DISTRICT COURT OF THE NAVAJO NATION

JUDICIAL DISTRICT OF CROWNPOINT, NAVAJO NATION (NEW MEXICO)

 

THE NAVAJO NATION,

Plaintiff,

vs.

PATRICIA M. JIM,                                Nos. CP-CR-1935, 1936, 2122-99

and

CLINTON JIM,                                     Nos. CP-CR-1937, 2120, 2121-99

Defendants.

 

2000-CP-DC-002

 

OPINION AND ORDER

 

The court dismisses criminal charges, with prejudice, on its own motion, for lack of a speedy trial. The court has the authority to dismiss charges for a lack of a speedy trial taking into account judicial economy, the speedy trial right, fair trials on the merits, and the swift and certain administration of justice. Where the defendants were reasonably available, delays in charging, service, arraignment, and setting a court date justified dismissal.

 

[1] These are unusual criminal charges, which arise from the alleged illegal grazing of 58 "cattle of mixed breed" on the Shaw Ranch, which lies three miles southeast of Chaco Canyon Nation Park within the Crownpoint Judicial District. The court renders an opinion in this case as an illustration of how not to bring criminal charges.

 

[2] Patricia M. Jim was charged with offenses which allegedly occurred on December 23, 1998. On August 25, 1999, she was charged with a grazing violation (accomplice to grazing without a permit), criminal trespass and another grazing violation (grazing 58 head of cattle when the limit was 50 head). An initial summons issued on September 17, 1999, and a second summons issued on December 13, 1999. The certificate of service shows that the second summons was served upon the defendant on November 29, 1999. The appearance date was March 6, 1999. Patricia M. Jimís agreement for release on personal recognizance gives a pretrial conference date of September 12, 2000.

 

[3] Clinton Jim was charged with criminal trespass, a grazing violation (grazing without a permit), and another grazing violation (overgrazing, i.e. eight more cattle than the 50 allocated for the grazing unit) which allegedly occurred on December 23, 1999, in complaints which are dated August 25, 1999, approximately four months after the event. A criminal summons for the three offenses issued on November 17, 1999, and there is no indication on the certificate of service that it was served upon the defendant. A second summons issued on December 23, 1999, and the certificate of service shows that it was served on the defendant on November 29, 1999, almost a month before it was issued. The appearance date was March 6, 2000.

 

[4] The court raises the issue, on its own motion, of whether these defendants have been denied their right to a speedy trial under 1 NNC Sec. 7 (1995) of the Navajo Nation Bill of Rights. This court does file reviews of all criminal and civil actions pending before it, and exercising its inherent power and duty to do substantial justice, it will issue disposition orders where violations of the Navajo Nation Bill of Rights are apparent in the case file.

 

[5] The Navajo Nation Bill of Rights, at 1 NNC Sec. 7, guarantees all defendants in criminal cases the right to a speedy trial. Our code does not indicate what a "speedy trial" means, so the Navajo Nation courts have adopted the federal standard. Navajo Nation v. Bedonie, 2 Navajo Rep. 131136-137, 2 N.L.R. 42, 43-44 (Ct. App. 1979). The time for the calculation of the reasonable time for trial commences at the time of arrest. Id., 2 Navajo Rep. at 137, 2 N.L.R. at 44. The Navajo Nation uses four factors to evaluate speedy trial rights: (1) the length of delay; (2) the reason for the delay; (3) the defendantís assertion of his [or her] right; and (4) prejudice to the defendant. Navajo Nation v. MacDonald, N.L.R. Supp. 299, 306 (Navajo Nat. Sup. Ct. 1992). Aside from any assertion by a defendant, the court must consider judicial economy, the speedy trial right and a fair trial to determine the facts and law on the merits, and the swift and certain administration of justice. Navajo Nation v. MacDonald (Moeller v. Yazzie), N.L.R. Supp. 145, 155, 154-155 (Navajo Sup. Ct. 1990).

 

[6] In these two cases, the alleged offenses took place on December 23, 1998. The nub of the complaints is that the defendants apparently had some sort of lease rights to graze on the Shaw Ranch which were terminated in October of 1998. Shaw Ranch is owned by the Navajo Nation. There are witness lists for the charges which show an impressive number of ranger and police witnesses, but for some mysterious reason, the defendants were not charged until August 24, 1999. While criminal summons issued on September 17, 1999, there is no return of service to show that the summons were served upon the defendants. There is also some mystery in the return of service to the two summons issued on December 23, 1999, because the certificates of service show that they were served about a month before they were issued. The defendants were required to appear in court on March 6, 2000, almost seven months after the complaints, and almost a year and three months after the alleged offenses.

 

[7] Why the delay? There is nothing in the record to show that it is the fault of the defendants. The certificates of service show personal service upon the defendants at a street address in Crownpoint. Surely, from the allegation in two complaints that the "lease" (grazing or otherwise) was terminated by written notice in October of 1998, the rangers and police knew where the defendants were. There is no indication why the impressive list of rangers and police in the witness lists didnít charge the defendants on the spot. The government has the obligation to serve criminal summons, and we do not know why the original summons were not served or the second summons were served before they were issued. There is no delay which is attributable to the defendants.

 

[8] While the defendants themselves have not asserted their speedy trial right, the court takes into account the fact that there is no indication in the record that these defendants have counsel to protect their rights. In addition, this court recognizes the instructions of the Navajo Nation Supreme Court in speedy trial cases that judges must independently consider judicial economy, the speedy trial right, fair trials on the merits, and the swift and certain administration of justice.

 

[9] The prejudice to the defendants is obvious. We do not know if any of the several rangers and police listed in the witness statements have left their employment or have moved to assignments in other places, and there would be factual issues such as whether the witnesses actually saw these defendants, or based the charges on cattle brands or other factors. Time has long passed to get into the factual issue of posting (of notice) on the trespass charges, because "no trespassing" signs tend to fade, blow away, or be replaced after the event.

 

[10] While the court admonishes the prosecution for these delays and errors, the court is also disturbed by the fact that when the defendants were arraigned in March of this year, the court staff did not schedule pretrial conferences until September, almost seven months after arraignment. This court uses the rule of thumb that "speedy trial" means a trial within six months, and pretrial conferences should not be scheduled after that time has run. All a defendant would have to do in such a situation is sit back, attend the pretrial conference, and then move to dismiss the charges for the lack of a speedy trial.

 

[11] Based upon these facts and the law reviewed above, the court finds that the defendantsí fundamental right to a speedy trial under the Navajo Nation Bill of Rights has been denied, and the complaints in these cases are hereby DISMISSED WITH PREJUDICE.

 

Dated this 15th day of March, 2000

 

Hon. Irene M. Toledo, District Judge

 

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