By Ray Stern
By Ray Stern
By New Times
By Amy Silverman
By Stephen Lemons
By Stephen Lemons
By Monica Alonzo
By Chris Parker
"Did I tell you to lie on that stand?" shouts Joe Lodge, the assistant United States Attorney. Lodge leans forward. You can see the veins in his bullneck protruding.
The government witness recoils in fear. "No, sir," he answers meekly.
"And what about the meeting we had after that?" Lodge shouts. "Did I tell you to lie on that stand?"
"And the meeting after that? Did I tell you to lie on that stand?"
The courtroom grows tense. Several jurors lean forward in their chairs. "No, sir."
Lodge has totally cowed his own witness. But still he refuses to let up.
"And the time after that? Did I tell you to lie on that stand?"
"No, sir, you didn't."
Lodge was a military prosecutor for ten years before joining the United States Attorney's Office. Military prosecution is an intimidating type of trial work. The tactics tend to be rough-and-tumble. The prosecutor is always an officer who outranks the defendants, who are most often enlisted men. In such an arena, strutting and behaving like a bully is acceptable, even expected, behavior.
"And military justice is to military music. . ." is the description of the way witnesses are handled.
But this is not a military court; it is the United States District Court in Prescott.
David Ochoa, one of the many defense attorneys in the Peter MacDonald conspiracy case, isn't accustomed to being cowed by prosecuting attorneys. For many years, in fact, Ochoa was a Maricopa County Superior Court judge. He was the one who gave them orders.
Ochoa leaps to his feet. He spots the fact that Lodge has stepped over the line and committed the offense known among lawyers as "vouching for a client."
"I move for a mistrial, your honor," Ochoa says to Robert Broomfield, the mild-mannered U.S. District Court judge.
Ochoa states his reasons calmly. It is clear he has the drop on the prosecutor. Lodge has stepped across the invisible line.
But instantly, Judge Broomfield overrules Ochoa's motion. Instead of a mistrial, the judge declares a recess. Somehow I am not surprised. In this trial, Judge Broomfield is like a wind-up doll who automatically says "overruled" each time he sees a defense attorney rise to object.
The weird, uneven pacing of this trial reminds me of something Bernard Malamud, the novelist, once said: "As a writer, I learned from Charlie Chaplin. Let's say the rhythm, the snap of comedy; the reserved comic presence--that beautiful distancing; the funny with the sad; the surprise of surprise."
And so it is with this MacDonald trial.
Like a Chaplin film, this trial has so far been a bizarre experience in which nothing the prosecutors have promised has come to be. And it moves forward only in fits and starts and then circles back again to the beginning. It seems to make no progress. No wonder it is expected to last for three months. The trial revolves around a bloody battle fought on July 20, 1989, in which 200 of MacDonald's followers, armed only with sticks, attempted to take over the tribal administration building defended by a small force of armed tribal police.
The outcome should have been predictable. One of the policemen was assigned only to film what would happen in the anticipated raid that turned into a trap.
In the battle, two members of MacDonald's force were killed by gunshots fired by the tribal police. As a result, MacDonald and his followers will spend most of the summer defending themselves in this old federal courtroom above the post office.
No one has ever bothered to explain why this proceeding could not have been tried in the simpler surroundings of a tribal court. One suspects the reasons are the government's longtime vendetta against MacDonald and a desire to see him housed in a federal prison.
In her opening argument, Pamela Gullett, the lead prosecutor, promised that films taken of the riot would make it clear to the jury how vicious and wild the attack on the Navajo building had been.
The films have now been shown. . .endlessly. But they depict nothing of the sort. Unless you are willing to be convinced solely by the prosecutor's rhetoric, they are, at best, inconclusive. In the films, shown in court both with sound and without, you can see MacDonald's followers standing around a police cruiser in front of the administration building. They mill about continually. They move slowly, as if walking underwater. MacDonald is nowhere to be seen. He wasn't even with them.
You never actually see what prosecutors have characterized as the vicious attacks on Navajo tribal officers. You don't see the shootings that caused the deaths of MacDonald's followers. You sit there for a terribly long time watching figures flit silently by on the screen. After a while, it becomes almost a restful exercise, like watching goldfish in a bowl. MacDonald sits watching, silently. His expression never changes. There are never more than half a dozen spectators in the huge old courtroom, but there are so many defendants that you always have the sense of being in a crowded place.