During my second year of law school I was enrolled in the
Public Defender clinical program. A
shout out to all my veteran peeps of the University of Georgia School of Law
Legal Aid and Public Defender Society, which counts among its alumni not only
some of the finest criminal defense lawyers I know, but former Governors and
Attorney Generals. The first year of the
program was confusing. The veteran law
students – those returning for their second year of the clinic marched around
the office with an air of confidence.
How did they learn all that stuff?
When the police make a case, how did they know if it was going to
Municipal Court, or State Court, or Magistrate’s Court, and, thus, who their
lawyer would be, who the judge would be, and whether there would be a
preliminary hearing? I swear it took me
a year to figure all that stuff out.
Then, as a staff attorney there, I watched the same process with the
students enrolled in the clinic. Those
students, who in their first year were wandering around with their mouths
agape, confused about what all was going on, would come back in their second
year strutting with confidence. It would
not be the same in American Samoa. Here,
there are only two courts: District Court and the High Court, and a case always
begins in District Court.
The population of the island is about 56,000, and there just
isn’t the amount of criminal activity going on here as there is, say, in Athens
or the Northern Circuit. Two courts
serve American Samoa just fine. Now, my
concern is that in this technological age, with its almost exponential increase
in sophistication amongst the youngsters, and the increasing influence of the
dirtier side of American culture, with less emphasis on stable and close family
ties, the crime rate will increase.
All warrants are issued by the District Court. All arrestees appear before the District Court
judge the next day, or Monday if they are arrested Friday, Saturday or
Sunday. If they are charged with
misdemeanors, they are arraigned in District Court that day. If they are charged with felonies, they are
asked if they want a preliminary hearing (prelim). It’s called a preliminary examination. But it is the same hearing. Our single misdemeanor attorney handles
District Court. But those cases which
are bound over to High Court, which is the equivalent of Superior Court in
Athens, are handled by our felony lawyers.
By that time we have been served with a copy of the charging instrument,
which is an “Information” - there is no Grand Jury and no Indictments - and the
case is set for a pre-trial conference about 30 – 45 days out. During that time we must have filed our
motions and exchanged discovery, which usually means the state . . . drat,
can’t get used to that: American Samoa is a territory, not a state, which
usually means the . . . government gives
us their discovery and plea offers. If a
defendant stands on his not guilty plea, the is set for trial. There’s something of a backlog developing
here as cases are being set for trial December of next year. Two of us handle
high court, with the boss as an added participant. Court, including arraignments, pre-trial
conferences, bond and probation hearings is held every day, 5 days a week.
Only one case is set for trial in a week because that’s
typically all there is time to do. The
entire trial is conducted in both English and Samoan – from the first “Hello” (“Talofa”)
to the last “Goodbye” (“Tofa
soifua”). It takes more than
twice as long because most times, it takes a good many more words to express a
concept in Samoan that it does in English.
The jurors, practically all of whom speak both Samoan and English, hear
everything twice: the opening
statements, the testimony, the objections, the closing arguments, and the jury
instructions. Having cases set so far
out gives you plenty of lead time which is a luxury in getting ready. I can’t tell you how gratifying that was for
me in my recent trial. Three weeks to
get ready for my trial? Whoever heard of
such a thing? My trial lasted 3 and a
half days. And, before the proceeding
began for the day, arraignments of new arrestees were held each day. That was a short proceeding, e.g, “Waive
formal arraignment and tender a plea of not guilty.”
The actual trial proceedings are the same here as in the states. The only difference being three justices sit
on the bench. The Chief Justice sits in the middle. He is flanked by two associate justices, who,
at least I don’t think are lawyers.
Rather, they are respected members of the community whose role it is to
see that Samoan customs are respected.
During my trial, neither of the associate justices said a word. The
Chief Justice runs the show, and the degree of formality and no nonsense gives
it the distinct feel of federal court. Voir dire was essentially the same as in the
states, at least in my case before this judge – the other judge may do it
differently - where the chief justice asks the qualifying questions, and the
lawyers get to follow up with their own voir dire. But the way we picked the jury was different.
The jury is a six person jury, plus an alternate. The court had summoned more than 60 jurors –
whew, that’s a lot of jurors for six plus an alternate. They were not seated in panels. Instead, the clerk had each of the 60 or so
juror’s name on a separate piece of paper in a bowl, from which she drew 10
names. The ten names she pulled were seated
in the jury box for voir dire. The state
. . . er, the government and the
defense each get 6 strikes. Of those
initial 10 jurors we each wrote down on a piece of paper the number – they sat
in the box under the numbers 1 through 10 - of the juror(s) we wanted to strike
and took that paper to the judge. None
of this profiting from the strikes the other side took that you would have
taken. If we both struck the same juror
or jurors, then that juror was gone and so was our strike. Between us we struck six of the initial
10. Each of us used 4 strikes, so that
means we both struck 2 of the same jurors.
Ugh! The 4 remaining were the
first 4 of our jury. They moved down to
take seats 1 – 4. The remaining 6 seats
were drawn from the bowl and voir dired.
I used my remaining two strikes, the prosecutor used only one of hers, and
the six people remaining in the box became the jury with the 7th the
alternate.
Otherwise the trial went according to all my experience –
other than having to phrase your statements and questions in lengths suitable
for interpretation. There were no real
surprises. Well, there was one. We walked up for a bench conference and there
were the chief justice’s legs and bare feet.
He was wearing an ie lavalava (man skirt) under his robe, and had
slipped out of his flip flops, sitting there with his hairy legs crossed in
bare feet. That’s something you don’t
see in court in the states. I managed to
keep the jury out about three and a half hours, with a NOT GUILTY on count two,
but a guilty on count one. Considering
the facts, it was a gratifying win for me.
My client was in tears after my closing.
For the first time, somebody had told his story.
My client was charged with stealing, yes, that’s the legal
term, for getting a bunch of folks to clear his land and not paying them for
it. They did a good job clearing the
land.
Next: Palagis
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