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Tuesday, March 8, 2011

Judge Battey needs to go

Once in a while, a legal case comes along that provides such a blatant and egregious example of twisted justice that a sentient human made aware of it has difficulty not wanting to do something about it. The facts of this case make my blood run cold because of its implications for everyone, not just the folks involved with the case.

Here are the basic facts:

April 29, 2008
A BIA employee drove a pickup onto clearly marked private property belonging to Marc Wisecarver on the Pine Ridge Reservation, where he began chasing Marc Wisecarver’s horses.


Wisecarver, who had seen the entry and witnessed the chasing from his house, took a rifle and ran closer, where he yelled and then discharged his rifle in a safe direction to get the driver’s attention.

The BIA guy, driving an unmarked vehicle except for its license plates, then drove toward Wisecarver, who ordered him off the property. The BIA guy never identified himself. According to Wisecarver, the driver then made as if to run him down, whereupon Wisecarver shot the radiator in a manner to avoid hitting the driver.

The driver exited the pickup and walked to a nearby road, where he was picked up by another driver (not sure if pre-arranged). Wisecarver called the police, who arrived extraordinarily quickly for a remote reservation call for assistance.

Summer 2008
A tribal judge dismissed tribal charges, saying the facts supported self-defense. The US Attorney charged Marc with “Assault on a Federal Officer,” and “Depredation of Govt. Property.”

January 2009
Wisecarver was tried in Rapid City in Judge Richard Battey’s courtroom. Acquitted of assault. Convicted of “Depredation” as a result of an outrageous jury instruction.

March 2010
Eighth Circuit Court of Appeals reverses conviction, remands to Battey with direction to vacate conviction and sentence. Battey does, but asks US Attorney to refile and retry.

May 2010
Wisecarver retried on depredation, convicted. In the second trial, after he was ordered by the 8th Circuit Court of Appeals to vacate the verdict in the first trial, Judge Battey INSTRUCTED THE JURY that an intrusion onto private property by a government employee could NOT BE CONSIDERED TRESPASS as a matter of law. Being appealed.

Wisecarver has been incarcerated since January of 2009. His sentence was 3 years plus 3 more of supervised release. Time served was granted, so he will be out of the penitentiary and into a halfway house about September of this year.


The Issues

Case law set by this case includes the implication that ANY government employee has the authority to enter ANY private property ANYTIME, without identifying himself, and commit atrocious acts with impunity. A citizen defending his life and property from that govt. employee is ALWAYS wrong.

Keep in mind that the actions of the BIA guy are not in question.

4 comments:

Elwood GreyBuffalo jr. said...

Man has a right to protect his property and self, clearly BIA blatantly misused any if at all any rights being there in the 1st place, Oglala Tribal Coucil say's they[Gov] must give 24hrs notice before entering anyones private property and they are to be escorted by Tribal Police.See BIA employes are arms of the Federal Goverment but Tribal members are a Soveriegn sound's like a very Classic case of Injustice in Indian Country!!Sincerly Elwood GreyBuffalo jr.

Barry G. Wick said...

I have never doubted what it took me years to learn from my native neighbors...that they are a conquered people under the thumb of an imperial power. But then one must remember that the Federal Government has military outposts of some sort in every state...not to protect the people, but to intimidate the population so as to remind them who controls this country and it's population. Since i discovered I was gay some years back, I have always understood that overtly displayed power is irrationality based upon fear of the unknown. That the government actions are not questioned in this case should come as no surprise to those who understand the fear the government has of it's own people...the people it doesn't understand and only wishes to control.

logre said...

Does it sound like the BIA already had it in for this guy?
They probably already knew how this guy would react. Wasn't Wounded Knee basically baited this same way?

Bob Newland said...

There's a lot that's very suspicious. The BIA pickup driver could hardly have chosen to do anything more provocative than he did. The cops were on the scene too quickly. They showed no interest in the provocateur.

The chain of connections from a semi-serious encounter on the rez to a federal judge's incredibly anti-defense actions is shaky. However, Battey's antipathy toward Indians is well-known. And..., ANYTHING can happen on the rez.