--- Am. Tribal Law ----, 2022 WL 3723270 (Swinomish Tribal Ct.)
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Swinomish Tribal Court.
 
Swinomish Indian Tribal Community, Plaintiff,
v.
JAMES EDWARDS, Defendant.
Case No: CRCO-2021-005O
|
Dated this 2nd-day of March, 2022.

 

Memorandum Opinion

Mark W. Pouley, Chief Judge Swinomish Tribal Court

This matter came before the court on Defendant’s Motion to Dismiss for Discovery Violations The matter was presented to the court for argument on February 10, 2022 and the court issued an oral ruling on that date Denying the Motion to Dismiss and Granting the Tribe’s request to continue the trial. The matter has since been disposed of, but the court finds that the issues presented, and the decision of the court should be published to establish clarification for future cases.

FACTS

The defendant was arrested on June 26, 2021 and was issued a citation for Domestic Violence Assault (Class C) and Malicious Mischief. Mr. Edwards was arraigned on July 7, 2021. The matter appeared regularly on the criminal court docket and the Court granted a few Defense requested continuances. On the September 15, 2021 pre-trial calendar Defendant requested a jury trial. Although Mr. Edwards was entitled to a trial on or before November 2, 2021, pursuant to the statutory trial deadline, the trial was set for November 8, 2021. The court found good cause to toll the statutory trial deadline given public health concerns related to Covid-19 and the Tribe’s inability to provide a safe and suitable location for a jury trial prior to that date.

On September 15, 2021 the Court issued an order striking the jury trial and excluding the resulting delay from the speedy trial requirements based on the continued public health concerns. At the December 15, 2021 pretrial hearing, a jury trial was set for March 1, 2022, again finding good cause to delay the trial for public health concerns.

According to Defendant’s Motion to dismiss, and the tribe did not dispute, the following conversations and exchange of discovery occurred during the pendency of this case. On July 6, 2021 counsel met to discuss discovery, and defense counsel informed the Tribe, based on past cases, that there appeared to be missing police reports. The prosecutor indicated that she contacted the police about reports and provided everything to the defense on an electronic thumb drive. At the pretrial hearing on September 15.2021, the Tribe informed the court that discovery was complete. Following the hearing on September 15.2021, the prosecutor sent an email to defense counsel, identifying all discovery provided. Defense counsel noted the packet contained only materials previously provided and did not contain any police narratives other than from Officer David Heenan. Defense counsel notified the prosecutor of a possible discrepancy in reports and the prosecutor confirmed the Tribe provided all discovery in the prosecutor’s possession. At the December 15, 2021 pretrial hearing the Tribe again indicated that all discovery was complete.

In preparation for the March 1, 2022 jury trial, Defense counsel contacted the Tribe indicating that the discovery provided lacked a “law incident table” that had been provided in previous cases and appeared to be a common police record that is helpful in determining the timing of events. Following the conversation, the prosecutor obtained an additional page of discovery from the police, including the “Main Radio Log Table.” The log was provided to the defense on January 27, 2022. Still preparing for trial, defense counsel determined since the discovery packet lacked police reports that had been provided in other cases, pretrial interviews of officer witness was necessary. During interviews conducted on February 1, 2022 Defense Counsel, and the prosecutor, learned that the two responding officers had each written police reports and filed them with the police department. On learning this information, the prosecutor immediately obtained the reports and provided them to the Defendant.

On February 4, 2022 Defendant brought a Motion to Dismiss for Discovery Violations. The tribe does not dispute the lapse in providing discovery, but argued that dismissal was an extreme remedy and instead requested a trial continuance.

The Court denied the motion to dismiss and set the matter for trial on March 28, 2022.

DECISION

The motion before the court is not directly related to an alleged violation of the Defendant’s right to a speedy trial. While the defendant properly objected to continuances based on the Covid-19 health concerns, that is not the issue before the court. While the first trial date was set six days past the statutory trial deadline, the court found good cause for the delay, and all subsequent continuances, including the March 28, 2022 trial date. While the possible prejudice to the Defendant setting the trial 119 days past the original speedy trial deadline is considered in deciding this motion, the request to dismiss is not directly related to an alleged speedy trial violation.

Instead, the question before the court is whether the case should be dismissed because of the Tribe’s violation of discovery obligations contained in STC 3-03.260. It is not disputed that the Tribe violated these obligations since police possession of the reports is imputed to the prosecutor pursuant to STC 3-03.260(C). The only question before the court is whether dismissal of the action is warranted and/or necessary.

The Court has dismissed cases in the past after finding extreme discovery violations. The facts in those cases are thankfully unique and distinguishable from the matter before the court. In SITC v. T.T., JVGO-2008-0036 (Dec 14, 2009) the Tribe failed to obtain and turn over a recording of a 911 call. In that matter, the alleged incident occurred on July 11, 2008, charges were filed November 14, 2008 and the defendant was arraigned June 3, 2009. At the arraignment, Defendant requested a copy of the 911 recording. Unfortunately, the parties learned these recordings are only preserved for 90 days. Given the timing of the filing of charges and the arraignment, the 911 recording was irretrievable. The court found there was no possible remedy for the destruction of evidence and that the 911 recording, under the circumstances of the case, may have contained relevant or even exculpatory evidence. The court concluded that dismissal of the charges was the only available remedy. In SITC v. Topqum, CRCO-2009-027 (Sept 16, 2009), a trial was set for September 22, 2009, but on August 24, 2009 Defense counsel learned that the prosecuting attorney may be a witness for the prosecution. When confronted with this possibility by the defense the prosecuting attorney refused to disclose this fact. The defense filed a motion to dismiss on September 1, 2001. Moments before the motion was to be heard, the Tribe filed an amended witness list, identifying the prosecutor as a possible witness. The court dismissed the charges based upon the gravity of the evidence withheld, the inexcusable delay in providing the information to the defense, and the prejudicial effect of the timing of the disclosure. The court found the totality of these facts warranted the extreme remedy of dismissal. In SITC v. Fornsby, CRCO-2009-0007 (Feb. 7, 2010), the Court dismissed the case for discovery violations after finding gross prosecutorial misconduct created inexcusable delays in handing over vital discovery even in the face of court orders to turn over materials as soon as possible. The court could find no reasonable basis for the Tribe’s actions except for malice and an attempt to gain a strategic advantage going into trial. The court noted the severe remedy of dismissal was warranted by the prosecutor’s misconduct since it placed the Defendant, and the court, in the position of depriving the Defendant of his right to a speedy trial if he was to have a meaningful opportunity to prepare his defense.

STC 3-03.300 provides the Court discretion to address discovery violations, stating “If at any time during the course of the proceedings it is brought to the attention of the Court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the Court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, dismiss the action or enter such other order as it deems just under the circumstances.” In the cases cited earlier, the Court always acknowledged that dismissal was an extreme and disfavored remedy for a discovery violation. Given the facts of the cases; irretrievably destroyed evidence, undisclosed incriminating statements made by the defendant to the prosecutor, and egregious delay in providing discovery requests and complying with a court order; the Court found the extreme remedy necessary and proper. Those facts are absent in this case.

As explained above, the delay in reaching trial was caused not by the parties, but by a unique worldwide health threat. While the prosecutor has imputed knowledge and possession of materials held by the Tribal Police, in this case the prosecutor did not have literal knowledge or possession of the discovery. Although the prosecutor was put on notice numerous times that there may be missing discovery, there is no indication withholding the police reports was willful or intentional, but likely the result of negligent record-keeping by the police department. The discovery materials were collected and turned over almost immediately upon the prosecutor’s learning of the undisclosed material. The defendant did not disclose any actual prejudice caused by the delay in disclosure that could not be remedied by a short continuance of the trial. Given the totality of circumstances, and that dismissal of the charges is an extreme and disfavored remedy, the court found granting a continuance was the proper remedy and “just under the circumstances.”

The court warns the Tribe that it should complete a thorough review of this matter and determine the cause of any failure to collect and provide all necessary discovery to the Defendant. Given this case as notice of possible procedural shortcomings, the court may not be able to find excusable neglect for a repeated occurance.

All Citations
--- Am. Tribal Law ----, 2022 WL 3723270