SPEAKER_00 0:00

Welcome to Beat the Prosecution, presented by Northern I'm not a fence, and do you want a lawyer, Jonathan Katz? But we are here to regularly present you information and ideas for beating your prosecution as best as possible. Nothing on any of our media sources, such as our podcast or website, is legal advice. John Katz only provides legal advice to current clients or for individuals who have paid for a consultation. And now for your host, John Katz.

SPEAKER_02 0:32

Hello, everybody. This is John Katz. I'm a criminal defense and DUI defense lawyer in Fairfax, Northern Virginia. This is Meet the Prosecution. I am delighted to have today's guest, Charlie. How do you pronounce your last name? That's what I thought. If I'm not mistaken, he's the first uh judge, uh active judge that I've had on the show. We've had Paul Grusendorf, a retired immigration judge. We've had David Lewis, a retired child judge. Uh Charlie is an active judge. Charlie, please introduce yourself.

SPEAKER_01 1:10

Sure. My name is Charlie Aberesk, and uh I'm the Chief Justice of the Rosebud Sioux Tribe Supreme Court and an appellate justice at both the Lower Brule and Crow Creek Sioux Tribes. And I'm also a special judge for the O'Glaula Sioux Tribe, where I used to be the Chief Trial Judge. And um I still do the political hot potato cases for them.

SPEAKER_02 1:36

Okay. And I first learned about uh Charlie because we went to the trial or his college at separate times. Charlie, what year did you attend?

SPEAKER_01 1:44

I went in 1997.

SPEAKER_02 1:47

And don't you have a brother or cousin or other relative who also attended?

SPEAKER_01 1:52

That was my my cousin, my first cousin Mike, who with whom I was in practice years ago, uh went in 90s, 90, 1996, and um he's the one that kind of talked me into going. I hadn't really heard of Spence, but I did know Kent, Spence.

SPEAKER_02 2:11

And I was I was there in 1995. For all I know, maybe I uh met Michael at the reunion in 1997. Um, how did you end up uh deciding to go to law school? Where did you go to law school, and what was your career path from there?

SPEAKER_01 2:28

I got I really had all my education in state in South Dakota. So I went to the University of South Dakota Law School, and I um it was I went later in life. I I um had been working as the minority affairs producer for South Dakota Public Television for several years. And uh I topped out at about 20,000 a year. That was my salary, and I had eight kids, and five of whom were girls, and as they were progressing into high school and needed prom dresses and so on, I decided to um take a gamble and go back to law school to try and raise my income up a little bit, and uh that's how not not very mysterious, that's what I did.

SPEAKER_02 3:18

Yes, and you went to law school where?

SPEAKER_01 3:21

At at USD School of Law.

SPEAKER_02 3:23

Did they only have one law school in South Dakota?

SPEAKER_01 3:26

Right.

SPEAKER_02 3:28

And so uh then where did your career path go from there?

SPEAKER_01 3:32

Well, I went I went into private practice right away and um you know just kind of carved out a practice in uh mostly civil plaintiffs' work, some criminal defense. And um then I went to I I practiced for five years before I went to the um trial lawyers college.

SPEAKER_02 3:56

How did your family end up getting to South Dakota?

SPEAKER_01 4:01

Uh it's a long story, but I'll I'll try to tell the brief version. My grandfather came over from Lebanon in uh 1899, the first time, and uh he was looking for his brother, who he knew was somewhere in South Dakota. Uh came out here, bought a horse, and was riding around on horseback and started pack peddling, and uh gradu found his brother, eventually uh moved to the Rosebud Indian Reservation and um started uh you know graduating from the horse to uh finally a friend of his, Colonel C. P. Jordan, who was General Custer's first cousin, uh, and who was married to Chief Redcloud's sister. How's that for confusion?

SPEAKER_02 4:54

Yeah, that's confusing.

SPEAKER_01 4:56

They he bought his store and his ranch in Woods, South Dakota, which at that time was on the reservation. And uh so he just got established there, went back to Lebanon, married my grandmother, had two kids, my oldest aunt and uncle, and then he came back by himself for another 10 years, and then at the end of World War I, they came over on a ship with her brother and my grandfather's cousin, and uh came to the reservation. And then the three youngest children, including my father, who was the youngest, were all born at home on the reservation.

SPEAKER_02 5:35

All right, I'm hearing about being born in the reservation. Do you have any Native Americans among your ancestors?

SPEAKER_01 5:42

No, I don't think so. I it's hard to tell because my mother was adopted, so anything she was able to pull together, she sort of constructed it, but not a lot of good history. So yeah, I don't think so.

SPEAKER_02 5:58

Okay, and at some point you became a judge.

SPEAKER_01 6:02

Yes.

SPEAKER_02 6:03

And and what was that path?

SPEAKER_01 6:06

Well, I started off um, you know, doing special judge work for the Rosebud Tribal Court uh when they had commitment hearings and so on up here in Rapid City, um uh at a psychiatric hospital, I would go to and be a judge for those, and just occasionally doing that work, and then I became a Supreme Court justice for the Oklahoma Sioux tribe, and then I retired from that. And then uh when I was getting a little bit toward the end of my career as a trial lawyer, um they were looking for a chief judge in Pine Ridge and really solicited me to do that, and I've I agreed to, and I'm really grateful that I had the opportunity.

SPEAKER_02 6:53

I'm going to admit my ignorance about most things involving uh tribal courts, other than my understanding, correct me if I'm wrong, that uh for people who have standing to be there, they have to have Native American background. So can you just tell us about uh what what the jurisdiction is of these native courts you're part of and and um and and I guess the extent to which they don't require a judge to be native, because my understanding is you're not sure if you have a native background.

SPEAKER_01 7:23

Right. No, they they don't. They they they have a a requirement of professional attorneys at most of the tribes, although they do allow in Pine Ridge, for example, associate justices who uh don't have to have a law degree or law training. And so I when I was the chief judge there, I had um four of those types of judges under my direction at that time, and uh there some of them are really good judges, uh even though they have no law background.

SPEAKER_02 7:58

So you're the this is a uh system where a person does not have to have gone to law school.

SPEAKER_01 8:06

Right.

SPEAKER_02 8:07

But you seem to be portraying a system where they can still be good judges as opposed to the abortion in New York State, where you have, I think they call it a justice system, where some of these uh non-lawyers who act as judges will, for instance, do bond hearings in the back of their store.

SPEAKER_01 8:27

Yeah, they're it's not like that. I mean, they're it's a real formal setting, but they're really good with um a lot of the folks um are traditional Lakota speakers and uh or or come from the traditional culture. Not not everybody who lives there is traditional, but uh, and so the judges are really good in taking their time with those folks and um you know translating what they're saying and so on. So yeah, it works pretty well. And the advocate, the lay advocates are also remarkable. I when I was a judge, I saw a really good tribal, full blood tribal um lady who was a lay advocate, just shut down a uh an insurance defense lawyer from the biggest city in South Dakota. Um, and she was really good on her feet and and really sharp. Her last name was Respects Nothing.

SPEAKER_02 9:29

So she well, uh, did I come anywhere close to what the jurisdiction is in the Oh, I'm sorry, I probably uh didn't answer that question.

SPEAKER_01 9:42

Uh we can do really anything that has not been circumscribed by the federal government. Uh the states have nothing to do with our jurisdiction. It's just us in the federal courts, as is essentially the only jurisdiction available. We are constricted by an old Rehnquist opinion in 1978 that limited our ability to um do any criminal cases other than uh high misdemeanors or misdemeanors. Um the felonies are referred to the federal judicial system, and um they're they're taken care of in Rapid City. Although the FBI has more has increasingly laid off on uh investigating a lot of serious murders and stuff. And when I was the chief judge, we had several cases involving murders that and and all we could do was charge them a thousand dollar bond and um or twelve hundred dollar, I think was the top. And um but but we are allowed to uh and we can't give more than one year in jail, which I was grateful for. Um but we uh when it comes to domestic abuse, uh like a felony type of abuse situation, we're allowed to give those offenders three years in in the tribal jail.

SPEAKER_02 11:10

I'll take a $1,200 bond on a murder case.

SPEAKER_01 11:15

I think most people would.

SPEAKER_02 11:17

So uh what um what would cause a non-native uh uh to have the courts, the native courts have jurisdiction over them uh unless they're consenting to that jurisdiction? Um does it depend on whether it's uh a civil or criminal matter?

SPEAKER_01 11:35

Yeah, that that it depends on that. If it's civil, we do have jurisdiction over uh native, I mean, or non-native uh folks, as long as they're uh it touches on or concerns the the interest of the tribe or it happens within the boundaries of the reservation. Criminally, different matter. If it's a crime against Indians, that's prosecuted by the by the U.S. attorneys. And um if it's a crime by one white person against another white person, then that's prosecuted in state court.

SPEAKER_02 12:10

Okay, so what does that leave then? Uh for crimes that the the defendant has to be a native, uh a Native American?

SPEAKER_01 12:19

Uh correct, yes. And that's again not not a major crime, uh major crime in order for us to prosecute it.

SPEAKER_02 12:29

And um is the the separate sovereign's doc is there no separate sovereigns doctrine that applies uh then that uh if there's a prosecution in the native court, there cannot then be a separate uh prosecution in the federal court?

SPEAKER_01 12:43

Double jeopardy does not apply. There's they're seen as two separate jurisdictions, so they can be prosecuted in both places.

SPEAKER_02 12:51

But uh am I correct that the there could not also be a prosecution in the state court if there's a prosecution in the native court? That's correct. Correct. So what made you decide to become a judge?

SPEAKER_01 13:08

Um I think it was just a chance to you know to try and do some good uh on the reservation, and I was doing a lot of rebuilding the court. Um they'd had some problems with some judges before that. So I immediately set out to train the clerks uh to uh reinstitute uh jury trials, which was a huge hit. Um people just love that because when people are disempowered by the federal government, um they you know uh feel pretty good when they get to serve on a on a in a jury trial as a juror. And so that was a wonderful experience. Um and also there's the normal uh empowerment that um jurors get when they're chosen to uh and others are not selected that sort of awakens something in us, and um, they feel empowered in that way too, that they're a juror deciding someone else's fate.

SPEAKER_02 14:14

To what extent do native court proceedings go forward in uh in uh native language uh rather than in English?

SPEAKER_01 14:22

Well, generally speaking, there it's mostly in English, although if people struggle, we'll have an interpreter available to um to come and interpret for them. So there are some people that really struggle with English.

SPEAKER_02 14:36

And to what extent uh are any of the governing uh laws and regulations uh for these trials uh in languages other than uh English, well, I guess in native languages?

SPEAKER_01 14:48

Yeah, they're they're they're really not either on the tribal side or uh the federal side. They're um although the federal judges have in South Dakota have all been Democrats for at least 20 years or more, and uh they're pretty good about providing uh translators at the federal level. When did you graduate from college? Um 86, and I was a late bloomer there. I I went out and worked at the UN and uh did other things like that, and I was a community organizer and an activist for a number of years. I represented indigenous people from largely from the Western Hemisphere for four years at the UN, both in New York and Geneva, Switzerland. And I did things like that before I ever went back to school and got my degree.

SPEAKER_02 15:38

So I asked that mainly to get a sense of uh the extent to uh uh to which you've been involved in um before becoming a judge and empowering uh Native Americans in any way and dealing with in injustice against Native Americans.

SPEAKER_01 15:55

Yeah, I yeah, I think uh if I understand you know your question, um that's been really all my adult life, pretty much. Um I moved um to the Pine Ridge Reservation in late 1973, helping out a traditional friend of mine who I'd known for much of my life. And um, and then um I was also I ran into Russell Means, who I had known, he was one of the three original founders of the American Indian Movement. I ran into him in Rapid City and he wanted to run for tribal chairman in 1974. And so he asked me to come down and help him with his campaign. So I was helping out my friend and helping out Russell that I came down.

SPEAKER_02 16:43

Russell means, aren't we talking about the same man who had acted in one or more movies?

SPEAKER_01 16:48

Yes, correct. That's the guy.

SPEAKER_02 16:50

I read some article about him that and it interested me about something he was doing. So I found his email address and I shot him an email. He called me within a day. And uh, you know, the perhaps the consummate uh human or politician, he said two or three times, how can we work together? How can we work together? I said, Well, you know, if you give me something concrete, you know, we can talk about. I told him how I knew Dennis Banks because uh my peace teacher Jun Yasuda, or uh Odaimoku uh calligraphy back there is is her prayer, Namu Myohorengeo. You know, of course she was uh close with uh Dennis for years.

SPEAKER_01 17:30

I knew June.

SPEAKER_02 17:32

Uh a great, and who's the who's the third person who is the co-founder of the American Indian Movement?

SPEAKER_01 17:38

Clyde Bellicourt, from who was from Minnesota. He was Ojibwe.

SPEAKER_02 17:42

Okay, I know his uh I know his name. Okay, so you started meeting these people like Russell Means, and where did it go from there?

SPEAKER_01 17:52

Um so I moved uh down to the reservation and it just started organizing folks because the then tribal chairman was uh pretty much of an autocrat and uh um you know very authoritarian, and people, especially traditional people, were kind of chafing under his rule. And what was his name? Richard Wilson.

SPEAKER_02 18:16

Yes, uh he's he's written about in Dennis's uh biography, Ojibba Warrior, yes.

SPEAKER_01 18:22

Yeah, yeah. So he's so you know, we were organizing around that and just trying to protect people. And I got a license as a lay advocate in the tribal court back. This was in 73, 74, 75, right around in there. And you know, we were just it was just a pretty intense time. Um the so-called goon squad, Wilson's uh thugs basically were were mostly armed. And you know, when you would come to a an intersection uh somewhere across the reservation, which is pretty large, um, you see cars gathered up, you know, you you would tense up because you weren't sure if that was those guys or not. So it was uh it was like a a civil war going on uh in the reservation, and I was in the middle of all that. And at some point my close friend Byron de Cersa, um who was a descendant of Black Elk, um was um w with us in a town called Wamblea at the north end of the reservation where crazy horses people settled. And um we we left uh town at the same time me to go bail some people out of jail and and him to go get some help because the goon squad had w had had uh come into the town and and there was probably at least 30 or more of those guys with heavy weaponry. So it was kind of a scary deal. He came back before I did. They had set up an ambush outside of town, chased him and shot him and killed him um as he was driving in. Wow. So you know it was a serious time, and um a lot of people were killed during that period of time, many of those murders being unsolved.

SPEAKER_02 20:12

Did anyone get uh prosecuted from the goon squad?

SPEAKER_01 20:16

Not well, for Byron's deal, uh four people were prosecuted, and only one went to jail and did two years out in Terminal Island in California. The others got off.

SPEAKER_02 20:31

Were you involved at all in um in the organization, uh, creation development of the American Indian Movement?

SPEAKER_01 20:40

No, I came later to that. That that was really formed in '68 up in Minnesota. Uh and Russ uh got was out in Cleveland at the time, so he established a chapter out in Cleveland. And uh, you know, Minneapolis in that area was really the the the home ground for their organization. And when I came first came down, I wasn't really involved with the movement. I was um more or less helping the traditional people, but it evolved into working alongside of the movement. I'd be I had been uh I got to be close friends with Russell's two brothers um and um worked with with them uh on the on the reservation, and um so you know they I I got along with um four means brothers pretty well. We knew them since 1965.

SPEAKER_02 21:39

Yes. So where did it proceed from there? What kind of uh what kind of legal work were you doing uh for Native Americans over time? And uh who did you become law partners with?

SPEAKER_01 21:51

Uh well I I uh my most of my clientele were Native Americans, and if I did any institutional work, it For Indian tribes or tribal schools or other tribal organizations. And I was always on the cutting edge. One of my favorite Indian law cases that I took all the way to the Supreme Court, U.S. Supreme Court, was uh affirming the boundaries of the Ankton Sioux Reservation when I was their general counsel.

SPEAKER_02 22:21

What's the name of that case?

SPEAKER_01 22:23

Um, it's got a weird name because it started off against a solid waste company, and then just the state was looking for a way to divest the tribe of their uh reservation status, so they took it up.

SPEAKER_02 22:39

I can always find it by looking up your name then on Westwall.

SPEAKER_01 22:42

Yeah, definitely. I know Yankton Sioux Tribe is in the title, but okay.

SPEAKER_02 22:48

And um, so at some point uh you were in partnership with Robin. How do you pronounce the last name? Zephyr?

SPEAKER_01 22:55

Zephyr. Zephyr, yeah. And who else were you partners with and what other kinds of well my my cousin Mike um and uh other folks off and on? Had a few other Robin's a member of the Cheyenne River Sioux tribe, and we had a few other tribal members that worked for us over the years. So it was kind of a had a lot of people come and go from the the law firm.

SPEAKER_02 23:20

Right. Okay, so I mean, have have you pretty much covered the kind of work you were doing for the Native Americans, or did it go beyond that?

SPEAKER_01 23:28

No, that was pretty much it. I went from organizer to a lawyer and um, you know, playing a different role, I guess, and still taking a lot of um important, I I felt, native case, native related cases. So I just finished out my career doing that and then being a judge.

SPEAKER_02 23:49

So when you were uh working as a private practicing lawyer, that this included your showing uh your appearing in native uh courts, right? Charles?

SPEAKER_01 23:58

Yeah. And to what extent but really more in federal court, I should say.

SPEAKER_02 24:03

Got it. And to what extent did your law school um uh make available learning uh tribal law? And to what extent did you take advantage of that?

SPEAKER_01 24:13

That was uh fortunate for me. My old friend Frank Palmersheim, who is a well-known in author on Indian law books and so on, was my Indian law instructor there. And he taught all the Indian law classes back then. So I was lucky to get with him, and um, you know, and he was really a thorough um teacher of the in federal Indian law and tribal law. And he used to take his classes out to the Rosebud tribal court and have them uh stay for a few days and watch cases and so on. So that was good to get, especially non-Indians exposed to um how tribal courts work.

SPEAKER_02 24:55

Perhaps going on a tangent from the actual practice of law, but this has really uh made me wonder, it's bad enough that there was this abortion uh of having the uh the forced boarding schools to de-Indianize uh Native Americans in the U.S. But how did it happen, do you think, that that was also the situation in Canada? Was it almost like there was a conspiracy among the Canadian American American governments to do that, do you think?

SPEAKER_01 25:23

Well, the the the uh machinery of colonialism or colonization is the same everywhere. You know, they uh they just find ways to pass policy in order to uh you know take legal hegemony over Indian people and their lands. And uh, you know, it's the same thing in Central and South America, in a lot of ways, sometimes more brutal. Um you know, the estimate is 11 million Indians were killed in the hemisphere over the all the years of colonization, starting with the Spanish so um machinery is the same. They don't need to conspire on that.

SPEAKER_02 26:12

So now I've got that answered. To what extent have you been involved in dealing with uh uh supporting um the the access to uh uh sacred uh uh drugs or medicines, uh dealing with um recovering uh Native American artifacts that were seized by people who really uh shouldn't be doing that, and uh dealing with um uh water hunting and fishing rights for Native Americans.

SPEAKER_01 26:44

Um I've touched on a few of those areas, uh not um much on religious freedom, other than I had a couple eagle feather defendants, people that were arrested for trading eagle feathers, which violates federal law, even though they've been doing that for thousands of years treating spiritual artifacts. Um so you know that's that's really the the extent of what I did in those areas, I think. Um you know, the law is pretty well settled on all of that right now, anyway.

SPEAKER_02 27:23

Got it. Um so my understanding is uh after the trial or as college, if not before, weren't you involved in uh being an instructor yourself on uh trial law, whether that was at the trial or as college or not? And you got very involved with psychodrama?

SPEAKER_01 27:45

Yeah, I was when I went in '97, I had never seen anything like psychodrama, and I was quite taken by it. And I just pursued training intensively, and I was fortunate to have stumbled into a training group with John Nolte, Don Clarkson, Caitlin Larimer, and Kathy St. Clair, who were very generous with me and welcoming me. And I wasn't wealthy or anything, and they, you know, it's can be expensive to be a train as a director. And uh, so they really made allowances for me whenever they could. And uh it was great training. John was, of course, the uh protege of JL Moreno, who created psychodrama and sociometry and the phrase group therapy, and uh so he kept it as pure as possible uh to the original intent of Moreno. And so, you know, I just trained for a lot of years all over the country, and then about a year and a half ago, John finally hit the age of 93 or 94, right around there, and he decided he was gonna hang up the spurs, and so um I became I filled in John's slot in the training group, and then uh Kathy St. Clair had passed away, and so Caitlin and I took in Jody Anderson, who was Kathy's daughter, and so the three of us are now that the National Psychodrama Training Center training staff. So and you're still doing that? Yes, we just I just came back from Roundtop in Texas. We just did a four-day workshop there, and we're doing one in Lake Arroyette, California.

SPEAKER_02 29:31

Now, whether you call it political or or hit or miss or or whatever, were you ever on staff over the trial or as college? Yes, we're involved in the leadership there at some point.

SPEAKER_01 29:42

Actually, in 97, when I was a student, I started the graduation, you know, and I had uh both my first wife, my late first wife, uh, who was uh descended from Crazy Horse's widow, and my friend Richard Moosecamp, who's a medicine man, they designed the ceremony and how to do it. And so I just kept on doing that. I was put on staff in '98 and then put on the board after that. And I was on the board of directors till either 2005 or 2006 when I got into it with Jerry Spence. And um I resigned from the trial lawyers college. I was away from it for a number of years, although I continue to teach lawyers around the country, both at the Western Trial Advocacy Advocacy Institute and Laramie, and also with the Three Sisters group, which was Joanne Garcia Colson and Freddie Sisson, and that that that group.

SPEAKER_02 30:43

Freddie joined me about two or three weeks ago on the show.

SPEAKER_01 30:46

Oh, great. Yeah, she's great. Um, so you know, I continue to teach, and then when they then the trial lawyers college split from uh the Spence ranch, um, then the TLC then moved to first to Colorado and then New Mexico. And so they asked me to come back and do the graduation ceremony to sort of help get them re-established. And so I did that for about three years, and then last spring I just sent um John Sloan a letter and said, I'm just too tired to keep doing the that every year.

SPEAKER_02 31:24

So I resigned. Okay, so this uh graduation um ceremony you're talking about. Did this include having some uh soil from uh the ranch and a pouch to wear around people's neck, or or do I have that off base?

SPEAKER_01 31:40

Well that became later and I wasn't they weren't following the tradition, but uh the originally it was some uh a tiny stone because it's the stone that carries power from the ranch, and then some sage that was picked at the ranch and put inside of a pouch. And then the ceremony was designed in a certain way that had to be done in the right way in order for there to be power behind the ceremony.

SPEAKER_02 32:07

So okay, so I love the sage out there, and you're saying there's a stone out there. I guess I missed uh where to find the stone.

SPEAKER_01 32:15

Well, I had to go look for them, they have to be the right size, they're real small. Uh and you so that you you put them in the pouch with and uh, but it was you know, it was real meaningful to people. They would carry it into trial with them and so on.

SPEAKER_02 32:30

Can you talk about uh how your approach to uh representing your your clients and preparing for cases and executing trials changed uh by the time you finished uh your first attending the trial or his college and how much that uh ended up helping you?

SPEAKER_01 32:52

Oh, I think the big the thing that helped me the most was psychodrama. There's no question about it. I mean, uh it's empowering to hear like my friend Garvin Isaacs and uh uh Richard Haynes and people like that talking about trying cases. You know, Garvin was so good on talking about crossing adverse experts and things like that. Um, but and Jerry, you know, tells some heartening stories for folks. Um and but the real core of psychodrama teaching is I mean, of the TLC teaching is the psychodrama. A lot of people didn't really understand how or why that was, but it really was the the core of everything, and I still feel that way. And I I've probably applied a lot of that to practice and also to teaching others.

SPEAKER_02 33:46

And and how did that help you? Uh, can you give uh an example or two about maybe one or two cases you did, for instance, about that how that helped you and/or metamorphosized your practice?

SPEAKER_01 33:57

Well, um, you know, that's almost a show in and of itself, but I'll just try to encapsulate a couple examples. You know, I wrote uh an article, a scholarly article that was distributed at the college for a number of years about the application of psychodrama and depositions and direct and cross-exam. Uh, I think I wrote that in 01, and that was so that was distributed for a long time, even after I left. But, you know, you uh it helps with your creativity and spontaneity at trial. You're better on your feet. Um, I remember one time I had a case, it was a little, it was for a friend's daughter, and she'd gotten in a car accident. So, yeah, and of course, they weren't going to pay anything because they didn't think it was worth much. And uh so I went to trial, and the problem was she was out sea kayaking and stuff like that after. And uh, so I I didn't have any clue how to address that issue in closing until the day of, and I I went and did it, and I and I did a timeline, a psychodramatic timeline, and said, you know, right now she seems good, but then I walked forward 10 years at a time, you know, along the front of the jury box, and you said, you know, now she's in her late 30s and she's starting to feel a little bit of the arthritis that the doctor said would eventually come. And I went on in the future until she was in her 70s, and I said, now she's really suffering from the effects of this accident. And I said, uh, unfortunately, our law, and I went back down to her present-day self, and I said, Unfortunately, that the our law is such that we can't come back to you when she's that person and 70 years old. When I pointed down to the other end, all the jurors turned and looked down at the other end, and so you know, you're sort of visualizing or creating reality for them.

SPEAKER_02 36:04

Right.

SPEAKER_01 36:05

I said, You we have to you have to give her everything even down into the future, right now, in this case. That's an example of not only the kind of spontaneity you can have, but also doing psychodrama to um to really start to develop your own creative methods for making things uh unfolding things into three dimensions or more.

SPEAKER_02 36:32

So something that helped me uh integrate psychodrama and the teachings in the trailer as college, uh, well, a few things that included that I was already very much an individualist. Um, I had uh played trumpet, including improvisational and jazz trumpet for many years, and I took to doing amateur magic, and sometimes I would perform magic shows for children's birthday parties. And if you want to uh have to be in the moment and be improvisational, just see what happens when you're the bunch of uh rambunctious children ranging and uh ranging five to nine years old. So when I went to the trial or as college, I realized uh, you know, I've been doing it the right way. I've been marching to the beat of my own drummer, right? There's the emphasis on being real, and how lucky I am that uh Don Clarkson, who you mentioned, one of the uh psychodrama instructors, has never lived more than maybe 60 or 70 miles from me.

SPEAKER_01 37:36

Yeah, it's very fortunate. Um, yeah, Don. By the way, the other thing I want to quickly mention is the greatest use of psychodrama experience is in jury selection. Yes, you learn how to roll reverse and stand inside the shoes of another and feel what they're feeling up to the extent of not losing your own personality. And um there is something about exercising that part of your mind that makes you uh really proficient at jury selection. And the more you uh you do psychodrama uh as a participant, and the more you train as a director, the better you get at communicating with jurors and reading or inferring where they're going with things and what they're thinking. And uh it's invaluable for jury selection.

SPEAKER_02 38:39

And so while you're doing that, I take it you are not uh trying to uh uh put any of the potential jurors into a psychodrama themselves?

SPEAKER_01 38:50

No, no, not at all. And you're not trying to condition them or anything, all you're trying to do is get down to the level of really having a true um and accurate two-way communication going with jurors and to try to understand or read their minds a little bit in terms of what they're thinking. After all, we are trying to uncover bias, among other things.

SPEAKER_02 39:14

Yes. And so so, what do you do to uh make uh the potential jurors comfortable about talking with you and asking questions themselves?

SPEAKER_01 39:25

I I don't know, it just comes natural. I I have to say, after doing, I mean, I'm I think I've got a few of those natural skills anyway, but they really got enhanced by doing psychodrama. And I'm just, you know, part of it is not being threatened when people talk about emotions and real and and tragedy and things like that. You know, rather than freezing up, you can actually get right in there with them and talk with about really painful things or things that, or maybe conflict that you know, we run away from. And psychodrama helps you meet those people where they are and to communicate with them at the deepest levels possible. And that's invaluable in jury selection.

SPEAKER_02 40:12

Did you do any criminal trials after uh attending the trial orders college in 1997?

SPEAKER_01 40:19

Yeah, I did.

SPEAKER_02 40:21

And do you have any specific examples of how the um what you learned at the trial laurels college and from psychodrama helped you specifically for the criminal defense work you did?

SPEAKER_01 40:33

I wish I did. I just can't. I did, you know, I did mostly civil, so my I I had some good um criminal cases too, and you typically in federal court. Um but I did have one in uh state court. It did help me on uh a Native American young man who was accused of abusing his own child, and uh I felt like psychodrama really helped me in that case as well. Uh to you eventually we I was able to prove that it didn't happen.

SPEAKER_02 41:09

How long were you a trial judge?

SPEAKER_01 41:13

Three years, uh full-time, and then I continue to do it on special cases.

SPEAKER_02 41:20

Do you have any level of discomfort doing criminal trials uh well when you were a trial judge, including uh um uh holding uh you know detaining people, presumed innocent people, uh pending trial, and or sentencing them?

SPEAKER_01 41:40

Um I think you're not human if you don't struggle with those kinds of issues. Um I always had the greatest struggle with um sentencing because I didn't really, even the more serious cases, I seldom I I think I only gave one person a year because I had to. Um, but I didn't want to have them go to the tribal jail, which didn't have any programs, they were just locked in a cell basically. And um, I I felt uncomfortable sending people for a a whole year on when they didn't have programs and educational opportunities and things like that.

SPEAKER_02 42:22

But in the tribal courts, uh what uh what laws uh what statutory laws and any common laws are being applied? Is it just the federal the same as in federal court?

SPEAKER_01 42:36

Yeah, or you know, you'd be surprised. They they have their own tribal code, so we have to go by that. Um and though that's uh like everywhere else, they respond to community pressure about drugs and things, so they heighten the sentencing and and so on in those kinds of cases. And uh, but you know, that's what I I remember about it, is just um that um it's just like the common law in states and so on, with some peculiarities, cultural peculiarities.

SPEAKER_02 43:10

Um not too many, but some the name of this show is Beat the Prosecution. What other than you've discussed, other than uh preparation, preparation, preparation is the way to beat the prosecution.

SPEAKER_01 43:26

Well, uh I think it starts with ourselves uh being courageous enough to stand up to the power structure. I mean, you cannot be a criminal defense lawyer or a civil plaintiff's attorney um without engaging in you know the corporate or governmental power structure. And we have to be strong and brave. You know, um I I've had cases where I don't want to get into too many particularities, but they were. Some serious cases in which the feds were were trying to get me out of the case. And uh they they manufactured something uh and accused me of it. And you have to be strong enough to withstand that. And uh I remember uh talking to Garvin Isaacs at some point during that process, and he says, Well, now you know how our clients feel. Yeah, and it's true. Um, you know, if anything, it makes you tougher and harder to go through that kind of stuff. And uh, you know, you really lose your fear of the power structure. And and I think most of us lawyers that represent the people have to be strong in ourselves and strong in our convictions. And I don't know how you can, I mean, for me, I'm not saying this is true for everybody, but for me, I never golfed or skied or did any of those kind of things. If I if I wasn't working, I was either spending time with family or reading and trying to figure out how to get an edge over the power structure. And so, you know, we have this is a serious lifelong pursuit, and we've got to stay with it. And uh yes.

SPEAKER_02 45:18

Tai Chichuan helps me tremendously. And uh, as I've said on a few other shows, I returned to martial arts sparring this past summer after I was afraid of being in physical contact with people about what happens when there's the next pandemic. And uh, we have some great Tai Chi Chuan practitioners here, and one of them named Steve, who is amazing, uh, you know, he he shows me how he's able to push me and says, Look, feel my arms. And they're like jelly. He's just sending qi through his arms to push me and no physical force whatsoever. So at one point, when he was pushing me around almost like a punching bag, I said, Okay, Steve, just give me a chance to regroup. And he said, There is no regrouping. Your opponent is not going to give you a chance to regroup. Roscus never giving me a chance to regroup. And coupled with that, uh, Charlie, is that uh uh Benjamin Lowe, who's this great Tai Chi Chuan teacher who had the privilege of uh studying with uh at least five times, he said this is not about uh exceeding the power of the other side. If the other side has 50 pounds of force, you don't try to get 51 pounds because you can keep chasing and chasing the person who's got 500 pounds of force. What are you gonna do? And the great thing about that is then let's send them in court and all of a sudden I'm stunned that uh the prosecutor has some level of intelligence uh about the case and I never realized they had that they didn't have to disclose, or maybe some sort of skill they didn't have disclose. I don't have to feel that I'm weakened. I'm I'm I'm not uh I'm not trying to exceed their power. I'm at the power of zero. I'm using their energy, I'm using the energy that's right there, I'm using the in the moment, and it works tremendously. Um I can't tell you how great I feel going into court on a Monday after doing sparring on a Sunday. Okay, well, you know that I've been in touch with you about Leonard Peltier. Yes. Have you ever met him in person? Have you been in touch with him after his release?

SPEAKER_01 47:25

Well, he when I was in the you know, we when I was in law school, he called all the time. We visited quite often. Um, and uh I'm happy for him. I think it was the right thing to do. Uh I was actually surprised that uh Joe Biden did it. And uh I think he's pretty happy. The people at Turtle Mountain where he's from are pretty happy he's home. And uh I I saw a photo the other day of him sitting there opening up Amazon packages that people say. So you can imagine, you know, what a new experience that didn't even exist when he went in. So and uh, you know, he's probably wondering about how to make a living and all of that stuff. You know, he's 80, and geez, he's just uh that's a whole new world for him. So I am happy for him.

SPEAKER_02 48:17

Me as well. I just took a stab in the dark on uh January 20th of this year that maybe Biden had come to his senses, and I saw yes, he did. He finally, you know, Leonard was one of his last pardons of his presidency.

SPEAKER_01 48:30

Yeah, but he took it right up to the end there.

SPEAKER_02 48:33

So I had a feeling he did that to just not have to answer to the controversy that would come from the uh the former FBI agents over that. Yeah, you've been in touch with him after his release.

SPEAKER_01 48:45

I haven't. I'm I've talked to his lawyer, Bruce Ellison, is one of his lawyers, and Bruce has been faithfully there for him all the way through his whole incarceration. Um but I haven't had a chance to talk to him. There's so many people wanting his time right now. It's just uh kind of letting him be, you know, and experience the joy. Right? His daughter is from Pine Ridge, and she's gone up and she's staying with him right now.

SPEAKER_02 49:15

Okay, so when I visited uh South Dakota from Only Time when I was 14 years old for a few days in 1977, what were you doing in that stage of your life?

SPEAKER_01 49:27

1977, I was living in Wombly, South Dakota on the north end of the reservation. Uh and my first wife and I moved to Rapid City so that I could get some work. Uh because she had um well, I married the widow of the guy that they shot in Wamblee. And uh so her her grandmother uh was the daughter of Crazy Horse's widow, so they you know they're a real traditional family, and uh and so she came out her her grandmother in Wamblee, her other grandmother had adopted me as a grandson, and so you know, I lived uh next door to her for a while and then out at her house in the country, and so my first wife came out uh just to grieving, you know, and spending time, and we hooked up and um were together for 25 years, I think, and she passed away at age 55. Um so yeah, but we have we had a bunch of kids.

SPEAKER_02 50:46

Okay, well, to try to transition from there, one of the places we went to uh was Mount Rushmore. Uh and as liberal as I had thought that the person who ran our camping cross-country trip, camping seven weeks cross-country, starting from Massachusetts, no one said anything about the controversy of Mount Rushmore being there, let alone uh the background of the man who uh designed and created Mount Rushmore. Uh, but uh perhaps worse than that was I thought I was growing up in somewhat of a liberal-minded place in Southern Connecticut and Fairfield, but through all of those celebrations about Native Americans and learning about uh wigwams and going to the uh uh I forget what it what the name, I think it was, yeah, the Pequot Museum, uh Indian Museum, we we were told uh next to nothing, next to nothing about the mistreatment of Indians. Uh and and I and I think that then raises the question about how many Americans uh to this day still don't know about the mistreatment of Native Americans in in the 48 states, in Alaska, in uh in Hawaii as well.

SPEAKER_01 52:03

I agree. Um yeah, I think it's still a little bit mysterious. Sometimes that's a blessing that they don't get the attention of the United States government, other times it's not. Um I wish that they would do more to teach about our history.

SPEAKER_02 52:23

Uh your father, James, was in the Congress and he was the first Arab American senator, right?

SPEAKER_01 52:30

Yes, that's correct.

SPEAKER_02 52:32

Uh, were you already in your teenage years or adult years when he was in Washington? For you not to maybe have been living in Washington with him at all?

SPEAKER_01 52:41

Well, I moved out of our home when I was 16 and I lived and worked uh outside. I had even quit high school for a while, but I got into a little trouble. So when he won the house, that was his first race. Um, I had to move back in with him and then move out to DC. So I was in DC for my last semester of high school, and the day after I finished high school, I hitchhiked back to South Dakota. So I that wasn't really my thing, that was more my dad's project. And um I came out and did my own stuff out here, and um we we were really good friends later on, but I just um, you know, kind of did my thing and he did his. And I really didn't know much about what he'd been doing, but I I came to learn later, you know, all the things he liked the Indian Self-Determination Act and the Indian Child Welfare Act and things like that that he had um shepherded through the Senate and got passed. And those things, those are laws that are extremely important and still hold up today. I was happy right when he was um in his final weeks, uh, the Supreme Court came down with that decision upholding the Indian Child Welfare Act. So that was kind of a nice touch on his career.

SPEAKER_02 54:07

And my understanding is that after your father left the Senate, he uh founded or co-founded. Tell me if the I got the uh words American uh Arab American Antidiscrimination Committee?

SPEAKER_01 54:21

Yep. ADC it was called for short. Yeah. He did, and they were they were a pretty uh powerful force in trying to reverse the discrimination against Arab Americans and the misrepresentation in the media and so on.

SPEAKER_02 54:36

So and did you have uh much discussion with your father about the work he was doing with ADC?

SPEAKER_01 54:43

Yeah, I did actually with that. And he he was really committed to that, and and um you know he did it until he really couldn't physically do it anymore.

SPEAKER_02 54:54

Um was Abdeen Jabara his immediate successor there, yes.

SPEAKER_01 54:59

Abdeen's a very close family friend, and um he um yeah, he I as a matter of fact, he came out for my father's memorial. Great guy and great attorney.

SPEAKER_02 55:13

When I visited Ramsey Clark in early 2000 uh in New York City to talk to him about our defense of the uh the plowshares versus depleted uranium, which was a several-day uh jury trial we worked on together in uh in Maryland. Uh someone he was sharing office space was Abdeen Jabbarra. That was the one only time I met him. Yeah, briefly.

SPEAKER_01 55:38

I think, like all of us that work close with our clients, you know, his his uh home was searched multiple times in Detroit when he was practicing law there and doing civil rights work, and um as mine was, um and uh without warrants typically. And uh so Abdean's been up close and personal with the power structure too, and he's just a great guy and fearless with his representation.

SPEAKER_02 56:05

Abdeen's home was searching when you say your home, are you talking about your dad's home or are you?

SPEAKER_01 56:11

Oh no, my my own home on the reservation.

SPEAKER_02 56:15

For what reason or for what bad reason?

SPEAKER_01 56:17

I don't know. My my neighbor caught him in my house going through it. But they they followed me around and it was a it was a period of time.

SPEAKER_02 56:32

How many how many judges are there who've uh who've suffered that kind of harassment?

SPEAKER_01 56:38

I don't know, but I mean you know it's not fun to go through that, but it does make you stronger.

SPEAKER_02 56:45

Well, I told you we're gonna end at four o'clock eastern time, and we're a few minutes past there. So at this point, Charlie, I want you to be able to tell the audience anything you want them to know that you have not already addressed.

SPEAKER_01 56:58

I think we we covered it. Uh, you know, I think that if you ever wanted to do another show on uh on jury selection and psychodrama, that could be one all to itself, really. Uh, and I think it would help lawyers tremendously to understand that and start to train in it. It's just a tremendous method.

SPEAKER_02 57:19

Absolutely. We've had Don Clarkson on and we've had several trialors college people on already, but I'll I'll pick you up on that. All right. Thank you so much. You've heard from Charlie Aberisk, a fellow graduate of the Trial Oras College, uh on this one of the one of the uh uh native appellate courts. Which one is it, uh Charlie?

SPEAKER_01 57:46

Rosebud Street Tribal Supreme Court and also the Crow Creek and Lower Brule tribes um on both of those.

SPEAKER_02 57:53

A trial lawyer also and a psychodrama practitioner. This has been John Katz at Beat the Prosecution. I am a criminal defense and DUI defense lawyer in Northern Virginia. I am totally pumped having had Charlie on the show. Thank you again.

SPEAKER_00 58:11

Thank you for listening to this week's episode from Beat the Prosecution. This is a regular podcast giving people a leg up against police investigations and prosecutions. Nothing discussed on our media sources, such as our podcast or website, is legal advice. Johncast only provides legal advice to current clients or to individuals who have paid for consultation.com by calling our office at 703 383 1100 or texting us at 571406 7268.