Ken Tilsen, attorney for defendants of the Wounded Knee incident, discusses his criticism of strategies employed by the Justice Department in related legal proceedings. Tilsen also discusses potential avenues for appeal, and what the government may or may not do.
SPEAKER 1: Well, I think it's the expected decision. I think it's consistent with the behavior of the Justice Department, not only in this case, but in all of the Wounded Knee cases. I think their behavior has been marked by a irrationality. It has been marked by a vindictiveness and unwillingness to face the real facts, a desire to tie up the American Indian Movement and the Indian people and their lawyers in long and protracted litigation with no real hope of success.
I can't believe that the Justice Department expects that it could ever win the appeal, but it's a long and difficult proceeding involving the review of, well, over 10,000 pages of testimony and hundreds and hundreds of documents. And I think that while they don't expect to win, it's part of their plan to destroy anybody who would oppose them politically.
SPEAKER 2: Could you explain a little bit about the appeals process?
SPEAKER 1: Well, the government has filed their appeal actually several weeks ago. They have 40 days from the day they filed it to file their brief. We have 30 days to respond. Our Court of Appeals is very prompt and will probably set the case for argument within 30 to 60 days thereafter and have a decision within perhaps about six weeks.
Of course, if for any reason, the Court of Appeals were to affirm-- were to reverse Judge Nichol, I'm convinced that we would file a petition in the United States Supreme Court for certiorari. Whether or not the government will file a petition for certiorari if they were unsuccessful, I don't know.
I anticipate that our Court of Appeals will not permit an appeal because the occasion for the dismissal was the acts of the government. And under these circumstances, even if the court had granted a mistrial as a result of the government acts and not at the request of the defendant, there would be no appeal.
The government cannot so manipulate a trial so that when it doesn't like the way the case is going, get a second crack before a second jury. That's what the double jeopardy clause is designed specifically to prevent. And that's what the case law says is specifically prevented by it.
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