to statements made by Long Soldier "My Case"
Responses are posted in blue.
Van Dyken Long Soldier states that he was placed in "double Jeopardy" and "faced prosecution twice for the same crime after the judge declared a mistrial, giving the jury only six hours to make a decision."
The Montana Supreme Court opinion of 1990 finding of fact (page 7) tells a different story:
"Defendant was charged by information with deliberate homicide arising out of the shooting death of Officer Allen Kimery in the early morning hours of December 6, 1984. The case was assigned to District Judge Thomas A. Olson and, following a change of venue, tried before a Park County jury in September, 1985. When, after thirteen hours of deliberation, the jury notified Judge Olson it was unable to reach a unanimous verdict, the judge, over defense counsel’s objection, ordered the jury to continue its deliberations. Following two more hours of deliberation, the jury was still unable to reach a decision and notified the judge of its stalemate. Judge Olson then declared a mistrial. Neither counsel for the defense or the prosecution objected to the procedure, nor did either counsel request that the jurors be polled." (Emphasis added)
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 full text of the unanimous Montana Supreme Court opinion of 1990 can be found here.)
Van Dyken Long Soldier states that at the second trial he was forced to testify in order to present his defense expert. And that the prosecution persuaded the judge to completely alter his defense strategies.
At the first trial the defense attempted to use 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 a mistake, 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.
He states that "Ballistic and forensic evidence used against me were tainted. There are serious arguments about gunshot residues and trajectories. I was shot 3 times, and fired a single bullet from a revolver."
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 (described as a furrow) at the very top of his right shoulder. The wound 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 emergency room doctor. The injuries were superficial and did not require hospitalization.
The statement that Mr. Van Dyken was shot 3 times is a gross exaggeration.
He insists that the ballistics testimony is tainted but fails to provide any explanation of how his "expert" draws that conclusion.
Long Soldier claims that his blood alcohol content at the time of the shootings was 0.275 percent.
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%. His own defense expert 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, he seemed to be functioning relatively well both before and after the shooting.
As for the statement that 0.3 is considered to be comatose, 0.4 is legally dead.
There is no BAC at which a person is declared comatose or dead unless they happen to be comatose or dead.
The statement that "there were no qualified drug and alcohol experts testifying on my behalf."
Walter Koostra, a professor of micro-biology at the University of Montana, who studied alcohol's effects, was called by the defense and testified as a expert witness on Van Dyken's behalf. (See above.)
Van Dyken Long Soldier makes the statement "Both jury trials were moved from Missoula, MT, due to extreme prejudice and pre-trial publicity. I could not have received an impartial jury anywhere in the state of Montana."
The claim that his attorney cut his braids off minutes before his first trial is not true. He did receive a haircut and shave as shown in these photos from the Missoulian newspaper.
Finally, Van Dyken complains: "My ex-lawyers have refused me any further appeal responses and transcripts. They have now prohibited me from proceeding any further on my case. I have missed all deadlines. They refuse to answer my letters, telephone calls and all inquiry regarding my case. Prohibiting me access to the courts."
The Missoula Public Defender's Office continued to pursue Van Dyken's case through two trials and the appeal process for an unprecedented 15 years, spanning 1984 -1999. Twice the case was taken through the appeal process up to United States Supreme Court, (which denied certiorari in both instances). None of Van Dyken Longsoldier's appeals have met with success.