"What concerns me here are the circumstances of the killing, and the defendant's remorse
 -- or lack of remorse -- at this time
."

District Judge Thomas Olson

 

The Trials

 

The First Trial:  

The first trial was moved to  Livingston, Montana at the request of the defense, citing pre-trial publicity in Missoula. The case was tried before a Park County  jury.  Judge Thomas Olson presided.

The prosecution introduced physical evidence and testimony tying Van Dyken to the stolen car used in the theft and homicide.  Witnesses testified that Van Dyken had shown a revolver to acquaintances hours before the shooting and  stated that if he was stopped by the police he would "blow them away."  Police officers testified that at the time of his arrest Van Dyken had a revolver concealed in his waistband and a set of keys belonging to the stolen car used in the homicide in his pocket.

The defense argument was that the defendant remembered very little about the incident, and if he had shot the officer, he did it without being able to form the intent to do so because of his state of intoxication.

Van Dyken did not testify during this trial. The defense was allowed to elicit testimony from a defense witness Dr. Michael Mandel that included statements made to him by the defendant about the defendant's recollection of the incident. Due to the third party nature of these statements, this essentially allowed Van Dyken's non-sworn statements to be introduced as hearsay without allowing any cross examination by the prosecution. 

Following  trial the jury was sequestered for deliberations a total of twenty five and a half hours (including sleep and meal time) and were engaged in deliberations for approximately 15 hours.

The jury was unable to reach a unanimous verdict [hung jury] and a mistrial was declared.


The Guilty Plea:

On December 23rd, 1985, Fred Van Dyken appeared before Judge Thomas Olson and asked to change his plea on the charge of deliberate homicide to guilty pursuant to a plea agreement reached with the State. Judge Olson rejected the plea, however because the defendant disputed the intent element of the offense1.

 


The Second Trial:

District Judge Thomas Olson recused himself citing his belief that a District judge should not be required to preside over two trials of such magnitude. Additionally  he stated that having a different judge preside over a second trial would prevent any appearance that trial rulings might be influenced  letters from the public he received after the first trial.

District Judge James Wheelis assumed jurisdiction over the case and the trial was scheduled to be heard in Helena, Montana by a Lewis and Clark County Jury.

Although Dr. Michael  Mandel testified during the second trial, his testimony was limited to his expert opinion. The defense would no longer be able to use Mandel to introduce hearsay statements made by Van Dyken without allowing the prosecution to cross examine the defendant. The defense would have to make a decision of whether or not the defendant would testify on his own behalf. 

The tactical decision that the defense team arrived at was to call Van Dyken  to the stand as a witness for the defense.  Van Dyken testified that he was stopped by a law enforcement officer and that as the officer approached his car he "threw a bullet over [his] left shoulder" in the general direction of the officer, but that he did not aim at the officer and did not intend to shoot him.  When asked by his defense attorney, what he wanted to do, he stated that he "just wanted to get out of there."

At the conclusion of the second trial, the jury found Fred Van Dyken guilty on the charge of deliberate homicide. He was sentenced to life in prison without possibility of parole.


Van Dyken's defense team included Chief Public Defender Margaret Borg, Attorneys William Boggs, Carol Mitchell and George Corn.  The trial was the most extensive and expensive trial ever tried by the Missoula County Public Defenders Office. 


Now Van Dyken Longsoldier wants to be retried using a third defense strategy - this time he is claiming that he shot Deputy Kimery in self defense.  There is no evidence supporting his latest theory. 


Notes:

(1)  Van Dyken admitted that he pointed the revolver, which he knew was loaded, in the general direction of the approaching officer and that he intentionally pulled the trigger firing the gun. However he said that he did not intend to kill the officer or even to shoot him.


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