The lower levels of government also track that of American state and local government. There are, for example, boards and commissions which, as in America, regulate and control alcoholic beverages, zoning, paroles and pardons, and even boxing. And a criminal justice planning agency receives funds from our own Law Enforcement Assistance Administration.
American Samoa has its Constitution with a Bill of Rights. The latter contains all of the procedural protections of our own Constitution for criminal defendants except the grand and petit jury requirements. These include protection against unlawful search and seizures, the exclusionary rule against the admission of illegally seized evidence, the protection against double jeopardy, the privilege against self-incrimination, the right of cross-examination and confrontation, the presumption of innocence, the right to bail, and the right to the assistance of counsel, and the time honored writ of habeas corpus. According to a defense witness, Justice Jochimsen, there has been no difficulty in administering the system of criminal justice which is similar to our own in so many respects.
The High Court of American Samoa follows the American system of trial. It is an adversary system with a prosecuting attorney on one side and defense counsel on the other; witnesses testify under oath and are cross-examined. The Federal Rules of Criminal Procedure apply fully except for the jury trial provision. And finally the Samoan substantive law is a virtual transplant of the American. Title 15 of the Code of American Samoa defines the basic crimes and virtually all of them are derived from our Title 18. As a matter of fact the Federal Internal Revenue Code is incorporated by reference into the law of American Samoa, including the specific provisions under which the plaintiff was prosecuted.
The correlation of educational levels and the viability of democratic institutions is for the most part undisputed, and specific relationship between education and an effective jury system was recognized by virtually every person who testified in this case. All agreed that educational advances in American Samoa during the last ten or fifteen years have been extraordinary. School attendance is compulsory through age 18 or graduation from high school, and there is an increasing emphasis on higher education. A community college, opened in 1971, is well attended, and since 1972 has graduated between 100 and 130 persons annually. In addition, a substantial number of American Samoans have been educated in schools in the United States. Some have returned with law degrees and master's degrees.
Also, in 1964 American Samoa pioneered in the use of educational television. The main thrust of this project is the teaching of English in the primary and secondary schools, but it is also used for adult education programming. Bilingual persons are commonplace, and almost all American Samoans can read and write in Samoan. When needed, interpreters are readily available.
From a logistical and administrative point of view, the jury system in American Samoa is entirely feasible. The evidence indicates that there are about 7,000 registered voters with the vast majority of them situated on the main island of Tutuila where the courthouse is located. Available transportation eliminates any problem of access to the courthouse. A roll of registered voters is maintained by the election department of the government and this should provide an adequate pool of prospective jurors who are most likely to be literate and educated.
Caseload statistics in the High Court of American Samoa indicate that jury trial would not overtax the judicial system. In fiscal 1975 there were only 165 criminal filings, and most of these, as is the case in the United States, did not result in trial, but were disposed of by way of the plea bargaining route. No evidence was offered to the effect that the rate of dispositions by pleas would be appreciably affected by the introduction of a jury trial.
The present court system of American Samoa is already handling effectively any problems arising out of the bilingual nature of the society. Interpreters provide simultaneous translation in both civil and criminal cases which are tried in the High Court. The questions are put in English and translated into Samoan. Witnesses answer in whatever language they choose and the responses are immediately translated. Colloquy between the court which is in English is translated into Samoan for the benefit of the Samoan associate judges. Nothing in the evidence points to the fact that this translation system would not function as well in jury proceedings as it does presently in trials before the court. A similar system of translation is in current use in Western Samoa which has the same two official languages, English and Samoan, as American Samoa.
Finally, the evidence established that the personnel and officers which would make a jury system work effectively are already present in American Samoa, i.e., professional prosecutors, a public defender office, and a number of American Samoan defense attorneys who are graduates of American law schools and are trained in the American judicial system.
One final word. The witnesses, both for the plaintiff and the defendant, agree that jury trial would be a desirable feature of American Samoa's criminal justice system. The only points of difference arise with the questions of when should it be instituted, and by whom. I wish to emphasize that I have great sensitivity to the views expressed by most of the witnesses that these questions should be resolved by American Samoans themselves. On its face this position has considerable appeal.
However, the many expressions of this point of view do not of themselves establish dispositively the impracticality or anomaly of a jury trial in serious criminal proceedings in American Samoa at this time. I am required at this juncture to consider, as best I can, all of the circumstances bearing on this issue. The fact is that all of the hard evidence which bears on the actual situation in American Samoa today in terms of its legal and cultural development cuts the other way, and leads me to the inescapable conclusion that trial by jury in American Samoa as of the time when Jake King went to trial on the criminal charges here involved would not have been, and is not now, "impractical and anomalous".
Accordingly, plaintiff is entitled to the relief prayed for. Therefore this court (1) concludes that the provisions of the Revised Code of American Samoa, the Rules of the High Court of American Samoa, and the rules and regulations of the Secretary of the Interior, which deny the right of trial by jury in criminal cases in American Samoa are unconstitutional on their face and as applied to plaintiff, and that the defendant, his appointees, agents, employees, and all other persons subject to his authority and control cannot lawfully enforce these provisions or act pursuant to them; and (2) permanently enjoins the defendant, his appointees, agents, employees, and all other persons subject to his authority and control from enforcing any judgment of criminal conviction against plaintiff obtained without according him a right to trial by jury.
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