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Justice in Indian country

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S.D. high court: Retry or release convicted felon

Part five

Editor's note: This week Indian Country Today continues an ongoing series that examines justice in Indian country. To share your comments, e-mail us at editor@indiancountry.com, using ''Justice''' in the subject line.

PIERRE, S.D. - A man convicted of rape and sexual assault of female juveniles will receive a new trial based on evidence that his original attorney prejudiced the case against his client.

The South Dakota Supreme Court ruled Aug. 3 that Farrell Dillon Jr. should be awarded a retrial or be discharged.

Dillon, Sicangu Lakota, was convicted of sexually assaulting and raping four young girls and his daughter in 1998 and sentenced to 175 years in prison. That sentence was later reduced to 115 years after the court found that double jeopardy was involved in two of the charges.

Throughout his nine years in prison, Dillon has maintained his innocence, and has refused a plea bargain for a reduced sentence.

''In light of the circumstances of this case, we believe that the fundamental fairness of Dillon's trial was compromised. Dillon's trial counsel was deficient, which resulted in prejudice to Dillon,'' the court opinion stated.

In 1998, Dillon was charged with seven counts of first-degree rape, two counts of third-degree rape and five counts of criminal pedophilia.

The allegations stated that on two separate occasions, Dillon conducted the sexual acts on his daughter and four of her friends. The girls were 8 and 9 years old at the time.

The state's high court listed numerous examples of instances in which the defendant's counsel, Richard Bode failed in his defense of Dillon. For example, he failed to bring up double jeopardy, which would have in effect charged him with some crimes twice. Double jeopardy was later addressed, and the court reduced the sentence.

The Supreme Court stated that Bode was at fault for not asking the trial court to reduce the charges. He also failed to prepare witnesses and called witnesses at late dates. He did not investigate the fact that two of the victims and their mother leveled allegations against another man two years earlier for sexual assault. No charges were brought against the accused man. The court found fault in the fact that Bode did not present evidence as to why no charges were filed.

Bode also failed to accuse the mother of two of the victims with impeachment when she said her daughters were healthy, when in fact medical records showed they had sought emergency medical care more than 50 times in the past.

Further, Bode also failed to prepare expert defense witnesses, which laid the entire case against him solely on the testimony of the victims. The court stated in its opinion that there was insufficient physical evidence of sexual assault presented at trial.

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The trial judge also rebuked Bode several times during trial and attempted to assist him in the questioning of an expert witness, only to have the attorney ignore the judge.

Dillon was convicted of all charges related to that victim.

Stephanie Pochop, Dillon's attorney during the appeal process, said that had the trial attorney done his job, Dillon may have been exonerated of the charges. She also said that a new trial for Dillon will help because he could be exonerated and the stigma of pedophilia will not hang over his head.

''He may be nervous at trusting the justice system because it failed him once and he spent nine years in prison,'' Pochop said.

Dillon's new attorney is Tim Rensch, a Rapid City attorney who has worked previously on sexual abuse cases.

Dillon accused Bode of not including videotapes and interview transcripts of the victims at trial when he told the jury he would do so. His response to that question at Dillon's habeas hearing that asked for new trial or discharge was: ''I was going to have to prolong the trial and I felt pressured to get this case done as quickly as possible.''

Bode was disbarred in 2001 following several complaints from clients and other lawyers about his conduct.

This case is important in a number of ways. Dillon's daughter was taken from him and the family by the state Department of Social Services and at times hidden from them when she lived with foster families. Her grandmother, great-grandmother and other family members worked to qualify themselves as foster parents according to and at the instruction of the DSS, to no avail.

The young girl's biological mother abandoned her when she was an infant and she was raised by her extended family in the Lakota tradition.

The girl's grandmother, Marge Two Hawk, alleges her granddaughter was kidnapped by the state and that the Indian Child Welfare Act was not adhered to by the state or even the Rosebud Sioux Tribe. Coming too late to help Two Hawk, two bills requiring the Department of Social Services to cooperate with tribes and the federal ICWA in related situations have passed the state Legislature and were signed by the governor.

The girl was eventually adopted by a family in Colorado. The adoptive father claimed to be a member of the Rosebud Lakota tribe; however, the Rosebud enrollment office stated in a 2005 letter that he was not a member.

Two Hawk and her family have worked to have their granddaughter and niece returned to the family for nine years. The young woman is now 17 years old.

The retrial has not been scheduled. Should Dillon, after the retrial, be exonerated of the charges, the situation with his daughter will be brought into the equation.

Continued in part six