Article Bank # A-79
The author, Denise Ferry, is a capital case consultant in Fairfax, California who specializes in cases involving American Indians.
[Article received: March, 2000.]
1. Introduction: If your client is Native American that identity is the central fact of his life. In defending him the critical question becomes how can the relationship between his cultural background and his behavior best be demonstrated to the jury during each stage of the proceedings in a capital case.
a. What is a Cultural Defense: The cultural defense is the presentation at trial of the pressures which have been placed upon the minority defendant by the dominant culture and how these pressures have impacted upon his or her life and conduct.
These pressures come vertically in time through the collective cultural memory passed down to the client of the oppression and hardship experienced by his forbearers and horizontally across institutional and social pressures presently brought to bear upon the life of the client himself. It is not possible to fully prepare to defend any minority client without exploring the ways of using this cultural background during each stage of the criminal process. Its application, in some form, has sometimes been utilized in penalty phases. It is critical to your hopes of success to consider whether or not you are able to utilize a cultural defense in earlier stages of the trial.
b. How a Cultural Defense is Constructed: The starting point is the defense team (attorneys, investigators and paralegals) developing a working knowledge of the Native American client’s background and the racial oppression both he and his community have experienced in the area from which he originates and in the area where the incident at issue occurred.
1. Learn Client’s specific Native American Background: It is critical that the defense team gain a solid grasp of the client’s cultural background as early as possible. This information will shape the investigative work and affect both guilt and penalty phase strategy. A full understanding of the client’s background is essential to a meaningful relationship with him, his family and his community.
In every part of the United States during the 19th Century, systematic genocide was the defacto policy of national, state and local governments. To give an example of this cultural background, the following is a brief history of these relationship between Indians and Non-Indians in California. It is the type of basic information you must have about your own client’s specific history.
An Example: Indian/white Relations in California: Beginning in the mid-1800’s, the State of California and most of its citizens adopted a policy to rid the land of the Indian people that had lived there for thousands of years. During a twenty-year period (1850-70) 80 percent of the indigenous people died. This catastrophe has never been officially acknowledged.
Legacy of Oppression: Particularly in rural areas of California, an unofficial and often unrecognized policy of repression and intimidation continues to affect the day-to-day life of every Indian person. A host of treaty rights, land claims and conflicting views of land use make the presence of Indians in rural areas of California a potential threat to the interests of the dominant community. Indian people continue to be resented for their mere presence.
Stereotypes: There are many negative stereotypes of Indian people which tend to be largely criminal in nature: violent, drunken, lazy, dishonest. These unchallenged stereotypes have remained in place partly because of a continuing need to justify the historical treatment of Indian people and partly because, in response to the massacres, those Indians who survived drew into themselves and have lived in a physical and social isolation which prevents real contact. This isolation has helped perpetuate these old stereotypes.
Institutional Repression: When the outright killing of Indians diminished, the survivors fell under the power of various governmental bodies that proved to be harsh and pernicious. The health, education, and legal assistance these agencies provided eroded the community and led to its present entrenchment at the bottom of all social indices for health, life expectancy, education, employment, and, correspondingly, at the top for suicide, alcoholism and family dysfunction. The abuse of Indian people by local agencies was so blatant that the federal government has had to intervene. As late as 1978 Congress passed such fundamental legislation as the Indian Child Welfare Act to prevent the continued wholesale removal of Indian children from their families and the Native American Freedom of Religion Act to clarify that indeed there is an Indian religion and that it is entitled to the same protection as any other religion.
2) Consult with Community Leaders: Locate respected leaders and experts both from the defendant’s tribal background and from the local community in which the events occurred who can sit down with the defense team, from the beginning, and help look at cultural issues which are relevant to the case. These individuals can usually be located in the Ethnic Studies departments of universities, community health clinics, social service agencies, legal defense and cultural groups; and in the administration of local reservations and rancherias. It is important to consult with your client on this – before contacting any particular individual or group. If approached in a spirit of openness and respect, individuals will come forward who are willing to talk with you in an effort to assist a member of their community facing such serious charges.
Once familiar with the issues in the case, they can usually suggest culturally sensitive people who can help interview the client in their capacities as psychologists or psychiatrists and testify at trial. They can also help identify studies and experts which speak to the specific interaction of traumas and ethnicity in your case.
Overcoming History of bad Relations: The Indian community is both alienated and intimidated by the dominant culture’s legal system, which has been experienced as a hostile force in their lives. This mistrust extends to defense attorneys, investigators and defense experts(no matter how well intended) who are viewed, at least initially, as “just part of the system” and who “don’t listen to us.” When this attitude is combined with an ingrained reluctance to discuss “Indian business” with outsiders, an environment exists in which it is extremely difficult to build the trust necessary to gather the facts and compile the personal history necessary for the defense. Community leaders, if asked, can be helpful in suggesting ways to minimize intra cultural friction and misunderstanding between the defense team, the client and his community since they themselves have had to become adept at interacting between the two worlds. The inclusion on the defense team itself of people who are themselves from the client’s community is another way to facilitate this process. But, again, consult with your client, on an ongoing basis, regarding who should be included in his or her defense team.
Respectful Listening: Indian people are extremely courteous and place a great value on respectfully listening to one another. It is expected that there will be time, in the beginning of an initial meeting with someone, to talk and familiarize people with each other before the business that brought you together is discussed. Attorneys and investigators are used to taking charge, setting the tone, asking the questions, being direct and focused on the task. This can be misinterpreted as rudeness and plays into the old perceptions that Indian people are not acknowledged and listened to, even about their own family member (your client) and his community. Be prepared to spend time cultivating each relationship with an attitude of openness and respect. If basic courtesies are not observed, no real information of value can be revealed because the right relationship to convey the information has not been established. Your sincere efforts to understand the cultural background of the client and to conduct your interaction with him, his family and community according to the norms of that community will be rewarded.
3) Client Support: Paying particular attention to your client’s needs in jail, including facilitating regular visitation by family members, is critical to the development of a meaningful attorney/client relationship. If the family isn’t visiting, discrete inquiries need to be made because often there is not sufficient funds for transportation, which you should offer to provide.
The client may also benefit from the visits of a spiritual advisor. Special request of,
or some degree of pressure upon, jail administrators may be needed, since often only Christian services are available in most jails. In the case of Indian people, California Indian Legal Services in Oakland has been successful in litigating this issue on behalf of incarcerated American Indians’ right to their traditional religious practices. Visitation by counselors of the same background as your client may assist in preparing your client for the trial. Such individuals can often be located in local social service programs or in programs specially targeted to your client’s community. If alcohol was involved in the offense, your client’s commencement of counseling at this early stage demonstrates a willingness and potential for change; thus, these counselors from the client’s community may become valuable trial witnesses.
4) Community Support for Your Client at Trial: Efforts should be made to encourage members of the Native American community to attend the trial. Local agencies and/or community centers can be contacted for assistance in distributing notices of the trial; oftentimes, family members can be extremely helpful in this area. Again, your financial assistance may be necessary to help underwrite these efforts. Jury interviews have spoken to the favorable impression the support the client’s community has made on them.
5) Be Wary of Subtle Racism: Watch out for your own unconscious racial and cultural stereotypes: Indian culture has been denigrated, trivialized, and romanticized in sometimes very subtle ways. Trying to recognize and then put aside these concepts will promote a better relationship with your client. It will prepare you to probe potential jurors’ views in this area. Be careful not to project generalized stereotypes of Indians on to the local Indian community. For instance, if your client is California Indian he and his community will be offended and alienated if they receive the impression that your idea of Indian culture is, in fact, an amalgam of Plains Indian traditions grounded in such films as “Little Big Man” or “Dances with Wolves”. These images of Indian life and traditions bear little or no resemblance to those of the client and his California Indian community. It is important to remember that many people in the State of California are not even aware that California Indians still exist and carry on their cultural traditions.
2. Native American Cultural Defense in a Capital Case: Your client’s Native American background can potential impact on all stages of the case and can be the core of mitigation at penalty phase:
a. Change of Venue: Based on historic relations between Indians and whites in all rural Northern California counties it is likely that trials involving Native Americans should be removed from these counties where they are likely to face all-white juries imbued with hostile stereotypes involving your client. The traditional criteria for change of venue can be augmented with cultural factors. Investigation will undoubtedly show that recent events in the last 20 to 30 years in the local county has placed the Indian community in a negative light and have inevitably contributed to an anti-Indian climate. The Native American client’s presence, as a defendant, would reactivate all these anti-Indian stereotypes and biases. At a change of Venue Hearing, witnesses (as many of them Indian as possible) can testify regarding the history of Indian/white relations in the local community. A survey can help substantiate this testimony. Local defense attorneys may be able to speak to biases previous Native American defendants have encountered. For instance, a local public defender in Placer County was called to substantiate the prejudice in Indian-defendant cases by relating a post-jury interview in his own case that revealed one juror saying in deliberations,”well, this is exactly what happens when an Indian gets liquored up or has too much to drink.” [Such a statement during deliberations also illustrates the inadequacy of the voir dire process to uncover anti-Indian bias.]
Urban Venue Most Appropriate: It is in urban environments, with their diverse population, more tolerant views and removal from the ongoing competition for local natural resources, that a Native American client has the best chance of finding a fair and impartial jury. In People vs Croy the local judge from rural Placer County responding in part to the cultural defense testimony, ordered a change of venue, noting that
“… the potential for residual bias against the defendant in the context of traditionally preconceived notions [regarding Indian people] raises a risk that prejudice will arise during the presentation of the evidence unrelated to the facts.”
If the change of venue motion is granted there remains the possibility that the case may be sent to an equally unsuitable rural county for trial. A hearing should be requested to demonstrate that racial bias against Indian people also exists in the proposed venue.
b. Other Pretrial motions: When considering other pretrial motions your client’s race will be an important factor upon which to focus. Two possibilities are a motion to strike the special circumstances as impermissibly charged due to the defendant’s race and a motion to admit evidence of the historical and contemporary Indian/white relations in the context of state of mind for self defense or other potential defenses.
c. Jury Selection: Native Americans seldom make up more than 1-2% of the population. They are significantly under-represented, proportionally to their numbers, on the master list utilized for jury selection because they are less likely to register to vote and obtain a driver’s license. A motion to quash the jury venier as under-representative should be considered.
Jury questionnaires and voir dire questions directed at the issue of race will both assist in unearthing bias against your client and also begin to build a bridge between his experience of racial prejudice and the experiences of other minority people on your jury.
d. Challenging Admissibility of Priors: Failure to present cultural evidence in a prior case could have resulted in the client receiving ineffective assistance of counsel, thus providing grounds to challenge that conviction. (See Mak v. Blodgett 754 FSupp. 1490, 970 F2d 614., Siripong v. Calderon 35 F 3rd 1308.)
e. Incident at Issue: The cultural background of your client directly affects the presentation of the defense at the guilt phase. His status as a Native American will have had a direct effect on his behavior and on other people’s behavior during the incident.
State of Mind: Whenever the defendant’s state of mind is relevant to the offense charged, cultural evidence is admissible. For example, when the defense is self defense (either perfect or imperfect), cultural evidence may be relevant to demonstrate that the defendant not only acted based upon an honest, good faith belief that his life was in peril, but also that he acted as a reasonable person “similarly situated.” It can also explain, for instance, that your client didn’t flee the crime scene because of “consciousness of guilt,” but because of a life-time of harassment and mistreatment by law enforcement, an experience shared by prior generations of Native Americans.
Insanity: Cultural evidence is also important where the defense is insanity or diminished actuality due to drug or alcohol abuse. If substance abuse is an ingredient in the defendant’s background, this area should be thoroughly explored by an expert. It is crucial that the expert have specific experience with the defendant’s community because of the important difference in drinking patterns and cultural relationship to alcohol from one community to another.
Cultural beliefs: The defendant’s culturally based belief system also provide some justification or excuse for his actions, which could reduce the degree of culpability. When the defendant claims that he did not commit the offense, cultural evidence may be relevant in establishing the defendant’s good character or lack of motive to commit the particular offense. If, for example, the client is a spiritual person, his religious beliefs may be inconsistent with the behavior at issue, e.g., possession or use of drugs or weapons.
Witness bias: Cultural evidence may also be relevant as impeachment evidence to establish bias, interest or motive on the part of prosecution witnesses, especially non-Indian eyewitnesses.
Expert Witnesses: Experts familiar with the Native American community can address a wide range of issues at both guilt and penalty phase.
1) Eye and Ear Witness Cross-cultural Identifications: There is potential for misinterpretations of Native American dialects and word usage by non-Indian prosecution witnesses. Anger and frustration felt by minority groups are often vented by hostile language which should not be interpreted as literal expressions of intent. It may also be necessary for the expert to help the jury understand that silence by Indian listeners to this hostile language should not be viewed as an acceptance or adoption of the sentiments but, on the contrary, signifies disapproval and rejection in this particular community. Experts in eyewitness identification can emphasize the particular unreliability of cross cultural racial identification.
2) History: Expert witnesses in the field of Indian history and contemporary affairs can testify about the historical interactions between the Indian and non-Indian communities in your county. This evidence is relevant to the defendant’s state of mind, i.e., his good faith belief, whether reasonably or unreasonably held, that it was necessary to defend himself with lethal force. An analysis of the depiction of Indian people in the local media over the recent past is likely to show Indian people have received consistently negative and hostile coverage, particularly in their struggle for Indian rights which can place them at odd with the leaders of the dominant community.
3) Psychologist: The testimony of a psychologist (preferably Native American) who has interviewed the client can provide the nexus between the cultural evidence and his state of mind. It is very likely that the client has grown up hearing stories of the genocide of his people. He and his community may have repeatedly been subjected to police harassment. Such evidence confirms the contention that a reasonable person in the client’s situation would have responded in the same manner.
4) Native Americans as Experts: It is very important that to the extent possible experts who are themselves Indian present the cultural evidence at each stage of the proceedings. On the one hand, they speak in their professional capacities with an authority from which it is difficult for the jury to distance themselves. On the other hand, their presence in court as articulate and distinguished Indian people breaks down the monolithic negative stereotypes of American Indians.
`Beware: In preparation for cross examination, defense counsel should explore with these experts the reasons why they were able to overcome the obstacles which were so overwhelming to your client. It is also important to understand that many minority people resent the “special status” of Native Americans and the “benefits” that they perceive to flow from this status such as special education and gambling on reservations. At least one expert needs to be prepared to confront this dangerous misperception.
f. Jury Instructions: Special jury instructions should be drafted which supplement the CALJIC instructions to incorporate the cultural evidence presented on the issues of flight, self-defense and homicide.
g. Penalty Phase: Cultural information will provide the basis for substantial mitigation in a penalty phase trial. In the case of an American Indian client even if he wasn’t raised on a reservation, or wasn’t “raised Indian,” or doesn’t “look Indian,” or was adopted into and raised in a non-Indian environment, or even “doesn’t consider himself Indian,” his culture is still a central fact of his life. Whether he has experienced the guilt, fear and anger of denying his culture, or the pain of trying to find a way to be Indian in a society which is hostile to Indian people and their values, this background will have deeply influenced his life.
The process of accumulating penalty phase evidence should begin at the inception of the defense effort. As the effort proceeds, the cultural picture should be fleshed out and made ready to present to the jury as the foundation for the mitigation argument of the penalty phase.
Penalty phase preparation should include research into the history of the local area where the incident occurred as well as the community from which the defendant originated (if they are different) This research will include the Indian way of life before white contact and the genocide that followed. The continuing trauma suffered by the Indian community must be documented in every way possible. Examine the current social interaction between Indians and the dominant society: To what degree do Indian people feel threatened in the dominant culture, what are the local conflicts, and what are the specific experiences of the client and his family.
It is not possible, here, to examine all the potential penalty phase themes inherent in a cultural defense. What follows is a discussion of just a few that are basic to Indian life.
1) Alcohol Treatment Programs: The profound impact of alcohol on Indian lives cannot be overstated. Alcohol is a leading cause of medical, accidental and homicidal death. Even if the client had, in the past, been offered or participated in alcohol treatment programs or other social services, if they were not administered by Indian people themselves, they had little chance of success. If the client is American Indian with a background of alcohol abuse, you can compare the traditional AA program with an alcohol treatment lodge which is operated by the Indian community, where the emphasis is placed on ceremonies to rebuild spiritual strength and pride of the individual. This evidence will diffuse the prosecutor’s use of a defendant’s past failure to be “rehabilitated” by programs offered to him by the dominant culture. In fact, he was never given a realistic chance to succeed at all.
2) Fetal Alcohol Syndrome: Due to the endemic problems of alcoholism in many American Indian communities, the ratio of 1 baby with FAS for every 703 births in the general population can become elevated to 1 for every 100 births or even higher. If your client or any members of his family exhibit any of the red flag symptoms for FAS discussed in the section on Fetal Alcohol Syndrome in this manual that diagnosis should be thoroughly investigated for its impact on the defendant’s life and all aspects of the current proceedings he is facing including penalty phase. FAS, because of the organic nature of the irreparable damage done to your client before he was even born, can be very powerful mitigation to a jury.
3) Education: In Oakland, Ca, studies have found that over 80% of Indian students drop out before the 12th grade. There are many culturally based reasons for Indian children’s poor performance in school. Unless a teacher is unusually sensitive, lack of classroom participation can be interpreted as disinterest or inability to learn — when in fact the child’s failure to raise a hand may be the result of cultural teachings that it is impolite to push oneself forward or act in a competitive manner in a social situation. The content of the curriculum and textbooks is a major contributing factor leading to the child’s failure through their refusal to even acknowledge that the settling of the country by Europeans was accomplished by the genocide of the indigenous people. Indian educational experts can assist in presenting this information to the jury.
4) Post-Traumatic Stress Disorder: Nearly 90% of the Indian people who fought in the Vietnam War volunteered. Why? What uniquely Indian traumas did they suffer? How did society deal with that trauma? Post-combat treatment services proved inappropriate to Indian soldiers because it did not take place within the Indian cultural framework. It was not until a special Vietnam Veteran’s Center for Indian people was established, and Indian communities instituted purification ceremonies for the returning vets, that some meaningful assistance became available. Those Indian veterans who have not had the opportunity to participate in these particular programs remain essentially untreated.
5) Alienation From the Dominant Culture: Another way to help the jury understand what it means to be an Indian is to ask them how they would feel living in a society that in the past outlawed their religion and presently refuses to recognize their religion; that in the past forcibly removed an entire generation of their children and sent them away to boarding school and currently continues to take Indian children from their community and put Indian children in non-Indian foster homes. How would a juror feel if the graves of their ancestors were dug up and their bones and possessions declared federal property and displayed publically in museums.
6) Mitigating Priors: Priors brought in aggravation must be thoroughly investigated for their racial content. Often, as in the case of People vs. Croy, the ugly, racist stereotyping of Patrick Hooty Croy and his companions by a convenience store clerk caused the clerk to take a series of hostile, aggressive actions against these Native Americans youths which precipitated the events at issue. Native Americans receive disproportionally frequent and severe charging and sentencing and serve longer sentences compared to Non-Indian defendants.
h. Exhibits for Cultural Defense: Videos made by and about Indian people can eloquently portray issues very difficult to imagine, such as the effects of alcoholism, the cultural differences between Indian and non-Indian life, life on a reservation and the difficulties Indians encounter in trying to move between life on the reservation and in the cities.
i. Jury responds to the Cultural Defense: By the close of the penalty phase, the presentation of cultural evidence will have explained how your client’s specific culture and personal history merges with the history of genocide in America.
Extensive interviews with several members of the jury that acquitted Patrick “Hooty” Croy in his capital retrial in 1989 confirmed the impact of the cultural defense evidence: “The cultural defense testimony set the tone of the case….Everyone said it was very important….Obviously the jury accepted that presentation or it wouldn’t have come to the conclusion it did….The defense case progressed so well because the cultural defense was so well integrated into the case”.
Jurors were also profoundly moved by the fact that many of the expert witnesses were themselves Indians. This added greatly to the impact of their testimony. One juror spoke for the entire jury when she acknowledged the importance of the cultural defense evidence in commenting,
“People have to first understand people’s background, what their cultures are. And, if you don’t understand a person’s culture, how can you sit there and judge a person? You can’t. You don’t know what happened in that person’s life from the time they got up, able to walk, and go out on their own. You don’t know that. You can’t judge a book by its cover.”
Race Client self identifies as Native American or other sources such as family or records indicate he or she is of Native American ancestry.
Interviews Using “Questionnaire for Native American Client, etc” interview client, his family, and Native American friends, community leaders, social service providers, teachers regarding impact of cultural background on client, family and community.
Records Obtain all records listed in “Locating and Retrieving Life-History Records” which is included in this Mitigation Workbook. Place special emphasis on those records that demonstrate interaction between Native American’s and dominant culture. Verify Indian background through tribal rolls. Obtain comparable studies on Native Americans and other groups visa vie employment, education, incarceration, etc.
Media Follow local media’s depiction of Indian people and their concerns.
Community Consult with Client and family regarding local Native Americans to help defense team understand and prepare to present client’s cultural background.
Professional Locate Native American academics and mental health professionals who can assist in developing cultural defense, review and assess documents, interview client, test him and prepare him for trial.
Guilt Phase Review pretrial and guilt phase issues from the perspective of the cultural defense
Penalty Phase Demonstrate how clients Native American background impacted on his life and the incident at issue in order for the jury to understand that the client, too, is a victim and that they must not participate in taking the life of one more Indian person.
Client That issues related to the client’s Native American background created a pressures which manifested in antisocial behavior and/or were particularly operative at the time of the offense.
Family To offer perspective on how race was an issue for the family and how the client was particularly vulnerable to the effects of the racism which he experienced.
Community Regarding how hostility to Native Americans impacts on the community and how it may have contributed to climate surrounding the offense.
Experts Cultural experts: Historians, linguists, eye-witness experts, etc to discuss the implications in interactions between Indians and Non-Indians.
Mental Health To discuss impact of Native American background on client’s mental health. Did it exacerbate already existing conditions, cause other disorders to occur, affect his state of mind at the time of the crime, etc.
Community Attendance at trial to show support.
Native American Cases
“Capitalizing on Race and Culture: The Croy Acquittal and its Application to Future Minority Cases,” Denise Ferry, CACJ Forum v. 19, n. 4 (l992), pgs 48-53
People vs Croy (l988), Motion Regarding Admissibility of Evidence in Support of Claim of Self-Defense, Published in full by California Public Defender’s Association: California Defender No.4 (l993)
People vs [“Bear”] Lincoln (1997), Declaration of Lester J. Marston in Support of Defendant’s Motion Challenging the Composition of the Jury Panel (available through offices of J. Tony Serra, San Francisco)
Indians of California, the Changing Image, James J. Rawls, University. of Oklahoma. Press, 1984
Ishi, the Last of His Tribe, Theodora Kroeber, 1964
Bury My Heart at Wounded Knee, Dee Brown, 1971
In the Spirit of Crazy Horse, Peter Matthiessen, Viking Press, l980
QUESTIONNAIRE FOR NATIVE AMERICAN CLIENTS, FAMILY & COMMUNITY
TO ASSIST IN DEVELOPING A CULTURAL DEFENSE
I. Cultural History
– What do you know about your specific tribal background and traditions?
– How have you experienced these traditions during your childhood?
– Was Native American history and culture presented to you in school?
– How did that information and its presentation impact on you?
– Did you ever wish you had been born in a different era?
– What time would that be and why?
– What do you feel was the best time of your tribal history and why?
– Since that time, do you feel things have gotten better, worse, or just different?
– What was the course of events that led things to this present state?
– Do you think this is a similar story to other areas of the country?
– What makes you think that?
– What are the issues of concern in your tribe today?
– What were they prior to your arrest?
– Did you know about these issues prior to your arrest?
– Discuss in as much detail as possible how you came to know of these issues.
II. Indian/Non-Indian Relations
– Do you recall incidents of racism against Indian people when you were growing up?
– Discuss these incidents and their impact on you, your family & community in detail.
– Did you feel oppressed or harassed growing up?
– Did you feel that way up until the time of your arrest?
– Do you recall any situation that was particularly oppressive?
– How were Indians treated in the different towns where you were raised?
– Did you notice any change in this treatment as you grew older?
– Were there any people specifically looked upon as being more openly racist than others?
– Did you have any white friends when you were growing up?
– Did your relationship with these individuals and their families change as you got older?
– Discuss each incident in your life where you felt victimized because you were Indian.
– How did you feel after the incident?
– How do you feel about the incident now?
– Discuss any incident in which you have know someone who was victimized.
– Why do you think that person was victimized?
– Were they Indian? How did this play a part in their victimization?
– How did their victimization make you feel?
– How do you feel now about their victimization?
– Do you see yourself as a victim ?
– How so?
– If you had your life to do differently what would you change?