Judge Rules Pre-Trial That Alleged Racist Attack on Indian Kids Wasn’t That Bad

Yesterday Judge Eric Strawn said he will not put Trace O’Connell behind bars for allegedly throwing beer and insults at American Indian children at a Rapid City Rush hockey game last January:

“I will not consider actual internment, but a fine,” Strawn told the attorneys. He based his decision on a review of the case file and O’Connell’s lack of a criminal history. The judge’s decision removes the option of a jury trial which means Strawn will hear the evidence and rule on whether O’Connell is guilty” [Andrea J. Cook, “Judge Takes Jail Time off the Table for Philip Man,” Rapid City Journal, 2015.05.28].

Disorderly conduct, even for first offense, is a Class 2 misdemeanor, for which the maximum punishment is 30 days in the county jail and a $500 fine. Without hearing the arguments or witnesses from either side, the judge has decided O’Connell’s alleged actions do not warrant a legally authorized punishment.

I don’t spend much time in court, but I’m surprised that a judge can make what seems like a notably prejudicial ruling. There’s no jury to prejudice, but tipping his hand on punishment before the trial could make witnesses for the prosecution feel they cannot get a fair hearing from the judge. Did Judge Strawn need to make a declaration that essentially says O’Connell’s alleged crime wasn’t that bad?

Judge Strawn also ordered the case moved from the courthouse to the main theater at the Rapid City Performing Arts Center to accommodate witnesses (think 57 kids from American Horse School) and spectators.

Spearfish native Strawn moved up from part-time to full-time magistrate judge last November.


46 Responses to Judge Rules Pre-Trial That Alleged Racist Attack on Indian Kids Wasn’t That Bad

  1. larry kurtz

    I know Eric Strawn: he’s a heartless GOP GenXer with aspirations of higher office and reckless disregard for the rights of non-whites.

  2. Steve Hickey

    Wow. Doesn’t this judge know he has a volatile matter in his hands? Natives not getting a fair day in court is a concern that isn’t going away. This guy is feeding that concern significantly. If/when our racial tensions escalate again to the level of people getting hurt or killed, including law enforcement, we can look back to these types of things as contributing factors. We need a truth and reconciliation commission in SD.

  3. I’m not a lawyer. I haven’t even stayed in a Holiday Inn Express lately, but that seems a bit odd! This may not be a BIG deal to some, but to others it certainly is! A one-man show might not be the way to go, here. Standing by…

  4. larry kurtz

    no justice, no peace.

  5. Anyone know if the prosecution can ask for the judge to be recused from this case?

  6. Which one are you going to pry from the same bed to get that recusal, Rita?

  7. Sad but true, Les!

  8. Frank James

    When I first heard about this horrible act, I was immediately very sad because just like ringing a bell nothing we can do will remove this event from the lives of the children. It still makes me very sad. However each additional slight and statement of the limited impact of this action adds a new chapter and new wounds to the original act.
    For me this goes beyond O’Connell. I want to know the names and businesses of everyone in that box. Everyone who encourage this action or stood by and let it happen. However as far as I can see everyone else’s identity has been protected.
    If nothing else I want to make sure they are hurt with the only stick they apparently understand, money. No one in that box should get one more cent in business from any of us.

  9. mike from iowa

    Good thing this judge? wasn’t in charge of the Bosworth case,he might have appointed her surgeon general.

  10. I think your answer to, who was in the booth, Frank, would probably be more likely if the tribe brought a civil suit as then witness’ can be called by the plaintiff.

    Don’t expect the prosecution to call out the friends of the defense. A jury trial would have required them to be called, probably putting pressure on this judge to do exactly as he did…..

  11. bearcreekbat

    Imagine the chutzpah of a Judge assigned to a case who reads all the investigative files, along with the defendant’s record and concludes that a jail sentence would be too severe under the circumstances, so he decides that the defendant no longer has a right to a jury trial, which would be at great public expense.

    Deciding whether the defendant has a constitutional right to a jury is a preliminary function of the judge in misdemeanor cases. Reviewing all the records prior to making this preliminary determination seems appropriate.

    And any judge who worries about whether his preliminary decisions will irritate those folks who smell blood, and want the defendant sacrificed based only on what they have read in the newspaper, would not be worthy of being a judge.

    I don’t know Judge Strawn, I have never had contact with him, and I have absolutely no sympathy for O’Connell if the newspaper stories are accurate. But to attack the judge and the judicial system seems a bit too misdirected and Tea Partyish to me.

  12. Dave Baumeister

    I am not a lawyer, but, especially if the facts of the case are established in court (which they would be with any type of guilty verdict), it seems that it leaves an opening for a remedy in civil court. Should a stupid drunk go to jail for throwing beer on someone for whatever reason? I’d much rather not have my tax dollars going to support said stupid drunk, when he should have to pay his own money through his own nose for violating the civil rights of those kids and potentially scarring their psyches for the rest of their lives. Granted, the misdemeanor charge would still leave an upset group of people, but should it be the responsibility of our court systems to placate any certain group? I would like to see those kids and their families get some money out of this. A felony charge and jail time for the perps wouldn’t do that. The most a criminal court could do would be to order restitution, which in this case would be a dry cleaning bill. A civil trial would be the only way to get the punitive damages that need to be levied. But I will defer to the opinions of the legal eagles who read this blog.

  13. Choke, snort, spit. You’re mixing oil and water with your TP comment, Bear. You are right to a degree. The TP was a great mix until it was hijacked.

    Btw, doesn’t Davis represent that type of carelessness.

  14. larry kurtz

    But, did we really expect any of the city officials involved to come forward and humbly admit to the accusations of racist behavior? It would take real men of integrity and honesty to come forward to admit to that and apologize, but we know that isn’t going to happen anytime soon.

    Ernestine Chasing Hawk: Let’s change the image of ‘Racist City’

  15. bearcreekbat

    Les, sorry for offending you with the Tea Party comparison! The comments and behavior I have witnessed from representatives of Tea Party suggest to me that those folks have an irrational hatred of something they see as “the government,” but without recognizing that “the government” is merely the form we choose for structuring our social institutions – in other words, the US Constitution. While certain people who hold high government positions have established disagreeable public policies, that is not the fault of “the government,” it is the fault of the individuals or groups holding these positions. And taxation certainly is not an evil or improper policy, although their is plenty of room for disagreement about what our leaders decide to spend tax dollars for.

    I might have a different opinion in O’Connell’s case if I had access to all the investigative materials and whatever other factual information that was available to the Judge in O’Connell’s case. But I don’t, so I do not feel qualified to criticize him for merely doing his assigned job – namely, making a pre-trial determination whether O’Connell has a right to an expensive jury trial at public expense.

    Davis is a different story for me, at least on the matters that I have direct knowledge about. In an earlier post, I criticized his decision to send a first time 15 year old pot offender to boot camp for 3 years, merely because the child wouldn’t agree to act as a teen undercover agent for DCI. I made this criticism explaining that I had access to the exact same information that Davis had, including the pre-sentence recommendations of the Court Services officers. Although Davis was only doing his job in sentencing the child, Davis had the discretion and power, and the factual record, to impose a sentence that didn’t tear a part a family and forever injure a child.

    In O’Connell’s case, people seem to be seeking blood based on newspaper articles, etc, and blaming the Judge and the Court system if they don’t get that blood. That seems an unfortunate position.

  16. larry kurtz

    $20 says the feds are looking at this episode pretty closely and whatever kangaroo is sacrificed in state court the US Justice Department is loaded for bear.

  17. Roger Cornelius

    Bear,

    Why was it necessary for the judge to issue a pre-sentence ruling?

    I’ve hear of suggested sentences and options suggested by the prosecutor, but not the NO Jail time.

  18. Roger Cornelius

    It seems to me that the object of the criminal investigation was to minimize any potential charges against OConnell, it appears that the judicial system is doing the same thing.
    We should probably expect a low fine and suspended sentence or an out right dismissal of the charge. I’ll bet on the latter.

  19. Daniel Buresh

    Serious question. Did you guys expect jail time? I honestly didn’t. I guess I know of people who have done worse and only ended up with strict fines and probation. To come out and say it before hand just seems stupid though.

  20. You’re on, Lar.
    Brendan Johnson is living proof they’re all init together.

  21. larry kurtz

    from a highly scientific poll pile:

    Where will Trace O’Connell serve his jail sentence?

    Pennington County Jail
    0 (0%)
    Haakon County Jail
    0 (0%)
    Nowhere
    14 (100%)
    Other
    0 (0%)

  22. When’s the last time you saw someone serve time for spilling, throwing beer or racist insults in a bar? The civic center is more liable than Oconnell because they’ve allowed children in their bar.

    Want justice, the tribe sues the Civic Center.

  23. bearcreekbat

    Roger, that is a great question! Under the US Constitution the SCOTUS ruled in Baldwin v. New York that if a defendant charged with a petty offense or misdemeanor faces 6 months or more jail time, he or she has a constitutional right to a jury trial at public expense. But if the court determines that no jail time of or over 6 months will be imposed, there is no such constitutional right. Two Justices would have required jury trial in all criminal cases, whether petty crimes or not. My assumption was that this rule applied in SD, and that is why the magistrate was required to make such a preliminary ruling.

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=399&invol=66

    In checking SD’s Constitution and statutes I note that Article 7 of the SD Bill of Rights states that the defendant in a criminal case has the right “to a speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed.” I saw no exception for misdemeanors or petty offenses. And in the SD Rules of Criminal Procedure, SDCL 23A-18-1 states “‘Cases required to be tried by a jury’ shall be so tried unless the defendant waives a jury trial in writing or orally on the record with the approval of the court and the consent of the prosecuting attorney.”

    In contrast to these statutes, a web page for the Fourth Judicial Circuit states, “If you are charged with a Class 2 misdemeanor and the judge tells you in advance that you will not receive jail time, you are not entitled to a jury trial or court appointed counsel.”

    http://ujs.sd.gov/Fourth_Circuit/Procedures/misdemeanor.aspx

    My very preliminary research did not find a SD constitutional provision, statute, or State supreme court ruling that implemented any form of the above 6 month rule. The SD Constitution seems to plainly say there has to be a jury trial, while the SD Rules of Criminal Procedures only requires a jury trial in “Cases required to be tried by a jury. . . .”

    I suspect I am missing something in my research that implements some form of the Baldwin 6 month incarceration rule in SD. Otherwise, the magistrate in O’Connell’s case may have erred. Perhaps Cory or a better researcher than me can identify a state statutory basis for the magistrate’s decision.

  24. Daniel, all I expected was that the judge wouldn’t say anything about what kind of sentence he might issue until after closing arguments.

  25. mike from iowa

    Saying it before hand sounds prejudicial. Where is the impartiality?

  26. Daniel Buresh

    I can fully understand and agree with that criticism. With a case such as this, there is no need to fan the flames of an already volatile situation. I agree with the earlier poster as well that the true punishment is going to come from civil court, not criminal court.

  27. Douglas Wiken

    How does anybody show the real damage of spilled or tossed beer or water for that matter?

    If the actions were as terrible as claimed, I do not understand why the school person with the children did not call police immediately or demand that they be allowed to move to another area in the arena.

    What would the reaction be if the jerks in the box had tossed the beer on White kids instead of Native Americans? What would the damages be in that case?

  28. Prob similar if it was a bunch of drunk Indians tossing the beer, Wiken..

  29. Roger Cornelius

    Those damn Indian kids had no damn right attending a “white’s only” hockey game.
    If they just stayed on the reservation this whole thing wouldn’t have happened.

  30. happy camper

    It’s necessary to point out the headline is missing the word ALLEGED and downright misleading. We can’t throw the judicial system under the bus. It’s still our best and last defense to find fairness and seems to have done right with Annette Bosworth. I read the interviews with Consuelo Means and Poor Bear. She is the only one with direct contact (other than the children) so it’s unfair to prejudge based on one person’s assertion. Someone pointed out she is related to Russell Means. I’m not saying she has political motives, but we all have an outlook on the world and we want pieces of the puzzle to fit the way we see our world. We like to go down the same pathways (like that video of bicycling riding I posted a couple weeks back), but we have to fight biases and let facts unfold. And let’s be honest: the tribes are notoriously corrupt. So is the FBI (especially related to Native American history in our state), it’s everywhere, but we can’t condemn a person before a fair trial.

  31. Joan Brown

    At the very least this man should be sentenced to making a very hefty donation to the school those kids attend. He should also be threatened to a more severe penalty if he doesn’t give the names of his cohorts.

  32. larry kurtz

    The cost of seating a jury in Pennington County would be pricey if not impossible despite the softballs any prosecutor would toss to O’Connell. No verdict is going to please everybody but reaching some plea bargain would send Rapid City into the streets.

  33. larry kurtz

    A civil case against the Civic Center should happen regardless of any criminal trial especially if they failed to protect the civil rights of these kids yet another $20 says it would be settled out of court especially with expansion and LNI on the tenterhooks.

  34. bearcreekbat

    As larry points out, “The cost of seating a jury in Pennington County would be pricey if not impossible.” Perhaps the magistrate’s declaration that no jail time is on the table is beneficial in light of the tax savings involved, as well as avoiding a useless and unnecessary disruption of potential jurors lives for a trial.

  35. Deb Geelsdottir

    I don’t like the judge’s preliminary decision on incarceration either. I can understand that it probably wasn’t going to happen anyway. I’m all for a long and rigorous probation however. An educational public service requirement would be nice too.

    BTW, in a contest for most corrupt governments, I think it is a toss up between any of the SD reservations and the state itself. That includes judicial branches. Remember Brandon Taliaferro, killer Janklow, etc?

    A civil suit would be a great opportunity for a more suitable remedy. For people with a history of being carelessly disregarded by the forces in power, this is a golden opportunity to teach a new and important lesson that could change their lives. I’m thinking especially of the children. My most heartfelt wish is that this opportunity is not missed.

  36. Roger Cornelius

    Deb,

    Over the years I have detected a pattern that South Dakota racist use when blogging about Native American news stories.

    As you pointed out tribal corruption will inevitably enter the conversation at some point, completely ignoring the state’s dubious honor of being one of the top ten most corrupt states in the union. Of course these Indian experts never provide specific instances of corruption, they just say it with authority.
    Although it hasn’t been brought up yet, Native American poverty rates are another one of their opportunities to slam Indians.
    And with some regularity the Russell Means/A.I.M. syndrome becomes a part of their dialogue regardless of the topic or whether or not someone is related Russell, I know a lot of the Means family and just because they share his name doesn’t mean they shared his politics.
    As far as a jury trial goes, the cost of a jury should never be relevant, as pointed out by Happy Camper it is the best system we have for truth seeking and justice.

  37. Eric opted out of finding the truth through justice. He will take his payola and move on to further enrich himself. Wonder how much all of those business folk that were in the box seats had to shell out? Les is right, as Natives will never get the satisfaction of justice by the offender, then the real deep pocket would be the city, the holder of the license that was to protect the children in the first place from those that cannot be trusted to handle their drinking. The city is worried about the cost of a jury for this, how about the cost of a federal charge of child abuse? We know that ole Dennis Hassert, another former republican speaker of the house (what is it with these speaker dudes and sex?) has his fanny in a sling for child abuse charges, what could happen to the city for abuse?

  38. mike from iowa

    I’m getting confused. Am I hearing racially charged acts such as this one are the price we pay to save tax dollars and not bother potential jurors? We are gonna put a price on justice? Didn’t South Dakota run up a stiff bill in their failed attempts to teach Bosworth to respect the rules of law?

  39. larry kurtz

    O’Connell’s trial in front of a judge only and will be held in the theatre at Central High School:

    http://www.blackhillsfox.com/home/headlines/Correction–OConnell-will-not-appear-in-front-of-a-jury-jail-time-305524171.html

  40. mike from iowa

    Way OT-who knew former SOH wingnut Dennis Hastert was a kiddie diddler as a high school teacher/coach?

  41. BCB, thanks for digging up those provisions and offering that defense of the judge’s action. Reviewing the articles I cited, I see mention of that same idea, that the judge’s declaration justified his deciding to hear the case himself instead of sending it to a jury. If I chill out from all the media attention and look at the general idea that an individual faces a first-time Class 2 misdemeanor charge, I can see the logic in what BCB says: review the case file, see that the evidence presented thus far doesn’t stack up to the “hang ’em high!” sentiment circulating publicly, and spare the state the cost of a jury trial. (How many other misdemeanor charges draw jury trials?)

    I’m not sure this statute applies, BCB, but I see that SDCL 9-19-3.1 dealing with trials for violations of municipal ordinances says, “The defendant shall be entitled, by making demand therefor at any time before the commencement of trial, to trial by jury in the event the defendant is subject to any jail sentence.” If O’Connell is being tried for violating Rapid City’s disorderly conduct ordinance, this statute applies. If he’s being tried for violation of a state statute, maybe there is a comparable state rule linking jail time and jury.

  42. Hap: “Alleged”—duly noted.

  43. Roger Elgersma

    First of all the judge only chose the weakest of the three possible charges to even hear. I still think that if you throw something at someone and it hits them, that is some form of assault. This would be easier if there was a law against being stupid. When beer distributors and salesmen ridicule those who or their parents buy beer, that is both stupid and conflict of interest against ones own self. How could people be so stupid: because they were drinking beer. How could someone be so hurtful to their own business: because they were drinking beer. How could they in good conscience sell beer if it messes up a persons mind so bad: because they drink beer. If we have laws against causing pain and suffering and racism, we could use laws. When a court decides ahead of time to not do anything, then we do not ever have to hear lawyers say that they do not like the court of public opinion. They do not have to decide that the public does not have a brain or a sense of what justice is just because the court decided not to do justice. Without the court of public opinion the courts would have no check and balance. We do not have to all turn stupid just because the courts decided ahead of time not to do their job.

  44. bearcreekbat

    Cory, that is a good find on the municipal ordinance violation and jury trials. I have not seen the official charges or charging document against O’Connell, but the RC Journal described the charge as: “a Class 2 misdemeanor punishable by up to 30 days in jail and a $500 fine upon conviction.” This looks like a state criminal charge rather than a municipal ordinance violation, and if so, the statute you found doesn’t answer the question. I did not discover a state criminal or criminal procedure statute with similar language.

  45. BCB, good research. And yes, yawn, the Judge’s order is a non-issue. Where one’s liberty is not at stake and the charge is minor (and often when the accused has little-to-no criminal history), then the expense ($ and time) of a jury trial is forgone. You won’t find it in statute, other than the municipal statute. It’s a product of the case law that flows from the precedent from the USSCts Baldwin case. Since it is rare or at least uncommon for anyone to receive actual jail time upon conviction of a class 2 misdemeanor, and the few who do so receive jail time generally receive 3 days (which if so, likely includes any time served) – it’s common for judges and / or prosecutors to waive or request to waive jail time in the interest of justice and judicial economy.

  46. Douglas Wiken

    Surprised that Bob Newland hasn’t compared blowing pot smoke with tossing or “spilling” beer.