For the past two-and-a-half years, Custer County States Attorney had devoted the vast majority of both her personal and professional life to a single goal—putting Chad Wilson and James Midmore behind bars.
When she and follow prosecutor Mike Moore came up short of that goal, it ate at her. The disappointment is still evident, and she still replays the trial in her mind.
The woulda, coulda, shouldas are there. Kelley’s involvement in the prosecution of two Hells Angels members accused of attempted murder for their role in an August 2006 shooting at Legion Lake Resort consumed her for a long time.
To some extent, it still does.
“It was incredibly stressful,” she said. “We spent over two years of our lives embroiled in this case, living it day-in and day-out. I think I have dreamt about it every night since I’ve been back.”
Plenty of armchair quarterbacks have second guessed the way the case was prosecuted. Even more have second guessed whether or not the case should have moved forward at all. It was merely one set of thugs shooting at another set of thugs, they say. Who cares if they kill each other, they say. Lost in that attitude is the understanding of the entire scene—and the hundreds of innocent bystanders who dove for cover as shots rang out.
And, while not many people will argue that the Outlaws get in trouble for singing in church too loud, Kelley said on that particular day at that particular time, they had done nothing to warrant being shot at. The law applies to everyone. Victims are not defined by tattoos, criminal records or mode of transportation.
“Just because your victims are less than desirable, you can’t look the other direction,” she said. “The laws are there for a reason. It is against the law to try to kill someone.”
Unlike the jury, Kelley has no doubt Wilson and Midmore are guilty. In addition to the eyewitnesses who gave the same account of the incident—one in which the truck pulls up and Wilson gets out and starts shooting at Outlaw members—Kelley said evidence at the scene supports those accounts.
These accounts, from eyewitnesses who have nothing to gain from their testimony—testimony given in the face of dozens of Hells Angels gathered in the Minnehaha County Courthouse during the trial—tell Kelley all she needs to know about who was the aggressor on that fateful day in Custer State Park.
“They (the witnesses) have no reason to lie,” Kelley said. “Putting the Angels and the Outlaws aside, these people tell me what happened. I have no reason to doubt them.”
Part of the problem for the prosecution may have been that some of its witnesses were Outlaw members. Kelley said that although many independent eyewitnesses took the stand, some of the jurors may have had a hard time seeing any member of a motorcycle gang—whether they were shot or not—as victims.
“Whether you like them or not—and I’m not saying they are the cream of the crop as far as citizens—in this instance, they were victims,” she said. “On another given day, maybe they aren’t. But I can’t deal with what might happen on another day or what might have happened in the past. I have to deal with what happened on that day.”
Kelley may get another chance to prove her theory about the events that went down that day. Kelley and Moore are still deciding whether or not to proceed with charging Wilson and Midmore with conspiracy to commit murder, a charge the two were initially charged with but which was separated from the rest of the charges against the two by Judge Gene Paul Kean.
The judge must first determine if proceeding on that charge would constitute double jeopardy, followed by the prosecution determining whether or not they want to proceed with the case.
“We have expended a lot of money, effort and time,” Kelley said. “Going through that—can we do that again? If we do move forward, I think we have a case.”
Kelley said Kean’s decision to separate the conspiracy charge from the rest of the charges—including attempted murder and commission of a felony while in possession of a firearm—actually hurt the state’s underlying case. It denied the prosecution a chance to have several experts testify on the state’s behalf, which Kelley believes would have helped the state’s case.
That wasn’t the only obstacle the prosecution faced during the trail. Twice appeals about evidence in the case went to the Supreme Court level. The defense introduced three experts the prosecution weren’t informed of until a week into the trial. Kean also allowed the defense to play an animation of its version of the events to the jury after the state had closed its case. Kelley and Moore got to see the animation only two hours before it was presented to the jury.
“I don’t know if there was anything we could have done any better,” Kelley said. “I think our case in chief went exceptionally well. There are things that happen that are beyond your control.”
Wilson isn’t out of the woods yet, as he is now facing federal charges of being a nonimmigrant alien in possession of a firearm. The federal indictment accuses him of being admitted into the United States under a nonimmigrant visa and unlawfully having several guns. It’s a charge that couldn’t be brought by the state, and could mean 10 years in prison for Wilson if he is found guilty.
Kelley said if the state moves forward with the conspiracy charge, Wilson will still face the federal charge first. If he is convicted, the state could then request custody of him to prosecute him on the state charge. Kelley said the federal charges will have no bearing on whether or not the state decides to proceed with the conspiracy charge.
One thing is certain. Kelley, who has been a prosecutor for most of her 12 years as a lawyer, could be a prosecutor for another 120 years and not see another combination of circumstances and atmosphere she saw while leading the prosecution on this case. Even Moore, yet more of a veteran of trial law—including several high profile cases—commented he had never been involved in a trial of this nature.
Kelley and Moore woke up at 5:30 a.m. each day to begin their work day, often working until 2 a.m. They ate breakfast at the hotel, had lunch delivered to the courthouse and took only an hour break in the evening before starting work again. A security detail was available to take the prosecutors where they needed to go, and their floor at their hotel had 24-hour law enforcement surveillance, complete with cameras that monitored who came and went onto the floor.
The Angels were an ever-present force at the trial, turning out in droves for seemingly inconsequential parts of the trial. They even showed up in full force for jury role call, which lasts literally only a minute.
“They had a clear purpose for being there,” Kelley said. “They were there to say, ‘We just want you to know we’re still here.’”
Despite being ubiquitous at the trial, Kelley said she never felt in danger, and was never threatened—either overtly or covertly—by any members of the Hells Angels. In fact, she said, one of the members held a door open for her at one point. They did lose their cool when Kelley requested a hearing date to proceed with the conspiracy charge after Wilson and Midmore had just been acquitted of the other charges, letting out an audible groan and some other colorful phrases.
That, however, was nothing compared to the antics of the defense lawyers, who approached the prosecution and told Kelley to “bring it on.”
“It kind of threw me,” Kelley said. “It was very unprofessional conduct. It was almost like someone trying to instigate a fight. We just removed ourselves from the courtroom at that point.”
In talking to jurors about the case afterward, some mentioned concerns about intimidation from Hells Angels, but none would say those concerns played any role in the verdict. Kelley said jurors told her going into the initial vote, it was a 50-50 split to acquit the two, with three jurors being adamant about their innocence. Over the course of the two-and-a-half days of deliberations, those three jurors broke down the rest of the pool, eventually leading to the not-guilty conclusion.
“At some point they have to come to a decision, or come back with a hung jury,” Kelley said. “I don’t fault the jurors. I respect the decision they made. That’s how our system works. That’s why it’s there. To understand what goes on in the minds of 12 jurors in a closed-off room and what makes them do what they do—that’s between them.”
Along with the claims of self defense, the defense team used what has become known as the “LAPD defense,” attacking the crime scene preservation and investigation by Custer County law enforcement officials who arrived on scene.
Kelley said she took offense to that tactic, and to those who try to blame local law enforcement for the acquittal.
“For lack of a better term, I think it’s crap,” she said. “These individuals were shot, and at least two of them are alive because of what our law enforcement and our EMTs did. I think we should be proud of that.”
Kelley said if officials had approached the crime scene the way the defense felt it should have been approached, two of the victims of the shooting would have died, and Wilson and Midmore would have been facing murder charges. Instead, officials chose saving lives over absolute integrity of the crime scene, something she feels nobody should have to apologize for.
“They took control, made sure there was no more shooting and that no one else at the scene was in danger,” she said. “I’m sure if you talked to the victims, they would be proud of what our resources did. I am proud of them, and I would never fault them for what they did.”
Kelley said the total price tag of the incident, including the trial, security and incarceration of the two, will cost around $300,000 to $350,000. Fortunately, Custer County is part of the state County Legal Expense Relief Plan (CLERP), which helps pay for prosecution of large cases a small county couldn’t pay for by itself. Under CLERP, Custer County pays the first $25,000 of prosecution, followed by 10 percent of anything beyond that. The rest of the money is paid through the pool of counties that participate in CLERP. The county also will pay smaller expenses, such as Midmore and Wilson’s medical care while incarcerated, as well as $20 per day while they were incarcerated in Sioux Falls. Moore and his assistant, Jeff Banks, were reimbursed only for out-of-pocket expenses.
Kelly said having the trial in Custer County would have cost the county more money, because of overtime for Custer County Sheriff’s deputies for providing security for the proceedings. In Minnehaha County, the sheriff managed to keep overtime at a minimum by scheduling deputies’ normal hours as security detail for the trial.
The trial put Kelley through the gamut of emotions, and also put a strain on both her private practice and the state’s attorney’s office. Despite it all, including the verdict, Kelley said she is proud the county moved ahead with the prosecution.
“We made a statement that if you’re going to come into Custer County and commit crimes, you’re going to be prosecuted,” she said. “It sets a bad precedent if you allow these people to just walk out the door because of who they are or the cost you’re going to incur if you pursue this thing.”
Despite that satisfaction, however, there will always be that seed of disappointment.
“I still adamantly believe these two are guilty. When you look at the independent witness testimony and supporting evidence we had, it was very clear. If you get lost in the details, then maybe you find a different conclusion,” she said. “They don’t always turn out favorably. I would love a different verdict. I have to live with what I have. On that day, Chad Wilson and John Midmore were the aggressors. They should be behind bars, and that bothers me.”
Canadian Hells Angel Chad Wilson, 33, is charged with being a nonimmigrant alien in possession of a firearm and was indicted Wednesday in federal court. He is accused of being admitted into the United States under a nonimmigrant visa and unlawfully possessing firearms: two .40 caliber pistols, a Heckler & Koch 9-mm caliber pistol, an FEG 7.62 x 39-caliber rifle and a Calico 9-mm caliber rifle. Wilson, who was living in San Diego, could be sentenced up to 10 years in prison if convicted.
You may recall an earlier post where I mentioned that after deliberating over three days, a jury had found Wilson and fellow Hells Angels prospect John Midmore, 35, of Valparaiso, Ind., not guilty of attempting to murder five people affiliated with the Outlaws Motorcycle Club during the Sturgis motorcycle rally. During that trial Wilson testified that he fired several rounds with a .40-caliber handgun in self-defense after nine Outlaws members confronted him and Midmore at Legion Lake Resort. The Outlaws injured were Thomas Haas, Allen Matthews and Danny Neace. They and the two women with them, Claudia Wables and Susan Evans-Martin, testified at the trial.
Upon being found innocent, Midmore, a resident alien with citizenship in both Canada and Australia, made bond and was released.However, Wilson remains in the Sioux Falls county jail where lawyers say he faces deportation to Canada.
In another court document filed this past Wednesday, prosecutors asked that Wilson be transferred to Rapid City for an appearance on the most recent indictment. Tracy Kelley, Custer County state’s attorney, said she also plans to try Wilson and Midmore on a more serious charge of conspiracy to commit first-degree murder, which carries a punishment of life in prison if convicted.
Wilson and Midmore each have a separate civil lawsuit pending against 19 federal agencies and officials, claiming they withheld information showing that the Outlaws were targeting Hells Angels.