Jeri Johnson-DeCola and her legal team returned to court to attempt to get her April 2002 conviction on 59 counts of fraud dismissed. They also want a new trial.
Johnson-DeCola was back in court March 19 and will have another day in court April 17. Johnson-DeCola was convicted by a jury of non-tribal Native Americans in the Tonto Apache's court. The charges were based on the fact that she did not disclose to the tribal council, of which she was vice chairman, a November 1998 charge and conviction for driving under the influence of alcohol. She was told she committed fraud by failing to disclose the DUI.
According to the tribe's constitution, "Any person who has been convicted of a felony, or who within the last year preceding the election has been convicted of a misdemeanor shall not be entitled to run or hold office on the tribal council.
"The tribal council shall make the final decision on whether a candidate meets these qualifications."
When asked about the conviction in October 1999, she admitted she had been convicted and resigned from the tribal council.
"I did disclose it to the Tribal Gaming Office as required, but there was no disclosure clause in the Tribal Constitution and therefore I did not disclose this to the council. The section I was cited with was under the election section, and is for candidates for office. I was already in office," Johnson-DeCola said in a April 29, 2002 written statement.
Johnson-DeCola's attorney, John Checkett, based his request for dismissal on the claim the defendant was denied a fair trial as a result of alleged prosecutorial misconduct.
The new trial is sought because the defense claims there is newly discovered evidence to be shown at an evidentiary hearing through the testimony of current and former members of the tribal council.
A new trial is needed because there is now an affidavit from a witness that shows a member of the jury discussed the case outside of court and expressed concern about their decision having an impact on their chances of getting a job at the casino, according to Checkett.
Among the items Checkett cited as prosecutorial misconduct:
- Failure to submit a breakdown of its costs and fees, as ordered by Judge Tao Etpison;
- Violation of the judge's directive to not bring up the defendant's conviction for driving under the influence of alcohol; and
- Generally showed a pattern of negligence.
Prosecutor Randy Lang argued the court did not have jurisdiction to dismiss the conviction or a new trial because the case was now in the hands of the Indian Southwest Court of Appeals. He said there was no prosecutorial misconduct and the delay in breaking down his fees and costs took place after Johnson-DeCola's conviction and sentencing.
He said the affidavit was hearsay and did not constitute new evidence.
Checkett argued the appeal was put on hold until the fees and costs were made available from the prosecution. He also said information in the affidavit was not hearsay.
"Discussion of the case outside the court by a juror is inappropriate," Checkett said. "Tying their decision to a job (in the casino) is even worse. This alone is enough for a new trial."
The judge asked how long the defense would need to review the figures and gave Checkett the 30 days requested.
Lang asked to limit the review to 10 days, which the judge denied.
Etpison ruled that much of what was cited by Checkett did not prove prosecutorial misconduct and consequently Johnson-DeCola had received a fair trial. He did agree the fees and costs were not submitted in a timely manner, but as they were part of post-verdict administrative process that argument did not show denial of a fair trial.
The judge also ruled that the affidavit from the witness who was spoken to by a juror will be "considered only to the extent that a juror spoke to her, but the alleged statement is stricken as hearsay."
Another hearing was set for 10 a.m., Thursday, April 17. The attorneys are to brief the court on the following:
- Whether a subpoena can be issued compelling the attendance of an elected official for investigative purposes.
- Whether a conviction record of a tribal council member is relevant to the case.
- Whether alleged bad acts of other council members are relevant to this case.