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--- Am. Tribal Law ----, 2018 WL 6240913 (Colville C.A.), 7 CTCR 23
Colville Tribal Court of Appeals.
Mariah Gallaher, Appellant,
v.
Colville Confederated Tribes, Appellee.
Case No. AP18-005
|
Decided November 9, 2018
Trial Court Case No. CR-2017-40039

Attorneys and Law Firms
J. Manon, Attorney, for the Appellant.
W. Meyring, Office of Prosecuting Attorney, for the Appellee.
Before Chief Justice Anita Dupris, Justice David C. Bonga, and Justice Michael Taylor

FACTS
Taylor, J.

Appellant was charged and went to trial on three counts of prohibited acts – one count of possession of methamphetamine and two counts of possession of drug paraphernalia. The charges were the result of two separate incidents which Appellant’s location and person were searched.

The Colville Tribal Office of Public Defense was appointed to represent the Appellant. Appellant was tried by a jury and convicted on all three counts. Prior to trial Appellant, for various reasons, was incarcerated for a total of eighty days. Appellant was sentenced to jail for the time already served and a year probation with one year of jail time suspended on compliance with probation conditions set by the Court.

Prior to trial, defense counsel filed a petition for a writ of Habeas Corpus and an interlocutory appeal and motions attempting, on several grounds, to obtain dismissal of all the charges against Appellant. The Court denied all the motions and the Appeal was dismissed by agreement. Shortly before sentencing, the prosecution informed the Court that prior to trial the public defender representing Appellant had been employed as an associate judge of the Colville Tribal Court. During a term as associate judge, defense counsel presided over Appellant’s case, reviewing the complaint and issuing a summons. After being informed of this circumstance, the Trial Court made no inquiry into the effect of a conflict, granted the Prosecution motion to disqualify defense, and submitted the sentencing order to defense counsel for signature.

Shortly thereafter new counsel was appointed for Appellant who filed this Appeal presenting the following grounds for reversing the convictions and/or requesting a new trial.
1. The Trial Court erred by failing to grant Appellant’s motion for judgment of acquittal (or directed verdict) challenging the definition of the items seized from on or near Appellant as drug paraphernalia and holding that the methamphetamine found in the home in which Appellant was found as a guest was in her actual or constructive possession.
2. The appointed defense counsel was ineffective and Appellant was prejudiced.
3. Appellant was denied her right to be represented by conflict free defense counsel under the Colville Civil Rights Act, CTC § 1-5 and the Indian Civil Rights Act § 25 U.S.C. 1302 because defense counsel acted in this case as both trial judge and defense counsel without the informed consent of Appellant in violation of Washington Rules of Professional Conduct 1.12.

STANDARD OF REVIEW

Application of the Rules of Professional Conduct is a question of law. Questions of law are reviewed de novo. CCT v. Naff, 2 CTCR 08, 2 CCAR 50 (1995).

HOLDING

We find that the argument regarding conflicted counsel presented by Appellant has merit and is sufficient for us to reverse the conviction of Appellant and return this matter to the Trial Court for a new trial. In doing so we are well apprised of the reluctance of this Court to interfere with the deliberations of a jury. However, in circumstances like this one where the law and the rights of a defendant have not been properly protected, we find it necessary to do so.

Conflicted Defense Counsel

It is uncontested that defense counsel in this case acted both as the trial judge and defense counsel. The issue is whether the circumstances in this case require reversal of the convictions, or allow them to stand. We recite a list of potential reasons for each direction.
1. Circumstances Allowing the Convictions to Stand
a. It is argued that the Colville Tribes has no rule prohibiting the trial judge in a criminal case from becoming a defense counsel in the same case.
b. It is argued that defense counsel in this case acted diligently to provide a defense to Appellant.
c. It is argued that evidence of an actual conflict must be provided.
d. It is argued that Appellant cannot provide evidence of prejudice to her by the judge/counsel circumstance.
2. Circumstances Requiring Reversal of the Convictions
a. It is argued that Washington and all neighboring states have Rules of Professional Conduct (RPC) that specifically prohibit the judge/counsel in the same case arrangement1.
b. It is argued that where the Tribes have no law on an issue, state law can be looked to for resolution of the issue.
c. It is argued that the Colville Tribal Civil Rights Act provides for the right to counsel at the expense of a defendant – as does the Indian Civil Rights Act. Both are applied to actions in the Colville courts. Stoneroad-Wolf v. CCT, 4 CTCR 32, 8 CCAR 83 (2006). This right to counsel requires an unconflicted counsel and tribal case law has interpreted due process protections consistent with state/federal interpretations. Davisson v. CCT, 6 CTCCR 04, 11 CCAR 13 (2012).
d. It is argued that the judge/counsel circumstance is construed as an actual conflict and prejudice is presumed and does not have to be proved.

The circumstance that occurred in this case, with the trial judge moving from the bench to the defense counsel chair in the same case, is considered so odious to the concept of fairness and due process of law, to which every criminal defendant is entitled; that every state supreme court is our region has adopted a stringent rule against it. Criminal defendants in the Colville courts are entitled to protections of their rights to fairness, equal protection, and due process as strong, if not stronger, than in the state and federal systems. Davis v. CCT, 6 CTCR 04, 11 CCAR 13 (2012).

Even the appearance of bias or unfairness is reason to return a decision to the Trial Court for rehearing. Mueri v. Carden, 6 CTCR 17, 11 CCAR 75 (2014).

The presumptively prejudicial standard in this circumstance requires us to return this matter to the Trial Court for proceedings consistent with this opinion2

Under most circumstances allegations of conflicted or ineffective counsel require criminal appellants to show actual prejudice in order to obtain relief from an appellant panel. State v. Johnson, 143 Wn. App. 2, 177 P.3rd 1127 (Wn. App. 2007). Thus, for example, where trial counsel fails to object to admission of evidence or a specific jury instruction there is a presumption that the omission is a trial tactic and does not show prejudice or incompetence. Prejudice, however, can be shown where trial counsel failed to provide a jury instruction to which a defendant is clearly entitled. The Supreme Court of Washington has followed the Supreme Court of the United States in holding that only where an actual conflict exists for defense counsel will conflict or prejudice be presumed and a new trial with unconflicted counsel be required. In Re Davis, 152 Wash.2d 647, 673-674, 101 P.3d 1 (2004); State v. Johnson, 143 Wn. App. 1 (2007); State v. Dhaliwal, 113 Wash. App. 226, 53 P.3d 65 (2002).

Here, in the preliminary stages of this case, the individual who became defense counsel was a full time, associate trial judge for the Colville Tribal Court. In that judicial capacity the defense counsel was assigned and managed this case. Defense counsel in this case is an active member of the bar of Washington State and, therefore, bound by the Rules of Professional Conduct for the Washington Bar, including RPC 1.12, which specifically prohibits any bar member, and any members of the law firm or legal association of which they are a member, from acting to represent any criminal defendant whose case that bar member dealt with in any judicial capacity.

Under these particular circumstances we find that an actual conflict existed and conflicted counsel and prejudice to Appellant are to be presumed. The Appellant’s right to unconflicted counsel under the Tribal and federal civil rights acts were compromised in this case.The Colville judiciary has never adopted rules of professional conduct for spokespersons (a/k/a legal ethics), however, the Colville Tribal Code at CTC § 1-2-11 allows this Court to look to state common law when there exists a circumstance where tribal law is lacking regarding a subject this Court is obligated to determine. We have set out in this Opinion rules of professional conduct for state bar members which have been adopted by the Supreme Courts of more than forty-eight states. In each instance those rules strictly prohibit a bar member, and his or her associates in a law firm or legal organization, from representing a defendant when the counsel has dealt with the defendant’s case as a judge or judicial officer.

Moreover, the Washington State Bar and the Washington State Supreme Court have both interpreted the RPC’s of Washington State to apply to the activities of Washington bar members when the activities take place in the tribal courts. We return this matter to the Colville Tribal Trial Court for proceedings consistent with this opinion.

All Citations
--- Am. Tribal Law ----, 2018 WL 6240913, 7 CTCR 23

Footnotes
1	See: Wash. RPC 1.12; Idaho RPC 1.12; Ore. RPC 1.12; California until recently had no rule against the judge/counsel arrangement. However, California Supreme Court recently adopted a prohibition. Cal. RPC 1.12.
2	Rule 1.12, prohibiting counsel from representing a client in a case wherein counsel, while acting as a judge or other judicial officer has presided over that very same case, is a part of the Model of Rules of Professional Conduct (2016), published by the American bar Association. These rules have been adopted by the Supreme Courts of forty-eight states, Puerto Rico, the District of Columbia, Guam, the Northern Mariana Islands, and the Virgin Islands.