Life at 9200rpms: Raquel Welch: A Case of Mistaken Identity

     This post is another in a series of recollections from my time as an assistant U.S. attorney.  This entry is made possible by my Thoratec manufactured HeartMate II, LVAD, number 8358, which has kept me alive since April 2, 2010.  I am on a heart transplant waiting list at the University of Minnesota.

     The case at hand involved charges of rape against two young men from what was then called the Devils Lake Sioux Indian Reservation.  It is now the Spirit Lake Indian Reservation.  From the government's perspective, the evidence was straightforward and convincing.  

     Both men were scheduled to change their pleas to guilty but at the last minute they balked.  The judge set the case for the following week and ruled that each defendant would be tried separately.  That meant that all of the witnesses would have to testify in both trials.  For the victim, it meant a double dose of stress from having to recount the incident for two separate juries over a week long period.  
  
  The reason the case was in federal court was because the federal government had jurisdiction. Jurisdiction was based on the federal Major Crimes Act, which provided that crimes against Native American Indians involving Indians as the accused can be tried in U.S. District Court.  This case was assigned for the trial to the Grand Forks quadrant of North Dakota because the Indian Reservation is located in the northeast quarter of the state.

     The accused were Daniel Stacey Makesgood and Clayton (Stubby) Dubois, both about 19 years old.  Makesgood was tried first.  The victim was about the same age.  Drinking was involved. All had been high school classmates.

     Makesgood was found guilty by the jury and his case was set for sentencing.

     As Dubois' trial proceeded, his lawyer, H. Holland Galloway,  Holly to friends and acquaintances, called his client to testify in his own defense.  Consent was the issue.  Did the victim consent to having sex with him?

    Galloway, who was not the most capable criminal defense lawyer, caused a stir when he misidentified the victim in his questioning.  He referred to her as Racquel Welch, the well known celebrity, sex symbol, and movie actress.  Ms. Welch once appeared in a movie wearing an animal skin bikini for the British- release movie One Million Years B.C. in 1966. 

     Of course Ms. Welch was not the victim's name--not even close.

    I objected without saying  why and the trial judge, Paul Benson, summoned the lawyers to the bench. I didn't have to spell out what the basis for my objection was.  The judge took up the cudgels and Galloway got a lecture and was ordered to continue his examination.  

     The very next question contained the name Racquel Welch. At another sidebar at the bench and out of the hearing of the jury, Judge Benson lectured Galloway again.   The judge said, "Mr. Galloway, there is no witness in this case by that name.  The victim's name is XYZ, not Racquel Welch."  In essence, the judge said, get your act together.

     The entire courtroom was in disbelief when Galloway misnamed the victim a third time.  I thought the judge would hold the lawyer in contempt, he was that upset.  This time at the bench when Judge Benson said again what Galloway had done, Galloway clapped his open hand to his forehead.  The slap sounded like a muffled pistol shot.  

     I glanced at the jury as Galloway made his move.  The panel knew exactly what was happening and Galloway knew the jury knew.  Embarrassment does not begin to describe what he must have felt.

   Galloway finished his examination and I began my cross.  I wanted to say:  "Mr. Dubois, you didn't. have sex with Racquel Welch did you?"  I wanted to add but "you would have liked to, wouldn't you."  I kept my mouth shut on the point and generally chewed up Dubois.  Makesgood had testified that he heard the victim's cries for help and his response was to turn up the volume on the radio to drown her out.  

     The second jury found Dubois guilty.  One the day of sentencing, Galloway slunk into the courtroom. The sting he must have felt had lingered.  He made a perfunctory argument concerning sentencing. When the hearing was over, Galloway beat feet for the exit.  He never stopped to talk with his client.  I never saw him in federal court again.  Just as well.

     The judge sentenced each of the defendants to eight years in prison.  They never appealed.  I learned that Galloway went back to his mostly office law practice.  He was the lawyer for the Grand Forks water board.  Fitting, I'd say.