VOLUME V
Pages 703-959
{703}
TUESDAY
MORNING SESSION
March 22, 1977
(Whereupon,
the following proceedings were had and entered of record on Tuesday
Morning, March 22, 1977 at 8:40 o'clock, A.M. in chambers:
MR. CROOKS:
How on earth did that get made public? I understood that that was all
going to be sealed, chambers things.
THE COURT: It
has been sealed now.
MR. CROOKS:
And I didn't see the report, but what's that about one of the jurors
supposedly said she's prejudiced and I --
THE COURT: I
think somebody by the name of Mr. Trudell of the defense group held a news
conference and made a statement to the press that pretty much detailed
what had taken place. And Ralph came to me about the middle of the
afternoon and said the press wanted to know if I would comment on it. And
I told them just informally that I had no comment.
MR. TAIKEFF:
Your Honor may be interested in knowing that one reporter approached me
and Mr. Lowe and asked us for details. And instead of giving details we
denied that the incident occurred.
We have no
knowledge of how that began, but we have refused to acknowledge even a
semblance of truth to it, and give a flat denial that there was any such
incident.
{704}
MR. HANSON: I
might mention, Judge. That when I advised the reporter of your no comment
the reporter advised me that that's the third no comment that they
received on it, implying that the Government has not commented on it and
that the defense attorneys had indicated no comment.
THE COURT:
Well, the jury is sequestered so I'm not particularly concerned. But the
public I suppose will have to make up their own mind as to what may or may
not have happened.
MR. CROOKS: I
guess my inquiry was how did anybody find out about it because I
understood that that was not to be made public by any party, and all at
once here it -- maybe one of the witnesses made it public, I don't know.
THE COURT:
Obviously somebody did. And as I say I didn't know that I need to go into
that at this time because I don't know what would be accomplished.
MR. HULTMAN:
Your Honor, the reason why we asked to meet with the Court is that in open
court a request was made, I don't remember, Elliot, whether it was late
Friday. I think it was Friday, yes because John was not there, that they
have an opportunity specifically to interview four individuals by the name
of Mike Smith, Mike Anderson, Wilford Draper and James Hardgill. And I
indicated yesterday that they were going to, I would have a chance to
visit with them last evening, the three that are in Fargo, and that is
Mike Smith, Mike Anderson and Wilford Draper James Hardgill, he's under
subpoena but he's {705} not here yet. And I indicated that this morning at
8:30 I would make these three individuals available and indicated to
counsel, and they are in the witness room down at the end of the hall.
The small
courtroom is locked, and so I got that room. There's a double room, it's
an inner office and an outer office so there's two separate rooms in
effect. You come in and out of a room and then like in your office, your
inner is a second room, it's a separated room, and that's where the
witnesses are in each of the three instances.
THE COURT:
Excuse me. I'm just curious. You say the small courtroom. I don't
understand that.
MR. HULTMAN:
We couldn't get in it, Your Honor, and again this morning it was locked.
MR. CROOKS:
The room he's referring to, Your Honor, is 212.
MR. HULTMAN:
On the second floor.
MR. CROOKS:
Which is down from our office. This is the room that I had mentioned
earlier that the ag people had been in.
MR. HULTMAN:
So now we have a room which is a double room down at the far end which is,
is that right, is that the number, 212?
MR. CROOKS:
Yes.
MR. HULTMAN:
And it's adequate. As I say there are two separate rooms in it. You walk
in the outer room. It would {706} be like coming in your outer office; and
then there's a second room with an inner door that. you do to the next
room which is totally separate. So I've had those witnesses there, as I
indicated to counsel yesterday, since about 8:15 this morning. Each of the
three of them has indicated to me that they did not wish, from their
determination, to talk to the defendant's counsel.
In no way do I
indicate to the Court or to defense counsel, and I think this is in any
way binding because that's, I'm just merely reflecting what it is. And
that was certain, without any coaching or anything else. I just plain
asked a straight out question this morning, do you or do you not.
Now, I realize
that is in no way binding, but what I am concerned about, Your Honor, is
that I want to make absolutely certain, and I think I have a legitimate
request to the Court, that once that question is established, and only
that question be established first by counsel before getting into any
testimony of any kind, because the first level issue is a right of the
witness. Do I or do I not wish to be interviewed. And I think that's a
free and a fair determination. And counsel --
MR. TAIKEFF:
We agree.
MR. HULTMAN:
And the only reason I raise it is because at the last trial, and I'm going
to refer to the record, we went through this particular proceeding at that
time, and I want to read the first couple of pages of one of these two
{707} witnesses, Mr. Draper; that we are referring to the interview that
took place because I think one, it was never established -- questions were
requested specifically about specific people. The very ultimate issues
before there was any determination made as to whether or not anybody was
willing or not willing to make a consent interview. That's the threshold
issue that I feel there is a right for that determination first.
And, I would
refer to, I don't know the exact -- it's page 1 of the transcript, of the
interview in the last proceedings of Wilford Draper. And the first page
here, page and a half, reads as follows, and I'd like to dictate it into
the record:
"WILFORD
DRAPER, taken at 12:45 p.m., June 6, 1976, in the Bankruptcy Courtroom,
United States Courthouse, Cedar Rapids, Iowa, in the matter of the United
States of America versus Robideau and Butler. Present: John Lowe and
William Kunstler, attorneys for defendants. Mr. Dale Williams, United
States Marshal.
"MR. LOWE: My
name is John Lowe and I represent Robideau. This is Bill Kunstler
representing Dino Butler. This is Mr. Williams who is the United States
Marshal. He is here to make sure everything is safe and secure, and this
is Mr. Boudreau, Judge McManus's court reporter. Do they call you Wilford
or do you have a nickname?
"THE WITNESS:
Wishy or Will or anything you want.
{708}
"MR. LOWE:
Okay. Is Will good enough?
"THE WITNESS:
Yes.
"MR. LOWE: We
will call you Will. Judge McManus has indicated that we could have the
right to have a consent interview with you. That is, that we could have a
right to talk with you if you would be willing to, in order to help us
prepare for the trial. You know Bob and Dino are on trial for their
lives."
MR. HULTMAN:
Now, I submit to the Court that that not only is not a statement of the
law, it's an improper statement to state to any witness.
"MR. LOWE:
They can get the death penalty . . . "
MR. HULTMAN:
Again I say that is clearly not only a misstatement of the law, but it is
a clear attempt to in some way influence a witness as to the seriousness
of something way beyond; and it gets into a matter which is not a matter
of what the law was in that case or in any case.
"They can get
the death penalty out of this," and we simply want to find out what kind
of evidence is going to be presented so we can do the best we can to
defend them.
"MR. LOWE: We
feel that the truth is going to help Bob and Dino if we can get the truth
out in court, and so we are here today simply to ask you what the truth is
as you know it and to ask you what you understand you will be testifying
about, in court. We don't know for sure that you will be called {709} to
testify but the Government gave us your name on a list. So we have to
check all those witnesses out."
"MR. KUNSLER:
You know Norman Brown?"
MR. HULTMAN:
We are not getting into the very questions and the matters and the issues
with reference to an interview, whether or not, there's been a
determination that there was to be one or not to be one.
"MR. KUNSTLER:
He was in here."
MR. HULTMAN:
And so it goes and from that point on. Now, all I wanted to make
absolutely certain is one, that the threshold issue be determined by
counsel with the witness as to one, whether or not they wish and consent
to an interview, or whether they don't. And then secondly, we don't get
into matters of this kind that are certainly highly prejudicial and a
misstatement of law.
THE COURT: How
do you propose that that would be accomplished?
MR. HULTMAN:
Well, I have them, Your Honor, in those rooms available, and all I'm
concerned about is that the threshold question be asked and determined.
I would have
no objection, and I think it would only be fair for example if the Court
made that determination as to whether they do or they don't, because that
certainly would be in all fairness without any influence of any kind, any
possibility of any misleading statement.
{710}
I don't think
the Government has the right to put somebody in the room to counsel,
because counsel has the right to discuss with the witness. That's the only
alternative I see to protect all the rights that are involved. For the
Government to be present I can see the reason, and I feel without any
question that's a legitimate request on the part of counsel.
But at the
same time I feel that the Government has a right that that witness's
rights be protected the same as practically every other witness out here
has told me either directly or indirectly in the open court that one, not
only do I have any right to go to talk to anybody, and particularly I
could name certain witnesses, and some of them have in the open courtroom
but I'm not going to be able to talk to them without their lawyer being
present. And, in addition they're not going to tell me anything if I do
ask.
And now I just
merely say, and if, witnesses have those rights and have already exercised
them in this courtroom I think these witnesses have some rights also.
MR. LOWE:
Well, Judge, I think Mr. Hultman has changed his tune substantially since
several days when the shoe was on the other foot and he had some witness
who ostensibly, and he argued fervently, that he had the right to try to
persuade them by any reasonable and ethical means to talk with him. It
wasn't just a matter to have the Court talk to the witness and {711} then
announced to the U.S. Attorney. And I'm afraid Mr Hultman is using a
double standard here.
We have the
right to confront the witnesses in a proper way. We already indicated that
we desire to have the protection for the witnesses and the Court and us
having the court reporter present so that the plan -- we did this last
year, what we did in the last year, and it is entirely proper and I would
add as a footnote it was a capital case. The statute called for capital
punishment and Judge McManus has declined to rule that there was no
constitutional basis. At this point we were dealing with a capital crime
and it's entirely proper for us to suggest to the witness that the matter
is an extremely serious case and that is another reason why he ought to in
fairness talk with the defense counsel. There's not anything improper in
that.
Mr. Hultman is
just trying to justify his position. Now, the double standard is just not
fair here. All we ask is an opportunity to have a room. We're willing to
use a witness room, we don't even have to do it in our offices, where we
can sit down with the court reporter in a proper and ethical setting talk
to the witness.
Now, if we
tell them that it's a consent interview and they say we don't want to talk
with you, that's fine, and we stop. And that's no problem. But we don't
have to just ask them one bald question, have them show reluctance and
then pack our {712} tents and move away. It's certainly proper for us in a
proper and noncoercive way to try to explain how important it is for us to
prepare a defense in an important case like this. And to try to use some
persuasion to have them talk with us. It will all be on the record.
I think Your
Honor knows from dealing with Mr. Taikeff and me that we're not going to
overreach ourselves in any unethical means. That's all we ask, and I think
we're entitled to that.
THE COURT:
Would they be advised that the decision as to whether or not they wish to
talk to you is theirs to make?
MR. LOWE:
Absolutely.
In addition if
they want to have counsel, I think one or two of them last year did,
that's perfectly proper I think Norman Brown had his mother with him last.
We have no problem with that.
Mr. Hultman is
acting like we're trying to closet ourselves and coerce them into relying
--
MR. HULTMAN: I
was just asking for procedure and or the record, John, I take total issue
with your statement with reference to what the record will show from the
last trial as to the status of the case, whether it was or wasn't a
capital case, whether or not capital punishment was involved. I don't want
to argue it.
MR. TAIKEFF:
I'm glad because I'd like to be finished {713} with the last trial finally
and try this case only.
MR. HULTMAN:
Well, on the record, Your Honor, could I make a request. there. That I
think it has been ruled that in the courtroom we're not going to be
referring to the last trial, and I would request of counsel henceforth
that we talk about testimony under oath and not testimony under oath at
the last trial to bring it to the Court's record.
I think in all
fairness that that is something that by the Court's ruling is the posture
that it's in and I would make that formal request at this time on the
record. And the use of transcripts from the last trial.
MR. TAIKEFF: I
think that has to await the occasion for a ruling by the Court. But I
will, as far as I'm concerned. I will not make any reference to there
having been a separate trial without first approaching the bench and
pointing out where I think it's appropriate to do so.
THE COURT: At
this time there have been at least two or three references to another
trial, and it is the ruling of the Court that in references to prior
testimony counsel should not refer to the prior trial, refer to prior
testimony under oath on or about such and such a date.
MR. LOWE: I
think that what we're talking about is, I mean we're kidding ourselves
because at least one of the jurors during voir dire mentioned it, there
were no objections from counsel in front of the other jurors, and if we
think that {714} there's a juror that doesn't know there wasn't a trial
last summer and doesn't know what the result is, we're just kidding
ourselves.
THE COURT: One
of the jurors mentioned it. Of course, obviously, he had no opportunity to
object. The juror simply --
MR. LOWE: He
could have objected to the whole panel, but it's obvious that there was a
trial.
MR. HULTMAN: I
don't accept that either, John.
THE COURT:
Well, I think to refer to prior testimony as having been at the last trial
just places undue emphasis on that and as Mr. Taikeff says I think we
should get away from that.
MR. LOWE: As
happened in other proceedings in any event, I usually say that.
THE COURT:
That would be the proper approach on the question. The witness should be
interviewed with the court reporter present.
MR. LOWE:
Thank you, Judge.
THE COURT:
Should be advised that they have the right to decline to the interview,
and I would permit you to, when I say you, counsel for either side in
interviewing witnesses, make a statement that, some general statement the
effect that because of the importance of the case it is your desire to
interview him; and I think with that foundation, or with those preliminary
remarks, that the witness should then be {715} asked to state specifically
whether they do or do not consent to an interview.
MR. HULTMAN:
Your Honor, the Government certainly would accede to that. The
Government's witnesses are available now, they are in, as I say, in the
area that I referred to. There is a separate room in which that could take
place and it would be the request of the Government, Your Honor. I know
this is unusual, but the proceeding is unusual to start with. The posture
that we are in, I would request of the Court that that determination at
least at the threshold be made now, and that they be given an opportunity,
because I would like to proceed with the calling of these particular
witnesses, and I intend to proceed with the calling of these particular
witnesses.
MR. TAIKEFF:
We have no objection to proceeding that way. Your Honor.
THE COURT:
Well, what do you mean by "now"?
MR. HULTMAN: I
would like to at least establish that now, Your Honor, because --
THE COURT: All
right. Let's say that they consent to an interview. Are you suggesting
that we should hold up court for the forenoon to allow these interviews?
MR. HULTMAN:
Well --
MR. LOWE: I
think we ought to try and interview then this evening, Judge.
MR. HULTMAN: I
am prepared to go forward now with the {716} testimony and I think that
the Government's got a right to present its case in the order and the
method. And I think that once that issue is established I think I have a
right to go forward with the testimony.
I don't want
to leave these individuals, Your Honor, and on the record again I'll make
it very clear that these individuals are under extreme pressures and to
the extent that they are left in the area with other people around to
attempt to influence them in any way, I think is not in the interests of
justice as far as this case is concerned. And that is why I would like to
proceed with these witnesses.
I saw them
last evening, the first time I've seen them. In fact, one of them I've
never ever seen before, and I think that from the orderliness of a trial
standpoint, that ought to be established right now. They are available,
they're all here. Otherwise I think, Your Honor, that we're going to run
into --
THE COURT: Did
these witnesses testify in the last trial?
MR. HULTMAN:
One of them did. Two of them did not, Your Honor. Two of them did not.
You see, my
problem is they are not under protective custody and they could walk out
of this courthouse this afternoon or this morning and I never see them
again. And that I've had extreme difficulty to get witnesses, and I think
it's imperative, {717} Your Honor, that I be given every opportunity to
make sure that I continue to have certain witnesses available and that
this jury have an opportunity to hear their testimony.
THE COURT:
Well, we are still on the cross-examination of Robert Ecoffey.
MR. HULTMAN:
Yes.
THE COURT:
Which witness do you intend to call? Do you intend to call one of these
witnesses?
MR. HULTMAN: I
intend to proceed with the calling of these witnesses, that's exactly
right, Your Honor. Because I run the risk in another day that one or more
might not even be here.
THE COURT: How
much time do you feel that defendants should have, the defendant should
have to interview, counsel should have to interview?
MR. LOWE:
Well, Judge, that's very difficult to say. We've got three witnesses. I
certainly want to go down and make the witnesses comfortable and get the
court reporter set up. Give him a little bit of preamble about who we are
and what we are doing and why it's important to have an interview. Then
explain to them that they have the right not to interview if they choose,
if they object, and then attempt to have them interview and get the
information that we want. And they're both witnesses that were eye
witnesses. It's difficult to say to find out.
{718}
THE COURT: Is
this going to be done individually or with the three?
MR. LOWE:
Individually, yes, sir, individually.
I also feel,
Your Honor, that we, when we say no interview, presumably we're talking
about the merits of the case, or the substance of their testimony.
I do feel that
we ought to be able to, through proper questioning, not through
overreaching with the court reporter present, make some inquiry whether
any one of these are hesitant to talk with us to inquiry whether any one
has suggested to them that they ought not to talk with us. I think that's
reasonable inquiry for us to make and it does not get into what would be
called an interview. And I would propose to do that on the record also so
that we have some indication because if there has been some attempt by
somebody to influence them not to talk with us I think that makes it a
different situation, and I think that Your Honor would want to take some
action to secure interview for us, or at least to purge the witness of the
taint of such coercion.
MR. TAIKEFF:
Your Honor, assuming that Your Honor is fully aware of how inept lawyers
are in estimating time accurately I would say that we need about ten
minutes for each of them in order to determine what their position is, and
whether any further application to the Court is appropriate. If any one of
them should agree to an interview, of {719} course that raises a separate
time problem. But just to ascertain I think a fair statement would be ten
minutes per prospective witness.
MR. LOWE: I
would think that would get us into that point.
Now, we're
geared up for today. The Government has given us material for a whole
string of witnesses. We have scheduled our day and we would prefer to make
this this evening when there is no pressure of time on the witnesses or on
us or on the Court. And that's what we would propose.
God knows the
Government has enough witnesses to take us through this day, and I can't
examine that one day will make that much difference. We will yield to what
you want to do, Judge. But Mr. Taikeff and I cannot of course conduct
court proceedings and interview witnesses at the same time.
MR. HULTMAN:
Your Honor, could I make a suggestion pursuant to what Mr. Taikeff has
said? One, I think the threshold determination could be made, and that
might save us all problems from that point on to the extent then that the
threshold issue is determined that the individual was willing to have a
consent interview and to go into any and all the matters that counsel
wants. That would take additional time, and no question about it. And I
certainly would agree with counsel. I think what we could do if we had the
original proceeding we would, one, they would be able to make that
deter{720}mination and could so indicate to the Court. And as it's been
indicated there would be a record of it as to what that determination is.
To the extent then that an interview has been determined, that the witness
is willing and does want to have an interview, then I think that could be
scheduled as counsel has indicated here in such a way that it would give
them a proper amount of time in order to handle that interview.
On the other
hand if one or more of them would indicate there is none, I see no reason
why then at that point I should not be able to accomplish using that
witness in going forward to meet the ends, the needs of the Government as
well as the needs of the defendant.
{721}
The ultimate
issue is confrontation in the courtroom, and that's what I would hope I
get an opportunity to do, and at the soonest time possible to make sure I
do have witnesses in the courtroom that I know who are available.
MR. TAIKEFF:
That sounds reasonable, your Honor.
THE COURT: I
will delay convening court in order to give counsel an opportunity in the
presence of the court reporter to interview those witnesses, and then
report back to the Court as to the results of that interview.
Now, if you
interview them on the question as to whether or not they will consent to
an interview --
MR. LOWE:
(Interrupting) If they consented, we could do that this evening after
court.
THE COURT:
Well, we will see what the situation is. The report should be brought back
here and I will decide from that point.
MR. LOWE: With
regard to that, we have an application. We are apparently not able to work
something, out with the Government. I would like to make it now.
The Government
advised us yesterday for the first time they have in protective custody --
I believe it was the first time, we knew it anyway -- one of the witnesses
named Myrtle Poorbear -- we have desired to have consent interview with
Myrtle Poorbear. Since she is in the control and custody of the
Government, we asked she be {722} produced here so that we might have the
opportunity to have a consent interview. She was one of the witnesses last
summer and --
MR. HULTMAN:
(Interrupting) She was not a witness last summer.
MR. LOWE: She
was on the witness list.
MR. HULTMAN:
That's different.
MR. LOWE: She
did not testify. I did not mean to imply that.
She was
brought to Cedar Rapids by order of Judge McManus, and we had an
opportunity to confront her and ask for a consent interview. At that time
she did not want to. I think she would be willing to give an interview but
we won't know until we ask.
The Government
has her, I guess, hidden away somewhere. That's the way it was last year.
We have no way to even approach her except through the Government.
We would ask
that she be brought here for the purpose of a consent interview.
MR. HULTMAN:
The Government would meet any such request.
THE COURT:
What is the name of that person?
MR. LOWE:
Myrtle Poorbear. There are two State Troopers. We have worked that out.
When they come in, we will have a chance to talk to them, so I don't think
{723} we will have any problem.
MR. CROOKS: I
might state, Your Honor, we have been informed through the Marshal's
Service that Myrtle Poorbear is far from being hidden away. As a matter of
fact, we were informed that the father, in the company of a member of the
Wounded Knee Legal Offense-Defense Committee, did proceed to California
where she is at and did conduct an interview of her within a few days ago.
MR. ELLISON:
May I inquire as to the name of the person who was on the Offense-Defense
Committee who interviewed her?
MR. CROOKS: I
am not familiar with the name, but the Marshal has it.
MR. LOWE:
Which Marshal?
THE COURT:
Well, without getting into that at this point, Myrtle Poor Bear apparently
is not here now.
MR. HULTMAN:
No, no, no.
THE COURT: All
right. You do intend that she will be brought here for trial?
MR. HULTMAN:
Your Honor, a determination has not been made by the Government on that at
this particular time.
THE COURT: If
she is brought in, it would seem that the Defendant should have an
opportunity to have his interview.
{724}
MR. LOWE:
Judge, we may want to call her, No. 1, and No. 2, I think it is unfair for
the Government to bring her up the night before and throw her on the
witness stand. One of the purposes of interviewing is so you can go out
and investigate the information you get in time to use it when she is on
the witness stand.
THE COURT:
When do you intend to make the determination as to whether she will be
brought in?
MR. HULTMAN:
We would know in plenty of time so that there would be an opportunity --
MR. LOWE:
(Interrupting) A week?
MR. HULTMAN: I
wouldn't say a week, John. I hope the trial is -- certainly two or three
days would be sufficient for you, would it not? You have known her, you
have known her, you have interviewed her.
MR. TAIKEFF:
Not interviewed her.
MR. HULTMAN:
You tried, you had an opportunity to.
MR. TAIKEFF:
Your Honor, I think the point is not whether the Government chooses to
call her. I think the point is the Government has her in custody, and we
may call her.
THE COURT: I
understand the point, and the point I am making is that the Government
should make a determination as to whether or not they are going to call
her. If they are going to call her, then she should be brought {725} here
in sufficient time so that the Defendant's counsel will have an
opportunity to see whether she will consent to an interview. If the
Government is not going to call her, then that should be made known, and
then the Defendant's counsel can make the determination as to whether she
should be called.
MR. TAIKEFF:
Which, I assume, would include bringing her so we could attempt to
interview her before we decide whether we are going to put her on the
stand or not.
MR. LOWE: We
are going to need her in any event, Judge. We have to talk with her in
order to make our determination.
THE COURT:
That's no different than any other witness.
MR. LOWE:
Exactly. That's why we ask she simply be brought here now. In either
event, we will have to talk with her. That will give us more time to
prepare and make our judgment on the matter.
THE COURT: You
know my attitude, counsel can work it out.
MR. HULTMAN: I
understand, yes.
THE COURT: Why
don't you make the contact with these three witnesses, do it individually?
MR. LOWE:
Which court reporter do you want us to use?
THE COURT:
There's the handiest one.
MR. LOWE: The
room we are talking about is at the {726} far end?
MR. HULTMAN:
It is on the far end. We started to walk down there one day, the second
floor on the far end, if you go down the hall, on the Marshal's end.
MR LOWE: I
don't know the three men.
Mr. HULTMAN: I
will walk down with you, just to walk down and I will leave.
(Thereupon, at
9:18, the proceedings in chambers were concluded.)
INTERROGATIONS
OF WITNESSES
Pages 727-743
{744}
(Whereupon,
the following proceedings were had in the courtroom at 9:55 o'clock, A.M.
without the hearing and presence of the jury:)
THE COURT: It
has been reported to me that two of the witnesses that were mentioned in
conference in chambers decline to be interviewed, one is willing to be
interviewed and the problem is working out a time when that can be done.
We'll not further delay court proceedings.
MR. HULTMAN:
Your Honor, I think maybe we could agree with Counsel, visit about that
and report a little later in the day.
THE COURT: The
intention, as I understand it from defendant's point of view, is they
would like to make arrangements for that interview sometime this evening.
MR. HULTMAN:
We'll work with that, with the defendants, and report back to the Court on
those guidelines, Your Honor.
THE COURT:
Very well. May we bring the jury in?
Mr. TAIKEFF:
Yes, Your Honor.
MR. HULTMAN:
Yes, Your Honor.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
THE COURT: Are
you ready to proceed?
MR. TAIKEFF: I
am, Your Honor.
{745}
I believe we
need a witness.
THE COURT:
Maybe we're not ready to proceed.
MR. TAIKEFF:
I'll get ready over there.
MR. HULTMAN:
Mr. Ecoffey was still on the stand, I believe.
MR. TAIKEFF:
May I proceed, Your Honor?
THE COURT: You
may.
CROSS-EXAMINATION CONTINUED
BY MR. TAIKEFF:
Q Good
morning, Mr. Ecoffey.
A Good
morning.
Q Could you
pull the microphone a little closer to yourself so we don't have any
trouble hearing you. Thank you.
Do you recall
last night I asked you a question about the distance between the place
where you confronted the three young men and the BIA jail?
A Yes, I do.
Q And I
believe your answer was that the distance, it was 13 miles, is that
correct?
A That's
correct.
Q Mow you're a
police officer, are you not?
A Yes, I am.
Q And could
you tell us whether possession of a clip with bullets in it is a crime on
the reservation?
A I'm not
sure. But in a tribal statute I believe they have something concerning --
{746}
Q You say you
think they have something. You mean the near possession of bullets or a
clip with bullets in it, is that your position?
A With a
person under the age of 18. That's the tribal
Q I thought
you told us yesterday you thought they were 19 or 20 years old.
A Late teens.
I'm not positive.
Q Did you
place any of those young individuals under arrest?
A No, I
didn't.
Q Do you know
that you share in a certain sense the law enforcement responsibility on
the reservation with the FBI, right?
A That's
correct.
Q You take
care of certain crimes, they take care of other crimes, right?
A That's
correct.
Q Is it your
understanding that the FBI is authorized under the law to arrest somebody
for possessing a clip with bullets in it on the reservation? I asked what
your understanding is.
A Well, at
this time I don't, I don't believe the three persons were under arrest.
Q I see.
Did they ask
to go with you to the BIA jail?
A No. They
were asked if they would.
{747}
Q What did
they say?
A Said "Sure."
Q And as far
as you could tell they seemed perfectly happy to go along for the ride?
A Yeah.
Q They didn't
seem angry?
A No.
Q Or annoyed
in any way?
A Not as far
as I could tell.
Q Were they
searched before they were taken to the jail?
A No. I don't
believe so.
Q Were they
treated in a polite way?
A Yes. As far
as --
Q As far as
you could tell they were treated in a respectful way?
A Yes.
Q Now when you
went to Wanda Sear's House, did you enter the house before you saw Wanda
Sears or the person you were told was Wanda Sears?
A No, we
didn't.
Q You knocked
on the door?
A Yes.
Q And she was
asked whether you, meaning you and the three officers with you, could come
in, right?
A Yes.
{748}
Q They didn't
push her around in any way, did they?
A No.
Q They didn't
yell at her?
A No.
Q They didn't
treat her in a disrespectful manner?
A No, they
didn't.
Q As far as
you're concerned they treated her politely and properly?
A Yes.
Q And she
invited them into her house?
A Uh-huh.
Q They didn't
push their way in?
A No.
Q They didn't
threaten her with anything?
A No, they
didn't.
Q I show you
what has been marked Defendant's Exhibit 78A for identification and ask
you to look on the several pages where you will see 12 photographs per
page and tell me whether you see the photograph of any of the young people
that you encountered that evening, the 25th.
A Photograph
No. 11 on the first page.
Q And who was
that?
A This is John
Nelson. We call him Dusty Nelson.
Q Anybody
else? Would you continue looking, please.
Anything else,
sir?
{749}
A No.
Q Look at page
3. Look over all of those photographs again, please.
Do you see
anyone you recognize?
A You mean
that I seen on the 25th?
Q On the
evening of the 25th.
A No, I don't.
Q Look at
photograph No. 3.
Anything?
A No.
Q Okay.
May I have
that back, please.
MR. TAIKEFF:
May I confer with Counsel for a moment, Your Honor?
THE COURT: You
may.
Q (By Mr.
Taikeff) Mr. Ecoffey, did you write a report of your activities of the
day, June 26th, 1975?
A Yes, I did.
Q And it was a
special report, was it not?
A Yes, it was.
Q And it ran
on for several pages, didn't it?
A Yes, it did.
Q I want to
show you Defendant's Exhibit 87 for identification and ask you to look at
it for as long as necessary so that you could answer the following
question: does that document contain {750} a verbatim reproduction of the
report you wrote concerning your activities of June 26th, 1975?
MR. HULTMAN:
Counsel, could I just see the report? I would just like a chance each time
to see which exhibit it is you're referring to. Could I see it?
MR. TAIKEFF:
All right. I don't mind in this particular instance showing it to Counsel,
Your Honor.
MR. HULTMAN:
Without that knowledge, Your Honor, I'm in no position to offer any
objections.
MR. TAIKEFF:
Your Honor, I haven't offered it in evidence.
MR. HULTMAN:
Even ask questions.
MR. TAIKEFF:
I'm not questioning Mr. Hultman.
MR. HULTMAN:
Thank you, Counsel.
Q (By Mr.
Taikeff) I'm returning to you, sir, Defendant's Exhibit 87 for
identification. I want to repeat my question in the event that I misspoke
before. I'm asking you whether that document contains a reproduction of
the special report you said you wrote concerning your activities on June
26, 1975. Yes or no?
A Yes, it
does.
Q At the time
you wrote the report, were those events fresh in your memory?
A Yes, they
were.
Q And did you
write the report with the intention of {751} recording your actual
recollections truthfully?
A To the best
of my knowledge; yes.
Q And did you
write this report in the course of your official duties as a police
officer?
A Yes, sir.
Q And in
connection with your activities relating to the incident which is the
subject matter of this lawsuit?
A Yes, sir.
MR. TAIKEFF: I
have no further questions.
REDIRECT
EXAMINATION
BY MR. HULTMAN:
Q I just have
one question, Mr. Ecoffey. The various photos that were shown to you, you
did not recognize them at the time, is that correct?
A That's
correct.
Q And that was
your testimony to Counsel?
A Yes, sir.
MR. HULTMAN:
No further questions.
MR. TAIKEFF:
Nothing further, Your Honor.
THE COURT: You
may step down.
MR. HULTMAN:
Government calls Michael Anderson.
{752}
MICHAEL ERWIN
ANDERSON,
being first
duly sworn, testified as follows:
DIRECT
EXAMINATION
BY MR. HULTMAN:
Q Would you
state to the jury your name?
A Michael
Erwin Anderson.
Q Where do you
live, Mr. Anderson?
A Fort
Defiance, Arizona.
Q And how long
nave you lived there?
A All my life.
Q And what is
your birthday, Mike?
A 9-19-58.
Q 1958? So how
old are you are the present time?
A 18.
Q How old
would you have been in June of 1975?
A 16.
Q All right,
and who do you live with there?
A Where?
Q Where your
present home is.
A My mom.
Q And where
did you indicate that was located?
A In Fort
Defiance, Arizona.
Q All right.
Now, I want to ask you some questions beginning, Mike, with the year,
1975, and with reference to an event in New Mexico.
{753}
Did you have
an occasion in May or June of that year to go from Fort Defiance to
somewhere in New Mexico?
A Yes.
Q And where
did you go?
A Farmington.
Q And why did
you go to Farmington?
A I went to
the AIM convention.
Q All right,
and did you meet some people there at the convention?
A Yes.
Q And did you
stay there at the convention?
A Yes.
Q And would
you tell the jury who it was that you stayed with while you were there at
the convention?
A I stayed
there with Peltier, and I don't know -- there was a lot of people, all
kinds.
Q Do you
remember any others that you can recall at this part particular time?
A See, there
was Butler and Robideau, and Arline Nichols and Bernie, Bernadine Nichols.
MR. TAIKEFF:
We are not able to hear.
THE COURT:
Would you turn the microphone towards you and then try to speak fairly
close to it? Speak up to, please.
Q (By Mr.
Hultman) were there any others that come to mind {754} at this time?
A Nilak, and I
think that was all.
Q All right.
When you referred to Peltier, do you see him here in the courtroom today?
A Yes.
Q And what is
his first name?
A Leonard.
Q And would
you point him out to the jury, please?
A Over there
(indicating).
MR. TAIKEFF:
The identification is conceded, your Honor.
MR. HULTMAN:
Let the record show.
THE COURT:
Very well.
Q (By Mr.
Hultman) Now, did you have occasion then to leave Farmington and go
somewhere early, either late in May or the early part of June?
A Yes.
Q And where
did you go?
A South
Dakota,
Q And where in
South Dakota did you first go?
A Leonard Crow
Dog.
Q Did you
leave Farmington to go to Leonard Crow Dog's with some other people?
Q And who was
it that you left with and in whose car?
{755}
A Leonard
Peltier's green pickup, camper on it.
Q And was
Leonard with you?
A Yes.
Q And who else
left with you?
A Bernie and
Darlene and Dino.
Q And when you
referred to "Dino", is his name Butler, Dino Butler?
A Yes.
Q All right.
A And Nilak. I
can't remember the other names.
Q Was Bob
Robideau with you?
A Yes.
Q Did he leave
with you?
A Yes.
Q Did Mike
Anderson leave with you?
A Yes.
MR. LOWE: He
is Mike Anderson, your Honor.
THE COURT: I
beg your pardon?
MR. HULTMAN:
Mike, I am sorry. I referred back to who was with Mike Anderson.
MR. LOWE:
Excuse me. If counsel would not ask leading questions, we wouldn't have
that problem. I would like to object to the form of the previous question
about Mr. Robideau. I ask he ask an interrogative type question and not a
leading question.
{756}
MR. HULTMAN:
Your Honor, will the record show I think the rules of these proceedings
there is one counsel handling one witness.
MR. LOWE: This
is my witness, your Honor, Mr. Hultman can deal with me.
THE COURT: The
leading question that was asked will be allowed. It was preliminary.
Q (By Mr.
Hultman) Mike, was Wilford Draper with you when you left?
A Yes.
Q Was Norman
Brown with you when you left?
A Yes.
MR. LOWE: Your
Honor, I am objecting to these leading questions. He is putting the words
in the witness' mouth. He can ask who was there, and the witness can
depend on his own recollection. The witness knows very well when he asked
that question he wants an affirmative answer.
THE COURT: The
objection is sustained.
MR. HULTMAN:
All right, your Honor.
Q (By Mr.
Hultman) Do you recall any other individuals that left with you?
A Norman Brown
and Wilford Draper.
Q All right,
and do you remember what women there were -- you mentioned, I believe, one
woman. Was there any other {757} woman besides the ones that you
mentioned?
A Darlene and
Bernadine.
Q All right,
so that's a total of three women, is that correct?
A Yes.
Q Who is
Darlene and Bernadine, do you know them by any other name or any
relationship?
A No.
Q All right.
Now, you went to Crow Dog's, you say, and where did you go from Crow
Dog's?
A Pine Ridge.
Q And where
did you go at Pine Ridge?
A Ted Lame.
Q And where
did you go from Ted Lame?
A Jumping
Bull's.
Q All right,
and where did you go when you went to Jumping Bull's, what part of Jumping
Bull's?
A Down the
wooded area.
Q And who was
it that was down in the wooded area with you, if there were any other
people?
A Me, Norman
Brown, Wish Draper, Leonard Peltier, Dino Butler, Rob Robideau, Jeannie
Bordeau, Jeannie Zimmerman and Jean Day, Anna Mae, and that's about all.
Q Was Joe
Stuntz at any time in the tent area?
A Yes.
{758}
Q Was he also
one of them.
A Yes.
Q All right.
Now, would you turn around and look at what has been marked as
Government's Exhibit 71, and you will notice at the top of that exhibit is
a drawing of where it shows a highway, 18, U.S. Highway 18; and then there
is some residences, and there is some plowed fields and some woods, and
some objects there; and then there is an area up in the upper right-hand
corner that refers to tents; and I ask you whether or not yo recognize the
general area that's portrayed there?
A Yes.
Q And what is
it?
A Tent area.
Q All right,
what is the entire, the general area that's presented by all of 71, do you
know whose property that is?
A Jumping
Bull.
Q And when you
referred to going to Jumping Bull, is it to that area that you went?
A Yes.
Q And when you
referred to the tent area, is it the area which is located on Government's
Exhibit 71 which has got some sort of wording, "Tents", is that the area
you are referring to?
MR. LOWE: Your
Honor, the leading questions have got to be stopped.
THE COURT:
Sustained.
{759}
Q (By Mr.
Hultman) Mr. Anderson, would you just point out to the jury where the tent
area is?
A In that dark
part right there (indicating).
Q All right.
Now, I wish to take you to the night of June 25th, 1975, and ask you
whether or not you went to town that particular afternoon or evening?
A Yes.
Q And did you
go with anybody?
A Wish Draper
and Norman Charles.
Q And where
did you leave from?
A From the
houses.
Q All right,
and when you say the "houses", are you referring to the Jumping Bull area?
A Yes.
Q Were all of
you, the three of you living in the tent area or in the general area at
that time?
A Yes.
Q And where
did you and Norman Charles and Wish Draper that particular evening?
A Oglala.
Q If you were
to turn around again and look at Government's Exhibit 71 and use the
pointer, would you show the jury the route that you took, how you went
there, where you started, ar at least as far as the map, where you went?
A We went out
this way (indicating).
{760}
Q And then you
went out to 18, is that correct?
A Yes.
Q To Highway
18. Then where did you go from Highway 18?
A To Oglala.
Q About how
far away was Oglala?
A I don't
know, about three miles.
Q All right.
Now, what, if anything, did the three of you do in Oglala?
A Went there
to take a shower.
Q All right.
Did you take a shower?
A Yes.
Q And did you,
after taking a shower, start to return to the Jumping Bull area?
A Yes.
Q Would you
tell the jury what, if anything, happened on the way back from taking a
shower?
A On the way
back we got stopped by two FBI Agents.
Q All right,
and do you remember about where that was that you were stopped?
A Well, by a
store.
Q By a store?
A Yes.
Q Do you know
what the name of that store is?
A No.
Q All right.
Is it a store in the general vicinity of {761} Oglala?
A Yes.
Q All right.
Now, would you tell the jury in your own words what it was that happened
at that particular time, just tell us in your own words?
A Well, they
pulled over and stopped us, and they asked us if any of us were Jimmy
Eagle. We said "no". They asked us for our names so we gave them an alias.
Q How many
agents were there at that particular time?
A Two.
Q Two, and
they asked you if any of you were Jimmy Eagle, is that right?
A Yes.
Q And none of
you were Jimmy Eagle, is that correct?
A No.
Q Jimmy Eagle
was not one of the three there?
A No.
Q They then
asked you for your names, you indicated?
A Yes.
Q Do you
remember whether or not the person who asked for names did anything as far
as any action at that time?
A No.
Q At the time
that you gave the names, you indicated that each of you gave specific
names, is that correct?
A Yes.
{762}
Q Do you
remember what the names were that you gave that you gave at that time?
A No.
Q Did you give
a name at that time?
A Yes.
Q And what
name did you give?
A I don't
know, I forgot.
Q Pardon?
A I forgot.
Q All right.
You forgot.
Did the agent
do anything at the time that you gave him the names?
A Yes.
Q What did he
do?
A He write
them down.
MR. TAIKEFF: I
didn't hear the answer.
THE COURT:
Repeat your answer.
THE WITNESS:
He wrote them down.
Q (By Mr.
Hultman) What did he write them down on?
A A piece of
paper.
Q Do you
remember how many names were given at that time?
A Three.
Q Three names,
and did he write them down?
A Yes.
Q Did he ask
for any other identification such as where you {763} lived or anything
else?
A No.
Q All right. I
am going to show you what has been marked as Government Exhibit No. 15 in
this case, and I want you to look at it. Have you ever seen this before
coming into the courtroom today, to the best of your knowledge; has any
agent or anybody shown you this piece of paper?
A No.
Q All right. I
want you to look at that piece of paper and look at the names or anything
that is on it, the kind of paper that it is, and ask you whether or not
your memory is refreshed in any way by looking at that Government Exhibit?
A No.
Q All right.
Now, after the agent had asked you for your names and you had given names
-- and I believe you said, you used the word "alias" -- is that what I
heard you say --
A
(Interrupting) Yes.
Q (Continuing)
-- in response to my question. What do you mean by that response?
A Different
name.
Q All right.
You used a different name?
A Yes.
Q And did the
other two of your companions also use a different name?
A Yes.
{764}
Q All right.
So that in response to the question, you didn't indicate, any of the three
of you, that one of you was Mike Anderson, one of you was Norman Charles
and one of you was Wish Draper, you gave another name, is that right?
A Yes.
Q Did you
possibly give an Indian name?
A Yes.
Q Now, what,
if anything -- tell us in your own words what happened next.
A Well, they
just told us to get in the car, but we just tried to walk away; and they
told us to get in so we got in.
Q Did they at
any time use any force of any kind on you?
A No.
Q And did they
tell you why they wanted you to get in the car"
A No.
Q Did you
discuss it with them at any time?
A No. We just
asked them where they were going to take us, but they didn't tell us.
Q All right.
What, if anything, then happened?
A They just
took us into Pine Ridge.
Q All right,
and while you were there, before you got in the car, do you recall one of
the agents asking any one of the three of you to look at anything?
A Yes.
Q And would
you tell the jury in your own words what {765} transpired, how that came
about?
A Well, they
asked us to look at the towels, and we looked at the towels and found --
Norman Charles found the clip.
Q And do you
remember the general description of what the clip was?
A Yes.
Q Did it have
ammunition in it?
A Yes.
Q And do you
know what kind of a weapon that it fit?
A Yes.
Q All right. I
am going to show you what has been marked as Government's Exhibit No.
69-A, and I just want to direct your attention to a part of Government's
Exhibit 69-A; and would you tell the jury what it is, to what I am
pointing at this time, if you know?
A The clip.
Q That's a
clip.
In looking at
that particular clip, does it in any way resemble the clip to which you
have now been testifying?
A Yes.
Q All right.
So it was a clip of this kind that you were just referring to?
A Yes.
Q You don't
know whether or not it was this particular clip or not?
{766}
A No.
Q There would
be no way for you to know, is that right?
A Yes.
Q But it
resembles the one --
A
(Interrupting) Yes.
Q All right.
{767}
Q Now, who was
it that had the clip?
A Norman
Charles.
Q All right.
And you indicated it was where, where did Norman have it?
A Wrapped in a
towel.
Q All right.
Now, you indicated you went where in the car with the agents?
A To Pine
Ridge.
Q And where in
Pine Ridge did you go?
A To the jail.
Q And what if
anything did you do there?
A Told us to
get out and go inside to the jail. And they asked the one officer at the
front desk if any of us were Jimmy Eagle.
Q All right.
So you got out of the car, you went into the jail at the desk; is that
right?
A Yes.
Q Now, they
didn't put you in jail, did they?
A No.
Q All right.
And they asked you there, the man at the desk, whether or not any of you
were Jimmy Eagle; is that correct?
A Yes.
Q And what if
anything did the man at the desk indicate?
A No.
Q That none of
you were Jimmy Eagle?
{768}
A Yes.
Q So what if
anything happened next?
A Well, there
was just another officer came in and took us back towards the Jumping
Bull's place.
Q All right.
During the course of that time did any of them hassle you or give you a
bad time in any way?
A No.
Q All right.
And so they took you back then, one officer did, where you wanted to go;
is that right?
A Yes.
Q And where
then did the three of you ask to be left off?
A Yes.
Q And where
was it that you did get out of the car?
A About little
ways down the road before the turnoff to Jumping Bull's.
Q All right.
Could you show us approximately on Government's Exhibit 71 where it was
that you got out of the agent's car.
A About here
(indicating).
Q All right.
MR. HULTMAN:
Let the record show that he indicated to the left of Government 71 about
where Highway 18 and roads coming off intersect. The left edge of
Government's Exhibit 71.
Q (By Mr.
Hultman) All right. What did you do then?
A We just got
out and walked back.
Q Were the
three of you still together?
{769}
A Yes.
Q And you
walked back to where, where did you go?
A Back to the
tent.
Q Back to the
tents?
A Yes.
Q All right.
Would you show the jury on the map from the highway where you
approximately got off the route that you took. Would you just start --
A This route
right here (indicating).
Q All right.
And would you just start and show us the route that you took from the
highway, starting at the highway show us on the map approximately how you
went and where you went.
A Well, we
just followed the road down this way, came up through here and around
there and went down (indicating).
Q All right.
And went into where the tents were; is that right?
A Yes, sir.
Q How many
tents approximately, would you describe to the jury how many tents were
there in the area of where the tents were located.
A About five
tents.
Q All right.
And so you remember some of the people that stayed in specific ones?
A Yes.
Q Which tent
did you stay in?
{770}
A The little
orange pup tent.
Q Pardon?
A The orange
pup tent. Orange pup tent; is that correct?
A Yes. Did you
stay with somebody?
A Yes.
Q Who did you
stay with?
A Jimmy
Zimmerman.
Q Who else
stayed in what kind of a tent in the area?
A Mela and
Dino stayed in the teepee.
Q Any others
that you recall?
A No, I can't
recall the others.
Q All right.
The others did stay there, but you don't remember which tent they stayed
in, is that what you are saying?
MR. LOWE: Your
Honor, objection to the form of the question. Whatever the word is, others
is very indefinite here and it's a leading question to begin with.
THE COURT:
Sustained.
Q (By Mr.
Hultman) Who did you see when the three of you got back to the tent area?
A Peltier.
Q And what if
anything took place when you saw Peltier?
A Well, we
just told him we got stopped by the FBI.
Q And what if
anything did he do or say?
{771}
A We just got
yelled at.
Q And what did
he indicate to you when he yelled at you?
A We were dumb
to get in the car.
Q Did you talk
to anybody other than you remember that night?
A To Dino.
Q All right.
And do you remember what you talked to him about
at all?
A No.
Q All right .
I want to take you now to the next morning, which is the 26th, and I want
to ask you, did you leave the tent area itself that morning and go
anywhere to any of the buildings in the morning?
A Yes.
Q And where
did you go?
A To June
Little's place.
Q And would
you point out on the map where it is, if it is there, that you went, and
have referred to as June Little.
A Right here
(indicating) .
Q All right.
MR. HULTMAN:
Let the record show that is the residence that has been previously
referred to as June Little.
Q (By Mr.
Hultman) Who was there?
A June Little
and his wife.
Q And do you
know what her name is?
A Wanda Siers.
{772}
Q All right.
Do you recall anybody else being there that morning?
A No.
Q All right.
Did you see anybody leave in any of the vehicles that morning?
A No.
Q Were there
vehicles that were in the tent area that people used from time to time?
A Yes.
Q And would
you tell us what those vehicles were?
A Black and
green Ford Galaxie and a red and white van.
Q All right.
And who was it that drove the red and white van?
A I don't
know. I think it was Peltier.
Q And do you
know who the red and white van belonged to?
A Peltier.
Q All right.
And who was it that drove the other car, the Ford that you've referred to
most of the time?
A I don't
know.
Q All right.
But were there any other cars other than these two that were normally down
in the tent area?
A No.
Q All right.
Now, I want to direct you now to tell us in your own words what happened
while you were at the Wanda Siers' residence.
{773}
A I was there
and I went and ate breakfast there in the morning, and then they came back
in the red and white van.
Q Who was it
when you say "they"?
A Leonard
Peltier and Joe Stuntz and Norman Charles I think it was.
Q All right.
The three came back in the red and white van you say?
A Yes.
Q And what if
anything happened following their coming back in the red and white van?
Just tell us in your own words.
A They stopped
over at Little's place and started talking; and I was sitting on top of
the roof and then those two FBI agents' cars were coming. So they all
hopped in the van and went down the hill.
Q And what if
anything happened next?
A The FBI
agents stopped over at June Little's place and asked if Jimmy Eagle was
around. Then they seen the van going down the hill and they followed it.
Q All right.
Then what if anything happened next?
A I don't
know. I was behind the house.
Q All right.
You were at what point as you look at the map here, would you point out to
where it was that you were on top of the house.
A Right here
(indicating).
Q All right.
And show us the direction, tell the jury where {774} the red and white van
came from and where it stopped with the three men.
A I don't
remember which way they came in.
Q All right.
Where did you first see it?
A Coming in
about right here (indicating).
Q All right.
And you indicated they stopped; is that right?
A Yes.
Q And then
where did they go from there?
A They stopped
here and went around this way and down this way (indicating).
Q All right.
And it was at that time you say that you saw the FBI cars come; is that
right?
A Yes.
Q And where
did they go?
A They came
around this way (indicating).
Q And did they
stop?
A Yes.
Q And what if
anything took place at that time?
A He just
asked June Little if Jimmy Eagle was around.
Q And what if
anything then happened?
A Well, I
guess they seen the orange pickup going down that way and they followed
it.
Q Now, when
you say "orange pickup," is that the red and white van to which --
MR. LOWE:
Objection, Your Honor. That's objectional, {775} it's an outrageously
leading question and I object and ask that the jury be instructed, and
counsel be admonished. He knows very well what he's doing .
THE COURT: The
objection is sustained.
Q (By Mr.
Hultman) Mr. Anderson, you just saw one vehicle come down the --
MR. LOWE:
Objection, Your Honor, that's a leading question. Again he's putting words
in this witness's mouth. If he wants to put a script, let him hand him
one.
Q (By Mr.
Hultman) Mr. Anderson, tell us what the car was --
THE COURT:
Sustained.
A The orange
and white and red and white van, that was going down the hill.
Q (By Mr.
Hultman) And had you see that car before?
A Yes.
Q And whose
car was that?
A Leonard
Peltier's.
Q All right.
Who was in it at this particular time?
A Peltier and
Charles and Stuntz.
Q All right.
Now, where did they then go?
A Down the
hill.
Q And where
did they go from there?
A They parked
beside the fence.
Q Would you
show us on the map where it was they parked.
A About right
here (indicating).
{776}
Q All right.
Let me mark a "P" right here (indicating).
All right. So
would you trace for the jury the direction that the vehicle that you've
been describing went starting at Wanda Siers' residence and to where it
stopped. Would you trace that part for me.
A Right around
here (indicating) through to there (indicating).
Q All right.
What if anything did you see next?
A I saw
everybody hop out.
Q And what if
anything did you see next?
A FBI agents
went down the hill.
Q All right.
What if anything did you see next?
A I don't
know.
Q Did you hear
anything?
A Yes.
Q And what did
you hear?
A Gunfire.
Q And would
you, you indicated you heard the gunfire, but you didn't see the gunfire;
is that correct?
A Yes.
Q All right.
Would you explain to the jury in your words what was the sound, the nature
of the sounds, or describe it that you heard.
A It's about
four rounds going off.
Q And would
you describe what they sounded like to you.
A No, I can't.
{777}
It's one after
the other, about four of them. Four shots, one after the other.
Q Were they
close together?
A No.
Q All right.
Did you, what if anything did you do next?
A I just ran
back around and went back down to tent city.
Q Now, where
did you see the FBI cars before you started to run? Where were the FBI
cars?
A Down the
hill.
Q All right.
And will you, looking at Government's Exhibit No. 71, would you indicate
where it was that you last saw the FBI cars.
A Right down
here (indicating).
Q All right.
MR. HULTMAN:
Let the record show that the witness has pointed out the location as
indicated by the objects on the map.
Q (By Mr.
Hultman) How many FBI cars were there?
A Two.
Q All right.
Did you see, or when they stopped at Wanda Siers', how many agents there
were?
A One in each
car.
Q One in each
car, all right.
Had you ever
seen those agents before?
A Yes.
{778}
Q When did you
see them before?
A The night
before they picked us up.
Q Was that the
same two agents?
A Yes.
Q They picked
you up the night before. That's the same two agents that had asked you
about whether you knew Jimmy Eagle or where he might be; is that right?
A Yes.
Q All right.
Now, you stated you then proceeded to go where?
A Around back
down to tent.
Q All right.
Would you again, taking the pointer, starting at the Wanda Siers'
residence, and show the jury the route that you took.
A I ran around
this way, around behind this house right here (indicating), around there
and moved this way and then over this hill and down.
Q All right.
And what if anything did you do there?
A I just
picked up a rifle.
Q And what
kind of a rifle, if you recall, did you pick up?
A 22 single
shot.
Q All right.
And what if anything did you do then?
A I ran back
up the hill.
Q All right.
And where did you run to, can you show us where {779} on top of the hill
that you ran to.
A Right
through this way, through here, came up this way and came out right here,
and here up on this hill, here and ran over here (indicating).
Q All right.
And to which house, as you are pointing out on Exhibit 71 what house did
you run to if you recall?
A I think it
was the white house.
Q And do you
know whose house that is, by any other name?
A Harry
Jumping Bull's.
Q All right.
And had you been there before?
A Yes.
Q During this
time that you were there, all right.
Now, who was
there if anybody when you got back up to the white house, Harry Jumping
Bull's?
A Charles and
Brown and Stuntz.
Q Charles and
Brown and Stuntz?
A Yes.
Q And where
were they if you recall? Let's take them individually. Do you remember
where Charles was?
A I think he
was by the white house there.
Q All right.
And where was Stuntz?
A By the green
shack.
Q Would you
point again with the pointer the buildings to which you are referring if
you do see it represented on Government Exhibit 71.
{780}
A Right here
(indicating).
Q All right.
MR. HULTMAN:
Let the record show that is the house on the extreme right as you are
viewing Exhibit 71.
Q (By Mr.
Hultman) Do you know who lived there?
A Ivis. Ivis
Long Visitor.
Q All right.
And do you know what his wife's name is?
A Angie.
Q All right.
And where was the third person to whom you just mentioned?
A I think he
was at the white house, too.
Q All right.
And who was that?
A Norman
Brown.
Q All right.
Now, did each of these three individuals or any of them have weapons?
A Yes.
Q And would
you describe what kind of weapons as you best recall that each of them
had.
A Norman Brown
had a 22 rifle, and I think Stuntz had that 44 Ruger, and Charles had that
308 British.
Q All right.
Had you seen these weapons before?
A Yes.
Q All right.
And where had you seen them?
A Down in the
tent area.
Q Now, when
you refer to Charles and the 308 Ruger, I'm going {781} to show you what's
Government's Exhibit No. 69A and ask you whether or not it resembled this
particular weapon?
A Yes.
Q All right.
You don't know whether or not this is the exact weapon or not?
A No.
Q All right.
Now, what did you then do?
A Started
shooting.
Q All right.
And where were you shooting?
A Down at the
cars.
Q All right.
Was there, did you indicate at any particular time were there any cars
coming in from the highway at this time?
A Yes.
Q And would
you point out on Government's Exhibit 18 where it was that these cars were
coming in.
MR. LOWE:
Referring to Government's Exhibit 71?
MR. HULTMAN:
I'm sorry, Government's Exhibit 71. I'm sorry. Thank you, Counsel.
Q (By Mr.
Hultman) Would you point out to the jury where it was the cars you are
referring to were coming in on that were shooting at?
A Right here
(indicating).
Q All right.
Now, do you remember what kind of a car it was at all?
{782}
A No.
Q Was there
more than one car?
A No.
Q What if
anything did that car do once you started shooting at it?
A Stopped and
backed out of there.
Q All right.
And where did he end up, could you still see him after he tried to back
out?
A No.
Q All right.
So he came in and when you started shooting at him he backed back out; is
that right?
A Yes.
Q Would you
show us approximately what direction he went back out again?
A I don't
know. He just backed up, backed out like that. I don't know.
Q All right.
Now, did you look at any time down the hill to where the agents' cars were
when you last saw them before you ran to tent city and got your weapon?
A Yes.
Q And what
was, what did you see the first time you looked down there when you were
up on the hill firing?
A One guy was
behind the trunk shooting a rifle, and the other one had a pistol.
Q All right.
Now, as you looked down the hill to the two {783} agents' cars as you are
looking down the hill at me at this moment, which car, was there anything
about the two cars that you recall that was different, one from the other?
A They were
parked different ways.
Q All right.
Would you tell us how the two cars were?
A One was
parked straight towards me and the other one was kind of sideways.
Q All right.
And as you looked at them on which side was the one that was pointed or
parked straight at you?
A On the right
-- on the left side.
Q All right.
And do you remember anything about that particular car?
A The trunk
was open.
Q All right.
So that if you looked at it, it was, you were looking straight at the
front of the car; is that correct, it was pointed up the hill at you?
A Yes.
Q And trunk
was open?
A (No
response.)
Q Now, where
was any of the two men that you observed, that you saw with relationship
to that car?
A Behind the
car.
Q And where
with relationship to the trunk?
A Behind the
trunk.
Q All right.
Now, where was the other man?
{784}
A Behind his
car.
Q And what
kind of a weapon did he have?
A Pistol.
Q And it was
the man then behind the trunk that had the other weapon; is that correct?
A Yes.
Q All right.
Now, did you continue firing toward the cars that were coming into the
Jumping Bull property?
A Yes.
Q All right.
And where were you located at this time?
A By the log
cabin.
Q All right.
Now, did you have an occasion to at a later time look down to where the
two men at the bottom of the hill were?
A Yes.
Q And what did
you see at that particular time, the second time that you looked down the
hill?
A One of them
was hit.
Q Do you
remember anything about the looks of the two?
A One had no
shirt on.
Q One of them
had no shirt on.
You said one
of them was hit. How do you know one of them was hit?
A I don't
know. I guess the guy with the shirt off was trying to help him, bandage
him up or something.{785}
Q Were both of
the men standing at this particular time?
A One was.
Q One was.
Which one was standing?
A I don't
know.
Q All right.
But one of them was standing and one was not standing. Could you tell the
jury what kind of a position the second one was in?
{786}
A No.
Q But he was
not standing?
A No.
Q Now did you
have another occasion to -- I withdraw the question. I'll restate it.
Did you stay
at the very same position up on the hill by the white house all of the
time you were doing the firing that you've referred to?
A No.
Q Would you
tell us where you moved to?
A I just kept
on running back and forth.
Q And you kept
running back and forth to where?
A Log cabin.
Q So that you
were running back and forth between the white house and the log cabin, is
that correct?
A Yes.
Q Would you
point out to the jury, if you can, on Government's Exhibit 71 where the
log cabin is that you are referring to?
A Right here
(indicating).
MR. HULTMAN:
Let the record show that the witness has pointed out the residence that
has been referred to as the log cabin.
Q (By Mr.
Hultman) Did you continue to fire out at the highway and at any vehicles
out there?
A Yes.
{787}
Q Now during
the course of the time we're talking about, did you see anybody over in
the tree line alongside of the area that you're referring to?
A No.
Q Did you see
Mr. Peltier at any time?
A Yes.
Q And where
was it that you saw him?
A In the tree
line.
Q Would you
show us on the map where it was, where it was that you saw Mr. Peltier.
A It was over
here (indicating).
Q And what was
he doing?
A I don't
know.
Q Did you see
him at any other place?
A No.
Q I'm going to
mark here on the map, would you point out again so I make sure I place
where it is that you pointed on the map.
A Right here
(indicating).
Q Where Mr.
Peltier was located.
MR. HULTMAN:
I'm going to write that as "P1," and let the record so indicate.
Q (By Mr.
Hultman) Now when is the next time that you looked down to where the
agents' cars were? What did you see at the next time you looked down to
the agents' cars?
{788}
A Nobody.
Q Was anything
going on at that time?
A No.
Q Did you see
any individuals down at the agents' cars at any time?
A Yes.
Q And tell us
who it was you saw at the agents' cars.
A Butler,
Robideau and Peltier.
Q And did they
have weapons with them?
A Yes.
Q Would you
tell us starting with Mr. Peltier what kind of a weapon he had?
A AR.
Q And how do
you know it's an AR?
A Because of
the handle.
Q Had you seen
that weapon before?
A Yes.
Q And where
had you seen it before?
A Down in the
tents.
Q Who had you
seen it with in the tent area?
A I seen it
laying around.
Q Now I'm
going to show you here what has been marked as Government's Exhibit No.
34AA and I just want to ask you whether or not the weapon you have just
been describing was a weapon like this?
{789}
A Yes.
Q And you
referred that it had a handle of some kind, is that correct?
A Yes.
Q To what are
you referring to?
A The handle
there (indicating).
Q Handle here
(indicating)?
A Yes.
Q You don't
know whether or not this is the weapon he had there, is that right?
A Right.
Q But it was
one like this?
A Yes.
Q Is this what
you're telling the jury?
A Yes.
Q And you had
seen it on other occasions there?
A Yes.
Q Now who was
the second person that you saw down at the car?
A Butler.
Q And did he
have a weapon?
A Yes.
Q And what
kind of a weapon did he have?
A M1.
Q And had you
seen an M1 before?
A Yes.
{790}
Q And where
did you see an M1 before?
A Down at the
camp.
Q Do you know
what an M1 is?
A Yes.
Q Did you know
what an M1 one was at that time?
A Yes.
Q Had you seen
one before?
A Yes.
Q I'm going to
show you now what has been marked as Government's Exhibit No. 29 and ask
you to tell the jury what kind of a weapon this is.
A M1.
Q And was it a
weapon like this that you saw Mr. Butler with, down where the two agents
were?
A Yes.
Q You don't
know whether or not it was this weapon, do you?
A I don't
know.
Q Now you say
there was a third person there. Who was the third person?
A Robideau.
Q And did he
have a weapon?
A Yes.
Q Do you know
what kind of a weapon it was?
A No.
Q Could you
describe whether or not it was a long rifle or a {791} pistol?
A I don't
know.
Q You just
remember he had a weapon and that's all, is that correct?
A Yes.
Q Now did you
have an occasion later to look down to the area of where the two cars and
the agents were?
A Yes.
Q And what did
you observe at that time down at the cars where the agents were?
A I don't
know.
Q Pardon?
A I don't
know. I didn't see.
Q Did you see
any agents at that time?
A No.
Q What if
anything did you then do?
A We ran back
down to the camp.
Q Now during
this period of time were you ever down where the agents' cars were?
A No.
Q You were up
on the hill, is that correct?
A Yes.
Q And what was
it that you were doing during the time that you were up on the hill? You
indicated earlier by previous testimony that you had been firing towards
Highway 18 or where {792} other cars were, is that right?
A Yes.
Q Did you do
anything other than that during this time that you were on the hill?
A No.
Q Now when you
left the hill and went back to the tent area, who was there as you best
recall when you got back there?
A The girls
and Jimmy and Leonard.
Q And what if
anything took place back there?
A Leonard told
me, "Load up the van."
Q And when he
referred to the van, what vehicle was it that he was referring to?
A The red and
white van.
Q What if
anything did you do?
A I loaded up
the van.
Q And do you
remember what you loaded it up with?
A Sleeping
bags, electrical equipment.
Q And when you
referred to electrical equipment, could you describe it in any other
words?
A Radios.
Q For the
jury.
Radios?
A Yes.
Q And was
there some equipment with the radios themselves?
A Yes.
{793}
Q And would
you describe to the jury what it was?
A Big steel
boxes.
Q And do the
radios go into those boxes?
A I don't
know. I think so.
Q Now what if
anything happened next in the tent area?
A Well, loaded
up the van and we were going to make a run for it on out through the
roadblocks.
Q Who
indicated you were going to make a run for it?
A Peltier.
Q And what if
anything happened next?
A Well, we
decided not to do it.
Q Who was it
that -- was everybody in favor of making a run for it?
A No.
Q Who wasn't
in favor of making a run for it?
A I don't
know. All the rest of us I guess.
Q Did you so
indicate to Leonard that point of view?
A No.
Q Did anybody?
A No.
Q What if
anything then happened?
A Well, we
just decided to go out on foot.
Q And did all
of you that were in the tent area then go out on foot?
A Yes.
{794}
Q Would you
tell us who the people were that were there at the time we're talking
about, starting first with the men.
A Leonard,
Norman Brown, Norman Charles, Dino and Bob and myself and Jimmy Zimmerman.
Q Jimmy
Zimmerman?
A Yes.
Q And what
girls were there?
A Mela, Lynn
and Jeannie.
Q Now did
Jimmy Zimmerman go out with you?
A No.
Q What
happened to Jimmy Zimmerman?
A He stayed
there.
Q And what if
anything did you then do?
A We walked
out.
Q And would
you tell us whether or not there were any other cars in the tent area that
you saw before you left to go out?
A No.
Q As I recall
your earlier testimony, you indicated that the red and white van was in
this general vicinity where I marked a "P", is that correct?
A Yes.
Q Did you see
it at any other place later in the day, the red and white van?
A Down in the
camp.
Q And is that
the same red and white van that you're referring {795} to with reference
to loading it up?
A Yes.
THE COURT: The
court will recess until 11:25.
(Recess
taken.)
{796}
(Recess
taken.)
(Whereupon,
the following proceedings were had out of the presence and hearing of the
jury, the Defendant being present in person:)
THE COURT: You
may bring in the jury.
(Whereupon, at
11:26 o'clock, a.m., the jury returned to the courtroom and the following
further proceedings were had in the presence and hearing of the jury:)
THE COURT: You
may proceed.
MR. HULTMAN:
May it please the Court.
Q (By Mr.
Hultman) Mike, I want to show you what has been marked as Government's
Exhibit 12, and ask you whether or not you recognize the vehicle that's
portrayed there in that photograph?
A Yes.
Q And would
you tell the jury what it is?
A It is a van.
Q And what
color is the van?
A Red and
white.
Q And is that
the same van that you have been talking about in your testimony?
A Yes.
Q And now I am
going to show you what has been marked as Government's Exhibit 13-B, and
ask you whether or not you have ever seen that vehicle before?
{797}
A Yes.
Q And would
you tell us where it was that you saw it the last time?
A Down to the
camp.
Q And what
kind of a vehicle is that?
A It is a
Ford.
Q And is that
the -- excuse me?
A Ford Galaxy.
Q And is that
the one you have been testifying to?
A Yes.
Q And are
these two photos I have given you and the two vehicles represented there,
the two vehicles that you indicated were down in the tent city area?
A Yes.
Q All right.
Now, I am going to show you some photographs that have been marked as
Government's Exhibit 55, and two pages of photographs, Page 36 -- first of
all, these have been introduced into evidence here, and I want you to look
at Page 36. Have you ever seen this before, have you ever seen these
photos or this album before?
A No.
Q So you are
seeing them for the first time then?
A Yes.
Q Would you
tell me if you recognize what the object is, the major object that's on
Page 36?
{798}
A The van.
Q And is that
the same van to which you have been testifying?
A Yes.
Q Now, I am
going to show you what has been marked as Government's Exhibit -- Page 37
of Government's Exhibit 55, and there are a number of objects that are
portrayed there; and first of all, I am going to ask you, have you ever
seen the photographs before this very moment?
A No.
Q So you are
seeing them for the first time?
A Yes.
Q I want you
to look at them closely, and then I am going to ask you whether or not
there is anything in those photos that you have seen before?
A Yes.
Q All right.
Would you tell us, starting with any one photograph, what it is you
recognize?
A This stuff I
loaded up in the van.
Q All right.
So that the things that are portrayed in each of these photographs are the
things that you were loading up in the van you testified to?
A Yes.
Q All right.
Would you tell me in looking at Photograph E, what it is that you loaded
up, do you remember what that is?
A Radio.
{799}
Q All right,
and if you look at Photograph F, and tell the jury what that is?
A Tire.
Q And do you
remember anything about the tire?
A The van
there.
Q Do you know
where it came from?
A No.
Q Do you
remember anything, about anything on the tire?
A No.
Q All right.
What are the objects that are portrayed in Photograph D, if you know.
A The antenna.
Q All right.
What were those antennas used for, if you know?
A The radio.
Q And how tall
are those antennas when you put them together.
A I don't
know.
Q You never
put them together?
A No.
Q All right.
Can you tell me what the objects are in Photograph A?
A No.
Q You don't
recognize them as to what they are, is that right?
A Unh-unh.
Q All right.
What about in Photograph B? This is Photograph {800} B here (indicating).
Q You don't
recognize anything there. What about on Photograph C?
A No.
Q Now, would
you explain to the jury where you went after you left the Tent City, where
did you go upon leaving the tent area?
A Followed the
river out.
Q All right,
and would you indicate on Government's Exhibit 71 there with the pointer
approximately where the river is and the direction that you went; would
you take the pointer and point out for the jury?
A (Indicating)
Be down this way.
Q All right,
and did you generally follow the river itself?
A Yes.
Q Now, who was
with you when you followed the river?
A Everybody.
Q All of those
that you have mentioned before, is that right?
A Yes.
Q Was Jimmy
Zimmerman with you?
A No.
Q All right.
What happened to Jimmy Zimmerman?
A He stayed at
the tent.
Q All right,
and where the last time you saw Jimmy Zimmerman there, where was he?
{801}
A In the tent.
Q Now, when
you left, would you tell us what anybody took out with them, do you
remember?
A No.
Q Did anybody
take anything with them?
A No ? I don't
remember.
Q Did you take
anything with you?
A Yes.
Q And what was
it that you took with you?
A A Ruger .44.
Q A .44 Ruger?
A Yes.
Q All right. I
want to show you what has been marked as Government's Exhibit 33-A, and
ask you whether or not you recognize this particular weapon?
A Yes.
Q And how is
it that you recognize it?
A The crack.
Q And would
you point out to the jury the crack to which you are testifying?
A
(Indicating).
Q All right.
Where was it that you saw this weapon the first time, as you best recall?
A Down at the
camp.
Q And where
was it that you saw it -- did you see it on the {802} 26th of June, the
day we have been talking about?
A Yes.
Q Where was it
that you first saw it on the 26th of June?
A Stuntz had
it.
Q And where --
was that Joe Stuntz?
A Yes.
Q And where
was Joe Stuntz when you saw him with this particular weapon?
A Upon the
hill.
Q And was this
during the time that you were up on the hill doing the firing?
A Yes.
Q All right,
and what, if anything, happened to this weapon during the afternoon that
you know of your own knowledge. if anything?
A I don't
know. It didn't work so he took it back down to the camp.
Q All right,
and did he come back with another weapon then of some kind?
A Yes.
Q What kind of
a weapon, if you know, did he come back with after taking this one back
down to the camp?
A 30, 30.
Q All right.
When was the last time that you -- did you see that 30-30 later in the
afternoon?
{803}
A No.
Q All right.
Did you see it when all of you that you referred to went out along the
river?
A No.
Q Anybody have
it with them at that time?
A No.
Q All right,
but you took this particular weapon out with you when you left?
A Yes.
Q All right.
Is there any question in your mind about that at all?
A No.
Q Now, did
Wish Draper carry anything out with him?
A I don't
know.
Q Do you
remember anybody carrying --
MR. LOWE:
(Interrupting) I did not hear the response, whether it was "no" or "I
don't know". He was very inaudible with his hand in front of his mouth.
THE COURT:
Repeat your answer.
THE WITNESS:
No.
Q (By Mr.
Hultman) All right. Do you recall Robideau, Bob Robideau carrying any
weapons out?
A I can't
remember.
Q All right.
Do you remember any other weapons at all --
A
(Interrupting) No.
{804}
Q (Continuing)
-- being carried out?
A No.
Q Do you
remember any pistols of any kind being carried out?
A No.
MR. LOWE: Your
Honor, he just said he didn't remember any weapons being carried out.
That's the second time he asked him. I object to questions that have been
answered already.
THE COURT:
Sustained.
Q (By Mr.
Hultman) Did you see any weapons at a later time?
A Yes.
Q All right.
Would you tell me where it was you saw some weapons?
A Going up the
hill.
Q All right,
and what weapons did you see at that time?
A A.R., and I
don't know -- I can't remember the others.
Q All right,
who had the A.R.?
A Peltier.
Q And was that
the same weapon that you had -- was it a similar type of weapon that you
had seen with him earlier in the day?
A Yes.
Q All right,
and was it similar to the weapon that you saw that he had at the time he
was down at the car where the agents were?
{805}
A Yes.
Q All right.
Do you remember any other weapons that anybody had in going up the hill?
A Robideau had
a shotgun and a pump gun.
Q All right. A
shotgun and a pump gun.
Had you seen
the shotgun or the pump gun before?
A No.
Q I am going
to show you what has been marked as Government's Exhibit 36-A, and I just
simply want to ask you whether or not the shotgun that you saw in any way
resembled this shotgun that I have in front of me now?
A Yes.
Q And in what
way, as you recall, does it resemble the shotgun?
A Padding.
Q First the
pad, is that right?
A Yes.
Q Is there
anything else?
A No.
Q Is it the
general size and shape of the shotgun that you were referring to now?
A Yes.
Q But you
didn't know whether or not this is the particular shotgun, is that right?
A Yes.
{806}
Q All right.
Now, I am going to show you what has been marked as Government's Exhibit
No. 30-AA, and ask you whether or not you have seen a weapon similar to
this or one that looks of this general description?
A Yes.
Q And where
was it that you saw one?
A Robideau was
carrying it.
Q And is that
the time that you were referring to now?
A Yes.
Q Had you seen
that weapon or the shotgun at any time prior to when you were going up the
hill?
A No.
Q All right.
You had never seen it in the camp at any time?
A No.
Q Or anybody
with it?
A No.
Q Now, would
you tell us, Mike, what happened as you went down the stream, tell us the
route that you left by after you left Tent City and the tent area and went
down the stream, just in your own words?
A Well, across
the stream and followed it part of the way, and we left and walked towards
the road, the dirt road. Crawled under a tunnel, went through a tunnel.
{807}
Q All right.
Was there a road that went over the tunnel?
A Yes.
Q That's how
you passed the road by crawling under a tunnel; is that right?
A Yes.
Q Now, where
was that tunnel, if we would look for a moment at Government's Exhibit 71,
which is the Jumping Bull property and tent city to the right, would you
show the jury in what general direction it is that the tunnel is located.
You say you went down the stream; is that correct?
A Yes.
Q And would
you just, if you can't see it on the map, just show us approximately what
direction it would be where that tunnel was located.
A Here in the
corner way up here (indicating).
Q Now, does
that tunnel go under Highway 18, or does it go under another road?
A Under
another road.
Q All right.
Now, what if anything happened after you crossed through the tunnel?
A We went up
the hill.
Q And what if
anything happened as you were going up the hill?
A I guess
somebody spotted us and starting shooting at us.
Q And what if
anything happened next?
{808}
A Returned the
fire.
Q And did you
do any firing at that time with the 44 Ruger?
A Yes.
Q All right.
And what happened next?
A We just ran
up the hill.
Q Did others
fire, too, along with you?
A I don't
know.
Q All right.
So you ran up the hill?
A Yes.
Q And what
happened next?
A We stayed up
on the hill.
Q And were all
of the people in a group during this period of time that you are referring
to?
A No.
Q All right.
Tell us who was with you and who wasn't specifically with you.
A Well, I
don't remember.
Q All right.
Did you all go the same general direction?
A Yes.
Q All right.
But not all together at one time, is that what you are saying?
A Yes.
Q Or you tell
me what it is.
A Well, some
of us went in and some of us went up this way (indicating).
{809}
Q All right.
But then did you end up together at a little later time?
A Yes.
Q All right.
Now, tell us what you did next after going up the hill and all of you
getting back together again.
A Well, we
just hid under the trees and stayed there for a while.
Q And where
did you go next?
A We just got
up and kept on walking. Stayed under the tree line.
Q All right.
And where did you go to that night?
A We went out,
went out and went across Highway 18 up into the hills.
Q All right.
And what if anything did you do that night?
A Stayed out,
stayed out in the night time.
Q All right.
And what did you do the next day?
A We just
slept under the trees and hid.
Q And where
did you spend that night?
A Outside
again.
Q Did you at
any time go to anybody's house or cabin or any property that, during the
time that you were up in the hills?
A That was the
first night.
Q All right.
And do you recall, tell the jury what it is you remember about that night.
{810}
A We met Ted
Lame and he took us to this place behind June Little's place, father's
place, up into the hills.
Q And did all
of you go there?
A Yes.
Q All right.
And you stayed there that evening; is that right?
A Yes.
Q Who was
there? You said Ted Lame picked you up. Who was at the house that you went
to? Was there anybody there?
A No. Just an
old man.
Q Just an old
man?
A Yes.
Q Do you
remember anything about the old man?
A He was old.
Q And he was
alone; is that right?
A Yes.
Q Did you know
what his name was at all?
A No.
Q Did anybody
else there know or seem to know who the old man was?
A No.
Q All right.
Now did you stay any other places during the time that you were up in the
hills?
A No.
Q All right.
About how long did you remain up in the hills?
{811}
A About four
days I think.
Q All right.
Did you go to any other house during the four days?
A Yes.
Q And do you
know whose house that was?
A No.
Q Would you
describe the people that were there.
A A lady and
three girls.
Q And were
there any men there at all?
A No.
Q And how long
did you stay there?
A One night.
Q And where
did you then go from there? Where did you go from the house with the lady
and the three girls?
A I don't
remember.
Q All right.
Did you ultimately, after the four days, go somewhere else other than up
in the hills?
A Yes.
Q And where
was it that you went?
A Bear
Runner's.
Q And how did
you get to Bear Runner's?
A I don't
know. Just some car picked us up and took us over there.
Q All right.
Now, do you know was Bear Runner there?
A Who?
{812}
Q When you
went to Bear Runner's house who was there at Bear Runner's house?
A I think it
was an old man.
Q Pardon?
A The dad.
Q Do you know
what his name was at all?
A No.
Q Had you ever
seen him before?
A No.
Q And who went
with you in the car to go to Bear Runner's? Who was with you when you went
to Bear Runner's in a car?
A It was those
younger guys and the girls.
Q All right.
And when you refer to the "younger guys and the girls" would you tell the
jury who those people are that you are referring to.
A Norman
Charles and Norman Brown, Wish and me.
Q And then
which of the girls? Who were the girls?
A Jeannie,
Mela, Lynn.
Q All right.
Now I take it then that Mr. Peltier did not go with you?
A No.
Q When did he
leave?
A I don't
know.
Q All right.
Was he there when you left, or do you recall?
A Yeah, he was
there.
{813}
Q All right.
Now, I want to take you back just for a moment to the time when you were
on the hill shooting. About how long a period of time were you on the hill
itself shooting?
A I don't
know. I didn't have no time.
Q You didn't
keep any times as such; is that right?
A Yes.
Q Could you in
any way give an approximation just in general terms of about how long at
the most --
MR. LOWE: Your
Honor, the witness said he didn't know, he didn't have any watch. I object
to his answer already.
MR. HULTMAN:
If it please Your Honor --
THE COURT: He
may answer as to whether he can approximate the time.
Q (By Mr.
Hultman) I'm referring, so that the witness understands the question, the
total amount of time, not a specific time, but a total amount of time
approximately if you can give me an estimate on how long you were up on
top of the hill in the area of the green house and the white house and the
log house when firing was going on.
A About twenty
minutes.
Q All right.
This is about the total maximum time that you were up on the hill?
A Yes.
MR. LOWE:
Objection, Your Honor. He's putting words in the witness's mouth. Again I
ask the Court to instruct {814} counsel not to lead the witness in this
manner.
THE COURT: The
objection is sustained. The last question and answer will be stricken.
Q (By Mr.
Hultman) Where did you go after the period of time that you, by the
previous question and response, gave to me and to the jury, where did you
go from there? From the top of the hill where did you then go?
A Back to
camp.
Q And
approximately how long a total period of time were you down in the camp
area?
A About an
hour.
Q And did you,
during this period of time you referred to, the total time that you were
on the hill, did you at any time go back and forth between the hill and
the tent area?
A I don't
remember.
Q All right.
Mr. Anderson, I'm going to show you what has been marked as Defendant's
Exhibit 62C.
MR. LOWE: May
we approach, Your Honor?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. LOWE: I
object to the introduction of any inference concerning certain incidents
at which an automobile exploded.
THE COURT:
Excuse me. State that again.
{815}
MR. LOWE: We
object to the introduction of evidence, particularly pictures concerning
an incident in which an automobile exploded strewing the weapons and
grenades and other items on the highway.
Mike Anderson
was in that car, but it's highly prejudicial information. It's not
relevant that Leonard Peltier was not there. They're willing to stipulate,
and we've already indicated that we will stipulate chain of custody of
weapons. There's no contest on that. In fact, that's one stipulation that
the Government has accepted.
We believe
that the information is relevant. Even if it were relevant the probative
value is far outweighed by the prejudice, and we feel for these reasons
that this information is not information that should go into evidence in
this trial.
MR. HULTMAN:
Are you finished yet?
MR. LOWE: I
think basically.
MR. HULTMAN:
Your Honor, the reason for the production of these exhibits and so the
Court might know, is that we believe, it's extremely relevant, and it is
of a probative value, specific weapons that were carried and handled. In
fact, the last two, as an illustration, one of which, Your Honor, is
ultimately traced to this event that is transpiring here, and in the
postion [Transcriber's note: "possession" intended?] again of people who
he has testified to just a few moments ago, and what weapons they had when
they left.
{816}
We feel its
probative value is evident for a number of reasons. First of all, because
it clearly ties into the weapons. One in particular, that's a weapon the
agent himself, one of the two who are deceased, and whose weapon was taken
at the scene. It also is of --
THE COURT:
Excuse me. You say that the evidence will show that one of the agents'
weapons was recovered?
MR. HULTMAN:
Isn't that correct?
MR. SIKMA:
That's correct.
MR. LOWE:
That's already been stipulated to.
MR. HULTMAN:
Okay. And also another of the weapons that was fired in this particular
area that particular day at Coler's car is one of the weapons that was in.
Plus the individuals who are here are likewise, not in every instance, but
in more than one the same people to which has been testified here.
THE COURT: Are
you going to specifically tie up one of the weapons that was fired at the
--
MR. HULTMAN:
That is correct, that is correct, Your Honor.
MR. SIKMA: Two
of them.
THE COURT: Two
of them?
MR. SIKMA: The
agent's gun, Special Agent Coler's gun. They've stipulated that it's his
gun and one of the guns that was fired in the area of the vehicle was in
this car as recovered {817} and tested by ballistics to show that that gun
was fired at the scene of the crime right near the agents' cars.
THE COURT And
what individuals are associated with that car?
MR. SIKMA:
Robideau, this individual, this witness and one other individual was with
them I believe.
MR. HULTMAN:
At least two. I can't remember for certain, Your Honor. I wouldn't want to
put more than two on the record. But two of the people that this defendant
has testified, including himself.
THE COURT: And
what is your objection to that?
MR. LOWE:
Well, our objection is first of all that we have entered into a
stipulation already on chain of custody. There is no dispute. The can
state that those weapons were found in Wichita; but knowing all of the
details of the problem of the other objects found, they are not relevant,
particularly where Mr. Peltier himself had nothing to do with this. He was
not present.
They're
obviously trying to inflame the jury with registration of explosives, of
grenades, of a lot of irrelevant weapons that were present there.
We have no
objection to stipulating. As a matter of fact they've accepted our
stipulation on chain of custody of these weapons. I don't think there's
any basis for them putting this in except to inflame and prejudice the
jury. There's {818} simple no ther basis for that.
We'll
stipulate that the weapon was there and they know we've, we'll stipulate
to chain of custody. We'll stipulate to the identity of the people if they
want, but Mr. Peltier was not present.
THE COURT:
You've made you record. The Court's ruling on this will be the same on the
other pictorial evidence, that it is relevant and the jury is entitled to
know the facts, and the objection is overruled.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
preence of the jury:
Q (By Mr.
Hultman) Mr. Anderson, I am going to show you what has been marked as
Government's Exhibit 62. They are some photographs and I want you to just
take a moment and look. First of all, I want to ask you whether or not
you've ever seen the photographs before this very moment?
A No.
Q All right.
Now, I want you to look at each of the photographs, and without
responding, first I want you to look at them before saying anything.
Now, I want to
ask you first whether or not you have ever seen the scenes that are
portrayed there. Do you recognize anything?
{819}
A No.
Q You don't
recognize anything there at all?
A Yes, I do.
Q Would you
tell the jury what it is you recognize.
A Station
wagon.
Q How is it
that you recognize the sation wagon? Are you now referring to the station
wagon that was portrayed on page 2 of this exhibit?
A Yes.
Q That's what
we're now looking at.
Tell us how it
is that you recognize this station wagon?
A All burned
up.
Q And did you
see it in this general condition?
A Yes.
Q And would
you tell us where it was that you saw it and what was the occasion?
A Oklahoma.
Q About when
was this?
A It was
somewhere in Kansas.
Q Somewhere in
Kansas?
A Yes.
Q Would you
tell the jury a few words why it is you recognized the station wagon?
A I don't
know, because I noticed it.
Q Were you in
the station wagon?
{820}
A Yes.
Q Tell us
where was it that you left from in this station wagon?
A The back
seat.
Q And what
area or what town did you leave in this station wagon?
A In South
Dakota.
Q And about
when would that have been?
A I don't
remember.
Q Was it
sometime after the events that we have been talking about here on the 26th
of June of 1975?
A Yes.
Q Who was with
you when you left in the station wagon?
A Bob Robideau,
Bernie and Darlene, Norman Charles, Keith, Jeannie and I.
Q Now of the
men that you have been referring to in that group, which of those
individuals are the same people that you have been referring to in
testimony here today back on the 26th of June, would you tell me which
ones of those people?
A Bob and
Norman.
Q And it's Bob
who?
A Robideau.
Q And Norman,
do you know his last name?
A Charles.
Q Norman
Charles. Anybody else?
{821}
A And myself.
Q And
yourself.
Now tell the
jury what happened here.
A I don't
know. The car just started smoking and we stopped and started blowing up.
Q Who loaded
the car to go down there?
Where were you
going, by the way?
A I don't
know.
Q Who loaded
the car?
A I don't
know. I did I guess.
Q Pardon?
A I did I
guess.
Q I'm going to
show you now what has been marked as page 10 of Government's Exhibit 62
and ask you whether or not you recognize the objects that are there?
A No.
Q You don't
recognize them at all?
A (Witness
nods negatively.)
Q Let me ask
you, what was in the car that day, what was loaded in the car that day?
A Dynamite and
firearms.
Q And would
you describe what kind of firearms?
A Rifles,
pistols and, about all.
Q Did they
resemble the firearms that are represented on pages 10 and 11 of this
exhibit?
{822}
A Yes.
Q Do you
remember anyone of these particular firearms with relationship to the
events back on the 26th of June or the 27th, 8th and 9th, the four days
that you left from the time you were here and the events that you have
been testifying to and that you left, do you recognize any of these
weapons in any way, to any of those weapons?
A No.
Q I'm going to
show you what you've looked at a little earlier as Government's Exhibit
30A and ask you whether or not if the weapons that were in the station
wagon that we've been discussing, if there was a weapon of this general
type and description?
A Yes.
Q Now, do you
recall where you first saw it with relationship to the station wagon?
A Down in the
camp.
Q Do you
remember who had the weapon that looked like this particular one?
A Robideau.
Q And is that
the same weapon that you have been testifying to when you said that Mr.
Robideau had two weapons when he was leaving?
A Yes.
Q And the
other one resembled a weapon that he left with that {823} day, the one
that I have on the counter, is that correct?
A I don't
know.
Q You don't
know?
A No.
Q You didn't
see any weapon of this kind in the station wagon, is that what you're
saying?
A No.
MR. LOWE: When
you say "this kind," which one? You're holding one and pointing to one.
MR. HULTMAN:
I'm sorry. Let the record show I'm asking you about this weapon here
(indicating).
Q (By Mr.
Hultman) Did you see any weapon of this kind in the station wagon that
day?
A No.
THE COURT: I
would suggest, Counsel, when you handle the weapons would you try to keep
the barrel pointed towards the overhead.
MR. HULTMAN:
Let the record show, so the Court will know this and the jury, all of
these weapons have been made inoperable by the marshal's service and are
in a condition they cannot be fired. I did not mention that in the Court's
presence before. I will try to heed the admonition of the Court also.
Q (By Mr.
Hultman) I'm going to show you again what you previously looked at and
it's been identified as Governnent's {824} Exhibit 34AA and ask you
whether or not there was a weapon of this general type and description in
the station wagon on the occasion that you're talking about now?
A Yes.
Q You remember
a weapon.
You don't know
what the speciflc weapon was, is that correct?
A Yes.
Q But you know
there was a weapon like this?
A Yes.
Q Where were
you when the materials were loaded in the station wagon that we are
discussing at this time as portrayd in Government's Exhibit 62, where were
you when the station wagon was loaded? What town or area or what location
were you when you loaded the station wagon?
A I don't
remember.
Q Do you
remember what state you were in when the station wagon was loaded?
A South
Dakota.
Q Do you
remember a general location of where you were?
A No.
Q Mike, how
much education have you had?
A Eight years.
Q Have you
ever prior to being in this courtroom today testified under oath?
{825}
A No.
Q This is the
first time you've ever testified under oath?
A Yes.
Q And have you
told us the truth here as you best remember?
A Yes.
MR. HULTMAN: I
have no further questions.
MR. LOWE: May
we approach the bench?
(Whereupon,
the following proceedings were had at the bench:)
MR. LOWE: Your
Honor, particularly in view of the one lawyer, with regard to witnesses, I
need a little time to get set up here. I want to set up the screen and a
projector. I'd like to go over the notes of what he said and in the
absence of having been able to interview him it makes it particularly
difficult to cross-examine. I wonder whether Your Honor would be willing
to have an early lunch recess, same amount of time but move it up so we
can have the lunch hour to prepare for cross-examination? This is
obviously a crucial witness.
THE COURT: How
would it be if I recess until 1:15 which would give us --
MR. LOWE:
Fine.
THE COURT: Any
objection to that?
MR. HULTMAN:
No, Your Honor. I understand the reasoning and I know the Court would
grant a similar request {826} with no objection on the part of the
defense.
THE COURT:
Very well.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
THE COURT:
We're going to recess a little early this noon. The noon recess will not
be much longer than we usually have. The court will recess at this time
and we will reconvene then at 1:15 rather than the usual reconvening time
of 1:30.
The court is
in recess.
(Recess
taken.)
{827}
AFTERNOON
SESSION
March 22, 1977
1:15 o'clock,
P.M.
Q Mr.
Anderson, my name is John Lowe. Have we ever met before?
A No.
Q We didn't?
Did we meet earlier today?
A Yes.
Q Downstairs
on the second floor?
A Yes.
Q And on the
occasion that we met down there, did I tell you that the purpose of my
coming down was to obtain an interview with you so we were able to tell
what you knew about the case?
A Yes.
Q Did I tell
you that all I wanted you to do was tell me the truth?
A Yes.
Q And did you
refuse to do so?
A Yes.
Mr. HULTMAN: I
object, Your Honor. It's a clear inference, the question immediately was
he refused to tell the truth.
MR. LOWE: If
you'll let me finish, Counsel, I'll finish questioning.
{831}
MR. HULTMAN:
Your Honor, might I make my objection, please?
THE COURT:
Proceed.
MR. HULTMAN: I
object, Your Honor, to the question as being misleading; that it's leaving
a clear inference with the jury that the response left an impression that
he was not being truthful and I believe that is a clear misconception and
I would ask to interpose a voir dire with one simple question.
MR. LOWE: Your
Honor, I would like to finish my direct examination. I've asked simple,
direct interrogatory questions which are proper. The witness has had no
trouble in answering them and has not indicated he has any trouble in
answering. There is a purpose in cross-examination and that is what Mr.
Hultman wants to do. I do not choose to have him do his cross-examination
in the middle of any direct examination and assist the witness. I would
oppose having any voir dire at this point. The witness has indicated no
trouble in my questions.
THE COURT:
Proceed.
Q (By Mr.
Lowe) Mr. Anderson, so in fact you refused to tell me anything, didn't
you?
A Yes.
Q And you
understood that there was court reporter sent down by the judge with us to
make sure you were protected and what was done was proper and what you
said was the truth would be {832} recorded?
MR. HULTMAN:
Your Honor, I object.
THE COURT: I
think that is a little misleading. The court reporter was not sent down to
record your interview with this witness had he been willing to talk to
you.
MR. LOWE: I
understood, Your Honor, that was our request, of course, was to have the
interview recorded so we would be protected from any claim there was an
impropriety. I understand that's what Your Honor was doing?
THE COURT: It
was my understanding the court reporter was just to be there for the time
to determine whether or not the witness was willing to talk to you.
MR. LOWE: We
misunderstood. Our request was clearly on the occasion we wanted the court
reporter there.
MR. HULTMAN:
Your Honor, I'm going to object to any further inquiry of any kind
concerning this matter because it is incompetent and irrelevant and
immaterial to any issue in this case. The witness is here, he is under
oath. Counsel has the right to confrontation and cross-examination and I
urge that this is highly prejudicial.
MR. LOWE: I
daresay it's prejudicial if a witness refuses to tell the truth to Counsel
when a request for interview is made. I think that's something the jury
will properly weigh whether the witness is candid on the witness stand.
THE COURT: You
may proceed with your interrogation.
{833}
MR. LOWE:
Thank you, Your Honor.
Q (By Mr.
Lowe) The following the events that you had described here, what was the
first occasion on which you talked with a police officer or an FBI agent
about what you knew or what you told them you knew about these events?
A I don't
understand the question.
Q In June of
1975 this too, place near Oglala, South Dakota. You described that you and
some other people were on the move for several days thereafter. You were
not arrested, nor was anybody arrested in the group until you had actually
disbursed, isn't that true?
A Yes.
Q What was the
first time and occasion that you had to talk with a police officer or an
FBI agent, whichever it was, about what you knew about this shoot-out?
A In Kansas.
Q In Kansas?
A Yes.
Q Was this
following the incident you described in which you were in an automobile
that had some problems in a fire?
A Yes.
Q And who was
the agent or the police officer that you spoke with about this event?
A Gary Adams.
Q Was anybody
else present?
{834}
A Yes. Another
agent.
Q Do you know
what his name is offhand?
A No.
Q And where
was it that you were located when these agents talked to you?
A In Kansas.
Q I
understand. Were you in a hospital, in a car, in a police station, in a
motel?
A The federal
building.
Q And in what
town? Was that Wichita?
A Yes.
Q And how many
other people were present in the room with you when you were interviewed
by them, if any?
A Nobody. Two
agents.
Q How many
days was that after the car blew up?
A I don't
really remember.
Q Was it the
same day?
A No.
Q Was it the
next day?
A I don't
remember.
Q Were you
under arrest at the time they talked with you?
A Yes.
Q What were
you charged with?
A I don't
know.
Q Were they
state warrants or federal warrants that you were {835} arrested on?
A I think
federal.
Q Do you know
if any of the other occupants of the car were also under arrest at that
time?
A No.
Q Had you been
put in a jail in Wichita, some sort of a jail type facility?
A Yes.
Q Was that in
the federal building or somewhere else?
A Somewhere
else.
Q Were you
brought up there by the agents or by someone else?
A By the
agents.
Q And how old
were you at the time?
A 16.
Q And did they
tell you that they were investigating the alleged murders of two FBI
agents?
A Yes.
Q And did they
tell you that they had information that you were one of the people that
was involved in the shooting?
A Yes.
Q Did they
tell you that since you were one of the people involved in the shooting
that it was possible you might be charged with the murder of the agents?
A Yes.
{836}
Q And did they
suggest to you that if you cooperated with them that it would be possible
you might not be charged with the murders?
A No.
Q They did not
suggest that to you?
A No.
Q Did you
realize in your own mind if you succeeded in giving them information which
satisfied them that you might not be charged with the murders?
A No.
Q You didn't
think so. You thought you might be charged with the murders anyway?
A Yeah.
Q Have you
ever been charged with the murders of those agents?
A No.
Q If I were to
suggest that you were arrested on federal charges relating to the
interstate transportation of guns with obliterated serial numbers and the
interstate transportation of unregistered explosive devices, would that
sound like that refreshes your memory?
A No.
Q Were you
ever called in front of a magistrate or a judge of any kind and explained
what you were being held for by the FBI?
A Yes.
{837}
Q Do you
remember what the judicial officer told you the charges were?
A I think it
was transporting firearms and explosives across the state line.
Q And did you
know that you had -- or let me ask you, do you know how many charges
individually you had against you?
A No.
Q If I
suggested that you had nine individual charges, would that sound about
right?
A I'm not
sure.
Q Do you know
that you had a number of charges, however many they may have been, it
wasn't just a single charge?
A Yes.
Q If I
suggested to you that the judicial -- did the judicial officer tell you
what possible punishment you could obtain under the conviction on those
charges?
A I don't
remember that.
Q If I
suggested that he had --
MR. HULTMAN:
If it please Your Honor, the question has been asked and the question has
been answered and I would indicate that now Counsel is trying to put into
the record his own remarks and I object for that reason.
Counsel, if
you just wait until I finish my objection.
MR. LOWE: I
thought you were threw, Mr. Hultman.
{838}
MR. HULTMAN:
It is obvious, your Honor, the question was very simple that was asked,
the response was very direct, and now counsel is by repetition, he is only
trying to get matters into the record which this witness -- it is very
evident by his last response -- does not have the knowledge; and I object
for that reason, it is repetitious.
MR. LOWE: I
have just finished asking the witness whether he was charged with
interstate transportation of weapons and explosive devices, and first he
said "no". Then when I attempted to refresh his recollection, he himself
stated it was interstate transportation of guns and explosive devices.
This is cross
examination, and as long as I ask proper questions and I am not badgering
or overreaching the witness, I think it is proper.
THE COURT:
Proceed.
Q (By Mr.
Lowe) I would suggest to you that the judicial officer advised you that
the charges -- each of the charges against you carried 10 years in the
penitentiary as a maximum punishment -- would that sound about what you
were told?
A I don't
remember.
Q You don't
remember?
A No.
Q All right.
Did Agent Adams and the other agent tell you {839} that you had a right to
have an attorney before they talked with you?
A Yes.
Q How old did
you tell them you were?
A 16.
Q Did they say
anything to you about having any of your parents with you or find out
where your parents were located?
A No, I don't
remember.
Q O.k., and
did you ask for an attorney?
A Yes.
Q And did they
give you one before they talked to you?
A I don't
remember.
Q You don't
remember whether you had an attorney when you talked to them or not?
A I disn't
have an attorney, wasn't there then when I talked with them.
Q You had
asked for one?
A Yes.
Q And they
simply had not gotten one for you?
A No.
Q Did they
tell you that you had a right not to talk with them if you didn't want to?
A Yes.
Q Did they
tell you it would be better for you if you did talk with them?
{840}
A I don't
remember.
Q Did they
make notes as you were talking to them?
A Yes.
Q Did you tell
them the truth?
A No, not all
of it.
Q Not all of
it, but what you did tell them was true, is that correct?
A It is part
of it.
Q I am not
sure I understand your answer. Do you mean that part of what was true you
told them?
A Yes.
Q But you just
didn't tell them everything, is that what you are saying?
A Yes.
Q What you did
say to them was true, is that also correct?
A No.
Q What you did
say to them was true, is that also correct?
A No.
Q It is not,
so you lied?
A Yes.
Q And how long
did they talk with you on the first time that they talked with you?
A I don't
know. I don't remember.
Q Well, was it
a half an hour as opposed to all day long? Can you give me just an
estimate of about how long?
A About an
hour.
Q An hour?
{841}
A Yes.
Q And what
happened at the end of that hour?
A Well, I was
refusing to talk until Gary Adams said, "If you don't talk, I will beat
you up in the cell."
Q Gary Adams
told you that?
A Yes.
Q And the
other agent was present when he said that?
A Yes.
Q And did that
make you afraid?
A Yes.
Q And did you
understand that you would get beat up if you didn't give him the answers
that he wanted?
A Yes.
Q And did you
then give him the answers that you understood he wanted?
A Yes,
Q When was the
next time that Special Agent Gary Adams talked with you?
A I don't
remember.
Q Was it while
you were still in Wichita?
A I don't
remember.
Q Did Special
Agent Gary Adams in that first interview with you tell you that one of the
dead agents was a good friend of his?
A Yes.
{842}
Q Did he seem
quite angry about the fact that they had been killed?
A Yes.
Q Did he seem
quite upset?
A Yes.
Q Do you
recall an occasion when you were in the tent area on the 26th of June,
1975, when Leonard Peltier made a statement in your presence that anyone
trying to surrender would probably get shot by the FBI or the police?
A Yes.
Q When he said
that, did you believe that he was probably right?
A Yes.
Q When Special
Agent Gary Adams threatened you in Wichita, did you recall what Leonard
Peltier had told you?
A No.
Q Did you
believe that Special Agent Gary Adams was capable of hurting you if you
didn't do what he wanted?
A Yes.
Q When Agent
Adams asked you questions on that occasion, did he ask you questions in
this matter -- and I am quoting now I am acting as though I was Special
Agent Adams -- did he ask, for example: Isn't it true that Leonard Peltier
was carrying an A.R. 15, is that the kind of question he asked you?
A I don't
remember.
{843}
Q You say you
do not remember?
A No.
Q Did he ask
you questions generally in the style of saying: Isn't it true that a
certain fact is true, and then ask you to just tell whether it is true or
not?
A Yes.
Q And by doing
that, as a person being interviewed, did you understand that the substance
of the question he was asking you is what he was looking for in your
answer?
A Yes.
Q And did you
understand that that was the type of information that he was threatening
you to obtain, do you understand what I am asking?
A I don't
understand, no.
Q All right.
You said just now that you understood that the things that he was saying
in his question and in asking you, isn't that true, was exactly what he
was looking for. Now, I am asking you, did you understand that that was
what he was telling you you should say or you would get beaten up?
A Yes.
Q Did you have
any other agent or police officer talk to you, Mike, about this incident
while you were in Wichita, or was that the only interview in Wichita?
A There was
another guy from the Firearms Bureau.
Q All right. A
Federal officer, do you know?
{844}
A Yes, Tobacco
and Firearms.
Q And did he
talk with you about the incident on the 26th, or just about the car?
A No. I just
refused to talk to him.
Q All right.
Where did you go from Wichita -- were you released, or did they take you
somewhere in custody?
A Took me to
the Detention Center.
Q Where is
that?
A In Wichita.
Q How long
were you there?
A I don't
remember.
Q Where was
the next place you went after the Detention Center in Wichita, if you
remember?
A Downtown to
Phoenix.
Q Phoenix?
A Yes.
Q Were you
still under arrest, or were you released by then?
A Still under
arrest.
Q Still under
arrest. Were you on bond or were you in custody?
A Custody.
Q Where did
they take you?
A To the
Detention Center in Phoenix.
Q Do you know
why they took you there, did they tell you?
A Yes.
{845}
Q Why did they
tell you?
A I had some
other charges in Phoenix.
Q O.k. What
charges did you have in Phoenix?
A I don't
remember.
Q If I
suggested that there was a burglary charge there, would that help your
recollection?
A Yes.
Q And did the
FBI say they would try to see what they could do to help you on the
burglary charge in Arizona?
A Yes.
Q Have you
ever been prosecuted on that burglary charge or convicted?
A No.
Q Did the FBI
tell you that they would try to help you on your charges in Wichita
arising out of the exploded car?
A I don't
remember.
Q Have you
ever been prosecuted on those charges?
A No.
Q In fact,
those charges have been dropped, haven't they?
A Yes.
Q Do you read,
Mike?
A Yes.
Q Do you read
very well?
A Yes.
Q I am just
going to show you -- this is not an exhibit or {846} anything, just the
Constitution of the United States, is what it happens to be; but I would
like to ask you to just read, pick any paragraph, start out reading.
A Section 1.
All persons born or naturalized in the United States and subject to the
jurisdiction thereof are citizens of the United States and of the States
wherein they reside.
Q All right,
that's fine, thank you. After Phoenix, where did you move, where did you
stay?
A I went back
home.
Q You were
released then, weren't you?
A Yes.
Q And where is
home? You may have said that, I just didn't remember.
A Fort
Defiance, Arizona.
Q All right.
When is the next time that you talked to an FBI Agent about this case?
A In
Alburquerque.
Q In
Alburquerque?
A Yes.
Q When was
that, do you remember?
A Just the
past week ago.
Q Just a week
ago?
A Yes, I don't
remember the date.
Q If I -- let
me ask you this: Did you say it was a week ago -- you mean literally seven
days or ten days ago, or might
{847} it have
been a month ago?
A About a
month ago, I think it was.
Q Who did you
talk with then?
A Gary Adams
and Jim Doyle.
Q The same
Gary Adams that you spoke with in Wichita?
A Yes.
Q And did you
tell them the truth then?
A No.
Q What you
told them was true, just wasn't all of it?
A It wasn't
all of it.
Q O.k., but
what you did tell them was true?
A Yes.
Q Now, to be
sure, before I pass on, before, you indicated in Wichita that part of what
you told them was not true. Was part of what you told them in Alburquerque
also not true?
A Yes.
Q And where
have you been since then, did you go back home again from Alburquerque?
A No. I have
been going to school.
Q Where did
you go to school?
A In
Alburquerque, Southwestern Polytechnic School.
Q And then you
came up here for the trial?
A Yes.
Q And have you
seen Special Agent Adams since you got here?
A Yes.
{848}
Q Did you talk
with him again?
A No.
Q Did you talk
with somebody, with Special Agent Adams present, that is, sitting in the
room with you?
A No.
Q Where did
you see Special Agent Adams, here?
A He picked us
up.
Q He came and
picked you up.
Now, I want to
go back to June 25th, and I want to go back a little bit before then to
get a little bit of background for what you have told us.
Would you say
again about how many days before the shooting incident, did you arrive at
the Jumping Bull area from Farmington, New Mexico?
{849}
A I don't
know.
Q Was it about
a week or two weeks or four days, just approximately?
A No.
Approximately about -- I can't remember.
Q Was it more
than two days?
A Yes.
Q Was it as
much as two weeks?
A Yes.
Q Was it a
month?
A I don't
remember.
Q Okay. During
that time did you live in the tent area?
A Yes.
Q Do you know
who Jeannie Day is? Did you know such a person?
A Yes.
Q Who was
Jeannie Day?
A A lady.
Q A lady. Do
you know whether she had any particular friendships with anybody in the
camp?
A No.
Q Do you know
who Myrtle Poor Bear is?
A No. But I
heard of the name.
Q You heard
the name?
A Yes.
Q Did you ever
see Myrtle Poor Bear in the camp, or the {850} Jumping Bull's to your
knowledge?
A I don't
know.
Q Did you know
all the people that you did see in the camp at the Jumping Bulls'? Do you
know there names?
A Yes.
Q Was one of
them Myrtle Poor Bear?
A I don't
know.
Q You had some
disagreements with Leonard Peltier over the question of your drinking,
didn't you?
A Yes.
Q Would it be
fair to say that Mr. Peltier is, was trying to get people to stop drinking
and was complaining when they did drink?
A Yes.
Q Would it be
fair to say that he was trying to help you to straighten out on that?
A Yes.
Q Do you think
he was looking out for your welfare and trying to help you?
A Yes.
Q Was ho doing
that with other people also?
A Yes.
Q And on June
25th, the day before this incident in which you were confronted by some
police officers and FBI officers on Highway 18 along with two friends of
yours, at the time you were {851} stopped you were asked to identify
yourselves, and I believe you said you all gave different names, although
you didn't remember the names?
A Yes.
Q Do you
remember whether one of the BIA officers who stopped you was named Ecoffey?
A No BIA
officers stopped us.
Q Pardon?
A They were
FBI agents.
Q How many men
were with the party that stopped you?
A Two.
Q Only two
people?
A Yes.
Q Do you know
who they were?
A Willlams and
the other agent.
Q Coler?
A Yes.
Q Nobody else
was with them?
A No.
Q How many
cars did they have?
A One.
Q Just one
car?
A (No
response.)
Q So there was
no BIA police officer there with you when you were stopped by the FBI
agents?
{852}
A I think
there was one sitting in the back. I'm not sure.
Q So there
might have been one or more?
A Yes.
Q But they
told you that they were going to take you to the BIA jail in Pine Ridge to
see if anybody could tell if you were Jimmy Eagle; is that right?
A Yeah. They
didn't tell us where they were taking us, but they took us there.
Q Did they
tell you why you were being taken to see if somebody could identify you as
Jimmy Eagle?
A Yes.
Q Did you know
that?
A Yes.
No, I didn't
know.
Q You didn't
know that at the time?
A No.
Q Do you know
Jimmy Eagle?
A Yes.
Q Do you look
anything like Jimmy Eagle?
A No.
Q Did either
of the other two?
A No.
Q Now, when
they first pulled up in the car what was the first thing they said to you?
A Stop, I
think it was.
{853}
Q Did they get
out of the car before they talked to you, or did they talk to you from the
car?
A I don't
remember.
Q All right.
Did you stop and turn around, face them?
A Yes.
Q Did they
frisk you, put you up against the car?
A Yes.
Q Did they do
the classic thing that we all see on television where you put your hands
on the car and spread your legs and then they frisk you?
A I'm not too
sure.
Q But they did
frisk you?
A Yes.
Q Who frisked
you, do you remember?
A No.
Q One of the
people in the group?
A Yes.
Q Did they ask
you for anything or did they simply take what they found?
A They just
asked us to search our towels.
Q Okay. And I
believe you said that they told you to get in the car and you started to
walk away?
A Yes.
Q And then
what did they say then?
A They told us
to get in.
{854}
Q Did they say
it rather sharply or did they say it like, "Hey, would you like to get
in?" What did they say?
A Kind of
sharply.
Q Did you have
any understanding that you had any choice about whether you got in the car
or not?
A Yes, I knew.
Q And what did
you think?
A I said I
didn't want to get in, but those other two had gotten in so I got in.
Q Did you
think that they would have allowed you to walk away?
A Yes.
No, I don't
think so.
Q In other
words you didn't think you had any choice but to get in the car?
A Yes.
Q They were
ordering you in.
Would it be
fair to say that they were not courteous and polite to you, but rather
forceful?
A Yes.
Q And when
they took you down to the jail they took you inside the jail building. Was
there an officer in there that they brought you before?
A Yes.
Q And what did
they say?
{855}
A They asked
the officer if any of us were Jimmy Eagle.
Q And this was
one of the FBI agents that did this?
A Yes.
Q Did he tell
the BIA officer that you were brought in front of that a BIA officer that
had been riding with them know that you were not Jimmy Eagle before this
confrontation? In other words did the FBI agents say anything to the
second BIA police officer to indicate that he already knew you weren't
Jimmy Eagle?
A No.
Q What
happened to the clip that was in the towel?
A I don't
know.
Q One of the
FBI agents kept it, didn't he?
A Yes.
Q Did he try
to explain to Norman Charles that he had some kind of a legal right to
carry this clip?
A I don't
know.
Q He just kept
it?
A Yes.
Q Would it be
fair to say that on the reservation Indians, particularly young Indians
don't argue with FBI agents and challenge their authority?
A I don't
know.
Q You
certainly didn't, did you?
A No.
{856}
Q Do you
remember an occasion in which a store had a fire in it prior to this
occasion while you were just living in the are and got burned, the roof?
A Yes.
Q Did you or
any of your friends in the encampment area there do anything about that?
A No.
Q You were not
present if anybody else did that, is that true?
A No.
Q Were there
pipe ceremonies held in the area while you were present during this couple
of weeks when you got back from Farmington, New Mexico?
A Yes.
Q Did you
attend some of those?
A Yes.
Q Are they
religious ceremonies?
A Yes.
Q Do you
believe in the religion of the pipe?
A Yes.
Q And were any
of these attended by medicine men or special spiritual leaders, or was it
just the people in the area?
A I don't
remember.
Q Okay. Was
there a sweat lodge in the encampment?
A Yes.
{857}
Q Explain what
a sweat lodge is.
A Sweat lodge
is made of cottonwood bent over and put blankets, or whatever on top of it
to hold in the heat.
There's a hole
dug in the middle, there's sagebrush spread all over the ground where you
sit on and the rocks are heated and you put in the hole.
Q Does this
have spiritual meaning to you who believe in the religion of the pipe?
A Yes.
Q Is this a
purification procedure among other things?
A Yes.
Q And was the
sweat lodge used during the weeks that you were living there in the
encampment?
A Yes.
Q Was there
conversation between people who lived in the encampment, including Mr.
Peltier, and you and the others about religious matters and spiritual
matters and the need to recapture your spirituality?
A Yes.
Q Was there
also discussion about helping the people in the community to organize
their efforts to help themselves and to make a good life for themselves?
A Yes.
Q And was Mr.
Peltier one of the leaders in that regard?
A Yes.
{858}
Q In the time
that you were living there over those several weeks would you say that it
would be fair to indicate that people were afraid of violence from
different groups on the reservation and everybody really went around
constantly worried about violence?
A Yes.
Q Would it be
fair to say that almost everybody on the reservation had guns to defend
themselves?
A I don't
know.
Q Did a lot of
the people that you had contact with, both in the encampment and also in
Oglala, have guns to protect themselves?
A No.
Q All right.
Do you know what I mean when I talk about goons?
A Yes.
Q Was it,
would it be true to say that the people in the encampment area that you
were living with were afraid of attacks by goons?
A Yes.
Q Would it be
fair to say that it was very bad blood between the goons and the people in
the encampment area? That is, that they didn't like each other?
A Yes.
Q In the time
that you were living there did you become aware {859} of incidents of
violence in which people were shot or injured or beaten up?
A Yes.
Q Would it be
fair to say that the people that live in Oglala in this general community
around the Jumping Bull area were also aware of that type of violence on
the reservation?
A Yes.
Q And would it
also be fair to say that particularly the older people were very worried
and afraid because of that violence?
A Yes.
Q You said
that you had heard the name Myrtle Poor Bear. Where did you first hear the
name Myrtle Poor Bear?
A I don't
remember.
Q Is it
possible that one of the FBI agents --
MR. HULTMAN:
If it please Your Honor, this question has been asked and been asked here
again. I indicate that it's repetitious and an attempt by counsel to get
something in the record. Make himself, the witness --
MR. LOWE: It's
cross-examination, Your Honor. I think I'm entitled to probe.
THE COURT:
Well, you are entitled to probe, but you're not entitled to present
evidence that isn't before the, in the record.
MR. LOWE: I'm
just asking if it was, he has indicated {860} that he's had several
interviews with FBI agents. I think it's proper if the FBI mentioned it to
him.
THE COURT: You
may ask him that.
Q (By Mr.
Lowe) Is it possible that the FBI mentioned that name to you and that's
where you heard it?
A I don't
know.
Q Okay. You
mentioned Jimmy Zimmermann. Do you know about how old Jimmy Zimmermann
was?
A No, I don't
remember.
Q Was he near
twenty or was he older? Teenager, a young kid, what was he?
A A young guy.
About ten years old.
Q About ten
years old?
A Yeah.
MR. LOWE: May
we approach the bench, Your Honor, please?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. LOWE: This
is an area that I'm not clear of, if your order circumscribes, but I want
an abundance of caution to check with you first in some of the materials
that he has given, the Government has given us pursuant to the thirty-five
hundred disclosures.
Mr. Anderson
listed an Anna Mae Aquash who is a person {861} who had been in the
encampment area, I believe, and I'm not going to ask anything other than
to see if he knows that person and can say whether that person was one of
the occupants or visitors to that area prior to the incidents. And I think
that's a proper question. But I thought I should check with you first.
MR. HULTMAN:
Your Honor, my objection is that this is no showing of any kind that this
person in any way had anything to do with any of the events that are
concerned in this trial, and that this again is an attempt to got a name
before this jury.
Counsel makes
no showing of any kind that this individual had anything to do, and I'm
sure the record will likewise at the end of this trial indicate such. The
mere fact that somebody lived in the area at one time or another, unless
there was some showing or basis. Now, what has happened, Your Honor, so
that the Court will know, this woman was later found murdered. There's
been no showing, there was not in the last trial, there's no showing to my
knowledge in any way, not one scintilla of evidence, that she in any way
connected with these events at all.
That the only
reason that counsel is attempting to get this name before the jury is in
order to raise an issue which is not relevant and to prejudice the jury
with an issue which has nothing to do with the trial. That is why I object
{862} even to the raising of the question of the name of the individual.
MR. TAIKEFF:
Your Honor, I believe that a document was prepared by the United States
Government at the request of Judge Boeg which listed the name of every
person who possibly might have been in the area on June 26, 1975. And I'm
wondering if the Government would state whether Anna Mae Aquash's name
appears on that list.
MR. HULTMAN:
Your Honor, that document was prepared at the request --
MR. TAIKEFF: I
didn't hear the answer to my question.
MR. HULTMAN:
I'm going to answer your question to my leisure. I don't have to answer
yes or no as some witnesses do.
MR. TAIKEFF: I
see.
MR. HULTMAN:
That request, Your Honor, was made by Judge Boeg. It was in a very early
proceeding and the Government did its very best to put together a list of
any possible people who could have even possibly been in or out of the
area.
They did list
-- did not state that these individuals were there. It was a massive list
of anybody whose names came up any time of having been in the area at any
time, and that's what the list consisted of.
In no way did
it show or indicate that there was any relevancy as to any kind as to any
of these individuals.
{863}
MR. TAIKEFF:
Now, may I have the answer to my question, Your Honor.
MR. HULTMAN: I
have answered the question to the best of my ability.
MR. TAIKEFF: I
asked whether or not Anna Mae Aquash's name was on that list.
MR. HULTMAN:
You've showed it to me.
MR. TAIKEFF:
Well, I don't want to make a representation that I'm not sure of, and I'm
asking --
MR. HULTMAN: I
didn't know whether it was myself or not. I'm making the best
representation.
MR. LOWE: Let
me state, Judge, two things that make it relevant. First, there is going
to be lots of evidence in this case of unidentified parties who are
unidentified even today who escaped through other routes not with this
group, as we've heard escaping; that there were many people. They will be
identified by FBI evidence as having other people, because of the
identification of weapons, of cartridge cases fired from other weapons.
We had at
least one witness, Mrs. Long Visitor and her husband, who snuck away on a
different route. This is in the FBI 302 forms. We believe that they are
entitled to show the identities of any people who were living in or
visiting to the area prior to this incident to lay a foundation for other
evidence that may be relevant.
{864}
Now, we may
not be able to connect them up, but this witness has stated to an FBI
agent that Anna Mae Aquash was in this encampment area during the period
he was there. And I think there's nothing objectionable to that. I realize
that I cannot go into the incidents after June 26 without your authority,
but I at least can ask this.
MR. HULTMAN:
I'd just respond once more, Your Honor, and then I'll not in the future.
One, there is
not any scintilla of evidence anywhere where I've seen in any document or
any testimony that Anna Mae Aquash could possibly have been there that
day, on the day we're talking about. If counsel will indicate to me that
they have evidence that that if the fact then, Your Honor, I will take a
different posture and a different position than what I have to this
particular moment.
THE COURT:
Well, I will permit counsel to simply ask the question if he knows, if
this witness knows whether or not this particular person was in the area.
MR. HULTMAN:
On the day of the event?
MR. LOWE: Or
prior to it.
MR. HULTMAN:
Well, John, the issue is whether she's there that day.
MR. LOWE:
Curly, that's your issue, that's not just what happened on the 26th. You
yourself have brought in a whole lot of days afterwards.
{865}
MR. HULTMAN:
Your basis is the fact that there is a list showing or at least I got
Elliot's observation that, and you said the same thing, that there are
many people who are represented to be there that day.
MR. LOWE:
That's one issue, that's true.
MR. HULTMAN:
Well, is that the one were addressing, or isn't it?
MR. LOWE: This
is cross-examination and if I can establish that she was there as this
witness has told the FBI, I think I'm entitled to use that.
As I say there
were unidentified people there on the 26th that we never have identified,
nor has the FBI.
MR. TAIKEFF:
Your Honor, here is a 302 dated September 9, 1975 by two special agents
indicating that they were going around attempting to ascertain if
witnesses could tell them whether or not Anna Mae Aquash was in the camp.
So that surely the Government was interested in that question.
MR. LOWE:
That's who that is, that's her married name.
MR. HULTMAN:
And there's no showing as a result that she was. That's the point I'm
trying to make that all investigation and if you will indicate to me any
evidence, any scintilla of evidence that you are prepared to show that she
was, then I will raise my objection.
MR. TAIKEFF:
If we find out from these witnesses {866}
whether she
was.
THE COURT: I'm
going to permit that question be asked of this witness.
MR. HULTMAN:
Is that going to be a limited question, Your Honor?
THE COURT: (No
response.)
{867}
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
Q (By Mr.
Lowe) During the time you were in the encampment area those several weeks,
did you then or prior to that time know someone named Anna Mae Aquash or
Ann Mae Pick Toe?
A Yes.
Q Was this a
woman you personally had met or just the name you had heard?
A A woman I
had personally met.
Q And was she
from time to time in the encampment area?
A Yes.
Q Do you know
whether or not she was in the encampment area on June 26th?
A No.
Q On June
26th, the day that the shooting took place, first of all, did you spend
the night before in the tent area?
A Yes.
Q Were you
sleeping in the tent with Jimmy Zimmerman?
A Yes.
Q What time
did you arrive the next morning?
A I don't, I
don't have a watch to tell.
Q Was it light
when you got up?
A Yes.
Q Do you know
whether it was early morning or mid-morning or late morning?
{868}
A I think
about mid-morning.
Q Did you have
any breakfast?
A Yes.
Q Was it
cooked breakfast or cold breakfast?
A Cooked.
Q Who cooked
it?
A I ate up at
June Little's place.
Q Now in the
past while living in the encampment, was that something that you did
frequently, to go up to June Little's for breakfast or was this a special
occasion of some kind?
A No. I just
went up there that morning and they asked me to eat.
Q Did you
normally eat in the tent area?
A Yes.
Q On that
morning can you tell me who was living in the houses up around the Jumping
Bull area called the residences? Describe the different houses and who you
know was staying there?
A Well, there
is old man and old lady Jumping Bull.
Q That's Harry
and Ceclia?
A Yes.
Q Do you know
which house they stayed in?
A They lived
in the white house, the big one.
Q Is that the
large white house in the center of Government Exhibit 71?
A Yes.
{869}
Q And let me
ask you something.
MR. LOWE: May
I approach the witness, Your Honor?
THE COURT: You
may.
Q (By Mr.
Lowe) I just asked you if the white house was the large house in the
center of Government Exhibit 71 and you didn't even turn around to look.
I'm curious, have you ever seen that exhibit before today?
A Yes.
Q When did you
first see that exhibit?
A Little piece
of paper.
Q How long ago
was that?
A Last night.
Q Last night?
A Yes.
Q Who showed
it to you?
A United
States attorney.
Q Which one is
that?
A The one in
the middle.
Q The one in
the middle. Mr. Hultman?
A Yes.
Q And did he
go over that with you and show you the different things that were on the
map, tell you what the different symbols meant?
A No. I
already know what they were.
Q You did?
A Yes.
{870}
Q And how long
did you look at that paper last night would you say from the time he
showed it to you until the time you were no longer looking at it?
A I don't
know.
Q Half an
hour, two hours?
A About two
hours.
Q Two hours.
Did he go over
your story with you for that two hours?
A No. I just
told him what the truth was and all.
Q And did he
go over that sketch with you?
A Yes.
Q And did he
go over it so much you remembered it without ever looking up there that
there was a large white house in the middle of it?
A No. I
remembered it.
Q You
remembered. All right.
Turning around
for a moment, to be sure we're talking about the same house, there is a
symbol here which has a label that says "White House" on it. Is that the
house you're referring to that Cecilia and Harry Jumping Bull lived in?
A Yes.
Q Who else, if
anybody else, lived in that house with them?
A I don't
know. I think that's all.
Q Do you know
if they were there on the early morning of June 26th?
{871}
A No.
Q You don't
know.
Do you know if
they slept the night there?
A No.
Q There is a
house here which is identified as a shed. Did anybody stay in that house,
that shed?
A No.
Q There is a
house here identified as "Green House." Did anybody live in that house?
A Yes.
Q Who?
A Ivis and
Angie Long Visitor.
Q Do they have
a child or children?
A Yes.
Q How many?
A Two.
Q Were they
there over the night of June 25th to the morning of June 26th, do you
know?
A Yes.
Q Did you see
them on the morning of June 26th?
A Yes.
Q Then there
is a house up here called "Log Cabin." Who lived in that house?
A Dennis and
his wife.
{872}
Q How about
this house here?
A Nobody.
Q And I
believe you already stated this was the house of June Little and Wanda
Sears?
A Yes.
Q How many
people lived in there besides the two of them?
A Their two
daughters.
Q Anybody
else?
A I don't
know.
Q How about
Jumping Bull Hall? Nobody said anything about that. Did anybody live in
Jumping Bull Hall?
A No.
Q Have you
described all of the occupants of these houses in this general area of
Jumping Bull Hall compound other than the tent area?
A Yes.
Q I believe
you said that you were at, I think your testimony was that you were at the
Wanda Sears house or the June Little house and saw the red and whitevan
Pull in?
A Yes.
Q Did you see
that yourself or did somebody tell you that happened?
A No. I seen
it.
Q You did.
And where were
you located when that came in?
{873}
A I was laying
on top of the roof.
Q You were
laying on top of the roof of the house?
A Yeah.
Q What time
was this about?
A I don't
know. I didn't have no time.
Q Was it
mid-morning, early morning, early afternoon?
A Think it was
mid-morning.
Q Mid-morning.
Would you say
that it might be around 10:00 o'clock?
A Might have
been.
Q How long was
that after you had gotten up would you estimate?
A I don't
know.
Q Ten minutes,
two hours, hour, half hour?
A I don't
know.
Q Did you go
directly to the June Little residence after you got up or did you do some
things in the camp area first?
A I went
directly to the house.
Q You did?
A Yes.
Q Had they
made arrangements the day before for you to come have breakfast with them
or had they sent word to the tent area that morning?
A No. I just
walked up there.
Q And so after
you got up there you ate your breakfast?
{874}
A Yes.
Q Then you
went and got up on the roof of the house?
A Yes.
Q Now if I was
to suggest to you that there -- strike that.
You saw the
red and white van come in and where did you see the red and white van go
or stop when it first came in there and you were on the roof?
A Stopped
behind a house.
Q Now when you
say "behind a house," are you referring to this house, first of all, the
residence?
A Yes.
Q And on which
side of the house are you referring to?
A Trees on
this side (indicating).
Q Over here.
There are some trees shown on what is the north side of this residence.
Are you speaking about in those trees?
A Yes.
Q And that's
where you saw the red and white van stopped?
A (Witness
nods affirmatively.)
Q Where did
the people go that were in there?
A They all got
out and started talking.
Q Who was in
it?
A Leonard and
Norman and Bill.
Q And they
just got out and started talking.
How long were
they standing there talking?
{875}
A I don't
know. I think about five minutes.
Q About five
minutes.
Then you said
you saw somebody else come in.
A Yeah.
Q And where
did they come?
A I don't know
which way they came through but just come down the road.
Q And they
drove right by the house, didn't they?
A Yes. They
drove in front of the house.
Q And did you
jump off the roof when you saw them drive by?
A Yes.
Q How high is
the roof?
A Not too
high.
Q Well, how
high is not too high; ten feet?
A I don't
know. About. Yeah, about ten feet.
Q Not as high
as this ceiling?
A No.
Q And did you
then walk around by the various houses you described to go back to the
tent area?
A No. I went
inside the house and hid in there.
Q You went
inside of the residence?
A Yes.
Q And hid in
there.
And who did
you see inside the residence when you did that: anybody?
{876}
A No.
Q You didn't
see anybody in there at all?
A No.
Q You didn't
see June Little or Wanda Sears or their two daughters?
A June Little
and Wanda was there and their kids.
Q I thought
you just said you didn't see anybody in there.
A Well, they
were home already. They were there.
Q That's not
what I asked. I asked you, did you see them when you went in the house?
A Yeah.
Q At that
time?
A I saw them
in the house. When June went out and started talking with them, FBI,
because they stopped in front of the house and they both got out and
walked to the door and asked if they seen Jimmy Eagle around.
Q I thought
you said you got down off the roof when they went by.
A No. That's
when they were coming, then I jumped off before.
Q So you
jumped down before they got to the house?
A Yeah. Then I
went in the house.
Q Then you
went inside. Then they drove past the house after they talked with June
Little, is that your testimony?
A Yes.
Q That's when
you got out and walked around the top of the {877} crest of the plateau
there?
A Yes.
Q Now what I
want to do here, I've got a sketch here. Can you see that all right from
where you are?
A Yes.
Q This is
nothing more than a copy of Government Exhibit 71 which we made from a
piece of paper that the government gave us. I suspect probably the same
kind you looked at last night. And what I want to do, be sure I understand
exactly where you say you went, what route you took and where you did
various things. So what I'm going to do is I'm going to mark where you
tell me on here. If I put a mark in the wrong place, you tell me that,
too. It will be better than putting a lot of marks up on that exhibit
because that's the government's exhibit.
The first
thing we're talking about, I circled in red there, that's the house you
were in when you started to leave after the FBI drove by, am I correct?
A Yes.
{878}
Q And if I
understand your testimony correctly, you said that you walked generally
around this way (indicating), is that correct?
A Yes.
Q O.k.
A Along the
fence.
Q Along the
fence, did you say?
A Yes.
Q All right.
There is a fence along this field?
MR. HULTMAN:
Your Honor, I believe it is a misstatement of the record. I think the
record will show that he didn't walk, he ran.
MR. LOWE: The
witness is testifying on cross examination. Mr. Hultman can take him on
redirect.
MR. HULTMAN:
It is a clear misstatement of the record, that's the point I wish to make,
and ask the witness -- may I voir dire one question, your Honor?
MR. LOWE: I
don't want redirect in the middle of my examination, your Honor.
THE COURT:
Just a moment.
Members of the
jury, you may recall that I have previously instructed you that if counsel
do misstate the evidence, you should disregard it, and that it is your own
recollection which will be controlling on this matter; {879} and if the
statements by counsel on either side are at odds with your recollection,
it must be your recollection that controls. You may proceed.
Q (By Mr.
Lowe) Were you walking or were you running over to the fence?
A Running.
Q You were
running?
A Yes.
Q The fence is
along this field here (indicating), is that right?
A Yes.
Q All right.
So you went over the fence, and you walked along the fence, something like
that (indicating)?
MR. HULTMAN: I
object again, your Honor. The record shows he was running, and counsel
again is saying he was walking.
MR. LOWE: I
will strike that, your Honor.
THE COURT:
Very well.
Q (By Mr.
Lowe) Now, were you running or walking when you got to the fence?
A Running.
Q All right.
You were running along the fence, but you followed this route as you were
going along the fence, is that correct?
A Yes.
{880}
Q Did you go
behind the houses?
A Yes.
Q And I
believe you said that you cut over in this general direction (indicating),
is that correct?
A Yes.
Q And if I am
tracing where you pointed, I believe you said you just took a route across
here (indicating), over to the tent area, is that correct, something like
that, is that correct?
A Yes.
Q Now, what I
want to do, we have a measuring stick here, with your assistance I want to
try and see if you can tell me about how far that is; and this is marked
off in feet from zero to twelve hundred feet; and if you will watch while
I do that, I am going to try and scale this off so we can tell about how
far you went. I am going to start by putting the zero on the house. Would
you say that you went over on a fairly straight line from the house to the
fence?
A Yes.
Q All right.
That measures about 300 feet over to that line, is that about where you
went?
A Yes.
Q All right.
So 300 feet, then I am going to turn here so we can get it to go down the
fence line, that's what you said you did. you went down the fence line?
A Yes.
{881}
Q To a point
behind the house, measures 900, and actually did you go practically a
straight line across then?
A Yes.
Q All right,
and let's just put it up -- I will do it to a thousand, that's a little
easier, put it on the zero again.
A Stayed on
top of the hill all the way up to the top.
Q Stayed up
here (indicating), up to here, that's 2,000; and it looks like it is about
another 500 to the tent area. So it is about twenty-five hundred feet, you
agree that's about the distance that you went along the route there?
A Yes.
Q All right.
Twenty-five hundred feet. There are 5,280 feet in a mile. That's pretty
close to a half mile, isn't it?
You will have
to answer because the court reporter can't take down a nod.
A Yes.
Q Did you run
the whole way or did you walk some?
A Well, when I
was almost there, I walked some.
Q O.k. How
long would you say it takes you to run and walk that distance, the way you
did it on that day?
A Well, I
don't know.
Q Do you think
it would take 10 minutes?
A Yeah, about
10 minutes.
Q About 10
minutes.
Then when you
got down into the tent area, what did you do, {882} did you talk to
anybody, did you do anything, sit down in the tent?
A I don't
remember. I just picked up a rifle and ran back up.
Q O.k. How
long would you say you were in the tent area before you actually started
running back up again, were you there, let's say as much as five minutes?
A I don't
know.
Q Could it
have been longer than that or less than that, do you have any idea?
A No.
Q O.k. So then
you ran back up with the rifle. Who was there when you got there?
A Charles and
Stuntz and Brown, I think it was. I'm not too sure.
Q Charles and
Stuntz and Brown were there?
A Yes, on the
hill.
Q Oh, on the
hill, I'm sorry. Let me clear up what I am asking, you misunderstood.
When you got
to the tent area, who was in the tent area?
A The girls,
Dino, Wish, Jimmy, and I think that was all.
Q By "Wish",
you mean Wilford Draper?
A Yes.
Q And did
anybody else grab a gun and run up with you?
A No. I ran by
myself.
{883}
Q And what
route did you use to run back up, can you take the pointer and indicate on
Exhibit 71?
A (Indicating)
Ran back this way along the river here (indicating), and then I went over
here to about here (indicating).
Q All right.
Was there a particular place you ran to up there?
A Yeah, I
think it was behind the white house.
Q All right.
So when you got into the tent area, you then left, went by the road, down
to here (indicating), and then cut up behind to the white house, is that
approximately the route that you described?
A Yes.
Q All right.
Now, we will go up and see if we can figure out about how far that is. I
don't know if we had any testimony about that or not, what we were talking
about.
Could we say
you ran out in this direction (indicating) from the tent to the road?
A Yes.
Q That would
be about 450 feet down to here (indicating), it makes it about eleven
hundred feet to there (indicating), and up in the back would add another
about 500 feet. Would you be satisfied that was about sixteen hundred feet
that you ran?
A Yes, I think
so.
Q O.k. So we
have about sixteen hundred feet that you ran {884} and how long would you
say it took you to run that, you had your gun, you had just run a half
mile, do you have any recollection?
A No.
Q Now, when
you got up to the back of the white house -- is that where you went?
A Yes.
Q What did you
first see when you got to the back of the white house or hear?
A I heard
shooting.
Q Pardon?
A I heard
shooting.
Q All right.
Let's stop at that point when you heard shooting.
Up until that
point as you were running along the back of the fence, down to the tent
area, first of all, during that period of time did you hear shooting?
A Yes.
Q About how
many shots did you hear before you got to the tent area the first time?
A About four.
Q Four shots
only?
A Yes.
Q All right,
and between getting your gun and running up to the back of the white
house, how many more shots did you hear {885} in that period?
A I don't
know.
Q Did you hear
any?
A Yes.
Q Was it only
one or two, as opposed to 10 or 20?
A Yeah, about
10 or 20
Q 10 or 20?
A Yes.
Q When you got
to the back of the white house, did you see anybody that you recognized up
there?
A Charles and
Stuntz.
Q And what
were they doing?
A Shooting.
Q And who were
they shooting at, or what direction were they shooting?
A Down on the
cars.
Q Down on
which cars?
A The FBI
cars.
MR. LOWE: May
I have a moment, your Honor?
(Counsel
confer.)
Q (By Mr.
Lowe) Tell us again what weapon you picked up in the tent area.
A .22 caliber.
Q What kind of
weapon did Norman Brown have?
A .22 caliber.
{886}
Q You had two
.22 calibers?
A Yes.
Q What kind of
gun did Norman Charles have?
A Something
like a 308 British.
Q The 308
British?
A Yes.
Q Where have
you heard the term, 308, who told you that, or where did you learn that?
A I don't
know. I just looked at it.
Q You looked
at it?
A Yes.
Q It says
"308"?
A Yes.
MR. LOWE: May
I have that weapon?
Q (By Mr.
Lowe) I show you Government Exhibit 69-A. Is this the weapon you were
referring to?
A Yes.
Q Would you
please examine this to satisfy yourself you have looked it it enough time,
and tell me where on there you see "308"?
A (Examining)
I don't know. It don't say it on there. I don't see it on there.
Q You don't
see it on there. Isn't it a fact that the first time you first heard the
term, "308", was from the Government?
A Yes.
{887}
MR. LOWE:
Thank you. Can we stipulate this is not a "308"?
MR. HULTMAN:
John, the record will show at this time, I believe correctly, that he did
not identify this particular weapon. He might have seen one similar or
like it.
MR LOWE: His
testimony was just heard by the jury. My question is: Can we stipulate
that's not a 308?
(Counsel
examines exhibit.)
MR. LOWE: You
find it is a 302?
MR. HULTMAN:
303 Infield.
MR. LOWE: I
know what it is.
MR. HULTMAN:
It is a British Infield, isn't that correct?
Q (By Mr. Lowe
) What kind of weapon did you see Joe Stuntz using?
A A .44 Ruger.
Q How do you
know it was a .44 Ruger?
A Because it
was short.
Q How do you
know it was a .44, for example?
A Well, I
noticed it, and he showed it to me.
Q How do you
know it was a Ruger?
A Because he
showed it to me.
Q He told you?
A Yes.
{888}
Q Isn't it
true, Mr. Anderson, that the Government told you that was a .44 --
MR. HULTMAN:
(Interrupting) I object, your Honor. I clearly object. This question has
been asked, and it has been answered. It is an attempt by counsel to get
something before this jury that is not a matter of record here.
MR. LOWE: All
he has to do is deny that. It is a proper cross examination question.
THE COURT: He
has answered that Joe Stuntz told him.
MR. LOWE: I
want to know whether the Government also told him. It has been almost two
years.
THE COURT I
did not understand you to put in the word "also".
MR. LOWE:
Again on cross examination -- I will rephrase it if the Court desires.
THE COURT: You
may.
Q (By Mr.
Lowe) Didn't the Government also tell you that was a .44 Ruger?
A Yes.
Q In fact, the
Government was very helpful when they interviewed you?
MR. HULTMAN: I
object, your Honor, as this is clearly an action on the part of counsel
which is inappropriate.
THE COURT: The
objection is sustained.
{889}
Q (By Mr.
Lowe) Now, you have told us of a number of people who were at the Jumping
Bull area on June 26th when the shooting took place. Isn't it also true
that Jimmy Eagle was at Jumping Bull's on the 26th?
A I don't
know. I didn't see him.
Q You didn't
see him?
A No.
Q Do you
remember telling one of the agents that he was there on the 26th?
A Yes.
Q You say you
got behind the white house, we had gotten to that point, and at that point
you heard -- between the tents and the white house, you heard 10 to 20
more shots. You were up there with your .22.
What, if any
firing, did you do from that position?
A I had to
move up and go shoot down toward the cars.
Q Towards the
cars. Were you shooting at the cars, or were you shooting at the two
people down there?
A The cars.
Q The cars.
You realize it would be pretty serious stuff if you were shooting at the
people, don't you?
A Yes.
Q And how
about Joe Stuntz and Norman Charles, what were they doing, who were they
shooting at?
A I don't
know.
{890}
Q Were they
shooting --
MR. HULTMAN:
(Interrupting) I object, your Honor. There has been no foundation laid in
any way as to the capability of this witness knowing who the two other
individuals were shooting at. He has been asked on foundation, and the
question has been answered that the witness does not know.
Now, this is
an attempt on the part of counsel again to put words into the witness'
mouth; and I submit that this is not proper examination at this point.
Once the foundation has been laid, it has been laid by counsel.
MR. LOWE:
That's absolutely false to begin with. If we can have the question read
back, the question had nothing to do with that. I think if Mr. Hultman
would listen to the question before he objects, he would realize that.
THE COURT: The
reporter will read the question back. I am not sure that a question was
ever asked.
MR. LOWE: I
did ask a question. Mr. Hultman jumped on top of it.
(Question was
read by the reporter.)
MR. LOWE: That
was the question in its entirety: Were they shooting? That is my question,
I think it is proper question.
THE COURT:
That is a proper question.
{891}
MR. LOWE:
Thank you.
Q (By Mr.
Lowe) Do you understand what the question is?
A No.
Q Let me state
it again. Were Joe Stuntz and Norman Charles shooting?
A Yes.
Q What
direction were they shooting in?
A I don't
know, down towards the cars, I guess.
Q Towards the
cars, and by that you mean the two agents' cars, as opposed to the cars on
Highway 18?
A Yes.
Q O.k. so
whether or not you could tell exactly where they were aiming with their
sights, they were shooting generally in the direction of the two cars,
weren't they?
A No, I don't
know.
Q Well, were
they shooting down into the little valley there, the bowl?
A Yes.
Q That's all I
am asking.
As I
understood your testimony and as I tried to make notes on it, you said
that at that time one Special Agent was standing behind the uplifted trunk
of his car, is that correct?
A Yes.
Q I am not
sure if you said the trunk was up or you were just saying he was behind
the trunk. Was the trunk up or down?
{892}
A Up.
Q And you
indicated that the other person you saw was shooting a handgun, is that
correct?
A Yes.
Q And that
that was the first time you saw either of the two cars or the two men down
there, that's what they were doing?
A Yes.
Q How many
shots did you observe them to fire from their various weapons the first
time you looked down and saw them shooting?
A I don't
know.
Q Well, was it
10 shots, was it two shots, was it 20 shots?
A I don't
know.
Q Well, about
how many?
MR. HULTMAN: I
object, your Honor. This question now has been asked and answered twice,
that the witness does not know, and further question would be repetitious,
and again an attempt on the part of counsel -- the question has been
fairly asked and fairly answered twice.
{893}
THE COURT: But
the witness has twice that he does not know.
Q (By Mr.
Lowe) Isn't it a fact, Mr. Anderson, that the first time you saw two
people down by those cars, they were lying prone and you thought they were
both dead already?
A The first
time?
Q The first
time.
A No.
Q Isn't it
true that you only appeared on the hill and saw the cars for the first
time after the agents had been killed?
A Yes.
Q That is
true, isn't it?
A Where, on
the hill? I don't understand the question.
Q By the
houses, by the houses.
A I don't
understand the question.
Q All right.
Let me back down a little bit.
Let's get
something straight here because you've used the area, and maybe we're all
misunderstanding. Would you point on Exhibit 71 using the pointer. When
you saw "the hill", tell the jury what you are referring to, point to it.
A This hill
(indicating).
Q That hill
there?
A Yes.
Q When you
went up the first time you say you were by the white house. Were you on
the hill or were you down off the hill?
{894} How does
that hill relate to the white house? Was the white house on the hill?
A No. The
white house is over here (indicating) and the hill is right here
(indicating).
Q All right.
Is the hill behind the white house then?
A Yes.
Q But the
white house is not on the hill?
A No.
Q It's off of
the hill?
A It's on the
hill over here, on this one.
Q All right.
So when you have said from time to time that you were on the hill you are
referring to the hill behind the white house?
A No. The hill
where the house is.
Q The hill
where the house is?
A Yes.
Q Well, I just
asked you if it isn't true that the first time you appeared on the hill,
referring to the one the white house is on, that's what I thought I was
referring to that the agents had already been killed. Now, can you answer
that question?
A When's this?
Q The first
time you appeared on the hill where the white house is, isn't it not true
that the agents had already been killed?
{895}
A No.
Q Is it not
true that the first time you saw the two men that one of them was firing a
rifle and the other was firing a handgun?
A Yes.
Q Well, which
one was firing the rifle?
A The one
behind the trunk.
Q So he was
not just standing behind the trunk, but he was behind the trunk firing a
rifle; is that correct?
A Yes.
Q Did the
agents shoot at you?
A I don't
know.
There were all
kinds of bullets flying around all over.
Q Could you
hear bullets coming by where you were?
A Yes.
Q Is it not
true, Mr. Anderson, that about 11:30 that morning you were in the tent
city preparing the noon meal, or preparing to eat the noon meal, when you
first heard shots, and that you then grabbed your gun and ran up to the
hill, isn't that the truth?
A No. I don't
know what time it was.
Q Well, what
time, at any time that day, did you prepare to eat the noon meal?
A We didn't
have the noon meal.
{896}
Q That was my
question. What time were you preparing, where at any time on that day did
you prepare to eat the noon meal?
A In the camp.
Q Pardon?
A In the camp.
Q In the camp?
A Yeah.
Q And that's
what I'm referring to as tent city, that's what you call the camp?
A Yes.
Q So that is
where you were preparing to eat the noon meal, isn't it?
Q No. We
didn't eat a noon meal.
Q Were you,
you were getting ready to eat the noon meal there, weren't you ?
A Yes.
Q Okay. Now,
you described the first time you looked down at the two cars, and you've
just described what you say as one was standing firing a rifle from behind
the trunk and one was shooting a handgun, and you don't know how many
times they shot. Were you looking at them while you saw this?
A Yes.
Q Did you see
any puffs coming from their guns?
A No.
{897}
Q Would you
have been able to hear gunshots if you were looking at them and they fired
their weapons?
A Yes.
Q Do you know
if they fired at all while you were looking at them?
A No.
Q Well, then
why did you say that one special agent was shooting a pistol, or shooting
a handgun?
A Well, they
just kept on going like that (indicating).
Q Well, what
do you think he was doing instead of shooting
A I don't
know.
Q Was it, did
it reasonably appear to you that he was shooting a gun?
A Yes.
Q All right.
After that did you turn away or move away at some point to where you were
no longer observing those cars?
A Yes.
Q What did you
do at that point?
A I moved to
the log cabin.
Q All right.
You moved to the log cabin.
Now, let's,
looking on here, referring to Government Exhibit No. 71, the log cabin is
this house right here (indicating); is it not?
A Yes.
{898}
Q All right.
How did you move, did you move along behind the houses to go there?
A Yes.
Q All right.
So if I can draw a green line here, is that where you went?
A Yeah.
Q All right.
And what did you do when you got over to the log cabin?
A Sat there
and started shooting towards the road.
Q Why were you
shooting towards the road?
A Because
there were cars trying to come in.
Q Did you know
who they were?
A Yes.
Q Who did you
think they were?
A The police.
Q And did you
hit any of the cars, do you know?
A No, I don't
know.
Q Has anyhody
at any time, whether it's Special Agent Adams or anybody else, suggested
to you that you could be charged with attempted murder for shooting at
those cars?
A No.
Q Do you know
that you could be?
A Yes.
Q Does that
worry you a little bit?
A Yes.
{899}
Q How long did
you start shooting, or how many shots did you fire at those cars would you
estimate?
A I don't
know.
Q Fifteen
minutes, would you say?
A I don't
know.
Q Was it more
than that, or less than that do you think?
A I don't
know. I didn't have a watch.
Q You have
some idea about time. Was it a short period of time or was it a real long
period of time or you just don't know?
A I just don't
know.
Q All right.
Did something occur to make you move again to another position, or back to
where you were before?
A Yes.
Q What
happened?
A Gunfire just
started coming from the road all over.
Q Meaning
heavier gunfire?
A Yes.
Q And what did
you do then?
A I moved back
to the white house.
Q And when you
got back to the white house did you once again see the cars down below?
A Yes.
Q And as I
made notes you said that the second time you saw the cars one of the
special agents, one of the people down there {900} that you saw, had no
shirt on; is that correct?
A Yes.
Q And he was
tying a bandage on the other person; is that true?
A Yeah, I
think so.
Q What made
you think he was tying a bandage on?
A I don't
know. The other guy got hit. I didn't see him sitting up or anything.
Q Was he tying
it on his leg, arm or head?
A I don't
know.
Q Why would
you say he was tying a bandage on if you can't even tell what part of the
body he was looking at?
A I don't
know. I didn't know what he was trying to do.
Q Well, did
you see him take his shirt off?
A No.
Q Did you see
him holding his shirt in his hand?
A No.
Q Did you see
the other agent with the shirt on him somewhere?
A No. I didn't
see the other agent.
Q Well, can
you tell this jury anything that you saw that makes you now testify that
you thought the one agent was tying a bandage on the other?
A Well, I
don't know, because I didn't see the other guy sitting up or anything.
Q Isn't if a
fact, Mr. Anderson, that the Government suggested {901} something about a
bandage to you?
A No.
Q You never
heard that from the Government?
A No.
Q And you have
nothing you can tell this jury that would give them any idea why you would
think there was bandaging going on?
A No. Just
that I didn't see the other agent.
Q And you say
one of the agents, one of the people that you saw down there, was
standing, but you don't know which one; is that correct?
A Yes.
Q You don't
even know whether it was the one with the shirt on or the shirt off, is
that true?
A The one with
the shirt off, he was standing.
Q The one with
the shirt off was standing?
A Yes.
Q Well, then
you do know which one was standing, the one with the shirt off was
standing?
A Yes.
Q You couldn't
see the other one at all, is that your testimony?
A No -- yes.
Q What was the
agent who was standing without the shirt on doing? Was he firing, aiming?
{902}
A I don't
know.
Q Did you hear
any gunshots?
A No.
Q Was he
yelling or calling or just standing there, or crouching or hiding? Can you
tell anything of what you saw?
A I don't
know. I didn't see him. He was hiding I think.
Q Now, wait a
minute. I thought you just said you saw him standing there with no shirt
on.
A I saw him
standing there with no shirt on.
Q Well, now
was he standing or was he hiding?
A Standing.
Q I must have
misunderstood what you said a moment ago. I thought you said he was trying
to hide. Take a minute. I mean I want you to take the time that you need
to give a proper answer.
What was he
doing?
A He was
standing behind the car. Standing behind the car?
A Yes.
Q Standing
behind which car? What color?
A The one with
the trunk open.
Q What color
was that, do you remember?
A No.
Q Do you
remember the trunk was open, but you don't remember the color?
{903}
A Yes.
Q Special
Agent Adams asked you about the car with the trunk open?
A I don't
know. I don't remember.
Q Possible he
did?
A I don't
remember.
Q Did you
shoot down there at that time?
A No.
Q What did you
do next? Did there come a time when you turned away?
A I just stood
around for a while because I was scared.
Q How long
would you say you stood there and looked at the agent while he was
standing up there without a shirt on? Ten or fifteen minutes, two or three
minutes, half hour?
A Five
minutes.
Q About five
minutes?
A Yes.
Q And then
what did you do?
A I don't
know. I don't remember.
Q You don't
remember?
A No.
Q What's the
next thing you do remember?
A I don't
know. I think I ran back down to the camp.
Q You think
you ran back down to the camp?
A Yes.
{904}
Q When you
were testifying on direct examination my notes indicate that you said that
you kept running back and forth between the white house and the log cabin.
Was that true when you said it? Does that jog your memory?
A Yes.
Q So after you
saw the agent standing without the shirt did you run back to the log
cabin; is that your testimony?
A Yes.
Q Are you sure
about that now, or are you just guessing?
A Yes, I'm
sure.
Q You are
sure?
A Yes.
Q All right.
How long -- what happened when you got over to the log cabin?
A I just
started shooting out towards the Jumping Bull Hall.
Q At people?
A No. At the
hall.
Q Just at the
hall?
A Yes.
Q Why would
you shoot at Jumping Bull Hall?
A I don't
know.
Q Was there
anybody in Jumping Bull Hall?
A No.
Q Let me
understand the first time you shot at the log cabin you were shooting at
people, and the second time you were {905} shooting --
MR. HULTMAN:
That's an incorrect statement of the record, Your Honor. Again I object.
He said he was shooting at cars. I think he made it very clear. Not at
people.
MR. LOWE: I'll
clarify that.
Q (By Mr.
Lowe) Mr. Anderson, were those cars driving themselves or were there
people driving those cars?
A There were
people driving them I guess.
Q And you were
shooting at those people in the cars, weren't you?
A No. At the
cars.
Q Just at the
cars. But you were being careful not to shoot at the people, only the
cars?
A Yes.
Q But at this
time you were shooting at the house and there was nobody in the house?
A Yes.
Q And you were
careful before to shoot at the cars and not at the two men in the lower
meadow?
A Yes.
Q During this
whole day you shot at only inanimate objects, not people; is that your
testimony?
A Yes.
Q Now, we've
got this green line, and because I can't make a whole lot of green lines
there, what I'm going to do is I'm {906} going to put one for the first
trip and now we've got a second trip. That's two I'll just put there. And
on that occasion how long did you stay out there and shoot from the log
cabin would you say?
A I think
about twenty minutes.
Q Pardon?
A I'm not
sure.
Q Did you say
thirty minutes?
A About twenty
I think.
Q Twenty
minutes.
Well, now
could it have been more than twenty minutes?
A I don't
know. I don't remember.
Q Okay. I'll
take your twenty minutes, and let's talk about that for a moment. During
the twenty minutes, do you know about how many times you shot?
A No.
Q All right.
What happened? You indicated before you kept running back and forth and I
believe your next testimony was you went back. I believe you indicated
that you came back to the white car, white house, and you said you first,
you said you saw nobody in the tree line. Is that correct, that you didn't
see anybody in any tree line? That's what you said the first time it was
asked?
A In the tree
line?
Q Yes.
{907}
A No.
Q It's not
true?
A Which tree
line?
Q Well, pick
any tree line at all along -- point it out here. As you are looking here
there's a tree line that runs right along here all the way down here and
around the back. So as you are looking down from the houses. Did you ever
see anybody shooting from any of those tree lines?
A No. I just
seen Peltier down there.
Q By where the
junked cars?
A Yes.
Q But you said
that the third time you looked at the cars, which is -- you are back now
at the white house again I guess. You saw nobody?
A No.
Q Is that
correct?
A Yes.
Q You didn't
see anybody down by the cars at all and then I gather you went back over
to the log cabin again, is that what happened?
A No. I went
down to the camp.
Q You went
down to the camp.
All right.
Taking the pointer, will you point and indicate where you went when you
went back to the camp from the white house after the third look at the
cars.
{908}
A Ran back
down this way, down here (indicating).
Q And went
back into the tent area?
A Yes.
Q All right.
I'll mark that here in purple. And we measured that before to be about
1600 feet. And can you tell me about -- did you run down there or walk
down there or how did you go down?
A We walked
down.
Q You walked
down. How long does it take you to walk a quarter of a mile, a third of a
mile like that back to the tent area? How long do you think it took you?
A I don't
know.
Q Ten or
fifteen minutes?
A I don't
know.
Q What
happened when you got back to the tent area? What did you do then?
A I was told
to load up the pickup. They have a van, a red and white van.
Q Okay. Mr.
Peltier was in the tent area, wasn't he?
A Yes.
Q And you then
described in your direct testimony a fourth time that you looked at the
FBI cars; and did you run back up from the tent area, or walk back up from
the tent area again to the white house for that fourth look?
A No.
{909}
Q How did you
get back up there?
A I don't
remember that.
Q You don't
remember that?
A No.
THE COURT:
Court is in recess until 3:25.
MR. LOWE: All
right, sir.
(Recess
taken.)
{910}
THE COURT:
Bring the jury in.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
Q (By Mr.
Lowe) Mr. Anderson, you have identified a number of people by name who you
saw were in the area and who were involved on this particular day and
you've identified them by name. I show you Defense Exibit 79A which are
some pictures and I show you on page 3, photograph No. 3 and I ask you if
you know who that is and if so will you state who it is?
A No.
Q I call your
attention to the second row from the rear back there and there is a man
sitting in the middle of that row. I ask you if that is the Dino Butler
you referred to being in the encampment area on the 26th of June?
A Yes.
Q Is the woman
sitting on his right Nilak Butler, the Nilak you spoke of?
A Yes.
Q Is the next
young woman Jeannie Bordeau, the woman you referred to?
A Yes.
Q Now at the
beginning of the recess or when we recessed, we were talking about your
various trips back and forth between the white house and the log cabin and
we had talked about, just to refresh where we are because I don't want to
confuse you as {911} to where we were, on the first occasion you said you
saw the FBI car, someone was standing behind the trunk and someone was
shooting with the handgun. The second look you said you saw someone
standing with no shirt on and you did not see the other one. Then you said
you kept running back and forth, you said, on the third trip, I think we
were talking at that point about the third trip and I will refresh your
recollection. Going back a couple of questions just before the break to
try to keep the continuity here, that I had pointed out to you that you
were asked about seeing anybody in the tree line and in response to my
question you said that you saw Mr. Peltier in the tree line at a point I
believe Mr. Hultman marked as "P1" on Government Exhibit 71 and I think it
was just about that point that we took our recess. What I was getting to
and I want to get to now is that when you were asked these questions this
morning, the questioning that went about the tree line, and you indicated
that you saw Mr. Peltier at the tree line and you said, Mr. Hultman said,
"And what was he doing?" And you answered, "I don't know"; the question:
"Did you see him at any other place?" Answer: "No." Then Mr. Hultman said,
"I'm going to mark the map," and then he went up and marked the exhibit,
and then he said, "Now when is the next time that you looked down to where
the agents' cars were? What did you see the next time you looked down to
the agents' cars?" And your response was, "Nobody," and he asked you, "Was
anything going on at that time?" And you {912} said "No."
Now is that
your recollection so far?
MR. HULTMAN:
Your Honor, I would object at this time on the grounds that the record, as
I clearly understand it from this morning, was that on the third occasion
in looking down that there was a specific reference to people seen and on
the fourth look down there was none. That's as I clearly understand the
record.
MR. LOWE:
Which stands for the proposition that's why we should have court reporters
in the courtroom instead of Counsel remembering. I'm reading from a
transcript this morning and that's exactly what the court reporter took
down. I haven't finished it, if Mr. Hultman will allow I'll continue my
questioning and go through the rest of it also. May I?
THE COURT:
Proceed.
Q (By Mr.
Lowe) Do you remember the question that is before you, do you remember
when Mr. Hultman said, "What did you see at the next time you looked down
to the agents' cars?" And you answered anybody, excuse me, "Nobody," and
then the question was, "Anything going on at that time?" And your answer
was, "No." Do you remember that much?
A Yes.
Q And that
was, am I correct in the way your answers were there that that was what
you were observing at the time you saw Mr. Peltier in the tree line, that
nothing was going on at the {913} agents' cars, is that correct?
A I don't get
the question.
Q When you saw
Mr. Peltier at point "P1" you told us about that, is that when it was that
you observed nothing was going on at the agents' cars right at that point?
A No. That was
the second time.
Q You say that
was the second time.
If I
understand correctly, the second time you told us you saw the agent
standing there with no shirt on so this must have been the third time, am
I correct? The first time you were shooting over the trunk, second time he
was standing there with no shirt on, the third time you said there was
nothing going on and you didn't see anybody. Am I correct about that?
A Yes.
Q Now then Mr.
Hultman asked you, "Did you see any individuals down at the agents' cars
at any time?" And then you said, "Yes." And am I correct in presuming that
this was a fourth time you were referring to and you described seeing,
Butler, Robideau and Peltier?
A Yes.
Q Peltier
couldn't be up at the tree line and down at the cars at the same time,
could he?
A No.
Q Between the
third time when you saw Peltier in the tree {914} line and saw nothing
happening down at the FBI cars, between that time and the time that you
saw the three men down at the FBI cars, where had you gone or what were
you doing in between those two time periods? Had you gone back to the log
cabin?
A Yes. I think
so.
Q Do you know
on that occasion about how long you stayed back at the log cabin?
A No.
Q Do you know
at the time that you were observing Mr. Peltier at the tree line and
observing that nothing was happening and you couldn't see anybody down at
the FBI cars how long were you there at that time?
MR. HULTMAN:
Your Honor, might I have an opportunity to voir dire just on one question
and that is --
MR. LOWE:
Judge, I object to this. I ask we have a side bar. I don't want any
signals to this witness.
MR. HULTMAN: I
think Counsel is misleading the witness.
MR. LOWE:
There is a proper time for that on redirect. I don't want this witness to
get any signals from --
THE COURT:
Counsel approach the bench.
(Whereupon,
the following proceedings were had at the bench:)
THE COURT: I
have given defendant unlimited voir dire on examinations from when a
witness is under examination. I don't quite understand your objection to
any voir dire at all. {915} I'm trying not to interfere with the way you
want to present your case but on the other hand --
MR. LOWE:
Judge, my understanding of voir dire is normally used to inquire about the
basis for introducing an exhibit. That's when we used it primarily with
pictures and things of that nature. I'm not --
THE COURT:
Normal use of voir dire is for purposes of laying the foundation for an
objection to the question.
MR. HULTMAN:
That's correct, Your Honor.
MR. LOWE: None
of these questions are objectionable. What Mr. Hultman is trying to do is
redirect.
THE COURT:
This is why I've called you to the bench. What is the voir dire?
MR. HULTMAN:
Your Honor, I would like to lay the foundation --
MR. LOWE: Be
quiet. I don't want the witness to hear. The witness is listening.
MR. HULTMAN: I
think it's very clear the witness referred on direct testimony to four
specific times and he did not match them up as Counsel is now in
examination matching them up. All I would like to do for the purpose of
preparing for an objection is to find and indicate from the witness as to
what was the simple sequence of the four and that is the part Counsel very
carefully left out the third one in his examination which this morning's
total record indicates his {916} third observance is when the three people
are at the car and that's the basis for my questioning on voir dire.
MR. LOWE:
That's redirect, Judge.
THE COURT:
That can be brought out on redirect.
MR. HULTMAN:
All right.
THE COURT: As
long as you're here, though, I will say and I will advise Counsel on both
sides, I do object to Counsel in asking a question asserting, making an
assertion that is not supported by evidence in the case. For example, Mr.
Lowe, at the beginning of your examination you made some comment about
were you there when Leonard Peltier said thus and so. There is no
evidence, probably will never be evidence as to what Mr. Leonard Peltier
said.
MR. LOWE: This
witness said that. In our creating that question, I got this out of the
FBI 302 that attributed that statement to the witness. That's why I asked
it.
THE COURT: But
it was not stated on direct examination and it is not evidence in the case
until it's brought out.
Anyhow, I just
cite that as an example. I did not do anything about it.
MR. LOWE:
We'll try and rephrase it in a different form.
THE COURT: All
I'm saying is Counsel should not make an assertion not supported by the
evidence. In other words, present matters which might be needed by the
jury as statements {917} of evidence if they're not supported by the
record.
MR. LOWE: Very
well.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
Q (By Mr.
Lowe) I believe where we left off, Mr. Anderson, you had just been at the
white house and had observed Mr. Peltier in the tree line and observed no
activity at the cars, had gone back to the log house and now, as I
understand from the question I was referring to, you indicated there was a
fourth occasion when you did see Butler, Robideau and Peltier. I'll ask
you where were you located when you made that citing?
A At the white
house.
Q At the white
house again.
Now I want to
be sure, some question has been raised, I want to be sure that I
understand, that I have not misstated these trips. That so far we have
talked about four specific times that you looked down and saw the cars.
The first time, going in order now, the first time you saw a man firing
standing behind the trunk of one weapon, one car, and the other man was
shooting a handgun. That was the first time in sequence. The second time
you observed one of the agents with no shirt on and for reasons that you
concluded that he was trying to tie on a bandage or do something and you
don't know where the other agent was on that one. That was the second
time.
MR. HULTMAN:
Your Honor, I would object at this time {918} because again Counsel's
attempting to do the same thing. I would suggest and I would have no
objection if Counsel would ask, that's why I asked the opportunity to voir
dire, if he would just ask the witness to tell the sequence of the four
events and I would have no objection of any kind.
MR. LOWE: I'm
on cross-examination. This is perfectly cross-examination. I'm trying in a
very fair way to corroborate what this witness has said and make sure
there is no confusion in his mind or the Court's mind and I think I'm
entitled to phrase my questions my way as long as they are proper.
THE COURT:
Proceed.
Q (By Mr.
Lowe) That was the second time. The third time was when you saw Leonard
Peltier in the tree line and looked down and saw no activity at the cars,
nor did you see anybody at the cars and that was the third time. Then the
fourth time you saw Peltier, Butler and Robideau down at the cars and
those are the only four times that's talked about so far. Did I correctly
summarize those four times?
A I can't
remember that now. I think it was the third time I saw the three standing
down there by the car.
Q Was that
before or after you saw Mr. Peltier in the wood line?
A Before.
Q It was
before you saw him in the wood line?
{919}
A Yes.
Q What did you
do when you saw the three of them down at the cars, where did you go from
there?
A Back to the
white house. Went to the cabin.
Q You went
back to the cabin again?
A Yes.
Q I thought
you went back to the tent area. You didn't go back to the tent area?
A Confused.
Yes. I went
back down to the tent area.
Q This is
after you saw then down at the cars?
A Yes.
Q So after you
saw them down at the cars you went to the tent area. Do you know what they
did down at the cars after you left to go to the tent area?
A No.
Q Did you go
directly from the white house to the tent area at that time when you saw
them down by the cars?
A Yes.
Q Mr.
Anderson, if you left the white house while you saw them down at the cars
and went directly to the tent area, will you tell the jury how you could
thereafter see Mr. Peltier in the tree line?
A I think that
was there the second time.
Q That was the
second time?
{920}
A Yes.
Q Now the
second time you told us you saw one of the agents with no shirt on and he
was bandaging somebody. That wasn't the time you saw Mr. Peltier in the
tree line, was it?
A I don't
know. I can't remember.
Q Just a
moment ago when I gave you the sequence and you said, no, you thought I
was wrong, that the third time is when you saw the three men down at the
cars and you said you saw Mr. Peltier in the tree line after that. How
could you have seen Mr. Peltier in the tree line after that if he went
back to the tent area?
A I don't
know.
Q I don't
either.
When you
arrived in the tent area, I thought you told us that Mr. Peltier was there
and he told you to load the red and white van.
A Yes, he was.
Q Now will you
tell the jury if you were at the white house and saw the three men at the
two cars down there and you went directly to the tent area, will you tell
the jury how Mr. Peltier could be at the tent area when you got there if
you had left him at the three cars?
A I don't
know. But that red and white pickup was there. I don't know how that got
there.
Q Where did
you see the red and white pickup back there at {921} the tent area?
A Parked in
the tree line.
Q Parked in
the tree line?
A Yes. Yes. By
the camp.
Q Excuse me a
moment.
{922}
(Counsel
confer.)
MR. LOWE: Do
you have the Government Exhibit 12 or does the Court have that?
Q (By Mr.
Lowe) I show you Government Exhibit 12, and ask you if you can state for
the record what that is?
A It is a red
and white van. Tell the jury what is the difference between a red and
white pickup and a red and white van, where you saw those two different
vehicles.
MR. HULTMAN:
Well, I object, your Honor, there is nothing in this record that indicates
that he saw two different vehicles. The record is very clear that there
was one vehicle.
MR. LOWE: As
much as Hultman might not like it, he has talked about a van and a pickup.
Everybody on the jury knows there is a difference between a van and a
pickup. It is apparent to the naked eye. I think it is proper to ask him
about those two different vehicles.
A That's what
I meant, the van.
Q (By Mr.
Lowe) Do you know what a pickup is?
A Yes.
Q Does that
look like a pickup to you?
A No.
Q Why do you
call it a pickup?
A I don't
know.
Q Did the
Government suggest to you that a red and white {923} pickup was involved
in this case?
A No.
Q Why would
you call it a pickup?
A I don't
know. That's what I called it before.
Q You meant
the red and white van instead of the pickup?
A Yes.
Q When you got
back, you have no explanation how Mr. Peltier could get from the FBI cars
down there, as you go down the road to the tent area and when you arrive
in the tent area, he is there ahead of you?
A Yes.
Q Now, during
the time you were running back and forth from the white house to the
cabin, the log cabin, you said you kept running back and forth. Was there
any shooting going on during that time?
A Yes.
Q Where was
the shooting taking place?
A Coming from
the river.
Q Is that the
only place you heard shooting during that time?
A And going
towards the road.
Q Shooting
towards the road?
A Yes.
Q That's the
only two places you heard any shooting?
A Yes.
Q And is that
true until you got back to the tent area?
{924}
A Yes.
Q O.k. Now,
just to be sure we are clear here, I marked that little green area, and at
one point I marked "1 and 2". I am going to take that off now because
there just wasn't two spaces I wanted to show you. I was doing that in
case we used this slide again.
When you got
back to the Tent City, were there any women there?
A Yes.
Q They were
already there when you got there?
A Yes.
Q And who were
the women that were there when you got back there?
A Jeannie and
Lynn.
Q And when you
observed Mr. Peltier, Mr. Butler and Mr. Robideau down by the two cars,
were they the only people down there that you saw, no women, for example?
A No.
Q Do you know
approximately what time you got back to the tent area?
A No.
Q You don't
know from anybody else making any comments or anything like that?
A No.
Q Do you know
how long it was from the time you got back to {925} the tent area until
the time you all actually went down into the creekbed and started to
leave?
A No.
Q You wouldn't
even have an estimate on that?
A Unh-unh.
(Counsel
confer.)
Q (By Mr.
Lowe) Now, during the time that you all were exiting this area in your
group -- and you were, I believe you said, you went down the creekbed and
went under a conduit and through some woods on a hill, and then you
described being on the move at various times and in various groups for
three or four days -- during this period of time did different people take
turns carrying different weapons and other things that you were carrying?
A Yes.
Q O.k. Do you
have any way of knowing whether -- who ended up with what weapons, or you
just know from time to time who you saw with different weapons?
A I just know
from time to time.
Q O.k. To your
knowledge there was some shifting of weapons back and forth though?
A Yes.
MR. LOWE:
Excuse me.
Q (By Mr.
Lowe) I show you Government Exhibit 37-A for identification, and I ask you
if you have ever seen that weapon {926}
A Yes.
Q Was that one
of the weapons carried out by somebody in the group you went with when you
left the creekbed and went out the way you have described?
A I don't
know. I don't remember.
Q You don't
remember?
A No.
Q Now, you
described this car episode in Kansas. Mr. Peltier was not in that car, was
he?
A No.
Q Now, during
the march-out in the four or five days, three or four days, whatever it
was you were all on the road, was there conversation about the fact that
-- anything about what the FBI would do if they caught up with the group?
A I don't
know.
Q You don't
know whether there was or not?
A No.
Q In all of
the time that you were up on the hill area around the house or the log
house, the white house or the log house, in all that time shooting, can
you tell about how many shots were fired from your weapon?
A I don't
know. I don't remember.
Q Was it more
than 10?
A Yes.
Q More than a
hundred?
{927}
A No.
Q Somewhere in
between?
A Yes.
Q Did your
weapon have a telescopic sight on it?
A Yes.
Q Pardon?
A Yes.
Q Were you
able to use the telescopic sight when you fired the weapon?
A No.
Q Did you keep
the scope on the weapon the whole time?
A No.
Q What
happened?
A I took it
off.
Q What did you
do with it, do you know?
A No.
Q From the
time you first ran from Tent City up to the white house, that is, after
you came all the way around and you described hearing some shots, and then
you grabbed a rifle and ran up, from that time until the time you finally
got back to Tent City and they were loading the red van, how many times in
that period did you go back and forth between Tent City and the white
house?
A I don't
know. I don't remember.
Q Do you
remember whether you did at all?
{928}
A Yeah.
Q What is your
remembrance?
A I remember
that I kept on going back and forth between the white house and the log
cabin.
Q O.k. How
about between rrent City and the white house though?
A No.
Q "No" meaning
you didn't go back and forth?
A I did.
Q You did?
A Yes.
Q How many
times?
A About three
times.
Q All right.
Now, you have described to us the shooting from the white house and
running back and forth to the log cabin, with these three or four
different times that you observed the FBI cars. How do these three trips
back and forth to Tent City fit in there, when did they take place?
A I don't
remember.
Q Did they
take place between some of the sightings of the FBI car?
A Yes. I think
some of them -- I am not sure though.
Q With all
this activity from the time you got up to the white house the first time
-- you have described these various times that you were there -- and the
log cabin, and now you {929} tell us there were some occasions when you
were back into Tent City during that time, up until the time you finally
saw Mr. Peltier and Mr. Robideau and Mr. Butler, would you say that the
time that elapsed from when you were sitting on the roof of the house was
more or less than an hour?
MR. HULIMAN:
Well, I object, your Honor, to this. I have no objection to asking if the
witness knows, but he has been asked the questions about -- at least a
half dozen times, and he has indicated that he had no watch.
MR. LOWE: I am
asking for an estimate. The witness has handled that question well before.
If he says he doesn't know, why, all right.
THE COURT: You
may answer.
A I don't
remember.
Q (By Mr.
Lowe) Because it may be quite important at some point, particularly with
other witnesses, will you take the pointer please and turn around and one
more time, as closely as you can with the red tip of the pointer, outline
the route that you took from the white house back to the tent area on the
last time that you went back there?
A (Indicating)
Down this way, around down this way (indicating), around this way
(indicating), and across up here (indicating).
Q So you
generally followed the road to where it says "Special Agent Williams'
car", where it is written there and {930} not the symbo], and you cut over
to the tent area?
A Yes.
Q Were you
running while you did that?
A No.
Q Walking?
Q Yes.
Q Walking
fairly fast?
A Yes.
MR. LOWE: May
I just have a moment, your Honor? I am very close to finished.
(Counsel
confer.)
Q (By Mr.
Lowe) I understand from your answer, Mr. Anderson, that because you had no
watch or other time refereces you are unable with any certainty at all to
give us any time references other than the ones you have already testified
to, that is, you have no way of saying where you were at any particular
time, like 4:00 o'clock, 1:00 o'clock, or 7:00 o'clock, but only can
testify as you have already, am I correct in that?
A Yes.
Q The finally
area I want to make brief inquiry, you gave me an initial answer to this
but I wanted to get some more detail. I believe you told me that you
believe the religion of the pipe, is that correct?
A Yes.
{931}
Q And this is
the -- do you believe in the ancient Indian ways and religions?
A Yes.
Q And do you
practice the traditional Indian religion?
A No, not very
much.
Q Not very
much, but you believe in it?
A Yes.
Q I call your
attention to this object which is on the defense table, and ask you if you
know what it is?
A Yes.
Q What is it?
A Pipe.
Q Is that the
sacred pipe?
A Yes.
Q And you told
me when you -- well, let me ask you this way: When I told you this morning
we were going to be talking with you and you were asked whether you would
take your oath on the pipe, weren't you?
A Yes.
Q You didn't
do that, did you?
A No.
MR. LOWE: I
believe that's all I have, your Honor.
(Counsel
confer.)
MR. HULTMAN: I
have no further questions, your Honor.
THE COURT: You
may step down.
{932}
(Witness
excused.)
MR. CROOKS:
Your Honor, if it please the Court, the United States would now call Mr.
Don Van Fleet; and I might state to the Court that Mr. Van Fleet is being
called a little bit out of sequence, and counsel has gracefully consented
to have him come in at this time because of personal problem of his.
THE CLERK:
Give the name?
MR. CROOKS:
Don Van Fleet -- Van Pelt, I am sorry.
THE COURT:
Excuse me, Van Pelt?
MR. CROOKS:
Yes. I misspoke, your Honor. Van Pelt, not Van Fleet.
{933}
DONALD VAN
PELT,
being first
duly sworn, testified as follows:
DIRECT
EXAMINATION
BY MR. CROOKS