Dismissal

On Thursday, September 12, Judge Nichol gave his instructions to the jury, covering eighty-two points of law which had been submitted by both sides, touching the role of the jury as well as the details of the five charges.

The jury deliberated for eight hours and retired for the night in a St. Paul hotel shortly before 10 P.M. Before they could resume their consideration on Friday, one juror, Therese C., suffered a mild stroke. Judge Nichol visited her in the hospital, met with three doctors, and announced that she would not be able to continue on the jury.⁶⁷ The government refused to accept a verdict by the remaining eleven jurors. “I am powerless to do anything more than ask or suggest,” Judge Nichol angrily told those assembled in the courtroom on Monday. After a trial of nine months “that has involved the lives of at least a hundred families, if you include witnesses, counsel, marshals, members of my staff, other persons here in the district of Minnesota that have been necessary attendants in this Court, it seems to me that it’s almost incredible that it cannot be agreed that this case could proceed to verdict.”⁶⁸

Judge Nichol had once been the assistant U.S. attorney for South Dakota, Hurd’s current position. This gave Nichol an understanding of the dilemma Hurd faced: How could Hurd fulfill his duty to the court when he must carry out the instruction of the Justice Department? The only good thing Judge Nichol could find to say about the instruction was that Hurd had received it without the usual wait of several weeks. Nichol sharply criticized the directive as contrary to the obligation of the government.

The defense filed a motion for a judgment of acquittal. Judge Nichol pointed out that the difference between acquittal and dismissal was slight, that acquittal could not be appealed and dismissal could. The Court of Appeal, however, is at liberty to treat a judgment for dismissal as one for acquittal. He then revealed his decision. He recalled that in April when deciding the motion to dismiss he had said that he was “at the brink of dismissal. I think it’s only fair to say, and you will see the reasons very shortly, I am now over the brink.” Since the decision in April, he continued, four serious matters drove him over the brink: (1) the entire testimony of a sixteen-year-old government witness had to be stricken from the record because of a government misconduct in failing to furnish the defense with a document revealing that he had been in jail, contrary to his testimony, when he had claimed to be at Wounded Knee; (2) the Louis Moves Camp matter, “a most serious misconduct,” which involved Hurd’s helping a coverup; (3) the illegal use of the military to quell the occupation; and (4) the final blow, the refusal by the government to permit the case to go to a verdict.⁷⁰

One of the reasons Judge Nichol wanted a jury verdict in this case was that there were trials of other AIM leaders involved in the Wounded Knee takeover pending in Lincoln, Nebraska. He told the jury that they would soon learn how the alternates would have decided, albeit without deliberation, but “if the government could not produce sufficient evidence in nearly eight months of trial to convince you that the two persons, who were the sort of self-appointed leaders of the whole thing,” were guilty then should the others be tried? It resembles, Judge Nichol noted, the situation of the Nixon aides facing trial after Ford had pardoned Nixon, an event which had happened the previous week.

Judge Nichol had sharp criticism of the FBI. Its manner of operating had “certainly deteriorated,” particularly when FBI agents went barhopping with Moves Camp, “let him have all the liquor he wanted…[but] did a pretty good job of trying to keep up with him.” Even more serious, as Judge Nichol saw it, was the conduct of the prosecutor: “I don’t think Mr. Hurd is going to like this. Maybe our relationship is going to be different from now on…[but] Mr. Hurd deceived the Court up here at the Bench in connection with the Moves Camp incident in Wisconsin. It hurts me deeply. It’s going to take me a long time to forget it.” When he had told Judge Nichol that the charges in River Falls were nothing more than ordinary public intoxication, Hurd knew in fact that they involved rape. When the defense asked for a lie detector test on Moves Camp, the head of the FBI in Minnesota and the Dakotas, not the prosecution, said no. “Since when does the FBI start telling the prosecution that they can’t have a lie detector test if they want to?” Nor was there anything to prevent Hurd from checking Move Camp’s California story himself. “I say that Mr. Hurd’s errors have been errors of judgment, negligence that could have been avoided, had he been half as thorough, checked half as hard as counsel for the defendants did in this case. I think the negligence on the part of the government has been to such an extent in this case that it involves governmental misconduct; and I’m rather ashamed that our government was not represented better in the trial of this case.”⁷¹

Finally, Judge Nichol turned to the military involvement, a violation of the tradition of civilian government. “I was proud to serve in World War II, but we don’t have the military running the civilian affairs and particularly we don’t want the military running the FBI and marshals or any part in the execution of laws.” Although U.S. marshals were never trained to handle a situation like Wounded Knee, and in spite of the evidence that Col.

Reactions to the conclusion of the Wounded Knee trial were varied, but one in particular deserves note. When he learned about the result of the trial, Richard Wilson called it “a total breakdown of the judicial system.”⁷³ Had the jury been allowed to come to a verdict, what might the result have been? There are two indications. On the larceny charge, in ballots taken before one juror had a stroke, the jury had stood 11-1 for acquittal of Banks and 8–4 for acquittal of Means. On the charge of conspiracy the jury had voted at first 8–3, then unanimously for acquittal of both Banks and Means. A verdict, had it been reached, would not have answered the dilemma of the trial any better than the dismissal which did result.

This dilemma is: How can the integrity of the rule of law be preserved when social movements protest injustices of the established order? The question infused the trial from beginning to end. If it was not answered, it was at least clarified. The contention between the American Indians of AIM persuasion and the rest of American society, as represented by BIA or other government agencies, was dramatized by the trial. Drama is our best way of understanding difficult questions, those we may never answer but must face. The trial, whatever its outcome, set before us in a public forum a contradiction we might not be able to resolve but which we must understand if we are to maintain a vital society and a democratic government. Both the rule of law and social justice are essential. We cannot allow any faction, even that of a democratically responsive government, to claim in triumph that one determines the other.