Uncounseled tribal court conviction can be predicate for federal crime

I will have something more extensive and coherent to say about Orlando and its aftermath at some point in the near future, as more details and information become available.  For now, there is nothing I can say that has not already been said by others.  In addition to being a terrible tragedy and horrific mass murder (clearly, a gross understatement), it appears that it may have combined hate, terrorism, political and religious extremism, mental instability, and firearms.  If ever there was a recipe for a mass killing, that would be it.

In different – but still relevant to this blog, and still serious – news, the Supreme Court today held that an uncounseled tribal court conviction can be used as a predicate crime in a federal criminal prosecution.  The opinion in United States v. Bryant is here.

It is a federal crime to commit domestic assault within Indian country, where the perpetrator has two or more domestic violence convictions in federal, state, or tribal court.  18 U.S.C. 117(a).  This law making habitual domestic violence in Indian country a felony-level offense also makes it punishable by up to 5 years in prison.

According to the Court’s opinion, Michael Bryant, of the Northern Cheyenne Tribe, has over 100 tribal court convictions, including misdemeanor domestic assault convictions.  In February 2011, Bryant punched and kicked his girlfriend after dragging her from her bed and pulling her hair.  He admitted to assaulting her five or six times.  In May 2011, living with another woman, Bryant choked the woman until she nearly lost consciousness.  He admitted to assaulting this same victim three other times.  The United States this time stepped in and prosecuted Bryant under section 117(a), using his prior domestic violence convictions in tribal court as the relevant predicates.  Bryant argued, however, that those convictions were obtained without the assistance of counsel, in violation of the Sixth Amendment, and that those convictions therefore could not be used as predicates in a criminal prosecution.

The Sixth Amendment requires appointment of counsel for all felony offenses and any misdemeanor offense in which imprisonment is actually imposed. See Gideon v. Wainwright; Argersinger v. Hamlin; Scott v. Illinois.  An uncounseled conviction in violation of the Sixth Amendment cannot be used for purposes of supporting guilt or enhancing punishment in a criminal case.  See Burgett v. Texas.  But that rule does not apply if the uncounseled conviction did not result in imprisonment.  See Nichols v. United States.

Clearly, Bryant received jail time for his prior convictions in tribal court.  But the Bill of Rights, including the right to counsel, does not apply in tribal court proceedings.  So despite his indigency and the fact that Bryant received short jail terms on many of his previous tribal court convictions – which would have entitled him to counsel in federal or state court – he was not entitled to a lawyer.  Nor was he entitled to a lawyer under the Indian Civil Rights Act, which grants counsel only where the sentence imposed is more than one year in prison.  The Court held today that this did not matter for purposes of applying section 117(a).  The previous convictions “did not violate the Sixth Amendment when obtained, and they retain their validity when invoked in a 117(a) prosecution.  That proceeding generates no Sixth Amendment defect where none previously existed.”  Under Nichols, then, an uncounseled conviction that is valid when entered is eligible for use in a subsequent criminal proceeding to establish guilt or enhance a sentence.

Justice Thomas’s concurrence, in which he questions the Court’s existing cases on tribal sovereignty and the scope of Congress’s authority over the Indian Tribes, is also well worth reading.



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