COMMENTARY: Order in the Court

by May 7, 2022OPINIONS0 comments



One Feather Editor


Silence can be deceptive. If you are sitting in a courtroom, like I was last week, you can get the feeling that justice is delivered at a snail’s pace. The gallery is only engaged in the activities of the court by selection. In other words, there were a lot of small meetings going on with court officers during the session that do not go on record and are not typically heard by the general public who might be in the gallery as spectators. So, other than muffled whispers, there was a long stretch of time where you heard nothing much.

Adding to the sense of inactivity was a huge clock on the courtroom wall in which the battery had died. The clock is frozen at 8:47 and hours passed while the clock sat idle. This added to the sense that it was taking a lot of time to process cases.

The atmosphere in the gallery was very casual. It seemed very much like a very routine day for both the court officers and those in attendance who had business with the court, and even though those who were summoned there to do that business might be facing loss of possessions or loss of freedom. I sat next to a group of four young men, presumedly facing various charges. They were in the back of the courtroom, whispering and laughing together. They didn’t seem to be concerned about their fates. In fact, this seemed like something that they were familiar with, something that didn’t cause them any concern at all.

There isn’t a sense of urgency or intensity in the room, from those serving justice nor those facing it. I would expect the court officers, prosecutors, and defense lawyers to be cool and calm. After all, they are doing this day in and day out as part of their jobs and service to the community. But, I know that I would be sitting on pins and needles if I was being called to account for an offense that might mean that I would be jailed, or a financial hardship might be placed on me or my family. For the most part, I didn’t see that in defendants in the room that day, not even from the ones that they brought down from the jail in shackles.

In that regard, I watched certain of the young people, particularly the young men moving around the gallery, and noted the way they walked. It was very specific. They would hold their hands to the inside of their thighs, shoulders tucked in, head bowed, walking with a shuffle, not really picking up their feet. It was a curiosity to me until they brought those prisoners in from the jail (most folks in jail are there waiting for some part of the criminal process to take place). When someone is jailed, they are typically not convicted of anything. They are suspected of something. So, while they are in jail, they will need to attend different hearings in front of a judge – arraignments, bonds, appointment of defense counsel, and other processes of the court in their case.

So, there was a procession of five people brought down from the jail to the courtroom. As mentioned before, all were in shackles. And that is when it dawned on me. The folks they brought down were chained at their feet and their hands were cuffed to their sides with a chain around their waist. As they walked in, they had that same hunched forward, hands at the inner thighs, barely lifting of the feet shuffle that I had seen in the young men moving around the gallery earlier. It was an eerie, awkward moment of confirmation that at least some in the gallery had been through this before, maybe many times before.

If you have ever watched Perry Mason, Matlock, Law and Order, or any number of court-based television shows, you will routinely see lawyers “approach the bench”. Now in the magical world of television, you get to be an eavesdropper on the discussions of the judge, prosecutor, and defense attorney when they are called to the bench. The microphones left on, and you are allowed a front row seat to what is being decided in the huddle. In reality, and in the Cherokee Court that day, you were not welcome to hear the discussions between the judge and the lawyers at the bench. The microphones were muted, and the view included the face of the judge and back of the heads of both lawyers as they deliberated issues that would determine the fate of the defendant, sometimes procedural issues that would determine how the case would proceed.

So much of what happens is not open to public scrutiny. The Court proceedings of those days I attended had a cast of a judge, a clerk, a couple of detention officers or bailiffs, two prosecutors with only one addressing each case, a string of defense attorneys with only one addressing each case, and a defendant. All the engagement happened between those players and there was very little, if any, interaction with anyone else during the sessions that I attended.

There seemed to be a sense of community among those facing adjudication. In one case of a stolen vehicle, the defendant had returned the vehicle to the owner, and the owner had communicated to the Court, through the prosecutor, that they did not want any kind of restitution for the theft. It sounded like the defendant may have taken the vehicle from a friend or acquaintance. It sounded like an “unauthorized borrowing”. Then again, that is kind of the definition of theft. But that is me opining and not necessarily “facts in evidence” as they say on Law and Order.

It is hard to tell whether it came from resignation or arrogance, but many of the defendants facing the judge had a defiant, possibly smug, appearance, from the way they spoke, to the way they held their bodies as they approached the railing or podium to have their situation reviewed and to be given instruction. I guess, for some, an appearance of bravado may be all that they are able to cling to as they face dire consequences.

Recently, the Tribal Council permitted the addition of a public defender to provide more funding to assist the Court in providing representation for those who are facing judgement who cannot afford legal counsel. Currently, there are several defense lawyers working in the Cherokee Court. All of them are potentially at the disposal of the judge to appoint as legal counsel for a defendant in Cherokee Court. The issue has been that these same lawyers also work in other jurisdictions, in other municipalities, in other court rooms, where they might have the same responsibilities to those courts and defendants, so the Court and Prosecutors Office must be creative with the way they create a docket so that a defendant’s legal representative may be present at what may be several different hearing or court appearances for each defendant.

I watched as the defense attorneys would arrive at various times throughout the court sessions and in some instances, it looked very much like a race. As they would arrive, they would begin to look around the room to see if their defendants for the cases on the docket were in the room. And when they would spot one, there would be a flurry of conferences; a huddle with the defendant; a huddle with the prosecutor; another huddle with the defendant; and maybe another huddle with the prosecutor. Then, there would be a huddle with the judge and the prosecutor, or two. Then there would be some on microphone action that would last one to five minutes. Several minutes or an hour of huddling to one minute of adjudication.

What I came to understand is that this is the way our system of government and court provides a fair trial. Not all cases are the same, even if it is the same charge brought against different individuals. The handling of the case has to be fair, not just to the defendant, but to the community that the Court serves. It is rarely as simple as you commit a crime, or you are accused of one, a judge or jury finds you guilty, then there is a set-in-stone penalty for the crime. I imagine many factors are weighed to come to a fair and just determination. The process is not like a machine that can be set to run without hands-on tweaking. And what I saw in Cherokee Court was the tweaking process. The Court and the Prosecutors didn’t seem to be interested in giving the harshest punishment, rather to consider all that the defense had to say about the character and circumstances of the individual, a person with a life beyond that one case. That whole back-and-forth between the prosecutor, defense attorney, and defendant seemed to be a negotiation to find the just relief for the charged activity. Not to be soft or hard on an individual, but to ensure that the defendant was held accountable for their actions, and to send the message that activity is not acceptable for the community. I did not see any activity that would indicate a spirit of vengeance in the Court, just a bending over backwards to ensure that defendants were fairly represented and that every effort is made to make sure that the “punishment fits the crime” and the defendant. We used to get a little heartburn when we would see the number of counts dismissed from an individual’s case and wondered how that could be just. Allowing the defense lawyers to negotiate which charges will be tried and what penalty will be given is part of the duty of the court system to allow a defendant to have adequate representation and a fair opportunity to defend themselves.

From reports received from the Cherokee Court, Tribal Prosecutors Office, and the Cherokee Indian Police Department (CIPD), there is a backlog of over 300 cases. I heard the judge indicate that day that some of the cases being heard were over a year old. I just checked the latest docket and there is a case on there for impaired driving from 2006. Staffing seems to be an issue throughout the system. It was surprising to me to see the prosecutors being called upon to locate and check the schedules of the defense attorneys for the defendants. You never see that on Perry Mason. With the defense lawyers splitting their time between jurisdictions, it is no wonder that there is a backlog of cases. In speaking with Tribal Court staff, they say that one of the reasons that it is difficult to provide court reports on sessions is that they do not have the staff to commit to providing those documents. The same holds true for the Tribal Prosecutors Office, where a team of three used to work all the Tribe’s cases now is being attended to by only two prosecutors. The CIPD has repeatedly reported to Council about the shortages in staffing that they have experienced in the recent past.

There is no pause in the behavior that generate cases that flow into the court system from the police. We receive an arrest report every week or two with pages of charges and suspects. And that is only the criminal charges. We don’t receive all the traffic violations. The court dockets are pages long. It is easy for those of us on the outside of the court system to look at the situation on the surface and say that not enough is being done or that things move too slowly. Everyone should take some time out to visit the process. Watch what happens during a session of court. It takes more than a few minutes, but it is an eye-opening experience. It made me better appreciate those who attend to the day-to-day in the Cherokee criminal justice system.