Tribe: Mashantucket Pequot Indian Tribe
§ 5. Procedure and Evidence; Neetskehheau-Pomushaonk Program
Judges are authorized to develop rules of criminal procedure and evidence that
are consistent with this law and with other tribal law. The proposed rules of
criminal procedure and evidence shall be effective upon submission to and
approval by the Tribal Council. Until such time as tribal criminal rules of
procedure and evidence are effective, the tribal court shall use the Superior
Court Rules of Criminal Procedure and Rules of Evidence applicable in the state
of Connecticut. The tribal court may be guided but shall not be bound by
decisions of the courts of the State, which interpret the Connecticut Superior
Court Rules of Criminal Procedure and Rules of Evidence.
In the event of conflict between the state rules of criminal procedure and
evidence and tribal law, the provisions of tribal law shall govern.
The chief judge may establish a separate criminal docket, entitled
“Neetskehheau-Pomushaonk” (Healing Journey) for the hearing of criminal matters
in which a defendant is a drug-dependent or alcohol-dependent person or is
charged with the commission of an offense while under the influence of drugs or
alcohol.
A
drug or alcohol-dependent person is one who has a clinically
maladaptive pattern of drug or alcohol use that causes significant functional
impairment as defined in the most recent edition of the Diagnostic and
Statistical Manual of Mental Disorders of the American Psychiatric Association.
The program shall be available to those offenders who could benefit from
placement in a substance abuse treatment program. […] § 3. Pre-trial Intervention Program
a. Establishment. The Tribal Council further authorized the establishment of
the position of PTI program director whose compensation shall be set by the
Tribal Council, and whose duties shall include the following:
(1) establish appropriate forms and applications for applicants to the PTI
program;
(2) maintain all records of the PTI program;
(3) review and investigate information submitted by PTI applicants;
(4) make determinations for PTI acceptance or denial consistent with this PTI
Law and the attendant guidelines; (5) maintain the PTI Registry;
(6) interact with the Tribal PTI Commission in their review of PTI applications
and applicant performance of PTI duties;
(7) interact with the Tribal Council and office of the tribal prosecutor in the
review of PTI applications; and
(8) maintain records of PTI performance by persons accepted for enrollment.
b. Procedures. The PTI program shall utilize the following operational system:
(1) The chief judge of the tribal court shall designate a judge to act on all
matters pertaining to the PTI program;
(2) In order to facilitate the operation of the PTI program, the tribal court
shall adopt guidelines that are consistent with the spirit, intent and terms of
this Law. Such guidelines shall prescribe the method and criteria for filing
PTI applications pursuant to this Law. No interpretations of such guidelines
shall be inconsistent with the terms of this Law;
(3) If a defendant’s application for PTI is approved by the program director
and consented to by the tribal prosecutor, prior to the submission to the
tribal court, the program director shall notify the tribal PTI Commission of
such preliminary acceptance. The program director shall then recommend to the
tribal PTI Commission, a course of rehabilitative activity for each accepted
defendant. Such rehabilitative activity may include, but is not limited to,
the following:
(a) drug/alcohol abuse evaluation in order to determine if the defendant is
appropriate for the program. Defendants determined to be substance abusers
will not be eligible for the PTI Program, but may be eligible for the Healing
Journey Program.
(b) community service consistent with PTI Guidelines to be established by the
tribal court;
(c) reasonable restitution or other remedial action to victims of the
defendant’s criminal offenses including the tribal community as a whole; and
(d) any other rehabilitative directive that fairly balances the harm to the
victim(s) with the goal of rehabilitation.
(4) After the tribal PTI Commission’s receipt and review of the program
director’s recommendations, the following procedure shall occur:
(a) The tribal PTI Commission shall then schedule a meeting with the PTI
program director and the applicant. At the meeting, the defendant’s charges
and recommended PTI rehabilitative activities shall be discussed. The tribal
PTI Commission shall first determine if the program director’s recommended
rehabilitative plan is sufficient to achieve the Tribe’s goals for
rehabilitation. The tribal PTI Commission may, on its own motion, supplement
or modify the recommended treatment, duties and/or responsibilities assigned to
applicant. (b) After a thorough discussion of the rehabilitative plan, the PTI applicant
shall indicate his acceptance or rejection, in writing, of the terms and
conditions of said plan. If the applicant accepts the PTI requirements of the
plan, the program director shall transmit to the tribal court, the PTI
program’s
recommendation for the applicant’s acceptance and written
confirmation of the tribal prosecutor’s consent thereto. The program director
shall also transmit the recommended rehabilitative action plan submitted to the
PTI program and the tribal PTI Commission. If the court approves the
applicant’s PTI enrollment, the tribal court shall accept the rehabilitative
recommendations and may modify or supplement such recommendations only if their
implementation would constitute a clear abuse of the goals and objectives of
the PTI program.
(c) If the applicant rejects the proposed rehabilitative plan, the applicant
shall be ineligible for continued PTI consideration and a recommendation shall
be made to the tribal court consistent with 2 M.P.T.L. ch. 6, § 3(b)(6)(c). If
the applicant initially accepts the rehabilitative program and thereafter
refuses to satisfy the established criteria, the applicant shall also be
subject to the termination pursuant to 2 M.P.T.L. ch. 6, § 3(b)(6)(c).
(5) Where a defendant charged with a criminal offense has been accepted by the
program the designated judge may, on recommendation of the PTI program
director, and with the consent of the tribal prosecutor and the defendant,
postpone all further proceedings against said defendant on such charges for a
period not to exceed one year.
(6) At the conclusion of such one year period, the designated judge shall make
one of the following dispositions:
(a) On recommendation of the PTI program director and with the consent of the
tribal prosecutor and the defendant, dismiss the complaint against the
defendant, such dismissal to be designated and titled “complaint dismissed—PTI
successfully completed”;
(b) On recommendation of the PTI program director and with the consent of the
tribal prosecutor and the defendant, further postpone all proceedings against
such defendant on such charges for an additional period not to exceed one year;
(c) On the written recommendation of the PTI program director, or the tribal
prosecutor, or on the court’s own motion, order the prosecution of the
defendant to proceed in the ordinary course. Where a recommendation for such
an order is made by the PTI program director or by the tribal prosecutor, such
person shall, before submitting such recommendation to the designated judge,
provide the defendant or their attorney with a copy of such recommendation,
shall advise the defendant of their opportunity to be heard thereon and the
designated judge shall afford the defendant such a hearing;
(d) During the conduct of hearings subsequent to an order returning the
defendant to prosecution in the ordinary course, no PTI program records, PTI
investigative reports, or any statements made by the defendant to the PTI
program staff, the PTI Commission, or any person designated to provide
supervisory or rehabilitative treatment, shall be admissible in evidence
against such defendant. No such hearing with respect to such defendant shall be conducted by the designated judge who issues the order returning the
defendant to prosecution in the ordinary course;
(e) No PTI program records, PTI investigative reports of statements made by the
defendant to the PTI program staff, the PTI Commission, or to any person
designated to provide supervisory or rehabilitative treatment, shall be
disclosed at any time to the prosecutor, nor shall any such statement of
disclosure be admitted as evidence in any civil or criminal proceeding against
the participant, provided that the program director shall not be prevented from
informing the prosecutor, or the court, upon request or otherwise, whether the
participant is satisfactorily responding to supervisory treatment;
(f) Where proceedings have been postponed against a defendant for a second
period of one year as provided in PTI law section 3(b)(6)(b); at the
conclusion of such additional period not to exceed one year, the designated
judge may not postpone the proceeding but shall make a disposition in
accordance with the PTI law section 3(b)(6)(a) or section 3(b)(6)(c). The
aggregate of postponement periods under this Rule shall not exceed two years;
(g) The PTI program director in conjunction with the tribal clerk, shall
establish and maintain a PTI registry for the purpose of determining
applications, enrollments and the degree of completion thereof by a defendant
in the PTI program. The PTI registry shall contain such information and
material as directed by the tribal court;
(h) When a program director or tribal prosecutor, either individually or
jointly reject an application for participation in the PTI program, the
defendant shall have a right to appeal from such enrollment denial to the
designated judge.
The burden to establish eligibility shall be on the
defendant.
In addition thereto, the defendant also must show that the PTI
enrollment denial by either the program director and/or tribal prosecutor was
an arbitrary and capricious action. If such a showing is made, the judge may
order the enrollment of the defendant into the PTI program. If such showing is
not made, the defendant shall be prosecuted in the ordinary course;
Where a defendant has been approved for enrollment by both the PTI program
director and the tribal prosecutor, the designated judge shall have authority
to reject the defendant’s enrollment if the interests of justice so requires.
A decision by the designated judge to disregard the recommendations for
enrollment and so exclude the defendant from the PTI process shall not be
reviewable upon appeal.