JUDGE WOLFE: Got your recorder on Ma'am.

MORRISON: Yes.

JUDGE WOLFE: This is in the Court of Indian 0ffenses of the Choctaw Nation of Oklahoma. CFR 95-01,02,05. Choctaw Nation vs. Douglas Dry and others. The Tribe is here - represented by... If I make the appearances incorrectly please inform me. Is here by Robert L. Rabon. The defendant Douglas Dry is here in person and represented by, Scott Kayla MORRISON.

MORRISON: Yes-

JUDGE WOLFE: This comes on today on a hearing to disqualify the prosecutor.

MORRISON: Yes that is correct. There is other motion in other discovery and other things that need taken care of after we argue the motion to recuse the prosecutor.

JUDGE WOLFE: Go ahead.

MORRISON: Well, Your Honor after your letter and several witnesses did not honor my subpoenas so I am kinda ham strung in a way as far as what I can argue. As I see it that leaves me with two reasons of why Mr. Rabon should be recused as prosecutor in this matter. One is that the U.S. Constitution as well the Choctaw Constitution separation of powers. Mr. Rabon is acting as under the Judicial Branch he is also a partner in the law firm that represents the tribe. Mr. Rabon himself has represented the council in other cases as the Legislative Branch and his law firm has also represented the Executive Branch- So all three of the branches of government come together under Mr. Rabon and that violates the separation of powers, so he should be recused from this matter. The second reason, actually was provided to me by his law partner Bob Rabon in his special appearance and motion to quash subpoena. Mr. Rabon will be a material witness at trial. The reason for that is that he supervised the police officers and that he instructed the police officers as to what charges Mr. Dry and the others would be charged with on September the 4th, 1995. Mr. Rabon, Bobby Rabon, was not even here Labor Day, so his father and law partner was the one advising the Tribal Police, so therefore he will be a material witness at trial. However, as he points out in his motion to quash, that it is unethical for an attorney to be a witness in a cause wherein he or his law partner is acting as counsel. So, therefore, Mr. Rabon, as long as Bobby Rabon is Tribal Prosecutor, then we will not be able to call Bob Rabon as a witness and that will create an unfair situation for all my clients.

JUDGE WOLFE: Is that all?

SCOTT MORRISON: That's it.

JUDGE WOLFE: Mr. Rabon

MR. RABON: As to the separation of powers document, it kinda takes me back to junior high civics.

JUDGE WOLFE: I'm not concerned about the separation of state... uh I'm not concerned about.--I want to know whether your law firm is going to be a material witness in this case-

Mr. Rabon: Well it seems to me, I haven't read the written motion to quash

Judge WOLFE: Let me ask you this I'm not calling you as a witness now. I wouldn't be surprised if MS- MORRISON does call you as a witness and the purpose of that would be to get me disqualified. I wouldn't be surprised at that either. I don't plan to call you as
a witness, I don't think there is any proof that he advised any police officer . Police officers can't file charges. I'm the one that files the charges. I need to look at a copy of the motion to quash and this file was taken. He makes the statement that his special appearance that it is not ethical for an attorney to be a witness in a cause wherein either he or his law partners are acting as counsel. That's a true statement. That statement was made as a result of being subpoenaed by MS Morrison.

Judge WOLFE: I'm aware of that issue.

Mr. Rabon: They sought my disqualification a long time ago. I wondered if they made the decision to call Bob Rabon as a witness. I'm going to show that was done. I think it was done for purposes of getting me disqualified.

MS. MORRISON: Guilty.

Mr. Rabon: Let me do this, which may be slightly out of order, tell me again ma'am what you' re gonna call, what makes Bob Rabon a material witness in the cases against your clients.

MS. MORRISON: I was going to address that.

Mr. Rabon: What was that?

MS. MORRISON: As I was doing my own investigation into the events of September the 4th, Jack England has provided us with statements that to the effect that Doug was asking him what charges he was being held on.

Mr. Rabon: Who is Jack England?

MS. MORRISON: Jack England is the Chief of Police for Talihina. Doug was held in Talihina Jail prior to being brought to arraignment. He was on the phone several times with Choctaw Security. He was informed or Choctaw Police, he was informed that
they were meeting with Mr. Rabon to decide what charges Doug would be charged with.
Further there, Mr. Rabon Senior was on, in newspapers and on tv saying that he was the one who was talking to the police that day advising the police as to what charges would be brought. It has always been my intent to call him as a material witness.

MR. RABON: I think the response would be that this is come up to the civil lawsuit which that my father drafted the code for the trial. At that time we hadn't filed the case had not been file in this Court. I think it was in context of him talking to me about it. I have no knowledge of any discussions with police officers. But even if that took place, every DA in Oklahoma meets with police officers to decide what charges are filed. How is that unusual?

MS. MORRISON: Except that Mr. Rabon Senior is not the Tribal Prosecutor. And that
is what I want to talkand the case is the civil case in Federal Court that you are talking about is Judge Roberts, the City of Durant. It's a different case. That stems from the Labor Day 1996, not Labor Day 1995.

Mr. Rabon: What case did the

MS. MORRISON: That's exactly what that's exactly what I am pointing out, that that's a totally separate case that he's talking about.

MR. RABON: How would his decision

JUDGE WOLFE: Let me say this. Have you argued all you want to now?

MS. MORRISON: Yes... Yes

JUDGE WOLFE: I've given you an opportunity to present whatever you wanted to present in this. Is that true?

MS. MORRISON: Well, one of my concerns was the subpoenas being quashed. You know

JUDGE WOLFE: No, No, No, No, this here today, today. Aside from the letter that I wrote that is in the Court file, you have presented what arguments you wanted to present. Is that correct?

MS. MORRISON: Well there is I had issued a subpoena for one witness that is apparently is not present. I would like to call him. To create a record affirming the party. He is a safety officer for the Bureau of Indian affairs. He investigated the events of September the 4th, 1995 and I wanted to ask him a couple of questions and he is not present today. And that's just to create a record that we have not been given the opportunity to present a defense in this matter because of the policies and decisions made by others, not necessarily this court. But also I have a concern about the letter. But as far as

JUDGE WOLFE: One moment please.

MS. MORRISON: what I can argue today. My arguments today is in separation of power and that Bob Rabon will be a material witness and that I will not be able to call him as a material witness at trial as long as Bobby is Tribal Prosecutor.

JUDGE WOLFE: Okay. You've argued those two points.

MS. MORRISON: Yes

JUDGE WOLFE: Okay. If you want to make some record concerning the letter that I wrote to you, which is in the Court Docket, you must do so and I want you to do so.

MS. MORRISON: I've made it. I understand what you are saying, but I have real concerns about it.

JUDGE WOLFE: Okay, your telling me that you've made your record that you want to make. Now Mr. Dry, Don't talk to her because she can't listen to both of us at the same time. I want you to make whatever record you want to make if you've got concerns.

MS. MORRISON: My concerns about the people that I have issued subpoenas for is that Federal Officers, that this Court does not have jurisdiction over Federal Officers who has information and testimony that needs to be provided to me for... so I can prepare a defense and also this Court does not have jurisdiction over non-Indians and that concerns me as far as my ability to provide a defense for my clients. My clients face years in jail, yet I am being hamstrung by policy decisions made by others.

JUDGE WOLFE: Is that all?

MS. MORRISON: Yes.

JUDGE WOLFE: Mr. Rabon, do you have anything else?

MR. RABON: Your Honor, just for the record. Mr. Drys affidavit to disqualify me as Tribal Prosecutor is that the Prosecuting Attomey Robert L. Rabon has no prior prosecuting experience. I've prosecuted thousands of cases for the City of ?????. That's an example

JUDGE WOLFE: Mr. Rabon .... is everybody finished? ma'am?

MS. MORRISON: Yes.

JUDGE WOLFE: The motion to recuse the Prosecutor is denied, exceptions allowed. Is there now pending a motion concerning discovery?

MS. MORRISON: Yes.

JUDGE WOLFE: Will you make this statement concerning discovery? If this does not solve your problem, then you let me know. The Prosecutor will be ordered by me to furnish any statements that does not have in yet. If they have any video tapes , they need to furnish those. Any exculpatory material, they need to furnish.

MS. MORRISON: Still photos.

JUDGE WOLFE: If you have any still photos, you need to furnish those to the defense. Any statements, I think I said that. I was reading... since I have been here this morning,..this afternoon, I was reading this transcript concerning some information that the BIA has that's within this transcript that Mr. Rabon says he knows nothing about. I don't have any idea ... I'll tell you quite frankly that I don't know if I can order the BIA to do anything. But if they have something that ..exculpatory for your defendants in this case, I will order them to furnish it. I don't have any idea whether that order will stand or I can order them to do ... walk out the door. But, I'll certainly order it. Any other exculpatory material that Mr. Rabon has, he needs to furnish it. I can't think of anything .... I can't think of anything that he would have that he wouldn't have furnished. I am not in favor of , and have never been in favor, of the defense being furnished what used to be called work product. Any arrest reports, I don't think that applies to arrest reports or if they have, what is this FBI I can't think of what they call it .... the form that the FBI fills out, I don't think that these people have one. But I not opposed to arrest reports. I am however, opposed to, and will not order that field notes be given to the defense. I think that is work product. I don't think that is to be made available to defense and I won't order that. But any exculpatory material, anything that I think you are entitled to and I am going to see that you get it. I shouldn't have any difficulty out of Mr. Rabon in doing that. The BIA stuff, Scott, I'll.... you prepare an order and I'll sign it.

MS. MORRISON: I'm going to prepare an order.

JUDGE WOLFE: Okay. Mr. Rabon can only furnish that which he has...

MS. MORRISON: I repeat .........

JUDGE WOLFE: Let me finish. I can't think of anything else. You understand my orders, Mr. Rabon?

MR. RABON: Your Honor, this is everything that I have right here. I just gave her a copy of everything I have.

JUDGE WOLFE: You understand the order that I just made?

MS. MORRISON: Yes. Your Honor, there is on the still photos, I know that Judy Allen took at least one roll of still photos.

JUDGE WOLFE: Who is Judy Allen?

MS. MORRISON: Judy Allen is an employee of the Tribe, she's the editor of the Bishinik. She was present when Mr. Dry was arrested and instead of copies, I would like to have of the photographs themselves, taken from the negative, instead of just a Xerox copy of the photographs.

JUDGE WOLFE: What is her name?

MS. MORRISON: Judy Allen.

JUDGE WOLFE: I don't have any problem with that. I want them to be ... I want the pictures to be where they can tell what they are. If that's a Xerox copy, that's fine, but they've got to be able to tell what is in the picture.

MS. MORRISON: Right.

JUDGE WOLFE: What else?

MS. MORRISON: Yeah, Well we would just like ... we would like to have the entire roll of all the pictures she took concerning the arrest and not just picking and choosing the pictures.

JUDGE WOLFE: Any still pictures that Mr. Rabon has pertaining to this case or these cases need to be furnished to the defense. Now if there is.. now if he doesn't have these pictures, if this lady didn't turn these pictures over to him, he doesn't have them.

MS. MORRISON: Right.

JUDGE WOLFE: Now if there is something .......

MS. MORRISON: She's turned them over to the .... she's turned over part of those pictures to the Bureau of Indian Affairs and that's why I know that they exist.

JUDGE WOLFE: Well, If there are pictures that exist concerning these arrests, they need to be furnished to the defense. Now, Mr. Rabon doesn't have them, so he can't furnish them to you. Whoever has them ... I want them and I'll have them. I'm ... okay ... is there anything else, anything that I have not covered concerning discovery?

MR. RABON: I've got a motion pending for ......

JUDGE WOLFE: What?

MR. RABON: Request a motion for discovery that was filed about the same time .....

JUDGE WOLFE: What is the motion from you concerned?

MR. RABON: Well, all the information that was set forth in Allen Vs the District Court of Washington County, which is an Oklahoma discovery case. Names, addresses of witnesses together with the relevant written report stated for some reason the same name and address of any witness other than the defendants who will be called to show the defendants present at the time and place.

JUDGE WOLFE: Do you have any difficulty with this?

MR. RABON: There is just a lot of this, it's just it's a stock Oklahoma discovery law.

JUDGE WOLFE: The same thing applies to the defense. I'm not real big on trying to trick people here, you know. If you've got something that they need, you give it to them. If he's got something want, I'll order him to give it to you. Okay, what else? What other motion ?

MR. RABON: Your Honor, could I ask the Court to set a date.

JUDGE WOLFE: I'm going to. I'm going to. What else?

MS. MORRISON: On the discovery, I think that's ... on the discovery I think that there was some other ..a few other pending motions that haven't been ruled on.

JUDGE WOLFE: What?

MS. MORRISON: Motion to quash and set aside information. I've never ... I do not have an order that that has ever been ruled on.

JUDGE WOLFE: I read into this transcript that ... Scott, I think that I overruled motion to quash.

MS. MORRISON: Well, I think so too, but I just do not have .......

JUDGE WOLFE: Douglas, let me communicate with your lawyer. She is representing you and let I'll communicate with her. I assume that she knows everything that you know. Let me communicate with her. I think I have over ruled that, if that is incorrect, I will change that.

MS. MORRISON: Okay.

JUDGE WOLFE: I think I've over ruled most of that. Now, what else?

MS. MORRISON: Do you have a Court date?

JUDGE WOLFE: Okay. A Court date entails selection of a jury.

MS. MORRISON: Right. I believe that that is all that we had pending.

JUDGE WOLFE: all right.

MS. MORRISON: So at this point I ... after we get discovery, we are ready for jury trial.

JUDGE WOLFE: Okay. How much time are you prepared to give them. How much time do you want on the discovery? Do you need, you need some time to furnish him your list of witnesses.

MS. MORRISON: Right. At least thirty days.

JUDGE WOLFE: Is that what you want? Thirty days?

MS. MORRISON: Thirty days, yeah.

JUDGE WOLFE: Okay. Thirty days from today to exchange witnesses and discovery. This also includes, this thirty days includes the Bureau of Indian Affairs, ma'am. Now, what is today, the 14th,

MS. MORRISON: The fifteenth.

JUDGE WOLFE: On September the 26th, 1997. Let me quote this out and see if we can agree on doing this. On September the 26th, for lack of a better term, we are going to have a pre-trial concerning these cases. At least let me say this to you concerning the jury trial. I have in my mind the idea that this will be a six person jury. Let me go through all this. That this will be a six person jury. These things that are charged in the information allegedly took place in Pushmataha County. Is that right?

MR. RABON: This is Pushmatha County.

JUDGE WOLFE: I had in mind drawing the jury panel from registered voters from the Tribe in Push County. How many voters .... how many prospective jurors, I have no number about that. I've in mind having the trial here at the Courthouse at Tushka Homma. I have in mind the same number of challenges that would be had at any other trial. I have in mind having a cut off date past which there will be no further motions filed with the exception of some motion that comes up during the trial. I think that is probably all. You need to remember.. each one of you needs to remember those things I say concerning the trial and concerning picking the jury. On the 26th of September, I want all the discovery completed. I gave you thirty days, which I think is September the 15th, but by the 26th of September I want all the discovery complete up to and including the Bureau of Indian Affairs or I want somebody to tell me that I can't order them to do something. One of the two. On the 26th of September we will meet here. Mr. Rabon and MS. MORRISON and the clients that you desire, but we will meet here to have a meeting back in my office, not a public hearing. We will meet here to have a meeting in my office to discuss the things that I have just commented upon and you may at that time present me whatever you want to present to show me that the jury ought to be picked this way, or they need to be picked that way, or they need to be this many called in. I'll tell you how you need to present me how you think the jury selection process in so much as calling the jurors, the prospective jurors to court needs to begin. I will at that time make a decision as to how the jury is going to be. .how the panel is going to be drawn. I'lI make a decision as to who is going to draw the panel and it will us, Robert Rabon or Donna with our presence. However many people we are going to draw, she'll draw it and we
will all be present when it is drawn. Wait a minute until I get through. We will set a date for the trial. Okay, now.

MS. MORRISON: Yes, I want to state my objection about the jury pool. I think instead of limiting Choctaw voters to Pushmataha County, I think it should be ten and one-half counties.

JUDGE WOLFE: You don't do that today. You do that the 26th.

MS. MORRISON: Well, okay. You will hear from me the 26th, then.

JUDGE WOLFE: Okay. You need to show up here the 26th and you need to bring with you your idea how the jury panel needs to be drawn. In my opinion, it needs to be drawn like I said. That's not an order. I've not ordered that, but I might, but I haven't yet. So, you need to bring with you your are we going to call every Choctaw as a prospective juror or how are we going to you need to bring me your ideas so you do too

RABON; Your Honor. I thought the court previously ruled that I need to turn over all the material that I had including the field reports to the defense council and that what I just handed her.

JUDGE WOLFE; That's fine.

RABON: With the ruling you made today was that I had to turn over the field reports

JUDGE WOLFE: Well ... If you have already done it its to late. I'll take it back. Anything else, does everybody understand whats going on the 26, OK, now the 26 of September 1997 all of the discovery is going to have to be done., That going to be the end of it. I am not going to order any more of it. Thats going to be all of it. The 26 of September if it takes all day long then well be here at 1:00 p.m. You need to put this number on the calendar.

RABON: Your Honor as to the 15th of September being the discovery date that doesn't even give me two weeks to try to interview the witnesses and.. Do what?... go over a month and half is the mimimun.

JUDGE WOLFE: The 26th is not the trial date. The 26th isn't the trial date. On the 26th we're going to decide how the jury is going to be drawn we're going to decide on the date.

RABON: But that is not the cut off date.

JUDGE WOLFE: The cut off date for the jury.

RABON: That's not the cut off date for the motion.

JUDGE WOLFE: No.

RABON: Ok

JUDGE WOLFE: You understood that.

MORRISON: Yes.

JUDGE WOLFE: On the 26th we're going have a pre-trial were going to decide how to draw the jury and or ram going to decide how to draw the jury. If you want to present me some how you think it ought to be done thats great. If you want to leave it up to me, thats great too. Then were going to decide how the jury going to be drawn ah make sure that all the discovery has been done. ah set a jury trial date. set a trial date. I thank thats what thats all I said. ah and come the 26th of September all those things are going to be accomplished.

RABON: What time is that?

JUDGE WOLFE: One o'clock. p.m.

MORRISON: On ah CHOCTAW NATION v. DRY, CR-92-97-02 Doug has never been arraigned I have two motion to dismiss an, here.

JUDGE WOLFE: Oh, I am not sure what that is. What is that? this this one of these cases Scott.

MORRISON: No this is a new one. And Labor Day is coming up. So ha, ha, ha.

JUDGE WOLFE: And thats not funny.

MORRISON: This one ah steaming from Labor Day 96.

JUDGE WOLFE: Wait a minute.... is this.... all right, wait just a minute .... There was not an arrest warrant issued what the record.

MORRISON: No, just the information is all I got.

JUDGE WOLFE: OK This is a criminal case that was assault & battery case that was filed January 24th 1997. And you have never appeared before me on that. Is that correct? Is that correct?

DRY: Yes.

JUDGE WOLFE: Is that correct Mr. Dry.

DRY: If you recall your honor thats the day we came up here for hearings. When you got through doing the hearings on January 24th, before Mr. Rabon jumped out and left he handed by attorney those charges and took off. Thats never heard anything since.

JUDGE WOLFE: You never appeared in front of me for these charges.

DRY: no sir.

JUDGE WOLFE: Have you ever appeared before me on these charges. yes or no.

DRY: No sir.

JUDGE WOLFE: OK ... ah

RABON; Did you say you wanted me to apply for arrest warrant.

MORRISON: NO.

DRY: Yal why don't you do that Bob.

MORRISON: ha ha ha, No that to much. I have a motion to dismiss it. I have a motion to dismiss it that I would like to get out of the way. They been pending since March I have one witness I would like to call. Ben Veenstra and he present in the court room he's the officer that Doug alleging assaulted that day.

JUDGE WOLFE: Whats the purpose of called him on a motion to dismiss.

MORRISON: Well because Doug was charged with assault & battery on a police officer. The question I have for Mr. Veenstra Was he acting as a police officer here at Tuskahoma for the Choctaw Nation Labor Day 1997? 1996.

JUDGE WOLFE: Is that the question you want to ask him?

MORRISON: I have two or three question relating to that.

RABON: Was that set today?

JUDGE WOLFE: No.

MORRISON: Yes, Well when I was here the other day...

JUDGE WOLFE: No, in fact it wasn't set today was it? Did I set it today?

MORRISON: That was my understanding when we were taking about setting hearings and getting all the cases straight. I told you that Doug had never been arraigned and that I had two motions to dismiss that we would be, ah ..

JUDGE WOLFE: Well ok ... how many other cases are there. Good heavens. This bunch right here was suppose to be on September 26th. Is this right here is this it.

MORRISON: So far. With Labor Day coming up again well see how many..

JUDGE WOLFE: Well .......

MORRISON: Right now we have two. We have 95 & 96.

JUDGE WOLFE: You know in the first place to make the remark that Labor Day is coming up again I think your out of place. You know I am not, am trying to conduct all be it or probably not very well ah trying to get this stuff straightened out you know I think that remark is out of place. I really do.. you know.

MORRISON: I apologize to the Court.

JUDGE WOLFE: Well I am not going to referee...

RABON: Your Honor. I dont think.

JUDGE WOLFE: No I am doing the talking... That thats a problem here everybody wants to talk ... well I am doing the talking ... now If I am wrong in what I say or what I do then you all appeal it to somebody that got more stroke than I got. Which they are many and have them tell me that I am doing it wrong. And if they tell me that I'll sure back off and quit. but everybody wants to talk at once... well everybody not talking anymore ram doing all the taking Now if CR-97-02. That a case if I was aware of it I, I was ... ah.. I didn't realize it. So ... there is apparently is a motion there is two motions to dismiss in it.

MORRISON: There is a motion to dismiss and a supplemental motion.

JUDGE WOLFE; Ok Well .....

RABON: Judge I may not have the file with me I wasn't prepared..

JUDGE WOLFE: Now I.. I didn't.. you now were not having any more for anybody. I'm fixing to rule on this stuff or I'm fixing to make a ruleing concerning CR-97-02 and I grantee it won't suit anybody but me. Do you have a motion to dismiss and a supplemental motion to dismiss is that correct?
MORRISON: Yes sir.

JUDGE WOLFE: Filed in March let me finshed.. Donna do we have calendar. Yes, do we have a calendar that we can right this stuff down.. I put it on there. Alright the Choctaw Nation will be given 15 days from today to respond to the motion and supplemental motion and the defendant will have 15 day thereafter to respond to that the hearing on the motion to dismiss and supplemental motion to dismiss in CR-97-02 on September 26th ah.. prior will after the pre-trial on the other cases exception allowed to all parties to all rulings are there any other motion that have not been ruled on?

MORRISON: Your Honor ah the witness that I subpoened would you remind him that he is still under subpoena and I need him that day.

JUDGE WOLFE: You need to be back is this him

MORRISON; Yes sir.

JUDGE WOLFE You need to be here on September 26th officer.

VEENSTRA: Yes sir.

JUDGE WOLFE: At one o'clock. Anything else?

JUDGE WOLFE; We're adjourned.