Tuesday, March 31, 2015

They Are Our Children, Too. (A follow up to “Go back to the rez” – Thoughts on why it hurt so much)

By guest poster Neal Eisenbraun, attorney and Philip, SD, resident
“There can be no keener revelation of a society's soul than the way in which it treats its children.” ― Hon. Nelson Mandela
This is a follow up piece to “Go back to the rez” – Thoughts on why it hurt so much, regarding the January 24, 2015 incident that occurred at a Rush hockey game in Rapid City, South Dakota, attended by 57 Lakota students from American Horse School on the Pine Ridge Reservation, as an award for their scholastic achievements.
The students, ages 9 to 13, were at the Rush game as a reward for their academic success in the school’s 2lst Century program. http://rapidcityjournal.com/news/local/source-authorities-focus-in-on-one-man-in-racism-at/article_812d2c2f-5b3e-50a2-bdbe-4ba9107118f7.html (last viewed March 31, 2015). “21st Century is a special afterschool program that can be used for summer activities as well. Ours is at least 85 percent academically oriented, with computer-based math and reading programs, along with homework mentoring and assistance.” David Rooks, reporter for Indian Country Today Media Network, quoting Jody Richards, American Horse School teacher and 21st Century program director; http://indiancountrytodaymedianetwork.com/2015/02/09/drunks-dump-beer-native-kids-cops-no-rush-investigate (last viewed March 31, 2015).
The students, ages 9 to 13, were at the Rush game as a reward for their academic success in the school’s 2lst Century program. http://rapidcityjournal.com/news/local/source-authorities-focus-in-on-one-man-in-racism-at/article_812d2c2f-5b3e-50a2-bdbe-4ba9107118f7.html (last viewed March 31, 2015). “21st Century is a special afterschool program that can be used for summer activities as well. Ours is at least 85 percent academically oriented, with computer-based math and reading programs, along with homework mentoring and assistance.” David Rooks, reporter for Indian Country Today Media Network, quoting Jody Richards, American Horse School teacher and 21st Century program director; http://indiancountrytodaymedianetwork.com/2015/02/09/drunks-dump-beer-native-kids-cops-no-rush-investigate (last viewed March 31, 2015).
Rooks further observes that, “American Horse students who take part are very closely monitored for their academic progress. School administrators point to 21st Century as a welcome success in their efforts to raise student performance at the school. Since the annual trip to the Civic Center began, the prize of being able to attend brings a great deal of pride and excitement.” Id. (Emphasis added).
Here, according to media reports and participant interviews, are the basics of what transpired at the Rush game:
Directly above the rows in which the school children sat was a skybox being used by a group of adult, white, mostly males, some drinking beer. http://rapidcityjournal.com/news/local/source-authorities-focus-in-on-one-man-in-racism-at/article_812d2c2f-5b3e-50a2-bdbe-4ba9107118f7.html (last viewed March 31, 2015). During the course of the Rush game some of these adult males initiated interaction with some of the students, including reaching down and taking promotional souvenir Frisbees from the students and tossing the Frisbees towards the ice. Justin Poor Bear Interview with Police Investigator, p. 4. The adult males continued to direct their attention at these children as the game, and the adults’ drinking, progressed, such as yelling at the children “you guys should be loud, go Rush, you know, say go Rush, you guys should be loud, you guys are from the reservation,” (see Consuelo Means Interview with Police Investigator, p. 11) and culminating in one or more of the adults asking the children if they were thirsty and then proceeding to spill beer down on them from the skybox above. See Justin Poor Bear Interview, at pp. 9-10:

[Note to the following quotes: Because the student referenced in the Justin Poor Bear transcript is a minor, the name of the student was blacked out (redacted) by law enforcement. Where that occurs, I have simply inserted “Student.”]“JPB: Cause her grandma, Mable, she was uh, one of our teachers here
“SN: Yea
“JPB: Uh, she came to my house we was standing outside and she said ... Justin what happened on Sunday? Uhm ... [Student] came in .... said grandma I got beer spilled on me ...
“JPB: But I didn't let, I didn't give [Mable] my version what happened. I told her I said [Student] do you wanna explain to yer grandma what happened? And she said those men ... asked us if we were thirsty ...
“JPB: And they spilled some beer down on us.
“SN: So [Student] told ... her grandmother .... That one of the guys in .... is it one of the guys in the Sky Box
“JPB: Yea
“SN: Is that what she explained?
“JPB: Yea
“SN: K. So male in the Sky Box .... Asked her if she was thirsty?
“JPB: Thirsty, asked if they were thirsty.
“SN: And is that when she expressed that she had beer poured on her?
“JPB: Mmm hmm. Yup.”

The adults have their say, and demand their day; but, it is the children who will pay
For purposes of discussion herein only, I accept the allegations made by the children and the chaperones as substantively true. Because, whether the verdict is guilty or not guilty, there will be no winners. Neither those who strive so aggressively to condemn and prosecute the actors and actions against the children, nor those, including the adult participants who stalwartly refuse to acknowledge or address the harm their actions caused these children, appears to actually be considering the children’s interests and the substantial additional harm testifying in a criminal trial is likely to cause them.
Justin Poor Bear cannot testify that he heard the young girl say “those men ... asked us if we were thirsty” or that she said “And they spilled some beer down on us.” Nor can Grandma Mabel testify that she heard the young girl say the same in order to prove it happened. Repeating what another person said in order to prove that what the person says occurred did occur is hearsay and hearsay is not permitted in a trial. The young girl, and the other students who heard “those men ... [ask] us if we were thirsty,” or who had beer spilled on them, or who heard and saw the man in the skybox tell them to “Go back to the rez” will have to testify to what they heard said to them, what was done to them, and that it was the defendant who committed these acts.
When the children testify, the defendant’s lawyer will be entitled to cross-examine them. It is his ethical obligation to do so in zealously representing his client, in pursuing that defendant’s Sixth Amendment Constitutional right to confront and challenge the witnesses who accuse him. See http://criminal.findlaw.com/criminal-rights/the-6th-amendment-s-confrontation-clause.html (last viewed March 26, 2015) (“… [The Sixth Amendment] confrontation clause essentially means that the defendant has a right to cross-examine witnesses in order to challenge their testimony.”)
“Confrontation” means Confrontation – children do not receive a pass
Consider that these child witnesses will be transported back to Rapid City, where their confusing and frightful experience transpired at the hands of several adult white males, to be taken into the austere, dismal confines of a courtroom, seated one after another next to a man or woman in a black robe, to not only be asked to accurately recall to a group of strangers a traumatic experience they endured half a year ago, but to then be subjected to rigorous cross-examination by another white male adult who is trained, skilled, and experienced in that very art. As one recent study of the subject observed:
Children’s ability to answer questions in an actual courtroom may differ from their capacity to answer the same questions in a less formal or more familiar setting. Indeed, the physical courtroom environment has been criticized for creating a threatening atmosphere that could hinder children’s ability to answer questions posed to them. Research findings support these concerns: children find the courtroom environment to be stressful, and their resultant anxiety appears to interfere with their ability to provide complete and accurate recall.
Rachel Zajac, Sarah O’Neill, Harlene Hayne; “Disorder in the courtroom? Child witnesses under cross-examination,” Developmental Review, Volume 32, Issue 3 (September 2012) (internal citations omitted) (hereafter “Zajac, O’Neill, and Hayne”):
Though the trauma of such an experience for a child should be obvious, the depth of that trauma and the ensuing harm to the child may be less so.
Over the past three decades, widespread concern has been raised about children’s ability to cope with a legal system that was designed by adults, for adults. For example, research suggests that children’s experiences within the criminal justice system can have marked and prolonged negative effects on their education, mental health, and beliefs about re-engaging with the legal process.
My own observations and experiences during some three decades of litigation practice were that virtually every adult I ever asked to take the stand as a witness described doing so as one of the most traumatizing experiences in his or her life, both before and after the event, with cross-examination unquestionably being the worst aspect. In their study Zajac, O’Neill, and Hayne unsurprisingly opine that for child witnesses, the experience is even more traumatic, describing it as distressing and frightening:
There is little doubt that being cross-examined is not a pleasant process for any witness. Even expert witnesses and police officers find the process of being cross-examined stressful and confusing; considerable material has been written to assist experts to respond to cross-examination questions calmly and with confidence. Children, however, are likely to find the challenges that cross-examining lawyers pose to their accuracy, credibility, and motivation particularly disconcerting, because this type of verbal exchange goes well beyond their conversational experience. Indeed, most child complainants describe cross-examination as very distressing; many cite cross-examination and the behavior of defense lawyers as the most frightening aspects of the trial.
Id. (internal citations omitted).
Zajac, O’Neill, and Hayne identify many of the techniques utilized in cross-examining child witnesses (similar to those utilized in cross-examining adult witnesses, except for the enhanced susceptibility of children by virtue of and relative to their youth and naiveté), including:
·         Challenging and discrediting their perceptions or understanding of the alleged event, their memory for details of the event, or their ability to communicate their recollections to the court;

·         Challenging children’s credibility by highlighting inconsistencies in their testimony;

·         Attempting to discredit children’s evidence by emphasizing their potential for suggestibility (implying that the child’s allegations against the defendant are the product of suggestive questioning by parents and professionals rather than an accurate account of an actual event);

·         Directly challenging the child’s honesty by attacking his or her character or by portraying him or her in a negative light (recall the assertion published by the Rapid City Journal and attributed to “a source who was near the incident when it occurred” that “the incident was ignited when some members of the school group reportedly did not stand for the National Anthem prior to the start of the Rapid City Rush game”);

·         Asking specific kinds of questions that might pose particular problems for children, such as leading questions (questions that suggest, and often obtain, the desired response);

·         Asking linguistically complex or non-chronological questions to keep the witness off balance and unaware of where the questioning is leading; ·         Asking questions characterized by complex grammatical structures, including multifaceted questions, negative rhetorical questions, and embedded clauses (difficult at best for most adults to follow, but which may be completely incomprehensible to a child whose language skills are still developing);

·         Asking objectively ambiguous or nonsensical questions (which, even when children recognize that a question is ‘‘silly,’’ they are still likely to answer, particularly when such questions require only a yes or no answer, as is typical during cross-examination); and

·         Asking questions requesting highly specific information about the alleged event or perpetrator, such as questions about time, frequency, duration, directions, and measurement (questions that are often beyond children’s developmental reach).
Id. (internal citations omitted).
But, won’t the judge protect the children?
Although the judge has a duty to and will stop any “obvious” harassment of the children during cross-examination, he or she will have to do so while carefully balancing the defendant’s constitutional right to confront and cross-examine those witnesses against him. Zajac, O’Neill, and Hayne indicate that the data suggests judges rarely intervene when a child is giving evidence. Id. They note that this is most likely a result of judges not having a good understanding of the types of questions that are not appropriate for children. Id. They further observe that “a lack of knowledge about what constitutes appropriate questioning is not the only reason that judges might be hesitant to intervene.” Id.
Numerous researchers, for example, have suggested that judges may fear seeming biased. Intervening can also cause considerable disruption in a trial, especially if the jury needs to be sent out while discussion takes place. Finally, some judges … indicated that thorough testing of the child’s evidence during cross-examination was of utmost importance, and that a child’s distress was an unfortunate – but acceptable – consequence.
Id. (internal references omitted) (emphasis added).
In their concluding remarks, Zajac, O’Neill, and Hayne ironically do little more than re-state the dilemma:
Recent research has made it clear that cross-examination is unlikely to be the truth-finding technique that many believe it to be. Instead, the style of questioning typically used during this process directly contravenes almost every principle scientifically established over the past 30 years for obtaining complete and accurate evidence from any witness, particularly a child. Of specific concern, the types of questions typically employed during cross-examination have been shown to exert a significant negative effect on the accuracy of children’s reports about personally experienced events.
On the other hand, it is clearly dangerous to allow testimonial evidence to go untested – especially when corroborating evidence is absent or limited.
Id. (emphasis added).
This is precisely that kind of case, where corroborating evidence is absent or limited, where the children’s testimony is necessary, if not indispensable to the State’s case against the defendant. For, few can reasonably argue that the conduct of a drunken adult in asking children if they are thirsty and then pouring beer on their heads is not, at a bare minimum, a criminal disorderly act.
Yet, it is likewise reasonable to predict that the children will suffer more harm in having to testify and be subjected to cross-examination in a trial reliving what they experienced, some sixth months prior. How much more pain and potentially permanent the damage, will the entire experience end up causing the children if, as is likely based on the information I have reviewed and the youth and corresponding vulnerability of the primary witnesses, the verdict is “not guilty.”
Something happened that night at the Rush game and it would not be unreasonable to believe it was very close to, if not exactly what the children and the chaperones say happened. The question that perplexes me is why we as a civilized society seem to be incapable of finding an alternative method of resolving this matter, one through which we might demonstrate we can learn and have learned important, progressive lessons rather than causing more harm to children already struggling in an environment where mere survival is a profound challenge.
The adults in that skybox, some fathers themselves, surely know what transpired, and, I presume, sincerely regret that it did. It is inconceivable that they truly want to see these children be hurt more. It is reasonable to assume they had no idea of the extent to which their actions could and would cause harm, though the reasonableness of that assumption diminishes relative to the refusal to take responsibility and strive to make amends. (And, in that regard, it is certainly not reasonable that one person shoulders all the responsibility. Both those who acted and those who stood by and took no action share responsibility, as, ultimately, do we all.)
But, this need not be a criminal matter; it can instead be firmly grasped by a responsible society and its members as a path to enlightenment, to healing, to understanding. If it is not, nothing good will ultimately come from compounding a tragic error founded on curable ignorance. Ignorance is not a bad thing in itself, but perpetuating it is.
Justice is rarely delivered by the courts, because one side will almost always perceive that it was not. Nor is justice effectively imposed by a court. Justice is delivered by people, one to another, actively embraced and compassionately practiced by communities, voluntarily. Justice begins to be delivered, finally, in the steps taken to prevent future injustice.
Can we not take such steps now and begin to end the hurt? Perhaps we can begin to heal the hurt by express recognition that the acts were, indeed, profoundly harmful, coupled with sincere apologies and identification of steps to prevent a reoccurrence of such an event. What an awesome impression that would surely make on, and such a beautiful example it would certainly be, to all our children.
I conclude with an observation by the late Martin Luther King, Jr.’s daughter, Bernice King, on this event:
There are good people of all races in Rapid City and across the state of South Dakota, and their voices are needed to help rectify this regrettable injustice.
My hope is that those who were responsible for the bullying in this incident will come forward, offer a heartfelt apology and take steps to make amends to the children. There are paths to redemption for everyone, when we take responsibility for our behavior and do the right thing for those who have experienced injustice. This would be a meaningful step toward healing and reconciliation.
Bernice A. King, Chief Executive Officer, The King Center, “An Open Letter to the Young People of the American Horse School in Pine Ridge, South Dakotahttp://www.huffingtonpost.com/bernice-a-king/an-open-letter-to-the-young-people_b_6724480.html (last viewed March 31, 2015). 

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