Historic court session held in Cherokee

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Historic court session held in Cherokee

Following the session Fourth Circuit Judge Henry Floyd (from left to right), Fourth Circuit Judge Barbara Keenan, Chief Fourth Circuit Judge Roger Gregory, Cherokee Chief Justice Kirk Saunooke, Cherokee Chief Judge Thomas Cochran and Associate Cherokee Judge Randle Jones stand in the empty courtroom. Donated photo

A man claiming the courts misled him when accepting his guilty plea. A woman with a disability contending termination from her job amounted to unlawful discrimination. A man convicted of murder in 1976 arguing that new facts show that he is innocent.

These are the cases that the U.S. Fourth Circuit Court of Appeals will be deciding following an historic session held at the Cherokee Justice Center Thursday, Nov. 18. The two-hour session represented the first time that a federal court of appeals had ever held court on tribal land.

“It was historic for us,” said Cherokee Chief Judge Kirk Saunooke.

It started with a letter that Saunooke and Chief Judge Thomas Cochran wrote to Fourth Circuit Chief Judge Roger Gregory, asking that the court consider coming to Cherokee. Though it normally sits in Richmond, the Fourth Circuit will occasionally meet in other parts of its five-state territory. Having that invitation accepted provided an important opportunity for the judiciary as well as for the Cherokee people, Saunooke said.

“It brings attention to the tribal courts,” he said. “A lot of people don’t understand how tribal courts work, and I think by bringing the circuit in, it exposes the federal judiciary itself to how tribal courts actually work. They’re just like state court and other courts with sets of laws and penalties. We do the same work that other courts do.”

Similarly, a lot of people don’t understand how courts of appeal work. They’re different from district-level courts, because their purpose is not to retry the facts of the case. Rather, they hear challenges to the way district-level courts arrived at their decisions. Most people — and most attorneys — will never sit through a court of appeals hearing, and because there are only 11 federal courts of appeals in the country, most people live far away from where their district’s judges sit.

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Each district has 15 judges, with most cases heard by a panel of three. Gregory and Judges Barbara Keenan and Henry Floyd presided over the Nov. 18 session. Keenan and Floyd were appointed by President Barak Obama, and Gregory was a recess appointment of former President Bill Clinton and nominated to a full term by President George W. Bush. He was named chief judge in 2016.

Thursday’s session started at 9 a.m. sharp, with one marked change from the typical mode of proceedings. As the clerk read out her usual script — “Oyez, Oyez, Oyez, all persons having any manner or form of business before the honorable United States Court of Appeals of the Fourth Circuit are admonished to draw near and give their attention, for the court is now sitting” — Cherokee Beloved Woman Myrtle Driver stood beside her, translating to the Cherokee language.

The court first heard the case of Jesmene Lockhart, a Charlotte man who pled guilty to possessing a gun as a felon. Lockhart’s attorney claimed that his client was “sorely misled” about the consequences of pleading guilty, with the court telling him he’d face a 10-year maximum sentence when in fact he faced a 15-year minimum — he was ultimately sentenced to 15 years.

“If he had been properly advised, he had every incentive to roll the dice and go to trial,” said Lockhart’s attorney.

Prosecutor Amy Ray, meanwhile, said that while the judge did give Lockhart the wrong information, the pre-sentencing report had the right information, and in court Lockhart stated that he had read and understood the report. Available evidence suggests that the wrongful advice did not affect the outcome of the case, she said.

“I feel a little uncomfortable with the concept that someone says, ‘I read the report’ and they understand everything that’s going on,” Keenan commented.

If the court rules in Lockhart’s favor, the case will return to district court.

After half an hour of arguments, the court proceeded to its second case, in which the Equal Employment Opportunity Commission alleged that South Carolina-based McLeod Health had unlawfully required its employee Cecelia Whitten to undergo a medical exam that ultimately resulted in Whitten losing her job. McLeod said the results showed she was unable to do the work. Whitten has a congenital condition that makes it hard for her to stand for long periods of time, but in the 28 years she held the position she performed her job without falling “in the way McLeod feared,” said EEOC attorney Jeremy Horowitz.

McLeod’s attorney Mike Shetterly, meanwhile, contended that over the past 28 years McLeod had grown from one campus to five. Whitten’s job was to write McLeod’s newsletter, which required traveling to its various locations to report those stories. Shetterly contended that sort of mobility was difficult for Whitten and that she had started asking employees at those outlying locations to put stories together to send to her.

Shetterly endured close questioning from Kennan and Gregory, who pointed out that Whitten hadn’t fallen on the job at all except once, when she tripped on a rug, and that her condition hadn’t caused her to habitually call in sick. Because of all of the conflicting details of the case, said Keenan, “why isn’t this for a jury to sit and weigh?”

The final case involved that of Charles Finch, who was convicted of felony murder and sentenced to death in July 1976, though the death sentence was changed to life in prison on appeal. Finch’s attorney Jim Coleman told the court that the main case against him involved an eyewitness identification obtained from what Coleman described as “unnecessarily suggestive lineups.” The witness, Lester Floyd Jones, had described the perpetrator as wearing a three-quarter-length coat. Finch was wearing such a coat when he was arrested for possible connection with an unspecified robbery, but he was the only one in the lineup to be wearing one, Coleman said.

In addition, Finch had an alibi — he was playing cards with friends that evening until about half an hour after the murder occurred.

“Our claim is that Mr. Finch was not involved in any way,” said Coleman.

Assistant N.C. Attorney General Nick Vlahos contended that there is still evidence to show that Finch is guilty, including a witness seeing Finch at the store about 40 minutes before the murder and physical evidence collected at the scene. In addition, Vlahos said, there were “holes all through” the alibi, as Finch left the card game at various points.

However, he endured tough questioning from Gregory regarding the lineup.

“Do you think that’s suggestive?” asked Gregory.

“Only that aspect of it,” said Vlahos, referencing the coat.

“Is that a yes?”

“I would argue to you—”

“Is that a yes?” Gregory repeated. Vlahos gave a nervous laugh in response, to which Gregory said, “I’m not laughing. Is that a yes?”

“I’ll tell you what the state court said.”

“You still need to answer the question,” Gregory said. “Is that suggestive?”

“It could be, your honor,” Vlahos conceded.

The three cases were part of the small proportion of U.S. Court of Appeals cases that actually get an oral hearing. For every 10 appeals filed, only one winds up before the judges. Another 1 in 10 disappears for some reason or another, while the remaining eight are decided by computer conference. When a case comes up, the judges assigned to it look at the record. If any one of them wants an oral hearing before deciding, it goes on the calendar.

The Nov. 18 cases haven’t been decided yet — it will take a couple months for the judges to decide and produce written opinions — but they may not be the last Fourth Circuit cases to be heard in Cherokee.

“There’s every reason to come back,” said Gregory.

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