Habitual Offender Status Can’t Rely on Tribe Cases

     (CN) – Michael Bryant Jr. has had problems with beating up girlfriends in his recent past, court records show. Twice, a tribal court convicted him of domestic violence and he spent time in prison as a result.
     But Bryant did not have legal representation in either tribal case – completely legal under sovereign tribal law, but blatantly unconstitutional in U.S. courts. So when federal prosecutors indicted Bryant on two counts of domestic assault with habitual offender enhancements for assaulting two different live-in girlfriends, the man demanded the charges be dismissed.
     Bryant pointed out the using his tribal court convictions to prove his habitual offender status violated both his Fifth and Sixth Amendment rights, since he was not appointed counsel in those proceedings. The government admitted that Bryant’s tribal court convictions would have been unconstitutional if obtained in a federal or state court, but the trial court denied Bryant’s request in an oral ruling.
     On appeal, Bryant again argued that using the tribal court convictions violated his due process and representation rights. Muddying the issue, according to a panel for the 9th Circuit, is that the tribal court convictions themselves are not unconstitutional since Native Americans are not afforded a constitutional right to representation.
     Then there’s the fact the U.S. Supreme Court has not always ruled consistently on the issue of using un-counseled convictions in subsequent proceedings – and it has never addressed whether a tribal court conviction that violates U.S. standards can be used in subsequent proceedings.
     But the 9th Circuit has ruled on the question. Twice, in fact, according to Circuit Judge Richard Paez. And in both cases, the court held that unrepresented tribal court convictions cannot be used by state and federal courts later.
     Paez noted that both the 8th and the 10th districts have ruled otherwise in recent years, but points to the “continued vitality” of his court’s earlier decisions.
     But is in a concurring opinion Circuit Judge Paul Watford says that the Supreme Court has chipped away at the reasoning in the first case – 1989’s U.S. v. Ant.
     “It’s true that Michael Bryant’s prior domestic abuse convictions would have been obtained in violation of the Sixth Amendment had he been tried in state or federal court, since he lacked appointed counsel and appears to have received a term of imprisonment following those convictions,” Watford wrote. “But the fact remains that his prior convictions were not obtained in violation of the Sixth Amendment because they occurred in tribal court, where the Sixth Amendment doesn’t apply. It seems odd to say that a conviction untainted by a violation of the Sixth Amendment triggers a violation of that same amendment when it’s used in a subsequent case where the defendant’s right to appointed counsel is fully respected. As the Tenth Circuit stated, ‘Use of tribal convictions in a subsequent prosecution cannot violate anew the Sixth Amendment, because the Sixth Amendment was never violated in the first instance.’ The contrary rule we adopted in Ant would make sense if uncounseled convictions were deemed insufficiently reliable to warrant giving them any weight in subsequent criminal proceedings. But, as I’ve noted, the Supreme Court undercuts the proposition that uncounseled convictions are categorically unreliable.”
     Watford said the “resulting asymmetry is striking,” and called on the Supreme Court to intervene. But he added that he felt comfortable in refusing to recognize the validity of Bryant’s tribal convictions “because of concerns over the reliability of those convictions.”

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