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.
I have been impressed by one thing. Gullett and Lodge have revealed themselves to be twin studies in arrogance and overconfidence. Gullett is so closely connected to the power structure that her presence continues to raise eyebrows. Her husband, Wes Gullett, is Republican Senator John McCain's chief administrative assistant. By prosecuting MacDonald, Pamela Gullett is doing what she perceives to be God's work. The Republican hierarchy in Arizona, led for more than 30 years by the sainted Barry Goldwater, has been out to destroy MacDonald since 1974. In that year, the former tribal chairman delivered 9,006 of the 10,274 votes cast on the Navajo reservation to Democrat Raul Castro. You can sense how MacDonald had energized his followers by one statistic. In 1970, only one voter had shown up at a precinct called Hardrock. In 1974, 336 voters showed up to cast their votes against the Republicans at Hardrock.
The big turnout made Democrat Castro the governor. But Castro won that election by a mere 4,113 votes. More importantly, it made Goldwater and the Republicans realize that MacDonald had the power to control a close statewide election. Such a man was dangerous to the Republican party. He had to be removed from his post as tribal chairman.
Goldwater, never one to worry about shading the truth, charged that the Navajo vote turned against him because MacDonald promised his followers free beer.
In truth, the Navajos were voting against the Republicans for the most natural of reasons. Goldwater had sided publicly with the Hopis in the great land dispute between the two tribes.
It has been an incredible game of hardball for him. Make no mistake. He was targeted. All the heavy-duty resources of the federal government were set in motion against him.
The report of the Senate investigating committee hearings held in 1989 reveals the extent to which the feds were out to get MacDonald.
Chairman and co-chairman of the committee were Arizona senators Dennis DeConcini and McCain.
Appointed as chief counsel was Kenneth Ballen, who was counsel to the House Iran-contra Committee. Backing him was a full staff of lawyers.
The chief investigator was Richard Elroy, who was chosen by the director of the FBI because he was one of the most outstanding agents. Elroy was assisted by the IRS investigator who was responsible for the Spiro Agnew case. In addition there were Native American experts, petroleum experts and scholars with experience in Native American law. In the report, it is revealed:
"At one point, it was brought to the attention of the Special Committee that Chairman MacDonald might be planning a cover-up to obstruct the investigation. The businessman who was to participate in this cover-up agreed to be wired and placed under surveillance by Special Committee investigators while speaking to Chairman MacDonald. "On at least ten different occasions between November 1988 and January 1989, in cooperation with duly authorized law enforcement officials, the committee taped conversations with the businessman, Byron T. 'Bud' Brown, Chairman MacDonald and his son, Peter MacDonald Jr., in cars, restaurants, airports and over the phone. Portions of these taped conversations were later played during the Committee's public hearings."
Bud Brown is the government's key witness. For years this Scottsdale businessman had been dreaming of making a big score. For years he had been a trusted friend of MacDonald's.
It was Bud Brown who took MacDonald on a vacation to Hawaii, shortly after MacDonald was reelected tribal chairman in 1986. While on the golf course there, Brown pitched the idea that the Navajos should purchase the 491,000-acre Big Boquillas ranch near Seligman.
The purchase made sense for the Navajos, because they were constantly being threatened with expulsion from their present land by the Hopis.
The scheme called for Brown and another businessman, Tom Tracy, to buy the ranch from the Tenneco Company for $26.2 million and then resell it to the Navajos the following day for a $7 million profit. The purchase price for the Navajos was $33.4 million. What Brown never told MacDonald was that Brown was getting a $4 million profit. What did MacDonald get? Although it was rumored he made millions, he was, as usual, in debt. He asked Brown to send him $25,000 to pay down a $70,000 bank loan he had taken out. He also wanted a BMW 735i automobile. He trusted Brown to pay him his full share later.
Instead of buying a new BMW as promised, Brown and Tracy leased one for MacDonald that was already a year old. Each month MacDonald had to call and remind them to make the $800 payment on the lease.
When the feds came to Brown, he caved in at once and agreed to wear a wire against MacDonald. And Brown was shrewd enough to get not only immunity from prosecution but a promise from the government that it wouldn't try to take away his $4 million profit from the land sale.
The government even forced MacDonald's son, Peter Jr., to testify against him.
Here is part of one taped conversation that Brown had with MacDonald while agents listened:
Brown: I'm just afraid that I'm facing a multiple, multiple amount of perjury charges. I'm sticking to the line, though.
MacDonald: Well, that's exactly what we're doing.
MacDonald Jr.: I'm staying right here. We're all three of us, Three Musketeers, shoulder to shoulder. . .I mean, there's only three of us know the whole story. And that's you, me and Dad. That's it. I don't care what anybody else says. There's nobody involved but us three.
Brown: Yeah, but even my attorney doesn't believe me.
Brown: And the Senate guys don't, either. But my concern is, are you strong enough and is your dad strong enough to stand up to this without. . .usually what happens is somebody cracks.
Brown had already betrayed him. But even without this knowledge, Peter MacDonald Sr. realized the deal was stacked.
MacDonald says at one point on the tape: "If it's anybody's ass they're trying to hang, it's me. Because if they get over the Big Boquillas bullshit and the BMW, and any other things like that, I'm sure they have got 10 or 15 more things. . .I'm the No. 1 target. And that's the sad truth."
When it came down to it, both Brown and MacDonald's own son testified against him before the Senate committee. "They even turned my own son against me," MacDonald said, sadly. He never said anything publicly about Brown's actions.
Brown, the man who devised the Big Boquillas scheme, was granted full immunity by both the Senate committee and the U.S. Attorney's Office for his actions.
The government was willing to pay any price to see to it that MacDonald was stripped of his tribal chairmanship.
In a federal hearing in March 1991 before visiting U.S. District Judge John C. Coughenour, it was revealed that Brown's profit was $4 million.
In the hearing, a letter dated December 13, 1988, revealed that the government would not prosecute Brown in a civil suit for the Big Boquillas sale proceeds and that it also would not assist the Navajos in any civil suit against Brown.
Brown's testimony against MacDonald at a tribal hearing was declared to be the most important testimony in MacDonald's removal and conviction.
Judge Coughenour wrote a stinging rebuke:
"The government argued that it thought it was bargaining for a witness who was 'minimally culpable' but got a witness who is a 'liar' and a 'professional briber.'
"The government says Brown misrepresented his character and the scope of his involvement in the scheme. However, it is difficult to believe that the government, being aware of the earlier payments to Chairman MacDonald and the millions of profits taken by Mr. Brown, would have thought that Mr. Brown was anything but culpable and anything but a briber."
MacDonald is 64 now. He has already been sentenced to serve seven years in a tribal jail cell in Tuba City. If convicted again, he faces even more time in a federal prison.
It took a long time. But the Republican party finally got even.