My LVAD lifeat9200rpms: Assault with a boat and an oar (made possible by my HeartMate II left ventricular assist device)

     As an assistant U.S. attorney for North Dakota, I prosecuted scores of cases involving the Major Crimes Act.  That is the federal law that gives the government jurisdiction over more than a dozen major crimes on Indian Reservations.  Those crimes range from murder to sexual crimes and include assault with dangerous weapons.

     One of the more novel assault cases involved an assault with a boat and an oar. The facts were that the aggressor in a power boat chased two men in a smaller, slower boat.  The chase was around and around a lake on the Turtle Mountain Indian Reservation.  The lake contained a good sized island that the pursuing boat could not negotiate as quickly as the smaller boat. 

     During the pursuit, the smaller boat was struck from behind numerous times, causing the two men in the smaller boat to be thrown around.  At one point, it appeared to the victims that they would be overrun and sunk.

     The victims headed for a dock and scrambled onto it. The more powerful boat crashed into the dock and its pilot raced at the victims wielding an oar.  He struck both men with the oar.  Neither was seriously injured, but a full sized, wooden oar could kill you.

     The Bureau of Indian Affairs detective investigated the case and the case was presented to a federal grand jury, which returned an indictment charging the defendant with assaulting each of the victims.

     As the case proceeded toward trial, I talked to the victims in advance of their testimony.  I showed them the interview reports prepared by the BIA officer and had each review his report for accuracy.

     I asked one of the victims, who was the bystander so to speak, whether he was scared.  His response:  "Oh yeah.  I was more scared this time than when I got killed before.  I can't swim."

     That statement was pregnant with possibilities.  I asked him about the time he got "killed" and he said that he was once roofing his mother's house.  He wasn't paying attention and he backed into an electrical cable, essentially rendering him dead as it threw him to ground.  He was revived and recovered.

     Being unable to swim and being attacked by the larger boat, caused him to fear that he would be killed.

     During his testimony before the jury I asked only half the question, that is, was he scared?  I left dangling the enticing question about why he was more frightened by the boat pursuit than when he was "killed" the other time.  I was pretty sure the defense lawyer would stumble on the enticement and be unable to refrain from asking a question that he did not know the answer to.

     On cross examination, sure enough, the enticement proved too much for the defense and the question was asked.  The answer brought a howl of laughter from the jury and mortified the defense lawyer.  He should have known better.

     His client didn't testify.  The jury returned a guilty verdict and the accused was sentenced to prison.

     Fifteen years passed and I had gone into private practice.  The defendant in boat and oar case sought me out to represent him in a case involving charges of assaulting federal officers while he was held on a driving while intoxicated charge in the BIA jail.

     His trial concluded when the jury deadlocked.  The judge declared a mistrial.  A hung jury for the defense is like a not guilty verdict in the sense that it shows the government had a weak case.
He was not retried.

     It was the only time I represented the government and the defense with the same defendant.