8 Hamline L. Rev. 611 (1985)
By Hook or by Crook

handle is hein.journals/hamlrv8 and id is 623 raw text is: BY HOOK OR BY CROOK

William M. Kunstler*
The major difficulty inherent in representing Native American ac-
tivists accused of serious federal crimes lies in the apparent willingness
of the government to resort to any form of official misconduct to gain
convictions. The most glaring recent examples of such tactics took
place during the 1974 prosecution of American Indian Movement
(AIM) leaders Dennis Banks and Russell Means for their roles in the
71-day occupation of the hamlet of Wounded Knee, S.D., the preceding
year. While the jury was deliberating the hotly contested nine-month
trial, the judge dismissed the indictment.1 He had concluded that the
prosecution in this trial had something other than attaining justice
foremost in its mind. . . . [i]ncidents of misconduct formed a pattern
throughout the course of the trial [leading] me to the belief that this
case was not prosecuted in good faith or in the spirit of justice.2
In dismissing, the judge observed that what he charitably charac-
terized as pre-trial negligence on the government's part had earlier
moved him to the brink of taking similar action.3 The conduct that
had so provoked the judge consisted of the FBI's illegal interception of
wire communications4 and its negligent and impedimentary conduct
. . . in complying with the discovery order.' In concluding his initial
opinion, denying the defense motion to dismiss the indictment, the trial
judge observed that [i]f further misconduct occurs on the part of the
government, I would certainly consider a renewed motion by the defen-
dants. It is my deepest hope and expectation that such a renewal shall
* Vice-President, Center for Constitutional Rights, and, along with Bruce Ellison, John J.
Privitera, Lewis Gurwitz, and Vine Deloria, counsel for Leonard Peltier. In addition, Mr. Kunstler
represented Russel Means in a prosecution growing out of the 71-day occupation of Wounded
Knee, S.D., in 1973, and Darrelle Dean Butler, who was charged with murdering two FBI agents
on the Pine Ridge, S.D., Indian Reservation on June 26, 1975. Mr. Kunstler was assisted in the
preparation of this article by Mr. Ronald L. Kuby, a cooperating attorney with the Center for
Constitutional Rights.
1. United States v. Banks, 383 F. Supp. 389, (D.S.D. 1974), appeal dismissed, 513 F.2d
1329 (8th Cir. 1975).
2. 383 F. Supp. at 397.
3. Id. at 392-93 (quoting United States v. Banks, 374 F. Supp. 321, 331 (D.S.D. 1974)).
4. 374 F. Supp. at 323-28.
5. Id. at 330, 328-31.

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