Contrary to the saying, “It’s not what you say, it’s how you say it,” in the courtroom, it’s often both.

That was one of the takeaways from the UW Law Tribal Court Public Defense Clinic's latest win. In a multiyear case involving half a dozen clinic students, the clinic secured a major victory at the Tulalip Tribal Court of Appeals, which vacated the felony conviction of the team’s defendant due to prosecutorial misconduct. In a subsequent order, the Trial Court dismissed the case with prejudice.

The experience is the latest example of the impact clinic students can have on Tribal Court proceedings.

“The UW Tribal Court Public Defense Clinic provides an essential component of the Tribal justice system that helps ensure procedural fairness in the Tribal Court while representing persons charged in the Tribal Court,” said Professor Brenda Williams, who co-directs the clinic with Professor Stacey Lara.

“Without a robust public defense system, it’s likely impossible to have a fair trial process that protects the defendant’s rights, which is why this work is such a vital component of Tribal justice systems.”

The Tribal Court Public Defense Clinic offers one of the most unique experiential learning opportunities of any law school in the country. The clinic partners with the Tulalip Tribes to serve as the primary public defender in criminal cases filed in the Tribal Court. Students and staff handle between 200-250 cases each year. The clinic also partners with the Muckleshoot Tribe to provide representation in Youth in Need of Care cases.

In this latest case, multiple sets of students worked on the defendant’s jury trial and appeal. The case involved a serious allegation against the defendant, who was convicted at trial before the team took the case to the Tulalip Tribal Court of Appeals.

"Without a robust public defense system, it’s likely impossible to have a fair trial process that protects the defendant’s rights, which is why this work is such a vital component of Tribal justice systems."

Clinic alumnus Taylor Herring ‘18, who worked on the case, says what transpired at that initial jury trial — what ultimately laid the foundation for the team’s prosecutorial misconduct argument — was astonishing.

“It was like something that you think only happens on TV: The defense was objecting, the other side’s objecting, jurors are seeing a part of it but then having to leave… It was very exciting” Herring said.

Courtroom Conduct

The appellate court highlighted as inappropriate conduct statements the prosecutor made to the jury that essentially implied that the prestige of the Tribal government was behind her.

Williams, as lead attorney, objected and moved for a mistrial. The objection was granted; the mistrial was not. According to the judge on remand, “[h]ad the trial court granted the mistrial, the error could have been remedied in real time and we would not be here.”

The Tulalip Tribal Court of Appeals found the prosecutor's misconduct was “exacerbated because it occurred in rebuttal, when the defense had no opportunity to bring these issues to the jury.” In the appellate opinion, the justices held that the prosecutor’s statements were improper both in terms of substance and timing.

Chief Justice Daniel A. Raas wrote in the appellate decision, “[t]here is no way of knowing whether this argument influenced the jury, but it was clearly intended to do so. The decision of the Tribal Court to deny a mistrial in light of these statements in the rebuttal closing statement was an abuse of discretion.”

“Whether the improper argument did or did not influence the jury is irrelevant when the conduct is intentional, objection is timely made and the trial judge denied the motion for mistrial raised contemporaneously with the objection,” Williams emphasized.

In Pursuit of a Common Goal

Herring was just one of the current or former clinic students whose fingerprints were on the end result. The list also includes Isaac Castaneda ‘22, Eric Lombardo ‘20, Renee Ambacher ‘18 and Maya Titova ‘15. Williams is also a University of Washington Law School alumna of the Class of 1997.

“We approach everything as a team in the Tribal Clinic, which allows students to see how important just being a part of the team is,” Williams says. “We are all working together and share the same goal. The students bring an incredible wealth of perspectives that differ in intangible ways, which ultimately benefit the client.”

As part of their rigorous work, students transcribed and analyzed relevant body and dash camera recordings, conducted witness interviews and investigated the factual allegations. They helped set the strategic direction of the team’s courtroom approach.

"Being in a Tribal court alone gives you such a different perspective on how the criminal justice system operates."

During trial, students looked for all potential legal issues and impeachment evidence that arose while they observed the overall trial process, juror conduct, and prosecution questioning and oral argument. Their behind-the-scenes work included drilling down to the very phrasing of questions and statements to support the defense.

Herring says that the experience was exactly the kind he had been hoping for when he joined the Tribal Court Public Defense Clinic as a 1L.

“Being in a Tribal Court alone gives you such a different perspective on how the criminal justice system operates,” he says. “Having the chance to see a trial from forming that relationship with the client, identifying these issues and then having the conviction overturned… it really shows you how the criminal justice system can work and how much work you have to put in to get the fair and just outcome.”