VOLUME XXV
Pages 5266-5285
{5266}
SATURDAY
AFTERNOON CHAMBERS SESSION
April 16, 1977
(Whereupon, at
the hour of 4:18 o'clock, p.m., the following proceedings were had in
chambers with counsel, Messrs. Taikeff and Gilbert and Mr. Hultman, being
present:)
THE COURT: Is
this everybody?
MR. HULTMAN: I
can't find anybody else, your Honor. I don't know. I can't speak for Mr.
Taikeff?
MR. TAIKEFF: I
think we finally whittled things down to reasonable proportions.
MR. HULTMAN:
Right.
(Mr. Ellison
enters chambers.)
THE COURT: The
record may show that two notes have been handed to me, sealed notes handed
to me by the Marshal. I have opened them.
The first --
or one of them, I do not know which, first or second -- one note states:
Please give us the copy of Mike Anderson's testimony of his activities at
the Wanda Siers' home.
Second note:
Could we have the transcript of the incident in Canada when Leonard
Peltier was caught by the Mounted Police? His first statement was, "I
would have shot him out of his boots." What were the next two statements?
Each of these
are signed by Dallas Rossow, Foreman.
{5267}
I have
reference to Rule 43, Presence of the Defendant.
Rule 43(c)
provides that the Defendant need not be present in the following
situations:
(3) at a
conference or argument upon a question of law.
This seems to
be clearly a question of law so unless counsel feel otherwise, I am not
asking that the Defendant be present for this discussion.
MR. TAIKEFF:
We don't require his presence, your Honor.
THE COURT:
Very well.
Well, I guess
the Government has the burden of proof. I will let them respond.
MR. HULTMAN:
Well, I am not sure, your Honor, again. One of the requests is some
statements concerning --
THE COURT:
(Interrupting) I might say this: They are asking for a portion of the
transcripts, two different parts of the transcript. Of course, we have
never had daily copy before, but in the past when I have had requests of
this kind, I sent in a note stating that they have to rely on their own
recollection.
MR. TAIKEFF:
May I ask, your Honor, whether it would be your Honor's intention, if you
don't follow the old practice, to read to them in open court the Q's and
{5268} A's or to photostat what counsel agree on and the Court approves as
the appropriate pages and just send them in?
THE COURT: I
just have given it no consideration. If it is decided that this
information should be given to them, I have not considered what procedure
or form should be followed.
MR. HULTMAN: I
think the Government would take the position -- and I am not even sure
what it is that we are really talking about, one of those two items, the
first one it is fairly obvious, I am not sure what they are talking about
on the other one --
THE COURT:
(Interrupting) Excuse me. So you may have it in front of you -- (handing).
Sometimes it is a little easier. Then you can hand it to Mr. Taikeff.
MR. HULTMAN:
All right. I think as a general proposition, the same as the position that
the Court took with reference to instructions, that I think it would be
generally unfair -- and I don't mean for the Government, I am just
speaking in general terms -- that I think like taking a sentence out of
context from the entire document that is in evidence would place undue
emphasis as to that particular piece of testimony and not having other
items that may likewise have a bearing on what that specific item is, so I
would take the general position as to any request for a portion of the
transcript, that I would {5269} object on the grounds that it would give
undue influence to any given part of the transcript.
(Mr. Vosepka
enters chambers.)
MR. TAIKEFF:
In response to that, your Honor, I can see the basis for being concerned,
such as in the case of offering a portion of the document and not allowing
the opposing counsel to offer along with it every other relevant portion.
However, here we have a case which is not counsel presenting information
to a jury, but we have a case of the jury making a specific request, so
their attention is apparently focused on something.
It seems to me
that at least as far as the first request is concerned, it seems much
easier to comply with. I don't know whether Mr. Hultman meant to say that,
but that seems to be my present impression. There isn't a great deal of
testimony dealing with that particular subject, and it seems that it would
be possible to either read to them or duplicate for them that portion of
the transcript which relates to that. It's rather narrow. They want Mike
Anderson's testimony concerning his activities at the Wanda Siers' home,
and I will bet altogether there aren't two pages of testimony on that very
subject, maybe three at the most. I think that can easily be complied
with, and I would be in favor of letting them have the exact testimony.
{5270}
I don't care
whether it is read to them or whether they get it in the form of a
photostat.
I would like
to look at the second note before I comment on that particular subject.
(Examining)
Now, that second note I find ambiguous with reference to this sentence:
What were the next two statements?
I don't know
whether the jury is asking about the things which were said immediately
afterwards or whether they mean "What were the other statements he
allegedly said", because there were a series of Canadian witnesses, each
of whom testified to one or more statements, so I find the note ambiguous;
and I think that perhaps in response to that we could ask them to be more
definite about what they mean by the next two statements: do they mean
what he said immediately after he allegedly said, "I would have shot him
out of his boots," or do they mean any other additional statement that was
next testified to?
Then when they
clarify, if it was unambiguous, I would be in favor of giving them the
testimony.
THE CLERK: May
I make a comment with regard to the request of Canadian statements? Did
not the Defendant mark as an exhibit a series of four statements allegedly
made by Peltier in Canada?
{5271}
MR. TAIKEFF:
Yes.
THE CLERK:
Would there be any confusion in their mind, could this be what they are
seeking?
MR. TAIKEFF:
They are not aware of what was on that piece of paper.
THE CLERK:
Other than statements.
MR. TAIKEFF:
They don't even know that. They know the piece of paper, after it was
marked, was acknowledged by the Government to have been from a
governmental source, and they never were told even generally speaking what
the subject matter was on that piece of paper. Paragraph 4 was offered,
but they are not aware of what it means. They would be clairvoyant if they
were.
MR. HULTMAN: I
think that's the very problem we get into when we start taking pieces of
transcript and so forth, because my conclusion was that what they are
referring to is that there were a series of statements that were made by
the Defendant in Canada, one of them here they have set out, or words to
that general effect. Then they are asking for the next two, and I don't
know, Elliot, frankly, from thinking about the record itself, whether
there is even one more, let alone two more; and my feeling is a little bit
like Ralph has indicated here that maybe they are really thinking about,
even though they didn't hear the statements, and that's why they are
{5272} asking for them now. They didn't find out what the rest of those
statements were, and now they want to know what they were and it is not in
evidence.
MR. TAIKEFF:
My perception is that you and I essentially agree that that note is
ambiguous, doesn't even tell us what they are asking about. I think we
should frame a response to that to indicate we don't quite understand what
they mean.
MR. HULTMAN:
My response totally is, your Honor, I do not believe -- as I indicated, I
remain in that posture that they shouldn't receive any transcript.
THE COURT: My
position will be that unless counsel on both sides agree, I am not going
to read or submit a portion of the transcript to the jury. I am going to
make a response to that something to this effect:
As indicated
to you in my preliminary instructions, you would hear the testimony of the
witnesses but once and you would have to rely on your recollection as to
what was said by individual witnesses. It would not be appropriate for the
Court to give you but a portion of the witness' statement.
MR. TAIKEFF:
Your Honor, to the extent that your Honor wishes to articulate his
position, we believe that your Honor has adequately stated it in those
words.
However, we
strongly except to your Honor's position {5873} that the jury not be given
the testimony again. Quite frankly, your Honor, I have been trying cases
for a little more than nine years. I have never anywhere in any state and
in any district found the Judge who was unwilling, or had an experience
with a Judge who was unwilling, to read or have the court reporter read
testimony back to them when they asked for it. It is a novel idea for me.
THE COURT: I
never have. I never have read testimony back to a jury when they asked for
it.
MR. TAIKEFF: I
can never again make that statement, your Honor.
THE COURT: No,
you cannot.
MR. HULTMAN:
My experience is again the reverse, counsel, of yours. Mine has been the
other way, most of the Courts I have been in.
MR. TAIKEFF:
It is clear to me one should not spend one's life on the Coast. One must
come inland once in awhile.
MR. HULTMAN:
It seems to me, your Honor, that once you begin this, then in fairness you
would have to give an entire transcript in effect from beginning to end,
and that would be almost an impossible situation from that point on.
As I am sure
all of us here would agree, that there are some things in the transcript
right now, mainly {5274} because of volume and the timeliness, we had to
have them so quick, there are even errors in the transcript that we will
ultimately agree or disagree on, and that would take an enormous time to
do that.
MR. TAIKEFF:
May counsel then retire, your Honor?
THE COURT: You
may.
MR. HULTMAN:
Thank you.
(Whereupon, at
4:32 o'clock, the conference in chambers was closed.)
{5275}
MONDAY
AFTERNOON SESSION
April 18, 1977
(Whereupon, at
4:30 o'clock, p.m., the following proceedings were had out of the presence
and hearing of the jury, the Defendant being present in person:)
MR. LOWE: May
I address the Court, your Honor?
THE COURT: You
may.
MR. LOWE: I
rise to formally make as strong an objection as counsel may properly make,
having due regard and respect for the Court, to what has been reported to
me as a ruling by your Honor that excludes the public from this trial at
this very important stage.
I have been
advised by the Clerk, and I would ask you to correct me if I am wrong on
the record. I think the record should reflect this, that upon the
recommendation of Chief Deputy Marshal Warren that he thought there would
be some kind of security problem, you have decided to exclude the public
from this phase of the trial.
I state that
this is a strong objection, and I will word it as strongly as I possibly
can.
The Sixth
Amendment of the United States Constitution states in unambiguous terms:
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial.
The public
does not mean the members of the media. It means the public. It is not a
mere technical {5276} formality. It is not a mere matter of lip service to
the Constitution. It has a very practical effect, for if there is a
judgment of conviction by the jury -- and that is one of the possibilities
-- one of the things that the accused is entitled to and will insist on
today is a polling of the jury; and in polling the jury, again we are not
dealing with a lip service or a token matter. We are asking the juror at
that moment to search his conscience, if he has truly voted according to
his conscience, to state for the record that that is so. For that juror to
look into an empty courtroom does not have nearly the effect
psychologically and emotionally on that juror to search his conscience as
if he had a group of people who had listened to the evidence -- they have
been the public, who are in fact today the public. We believe that is a
very practical reason why the jury should be confronted with the public
and not merely members of the media.
We feel there
has not been one shred of evidence that there would be any trouble, any
security problem. There has been probably, for a trial involving such a
hotly contested political underpinning, less disruption, virtually no
disruption. I have never seen such a well-behaved audience in a trial of
this magnitude and this length and this serious a charge, involving the
{5277} Government against an unpopular group. In the terms of the
Government's prediction, a real conflagration, there is no evidence. I
think it should be put on the record, if there is any, as to the
justification for excluding the public at large.
I note Mr.
Peltier's family has been excluded. In addition to that, even if there
were security problems, we believe that it is a constitutional mandate
that the Court deal with security problems effectively. There are plenty
of Marshals around, enough Marshals to handle any difficulty. There has
never been, to my knowledge, any reason for excluding the public from the
trial, particularly on such an offense.
We strongly
object. We believe as a matter of law any proceedings will be void. What
the remedy would be, I would not state at this point except it is clearly
a violation of the Constitution. I know of no authority to authorize the
Court to do that, at least in the absence of any disruption or reason to
believe that there would be any such security problem; and I call upon
your Honor, first of all, to reverse that ruling, if that is your Honor's
ruling, and allow the public in for this important stage, particularly for
the polling of the jury if that becomes necessary; and secondly, if your
Honor declines to allow the public into the trial, then I ask {5278} your
Honor to make a record as to the reason that your Honor feels that is
necessary today, including if it is a report from somebody else, to
identify that clearly on the record so that we may have our appellate
remedy in event this matter goes to a conviction instead of an acquittal.
THE CLERK:
Send for Mr. Warren.
(Court and
Chief Deputy Marshal Warren confer.)
THE COURT: In
response to the comments of Mr. Lowe, the Court, in the exercise of its
discretion, for security reasons and on the specific recommendation of Mr.
James Gardner, the Deputy Regional Director of the United States Marshal's
service, the public are excluded from the courtroom only during or for the
period of time for the reporting of the verdict, and the order of the
Court is that they will be excluded. The order will not be changed, and
the record may show that in addition to counsel and quite a few
representatives of the defense team, including some who have no official
standing on the defense team, and several members of the media, I would
guess there are about 20 people present in the courtroom or more.
MR. LOWE: May
I inquire, your Honor, whether your Honor was just told that that was the
recommendation or was told some substantive basis for the recommendation,
{5279} that there was some realistic reason, or whether it is an
undifferentiated fear of some sort?
THE COURT: I
was told by the Deputy Regional Director that they had reason to believe
there could be problems.
MR. LOWE: Your
Honor, we would like to reserve the right to have an offer of proof to
call this Regional Director. I think it is the most outrageous statement
by somebody I have ever heard, without any foundation that I am aware of.
I will
represent to your Honor that we have had close contact with members of the
support group people, that is, the native American people who have been
here throughout this trial, that they are absolutely conscious of the
requirement for them to maintain order and to have no problems at all
because it would possibly affect either this Defendant or might affect
other proceedings that will be had in this case; and I represent to your
Honor that as far as I am personally aware or have any suspicion of, there
would be nothing but the best behavior of anybody that is related to this
defense or has been here.
I might add,
your Honor, that this is a matter which, I think, your Honor can properly
consider, among others, that there are people now who have been here for
{5280} three days since the close of the evidence waiting faithfully and
in good faith, believing that this was a public trial, and that they would
indeed be entitled to be in the courtroom at a public phase in the trial
when the verdict was returned. Had these people been told three days ago
of this action, at least they would have been able to save the trouble and
expense and inconvenience of staying in Fargo instead of returning to
their homes. These people are downstairs waiting at the door. I personally
observed them at least 20 minutes, 45 minutes ago, waiting to come in.
Most of them were native Americans, and they are absolutely -- they are
just dumb-founded at why they cannot come in here. I also tell your Honor
because I think your Honor would want to consider that, this action by
this Court in excluding the public from this trial has confirmed for these
native American people the things that they have been saying and
suspecting -- in many cases they have been told by others of the American
native public -- as to the type of proceedings that Courts handle for
Indians. Whether that is something that your Honor would believe is true,
it is certainly something that is appearing, an appearance of impropriety
to these people.
I hope your
Honor, in weighing all of this, sees fit to let these people in here under
proper control by {5281} the Marshal's Service such as we have had through
the five weeks we have been in trial.
THE COURT: The
request is denied.
The jury may
be brought in.
(Whereupon, at
4:40 o'clock, p.m., the jury returned to the courtroom; and the following
proceedings were had in the presence and hearing of the jury:)
THE COURT: The
record may show that about 3:30 this afternoon the Court received a
written note signed by Mr. Dallas Rossow, Foreman, which read as follows:
The jury has
reached a verdict and is ready to deliver it.
Mr. Nelson,
will you take the verdict?
THE CLERK: The
jury will please listen to the verdict as I read it and as it shall be
recorded.
As to Count 1,
Ronald A. Williams, the jury finds the Defendant guilty of first degree
murder.
As to the
killing of Jack R. Coler, Count 2, the jury finds the Defendant guilty of
first degree murder.
Dated this
18th day of April, 1977.
Signed, Dallas
Rossow, Foreman.
Would your
Honor like me to poll the jury?
THE COURT:
Does the defense desire that the jury be polled?
MR. LOWE: We
would, your Honor, subject to my {5282} comments before. We would ask that
the public be included when that is done.
THE COURT: The
Clerk will poll the jury.
THE CLERK:
Dallas Rossow, is this your verdict as I have read it?
JUROR ROSSOW:
Yes, it is.
THE CLERK:
Mrs. Peter Reiland, is this your verdict as I have read it?
JUROR REILAND;
Yes, it is.
THE CLERK:
Mrs. Clayton Hokanson, is this your verdict as I have read it?
JUROR HOKANSON:
Yes, it is.
THE CLERK:
Arlene Josal, is this your verdict as I have read it?
JUROR JOSAL:
Yes, it is.
THE CLERK: Ida
Mickelson, is this your verdict as I have read it?
JUROR
MICKELSON: Yes, it is.
THE CLERK:
June Kopp, is this your verdict as I have read it?
JUROR KOPP:
Yes, it is.
THE CLERK:
Gerald P. Bommersbach, is this your verdict as I have read it?
JUROR
BOMMERSBACH: Yes, it is.
THE CLERK:
Victoria Haaland, is this your verdict as {5283} I have read it?
JUROR HAALAND:
Yes, it is.
THE CLERK:
Shirley Klocke, is this your verdict as I have read it?
JUROR KLOCKE:
Yes, it is.
THE CLERK:
Ralph McKay, is this your verdict as I have read it?
JUROR MCKAY:
Yes, it is.
THE CLERK:
Mrs. Irene Hoggarth, is this your verdict as I have read it?
JUROR HOGGARTH:
Yes, it is.
THE CLERK:
Mrs. Beverly Nielsen, is this your verdict as I have read it?
JUROR NIELSEN:
Yes, it is.
THE CLERK:
Your Honor, the verdict is unanimous.
THE COURT:
Very well.
A pre-sentence
report is ordered, and sentencing will be set on a date to be determined
by the Court.
Members of the
Jury, it is now a real pleasure for me to advise that you are discharged
and you may return home.
I will just
add this: That earlier this afternoon before I knew that you had reached a
verdict, and of course, before I had any idea of what your verdict would
be, I dictated a letter to each of you expressing the {5284} appreciation
of the Court for the service that you have rendered. You will get that
letter in the mail. Is there anything more to be presented to the Court at
this time, Mr. Hultman?
MR. HULTMAN:
The Government has nothing, your Honor.
THE COURT: Mr.
Taikeff?
MR. TAIKEFF:
No, your Honor.
THE COURT: The
Court is adjourned.
(Whereupon, at
4:45 o'clock, p.m., the trial of the above-entitled matter was closed.)
{5285}
REPORTER'S
CERTIFICATE