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In rare move, judge overturns jury's conviction in South Dakota assault case

RAPID CITY — In an unusual move, a federal judge overturned a Rapid City jury's decision to convict a Pine Ridge man for making a false statement related to an alleged brutal assault.

Weldon Two Bulls was convicted last month of a charge for making a false statement by telling a Bureau of Indian Affairs agent that he was too drunk to remember what happened to Sheena Between Lodges. Between Lodges uses a wheelchair and had brain surgery after being found with a brain bleed and bruises all over her body in November 2018, court records say. But the jury deadlocked on whether Two Bulls was also guilty of being an accessory after the fact by shielding the people who allegedly assaulted her. No one has been charged in her alleged assault.

Judge Roberto Lange wrote in a Monday order that his jury instructions on the false statement charge had an error but even with correct instructions, "no reasonable jury" could find that Two Bulls lied when he said he told BIA agent Wesley Pacenza that he was too drunk to remember what happened to Between Lodges because Two Bulls never said such a thing.

"Defendant's interview with Agent Pacenza was recorded and at no point did defendant say that he was too intoxicated to recall what happened to Between Lodges," Lange wrote. He said the interview instead shows Two Bulls saying he was too drunk to remember which days he borrowed her vehicle, "not as an excuse for not knowing what happened to Between Lodges."

Lange wrote that while he's been "skeptical" of the evidence juries used to convict people in the past, this is the first time he's ever granted a defense lawyer's Rule 29 motion.

"It's very rare," for a judge to grant a Rule 29 motion, said Neil Fulton, federal public defender for the Dakotas.

Defense lawyers always file the motion, which asks a judge to acquit someone because there wasn't enough evidence, Fulton said. But he said judges rarely grant the motions because "the standard is very high because there's deference to a jury verdict" and "there's so many kinds of off-ramps" for a charge to be dropped before a trial ever takes place.

To agree with the motion, Fulton said, "the legal standard is no reasonable jury" could find that the evidence supports a guilty verdict. This can happen if a jury unreasonably interpreted the evidence, but also if they were prejudiced, used a threshold lower than "guilty beyond a reasonable doubt," or misunderstood the alleged crime or jury instructions.

"This was a unique case" because the evidence was "not really there," Fulton said.

Jennifer Albertson, Two Bulls' defense attorney, said during her opening statement of the trial that the prosecution needs guilty verdicts from Two Bulls so they can use him to go after the assault suspects.

While Lange said he was also "skeptical" about Two Bulls being charged with the accessory after the fact crime, he decided it "narrowly survived the Rule 29 motion" and let the mistrial stay in place rather than acquit him of the charge. But he warned that prosecutors may not want to retry Two Bulls on the charge.

"The Government should think long and hard about whether retrial of the accessory after the fact charge serves the interests of justice in this case," Lange wrote.

He said a magistrate judge twice refused to issue an arrest warrant for Two Bulls, citing lack of probable cause; Pacenza twice "misstated" evidence while testifying to the Grand Jury in support of an indictment; and the government is prosecuting someone who they also believe helped break up an assault on Between Lodges.

The U.S. Attorney's Office said it has no comment on whether it plans to retry the accessory after the fact charge and/or appeal Lange's Rule 29 motion.