INDIAN COUNTRY TODAY: MARCH 2012
At first glance, the facts seemed straightforward.
In October 1991, after a long-running family feud, Douglas White, a Lakota medicine man from South Dakota’s Pine Ridge Indian Reservation, was accused of sexually abusing his two grandsons. In January 1993, the 72-year-old White was sentenced to 292 months in federal prison with no hope of parole.
There was, however, more to his story. When two young video artists started delving into it nearly 20 years ago, they realized how much remained to be told. They embarked on a complex journey that produced their startling 2011 documentary film “Holy Man,” and in the process, they uncovered dramatic new evidence that turned the government’s case against White inside out.
Jennifer Jessum is the founder and director of Flying Limbs Inc. Productions. She served as director, producer, cinematographer and editor for “Holy Man,” while her husband, Simon Joseph, took on the roles of writer, producer and cinematographer. Jessum says they were both students living in New York City in the early 1990s when they became acquainted with White’s nephew, Gilbert Walking Bull.
“He invited us to visit Pine Ridge,” she recalls. “We didn’t know what to expect—we got out of the car and walked right into one of Douglas’s ceremonies! We had the great fortune of meeting Douglas twenty years ago, before he was incarcerated, and seeing how many people he helped tirelessly.”
Jessum says it was much later, when the duo had relocated to the West Coast, that they learned about the case against him. “We were two young artists,” she says softly. “We didn’t think there was anything we could do but be his friend.”
Jessum and Joseph moved to Denver and began visiting White at his Littleton, Colorado prison in November 1994. They were amazed by his stories; 12 years later, when she was working toward her Master of Fine Arts degree in film production at the University of Southern California, Jessum decided she wanted to record him on video. “We knew we wanted to tell his story, as an old-timer,” she explains. After a pause, she adds, “We met with strong resistance” from federal officials.
“We requested to do on-camera interviews, but the Federal Bureau of Prisons told us it was a ‘security risk,’” says Joseph. “That pushed us to look toward the case, to see where we could do the most good.” He pauses. “We started seeing a lot of holes.”
The duo learned that after sexual assault allegations were made against White in October 1991, the tribal court on Pine Ridge fully investigated the case, brought it to trial and dismissed it for lack of evidence. Then, more than a year later, the federal government inexplicably reopened the case and charged White with the same crime.
“Double jeopardy” means being tried twice for the same offense, and is prohibited by the Fifth Amendment to the U.S. Constitution. But, Jessum and Joseph say, it’s all too common in reservations.
To make matters worse, White had no means to hire a lawyer and was defended by a court-appointed attorney who worked for the government. He was tried by an all-white jury at a federal court in Rapid City, 100 miles from his home, in a language he did not fully understand, He was convicted despite the fact that there was contradictory testimony and no physical evidence.
U.S. District Judge Richard H. Battey sentenced White to 25 years in prison.
According to Jessum and Joseph, White continued to pursue his work as a medicine man within the prison walls. “He didn’t understand why he was in there,” Jessum says. “He thought, ‘I’m innocent. Let me out!’ It was a horrible place, but he was incredibly respected by the other inmates and the people who worked there.
“Most people would’ve given up, but that was his Lakota spirit,” she says. “He knew he was there to serve his people. Prison didn’t stop him from serving. The film really takes people on his journey.”
The film also takes people on the journey of the Lakota, one that is as anguished as it is proud. Interspersed with dramatic shots of South Dakota’s western prairies are interviews with such prominent Lakota figures as Russell Means, Arvol Looking Horse, Birgil Kills Straight, Floyd Red Crow Westerman and Ricky Gray Grass, as well as re-enactments of historic events, such as the 1877 betrayal and murder of Crazy Horse and the 1890 Wounded Knee massacre.
“I don’t think you can look at the modern-day Lakota without considering history,” Jessum says. “You can’t understand Lakota consciousness without understanding the circular nature of things, ancestral truths. And I don’t know a person on Pine Ridge who is not dealing with the effects of colonization.”
The film also presents poetic interpretations of traditional ceremonies. “We were very conscious of the way we portrayed ceremony,” Jessum explains. “We had to show ceremonial life, the Lakota way, [but] no actual ceremonies were filmed. We wanted to be sure we didn’t cross any lines.”
To assist with the ceremonial interpretations, Jessum and Joseph had five medicine men overseeing production, which started in March 2006 with the first trip to South Dakota for filming. They filmed intermittently for the next five and a half years. Over that time, they became increasingly troubled with those holes they saw in the government’s case against White. They did not expect, however, what happened about two years into production.
According to Joseph, the team had interviewed Roy Helper Jr., one of the two grandsons who accused White of abuse, several times. Nothing much came of it, until one day in October 2007, “Roy called us and said, ‘I need to talk to you today,’” Joseph recalls. “His wife had just had a baby boy; it was a big moment for him. He explained that he’d been carrying this burden his entire life and was ready to let go.”
Helper met the film crew at a hotel in Rapid City, and he confessed on film that he had lied about the alleged abuse. He said that he and his brother, Lloyd, were under tremendous pressure from lawyers, judges and “people in suits,” and he said the experience was frightening. He also indicated that they were coaxed to say certain things. In return, they were told they would get money, toys, even a horse. (They received none of those things.)
“We were just little, dumb, stupid Indian kids, being tossed around,” Helper says in “Holy Man,” his voice choked with emotion. “Eventually it’s going to come out. Like today.”
The look in Helper’s eyes is haunting. But his burden was lifted at last.
“It was amazing for us—to get the truth out about Douglas,” Jessum says, “and it was a cathartic experience and journey for this young man. This happens to so many people in that community… there’s so much fear. In mainstream America, nobody thinks [things like this] will happen.”
Next, viewers learn that White’s wife, Evelyn, admitted that no abuse occurred, despite her accusations against her husband so many years ago; Judge Sidney Witt, former tribal prosecutor on Pine Ridge, says Evelyn had been mad at Douglas, and the situation simply got out of control. And the boys’ mother, Geraldine, who formally accused White in 1991, admits that years later, when she asked Lloyd, the other boy, if the old allegations were true, he said they weren’t.
A July 2008 psychological evaluation by Dr. Leslie A. Fiferman in Rapid City came out in favor of both young men telling the truth, as did a polygraph test.
“After Roy confessed that he had never been abused, we realized that this was new evidence of Douglas’s actual innocence, because the only real evidence at the trial was the contradictory testimonial evidence of the two boys,” Joseph explains. “So I contacted (attorney) Terry Pechota, and he agreed to take the case on. He suggested that we do the psych evals and polygraph testing to submit with the petition (for a new hearing) and informed us that we would need to first ask the 8th Circuit Court of Appeals to file the petition, since Douglas had already filed several unsuccessful petitions for post-conviction relief.”
Los Angeles-based Dr. Louis Rovner conducted the polygraph examination of Roy Helper Jr. in November 2008. According to Joseph, Rovner is the only polygraph examination expert in California whose tests have been admitted in criminal court. He not only measured and evaluated the polygraph charts, he also subjected the results to a PolyScore, a digital polygraph scoring algorithm developed at John Hopkins University.
“PolyScore concluded that the probability that Mr. Helper was being truthful was greater than 99 percent,” Joseph says. “Dr. Rovner stakes his professional reputation on the conclusion that Roy Helper was, and is, undeniably telling the truth when he said that Douglas never committed that crime.”
In the film, Rovner says simply, “The incident never occurred.”
In response to the psychological evaluation and polygraph results, three members of the original jury recanted their guilty verdicts and signed affidavits. The petition was filed with the 8th Circuit Court of Appeals in October 2008, and after its approval in March 2009, the case was sent to U.S. Magistrate Judge Veronica L. Duffy for her to make a recommendation to the Senior District Court judge, who had not yet been determined.
Duffy approved a petition for the case to be expedited, based on White’s failing health. And on July 31, 2009, she recommended an “immediate evidentiary hearing” to Judge Richard H. Battey — the same judge who had sentenced White to 25 years in prison.
In August, the U.S. Attorney’s office objected to the request for a new trial, insisting that White learned about Roy Helper Jr.’s confession in 2004, years before it actually took place.
“This is where it gets a bit confusing,” Joseph says. He explains that, in 2004, White attempted to file a petition for relief. With the assistance of his nephew, Gilbert Walking Bull, he managed to locate Lloyd Helper, who signed a non-notarized document stating that he had never been abused. He also was able to get Evelyn Helper, White’s ex-wife, to also sign a statement.
“Gilbert never contacted Roy Helper at this time, nor did he ever obtain an affidavit from him,” Joseph explains. “When Douglas filed his petition, he made a reference to the enclosed ‘affidavits,’ in plural, suggesting that he had affidavits from both boys. But this was never part of the submitted court record, and the government knew it, but this little verbal slip was all they needed to argue that the one-year statute of limitations on disclosing new evidence had run out.
“The U.S. Attorney’s office admitted that they didn’t have Roy Helper’s 2004 affidavit, but they argued that since Douglas (seemed to have) claimed that he had it, he therefore must have known that Roy had confessed,” he continued. “This, of course, was nonsense, but in September 2009, Judge Battey agreed with the government’s argument and found the petition ‘untimely.’”
Joseph immediately contacted Roy Helper and White to have them clarify what happened in notarized affidavits, stating that the confession had occurred for the first time in 2007. They submitted the affidavits to Judge Battey as evidence proving the U.S. Attorney’s claims were false.
“We asked him to reconsider his ruling, but he ruled against Douglas again (on October 21, 2009),” Joseph says. “We were outraged. Why would they take this man away from his people? To this day, the government hasn’t explained that.
“It is still terribly disturbing to me that the government and the court relied on a nonexistent affidavit, rejected the magistrate judge’s report and recommendation, ignored the cumulative value and evidentiary weight of polygraph reports, psychological evaluations and numerous additional affidavits, ignored the fact that new affidavits conclusively established that Roy Helper neither recanted nor signed an affidavit in 2004 and completely avoided the one and only substantive issue in this case — White’s innocence — all to avoid an evidentiary hearing which would have established, beyond any reasonable doubt, White’s actual innocence,” he continues.
White’s legal team appealed Battey’s decision to the 8th Circuit Court of Appeals and requested that the court remove him from the case. They also asked for White to be released while the government prepared for trial.
“The 8th Circuit Court could have recommended an immediate release or recommended a different judge be assigned to the case,” Joseph says. “The facts and the truth were on our side, so if Douglas had not been an 88-year-old man with terminal lung cancer, we could have kept appealing the case all the way to the U.S. Supreme Court or requested an immediate commutation from the president.”
They ran out of time. Douglas White died in prison on November 24, 2009.
According to Jessum and Joseph, the government has never explained why it prosecuted White a full year after tribal court dismissed his case—or why it insisted on denying White a new hearing in light of such significant new evidence.
“That’s what was most horrifying for me, as we kept gathering evidence of his innocence and of his wrongful conviction,” Jessum says. “We have more [evidence] than any court could ever ask for. This opens up a deeper darkness. You see how ugly the system is. They let an innocent man die in prison to protect the system.”
“This really is a sad and tragic case of injustice,” Joseph agrees, “in which a man’s life was lost not because his case didn’t have merit… but because the government didn’t want to lose face and was able to manufacture a false and misleading technicality that bought them enough time until Douglas died in prison, which then declared his case moot.”
Despite that, Jessum and Joseph point to a larger message of hope. “The film is a testimonial to Douglas, his spirit and the Lakota spirit,” Jessum says. “The things indigenous people have gone through is so horrific, yet they maintain their spiritual connections, their humor.”
The couple is working with attorney Terry Pechota, who took on White’s case pro bono after the new evidence came to light, to establish programs and undertake specific legal efforts that deal with tribal sovereignty. They also want to address the epidemic of teen suicide in Indian Country.
“That was part of Douglas’s life’s mission as a medicine man,” Jessum explains. “It only takes one generation to make change… to take something bad and turn it into something good, the Lakota way. That’s our hope.”
“Holy Man” made its debut on the Pine Ridge reservation in 2011, which was a thrill for filmmakers and community members alike. Despite the difficulty of the subject matter, Jessum says the reception was overwhelming. “You have to acknowledge the family,” she says. “It was hard to let the world in on their dirty laundry, but they were so committed to the truth, they were willing to put personal comfort aside.”
Jessum says the Pine Ridge community was supportive of the film from Day One. “Once we mentioned Douglas’s name, people saw we were sincere,” she says. “They showed us so much love and respect, and were incredibly helpful. People came out of the woodwork. They heard about the case and wanted to do whatever they could. (Douglas) is so symbolic of the gross injustice still going on.”
“Holy Man” has had an impressive reception at the country’s native film festivals. The 85-minute film took home Best Documentary Feature and Best Director at the Red Nation Film Festival, and Best Film and Best Cinematography at the Native American Film Festival of the Southeast.
More important to the filmmakers, “Holy Man” has been shown on several reservations. And, in the end, the couple was able to pay fitting tribute to Douglas White— and to the Lakota medicine men whose generation seems to be quickly passing. “It’s not the ending I wanted, but the film is a testimonial to Douglas, his spirit and the Lakota spirit,” Jessum says. “I don’t know how many people like Douglas are left… speaking English as a second language, a tireless public servant. A treasure.”