonable, but does not advance his case: The record confirms that the Community s criminal trial procedures are parallel to those commonly employed in Anglo-Saxon society, and Mr. Tracey does not argue otherwise. Mr. Tracey s reliance on Howlett is thus unavailing. Second, Mr. Tracey s assertion that tribal courts are courts of limited jurisdiction in criminal matters, 22 and his implicit suggestion that this makes them resemble state misdemeanor courts, is misleading. To the extent that this statement is intended to suggest that the 2003 version of the Indian Civil Rights Act 21 Resp. Br. at Resp. Br. at

20 Case = , 09/27/2012, ID = , DktEntry = 17, Page 20 of 28 substantially limited tribal court sentencing authority in individual prosecutions, it is incorrect. Although the Act limited the sentence for any one offense to one year, this Court has held that the Act permitted tribal courts to stack consecutive one-year sentences for as many separately-charged offenses as it saw fit to include in any particular prosecution, even if all of the charges derived from a single incident. Miranda v. Anchondo, 684 F.3d 844, 852 (9th Cir. 2012), pet. for cert. filed (No ). In Mr. Alvarez s prosecution in case number CR , the tribal court took advantage of this stacking technique to impose a five year sentence in connection with a single incident. 23 Mr. Tracey s attempt to analogize tribal prosecutions to cases like Vernon, Jackson, Farmer, and Gordon, wherein the sentences (so far as can be determined from the opinions) ranged from seven days to six months (Vernon, 356 N.W.2d at 889; Farmer, 548 S.W.2d at 203), is thus unconvincing. In sum, Mr. Tracey s attempt to analogize the Indian Civil Rights Act s jury right to the jury right provided in state-court misdemeanor prosecutions is unavailing. 23 ER Vol. II at

21 Case = , 09/27/2012, ID = , DktEntry = 17, Page 21 of 28 B. Mr. Tracey s assertion that imposing Sixth Amendment-type waiver requirements in connection with the Indian Civil Rights Act s jury right would be unprecedented is mistaken. Mr. Tracey asserts that imposing waiver requirements in connection with the Indian Civil Rights Act s jury right that resemble those imposed in connection with the Sixth Amendment s jury right would be unprecedented. 24 This assertion is incorrect. In fact, tribal courts, which bear the initial responsibility for applying the Indian Civil Rights Act in tribal criminal prosecutions, have long held that Sixth Amendment waiver requirements should be applied to the Indian Civil Rights Act s jury right. In Laramie v. Colville Confederated Tribes, 22 Indian Law Reporter 6072 (Colville Confederated Tribes Court of Appeals 1995), for example, the Colville Confederated Tribal Court of Appeals incorporated Sixth Amendment waiver principles from United States Supreme Court caselaw in holding that a tribal code provision specifying that the right to a jury trial is waived if not confirmed at least ten days before trial could not be applied to criminal trials. Id. at 6074 (citing Seattle v. Williams, 680 P.2d 1051 (Wash. 1984) (citing Boykin v. Alabama, 395 U.S. 238 (1969))). The court acknowledged the tribe s claim of administrative burdens, but reasoned that the fundamental right of a criminal defendant to a trial by jury cannot be diluted because of administrative difficulties. Id. 24 Resp. Br. at 11,

22 Case = , 09/27/2012, ID = , DktEntry = 17, Page 22 of 28 Similarly, in Confederated Salish & Kootenai Tribes v. Peone, 16 Indian Law Reporter 6136 (Confederated Salish & Kootenai Court 1989), the Confederated Salish & Kootenai Tribes of the Flathead Reservation court held that a defendant s failure to make a timely invocation of his Indian Civil Rights Act right to a jury trial constitutes a valid waiver only when that failure to request a jury trial is made knowingly and intentionally. Id. at Finding that the defendant was apparently not informed of the need to request a jury trial in order to exercise that right, the court held that he had not waived his jury right. Id. (emphasis added). That these cases are not mere outliers is confirmed by the report of a law professor who conducted a comprehensive empirical study of all reported tribal court case law over a 13-year period. Mark D. Rosen, Multiple Authoritative Interpreters of Quasi-Constitutional Federal Law: Of Tribal Courts and the Indian Civil Rights Act, 69 Fordham L. Rev. 479, 485 (Nov. 2000). This professor reported that all tribal courts presented with the question have concluded that there must be a knowing and voluntary waiver of [the Indian Civil Rights Act s] conditional jury right. Id. at 555 (emphasis added). These tribal court decisions are entitled to respectful consideration by this Court, and they refute Mr. Tracey s assertion that applying Sixth Amendment-type waiver requirements to the Indian Civil Rights Act s jury right would be 16

23 Case = , 09/27/2012, ID = , DktEntry = 17, Page 23 of 28 unprecedented. 25 They also refute Mr. Tracey s suggestion that doing so would amount to an affront to tribal sovereignty, 26 because it is reasonable to assume that tribal courts have a thorough understanding of, and a sound regard for, tribal sovereignty. C. Mr. Tracey s reliance on the comments of a congressional witness who opposed Congress s extension of Bill of Rights protections to Indians is misplaced. Mr. Tracey s reliance on a portion of a 1965 congressional hearing is equally misguided. Mr. Tracey accurately notes that Washington, D.C. Indian law attorney Marvin J. Sonosky criticized the jury right set forth in an early version of the legislation. Constitutional Rights of the American Indian: Hearings Before the Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 89th Cong., 1st Sess. (1965) ( 1965 Hearing ) But Mr. Tracey omits several pertinent facts: Mr. Sonosky s recommendation to the subcommittee was that it should refrain from extending any Bill of Rights protections to tribal criminal defendants, and should instead direct the Secretary of the Interior to prepare a model code of justice that individual tribes could implement as they saw fit Hearing at Speaking on behalf of [his] tribal clients representatives of which were in the hearing room while he testified (id. at 135) Mr. Sonosky asserted 25 Resp. Br. at 11, Resp. Br. at Resp. Br. at

24 Case = , 09/27/2012, ID = , DktEntry = 17, Page 24 of 28 that any rights abuses by tribal governments had been the exception and were partly the fault of the federal government, and argued that tribes were too diverse to be governed by uniform standards. Id. at 130. Mr. Sonosky faced stiff questioning from the subcommittee (id. at ), and his recommendations were definitively rejected when Congress enacted the Indian Civil Rights Act into law three years later. Because [t]he fears and doubts of the opposition are no authoritative guide to the construction of legislation (Bryan v. United States, 524 U.S. 184, 196 (1998) (emphasis added; internal quotation marks omitted)), Mr. Tracey s reliance on Mr. Sonosky s assertions is misplaced. D. Mr. Tracey s assertion that tribal defendants should not be required to waive their jury right on the record is irrelevant. Finally, Mr. Tracey insists that requiring tribal defendants to waive their jury right on the record would unduly burden tribal courts. 28 Why he does so is unclear, because Mr. Alvarez has not suggested that jury waivers must be made on the record. 29 To the contrary, Mr. Alvarez acknowledges that for courts that do not maintain records of in-court proceedings, waivers (or the absence thereof) could be shown by alternative means, such as written filings, stipulations, affidavits, or testimony. Mr. Tracey s argument regarding the requirement of on the record waivers has no bearing upon this case, in which a record of the 28 Resp. Br. at 11-12, Op. Br. at

25 Case = , 09/27/2012, ID = , DktEntry = 17, Page 25 of 28 proceedings is available and its prospective significance is minimal, because recent amendments to the Indian Civil Rights Act require tribal courts to maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding in any criminal proceeding in which a tribal court imposes a sentence of imprisonment exceeding one year. 25 U.S.C. 1302(c)(5) (Westlaw 2012). In sum, Mr. Tracey fails to refute Mr. Alvarez s showing that the Community court failed to take adequate measures to ensure that Mr. Alvarez understood, and made a knowing and voluntary decision to waive, his right to a jury trial. Conclusion Mr. Alvarez was convicted following a bench trial at which the prosecution flagrantly violated his confrontation right, and the trial court failed to inform him that he had to make a request in order to invoke his right to a jury trial. The essential facts underlying these claims are undisputed, and Mr. Tracey s efforts to identify defects in Mr. Alvarez s entitlement to relief are unavailing. This Court 19

26 Case = , 09/27/2012, ID = , DktEntry = 17, Page 26 of 28 should therefore reverse the district court s denial of Mr. Alvarez s habeas corpus petition. Respectfully submitted on September 27, s/daniel L. Kaplan DANIEL L. KAPLAN Assistant Federal Public Defender KEITH J. HILZENDEGER Research and Writing Specialist 850 West Adams Street, Suite 201 Phoenix, Arizona (602)

27 Case = , 09/27/2012, ID = , DktEntry = 17, Page 27 of 28 CERTIFICATE OF COMPLIANCE WITH FRAP 32(a)(7)(B) I hereby certify that, pursuant to FRAP 32(a)(7)(B), the foregoing Defendant-Appellant s Reply Brief is proportionately spaced, has a typeface of 14 points, and contains 4,234 words. s/daniel L. Kaplan DANIEL L. KAPLAN Assistant Federal Public Defender Attorney for Petitioner-Appellant

28 Case = , 09/27/2012, ID = , DktEntry = 17, Page 28 of 28 CERTIFICATE OF FILING AND SERVICE I hereby certify that I caused the foregoing Defendant-Appellant s Reply Brief to be submitted to the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit on September 27, 2012, using the appellate CM/ECF system. I further certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system. s/daniel L. Kaplan DANIEL L. KAPLAN Assistant Federal Public Defender Attorney for Petitioner-Appellant