Kozinski dissent: 'Tribunal run by marsupials' would have been fairer to tribal defendant
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Federal appeals judge Alex Kozinski has come out swinging in a dissent siding with a domestic-violence defendant convicted in a tribal court that did not inform him about the need to affirmatively request a jury trial.
Kozinski wrote that the defendant, who did not have a lawyer at trial, would “have had a fairer shake in a tribunal run by marsupials,” the Southern District of Florida Blog reports. Nor did Kozinski hold back in criticizing the majority for denying a habeas petition by the defendant, Fortino Alvarez.
“I have read the opinion many times and disagree with pretty much everything in it, including the numerals and punctuation,” Kozinski wrote. The opinion, issued last week by the San Francisco-based 9th U.S. Circuit Court of Appeals, is here (PDF).
The 9th Circuit majority declined to exercise jurisdiction because Alvarez had failed to raise claims in a direct appeal with tribal courts. The majority noted that the tribe failed to raise the exhaustion defense, but said the appeals court still had the authority to consider it. “The parties’ defaults were not created equal,” the majority wrote. Requiring exhaustion of tribal remedies fosters mutual respect between sovereigns, the majority said, and promotes tribal self-government through development of the tribal court system.
Indian tribes are not bound by the U.S. Constitution in their exercise of judicial powers, the majority said, and defendants in tribal proceedings don’t have the same protections as they would in federal proceedings. Though the Indian Civil Rights Act grants many rights to tribe members, “some of what we would consider our most basic rights are noticeably absent,” the court said, referring to a previous case involving the Sixth Amendment right to counsel.
Kozinski criticized the majority for ruling against Alvarez because of his procedural failing while forgiving the tribe’s failure to raise the defense.
“This is only the latest indignity inflicted on a criminal defendant,” Kozinski wrote, “who, despite having a seventh-grade education, was forced to defend himself at trial; although having the right to a jury, was never told that he had to ask for one; and who was therefore convicted and sentenced to eight years in prison in a bench trial where neither the prosecution nor the judge lifted a finger to bring the accusing witness into court. He’d have had a fairer shake in a tribunal run by marsupials.”
Kozinski said he didn’t attribute ill will or improper motive to his colleagues, but he has a basic question. “How can a court committed to justice, as our court surely is, reach a result in which the litigant who can afford a lawyer is forgiven its multiple defaults while the poor, uneducated, un-counseled petitioner has his feet held to the fire?” Kozinski asked.
“The majority effectively holds that a defendant’s right to federal habeas review under ICRA is always and entirely supervenient on his compliance with tribal procedure, no matter how fundamentally unfair that procedure may be,” Kozinski said. “It’s particularly inequitable to treat tribal prisoners so much worse than their state counterparts in light of the fact that there is no right to counsel in tribal courts.”
