Choctaw Nation of Oklahoma

Plaintiff,

V.

Douglas Dry, Juanita McConnell, and Rosie Burlison,

Defendant.

No. CR-95-01, 02, 03,
04 and 05

Now, on this 24th day of January, 1997, the above entitled cause comes on for HEARING, before the Honorable James Wolfe, sitting in and for The Court of Indian 0ffenses, Choctaw Nation of Oklahoma.

APPEARANCES:

Mr. Robert Rabon, Jr. (On behalf of The Choctaw Nation)
Prosecuting Attorney
PO Box 726
Hugo, Oklahoma 74743

Mr. Scott Kayla Morrison (On behalf of the Defendants)
Attorney at Law
PO Box 637
Wilburton, Oklahoma 74578

THE COURT: Are you ready? Is that tape-recorder running? It is my understanding -- does someone have a camcorder in here?

SPECTATOR: I have got one.

THE COURT: If you do, you need to take it outside. CRM 95-1, 3, 4 and 5, these are the cases that we are going to take up today. Just let the record reflect that Rabon appears for the Tribe and this lady appears as a lay counselor, I suppose, for the other defendants. Are all these people here?

MS. MORRISON: Yes, sir.

THE COURT: Ms. McConnell, Ms. Burlison and Mr. Dry, I know Mr. Dry is here. Are the other two ladies here?

MS. MORRISON: Yes, they are. Ms. Burlison just took her camcorder out.

THE COURT: That's fine. This today is more in the nature of an informational opportunity for me, I guess. I thought I had ruled on the Motion to Dismiss and I obtained, somewhere I found this order that I obviously dictated and signed but I don't know when and it says: Now, on this 26th day of September, the Court does hereby overrule the It's Motion to Dismiss, exceptions allowed. And that's Defendant's in CR 95-1, 3 and 5. Now, these look like, to me, originals. You never did get these.

MS. MORRISON: No.

THE COURT: It has never been filed and it has never been filed up here. Whatever -- I don't know what I did and apologize for it. I don't know what I did. But anyway, I didn't get them up here to be filed. Now, what other -- so those -- so as of today, I'm going to issue those rulings, that ruling right there. And I will have Donna -- oh, I will have Donna change the date. Do you want them to say as of this date today?

MS. MORRISON: Yes, I do. This is the day that -

THE COURT: Okay. That's fine. I don't recall what day we had the hearing. It was a good while ago but I don't recall that. Of course, the order will be filed as of today. Now, what other -- and the other reason for having you up here today is to, is to determine what motions I haven't rule on. You indicated in a letter that you faxed me that there is a couple of other motions that need to be, that argument hasn't been had on yet; isn't that right?

MS. MORRISON: Yes, sir, that's correct. The other motion that we wanted a hearing on was the Motion for Disqualification of Tribal Prosecutor.

THE COURT: Okay. Just a minute. Okay. Now, I want you to understand and I want everyone to understand and I want the record to reflect that, that the inadvertence in not issuing this ruling is mine. If there had been some delay in hearing this motion, that is mine. I'm not trying to cause you to have to come up here every week to argue these things or cause anybody any difficulty time wise. But when do you want to argue this motion? We are not going to argue it today because I didn't come up here to hear arguments on a motion and I assume you are not prepared to argue it anyway.

MS. MORRISON: No, sir, I'm not. I would like 30 days to prepare.

THE COURT: Okay. Give me a day. You got a book?

MS. MORRISON: If I had my preference, I would prefer after February 27th. I'm taking the bar the 26th and 27th.

THE COURT: The Oklahoma Bar.

MS. MORRISON: Yes.

THE COURT: Lots of luck.

MS. MORRISON: Thanks. So I would rather not prepare for the hearing in the middle of that.

THE COURT: I can understand that and sympathize with it. Give me a date, Mr. Dry.

MR. DRY: Judge, any time after the 6th, the 6th or the 7th... is there a regular day that you have your motion hearings.

THE COURT: No, let's do it -- the 6th of what?

MR. DRY: The 6th or 7th of March, which is a Thursday or Friday or the following week.

THE COURT: Okay. Just a minute. Okay. You don't want it the 6th or the 7th?

MR. DRY: No, that's fine, Judge.

THE COURT: Okay. The 6th or the 7th or any time after that. Is that what you are telling me?

MR. DRY: I would prefer the 6th or the 7th if we could, Judge. I may end up being in D.C. the following two weeks.

THE COURT: Okay. What do you look like on the 6th or the 7th, Mr. Rabon?

MR. RABON: Well, other than my wife's expected due date, I don't have anything.

THE COURT: When is that?

MR. RABON: March 6th but she's probably going to be late anyway, so -

THE COURT: Okay. Well, now, are you agreeing that it can be heard on the 7th?

MR. RABON: Sure, that's fine.

THE COURT: Douglas?

MR. DRY: Yes, sir.

THE COURT: Ma'am?

MS. MORRISON: Yes, that's a good day.

THE COURT: The 7th at 1:30. Okay. Now, what are we going to do on the 7th at 1:30. What motions are still pending that need to be heard and that we are going to hear on the 7th of March?

MS. MORRISON: Okay. Your Honor, we had agreed back March 5th of last year that the only hearing we would have is the motion to disqualify the prosecutor. The other motions we have pending, we had agreed that we would, that you would just make a ruling based on the motions and the pleadings that have been filed.

THE COURT: What are the motions are pending other than -

MS. MORRISON: Okay. And that would be a Motion For Severance for Ms. Burlison and Ms. McConnell.

THE COURT: Wait just a minute. What else?

MS. MORRISON: Application For Change Of Venue.

THE COURT: All right.

MS. MORRISON: And Motion To Produce Exculpatory Evidence. There are four motions on that for each one of the cases.

THE COURT: Well, I can tell you, I can handle that right now. They are gonna, they are required to produce any exculpatory evidence to you. So that's -- we don't need to take that -- that's taken care of. If you want to prepare an order Mr me to sign, I don't mind -- and submit it to Mr. Rabon, I don't mind signing an order to that effect, because I can take care of that today. That has been taken care
of as far as I'm concerned. What else?

MS. MORRISON: Okay, yeah. Well, I would like a date of when I would be receiving these.

THE COURT: Well, let's make it, let's make it 30 days after the -- after we are -- if we are going to hear a motion to disqualify him and I disqualify him -- what do you want me to do?

MR. DRY: Judge, he's had, it has been about 17 months. I have never heard of a situation where a prosecutor doesn't provide discovery or exculpatory information. All we have been provided is 30 names of witnesses, of which 98 percent of them work for the Tribe. I think we should get the evidence in the next 15 days.

THE COURT: Well, it is supposed to be presented to you and it should have been presented to you and it will be presented to you and -

MR. DRY: I feel like it should be done within the next 15 days, Your Honor. They've had plenty of time to do that.

MR. RABON: I need more than 15 days.

THE COURT: I'm not going to do that. I'm not going to do that. I'm not exactly sure what it would be besides the witnesses but then maybe there is some stuff.

MS. MORRISON: Your Honor -

THE COURT: Okay. March the 7th, is that when the hearing is?

MR. DRY: Yes, sir.

THE COURT: March the 7th then. Okay. What else?

MS. MORRISON: Motion To Quash And Set Aside Information.

THE COURT: What else?

MS. MORRISON: Well, we had a Motion To Produce Exculpatory Evidence and a Motion For Discovery and I assume that both of those would be, have to be produced by March 7th.

THE COURT: Yeah. What else?

MS. MORRISON: Okay. Mr. Rabon has also filed a Motion For Discovery on us, two weeks after we receive his we will provide our witnesses.

THE COURT: Good for you. What else?

MS. MORRISON: There is also one other thing that is not pending before the court right now but also, I think it needs to be done in this case, is that the Bureau of Indian Affairs has evidence that we would -- that I want access to that I need access to and I'm not sure how to go about doing that other than subpoena ducas tecum for a hearing date, since they are not a party.

THE COURT: I would assume that that's -- I don't know what to tell you about that. That is your problem. I guess you are correct in that.

MR. DRY: Judge, if I could address that. If this -- it is our understanding from the arguments of the Tribal attorney and the prosecutor and I guess from the ruling of the constitutional court and I guess from this court, it seems to me the Tribe has abandoned any notion that this is a Tribal court; what they are saying, this is CFR/BIA Court administered by the Tribe, some kind of hybrid that I have never heard of.

THE COURT: Well, if you need to say something, let's go ahead and get it out.

MR. DRY: What I'm saying is, if this is funded by the BIA and the BIA has conceded that the police officers are federal agents and I think the judge has numerous times pointed
out the constitution applies, the US Constitution applies for our rights in this particular case, Mr. Rabon has taken an adverse position to that in the press, anyway._ What I'm requesting is the BIA has done an investigation on these allegations and I might add, they are offering quite a bit of money to everybody for their rights being violated in this thing but the bottom line, we want their investigation because it has plenty of exculpatory information, which Mr. Rabon has had access to since the beginning of this thing.

MR. RABON: I have not had access to any information that the BIA has.

THE COURT: Whoa, whoa, whoa. We are not here to argue motions. Now, I have already told you that. Now -- I'm sorry. If the BIA has something that you want -

MR. DRY: What we are prepared to file today is a subpoena ducas tecum and we ask for a hearing because I know if we don't get a hearing, if I subpoena just regular ducas tecum, I have to have a date; otherwise, we come to trial and they are going to show up -

THE COURT: I don't mind giving you a hearing date. If you want a date, okay, I will give you a date. What date do you want?

MR. DRY: In -

THE COURT: I'm not sure, well -

MR. DRY: Judge you have -- I'm assuming you have the authority -- I mean there has to be some authority if this is a federal instrument, arm of the federal government, you have to have authority to do that if it is a CFR Court. So I would ask for it in two weeks or any time thereafter within the next two weeks so we can amply prepare for these cases.

I might add, the BIA has declined to show up for two - after being subpoenaed in your constitutional court and this CFR Court, so that's why I wanted to make sure if they are not going to show up in the next two weeks, then we can, I guess, ask for contempt from this Court or some type.

THE COURT: You got me on this one, Douglas. I don't know, I don't know about that.

MR. DRY: I understand Indian law pretty well, judge. I'm maybe not an expert in the field but I understand fairly well. And I understand as I am a former prosecutor in the CFR Court, I understand these systems and I understand the difference between a Tribal Court and I also understand the US Constitution. And as a federal agent, they are going to have to provide that exculpatory information or we can't have a fair trial.

I will just tell, inform the Court, they have already revealed that there-is problems with this thing because they're trying to pay all the people that were arrested money to get them from even filing civil rights lawsuits. And I think that is very interesting that they are still funding the Court.

But anyway, if we could just have a hearing in two weeks and set it down on those -- they don't even have to show up if they will provide the information to us. So they can either provide the information to us or bring it down here to the court and explain to the court why they shouldn't have to provide the information to us, the documents and discovery, exculpatory information; so that we can have, if this is going to be a legitimate court, so that we can have legitimate due process.

MR. RABON: What evidence are we talking about?

MR. DRY: I'm talking about interviews with numerous witnesses, to include most of your witnesses.

MR. RABON: Held by my office? Conducted by my office?

MR. DRY: Not conducted by your office.

MR. RABON: How is it relevant then here if my office hasn't conducted it?

MR. DRY: Your police officers, any employee that works for the Rabon Firm, we know that. So anybody that was interviewed, the BIA has access to it, you have access to it.

MR. RABON: I haven't seen any interviews -

MR. DRY: Because you haven't done-your job, Mr. Rabon.

MR. RABON: Whatever.

THE COURT: Let me tell you what we are going to do.

MR. RABON: He wants to subpoena information held by some third party that relates to this proceeding, I think that's what he's saying.

MR. DRY: The very third party that funds this court and funds your salary and funds the judge's salary and funds the court and it funds the law enforcement that brought us here.

MS. MORRISON: The Bureau of Indian affairs conducted a six month investigation into the allegations -

MR. RABON: You all know a whole lot more about this
than I do, obviously. I mean I didn't know there was an
investigation going on.

MR. DRY: Because I'm a former prosecutor, Mr. Rabon.

THE COURT: Let me tell you guys something -

MR. RABON: Barely a prosecutor.

THE COURT: Bobby, now I want you to be quiet and I want you to be quiet. Sit down, Mr. Dry.

Well, I tell you what -- well, I will set it for February the 14th, February the 14th and you can go ahead and issue it and I assume if they don't want to go comply with that, they can come up here and show me why they can't and not have to or whatever. What else?

MR. DRY: Judge, will that be at 1:30?

THE COURT: Yeah, 1:30.

MR. RABON: What?

THE COURT: The first date that I gave you was the 6th and 7th of March, wasn't it?

MS. HEFLIN: Yes, it was the 7th.

THE COURT: Whatever date was it? The 7th of March?

MS. MORRISON: Yeah, the 7th of March at 1:30.

THE COURT: All right. That's on these motions?

MS. MORRISON: Yes.

THE COURT: Then this 14th day of February is this subpoena problem with the BIA; is that correct?

MS. MORRISON: Yes.

THE COURT: All right. What else?

MS. MORRISON: I have some motions to file today: A Demand For a Speedy Trial and A Demand For A Jury Trial for Mr. Dry. So, after all these other motions are -

THE COURT: You want to hear them on the same day? You want to hear them at the same time?

MR. DRY: Judge, could we just set it for a trial for myself; it would be plenty of time to have the evidence exchanged.

THE COURT: Yeah, that's fine.

MR. DRY: I'm assuming, judge, whenever you set it, at least 15 days in advance we will be provided a jury list.

THE COURT: Yeah, that's correct, Mr. Dry. You are exactly right.

MR. DRY: We are not sure how the procedure is going to be in drawing that jury, that might be something we can discuss in a status conference or at the next hearing on the, with the BIA hearing.

THE COURT: I tell you what I will assure you, Mr. Dry, you and the rest of these ladies -- these other two ladies that are charged with this, whatever these crimes are, whatever it takes to get you a fair trial, that's fully what I intend to give you. You understand?

MR. DRY: Then I'm assuming I would have access to the complete jury pool?

THE COURT: Now, if we are going to get into this - if we are going to get into this deal that I have already ruled on about the voter list and all this kind of stuff, I'm not going to go back and do something -- undo something that I have done. Now, I'm not sure exactly how that is going to work.

MR. DRY: In normal court, judge -

THE COURT: Now, Mr. Dry, let me explain something to you, I don't know whether I know what I am doing or not and I'm not suggesting to you that I do but whatever I do will be with the fairness for all these defendants in mind. So don't Is there anything else?

MR. DRY: All I'm asking, you sat on the bench

THE COURT: Is there anything else?

MR. DRY: -- for twelve years -

THE COURT: Is there anything else?

MR. DRY: -- and I'm just asking you to conduct the trial and the jury list like you did while you was a state judge.

MS. MORRISON: I have -

THE COURT: Are there any other motions?

MS. MORRISON: I have an amendment to my motion to disqualify the prosecutor that I will be filing.

THE COURT: You need to file it today and that will be taken up whenever we have this hearing. So is there anything else?

MS. MORRISON: Your Honor, were you going to set a date for trial now?

THE COURT: No. Anything else?

MS. MORRISON: No.

THE COURT: Donna, do you have the dates down?

MS. HEFLIN: Yes.

MR. DRY: Judge, if I might. Are you saying you are not going to set a date for April or you will set a date for April?

THE COURT: -I'm not going to set a date for trial right now. There is no date for trial set as of this date.

MR. DRY: With our Motion For Speedy Jury Trial that we are going to file, there still won't be no date?

THE COURT: There has been no date set as of this date, that's right. You are exactly correct. Anything else? Ma'am?

MS. MORRISON: No.

THE COURT: Mr. Rabon?

MR. RABON: No.

THE COURT: We are adjourned.