--- Am. Tribal Law ----, 2018 WL 8224946 (Swinomish Tribal Ct.)
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Swinomish Tribal Court.
MCCLEOD, Tyrone A., Defendant
Case No.: CRCO-2017-0111
DATED this December 18, 2018.


Order and Opinion on Motion for New Trial
Mark W. Pouley, Chief Judge Swinomish Tribal Court

THIS MATTER came on before the Court on the Defendant’s Motion for a New Trial. The court having considered the pleadings and argument of the parties enters the following Findings, Conclusions and Opinion.



This matter came to trial before a jury on November 15, 2018. The Defendant was charged with Assault A (DV) and the jury was instructed on the lesser included offense of Assault C (DV). Following trial, the jury found the Defendant “not guilty” of Assault A and “guilty” of Assault C.

Following closing arguments the court released the jury to the jury room for deliberations. The court sent all six selected jurors and the alternate juror to the jury room. The court gave no special instructions to alternate juror. No parties objected to the alternate juror joining the other jurors in deliberations and the issue was not discussed. Based on statements made at oral argument on this motion, it appears neither counsel nor the court realized the error until after the verdict was read. The court presumes and finds that the alternate juror participated in all deliberations and the final vote of the jury.

The motion for new trial followed sentencing of the Defendant based upon the failure of the court to exclude the alternate juror before deliberations of the jury.



The due process rights of a criminal Defendant in tribal court are not initially defined by :he United States or Washington state constitution. The tribe is bound by the Indian Civil Rights Act which mandates that no tribe shall deny a person “a trial by jury of not less than six persons.” 25 U.S.C. 1302(a)(10). The Swinomish Tribal Code 3-03-380(B)(l) directs that from the pool of potential jurors subpoenaed to court, “six (6) members shall be selected.” In addition, pursuant to STC 3-03-380(C) the court “may direct that not more than four” individuals may be impaneled to sit as alternate jurors. Alternate jurors “shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities, and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.” (Emphasis added).

In this case, six jurors were seated as well as a single alternate juror. The parties were given every opportunity to question and challenge all jurors and the alternate. The alternate juror was not discharged after the jury retired to consider its verdict. This was clearly in error and contrary to the mandate of STC 3-03-080(C). The question is whether this error necessitates granting the Defendant’s motion for a new trial. Because there was no instruction to the contrary, the court find that for all intents and purposes, the alternate juror became a seventh juror for deliberations and voting.

The tribe first argues this motion should be denied because the Defendant failed to raise a proper objection at the time of trial. While the court would generally require such a timely objection, it is not a fatal flaw here. Except for the very brief moment when the jury was being excused, to the time they entered the jury room, there was no time to object and prevent this error. If the objection was raised at any moment after the alternate entered the jury room, the arguments before the court today would be the same or similar. The facts may alter, but the analysis and motion would be the same. The rights of the Defendant and the preservation of proper court procedure are most important and the court will hear the motion despite Defendant’s failure to object at the time the error occurred. While the Swinomish Tribal Court has not adopted a “plain error” standard of review in such a case, such review can be appropriate to preserve the integrity of the court and the rights of criminal defendants.

STC 3-03-380(C) is almost identical to Federal Rule of Criminal Procedure 24(C) prior to the rule’s amendment in 1999. That rule read “The court may direct that not more than 6 jurors in addition to the regular jury be called and impaneled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties ... an alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict.” (Emphasis supplied). It was this version of FRCP 24(C) that the U.S. Supreme Court reviewed on facts very similar to those before this court in U.S. v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

In Olano alternate jurors were not discharged as directed by rule 24(c), but the Supreme Court rejected a presumption of prejudice, instead holding “The presence of alternate jurors during jury deliberations in not the kind of error that ‘affects substantial rights’ independent of its prejudicial impact. Nor have respondents made a specific showing of prejudice. Finally, we see no reason to presume prejudice here.” Olano at 737, 113 S.Ct. 1770. The Court specifically held that failing to discharge the alternate jurors in violation of court rule does not contravene the principle that the deliberations of the jury shall remain private and secret, failing a showing of harm from improper influence.

The Defendant argues the presumed participation of the alternate as a seventh juror is sufficient to conclude that his right to a jury trial was substantially affected. It is hard to know what prejudice the Defendant asserts in this case. Here the seven jurors found him not guilty of the more serious crime of Assault A. In his argument to impose limitations of double jeopardy, the Defendant would accept the benefit of this verdict and invalidate only the guilty verdict on the lesser charge. The court finds, however, there is substantial evidence in the record to support the jury’s finding of guilt on the charge of Assault Class C. The split verdict, as well as the unanimous verdict, demonstrates that the jurors deliberated freely, were able to review and understand the evidence and the law and come to a conclusion they believed was supported by the evidence.

The Defendant’s motion relies on the Washington Supreme Court case of Washington v. Cuzick, 85 Wash.2d 146, 530 P.2d 288 (1975), arguing the inclusion of the alternate juror during deliberations and voting is presumptively prejudicial and requires granting a new trial. The Cuzick case is distinguishable on several important grounds. First, the facts in Cuzick implicated rights provided to the Defendant by the Washington State Constitution. Article 1, section 21 of the Washington constitution preserves the right to a jury trial and gives the legislature authority to establish a jury of less than twelve, but there is no authority for use of a jury of thirteen. In Cuzick, if the alternate were considered a thirteenth juror, the Defendant’s constitutional rights would be unpaired. The Indian Civil Rights Act and Swinomish code on the other hand, require only a minimum jury of six with no maximum stated. Because of this key difference, the court concludes that a jury of seven is not a violation of the Defendant’s civil rights.

In Cuzick the alternate juror was instructed NOT to participate in the deliberations or voting. The court found the alternate was essentially only an observer of the secret jury proceedings and the Court found that to be presumptively prejudicial. The fact the alternate could observe the panel without expressing an opinion or voting “could not have gone unnoticed by the 12 formally empaneled jurors and may well have affected their willingness to speak and act freely.” Cuzick at 149, 530 P.2d 288. The Cuzick court, and others that have discussed this issue, argue that the presence of an observer that has no stake in the outcome and doesn’t express or defend a position, can have a chilling effect on the free discussion of the jurors.

In the case before the court the alternate juror was not instructed to withhold participation. In fact, since there was no limiting instruction given, the court presumes that the alternate juror frilly participated in the deliberations and voting of the full jury. The issues of secrecy and chilling of discussion raised by the Washington court in Cuzick does not apply in this case. Acting as a seventh juror, the alternate, and all jurors, had the same stake in the deliberations and voting and it is impossible to presume that the presence and participation of the alternate had any prejudicial impact more than the presence of any of the other jurors. In fact, the facts support the conclusion there was no undue influence by anyone in that the jury was able to distinguish the facts and law well enough to arrive at a split verdict and convict the Defendant only of the lesser charge that was supported by substantial evidence.

If the Defendant held an inviolate right to a jury of no more than six persons his claims for a new trial may be persuasive under the authorities cited. That simply is not the case under the Indian Civil Rights Act, the Swinomish Constitution or the Swinomish Code. Here, the court clearly erred failing to discharge the alternate juror consistent with tribal code, but doing so, without any showing of prejudice to the Defendant, is not a basis to grant a new trial.

All Citations
--- Am. Tribal Law ----, 2018 WL 8224946