Originally published in Native Sun News in July 2011.
The National Center for Reason and Justice, which has mounted successful campaigns to exonerate those falsely accused of sex crimes against children, has taken on the cases of four Yankton Sioux men. Brothers Jesse and Desmond Rouse, shown left and below, and their cousins Garfield Feather and Russell Hubbeling, shown at bottom, were convicted in federal court in 1994 of abusing five nieces who were aged 20 months to 7 years at the time. A fifth co-defendant was acquitted.
“The four men were each sentenced to as many as 33 years in prison on the basis of coerced testimony of young children,” said NCRJ executive director Robert Chatelle. He also pointed to evidence crucial to the defense that the judge did not allow the jury to hear, defense lawyers’ errors, and the alleged victims’ repeated recantations, beginning shortly after the trial.
Roderica Rouse, mother of an alleged victim and sister of Jesse and Desmond Rouse said she was thrilled NCRJ had gotten involved. “After all these years!” she exclaimed. “It’s just great. I know my brothers and cousins are innocent, and my mother went to her grave believing that.”
NCRJ’s next steps, said Chatelle, include fundraising, assembling a legal team, and possibly creating a website to inform the public of the men’s situation. NCRJ has also applied for support from the Yankton Sioux Tribe, in South Dakota, and the Shakopee Mdewakanton Sioux Community, in Minnesota.
Allegations of bias
Chatelle also described the trial as tainted by racism. After reports of jurors mocking Native Americans, the trial judge held a hearing on the issue. During it, one juror admitted to laughing at another’s comments about Native Americans and relating to co-workers that she’d heard Native American men had sex with young girls as part of their culture — the type of statements that had previously been enough to reverse a conviction.
When the defendants appealed their convictions on that and other grounds, one of three federal judges hearing the matter called the evidence of bias “a matter of grave concern.” The court granted the four a retrial, with two judges voting for a new trial and one against.
“Here four Native Americans placed their liberties in the hands of all whites: prosecutors, defense counsel, judge and jury,” wrote Judge Myron H. Bright in his 1996 majority opinion. “The law requires that they receive a fair trial without the impact of racial bias.”
In the 1996 minority opinion, Judge James B. Loken called the trial careful, fair, and impartial and took exception to Bright’s criticism of government officials, particularly the trial judge, Lawrence L. Piersol. “That I cannot abide,” Loken wrote. Subsequently, the U.S. Attorney’s Office appealed the decision to grant a retrial, and the court reversed itself in 1997.
Desmond Rouse said, “We went to trial because we believed in the system….We trusted our lives to these people.” Now he said, he and his relatives want a “a real trial. We want a real jury of our peers, just like the Constitution says.”
Said Garfield Feather: “To this day, I wake up and can’t believe I’m still sitting in prison for a crime that never happened. I actually believed that the courtroom was a true and just system. What a joke that turned out to be.”
The men’s travails began in January 1994, when squad cars arrived at the home of Jesse and Desmond’s mother, Rosemary Rouse, on the Yankton Sioux Reservation. In a chaotic roundup, officers removed more than a dozen young children.
Bright’s opinion described the raid as apparently occurring “without any additional evidence or investigation” beyond a first-grader’s assertion to a counselor on the day before that she’d been abused. According to Bright, “squad cars pulled up and the children were physically removed while they cried and clung to their uncles’ and other adults’ legs.”
Bright’s description squares with Desmond Rouse’s: “The children were screaming and crying and hollering and grabbing onto us grown-ups and saying, ‘Don’t let them take us, Uncle,’ ‘Don’t let them take us, Auntie.’”
Some children tried to run away. As they were chased down, officers threatened adult relatives with arrest if they interfered. That night, no officials clarified the reason for their actions, according to Feather. He and the other men were charged and arrested in the days and weeks following — “a total shock,” said Feather. In the following months, according to Bright, the youngsters’ parents were told “their children would be taken away again if they talked to or cooperated with defense counsel.” After the trial, the parents were warned again.
“The defense attorneys told us that if we ever talked to our kids about what had happened, someone would take them so far away we’d never see them again,” said Roderica Rouse. “We were terrified.”
In taking the cases, NCRJ relied on the work of prominent investigator Martin Yant, author of Presumed Guilty: When Innocent People Are Wrongly Convicted. Yant called the trial “a judicial atrocity” and said aggressive questioning by frightening authority figures contaminated the Rouse youngsters’ memories before they got to the trial and made it impossible to ascertain the accuracy of their testimony.
The interrogators involved teams of adults, including BIA investigator Dan Hudspeth and FBI agent William Van Roe, who, according to Bright’s opinion, immediately identified themselves to the children as “like a policeman.”
In what Bright called “countless” sessions, as many as four adults at a time repeatedly showed the kids anatomical drawings of a penis, described specifically what “bad things” their uncles had done, “helped” them remember, gave them group “therapy” sessions in which they were encouraged to speak about sexual activity, offered picnics and vacations in return for “the truth”; and coached them so when they got to court they would answer “yes” to the prosecutor’s yes-no questions.
They also promised the kids what they wanted most desperately — to go home to their mothers — if they testified as directed. The five witnesses claimed at the time (according to court documents) and recently (in videotapes they recorded) that at various points food, water, and bathroom breaks were withheld; they were given medication that put them to sleep and caused them to vomit; and they were held in frightening, isolated situations.
None of the sessions were audio- or video-taped, which was unusual, said defense consultant Hollida Wakefield, a forensic psychologist who specializes in interviews of children and observed the trial. “The scientific literature has established that interviews of children must be taped to determine whether leading questions were asked,” she said. “Studies also show that using anatomical drawings makes children’s testimony less accurate. That’s because the pictures and the interviewers’ questions all focus on the genitals and lead kids to believe that what they see in the picture actually happened.”
The U.S. Attorneys’ Office and Department of Social Services did not allow the defense to interview the child witnesses before the trial in order to prepare questions for them, according to the 1996 appeal. “When a child witness is in the legal custody of a social services agency, that agency as custodian may refuse requests for pretrial interviews,” opined Judge Loken in the 1997 decision not to allow a retrial after all. Allowing such sessions could traumatize the children and “raise a barrier” for the prosecution, Loken wrote.
Feather disputed any potential hobbling of the prosecution, noting the “vast resources” at their disposal, in contrast to him and his indigent co-defendants. “What chance does one have at proving one’s innocence?” he asked.
Nine children who adamantly refused to say their uncles had abused them were sent home. Among the five who remained, Bright wrote, the descriptions of the purported abuse became increasingly bizarre, involving, for example, groups of youngsters tied up with ropes in a pantry that the evidence showed couldn’t accommodate one child, as well as “the tying up of practically every member of the household.” The five did not see their parents until just before the August 1994 trial, despite requests by the youngsters and their families, as well as a tribal court order. Some did not return home permanently for years.
According to Yant, the proliferation of ever-stranger allegations by aggressively questioned children — and the tendency of adults to believe them — is common in these situations, which he termed “sex-abuse hysteria.” In one well-known case, said Wakefield, child witnesses claimed abusers transported them via hot-air balloon to places where abuse took place, and the court believed them.
Said Chatelle: “It’s certainly natural to want to protect children, but anyone with any common sense would know such assertions are suspect.”
Burden of proof
According to Chatelle, the cases of Feather, Hubbeling, and the Rouse brothers display patterns NCRJ has seen before, including the burden of proof shifting — improperly — to the defendants. “They should be presumed innocent unless they are proven guilty beyond a reasonable doubt,” Chatelle said. “Instead, they are presumed guilty and must prove themselves innocent, which is far more difficult.”
As a result of his investigation, Yant concluded that all the mistakes, ambiguities, discrepancies, corrupted testimony, and biases that figured into the process add up to one thing — doubt. “And in our system, when you have doubt, you don’t have a conviction,” he said. “Bottom line? The whole thing was an abomination.”
c. Stephanie Woodard.
c. Stephanie Woodard.