No number of signatures on a petition can ever turn lies into facts.


  RESPONSE TO A PETITION REQUESTING THAT
 FRED VAN DYKEN LONG SOLDIER'S CASE BE REOPENED

Below you will find the text of a petition posted on Van Dyken Long Soldier's website along with annotations in blue. 

 

To:  All People

We, the undersigned, are asking for justice for Mr.Van Dyken Long Soldier. That his case be reopened and that he be given a fair trial.

Van Dyken Long Soldier is a Native American, an enrolled tribal member of the Oglala Sioux tribe, Pine Ridge , South Dakota. He was unjustly convicted of the 1984 shooting death of a Montana Sheriff’s deputy. We are asking that this case be reopened and thoroughly investigated, and that a new trial be granted.


Below some facts in a short version:

"Strong evidence of excessive force used, and that Long Soldier acted in self defense, covered up by the State and never introduced."

This is just not true, there is absolutely no evidence that Deputy Kimery used any force prior to being shot and no evidence that Van Dyken was acting in self defense when he shot Deputy Kimery.  

Van Dyken has been making this claim on his petition and website for years now, but still fails to say what  the "strong evidence"  is.


"Long Soldier was placed in ‘double jeopardy’. His first trial ended in a hung jury, with jurors deliberating between two lesser charges, yet he was retried for the maximum charges."

The Montana Supreme Court has looked at his case several times and found no violation of Van Dyken's  14th amendment rights. First in an interlocutory hearing in November 1986 then in an order denying a rehearing January 20, 1987 and again in a  May 3, 1990 opinion.

 (The Montana Supreme Court opinion of May 3, 1990 can be read here.)


"Long Soldier was forced to testify at his 2nd trial in order to present his defense and defense expert, contrary to all first trial rulings." 

At the first trial the defense used a Psychiatrist, Dr. Michael Mandel as a conduit to introduce statements by Mr. Van Dyken without allowing any cross examination. In the second trial Mandel's testimony was limited to his expert opinion.

Judge Olson (the judge presiding over the first trial) made a decision prior to recusing himself, that allowing the defense to introduce hearsay which could not be subject to cross examination had been an error, and would not be allowed in the second trial. Judge Wheelis, who assumed jurisdiction over the second trial concurred. 

The Montana Supreme Court in Issue II of it's May 1990 Opinion agreed with both District Judge Olson and District Judge Wheelis that the trial court properly exercised it's discretion.

 Additionally the Supreme Court states: "Here it is clear that the defendant's decision to testify was a tactical decision arrived at by him and his counsel."

(The full text of the Montana Supreme Court's May 1990 opinion is here.)


"Forensic and ballistic evidence used was tainted. Long Soldier was shot 3 times."

Van Dyken insists that the ballistics testimony is tainted but fails to provide any explanation of how his "expert" draws that conclusion. 

Deputy Kimery was shot from a distance of about three feet as he was walking along side the car to contact  the driver. All of the shots fired by the deputy that struck the car went through the trunk or rear window. They were fired from behind the vehicle as it sped from the scene of the homicide.

Van Dyken received a minor laceration at the very top of his right shoulder. The wound (described as a furrow)  was believed to be caused by a bullet or bullet fragment grazing him. He also had a puncture wound on his back from  a tiny fragment from one of Kimery's bullets and a couple of small pieces of glass from the Monte Carlo's rear window imbedded in the skin behind his neck. The bullet and glass fragments were from shots fired at the car as Van Dyken fled the homicide scene.

Van Dyken was treated and released by an ER doctor. His wounds were minor and did not require hospitalization. 

The statement that Mr. Van Dyken was shot 3 times is a gross exaggeration.


No independant (sic) investigations into bullet trajectories, gunshot residues, or pathological findings.  Mitigating evidence rejected.

The defense requested and was allotted three thousand dollars to hire a ballistics expert and five thousand dollars to hire a private investigator.  All evidence during the trail is introduced by either the prosecution or the defense. If the defense investigation produces a result that is likely to corroborate the prosecution's case it will not be introduced by the defense. 


"Long Soldier’s blood alcohol level at time of incident was .275,"

Van Dyken's exact blood alcohol at the time of the shooting is not known. Several estimates were made by expert witnesses based on blood alcohol samples taken after his arrest. A state crime lab toxicologist estimated a blood alcohol of .17-.18%. Van Dyken's own defense witness, Walter Koostra, a micro-biologist who studies alcohol's effects, estimated Van Dyken's blood alcohol to be 0.21 percent at the time of the shooting. 

Those who were around Van Dyken shortly before the crime (Tim and Jeff  Braida), testified that they noticed nothing unusual or abnormal about the defendant's behavior that evening and that he did not appear drunk nor was his driving impaired by drinking. Other witnesses who saw the defendant that night and in the early morning hours of December 6th would testify similarly.  Dr. Warren Guffin, the emergency room physician who treated the defendant immediately after his arrest on December 6, testified that there were no physical manifestations of the defendant being under the influence of alcohol when Dr. Guffin examined him.

Whatever the exact amount of alcohol, testimony reveals that he appeared to be functioning reasonably well both before and after the shooting. 


"with .3 being legally ‘comatose’".

There is no specific blood alcohol level over which a person is declared "legally comatose".  The effects of different levels of blood alcohol vary greatly from person to person.  Many people arrested for driving under the influence of alcohol were driving with blood alcohol levels well in excess of .3%.  Alcoholics and people who "binge drink"  tend to develop a tolerance to alcohol. 


"No expert testimony about Native American drug / alcohol diseases, i.e., hereditary alcoholism, genetic intolerances of."


"Constitutional Rights violations were admitted by Montana Supreme Court, United States District Court, and 9th Circuit Court of Appeals, called ‘harmless error’. Yet these same Constitutional Rights violations are what convicted Long Soldier!" 

This is not true. The Montana Supreme Court found no violations of the defendant's constitutional rights

 (The full text of the Montana Supreme Court's May 1990 opinion is here.)

United Stated District Court Judge Charles C. Lovell's opinion deals with jury instructions and changes in case law relating to jury instructions after the trial. Judge Lovell clearly states his reasoning for finding that if there is any error, it is harmless beyond a reasonable doubt. 

(Read the US District Court's March 1997 opinion here.)

The United States 9th Circuit Court of Appeals reviewed the District Court's decision  and affirmed Van Dyken's conviction.

Additionally Van Dyken's attorneys have twice petitioned the United States Supreme Court, after review of the petitions the Supreme Court denied certiorari in both cases.  



"Sentenced to ‘Life without Parole’.
Judicial prejudice, misconduct, and conspiracy. Unconstitutional sentencing, (U.S. Supreme Court decision 'Apprendi' 2000)."

In State of Montana V. Garrymore (Oct 2, 2006) The Montana Supreme Court determined that restrictions on parole are not in conflict with either Apprendi V. New Jersey or Blakely V. Washington. 

(Montana V. Garrymore opinion can be read here.)

In Gratzer V. Mahoney (November 1, 2006) The Montana Supreme Court decided a similar case on an appeal under the "old Montana homicide law" -  the law in effect when Van Dyken was convicted. It addresses both parole restriction and dangerous offender status.

(Gratzer V. Mahoney opinion can be read here.)

(The Apprendi V. New Jersey opinion can be read here.)


"Overwhelming prejudice due to nature of alledged (sic) crime and a Native American involved. Both trials moved (change of venue) due to prejudice and publicity." 

The nature of Mr. Van  Dyken's crime (not his Native American heritage) did result in resentment among a considerable percentage of Missoula's population.  The venue of both trials were moved from Missoula County in order to ensure a fair trial. There was little or no mention in press coverage that Mr. Van Dyken was of Native American heritage prior to trial. 

(Newspaper articles reporting the crime can be viewed here.)


"His own lawyers cut his braids while he was shackled."

Van Dyken did not wear his hair in braids during his incarceration prior to trial. He did receive a haircut and a shave prior to trial as reflected in photos on the page "Response to My Case."


"This is not just a case about one man’s struggle against an unjust conviction, but a case that reflects a long history of political and judicial abuse against an entire race of people - the Native Americans, who have never had equal power / representation in social, economical, political, or judicial rights. Criminal prosecutions and procedures that do not reflect equal rights, and convictions that are used in an ongoing genocide of a race of people, the Native Americans."

In fact, this case has nothing to do with Van Dyken’s Native American heritage - it is about the cold blooded murder of a peace officer by an individual  who has shown no remorse for the taking of an innocent life, or for the grief he has caused by murdering a father, a husband, a friend.


"We the undersigned are asking for justice, and that Long Soldier be given a fair trial by his peers and an unbiased judge."

Sincerely,

The Undersigned



The petition and the web site that support it are rife with erroneous and misleading information to the extent of rendering the petition defective.

There is no reason to believe that it's signatories are aware of even the most basic facts of the case because most of those signing the petition are relying on erroneous information posted on the longsoldier-international web site.

It is shameful that so many people are willing to sign a petition without first checking the facts they are attesting to.

 

Footnotes:

1.) Van Dyken Longsoldier's petition website is at: http://www.petitiononline.com/ls0/petition.html

 

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