Final editing by Lou: August 1, 2000
IN THE APPELLATE COURT OF THE HOPI TRIBE
|Amos Poocha||)||Case No.|
|HOPI CHILDREN'S COURT, et al.,||)|
|)||OPINION AND ORDER|
ON PETITION FOR WRIT OF HABEAS CORPUS
Argued: August 25, 1989
Decided: August 28, 1989
Opinion Issued: September 10, 1990
For Petitioner: Michael E. Day, Keams Canyon, Az.
For Respondents: Dorma L. Zahne, Presenting Officer, Hopi Tribe, Keams Canyon, Ar.
SEKAQUAPTEWA, Chief Judge, and ABBEY and BENDER, Judges.
OPINION AND ORDER
This Petition for Habeas Corpus, filed on August 15, 1989, sought the release of the Petitioner's minor child from custody on the ground that the information and testimony given at the Children's Court Detention Hearing were not under oath. The minor was taken into custody on July 19, 1989, in connection with an incident involving the discharge of a firearm that resulted in the death of the child's brother.
The Detention Hearing was held on July 10, at which time the Tribal Court Judge (Leslie, J.) ordered that the minor remain in detention until further order of the Court. The Judge also ordered that the minor be closely monitored periodically due to the seriousness of the charges pending against him.
Because the petition challenged the legality of ongoing pretrial custody of a minor child, we reached an immediate decision. Our denial of the petition was communicated to counsel and the Children's Court on August 28, 1999, along with our stated intention to issue an opinion at a later date giving the reasons for our decision.
Subsequently, we were informed that shortly after our denial of the Petition, the minor child was removed from Hopi tribal custody by federal authorities, who placed him in their custody at a location off the Hopi Reservation pending federal felony charges against him. So far as we are aware, the minor has not been returned to Hopi tribal custody.
The removal of the child from Hopi jurisdiction made the proceeding before us effectively moot. A detailed explanation of our reasons is therefore not warranted. In brief, our order denying the Petition was based primarily on petitioner's counsel's concession at the oral argument that reasonable grounds for continuing pretrial detention had been presented at the Detention Healing by the Juvenile Intake Officer. At this hearing, the Judge also interviewed the child's parents.
The Hopi Children's Code provides that "No technical defect in any proceeding . . . shall invalidate any activity of the Court unless there is a showing of actual prejudice . . .' (Hopi Children's Code, Ch. III, S D(2)). The failure to take testimony under oath in this case was, at most, such a technical defect from which there has been no showing of prejudice. There is, therefore, no basis for invalidating the detention order. In the future, however, the best procedure would be to have testimony at detention hearings taken under oath unless that would interfere with the court's ability to reach a just and appropriate disposition. Cf. Rule 18(a) of the Hopi Indian Rules of Civil and Criminal Procedure: "At all hearings and trials, the testimony of witnesses shall be taken orally under oath unless otherwise provided in these rules."
Petition for Habeas Corpus Denied.
I hereby certify that a true copy of the foregoing was mailed/delivered to:
Hopi Tribe, Prosecutor's Office, Presenting Officer Michael E. Day, Counsel for Petitioner on the 24th day of February, 1992 by: Kathryn Kooyahoema