VOLUME VIII
Pages 1447-1689
INTERROGATION
OF WITNESS
Pages
1447-1449
{1450}
FRIDAY MORNING
SESSION
March 25, 1977
3:45 o'clock,
A.M.
(Whereupon,
the following proceedings were had in chambers, the Judge and juror
Jeffrey McClean present:)
THE COURT: I
just want to tell you first of all that we're very sorry to hear about
your father and I wanted to find out from you whether you felt you could
continue as a juror.
MR. McCLEAN: I
suppose I could but I really feel that I would rather be home right now.
THE COURT:
When is the funeral going to be?
MR. McCLEAN:
I'm not sure. There is a little talk last night about that it might be
Monday being so close to the weekend.
THE COURT: I'm
going to take it up with the lawyers in the case but I wanted to talk to
you first to see how you felt about it. If you did decide that you wanted
to continue as a juror, I would arrange for a marshal to take you home
tonight. Of course, you'd have to come back, and take you home again
tomorrow and on Sunday. If the funeral was Monday that would create a
little bit of a problem because that would mean we'd have to recess the
court and keep 13 other jurors idle at that time. But, as I said before,
I'll make a decision in your case. I wanted to find out how you how you
felt and that I will talk to the lawyers.
{1451}
The impression
I get is you would continue but you would prefer not to.
MR. McLEAN:
Yeah. Right.
THE COURT: Is
that a correct statement of how you feel?
MR. McCLEAN:
Yeah. Right.
THE COURT: Now
do you have any questions?
MR. McCLEAN:
No. Not that I can think of.
THE COURT:
Well, I will meet with the lawyers and then I will advise you.
MR. McCLEAN:
Okay.
THE COURT: As
long as I know you would continue then, but you prefer not to, I can go on
from there. It you did continue it would not affect, do you feel it would
affect your jury service?
MR. McCLEAN:
No. Not that I can see at this time.
THE COURT:
Well, what I'm asking, do you think it would affect your ability to act as
a juror in the case under the test that I reiterated so many times while
we were picking a jury?
MR. McCLEAN:
No. Not really. Not that I can think of.
THE COURT: I
would have assumed that would be true but I wanted you to tell me whether
you thought it would. Well, we'll let you know very soon.
{1452}
MR. McCLEAN:
Okay.
THE COURT:
Thank you for coming.
{1453}
FRIDAY MORNING
SESSION
March 25, 1977
(Whereupon,
the following proceedings were had and entered of record on Friday
morning, March 25, 1977, at 9:00 o'clock, A.M., without the jury being
present and the defendant being present in person:
THE COURT:
Counsel approach the bench, please.
(Whereupon,
the following proceedings were had at the bench:)
THE COURT:
Yesterday afternoon the father of juror number twelve, Jeffrey McClean,
was killed in a train-automobile accident. I instructed the marshal last
night to take Mr. McClean to Jamestown for a visit, and bring him back,
and he did.
I saw Mr.
McClean in chambers this morning, with a court reporter, and I asked him
if he would continue as a juror. He said that he would prefer not to, but
he said that he would.
I asked him
when the funeral was going to be. He said it had not yet been determined,
but probably Monday. I told him that I would take it up with the lawyers,
that if he was asked to continue that I would arrange to have a marshal
take him home for a visit tonight, tomorrow and Sunday in the company of
the marshal.
I asked him if
he were to continue as a juror if he felt that it would, this would affect
him ability to meet the duty of a juror as I have reiterated to them times
during the {1454} selection process, and he said that he did not think it
would.
Now, I would
like for counsel to express their point of view on this situation.
MR. HULTMAN:
Well, I would defer first, Your Honor, to the defendant as to any feelings
because maybe I would agree with whatever, you know, whatever
determination that would be.
MR. TAIKEFF:
Subject to what Mr. Peltier may say on the subject, and I think this is
the kind of thing we should consult with him about. I would say that under
other circumstances I would not feel that the loss of a parent would make
a juror ineligible to serve, or incapable of serving. But the one thing
which Your Honor said that does concern me is that the juror said he would
prefer not to. And I think that means his mind would be preoccupied to too
great an extent with the situation; and if it was an accidental death
rather than a natural passing, it's hard to imagine that he'd be able to
keep his kind off that incident.
And I think he
probably would, even though, make a conscious effort to do. Otherwise he
would be distracted by the knowledge of what took place and his life, in
his personal life.
I'm fairly
certain that our position will be that he should be excused. But I think I
owe it to Mr. Peltier to ask him about that.
{1455}
THE COURT:
Yes. Please do.
MR. TAIKEFF:
May I?
THE COURT:
Yes.
(Defense
counsel conferred with the defendant.)
{1456}
(Counsel
confer.)
MR. TAIKEFF:
May we approach the bench?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. TAIKEFF:
Your Honor, as your Honor has noted, we discussed the matter with the
Defendant for more than five minutes, possibly close to 10 minutes; and he
is agreeable that it would be appropriate under the the circumstances to
allow the juror to be excused.
MR. HULTMAN:
The Government would join that application, your Honor.
THE COURT:
Very well, I will excuse him.
MR. TAIKEFF:
Thank you.
(Whereupon,
the following proceedings were had in the courtroom, the Defendant being
present:)
THE COURT:
Would you ask Mr. Muir to come in, please?
Mr. Muir,
would you approach the bench and will counsel return please?
(Whereupon,
the following proceedings were had at the bench:)
THE COURT: Mr.
Muir, would you advise Mr. McClean that he is excused from further jury
service and will arrangements then be made to return him home?
MR. MUIR: Yes.
{1457}
THE COURT:
Very well.
MR. MUIR: We
came back last night in with his wife. She stayed some place. They have
their car here.
THE COURT: So
they have their own means of return?
MR. MUIR: That
is correct.
THE COURT:
Thank you.
(Whereupon,
the following proceedings were had in the courtroom, the Defendant being
present in person:)
THE COURT: Are
counsel ready for the jury to be brought in?
MR. TAIKEFF:
There is only one matter I would like to bring to your Honor's attention
before that.
Yesterday at
approximately 5:30 Mr. Crooks notified us that Myrtle Poor Bear, who up to
that point had been and perhaps still is, in the custody of the Marshal in
protective custody, was available for us to make inquiry of concerning the
possible consent interview.
Mr. Crooks
indicated to us that in his opinion she probably would not agree to such
an interview, and he suggested that we undertake to question her at that
time. We arranged for a court reporter to come with us to the Marshal's
office, and when we arrived there, she was in the Marshal's private
office. Mr. Warren, the Chief Deputy, and another Deputy Marshal, probably
two -- I don't recall exactly -- were also present; and we asked Mr.
{1458} Warren if he would allow us a moment alone with Myrtle Poor Bear so
that we could make inquiry, and he said, "No," he would not; and then he
said -- and I will try to quote him -- "Ask her the one question and get
her answer."
Apparently Mr.
Warren was fully apprised of the fact that she was going to be asked only
one question, namely, "Do you want to speak with us?" And that her answer
would be "No".
I am not
certain how he knew that, but in any event I wanted to make sure that that
matter was brought to your Honor's attention.
Anticipating
the possibility that she would refuse consent interview and because Mr.
Crooks indicated that once we had spoken with her, she would be released
from protective custody, we secured a subpoena from Mr. Hanson requiring
her appearance this morning at 9:00 a.m.
At the end of
the confrontation with her, we asked Mr. Warren to serve that subpoena,
which he did.
Now, I do not
see her, and I am not certain to what extent she has complied with the
subpoena or whether she is still in the Marshals custody. If she is, it is
not necessary for her to wait here in the witness room. We made the
subpoena returnable this morning so that the Court could continue some
form of jurisdiction over her.
I am wondering
if the Government would advise us as {1459} to her status. If she is in
the Marshal's custody, then of course, we presume there will be no release
from that custody until such time as we call her to the witness stand.
MR. CROOKS:
Your Honor, could we approach the bench on this matter?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. CROOKS:
Your Honor, because I am the one he was referring to, I would like to
respond to this.
I don't know
what the insinuation was supposed to be, insofar as the Marshal and myself
is concerned; but so there is no question, the Marshal was advised that
this witness had indicated that she didn't particularly want to talk to
anybody including myself about this matter again, and that I had told her
that in the judgment of the United States Attorneys office she probably
would not be called now as a witness; and I advised Mr. Warren that, of
her feelings, and advised him that she was in his custody and that he
should be present to make sure that her rights were honored and that she
was fully protected; and it seems to me that that was completely proper on
the part of Mr. Warren, and I rather resent the implication that Mr.
Warren was doing something improper. She was in protective custody, and
that was the reason she was made available {1460} to them in the manner
she was.
Insofar as her
present status, I assume that we have not now released her from protective
custody because of the subpoena that was served; but insofar as the
Government is concerned, we have no particular further interest in her
other than that she does remain available, and it is my understanding from
Mr. Warren that they will make her available when she is called as a
witness.
MR. TAIKEFF:
That satisfies our needs, your Honor.
MR. CROOKS:
She is just like any other witness. I don't think that she has any
obligation to sit in their office or any other particular place. When she
is wanted as a witness, the Marshal will make her available.
MR. LOWE: Let
me add something which I learned last summer. It was my first contact with
the Marshal's Protective Service Division, as they call it. They take the
position that any time a witness says to them, "I no longer want
protective custody," the witness -- it is not for the United States
Attorney or the Court or anybody -- and then they will immediately release
the person and relieve her of her presence, and do whatever else they need
to do.
Our concern is
that if this witness is taken somewhere in the protective custody status,
California, South Dakota or Minnesota or wherever it might be, and at some
point {1461} the witness says, "I no longer want to be in protective
custody," we ought to have some notice to the Court, or the Marshals ought
to at least bring her back here so she is here where she is pursuant to a
subpoena, where we have some access if she is going to be called as a
witness.
All we are
asking for is some notice. We don't want to find ourselves without a
witness. That's the situation.
MR. HULTMAN:
Your Honor, could I also respond?
Mr. Lowe has
correctly stated the posture, your Honor; and I would want that made very
clear, and I say this in all good faith. I mean, she is here; and I
believe she is still here. I haven't seen her or anything, but that was
the intention, that she remain here until you had the opportunity to do
the things you wanted; but I want to make it very clear, your Honor, that
the Government cannot be responsible under the circumstances. As Mr. Lowe
says, once a witness in protective custody -- because it is their decision
in the first place, and it is their decision to revoke it.
Any time that
she should desire, as of the time we are standing here right in this
courtroom, right now, she no longer wants protective custody, at that
point the Governments obligation is in no way to keep her. You would be
the first ones here at the bench were it somebody else raising some
problems.
{1462}
MR. TAIKEFF:
That's exactly why we called the matter to your Honor's attention, so your
Honor could have her produced and instruct her that she is subject to the
jurisdiction of the Court and perhaps advise the Marshal's Service that
there is an obligation to return her here rather than turn her loose.
MR. HULTMAN:
They can't do that if she makes such decision. They can't keep her in
custody. She is like any other witness, like the ones that I have had some
problems and some difficulties with from that standpoint.
MR. TAIKEFF:
In that case we would ask that she be held as a material witness and
released on her own recognizance in the Marshal's custody; and thereafter
on her own recognizance she be given an instruction that if she fails to
appear she would be guilty of a Federal felony with five years'
imprisonment. She is an important witness we are asking for.
MR. LOWE: Our
concern is that normally a witness subpoenaed would remain until you call
him. The Protective Service may not want to keep her in town. They may
feel it would be more secure to take her to Minneapolis or Kansas City,
where I think they took some last year. That would make the normal
practice of a witness subpoenaed just being here so we can check on them
every day. If they don't show up, at least we know they {1463} are not
around. We have no way to keep track of her if she is in protective
custody. We feel it is reasonable for the Marshal's Service to return her
to the situs of her subpoena. We have no objection to the Marshal
retaining her in protective custody; but if they decide they are not going
to be responsible further, they should return her to the Court.
MR. HULTMAN:
If the Court so ordered, it is a matter for the Court.
What I am
saying clearly on the record, in no way can I be held responsible from the
very beginning moment that a person in protective custody says, "As of now
I am leaving." The Marshal at that time can do nothing unless there is
some other type of order that gives the Marshal some authority to act,
something other than that of being a witness in protective custody.
What I am
saying, I want to make very clear, as of right now, and that's why the
notice was given last night. I have tried to do that with every witness
once a determination has clearly been made on the part of the Government,
and I gave some more names this morning to counsel for the Defendant. Once
we make a decision that the witness is not going to be called, there is no
reason for me to call her, I have an obligation then to release that
subpoena; and if it is somebody in protective custody, that doesn't {1464}
change that status, but if that person makes a determination, there is no
way in which the Marshal has authority from that point on to produce her
anywhere or any time or under any circumstances.
That's what I
want made clear, and that's why I think counsel has got to take whatever
measures and means they wish to take in order to insure that the witness
is available, your Honor. I am not going to be placed with that
responsibility because it isn't mine at this particular time.
MR. LOWE: Let
me advise you so you understand the context of this witness, that this
witness has stated under oath in writing that she was an eyewitness.
MR. TAIKEFF:
To the killing of the agents.
MR. LOWE: To
the killing of the agents, not just in the area, she saw the agents shot
and killed.
MR. TAIKEFF:
Within 10 feet.
MR. LOWE:
Within 10 or 20 feet. We believe by any definition she is a material
witness. We would ask under these circumstances admittedly there is some
lack of ability to control her.
MR. HULTMAN:
As I was saying before --
MR. TAIKEFF:
(Interrupting) She is an unstable person.
MR. LOWE: She
is an unstable person also.
{1465}
We would ask
your Honor to designate her as a material witness, to put her on her own
recognizance, not asking she be locked up, she be advised of the
consequences of failing to appear as a material witness upon call.
We have no
objection to her being with the Marshals at an undesignated place as long
as she could be produced if we need her, as long as she is in the
Marshal's Service. If she is going to be in protective custody, we
understand there are problems. We understand the material witness status
would exist.
MR. HULTMAN: I
am not encouraging any, I am sure you understand that.
MR. LOWE: Yes.
I think this is a very important witness. She stated under oath she is an
eyewitness. We would apply for that status, Judge. She is a very important
witness.
MR. HULTMAN: I
made the statement with reference to control, not in this case but in
previous proceedings, it is argued and there is certain merit to it in
that I would be the first one to agree that she is a very unstable person,
and that's the part where I would vouch in normal circumstances with a
normal witness that something might happen. There is nothing I would in
any way try and guarantee with reference to this witness.
It is my
understanding that, for example, somebody {1466} from the Wounded Knee
Legal Offense-Defense has talked to her while she was in California just
now immediately before she left. I have had fears that she would go off
and not be available period; and I knew you were concerned about it in the
last trial, of the availability; and very frankly, that's why we sought to
get her in some type of measure where she would be available to whoever
might want to talk to her. I will do everything I can to keep it in that
status. I want the record clear as to what limitations are.
MR. LOWE: You
would not oppose a material witness status?
MR. HULTMAN:
No.
THE COURT: On
the showing that has been made, it is ordered that Myrtle Poor Bear be
retained as a material witness.
Counsel for
the Defendant may submit a proposed order to the Court in accordance with
the understanding that has been expressed here at the bench.
MR. LOWE:
Thank you.
MR. TAIKEFF:
Thank you, your Honor.
MR. LOWE: May
we get that to you after lunch?
THE COURT:
Yes.
{1467}
THE COURT: The
jury may now be brought in.
MR. LOWE: May
we approach the bench.
(Whereupon,
the following proceedings were had at the bench:)
MR. LOWE: Your
Honor, in an abundance of caution, Mr. Hultman and I both feel it would be
advisable if we could have the marshal come to the side bar and have you
instruct him until such time as we can prepare a written order to hold
Miss Poor Bear in a material witness status and merely make sure she stays
in the courthouse until Your Honor can deal with this matter officially.
We both feel that would be wise.
THE COURT Who
is the marshal that --
MR. CROOKS:
Mr. Warren I talked to about her this morning and it's my understanding
that he returned her to, I think, Valley City and she's still in their
custody. My understanding is they were going to keep her in custody until
further indication of whatever kind.
MR. LOWE: I
have no objection to having her kept in Valley City. I think if the
marshal is instructed to --
MR. HULTMAN:
She may say, "I'm going to leave," and walk out right now.
MR. LOWE: Just
so he relays to the deputies with her not to release her until further
order of the Court until we can have a protective order.
{1468}
THE CLERK: I
can phone Mr. Warren to come down, if you like.
THE COURT:
This is in reference to Myrtle Poor Bear. The lawyers are agreed that if
she should ask to be released from protective custody that she is to be, I
have ordered and a written order will be prepared today, that she be held
as a material witness without bond. So if she does ask to be released from
protective custody, it is ordered that she be held at least until this
order, the written order is in her hands, and you be guided by what is in
the written order. They are concerned she might, if she asked to be
released from protective custody she might take off. Defendants feel she
is important to them.
MR. WARREN:
Okay.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
THE COURT The
jurors perhaps are all aware of the fact that the father of juror number
12, Jeffrey McClean, his father was killed in an automobile-train, or
motor vehicle train accident yesterday afternoon and he has been released
from further duty on this jury. So we now have 12 jurors and one alternate
remaining, and just to fill in the empty chair I will ask you, Mr. McKay,
if you will take that chair and then for the rest of the trial occupy the
chair that Mr. McClean had.
{1469}
MR. McKAY:
Now?
THE COURT:
Yes, please.
You may
continue.
MR. HULTMAN:
Plaintiff calls Norman Brown.
IF it please
the Court.
THE COURT: You
may proceed.
NORMAN BROWN,
being
previously sworn testified further as follows:
DIRECT
EXAMINATION CONTINUED
BY MR. HULTMAN:
Q And you
understand that today as a witness that you are still in your renarl;s
sworn on the pipe to tell the truth, do you understand that?
A Yeah.
Q And that
what you did yesterday continues today?
A Yeah.
Q I want to go
back to where we left off yesterday, and at that time I believe you
indicated that there were certain people in certain places when you got to
the area, the general vicinity of the green house, the little shed between
and the white house, is that right? Do you recall that?
A Yeah.
Q Now I want
to direct your attention again to Government's Exhibit No. 71. As I
recall, one of the persons you indicated that was there when you arrived
there was Norman Charles, is that right?
{1470}
A What?
Q Was Norman
Charles one of the persons who was in this area when you got into the area
yourself?
A Yeah.
Q Where we
left off yesterday.
A Yeah.
Q Where was
Norman as best you recall when you first saw time?
A He was at
the white house.
Q At the white
house. And that's the house that's been referred to here as the Jumping
Bull house is that correct?
A Yeah.
Q And do you
remember, did he have any weapon of some kind t that time?
A Yeah.
Q And would
you describe it to the jury for us, please.
A Well, it was
long rifle. Just a long rifle.
Q It was a
long rifle of some kind.
Now you also
indicated that there was another person here when you got there. Do you
remember who that was?
A Mike.
Q And who is
Mike? Mike who?
A Anderson.
Q Mike
Anderson.
Where was Mike
Anderson when you saw him when you {1471} arrived?
A By the white
house.
Q He was also
by the white house. And that's the same house you just talked about that's
the Jumping Bull house, is that right?
A Yeah.
Q And you
indicated that there was another person that you saw not in the area of
the houses but in another part of the area down in an area which you
circled with this "P" in the general area of the "P," is that right?
A Right.
Q Who was
that?
A Leonard.
Q Now did the
other person that was here at the -- pardon? Leonard was here?
A Yeah.
Q I want to
take you back. The person you just referred to prior to Leonard, did he
have a weapon of some kind at the white house?
A Who?
Q This second
person. You indicated you saw two persons here. You talked about one of
then having a weapon of some kind did you not?
A Yeah.
Q Did the
second person have a weapon of any kind?
{1472}
A Yeah.
Q And who was
that person?
A Mike.
Q Mike.
Now what kind
of a weapon? Would you describe what the weapon was as it looked like as
you best recall.
A I think it
was a .22.
Q And was it a
.22 that you also had?
A I think so.
Q Now you
described that. What kind of a weapon did Leonard have?
A Well, when
I, it looked like M-16.
Q And that was
the weapon that you described for the jury a little earlier, is that
right?
A Right.
Q I'm going to
show you now that has been marked as an exhibit in this case and ask you
at the time that you are now talking about and the person you are
referring to and the actions that you described at the end of yesterday,
was it a weapon of this general type and description?
A Yeah. Looked
like that.
Q All right.
Now you
indicated that one of those two persons also had a weapon that looked like
a .22, is that correct?
A Right.
{1473}
Q And that you
had a weapon Norman Brown l t 73 that you had earlier described, is that
correct?
A Right.
Q And I'm
going to show you now the weapon that has been introduced or marked as
evidence in this case as 41A and ask you whether or not it was a weapon of
this kind that you had at the time you're now testifying.
A That kind?
Q Yes. A
weapon. Yes.
A Yeah.
Q Was the
weapon that you saw in the hands of Mr. Anderson at that time, was it one
of a general description of this kind?
A What do you
mean?
Q Well, you
said, I believe, you thought it was a .22, is that right?
A Yeah.
Q Did the .22
in any way resemble one like this in any way?
A No.
Q No. All
right.
Was there
anything else in particular about the one you had from the one he had as
you recall?
A Well, mine
had the scope.
Q Yours had
the scope. Did his have the scope?
A I don't
remember.
Q Is there
anything else about Mr. Anderson's weapon that {1474} you do recall?
A Just a
rifle.
Q Just a
rifle. And a .22 you thought?
A Yeah. .22.
Q Now you said
that just as you came to the hill that you were with another person, is
that right?
A That's
right.
Q And who was
that?
A Joe.
Q And did Joe
have a weapon of any kind at that time?
A Right.
Q And what
kind of a weapon? Describe it to me.
A Well it was
lever action (indicating).
Q All right.
A lever. And
you made --
MR. HULTMAN:
Let the record show that the witness made a signal in this direction
(indicating).
Q (By Mr.
Hultman) What else do you remember about that particular weapon that Joe
had?
A It was a
rifle.
Q And it was a
rifle. Is there anything else you remember about it? Had you ever seen it
before?
A Yeah.
Q And where
had you seen it before?
A In the log
cabin there.
Q You had seen
it before here in the log cabin. The same {1475} place that you had seen
the weapon that you have previously referred to that Mr. Peltier had at
this time is that right?
A Say that
again.
Q You saw it
in the same place, the log house, which in earlier testimony you said that
is likewise a place where you saw a weapon of the same kind and nature
that Mr. Peltier had at this time?
A Yeah.
Q Now I'm
going to show you what again has been marked as an exhibit in this case
and ask you whether or not the weapon that Mr. Stuntz had was one of a
general description of the same type as I'm now going to show you?
MR. HULTMAN:
Let the record show I have in my hands Government Exhibit No. 32A.
Q (By Mr.
Hultman) I want you, Norman, to look at this weapon and ask you whether or
not the one that you have describe that Joe had was one of this general
description?
A Yeah.
Q And wren you
referred to a lever or a lever handle, is his what you were referring to?
A Right.
Q You said you
had seen the weapon that he had before, is that correct?
A Yeah.
Q And you had
seen it in the log house?
{1476}
A Right.
Q Now we've
talked about the two people that were here when you arrived in the general
vicinity of the white house. You've talked about Mr. Stuntz, you talked
about Mr. Peltier. Was there anyone else other than the two men that you
said you had split with and those two persons were who, as you recall?
A Bob and
Dino.
Q Bob and
Dino. You had split with them.
Were there any
other people that you saw in the area that I have inscribed here, in this
area (indicating)? Do you remember seeing anybody else?
A No.
Q At that
time.
A No.
Q That's
everyone?
A Yeah.
Q Is there --
A That's all I
saw.
Q Is there any
question in your mind about that at all, whether or not there was any
other persons?
A Yeah.
MR. TAIKEFF: I
have to object to the form of that question, Your Honor, as assuming a
fact not in evidence. I think the witness said he did not see anyone.
{1477}
MR. HULTMAN: I
will restate it and it's correct, Counsel.
THE COURT:
Very well.
Q (By Mr.
Hultman) My question to you, Norman, are there any other persons that you
saw, there may have been people you didn't see, of course --
A Yeah. I saw
Angie and Ivis.
Q The Long
Visitors that you talked about. They didn't have any weapons with them of
any kind, did they?
A No. No.
Q Were there
any other persons at all that you can recall?
A No.
Q Now at the
time that you said you saw Mr. Peltier and you described his actions and
the type of weapon that he had and the shooting, did you see any other
persons in the entire area that's represented here? Did you see any other
people of any kind?
A Yeah. We
were running, when we got to the houses, two FBI Agents started shooting
at me and Joe.
Q Two FBI
agents started shooting at you and Joe. Where were the two FBI agents?
{1478}
A
(Indicating.)
Q All right.
And would you point out on Government's Exhibit 71 where they were.
A
(Indicating.)
MR. HULTMAN:
Let the record show that, the witness has pointed out the area of Coler's
car as it's represented in writing on Government's Exhibit No. 71.
Q (By Mr.
Hultman) Now, would you tell us when it was, where you were when you saw
the two agents first here in the area you've pointed out, where were you
when you first saw them?
A I was right
by that green house (indicating).
Q By the green
house, and that's this house here (indicating); is that right?
A No.
Q You point
out and you tell us, I don't mean to --
A
(Indicating.)
Q Would you
maybe stand up if you have to in order to actually touch the board.
A
(Indicating.)
Q All right.
You are showing the green house. And where, where around the green house
were you as you best recall with relationship to the green house? Where
were you?
A About right
here (indicating}.
Q All right.
You were somewhere between the green house and {1479} shed the shed. Is
that the general area that you are pointing out?
A Right.
Around that area.
Q Now, what
were you doing at the moment that you saw the two individuals down in this
area (indicating)? What were you doing when you first saw them?
A Well, when I
first, when they come running we saw them. And I stood by that house ready
for the shots, and I was going across. And they started shooting and, you
know, I could hear the rounds go by. And that's when I started shooting
back again.
Q All right.
Now, would you describe what it was you saw here. Would you describe the
scene that you observed in front of you for the jury. In other words, you
tell the jury what it was you saw.
A Well, I saw
there was, I saw two cars.
Q All right,
you saw two cars.
Would you tell
us where the cars were in terms of each then and how would you describe
the two cars?
A Well, one
was pointing, you know, south, and the other was pointing west.
Q All right.
Would you come here and point with the pointer or us the direction that
each of the cars were pointed, and let's start with one car and just talk
about one car for a moment. Would you do that?
A (No
response.)
Q Okay. Tell
the jury one car, start with one car.
{1480}
A Well, this
one was south, pointing south and north.
Q All right.
So was it in a position, if this were to represent a car itself, was it
pointed in generally the direction that that drawing is right now?
A Yeah.
Q All right.
And was it in the general area or position that represented in this
Government's Exhibit No. 71? Is that about how you would best recall it
was?
A Yeah.
Q All right.
Can you tell the jury anything more about that car. Do you remember
anything about the car?
A The hood,
the trunk hood was open.
Q All right.
So that, which the direction you say was, it faced this direction; is that
right?
A Yeah. The
front was facing that way (indicating).
Q But the
trunk hood was up, is that what you are saying?
A Yeah.
Q All right.
Now, is there anything else you remember about car?
A There was an
agent.
Q And where
was the agent with relation to the car itself?
A He was
behind that trunk hood.
Q He was
behind the trunk hood of the car we are talking about?
A Yeah.
Q Would you
describe, did he have a weapon of any kind?
{1481}
A Yeah.
Q And do you
remember what it looked like?
A I think he
had a handgun, or he had one than pumped, a rifle.
Q He had one
that pumped?
A A rifle.
MR. HULTMAN:
And let the record show that the witness gave a motion with his left hand
like a movement of some kind.
Q (By Mr.
Hultman) All right. Have you seen a gun, a pump gun before this particular
time? Had you ever seen a pump gun?
A No.
Q Hadn't seen
one?
A No.
Q All right.
Have you seen one since of any kind, any time, anywhere?
A No.
Q All right.
Now, so as you best recall then the man standing behind this car
(indicating) was behind an open trunk, and he had a weapon that looked
like he was pumping; is that a fair conclusion of what you've just said?
A Right.
Q Was there
anything else that you remember about that car, that person, anything in
particular?
A (No
response.)
{1482}
Q If you
don't, we'll move to the second car.
A I don't
remember.
Q All right.
Now, would you point out to the jury where the second car was with
relationship to the car you've just talked about.
A Right there
(indicating).
Q All right.
MR. HULTMAN:
And let the record reflect that he pointed to a position that was to the
left.
Q (By Mr.
Hultman) Do you remember seeing any junked cars or abandoned cars that
were in the area at all? Do you recall any junked or abandoned cars at
all?
A You mean
these here (indicating)?
Q Well, any
where.
A Yeah. These
here junked cars (indicating).
Q There were
some junked cars.
MR. HULTMAN:
And let the record show that the witness refers to a row of sis
approximately objects in the area just to the West and a little south of
the intersection which is marked with a "P".
Q (By Mr.
Hultman) Do you remember any other junked cars of any kind?
A No.
Q All right.
Now, tell us with relationship to the first car that was pointed generally
in the direction that you were, {1483} is that a fair description by me of
the hill?
A Yeah.
Q What
direction was the vehicle, car pointed?
A West. He was
pointing east, the front was pointing east.
Q All right.
Would you, by taking the object that is here, and is just in the general
shape longer than it is one direction to another, would you put it on the
map and place it in the direction, or in the position that it was sitting
as you best remember. This is the second car now we are talking about.
A
(Indicating.)
Q Maybe we
should put the first car first where you thought the first car was and
that might help.
A Yeah
(indicating).
Q All right.
And then put the second car.
A Where's the
front one?
Q Well, was
the front of the car pointed toward the first car?
A Yeah.
Q All right.
So that in other words you are saying as you put it here this is the front
of the car; is that right?
A (No
response.)
Q Nearest, or
pointing in a general southerly direction?
A Yeah. It had
to.
Q Now, what
can you recall about that car, and anything about that car? Is there
anything in particular that you remembered about the car?
{1484}
A It was
shooting. There was an agent shooting.
Q There was an
agent shooting.
Where was that
agent?
A I think he
was on this side (indicating).
Q All right.
MR. HULTMAN:
Let the record show that the witness has pointed to the side which is away
from the position where he was.
Q (By Mr.
Hultman) The car was between you and the agent; is that right?
A Yeah.
Q All right.
Now, did he have a weapon of some kind?
A Yeah. It was
a handgun.
Q It was a
handgun.
And could you
see what position he had the handgun?
A Yeah. He'd
get up and shoot some rounds and back down.
Q So you saw
him shoot and then get back down; is that right
A Right.
Q Now, were
there any other people now that you saw in the area other than the ones
that you described up to this point? Do you remember any other persons,
seeing any other persons in the area that is shown here as Government's
Exhibit 71 up to this time?
A Did I see
anybody in this area besides these two?
Q Yes.
{1485}
A No.
Q All right.
Did you see anybody, any other people in the entire area that you were
looking at, the scene you were looking at from up here in the place that
you were located? Did you see any other persons?
A Well, after
a while two cars came in.
Q All right.
Now, would you show the jury where those cars came in on Government's
Exhibit 71.
A Can I talk
to my lawyer?
Q Oh, yes. Oh,
yes.
MR. HULTMAN:
Your Honor, the witness has requested an opportunity to visit with his
lawyer.
THE COURT:
Very well.
(Whereupon,
the witness conferred with his counsel, Mr. Maring.)
Q (By Mr.
Hultman) Now, Norman, I believe we were at the point where you indicated
you now saw some other people somewhere; is that right?
A Right.
Q All right.
Would you maybe, if you'd come over in this side so that the jury could
see, and you point out on the map, Government's Exhibit 71, where it was
now that you saw any other persons. And if you don't remember exactly,
tell us as est you can where it was.
A I saw two
cars coming in right here (indicating).
{1486}
MR. HULTMAN:
And let the record show that the witness has indicated that two cars, he
saw two cars coming in on an extension of the road that comes from Highway
18 past Jumping Bull Hall into the residences that we know as Wanda Siers;
and the area he specifically is referring to is a, an area approximately
the length of a pencil if you put one end of the pencil at the Siers'
residence and left the rest of it in a generally northeasterly direction
on the road that is there.
Q (By Mr.
Hultman) Now, what is it then that, what is it that happened at that time?
A You mean
right there (indicating)?
Q Yes. Tell us
what it is you saw and observed.
A Well, I saw
two cars were coming in. When they were coming in we started shooting at
those two cars.
Q You say "we
started shooting;" is that right?
A (No
response.)
Q And who do
you mean by "we"?
A Me and
Norman Charles.
Q All right.
Now, where were you and Norman at that time? Would you show the jury again
on Government's Exhibit 71 where you were at that time.
A Yeah. I
moved from here (indicating) to this white house the propane tanks.
Q All right.
{1487}
MR. HULTMAN:
Let the record show that the witness now had moved from where he had
indicated previously to a point near the Jumping Bull house near some
propane tanks.
Q (By Mr.
Hultman) Is that what I heard you say?
A Right.
Q All right.
Where were those propane tanks with relationship to the Jumping Bull
house?
A They wore on
the east side of the house.
Q All right.
Would you point out approximately where they were.
A
(Indicating.)
Q All right.
MR. HULTMAN:
Let the record show that he points to the east side of the Jumping Bull
house.
Q (By Mr.
Hultman) Were these tanks seemingly tanks that are up against a house and
used somewhere in the house?
A Yeah.
Q All right.
Now, where was the other person that you refer to at that time, the time
you say, "We started shooting"?
A There was
two cars. There were some people in there. I don't know how many people,
though.
Q All right.
And they were coming into the Jumping Bull area; is that right?
A Yeah.
Q All right.
And how far, as you recall if you do, about {1488} where was it that she
first car got, as far as it got?
A Right there
(indicating).
Q All right.
And let me make an "A" at that particular point where the witness has just
marked a pencil "At" on Government's Exhibit No. 71.
The first car
got to that point; is that right?
A Right.
Q All right.
Now, where was the second car?
A Right there
(indicating).
Q All right.
And let me put a "B" at that point. In other words, one car was following
the other, is that a fair conclusion on my part?
A Right.
Q All right.
Now, at what point did you, when you referred to to "we," the two of you
start firing at the two cars, "A" and "B"? Where were they when you
started firing at them right where you pointed it out there?
A Well, right
here (indicating).
Q little short
of the point of where they stopped.
Now, describe
what it was that then happened as far as the two cars.
A Well,
started shooting at them. I think a couple of the tires. Then they moved
back, they practically stopped and, and they moved back to about right
here (indicating), somewhere around this area hero (indicating), and they
were parked there.
{1489} And
they got out and they started shooting at us.
Q All right.
Where they finally parked, where was it with relationship to the Highway
18? Was it a long way from the highway, or a short way, or somewhere --
A You mean
right here (indicating)?
Q Yes. I just
want to find out generally.
That's
generally where you think it was; is that right?
A Yeah. Around
this area here (indicating).
Q All right.
Somewhere in this area (indicating.)
I'm going to
draw a circle.
A Yeah.
Q Now, could
you continue to see all of those two cars?
A You mean
from there (indicating)?
Q Yes. From
where you were?
A Yes. I could
see them.
Q You could
still see them, all right.
How far away
from the Siers' residence, or the house that you are talking about that
they got up to in front of almost "A" and "B", how far away from it as you
remember back your mind in the scene, how far away did the two cars back
in distance from the house that was known as the Siers' residence? Could
you give the jury an estimation of some kind?
A You mean how
far they moved back here (indicating)?
Q Yes. How far
did they move back?
{1490}
A About
seventy-five yards.
Q All right.
Approximately seventy-five yards?
A About, yeah.
Q All right.
Now, what if anything then happened next? What do you remember next?
A As soon as
we started shooting at them, shooting at us, we saw some more cars coming
around, around this area where that highway is.
Q All right.
You know the area generally, do you not?
A Yeah.
Q Is there
another road or highway that comes around on the other side of the creek
which would be below Government's Exhibit 71?
A Yeah.
Q And is it on
the side of a hill somewhat the same height as this general area in here
(indicating)?
A Yeah. I
could, you could see the road from --
Q You could,
all right.
A From around
there, yeah.
Q You could
look across the wooded land where the creek was over to where that road is
and see it; is that right?
A Yeah.
Q All right.
Now, what was it that you saw happening over here on the road, that's over
on this side of the creek?
A Saw some
agents. Well, we got out of the car and they {1491} started going across
the field this way (indicating). They got out of the car. I think there
was three or four of them got out of the car and started coming up this
way (indicating).
Q So they got
out of their car and they started coming towards your direction, is that a
fair conclusion on my part?
A Yeah.
Q All right.
Do you remember, do you know any of the houses or any of the people that
lived across from the creek along that road that you are talking about?
A No.
Q You don't
know any of them?
A No.
Q And did you
know any buildings of any kind over there?
A Yeah. I
think there's a couple houses back there somewhere.
Q All right.
And were the men that you saw anywhere in the vicinity of any of those
houses that you talked about? If you recall whether they were or they
weren't.
A I don't
know. I saw them get out of the car and they come this way (indicating).
Q All right.
Now, you said that they were agents, and I want to ask you about that. Did
you know at the time or is this something that you concluded at that time?
A You mean --
Q That they
were agents?
A Yeah. At
that time when I saw them, you know, people would {1492} tell me, you
know, there's agents on Pine Ridge and there's goons. And when everything
happened from then, you know, I thought it might be agents.
Q All right.
So you thought they were agents, that's the point you are making?
A Yeah.
Q You didn't
know of your own knowledge --
MR. TAIKEFF:
Your Honor, I object to the repetition because the witness said ho thought
they might have been agents. And it was made, the repetition was made in a
very positive sense.
{1493}
MR. HULTMAN: I
withdraw, and that is correct.
THE COURT:
Very well.
Q (By Mr.
Hultman) Now, what was the next thing that you saw and observed; were you
still at the same position here in the general area of the tents, of the
white house?
A No, slipping
around the house, and then we saw a couple of cars go by up here
(indicating).
Q All right.
Could you see Highway 18 then from where you were?
A Yes.
Q Could you
see the -- any cars coming and going?
A Yes, saw
them coming and go by, past.
Q What
direction were those cars going, if you remember, would you show the jury
what direction?
A
(Indicating).
Q And they
were going fast, you said?
A Yes.
Q Now, what
was the next thing that you saw and observed?
A Joe came up
to me, and he said, "There is women and children in the camp, you know.
Our sisters are down there," he said. Then he said, "Why don't you go down
there? The agents are coming in this way (indicating), so this is the time
to be a man. This is the time to be a warrior," so he said, "Why don't you
go over there and take somebody with you?" "They might be coming in from
this side (indicating)."
{1494}
Q What general
area were you discussing at that time, would you point out on the map
generally?
A Right up
there (indicating).
Q Generally
where the tents were, is that right?
A Yes.
Q All right.
Now, did you at any time while you were on the hill itself look down where
the agents were again and see anything down where the agents were?
A Yeah. I saw
one of them. I think it was this guy here (indicating).
Q That's the
one that was behind the first car, behind the trunk, is that the one that
you are pointing out now?
A Yeah, I
think it was that guy (indicating).
Q All right.
A One of them
I saw crawl through the car and crawl back to the original positions they
were at. I think it was this one here (indicating). I don't remember, but
I know I saw one of them.
Q What you
remember then is that you saw one of them, you don't know which one, is
that a fair conclusion?
A Yes.
Q And what was
it you observed him doing if you did see him doing anything, you said he
was crawling?
A Yeah. He
crawled through the front of the car and he crawled out. He was there for
awhile, and then he crawled back {1495} out and got in the same place
where he was at.
Q All right.
Did you see the second person at this time that you are talking about?
A Yeah. He was
shooting away there.
Q Now, what
kind of a weapon did he have, what kind of a gun?
A Handgun.
Q The handgun,
all right.
Now, did you
at any time see anybody else down in the are where the two men were?
A Besides
those two?
Q Yes, at any
time during the afternoon.
A No.
Q You didn't
see anybody else in that area at all?
A No.
Q Now, did you
see the men at the cars, the two men at any other time than the two times
you have now talked about, prior to the time that you left?
A You mean,
did I see them right after I saw them them times that I saw them?
Q You talked
about two times. Did you see them any other time?
A No. That's
when Joe told me to go around and take them, so we ran across over here
(indicating). Then we were over here by this gate here (indicating),
around here (indicating).
{1496}
Q All right.
Would you tell me, and I will mark it, I will move my pencil and you tell
me when -- have I gone too far, can you reach it? You show me where so I
can make a mark, or you make a mark.
A (Indicating)
It is right here (indicating).
Q All right.
Let me make a mark where you are pointing right now.
A Right there
(indicating).
Q Use the
pointer, and I will make the mark where you place the pointer.
A (Examining)
There is a gate right here somewhere (indicating).
Q Gate
somewhere in here, in that general area (indicating)?
A Yes.
Q All right.
Let me put a "G" there for "gate", somewhere in that general area?
A
(Indicating). (Examining) Around here some place (indicating).
Q All right. I
will draw a circle in there.
A Yes.
Q And I put a
"NB" there for Norman Brown, that's the area generally where you are
talking about, is that right?
A Yes.
Q Now, did you
then go to that point is that what you are saying?
{1497}
A Yeah, me and
Mike ran over there.
Q All right.
You and Mike ran to a point that is the general area of the circle "NB",
is that right?
A Yes.
Q All right.
Now, what was the route, would you point out the route that you generally
took, you and Mike?
A About like
this (indicating).
Q All right.
It was in a general direction from the areas of the houses to the area
that is known as "NB", is that right, generally in that direct?
A Yes.
Q Not in a
straight line, but just generally?
A Yes.
Q All right.
Did you see anybody down there when you arrived there?
A Yeah, just
me and Mike, us two were there, that's all I saw.
Q Did you see
anybody at all?
A No.
Q All right.
Now, how long approximately had you been up in this area (indicating),
that you have been talking about, from the time you got there until the
time you are now talking about that you left, can you give --
MR. TAIKEFF:
(Interrupting) Your Honor, just to make clear, a clarification for the
record, by the phrase {1498} "this area", I believe Mr. Hultman intended
to be the area --
MR. HULTMAN:
(Interrupting) "NB", the area to which he left. The area from which he
left to the area which he went to.
MR. TAIKEFF:
The "from" place is the residence, and the "to" place is near the gate.
MR. HULTMAN:
Yes, near the gate.
MR. TAIKEFF: I
wanted to make sure the record was complete.
MR. HULTMAN:
Right.
Q (By Mr.
Hultman) How long approximately, if you have any idea at all, as you best
recall were you here on the hill area, in the area of the houses, from the
time you got there until the time you are now talking about when you left?
A Well, when
we ran, me and Joe up here (indicating) 20 minutes and these cars came. I
don't know. It happened fast, you know. I didn't keep track of time.
Q All right,
but am I clear in what your response to me was, that it was about 20
minutes from the time you got here (indicating) until the cars came in, is
that what you just now said in your answer? I want to make sure of what
you said.
A I don't know
for sure.
Q
Approximately?
A I don't
know.
Q How long
then was the total time that you were there before {1499} you left?
A It was about
an hour, hour and a half.
Q Hour, hour
and a half, that's the best you can do?
A Yes.
Q All right.
Now, did you at any time, Norman, go from the hill area back to the tent
area, other than the time you are now talking about; do you recall ever
going back there during that period of time other than the one you are
talking about now?
A I don't
think so.
Q All right.
Let me ask you this: Did you have the same weapon from the time you left
and came to the hill until the time you are now talking about when you
went to the area that we have marked on the map as "NB", did you have the
same gun during that period of time?
A Well, I
don't know. I don't remember.
MR. TAIKEFF: I
didn't hear the answer, your Honor?
THE WITNESS: I
don't remember.
Q (By Mr.
Hultman) You don't remember.
Now, other
than the two occasions that you said when you looked down at the bottom of
the hill, do you recall at any time during the hour to an hour and a half,
which was an approximation you made, do you remember any other occasion
when you looked down at the bottom of the hill?
A I don't
understand the question.
{1500}
Q You were
here in this area (indicating) for an hour, an hour and a half
approximately, is that what you told the jury?
A I said I
didn't know, about.
Q I know,
about, approximately?
A Yeah.
Q All right.
Whatever the time was when you were up on the hill during that period of
time that you were there, did you look down and view anything at the cars
other than the two times that you have described to the jury?
A No.
Q You did not,
so that all the rest of that time then you were doing things that didn't
have anything to do with this area down here (indicating), is that right?
A I take these
people over here (indicating), that were over here (indicating), and
shooting back here (indicating), and then saw some cars coming around and
went back here (indicating) we were waiting for them.
Q So is it
fair for me to conclude that you didn't do any other shooting of any kind?
A Yeah, I shot
at them, yes.
Q When did you
first --
A
(Interrupting) The first time I came down. They shot at me, and I shot at
them.
Q Is that the
only time you fired down there?
A The next
time I saw them, they were shooting at us -- {1501} when I saw them, three
times, the third time is when I shot back.
Q All right.
Let me take them one at a time
There are
three times that you looked at them now, is that correct, as best you
remember?
A Yes.
Q Have you
told us about the first time already?
A Yes. When I
was coming across here (indicating) they shooting at me and I shot back.
Q All right.
Now, when you say they were shooting at you could they likewise have been
shooting at somebody else in same general direction?
A Yeah, they
could.
Q As far as
you felt at that time, they were shooting at is that right?
A You know,
probably. Probably, yeah, shooting at all of us.
Q Now, the
second time, did you shoot at that time?
A Back?
Q Yes.
A Yeah, I shot
back.
Q The second
time you say you saw the two men down here (indicating), if I recall you
correctly -- you correct me if I say anything that is different than what
you saw -- that there was one man who was standing still with the handgun,
is that right, talking about the second time?
{1502}
A Standing
still?
Q Standing,
but he had a handgun, he was standing shooting, firing?
A He was
shooting going down.
Q All right.
Now, there was also a second man, and you say he was crawling, is that
right?
A Yeah, he was
crawling.
Q All right.
Do you recall anything about the man that was standing in terms of what he
looked like that might or might not have been different from the first
time that you saw him?
A What do you
mean?
Q Did he look
any different in any way than the first time?
A No.
Q Now, did you
fire back on that occasion when you looked the second time that are
referring to?
A No, because
he was shooting at me and I didn't shoot that time.
Q Now, what is
the third time again that you are referring to now?
A When I was
back here (indicating), you know, when I saw the car come around this way
(indicating).
Q The car?
A It was this
way (indicating), I saw the car.
Q When you are
referring to you saw other cars, where is it that you are now talking
about, where were those cars?
{1503}
A Back here
(indicating), the highway, the dirt road.
Q You are
talking about the road that loops around, this one you were talking about
a little while ago, you saw some more cars on that road?
A From the
time I saw those, he told me to go over there.
Q Is that the
time then that you saw and looked down where the two cars and the two men
were, the third time, is that the time?
A Right.
Q All right.
Now, what is it that you saw at that time?
A In here
(indicating)?
Q Yes.
A Shooting at
me, so I shot back. I don't know if they were shooting at me, you know,
the guns were pointing that way.
Q Would you
describe what the two men were doing at that particular time as you best
recall?
A One had a
pump rifle (indicating), and the other one had handgun.
Q All right.
One had a pump rifle, and you pumped again, is that right?
A Yes.
Q And the
other one had the handgun?
A Yes.
Q There were
the two men at that time?
A That one was
right behind this car (indicating), and the {1504} other one right behind
this one (indicating).
Q Were they in
the same general positions they were the first time you saw them?
A Not the same
position, but moved around the two cars, you know, and shooting back of
it.
Q All right.
Now, did you see any other people other than the ones you talked about
while you were on the hill up to the time that you left and went to the
area on the map that you have pointed out as "NB"; do you remember seeing
any of the same people or any additional people, any other places on
Government's Exhibit 71?
A Yeah, Dino.
Q Where was
Dino?
A I think he
was around -- let's see. I am not sure, probably around here (indicating),
around the cars. I am not sure. Around the area (indicating) -- I saw him,
yeah, the cars there.
Q All right.
It is correct your response is by the cars, in that general area. Would
you point out on the map the area that you are referring to so that the
jury will be able to see?
A Right here
(indicating).
Q All rights
Can I draw a circle here approximately that you were, generally?
A
(Indicating).
Q All right.
Let's make your circle very dark here, and who {1505} was in that general
area?
A Dino.
Q I am going
to put the word "Dino" there. Now, what was Dino doing?
A He was
shooting.
Q He was
shooting.
Do you
remember what, would you describe for the jury the kind of weapon that he
had that he was shooting with at that time?
A It was a big
rifle, big stock, just big.
Q Big, is that
right?
A Yes.
Q All right,
big stock, big rifle?
A Yes.
Q Had you ever
seen it before?
A You mean
before June 26th?
Q Yes, before
June 26th.
A No.
Q Had you seen
it before that very moment on June 26th, had you seen it earlier any time?
A Yeah. It was
up here by these bushes here (indicating). We split up, and we were
running over here (indicating).
Q Yes. He had
it at that time, and you saw it at that time, this same one?
A Yes.
{1506}
Q So you saw
it when you were fairly close together up there, when you split up, is
that right?
A Right.
Q And that's
how you can describe it?
A This big
rifle, and clip, I think it was, clip put in from the top.
Q It was a big
rifle and a clip that you put in from the top?
A Yes.
Q Now, was
there anybody else -- did you see anybody in the same general area that
you saw Dino?
A Leonard.
Q You saw
Leonard?
A Yes.
Q Where was
Leonard?
A Right here
(indicating).
Q All right.
Now, did you see anybody else?
A No.
Q All right.
Now, would you describe the firing that you have just referred to, would
you describe to the jury what the firing sounded like.
A Kind of
fast.
Q Kind of
fast, all right.
How many shots
did you see or hear when you were looking over here (indicating) at the
time we are now talking about?
{1507}
A It was just
off and on, about, you know, five shots and then stop, and then shooting
back to the Indians here (indicating), and get down; and that side stop,
shot five more, some like pretty fast. I don't know how many rounds. We
shot back again.
Q It sounded
pretty fast.
Where was it
that it sounded pretty fast?
A Around here
(indicating).
Q All right.
The area where Dino and Leonard were, is that the area you are pointing
out?
A Yes.
Q You are very
clear it didn't sound like it was fast down here (indicating), is that a
fair conclusion for me to draw?
A This was
fast, but not, you know, really fast, just kind of like, like, like --
(indicating). It was kind of fast, not as fast as down where it was fast.
{1508}
Q Compared to
the two then, that's what you're saying. This one was faster than this
one, is that a fair conclusion from what you just said?
A Yeah. I
guess so.
Q I just want
what your answer is, what you remember, not what I said.
MR. TAIKEFF:
May I make the suggestion, since the chart is not playing the important
role it was 10 or 15 minutes ago, could we have the benefit of the use of
the microphone in the witness box because some of the answers are not
audible here.
Q (By Mr.
Hultman) Were there any other individuals that you saw while you were up
on top of the hill doing anything other than what you have told the jury
up to this point, Norman? Do you remember any other people doing --
A Besides
those two I just said?
Q Yes.
A No.
Q Do you
remember seeing anybody else firing?
A You mean
besides those? Yeah. The agents. They were firing.
Q Besides the
ones you've talked about, any others?
A No.
Q Now I'm
going to show you what has been marked, first of all, as Government's
Exhibit 29A ask you whether or not you have {1509} a weapon of this
general description before?
A Yeah. It
looked like that.
Q When you say
it looked like this, what is it? You tell the jury.
A It was long.
It was a big stock.
Q And what
time are you referring to now that you're talking about?
A You mean
when I first saw it?
Q Yes.
A It was right
up there (indicating).
Q Who was it
that had a weapon generally this description?
A That looked
like that?
Q Yes.
A Dino.
Q And is it a
weapon that generally looks like that that you saw him with at the time we
just finished talking about? Did he have the same weapon of the same
general description that you saw him with earlier?
A You mean
from up there (indicating)?
Q Yes.
A I don't
know. It was long. Couldn't hardly see. It might have been. I don't know.
Q You don't
know for sure. All right.
Now I look at
this and I ask you from your own knowledge, because you were the one that
said that a clip went {} in and you used a motion, is that the kind of
general type of situation as to how you would load this kind of a weapon
from the clip from the top?
A Yeah. From
the top.
Q So this kind
of a weapon would meet the description with reference to the clip in the
top that you described a while ago, too, is that right?
A Yeah.
Q Now I'm
going to show you what has been marked as Government's Exhibit 37A and ask
you whether or not just from a general description have you seen a weapon
that resembles one of this general description?
A You mean did
that look like --
Q I'm just
asking you, Norman, whether or not you have ever seen a weapon on this day
or before that we're talking about that generally looked like this kind of
a weapon?
A Yeah.
Q And would
you tell us where it was and with whom that you saw a weapon that was
generally of this description?
A Bob.
Q And when you
refer to Bob, who are we referring to?
A Robideau.
Q Where was it
that you saw Bob with a weapon that fit this general description, if you
remember?
A No, I don't
remember. I just remember seeing that with him.
{1511}
Q Now what did
you do when you got to the point, and you went with Bob, is that right?
When you got to the point that I we've marked on the map as "NB," who was
with you at that time?
A Mike
Anderson.
Q What if
anything did you and Mike do?
A We were just
waiting because they were coming in that direction, people.
Q And did you
see anybody while you were there in that area once you got down there
where the area we've marked as "NB"?
A Besides
meeting Mike there?
Q Yes.
A No.
Q Did you see
anybody while you were down there?
A No.
Q How long
approximately did you stay down there before you saw anyone? When was it
that you first saw anyone after the two of you went down to that area?
Were you there for some time?
A Yeah. Was
there about, about an hour, two hours. It was long time but I don't know.
Q It was a
long time?
A Yeah.
Q Maybe an
hour to two hours?
A I don't
know. Maybe. It was a long time.
{1512}
Q These are
all approximations that you're giving, is that right?
A Yeah.
Q Just to the
best that you can remember?
A Yeah.
Q Now did you
see anybody other than your companion during that time that you were
there, see anybody else?
A Yeah. Was
Norman Charles.
Q All right.
How long after the two of you were there approximately, that you best can
remember was it before you saw Norman Charles?
A I think it
was Wish. It was one of them. It was Wish. No. It was Norman. I don't
know.
About an hour
and a half, two hours. It was a long time.
Q Long time.
All right.
And you tell
me who it was and what you did.
A You mean
that came?
Q Yes. Who
came?
A It was --
Q Did you
learn something at that time that might be of help to you as to who it
was?
A Yeah. Mike
came. Not Mike, Norman. He told me that Joe had been hit, you know, he's
dead.
Q So you know
it was Norman. There isn't any question in {1513} your mind about that, is
that right?
A I don't
know. I can't remember.
Q You don't
know for sure?
A I don't
know. I don't know.
Q What if
anything then did you do next?
A Well, we
went to, he took us, said, "Let's go back to camp." So we went to camp and
got a tent.
Q All right.
Would you
point out then where it was you were. Let's start from where you were.
A
(Indicating.)
Q All right.
You're pointing out the area generally with a circle marked "NB". And
where from there did you go?
A
(Indicating.)
Q You went
back to the general area where the tents were, is that right?
A Right.
Q Now what was
it that you saw -- withdraw that.
Who was it
that you saw when you got back to the tent area? Who were the people, if
any, that you saw when you got back there?
A You mean,
all the people that I saw?
Q Yes. Who are
the first people that you saw or persons that saw?
A Was Bob,
Dino, Leonard. That is all. Bob, Dino, Leonard and {1514} Wish. It was
Wish or Norman. I can't remember.
Q But you're
sure about Leonard, Bob and Dino, is that right?
A Right. They
were at camp there
Q They were
there when you got there, is that right?
A Yeah.
Q Now what if
anything did you observe them doing at this particular time?
A They were
loading a van. It was a van.
Q Had you seen
the red and white -- van at some time on any other day that you're now
referring to? Did you see that red and white van before?
A (No
response.)
Q The van that
you're referring to that they were loading.
A Yes.
Q When had you
seen it before?
A I don't
know. It was before June 24.
Q Who had you
seen with the van on those occasions before rune 26th? Do you know whose
van it was?
A I think it
was Leonard, but I'm not sure.
Q And you seen
Leonard drive it while you were at Jumping Bull's?
A Yeah. I saw
him drive it. Once.
Q Now I want
to take you back just for a moment from the point we are now and ask you
whether or not when you were here {1515} on the top of the hill did you
see any other vehicles other than the ones that you have told the jury
about? In the general area of the Jumping Bull property. Not out on the
highway or back here (indicating) or cross the creek and down on the other
road but in the general area of the Jumping Bull's do you remember seeing
any other cars than the ones that we have talked about up to this point
while you were on the hill from the time you got there until the time you
left?
A It was
around the houses I saw that red and white car.
Q That's the
same one we're talking about now?
A I remember
seeing it around there.
Q Would you
point out in a circle generally where you best recall, if you do, if you
don't I'm not I don't want you in any way to do anything other than what
you best can remember.
A Yeah. Around
there. Around the houses around there.
Q Around the
houses area?
A Yeah. Around
the area.
Q Is that as
you best recall?
A Yeah.
Q When was it
that you saw the red and white van?
A It was the
first time when I was running up the hill. The first time when you were
running up with Joe. Was there anybody around the red and white van?
A All right.
Q So that the
red and white van was not down in the tent are {1516} in the morning while
you were cutting, chopping wood and doing those things?
MR. TAIKEFF:
Objection to that question, Your Honor. It's both leading and assumes
facts not in evidence.
MR. HULTMAN: I
withdraw the question. I withdraw the question.
Q (By Mr.
Hultman) Did you see the red and white van down the tent area in the
morning?
A No. I don't
know. Got up, then we were going to eat and then we heard the shots.
Q Now what was
it that they were loading? Do you remember what they were loading at the
time we're now talking about, what the objects were?
A Clothes, CB
and food I guess. I don't know. Just loading. What I mostly saw was the
clothes.
Q Now do you
remember any other car or cars that were in the general area of the tent
area?
A There was a
green car.
Q Now was that
the same green car that you talked about earlier, or yesterday when you
said that you went and got the weapon that you got?
A Yeah.
Q Is that the
same green car?
A Yeah.
Q And I'm
going to show you now what has been marked as {1517} Government's Exhibit
No. 55 and it is marked as page 23 and also with an orange "1" on it and
ask you whether or not you have seen that particular car before?
A Yeah.
Q And would
you tell the jury what it is, what car that is.
A It's a green
car.
Q Is that the
same green car that you just now were talking about?
A Yeah.
Q Now is that
green car in generally the same place that it was that you're now
testifying to?
A Same.
Q Is that
where you saw it? Look at the area around it and see if you recognize the
area.
A Yeah. I
think so; yeah. Yeah.
Q Now do you
remember seeing any objects of any kind on or about or in the green car at
the time we're now talking about?
A There. No.
Q Did you
still have your weapon?
A Yeah.
Q What if
anything did you do with your weapon?
A Well, I put
it on that green car there.
Q All right.
So that if I were to show you again the same picture, {1518} do you see
any weapon on that green car?
A Yeah. There
(indicating).
Q Is that the
weapon to the best of your knowledge?
A Looks like
it.
Q It looks
like it anyway?
A Yeah.
Q All right.
Now do you
remember any other objects that were there, if any, at the time you put
the rifle that you had secured from the green car and had in your
possession up to that time and left on the hood of the green car, do you
remember seeing anything else there from your own recollection at that
time?
A I don't
remember.
THE COURT: The
Court is in recess until 11:10.
(Recess
taken.)
{1519}
THE COURT:
Counsel ready to proceed?
MR. HULTMAN:
Government is, Your Honor.
MR. TAIKEFF:
Yes, Your Honor.
THE COURT:
Bring the jury in.
(Whereupon,
the jury was brought into the courtroom.)
THE COURT: You
may proceed.
Q (By Mr.
Hultman) Norman, I believe we were talking about some automobiles, and I
had showed you a Government Exhibit a little earlier in a big book, and
there is one that's a separate item. And I just want you to look at it for
a second. It's Government's Exhibit 13-B. Is the automobile that portrayed
in 13-B the same green automobile that you've been talking about?
A Yes.
Q And on
Government's Exhibit B is a rifle, and there are some letters. Next to it
is -12. Is that the weapon that you had been referring to?
A Yeah.
Q And in the
earlier descriptions and discussions?
A Yeah.
Q All right.
Now, we talked about another automobile, red and white van. Do you recall?
A (No
response.)
Q I'm going to
show you what's been marked as Government's Exhibit 12 and ask you whether
or not you in that photograph see {1520} anything that you would
recognize?
A Yeah. That
van there.
Q All right.
Is that the red and white van generally that you've been discussing?
A Yeah.
Q Does it
generally give the appearance of being the one that you were talking
about?
A Yeah.
Q All right.
Now, I'm going to show you what's boa marked Defendant's Exhibit 93 and I
want you to look at the scene that is portrayed there, and the automobiles
that are portrayed there, and ask you whether or not you recognize the
general scene that is portrayed in that exhibit?
A Are these
the junk cars here (indicating)?
Q Well, I'm
supposed to ask the questions and you tell us. Not you ask me.
A Yeah. I
guess these are junked cars that I saw.
Q Go ahead and
give you answer, whatever you answer is.
A (No
response.)
Q Do you
recognize, take a look at the photo and the scene that's there, the area,
the ground, the hills, whatever is shown there. Do you recognize anything
there?
A Yeah.
Q All right.
Would you tell the jury what it is you recognize Defendants Exhibit 93?
{1521}
A The hill
here (indicating).
Q Yes. What is
the area at the top of the picture that you are pointing at?
A The houses.
Q All right.
Is that the general area of the houses that you wore referring to in your
earlier testimony?
A Yeah.
Q And if you
were, is that the general area where you were during this time that you
were talking about that you were up by the houses?
A Up there
(indicating)?
Q Yes.
A Yeah.
Q All right.
Now, if you looked down from the top of this photo, which is the area
whore you said you were, do you recognize the area that's in the
foreground of this picture where these automobiles are down?
A Yeah.
Q Could you
turn, and on Government's Exhibit No. 71, and I seem to have lost the
pointer.
MR. TAIKEFF: I
put it on the ledge below the map, Your Honor.
MR. HULTMAN:
Thank you, Counsel.
Q (By Mr.
Hultman) Would you point out to the jury what it is that is portrayed in
that exhibit.
{1522}
A
(Indicating.)
Q All right.
MR. HULTMAN:
Let the record show that he's pointing out the row of abandoned cars on
Exhibit 71.
Q (By Mr.
Hultman) Now, let me put a 93 at that point and it will coincide with the
exhibit that ho has just referred to.
Now, do you
remember seeing those cars on any occasion that you were in Jumping
Bull's? Those junked cars?
A You mean
real close or just seeing them?
Q Did you ever
go by them, over walk by them?
A No.
Q Did you ever
see them from any other place while you were there at Jumping Bull's?
A Yeah.
Q Where were
you when you saw them?
A Right around
up there? the area where the houses are.
Q All right.
And is, do you see anything different in this picture than what you
remember seeing all the times you were up at the housing area that
generally what you remember you saw?
A What?
Q Is this
generally what you saw, some abandoned or junked cars down there?
A Yeah.
Q Now, I'm
going to ask you point blank, did you ever remember {1523} specifically
seeing the car that is in the center of this picture?
A No.
Q Are you sure
about that? Is there any question, have you ever seen that car that you
can remember at all?
A No.
Q All right.
Did you see it at any time on the 26th of June, 1975 that we're talking
about?
A No.
Q All right.
Now, there is one other weapon that I wish to show you, and this has been
marked as Government's Exhibit 30-S for the record. You testified that you
saw the man who did not have the hand gun down where the two cars were
here, I believe as somebody who had a gun that he was pumping; is that
right?
A Right.
Q Do you
remember that?
A Right.
Q Now, I want
to ask you whether or not, I'm not asking you that this is the weapon
because you wouldn't know, there's no way for you to know whether this
would be that gun, is there?
A No.
Q Because you
only saw it from that distance. And all you indicated you saw was a man
with a rifle pumping it; is that right?
{1524}
A Right.
Q Now, just in
a general way, would this weapon here fit the general description of what
you saw and remembered at that time, just generally?
A What does
that mean?
Q Well, it
means whatever it means to you. Does this particular gun have something
that could be pumped?
A Yeah. It has
something that can be pumped.
Q All right.
And is it a rifle of some kind?
A Yes, it's a
rifle.
Q All right.
And is that what you remember the weapon being that the man, the second
man had?
A Yeah.
Q And where
was it that he was standing when you observed him?
A That car
there (indicating).
Q All right.
Will you come and tell us which car it was again so that the record might
show. You can just point to it with your finger.
A
(Indicating).
MR. HULTMAN:
Let the record show that he's pointing to the object that indicates the
car on the right-hand side as you view the map farthest to the south, and
the one that is pointed in the general direction of the houses to the
general direction of east by southeast.
{1525}
Your Honor, at
this time the Government would offer into evidence Government Exhibits
30-AA, 29-A, 37-A, 32-A and 69-A.
MR. TAIKEFF:
Assuming, Your Honor, that those numbers represent the objects which this
witness has testified L to, there's no objection.
MR. HULTMAN:
They do, Your Honor.
MR. TAIKEFF:
No objection.
THE COURT:
Would you state the exhibits again.
MR. HULTMAN:
And exhibits that other witnesses have previously identified and referred
to.
Exhibits 29-A,
30-AA, 29-A, 37-A, 32-A and 69-A.
30-AA, 29-A,
37-A, 32-A and 69-A.
THE COURT:
Exhibits 29-A, 30-AA, 32-A, 37-A and 69-A are received.
Q (By Mr.
Hultman) Now, I want to go back to the point where you are at the red and
white van. Do you remember, I believe we were talking when you were at the
red and white van.
A Yeah.
Q And there
was some other people there when you got there; is that right?
A Yeah.
Q Now, what,
do you recall anything more specific than what you've indicated up to this
point that anyone was doing in your presence at that time other than
loading the van?
{1526}
A What do you
mean?
Q Was there
any discussion of any kind as to what you were going to do or where you
were going to go?
A Yeah.
Leonard said, you know, there's no way out because there's, you know, we
are just surrounded. We didn't know what so do. And I don't know, we ware
surrounded.
He said,
"There's only one way out," you know. "Let' try it." "So let's get in the
car, we'll make a run for it.
Q Now, who was
it that said that?
A Leonard.
Q All right.
And what if anything did happen after that?
A We told him
that, you know, we're not going to make it. There's no way we're going to
got out. So he changed his mind, we changed our minds, too. And we started
going, started going oh, kind of southeast to the woods.
Q All right.
Would you now with the pointer indicate the general direction then that
you started to leave by.
A
(Indicating).
Q All right.
Now, I want to ask you now, and let's talk about each individual at a
time, and I think it might be a little clearer, who it was that left with
you. Let's start with Leonard. Did Leonard leave? Did you go, was he a
part of the group that left?
A When all of
us left?
Q Yes.
{1527}
A Yeah. There
was Leonard.
Q All right.
Let's just talk about Leonard for a second.
A Yeah. It was
Leonard.
Q Did Leonard
have anything with him when you left?
A Yeah.
Q What was it?
A It was a
gun, rifle.
Q All right.
And will you describe it for the jury.
A What I said
it looked like, an M-16.
Q All right.
The same general description of the one you had seen earlier in the day?
A Yeah. Right.
Q Who else
left with you?
A Dino.
Q And when you
talked about the same rifle that Leonard had with him during the day, I
want to take you back to the time that you saw Leonard in the area that
was marked with a "P", which was this area with this circle here
(indicating). Did he have the same type of weapon with him when he was at
this point?
A Yeah.
Q All right.
And now he has a similar weapon with him when you leave; is that right?
A Yeah.
Q Now, Dino
was the second person that you said left with you; {1528} is that right?
A Yeah.
Q You all left
together, all right.
Did he have
anything with him when you left?
A Yeah.
Q And would
you tell the jury what it was that he had?
A It was a
rifle.
Q And do you
remember what description, would you tell the jury the description of the
rifle he had.
A It was that
big one like I said last time.
Q All right.
And that's the same one you described before; is that right?
A Yeah.
Q Now, who
else left with you together?
A Mike.
Q All right.
And do you remember whether or not Mike had any weapon with him?
A Yeah, I
think so. I'm not sure.
Q All right.
Let's talk about somebody else and then go back and maybe it will help you
remember.
Was there
anybody else in the group? Talking about the men now?
A Yeah. Wish.
Q All right.
And did Wish have any weapon of any kind?
A No.
{1529}
Q Did you ever
see Wish at any time during the time that he was at Jumping Bull's with a
weapon?
A No.
Q All right. I
guess I didn't ask you, did you have a weapon?
A Yes.
Q And what
weapon did you have?
A 35.
Q When you say
"35", is this something different from the weapon that you have described
and talked about earlier? Is it a different weapon than the 22 you wore
talking about?
A Yeah.
Q Well, now,
where was it and when was it that you got a 35?
A It was when
I came back to the camp. Norman came.
Q All right.
You said that when I showed you what was Government's 13-B, I believe that
that was the 22 that you have been carrying all the day, was it not?
A Yeah.
Q And you put
it on the hood there; is that right?
A Right.
Q And did you
leave it there?
A Yeah.
Q And have you
ever had anything to do with the weapon itself along the trail, did you
ever see it along the trail again as you left that day, or the next day,
or the next day?
{1530}
A No, I don't
think so.
Q All right.
A Might have
been. I don't know.
Q All right.
So the last you knew you left it here on this hood; is that right?
A Right.
Q All right.
So now you are talking about a weapon that's different from this one; is
that right?
A Right.
Q All right.
Now, would you describe that as best you can for the jury.
A Well, it's a
small rifle and bolt action (indicating).
Q All right.
And where did you get that weapon?
A I think it
was one of the tents, yeah, it was a tent I think.
Q All right.
Now, was there anybody else, any of the men who left with you that we
haven't discussed up to this point? Did Bob leave with you?
A Yeah.
Q All right.
And did Bob have a weapon of any kind?
A Yeah. It was
a shotgun.
Q And do you
remember anything in particular about that shotgun?
No. Just a
pump. It was a big shotgun.
{1531}
Q It was a big
shotgun and it had a pump you indicated; is that right?
A Yeah.
Q Had you ever
seen that shotgun before?
A No.
Q In all of
the weapons that all the times you'd been at Jumping Bull's?
A No.
Q So this was
the very first time you had seen it?
A Yeah.
Q No question
in your mind about that, is there?
A Yeah.
Q All right.
I'm going to show you now what has been marked as Government's Exhibit
36-A and I'll ask you to look at it. Is this a weapon that has one of
those pumps that you indicated on earlier occasion?
{1532}
A What?
Q Is it one of
those weapons that has a pump?
A Yeah.
Q I would like
you to look at the end of it, and I would like you to look at it just in
general; and I would ask you, you were saying that Bob had a shotgun with
him that you had seen for the first time. Was it a shotgun that in some
way or any way is similar to the one that I have now?
A It had the
pump, the pump is.
Q All right.
You wouldn't know whether or not this was the one or not, would you?
A No.
Q All right.
Now, did Bob have anything else, did he carry anything else?
A Yeah, he had
a rifle. That was a rifle.
Q All right.
Would you describe to the jury what that rifle looked like, as you recall?
A I knew it
was a rifle, but I don't know what kind it was, wouldn't remember.
Q All right.
Do you remember anything about the rifle itself, anything that you might
recall in your mind as you think about it, that might describe it in any
way?
A No, I can't.
Q All right.
Had you ever seen it before that time?
A I think -- I
am not sure, but I think it was the one I {1533} told you he had before. I
am not sure.
Q You are not
sure, is that right?
A I can't
remember.
Q That's a
fair answer, that you are not sure?
A Yes.
Q That's your
best answer, is that right?
A Yes.
Q Now, we have
talked about Leonard, we have talked about Bob, we have talked about Dino,
we have talked about yourself. Were there any other men or young men that
went with you?
A Norman.
Q All right.
Now, did Norman have any weapon of any kind?
A Yeah, he had
a rifle.
Q Do you
remember anything about that rifle, could you describe anything you
remember to the jury?
A It was a
long one, a long rifle. It had a bolt action too (indicating).
MR. HULTMAN:
All right.
(Counsel
confer.)
MR. HULTMAN:
Your Honor, let the record reflect that 37-A was already in evidence when
I made my last offer, and I didn't realize that, so that it was already in
evidence, your Honor.
THE COURT: I
am aware of that.
MR. HULTMAN:
All right, sir.
{1534}
Q (By Mr.
Hultman) I am going to show you what has been marked as Government's
Exhibit 69-A, and ask you whether or not this weapon has a type of action
of the kind that you are just describing?
A Yeah.
Q Do you
remember seeing the weapon that you are just referring to with anybody
earlier that day, had you seen that weapon before that you are talking
about right now?
A That one
there?
Q No, no. I am
asking you, the weapon that you have been describing to the jury, do you
remember which one of your group we were just talking about that had a
rifle in leaving, that had a bolt type of action?
A Norman?
Q I am sorry?
A Talking
about Norman?
Q I am asking
you, are you talking about Norman now? I wanted to make sure that there is
no confusion. Let's talk about Norman.
Did Norman
have a gun when he left?
A Yeah, he had
a rifle.
Q What do you
remember about that rifle?
A It was long
and had a bolt action.
Q Had you seen
that one earlier in the day?
A Yeah, I
think so. I am not sure.
{1535}
Q Norman was
up on the hill with you at the time all the firing was going on, wasn't
he?
A Yes.
Q Do you
remember what kind of a weapon he had at that time?.
A Yes, I think
it was the same one he had.
Q Would that
be your best recollection?
A You mean the
one he carried out?
Q Yes.
A Yeah, I
think it is the same one he had, yes.
Q It is the
one that had a bolt action?
A Yes.
Q Would it be
fair for me to conclude that it would be a weapon generally, just in
general of a kind like this with a bolt, at least a bolt?
A Yes.
Q Do you
remember anything else about the particular weapon that he had during the
day, description-wise, that you would recall or that you recall at that
time?
A I don't
understand.
Q Was there
anything else you remember about the weapon that he had?
A No.
Q All right,
very fine.
Now, we
mentioned for just a moment Wish, did we not?
A Yes.
{1536}
Q He was in
the group, was he not?
A Yes
Q And I
believe you said he didn't have any weapon?
A No.
Q All right.
Did he carry anything out?
A He was
carrying out a bag.
Q Could you
describe to the jury generally what it was he carried out?
A It was a
bag, about this big (indicating), had a handle on top where you could
carry it.
Q All right.
Did any of the rest of you carry that bag at any time?
A No, just
until we got out, you know, started going back to the hill.
Q Did you know
any time during the time what was in that bag?
A No.
Q All right.
Now, was there anybody else that we haven't discussed up to this point?
A I think we
talked about everybody that was there.
Q All right.
Here there any -- let's make sure now so there isn't any question. We have
talked about Leonard, right?
A Yes.
Q We have
talked about Bob?
A Yes.
{1537}
Q You have
testified about Dino?
A Yes.
Q We have
talked about Wish?
A Yes.
Q We talked
about Norman?
A Yeah.
Q And have we
talked about Anderson?
A Yeah.
Q All right.
Now, was there any other men or boys that went out with you?
A Yeah, I went
out with them.
Q And you
yourself?
A Yeah.
Q Now --
A
(Interrupting) You should have asked me that.
Q All right.
Were there any women or girls that went out with you?
A Well, right
after we were going out we were walking, like I pointed --
Q
(Interrupting) Um-hum.
A (Continuing)
-- we were walking in that direction, when we met them about a hundred
yards from camp.
Q Was this the
first time you had now seen them?
A Yeah.
Q From the
time that you left when you heard the shots?
{1538}
A Yeah.
Q All right.
Now, would you point out, if you can, just generally where it is you now
saw the people that you are now referring to, if you can, on the map -- if
you can't -- show us wherever it would be?
A Little bit
here (indicating), little bit higher, where the corner is down there
(indicating).
Q little bit
higher, a little off Government's Exhibit 71?
A Yeah.
Q And where
with relationship to the creek would that have been?
A It was right
by the creek there. We asked them why they were coming back, and they told
us that they had the roads blocked off and there was no way out. We were
just there, and they were coming. We didn't know what to do, you know.
That would be the end of us, but we got together and told Jimmy to give
himself up because they might hurt him or might shoot him.
Q Now, when
you say "we", were you close to Little Jimmy yourself?
A Yes.
Q You were
very close to him, were you not?
A Yeah, I
guess so, yeah.
Q Kind of like
an older brother, would that be a fair conclusion on my part?
A Yeah.
{1539}
Q And did you
have conversation with Little Jimmy at that time?
A Yeah.
Q All right,
and were you in fact the one who told him what you thought he ought to do?
A Yeah.
Q All right.
So what, if anything, then did Little Jimmy do?
A Well, he
went back to where -- towards the houses, and we heard some shots and we
didn't know what to think. We thought he might have got shot, so we stood
there, and we sat down and sat in a circle and started praying, you know,
all of us, that, you know, they tell us -- ask our creator to help us get
out. So we were all there sitting there praying and saw an eagle come
down, big eagle, so he came down; and I saw -- then he flew kind of south,
southeast, or flew -- I don't know, just followed it across some creeks
and we were kind of like bending over real low and could tell the people
were out there; and we were just quiet, so you know, we were all scared;
and wasn't -- all I was thinking about was our sisters, you know, and we
crossed through a road. There was a culvert. It was big enough so you
could crawl through, so we crawled through; and we went to this tree --
right across, about 10 yards from the road, 20 yards, there was two trees,
two big trees; and some of us went and climbed the tree and we were
sitting there, and there was -- Mike and Wish were still in the culvert,
told {1540} them to stay there; and there was a plane on top of us, kept
flying over, around us; and a couple of cars, you know, two cars went by
and saw somebody on 16 looking out the window. They passed, the windows
were rolled down, and one passed by this way (indicating).
We were there
for awhile, and we thought they saw us; and we thought, you know, didn't
know what to think, you know, so we seen that plane was flying on top of
usa right above us. guess he knew we were there, so started praying again,
just our minds that something happened to that plane, I don't know, that's
what I was praying, so the rest of the group were praying, so the plane,
you know, took off, flew on over towards Pine Ridge.
So as soon as
that plane took off, we started running up the hill. Then we told the
sisters, said, "Why don't you go ahead first?" So they took off, and we
were down here (indicating), and this road here (indicating), about half a
mile down, it was about down -- 14, 15 cars lined up.
So we were
running up the hill. They were shooting at us like -- I don't know, just
shooting at us. We were out there in the open. We were running up.
Q How far away
were you approximately from the people that you are now talking about?
A From the
road there?
Q Yes.
{1541}
A I don't
know. About half a mile, I guess. I don't know. It was pretty close then,
not too far and not too close.
Q All right.
Let me ask you a question, Norman. You said that you were in the culvert
during this discussion, these remarks you have now made, is that right?
A I wasn't.
Q You weren't?
A No.
Q But some
were?
A Yes.
Q You were in
the trees, is that what you said?
A Yes.
Q It was heavy
foliage, I believe you said, or something to that effect?
A What does
that mean?
Q Could
somebody from the airplane see you in the trees where you were?
A Yeah, they
could.
Q What about
in the culvert?
A No.
Q O.k. Now,
did anybody in your group do any shooting at the time that you are now
talking about?
A Yes, all the
men, you know, because you know, we weren't worried about ourselves. We
were just worried about, you know, our sisters, so we told them to go
ahead; and while we were {1542} running up the hill, these go by us like a
bee, go by, you know, like bees, you know, going by.
We ran up a
hill, a real little hill, with the rest of them there. We told the ladies
or women to go ahead and keep running up that hill.
Q Let me ask
you here: Do you recall whether or not Mr. Anderson did any firing during
the time that you were going up the hill?
A No, I don't
think so, no.
Q Do you
remember anybody that did any firing, did somebody do some firing when you
went up the hill, I mean, in your group?
A Yeah.
Q All right.
Do you remember what kind of a weapon Mr. Anderson had?
A No, I don't
know.
Q All right.
A And we were
there --
Q
(Interrupting) Let me ask you this question: Do you remember the weapon
that Joe Stuntz had during the day?
A You mean the
30-30?
Q At least
when you left the tent area, 30-30, as you described it?
A Yes.
Q Did you ever
see that weapon or one that looked like it any other time later during the
times that we are now talking {1543} about?
A No. No, I
don't think so.
Q All right.
O.k.
Now, what, if
anything, did you do next?
A Well, we
kind of like spread out, and they were shooting at us. We saw two cars
that came off the road, and they -- I don't know, they were just -- they
went around the hill we were going up, and were still shooting at the
other people down there, so we got up and we ran up that hill.
Then we met
the sisters up there and started praying again and that eagle we saw --
Q
(Interrupting) When you say the "sisters", would you tell the jury who
these people were so that the jury will know who the sisters were?
A It was Jean
Bordeau, and I just know the other girl by the name of Lynn and Neelock.
Q So there is
three?
A All right.
Q And those
are the three that lived in the tent area with you, is that right?
A Yes.
Q Now, what is
the next thing that happened -- did you see any other people other than in
your group that anybody talked with; from the point we are now talking
about, did you run into anybody?
{1544}
A Yeah. It was
getting kind of dark, and two people on a horse -- I don't know who they
were, and I don't know -- there was me, Norman, we were looking over where
those two cars were at. We were up on the hill here (indicating), they
were down here (indicating). I think they were crawling up there and saw
two horses and two people, and they are the ones that, you know, helped us
out.
Q All right,
and what happened next?
A So they
helped us out and went down the hill, then we just started going into the
hills. That's how we got out of there.
Q All right,
and where did you next go, did you go to any house of any kind or in the
vicinity of a house?
A Yeah. Went
to the -- up in the hills for about five hours, six hours, long time, I
don't know how long, about six hours, and we were walking, and we met this
guy. He wasn't wearing shirt. We met him.
Q Did he talk
to anybody?
A Yeah. He was
with Bob, and I think, yeah, Bob gave him shotgun; and then he left. Then
we started walking, walked through this big culvert, just walked through
it, walked through that, walked for an hour and a half, walked over a
bunch of hills, came up to a house; and there was an old man who was
living there, I think about 85. He was old, and we asked him if we could
stay there; and he could barely understand English, you know, asked him if
we could stay there and he said {1545} "Yeah," and he let us stay there.
Q Do you
remember what his name was or --
A
(Interrupting) Yeah, it was -- let me see. I know his name. but I can't --
let's see.
{1546}
Q Maybe it
will come to you as we talk a little more.
Did you all
stay there then at the cabin that night?
A The small
cabin, real small.
Q About what
was the size of it?
A About eight
by ten. You know, pretty small. Real small.
Q Now what did
you do with the weapons that night?
A Soon as we
got there, Leonard asked me, "You want to go on security," you know, "You
want to, want to go up there and watch out."
Q Who was it
that asked you?
A Leonard. He
didn't tell me, you know, he said, "Do you want to"; I said, "Yeah. I'll
go up there." So me and Wish, we went up there for about three hours and
we, you know, talking.
Q Where were
your weapons put that night, if you recall?
A Well, right
after security I come in and we switched with Norman. I don't know who the
other one was. And I walked into there, saw some guns laying up against
the wall.
Q All right.
Did you see
any pistols of any kind?
A Yeah. Saw
two of them.
Q And would
you describe the two pistols that you saw at this time. Let's take them
one at a time and describe one and describe the other.
A One had a
short barrel and the other one had a long barrel, {1547} pretty long
barrel (indicating).
Q Did they
look somewhat the same except one had a longer barrel and one a shorter
barrel?
A I don't
know. It was pretty dark. There was a kerosene lamp, you know. Just saw
it. I didn't really look at it or nothing, I just saw it.
Q Had you ever
seen those before?
A No.
Q I'm going to
show you now what has been marked as Government's Exhibit 31A and
Government's Exhibit 35A and ask you whether or not one of these has a
long barrel and one has a short barrel?
A Yeah. One
has a short barrel.
Q And with
what little you saw that night, as you've described, did the weapons you
saw at that time in some way resemble the two weapons that I now hold in
my hands?
A I don't
know. I saw one with a short barrel and I saw one with a long barrel.
Q All right.
And that's as much as you remember, is that right?
A And I saw a
holster but there was no gun in it.
Q So you saw
one handgun with a short barrel, one with a long barrel and a holster.
Those are the three things you saw?
A Yeah. The
holster was just rolled up and laying there.
Q And you had
not seen the two guns, the handguns before?
{1548}
A No. I don't
think so.
Q All right.
Did you see
those two handguns at any time after on the table in the small cabin by
the kerosene lamp that night? Did you see them the next day or the next
day or the next day?
A No.
Q Now what if
anything did you then do? Did you leave there the next day?
A Yeah. We
left early in the morning, then we started walking. Then we, we hid in
some bushes. Walked about three miles from there, four miles. We just laid
down staying in some bushes. Stayed there all day. About 10:30 or
something like that till it was dark. Then we started walking. Then we did
the same thing again the next day, we laid under some bushes.
Q So is it
fair that you did the walking in the nighttime and you stayed in the
bushes and the other things in the daytime, is that right?
A Right. But,
yeah. You might say that.
Q And where
did you stay then the second night?
A We stayed
out under some bushes. Then we started walking again. Next evening, came
across day, see, we thought we were going to Manderson but we ended up in
Pine Ridge.
Q How was it
that you thought you were going to Manderson?
A Because we
thought, old man. We asked him, "How do we get {1549} to Manderson?" And
he showed us the way. We were supposed to take this trail but we took this
one (indicating).
Q Did he help
you in any way by giving any assistance other than just telling you on how
you might find the way to Manderson?
A It was
pretty hard to talk to him. Like, couldn't hardly understand English. And
asked, you know, "Give us some food," and he said, "Yeah " He got us some
food for one meal, you know. You know, enough for that day.
Q Did he write
anything down for anybody, if you recall?
A No.
Q And so where
did you stay then the next night?
A You mean
after we left there?
Q Yes.
A Out in the
bush, under the bushes.
Q Then where
did you stay? Where did you go and stay then the next night or day?
A Well, right
after that we were walking, came upon a place, you know, there was a hill.
Then we looked over and it was Pine Ridge. So we didn't know what to do so
we started walking this way again (indicating). We saw a house, I don't
know, somebody knew who lived there but I don't know who. We went up to
the door and asked if we could stay there and they said, "Yeah." So we
stayed there that night. The man was kind of fat and his wife, too.
{1550}
Q And were
there any other people there?
A There was a,
I think two daughters there.
Q And would
you describe what the lady looked like in terms of her size?
A You mean the
old lady?
Q Yes.
A Yeah. Pretty
fat. Yeah.
Q She was
fairly heavy, is that right?
A Yeah. Yeah.
Q About how
old were the daughters would you guess? Would they have been teen-agers?
A About 16,
17, around there.
Q Now where
did you go from there?
A Somebody
came and gave us a ride and went to Crow Dog's paradise.
Q Would you
indicate who went. When you got a ride, who went? Did you all go in one
car at one time?
A No. Me and
Norman and I think it was Wish, Wish or Mike. It was a lady and a man that
drove us out. I don't know who the lady was or the man with the car.
Q Do you know
who went in the other group?
A Yeah. I
think it was, there's three groups there went. We were first, I think. The
girls were first. Second. Then I think it was Bob, Dino and Leonard got in
Crow Dog's. Bob, Dino and Leonard went in one group, is that right?
{1551}
A Yeah. I
think so.
Q Now I want
to take you back to ask you a question or two on leaving the camp and
getting to where you are now. Do you remember taking any other objects
with you of any kind?
A Oh, it was a
canteen; Yeah.
Q What
happened to the canteen?
A It got
dropped.
Q would you
describe what the canteen looked like to the jury.
A I don't
know. Had stripes on it, on the side.
Q Was it
covered with anything?
A Yeah. It was
some kind of cloth. I don't know.
Q All right.
I'm going to show you marked as Government's Exhibit No. 17. Did you have
any water in it when you left?
A Yeah.
Q I want you
to look at this canteen and see whether or not you recognize it in any
way.
A Yeah.
Q You do
recognize it?
A Yeah. I
think that's the same one.
Q And at least
you left with one like this? Yeah.
Q Is that
right?
A Yeah.
{1552}
Q Is there
anything you remember about the canteen other than the cloth, the one you
had with you on that occasion, specifically?
A What?
Q Did it have
a strap of the kind that's here?
A Yeah.
Q Like this?
A Yeah. It had
a strap.
Q Was it this
size?
A Yeah. I
think that's it.
Q This general
shape. You think this is it. All right.
Where was it
that you remember you dropped it or whatever you said you did? Do you
remember about where that was or when it was?
A Yeah. When
we started running up, ran about 100 yards. We was running. Yeah. That's
when I dropped it about.
Q Now is that
after you went through the culvert and you were going up the hill?
A Yeah.
MR. HULTMAN: I
don't know whether, has 17 been offered yet?
MR. TAIKEFF:
It is in evidence.
Q (By Mr.
Hultman) Now where did you go then in the car?
A I think it
was Crow Dog's. Yeah. Crow Dog's.
Q And how long
did you stay about at Crow Dog's?
{1553}
A Until the
sun dance.
Q And when was
the sun dance approximately, if you remember?
A August.
Q Early part
of August?
A End of July.
Q End of July,
early part of August?
A Yeah.
Q All right.
Did any of the
people go to any other place than Crow Dog's that was in your group?
A Yeah. As
soon as we got there, you know, we all split up. And got there, like
nothing happened. You know, we were just, went our ways and I think some
went to Al's I, I didn't tell Crow Dog and I don't think anybody else told
Crow Dog about what happened. I don't think they knew. Just like nothing
happened. We just split up.
Q In fact, did
you all discuss whether or not you would tell anybody anywhere along the
trail?
A No.
Q But did
anybody tell the old man? Would that have been Noah Wounded?
A Yeah. Noah
Wounded; yeah.
Q Did anybody
tell Noah, the old man, about the things that had happened earlier on the
26th?
{1554}
A I don't
know. They might have. I don't know.
Q But you
didn't hear anybody tell him?
A No. I didn't
hear anybody.
Q What about
the place that you stayed the second night, the next place that you
stayed, did anybody tell them about how you got there in a group under
these kind of circumstances lout of the woods and in the night? Did
anybody tell those people that you know?
A I don't
know.
Q You didn't
hear anybody tell them anyway?
A No.
Q You
definitely said that you didn't tell Crow Dog, is that right?
A No. I didn't
tell Crow Dog.
Q Did anybody
tell Crow Dog that you know?
A No. I don't
think so. I didn't hear. No. I don't think so. I don't think they'd tell
Crow Dog; no.
Q Any reason
why you wouldn't tell Crow Dog? Because he's a spiritual man, you know. I
don't know. Just good man. You know, probably didn't want to get him in
trouble. I didn't.
Q Now you
said, I believe you used the name Al, was that right?
A Yeah. Al.
Q Would that
be Mr. Al Running?
{1555}
A Yeah.
Q Who was it
that went to Mr. Al Running's place?
A I don't
know. See, as soon as we got there, we got there in the night and I stayed
at Leonard's at night and I don't know who went to Al's, but some of the
people that we came with, you know, I don't know where they were at.
Q Did you go
to Al's?
A Yeah. I went
to Al's to visit.
Q We went to
Al's? Who was at Al's that was in the group that went out on the 26th from
the tent area?
A Neelock and
Dino and Jeannie.
Q So Dino, was
there any other men besides Dino? Did Bob go?
A Bob was
there; yeah.
Q Bob and Dino
were at Al's and you were at Al's, is that right?
MR. TAIKEFF:
Objection, Your Honor.
A We're like
--
THE COURT:
Just a moment.
MR. TAIKEFF: I
believe that is not what the testimony is.
MR. HULTMAN:
If it wasn't, I certainly want it corrected.
MR. TAIKEFF:
Could I confer with Mr. Hultman for a moment? {1556}
MR. HULTMAN:
Yes. All right.
Q (By Mr.
Hultman) When you referred to staying at night at Leonard's, this is up
until this time we have been basically talking about when you used the
word Leonard, Mr. Peltier, is it not? Leonard was Mr. Peltier. Leonard
Peltier. The person that you have been talking about being with on the
26th and going --
A Yeah.
Q And so
forth. Now you referred to Leonard, staying somewhere at Leonard's.
A Crow Dog.
Q This wasn't
Mr. Peltier. This is now a new Leonard?
A Yeah.
Q This is
Leonard Crow Dog's, the medicine man you're talking about?
A Yeah.
Q We want it
made clear you didn't stay at Leonard Peltier's that night. It was Leonard
Crow Dog's. All right.
A Yeah.
Q Now I want
to ask you now, were there any other people -- did you leave Leonard's and
then go to Al Running's, is that the way it happened?
A You mean
Crow Dog's?
Q Yes.
A Yeah. I just
went there to visit.
{1557}
Q Were there
any others that stayed at Al Running's other than, I believe you said Bob
and Dino. Was there anybody else that stayed at Crow Dog's that you know?
A Yeah.
Neelock, then Jeannie. Like I stayed at Crow Dog' for awhile, then stayed
at Al's. You know, just visiting, every once in awhile.
Q Is it fair
for me to conclude from what you're saying that the people that went from
the tent area with you stayed back and forth between Leonard's and Al
Running's, is that a fair conclusion for me to draw?
A What do you
mean, "stayed back"?
Q You said
something about you were one place --
A Yeah. Just
visiting.
Q Visiting
back and forth?
A Yeah.
Q Do you know
at any other place that any of you stayed during the days following or
during the sun dance and the days following Leonard's and Al Running's, do
you know any place that anybody in the group stayed specifically?
A No. I was
just -- no. No.
Q I just have
one last question. Has everything that you've told the jury yesterday and
today been on the sacred pipe and been the truth?
A Yeah.
Q Thank you. I
have no further questions.
{1558}
MR. TAIKEFF:
May I proceed, Your Honor?
THE COURT: You
may proceed.
{1559}
CROSS-EXAMINATION
BY MR. TAIKEFF
Q Mr. Hultman
referred to you by your first name. Do you want me to call you Mr. Brown
or Norman?
A Don't
matter.
Q All right.
Defendant's Exhibit 93 in evidence is a photograph of a red white vehicle,
and I think you looked at it before, land I think you said that you
thought that vehicle at one time or another was in the vicinity of the
so-called junked cars; is that right?
A Yeah.
Q Do you know
whether that vehicle was ever operated, or was it possible to operate that
vehicle?
A I don't
know.
Q I show you
what has previously been marked Defendant's Exhibit 94 for identification.
It is not in evidence. Can you tell us if you know of your own knowledge
the relationship between what's in that photograph and what is in
Defendant's Exhibit 93 in evidence?
A What?
Q Do you know
what this is in this picture No. 94?
A It's this
one (indicating).
Q When you say
"this one" you pointed to No. 93?
A Yeah. Looks
like it, yeah.
Q All right.
94 is the back end of 93?
A Yeah.
{1560}
MR. TAIKEFF:
Offer it in evidence, Your Honor.
MR. HULTMAN:
If counsel so indicates it is, I no objection.
THE COURT: 94
is received.
Q (By Mr.
Taikeff) Now, in October of 1975 you were interviewed by the FBI, in fact
the date I believe was October 10 1975 at approximately 12:00 noon; is
that correct?
A (No
response).
Q October 10,
1975?
A 12:00 noon?
Q 12:00 in the
afternoon.
A No.
Q No. In
Arizona?
A It was --
what time did you say there?
Q I said I
believe it was on October 10th at approximately five minutes after 12:0..
A No.
Q Do you
recall whether you were interviewed --
A It was in
the evening I got interviewed that first time.
Q In other
words could it have been around midnight, five minutes after midnight?
A Yeah. I
think so.
Q All right.
A I know the
time.
Q And were
there four law enforcement officers present?
{1561}
A (No
response.)
Q If you're
not sure, tell us how many you remember.
A I remember
three.
Q Were there
three FBI agents?
A Yeah. There
was three.
Q Three FBI
agents?
A I think
there was five of them. But one kept moving in and out, bringing coffee. I
don't know if there was another one.
Q Was there
someone from the BIA?
A Yeah.
What's his
name?
Q First name
Frank?
A Frank Adake.
Q All right.
A No. That's
-- he wasn't there that time. I think you got different one there.
Q Well, did
you sign a statement that night?
A Yeah. Signed
a statement.
Q And do you
recall whether Frank Adake witnessed the statement?
A You mean
that first time they came?
Q Well, I'm
talking about October 10, '75. I wouldn't know whether that was the first
time or the second time or the third time.
{1562}
Well, let's
skip past that particular name. Do you remember the names of the agents
who were there?
A The first
time was a Victor Harvey, J. Gary Adams. I don't remember the other one.
Q Was there
ever a time when you were interviewed by an agent named James Doyle?
A Yes.
Q And did you
sign a statement on that occasion?
A Yeah, I
think so.
Q And was Gary
Adams there that time with Doyle?
A Yeah.
Q And was
there another agent by the name of Michael Ness or Ress from Albuquerque?
A What time
are you talking about?
Q I believe
October 10th. I'm not trying to pin you down to the date.
A No. I know
I'd remember if I knew what time, because it was twice.
Q I see.
A I might --
MR. TAIKEFF:
Let me have this marked so I can show it to you.
(Mr. Taikeff
had exhibit marked.)
Q (By Mr.
Taikeff) I'm placing before you this folder which contains, what has now
been marked Defendant's Exhibit 110 for {1563} identification. Do you
recognize that sheet?
A Yeah.
Q And do you
recognize that the following sheets are handwritten statement?
A Handwritten?
Q Yes. Written
by someone's hand. It's not typewritten?
A Yes.
Q Did you ever
see that handwritten statement before?
A What?
Q Before I
just showed it to you, did you ever see that statement?
A Yeah. Yeah,
I saw it.
MR. TAIKEFF:
Your Honor, may I have a moment to confer with Mr. Hultman?
THE COURT:
Very well.
(Whereupon,
Mr. Taikeff conferred with Mr. Hultman.)
MR. TAIKEFF:
Your Honor, with Mr. Hultman's consent and subject to Your Honor's ruling,
I'm going to give to the witness a duplicate of what has been previously
marked Defense Exhibit 110 for identification to facilitate the
questioning.
THE COURT: Any
objection?
MR. HULTMAN: I
may object to the question, Your Honor. I have no objection to the
procedure that we're using.
THE COURT: I
have reference to the procedure.
{1564}
MR. HULTMAN: I
understand, Your Honor.
THE COURT:
That is approved.
MR. HULTMAN:
Thank you, Your Honor. And the statement is now in the hands of the
witness.
Q (By Mr.
Taikeff) What I want to know is whether you put your initials at least
once on every page of that document?
A Yeah.
Q Who wrote
out that statement?
A Doyle,
James.
Q And were you
speaking with the agents while they were, or the agent while he was
writing that statement?
A Yeah. But --
Q All right.
Just answer my questions and I'll take it a step at a time with you.
A Yeah.
Q Look at the
third page of the statement four lines from he bottom.
MR. HULTMAN:
Are we referring to page 3, Counsel, so I can follow?
MR. TAIKEFF:
I'm going to show it to counsel, Your Honor.
(Whereupon,
Mr. Taikeff showed Mr. Hultman Defense Exhibit 110.)
Q (By Mr.
Taikeff) Are you looking at the page, Norman, where the word "lunch" is
crossed out and the word "breakfast" {1565} is written in?
A Yeah.
Q And your
initials are next to the word "lunch" that's been crossed out; isn't that
correct?
A Yeah.
Q Now, at the
beginning of that particular sentence four lines from the bottom are the
words "at approximately 11:30 A.M.". Would you read that sentence to
yourself.
A You mean
from --
Q From the
words "at approximately 11:30 A.M." until the end of that sentence.
A Okay. At
approximately --
MR. HULTMAN:
Well, now just a second, Your Honor.
Q (By Mr.
Taikeff) Not out loud. Read it to yourself.
A Yeah.
Q Now, before
you put your initials on the page you read each page, didn't you?
A I don't
know. I don't remember. Yeah.
Q Did you say
"yes"?
A I think so.
I'm not sure.
Q Okay. Now,
did you tell the agents that day that while you were preparing to have a
meal you were with Joe Stuntz, Zimmerman and Michael Anderson?
A Yeah.
I mean did I
say that to them?
{1566}
Q Yes.
A I don't
know. I can't remember too good.
Yeah, I think
so, yeah.
Q Now, on your
direct examination you said that when you were in tent city just before
the firing begin you weren't sure where Anderson was.
A Yeah.
Q Now, isn't
it a fact that Anderson was in tent city with you and the other people?
MR. HULTMAN:
Well, I object, Your Honor, on the grounds that this question has been
asked and answered and that it is an attempt on the part of counsel. No
objection to him asking the question as to who was there, but on attempt
on the part of counsel to confuse the witness.
MR. TAIKEFF:
Your Honor, I think it's a perfectly properly phrased question.
THE COURT: The
witness may answer.
MR. TAIKEFF:
Beg your pardon?
THE COURT: The
witness may answer.
MR. TAIKEFF:
Thank you, Your Honor.
Q (By Mr.
Taikeff) Do you remember the question?
A Say it
again.
Q Isn't it a
fact that when you were preparing to have your meal --
A Yeah.
{1567}
Q -- just
before the firing started Mike Anderson was in tent city with you and the
other people?
A No, he
wasn't.
Q He wasn't?
A No. This was
a long time ago. This is the second time when they came to me.
Q June 26,
1975 was a long time ago, wasn't it?
A Yeah.
Q And this
statement was taken from you on October 10, 1975?
A Yes.
Q And today's
date is March 25, 1977, isn't it?
A Yes.
Q Which is
closer to June 26th, the day the took the statement or today?
A The day they
took the statement.
Q And as a
general rule is your memory better closer to an event or far from an
event?
A Yeah.
Q Yeah what?
A Yeah, my
memory's good closer to the event.
Q Is it
possible that you forgot that Mike Anderson was with you in tent city?
A Yeah, it's
possible.
Q Now, I
notice as I've said before that the word "lunch" is crossed out and the
word "breakfast" is put in. Is it a fact {1568} that that was the first
meal you were all going to have that day because you had just gotten up
before that?
A Yeah, right.
MR. HULTMAN:
Well, I object, Your Honor, now to the question because it included an
alleged fact that was not a part of the record, that he had "just gotten
up". I believe it shows, the record shows that that is not to be the
record. If counsel will ask the witness that question, I'll have no
objection.
MR. TAIKEFF:
Your Honor, I believe that Mr. Hultman accurately states the fact, but I
don't think that's the basis for finding my question objectionable. I'm
seeking information from a witness on cross-examination.
It's my
understanding that if I have a good faith basis for asking a question as a
question rather than making a statement that it's proper for me to do so.
And the good faith basis is what I saw in that statement.
MR. HULTMAN:
Might we approach the bench just one time.
(Whereupon,
the following proceedings were had at the bench:)
MR. HULTMAN:
Your Honor, and Counsel, I'm not in any way trying to interfere, and I
won't interfere with your questioning. I think, though, I'm under a duty
with the witness of this kind with a far greater degree of necessity
{1569} make absolutely certain that there is no misunderstanding in the
mind of the witness that he understands what statement included. Because I
think without any question a witness of this kind, and that's why I was so
deliberate in the course of my questioning to make absolutely certain in
all fairness that he understood the question, that he responded to the
question accurately. And that's the only reason for my objection now,
Counsel.
MR. TAIKEFF: I
can assure Your Honor that there was no sense on my part that the witness
had not misunderstood question. I would not proceed on that basis, and I
to clarify one point here so that counsel doesn't have any unnecessary
exchanges during the cross-examination. Your Honor earlier in the trial
made a ruling that it was for counsel to state facts as if they were facts
in trying to elicit an answer because it left the wrong impression with
the jury in a way that it could be said that counsel is testifying when
counsel does that. But --
THE COURT: Not
state facts, state facts which are not supported by the evidence.
MR. TAIKEFF:
Right. But I understand that it is proper to say to a witness "isn't it a
fact that," if there's a good faith basis for doing it. And it is not an
attempt to parade information in front of the jury for which there
legitimate basis.
{1570}
MR. HULTMAN: I
have no objection to that.
MR. TAIKEFF:
As long as I understand that.
THE COURT:
There's good faith basis for doing it, but my objection to it is stating,
making an assertion which there is no apparent, no factual basis for it.
MR. TAIKEFF: I
understand.
MR. HULTMAN:
Your Honor, the reason I wanted to approach the bench is I want counsel to
know that I feel with a witness of this kind, his demeanor, his
background, his hostility, in terms of, not to counsel now, but I'm
referring now as to relationships in what terms they might be, leads us to
one position that I don't want counsel to reel that if I become vigorous
in an objection that I'm not attempting in any way to take from counsel or
to distract from counsel, but I feel with a witness of this kind there may
be occasions when I would have to do that, otherwise I wouldn't.
MR. TAIKEFF: I
think, though, up to this point it's fairly clear that the witness has
been responsive to Government counsel, and apparently there was a
clear-cut rapport of a positive nature between Government counsel and the
witness. So I don't think there can be any indication at this time that
there is any hostility, either legal or personal. And I just wanted to
comment on that to make sure that the record was not confused. And I see
that Your Honor has closed his {1571} book.
THE COURT: I
have closed my book.
MR. LOWE: That
is what is known as a signal.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
THE COURT:
Court is in recess until 1:30.
(Recess
taken.)
AFTERNOON
SESSION
(Whereupon, at
1:30 o'clock, p.m., the trial of the within cause was resumed pursuant to
the noon recess heretofore taken; and the following further proceedings
were had, the Defendant being present in person:)
(Mr. David
Maring also appeared).
THE COURT: Are
we ready for the jury?
MR. TAIKEFF:
Yes, your Honor.
THE COURT: The
jury may be brought in.
(Whereupon, at
1:32 o'clock, p.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. TAIKEFF:
Thank you, your Honor.
NORMAN BROWN,
having been
previously duly sworn, resumed the stand and testified further as follows:
CROSS
EXAMINATION (Cont'd.)
BY MR. TAIKEFF:
Q Norman, I
want you to try to remember the time when you heard the first shot on June
26th when you were in Tent City. How long after you woke up was that?
A I don't
know. I just got up.
Q Could you
tell from what you saw around you in the camp what time the other people
in the camp had gotten up?
{1573}
A Well, they
got up before me, so I had just gotten up, and was talking to Joe for
awhile, and that's when I heard the shots. I don't know what time.
Q What kind of
things were being done in the camp when you got up?
A Well, they
were cooking, they were making pancakes, and don't know. I had just gotten
up, and I was talking to them so I woke up and I went with Joe and I was
talking to Joe for awhile, and I don't know where the rest of the people
were. They might have been still sleeping, I don't know.
Q Now, you
spent some time up on the ridge near the houses, is that right?
A Yes.
Q After the
shooting started?
A Yeah.
Q And Mike
Anderson was up there on the ridge with you, wasn't he?
A Yeah.
Q Now, after
you were up on the ridge by the houses, you then went up to this area here
(indicating) which has been marked in a circle "NB", is that right?
A Correct.
Q And what was
the next place you went to after you were in that spot?
A To the camp.
{1574}
Q And then
from the camp you left the area?
A Right.
Q Now, when
you made your way from the area of the houses to that spot, where was
Leonard Peltier?
A When I saw
him, way over there (indicating), he was right There in the circle.
Q To the right
on the chart of this "Y" intersection?
A Yes.
Q Now, where
was the next time you saw him?
A Inside the
camp.
Q Did you ever
see him when you were in this area marked "NB"?
A No. I just
saw Mike, me and Mike.
Q From this
area marked "NB", are you able to see down into the area of this
intersection, the "Y" intersection?
A No.
Q Now, when
you said a few moments ago that you were talking with Joe in Tent City
right after you got up, you were talking about Joe Stuntz, weren't you?
A Right.
Q And is it
accurate to say that Joe Stuntz was in Tent City when the shooting began?
A Yeah.
Q And did he
go over to --
MR. HULTMAN:
(Interrupting) Well, may it please the {1575} Court, I didn't have time to
enter an objection, your Honor.
I object on
the grounds that that is not a statement of the record, that the statement
was that he did not know, that he was in the area, was the exact words;
and I went into that at least on two occasions, and so I now object on the
grounds that the question is a misstatement of the record.
MR. TAIKEFF:
Your Honor, I think we have to get one thing straightened out so that
there is not unnecessary colloquy. I am not bound by answers of a
prosecution witness. If I ask a question in good faith and I get an
affirmative answer, I don't see what the prosecution can object to; and I
think on top of that, that Mr. Hultman has made a mistake and he is
thinking of the wrong person.
I would be
glad to confer with him for a moment and perhaps call that to his
attention.
MR. HULTMAN:
Your Honor, I think the matter can be resolved if I just get the
opportunity from counsel before the response, that's all I am asking. I
think within the Rules I have a right to make my objection at the end of
the question before the response in order that the response not come, if
it is legitimately to be withheld and not to come before the jury. That's
my only point.
MR. TAIKEFF: I
have no quarrel with that, your Honor.
{1576}
I would like
the jury to know that counsel are permitted on cross examination to put a
factual proposition to a witness to see whether the witness will agree
with it or disagree with it providing counsel has a good faith basis for
asking such a question, and it is not improper conduct on the part of
counsel.
MR. HULTMAN: I
didn't in any way infer -- I want counsel to know flat out, I wasn't
inferring it was an improper act.
MR. TAIKEFF:
May I have a moment to confer?
THE COURT: You
may.
(Counsel
confer.)
MR. HULTMAN: I
withdraw my objection, your Honor.
THE COURT:
Just a word to the jury.
You may recall
that in my preliminary instructions at the opening of the trial I advised
you that it is your responsibility to listen to the evidence and to
determine what weight should be given to it. The problem that has arisen
here and which has arisen before, and which will arise again, is that a
witness may make a statement on direct examination; and if the
cross-examining lawyer may have information before him which indicates
that the witness made a different statement -- and if he asks -- on a
different occasion relating to the same thing; and if he asks that
witness, "Isn't it true that you made such {1577} and such a statement,"
and the witness says "Yes," then you have a direct conflict such as has
just arisen; and it is for the jury to determine what the truth is in the
statements of the witness, and that same test should be applied in judging
the weight and credibility of any witness.
(Counsel
confer.)
MR. HULTMAN:
Your Honor, may I state for the record at this time with counsel that
there is no -- because there may be a misunderstanding as far as the
record, there is no disagreement between counsel that Joe Stuntz was with
the witness at the time; and that's a consistent statement and there is no
disagreement about that.
MR. TAIKEFF:
Yes. My position is that his direct and his cross are consistent in that
regards, your Honor.
THE COURT:
Very well.
Q (By Mr.
Taikeff) You said something on your direct examination, you know what your
direct examination means?
A No.
Q When Mr.
Hultman was asking you questions, that's your direct examination, so when
I refer to it, I mean when Mr. Hultman was questioning you.
A Yes.
Q You said
something on your direct examination about some concern about a
possibility of an attack, do you recall that?
{1578}
A Right.
Q Would you
explain what was the basis of your concern, what specifically you were
concerned about?
A Well, I read
in papers about goons, BIA goons, FBI, people tell me what they done to
their homes, goons do, and how many people have been killed; and that's
why we were concerned, not only for us, for the women and children there.
Is that what you are asking the question.
Q
(Interrupting) That's what I am asking about, the people who said certain
things to you.
Are you
talking about the people who were living in Tent City or people who lived
elsewhere on the Reservation?
A Yeah,
elsewhere, and some people in Tent City. Like I say, you know, the goons,
watch out for them, they are dangerous.
Q Now, when
you went up to the area which is marked with the letters "NB", you had a
certain concern about the women who were there, did you not?
A Right.
Q You had seen
something just before you went up there, just before you left the area of
the residences to go up there, do you remember?
A Right.
Q What did you
see?
A Some cars
and some people coming across from the road over here (indicating) towards
the area where the tents were {1579} (indicating).
MR. TAIKEFF: I
believe that the witness has motioned with his hand in such a way as to
probably indicate from Highway 35 in the south pointing towards the north.
Q (By Mr.
Taikeff) The people you saw coming from south to north, were they Indian
people?
A Coming from
this way (indicating)?
Q Yes, sir.
A No.
Q They were
not Indian people?
A No.
Q The people
you saw arriving in cars on that part of Highway 35 which is west of the
houses, where the bottom of the chart is?
A Yes.
Q Were those
Indian people?
A I didn't see
any.
Q Did you see
any cars pull up there?
A You mean --
what are you talking about, right there?
Q No. I am
talking about a place that isn't on the chart but would be on the chart --
Highway 35 comes all the way around?
A Yes.
Q And down
here in the west (indicating), did you say that you saw some cars pull up
just before Joe Stuntz told you to {1580} go?
A Yes.
Q Up towards
Tent City?
A Yes.
Q What kind of
cars were they?
A They were
just plain cars, you know, one color of car.
Q Did you know
who was in those cars?
A No, but I
saw them carrying some guns.
Q Did you
think it was possible that people would come into your tent city area and
harm or shoot these women?
A You mean me?
Q Yes, I am
asking you whether you thought it was possible that such a thing could
happen.
A Yes.
Q Now, you
said that Joe Stuntz said something to you about, "This is the time to be
a warrior." Did I say that correctly?
A Right.
Q What does
that mean to you, what did it mean to you?
A Well, I
think whet he meant was, shouldn't be scared to die, that I should think
of the people that were there and not of myself, I think that's what he
meant.
Q Mr. Hultman
asked you a number of questions concerning the Jumping Bull community with
reference to the possibility of seeing goons in that area, and I don't
remember all the places that he pointed out to you; but I think he asked
you whether {1581} you ever saw any goons in the vicinity of the tan and
red house and any goons in the the vicinity of the white house and a
number of other places. Do you recall that, whether you ever saw any
goons?
You remember
Mr. Hultman asking you whether you saw any goons in those various places?
A Goons?
Q Yes.
A No, I didn't
see no goons.
Q I know you
didn't. I am asking you whether you recall being questioned about that
when Mr. Hultman was questioning you.
A No, he
didn't say that.
Q He didn't
say that, o.k.
You have never
seen any goons on the Jumping Bull compound, have you?
A No.
Q Do you know
any reason why they never came around there?
MR. HULTMAN:
Well, I object, your Honor, to this. This clearly calls for an opinion and
conclusion of the witness for which there is no proper foundation.
MR. TAIKEFF: I
believe, your Honor, the question was the foundation. I asked him if he
knew the reason why they didn't come around there.
MR. HULTMAN:
That's the very reason for my objection.
{1582}
It calls for
an opinion and conclusion for which there is no foundation.
THE COURT:
Overruled. He can state whether he --
THE WITNESS:
(Interrupting) Could you say that again?
Q (By Mr.
Taikeff) You are permitted to tell us, if you know, why the goons didn't
come around to the Jumping Bull's community.
A Because
there was already people there.
THE COURT: The
answer was "Do you know."
Q (By Mr.
Taikeff) Do you know why?
A No, I don't
know why. I don't understand the question.
Q All right.
Let me try again.
Goons didn't
come around the Jumping Bull community, did they?
A No, I didn't
see them.
Q O.k. Do you
know why?
A No.
Q O.k. You
said that you went to a religious gathering in Farmington, New Mexico?
A Right.
Q Would you
explain what you meant by "religious gathering", what was happening there?
A Well,
spiritual gathering there?
Q Yes. Maybe I
wrote down the wrong word. Maybe you said "spiritual gathering".
{1583}
A Well, it is
when a lot of people meet together, and they talk about their unborn and
they talk to their elders, and to us that's sacred. That's why I said
"spiritual gathering".
Q And who
sponsored that activity in Farmington, New Mexico, in the early spring of
1976?
A The American
Indian Movement.
Q Briefly tell
us what you mean when you make reference to "elders"?
A Our medicine
men, our old people, that they know more, you know, than we do so we are
asking them what kind of direction to take; and they tell us things about
the sacred pipe and sweat lodge, stuff like that.
Q I may have
made a mistake before -- I want to correct myself -- when I spoke about
that gathering in Farmington, New Mexico. That was the early spring of
1975, right?
A Right.
Q Not 1976?
A Right.
Q Do you know
or have you ever heard the expression, "traditional Indian"?
A Right.
Q Are the
elders you speak of people who are described as traditional Indians?
A Yes.
Q Can you
briefly explain what that means in terms of how {1584} they live their
lives?
A They depend
on themselves and nature and the medicines; and their thoughts are always
concerned about people. You mean how they live?
Q Yes. I am
following your answer. You can continue your answer, just as you are
giving it.
A
"Traditional", what I think it is is people that live in harmony with
nature and that -- well, that's about all I can say.
Q Is there any
special connection between traditional people and the American Indian
Movement?
A Yeah. They
are the same because the thoughts are the same and both thoughts are for
the unborn, I think that's what you wanted to know, I don't know.
Q You live on
a Reservation?
A Yeah.
Q How many
people live on that Reservation?
A About
145,000.
Q How many of
those would you say live a traditional Indian life?
A Well, about
120,000, I guess, yeah, almost three-fourths of the people there.
{1585}
Q Do you know
anything about the political activities of AIM concerning life and
political matters on the reservation?
A What do you
mean?
Q Well,
besides the religious aspects of the activity, there are aspects
concerning who governs the Indian people and how they are governed on
behalf of AIM.
A Well, I
guess they're trying to put across that native people want to live, you
know, in the sovereign way and depend on themselves and their own
traditional kind of government.
Q Were Leonard
and Dino and Bob involved in any activities like that on the Pine Ridge
Reservation in June of 1975?
A What do you
mean? I don't understand.
Q Were they
working with the people there?
A Right. They
were. Were working with them and they were with us. Medicine man come into
our camp. There was a spiritual camp and it was, we took sweat lodges
together, other people. They come and talked to us and, you know, help us
with the food and, you know, help us in that way. And, you know, that's
what the people came to the camp for.
Q The people
who live on Pine Ridge came to your camp?
A Yeah. Lot of
people.
Q Lot of
people?
A Yeah.
Q Were you
trying to encourage them to do something? Were you trying to get them to
do something, to live a certain kind of way?
{1586}
A Yeah.
Could you say
that again?
Q Yes. These
people who came to you, were you trying to persuade them to live their
lives a certain kind of way and take up the old traditional Indian way?
A Yeah We told
them that, you know, that we think that the traditional form of government
would be better than the present government there because the traditional
form of government is a, it's with nature, the law of nature, and we feel
that no law is greater than our law, that's the law of nature: love, peace
and respect. That's what, you know, we tell them that way is better.
Q While you
were on the reservation, did you talk to other people about their treaty
rights?
A No, I
didn't. No.
Q Do you know
if Leonard did?
A Yeah. Yeah.
I don't know too much about it. Oglala, their nation, I don't know their
treaty. Know very little about it.
Q I'm not
asking you about the content of the subject matter. I'm just trying to
find out about the activities of the people who lived in tent city, what
their work was, what their activities were. Do you understand that?
A Yeah.
{1587}
Q When you
speak of treaty, or when I ask you about the treaty, what kind of a treaty
are you talking about? With whom was the treaty that you referred to?
A With the
government. I think the one you're talking about is 1868 Fort Laramie
Treaty.
Q Yes. Tell us
briefly of what your understanding is about that as far as it concerned
the activities of the people from tent city, what connection they had with
the subject of the 1868 Fort Laramie Treaty.
A Well, the
subject, the way I understand is when they first, when our nation first
signed a the treaty with the government, I guess they did with all Indian
people, is when they signed that paper, or they were forced to sign it, I
don't know, I think the understanding is that we go on separate roads.
This road would be traditional form of government, the native people on
this side and our white brothers and sisters on this side (indicating). So
we're trying to tell them, you know, "Not supposed to touch, stay on this
side because there come a time when," like there is two boats, two canoes,
the white people on this side and the Indian people on this side. You're
either in one boat or the other and you can't sit in both boats at one
time.
Like my elder
told me this that when there is a wind, he said a wind is going to come
and separate these and the people that live the white way and the Indian
way, the boats are {1588} going to separate and those guys are going to
fall to disaster. Just take this side, this is the only way. This is the
creator meant for us to be.
Q Your message
to the people on the Pine Ridge Reservation was don't live your life like
a white person if you're not a white person, live your life like the
native American has always lived his life, is that a fair summary?
A Well --
MR. HULTMAN:
Your Honor. Excuse me, Norman. Your Honor, I haven't entered any objection
at this time and I think I have been lenient but I would at this time now
interpose an objection that the matter we're now getting into there is no
showing of relevancy and it's clearly beyond the scope of direct
examination.
MR. TAIKEFF:
Your Honor, I recognize Mr. Hultman in fact has restrained himself.
However, on direct examination he asked the witness whether he knew
anything of the work that was being done by Leonard Peltier and the other
adult males. The answer was no. I don't know that the witness understood
the question at that time and I'm addressing myself to that direct
testimony at this particular time.
MR. HULTMAN:
Your Honor, my objection is that I would have no objection to any showing
of relevancy in terms of any activity that did go on. The only thing we
have heard is a general discussion of philosophy. That's the basis for
{1589} my objection. If there is any showing of any kind that there was
specific activity, then there might be some probative value, but my
objection goes clearly to the point there has been no showing of any kind
of any specific activity.
THE COURT: As
I understand the relevancy which defense counsel is asserting is he is
attempting through this witness to establish to the extent of this
witness' knowledge of the purpose of this group's presence at this
particular location at that time.
MR. TAIKEFF:
That is correct. And it is specifically addressed to the fact that the
direct examination, there was a question as to whether the witness knew
what Leonard and Bob and Dino, the adults of the group, were doing there
and the answer was, "No" and I'm probing that answer. I think the answer
was given as it was because the witness may not have understood the import
or the impact of the question.
THE COURT:
Well, within those limits of relevancy I will permit you to proceed.
A Could I
answer that question back there? The last one?
Q (By Mr.
Taikeff) I have no objection.
A What you say
that wind is going to separate them apart with the movement, the American
Indian Movement is going to. I guess that answers your question. That wind
has to do that.
Q What did you
and the other people from tent city do about {1590} spreading that word,
about bringing that information to other native American people?
A Would you
say that again.
Q Yes. I'll
try it a different way.
Am I correct
that you wanted the native American people living on Pine Ridge to assert
their rights under the 1868 Fort Laramie Treaty and live independently of
the white culture?
A Yeah.
Q And that you
wanted the native American people at that location and perhaps in all
locations to live their life by the religious beliefs, the traditional
native American religious belief?
A Right.
Q What did you
do in order to bring this message to the people on the reservation?
A What did I
do?
Q What did you
and the people from tent city? You said people came to you from different
places on the reservation.
A Yeah.
Q Was there
any connection between those people coming to you and what you wanted them
to learn from you?
A Trying to
tell of a new direction. You know, to go the direction of, like you said,
traditional government, or like I said.
{1591}
Q And did you
hold religious ceremonies?
A Yeah.
Q How often?
A Lots. About,
used to have in the morning and then at night and came to be we had it
every day. Sweat lodge.
Q Were the
native American people welcome to come and participate?
A Yeah. They
did come and take in the sweat lodge with us.
Q And was that
part of your program, part of your way of persuading them, of helping them
see the new way which was really the old way?
A Yeah.
Q You
mentioned a place called Crow Dog's paradise. Would you tell us what that
place is.
A It's a place
where each year that they have the sacred sun dance every year and the
place where people meet, like to sun dance. That's what it is. When people
from all over come together and think with the same mind and thoughts and
pray for all walks of life. That land there is sacred.
Q When you
speak of all walks of life, you don't mean all different kinds of people,
you mean people and animals, don't you?
A Yeah.
People. Black, yellow, white and red. That's what the sun dance is all
about.
Q Leonard Crow
Dog is a medicine man?
{1592}
A Right.
Q His father
was a medicine man before him?
A Right.
Q And you
consider him a holy man, do you not?
A Right.
Q You said
when Mr. Hultman was questioning you that you went to the sun dance for
the first time when you were 13 years old.
A Right.
Q Is there any
connection between the first time you go to sun dance and becoming a man?
A No, it's
not. It's not that. It's like, not like, you don't do that just because
you become a man. You thank our creator, we thank him. Like if we offer
him tobacco or a horse or something, it's already his. We offer ourselves.
We belong to ourselves but we're his children and these are our own bodies
so we offer him all we have got, offering ourselves to him so that, you
know, we can live in harmony and have a good understanding of nature.
Q From your
contact with Leonard Peltier, would you say that is a spiritual man?
A Right.
Everybody in the camp was spiritual. Yeah.
Q Did you
think that if you had to use a gun to protect the young women that you
would be giving up your spiritual nature?
A No. Because
to me, you know, as to everybody in the camp, {1593} as we learn, I guess,
since we were small that, you know, all life is sacred, you know.
Q Did you see
all life is sacred?
A And we had
to protect, you know, lives is what we done.
Q Now you
traveled when you were quite young many different places in the western
part of the United States, isn't that correct?
A Right.
Q Is that part
of your life as a native American person, traveling from place to place
and living in different places or different periods of time?
A What?
Q Did you live
in different places, is that a cultural thing to live in different places
at different times?
A Yeah. I
guess so.
Q How long did
you live on the Pine Ridge?
A About two
weeks.
Q How many
different times did you live on the Rose Bud Reservation?
A Last year.
This would be my fourth time this year.
Q This year
will be your fourth time?
A Yeah. How
many different reservations have you lived at from time to time so far in
your life?
A About five.
{1594}
Q Were there
things that the people in tent city had that everybody used?
A Yeah, there
was. What do you mean?
Q Well, for
instance, sometimes you had one gun, then another time you had a different
gun. Is that unusual amongst Indian people to use things that way so that
it doesn't seem to belong to just one person?
A Yeah.
Q Is that the
Indian way?
A Yeah.
Q How do you
describe that? Do you have a word that you can use in English to describe
that?
A What do you
mean like? Say the question again.
Q Yes. You
shared many things.
A Yeah.
Q With your
brothers and sisters, didn't you?
A Yeah.
Q You said
that there were times when you saw Leonard with a certain gun.
A Right.
Q Did he
sometimes have a different gun?
A He might
have. I don't know.
{1595}
Q Did you
always use the same gun?
A No.
Q You said
that sometimes Leonard drove the red and white van?
A Yeah.
Q Did anybody
else ever drive that van?
A Yeah.
Q Who else?
A Well, I
drove it once and Joe and Dino drove it.
Q Did you
share your food?
A Right.
Q Did you
share whatever money you had?
A What money?
Q Did you
share between yourselves whatever you had?
A Yeah.
Q Is that the
Indian way?
A Right.
Q You refer to
Joe Stuntz as your brother. I assume you meant that in the spiritual way?
A Right.
Q Jimmy
Zimmermann separated from the group on June 26, 1975; isn't that correct?
A Right.
Q Was that
just about the time the group was leaving and moving south?
{1596}
A Yeah. This
is when we all got together and we were ready to leave. And before we left
when we got together, he should give himself up because, you know, he
might get hurt.
Q Why did you
think he might get hurt?
A Because
people were shooting at us.
Q Now, in
giving your direct testimony and talking about the two men who were at the
cars, the one with the long gun and the one with the handgun, you've
referred to them as agents, right? You said they were agents?
A Right.
Q You now that
they were agents of the FBI; isn't that correct?
A Right.
Q When the
shooting was going on did you know that they were agents of the FBI?
A No.
Q You told us
that you saw Leonard shooting from that place where the junked cars are
and you also said you saw the agents shooting?
A Yeah.
Q Which one
did you see shooting first?
A I don't
know. It was just -- I don't know who shot first, but they were shooting
at each other I could tell.
Q Well, when
you looked, which did you look at first and see shooting?
{1597}
A Well, when I
got up there I saw Leonard shooting. He's the first one I saw shooting.
And he backed down and his shots were not very fast. Shots, just shots.
Q And how long
after the shooting first started did you see Leonard shooting?
A I don't
know. Just happened so fast. I don't know.
Q How long did
it take to go from tent city over to the houses?
A About a
minute and a half. Me and Joe went up to that little hill.
Q And then you
went back to tent city?
A Yeah. And
then we ran back all the way from there and then back to tent city. Minute
and a half, two minutes.
Q Did you ever
see a person by the name of Jean Day at the Jumping Bull community?
A No.
Q Do you know
whether there was a woman with Leonard Peltier, either living with him or
his girl friend?
A No.
Q Did you ever
see a person by the name of Myrtle Poor Bear at the Jumping Bull area?
A No.
Q Do you know
who she is?
A Now I do.
Q When was the
first time you met her?
{1598}
A I mean not
now. I met her, but I know who she is when I read in the paper. I don't
know her.
I never talked
to her, just I heard of her.
Q You never
saw her on the Pine Ridge Reservation?
A No.
Q Did you ever
see a person by the name of Anna Mae Aquash at the Jumping Bull community?
A Yeah.
Q Did you ever
see a person by the name of James Eagle at the Jumping Bull community?
A No.
Q Did you ever
hear, either on June 26, 1975 or before June 26, 1975 any talk from the
people who were with you on the Jumping Bull compound or community, did
you ever hear any talk about killing FBI agents or killing BIA police
officers?
A No.
Q I asked you
a few moments ago about a James Eagle.
A Yeah.
Q Do you
understand that that person may also be known as Jimmy Eagle?
A What?
Q Do you know
anyone named Jimmy Eagle?
A Yeah. That's
the same person.
Q Okay. You
never saw that person at the Jumping Bull compound?
{1599}
A No.
Q Was there
over any talk amongst the people or the Jumping Bull community about an
ambush?
A No.
Q Are you sure
of that?
A Yeah, I'm
sure.
Q Are you a
good shot with a rifle?
A I don't
know.
Q Did you
shoot-out any of the tires on the two cars that came in after the shooting
started?
A Yeah. It
looked like it, yeah.
Q Were you
aiming for the tires?
A Yeah.
Q Do you think
if you wanted to you could have hit the center of the windshield?
A If I wanted
to.
Q What was the
distance that you were shooting?
A I don't
know. It was pretty close.
Q You were at
the white house?
A Yeah, white
house.
Q And you wore
shooting a single shot 22 caliber rifle?
A Yeah.
Q And the cars
that you are talking about stopped about here (indicating)?
A Right here
where the "B" and "AB' is.
{1600}
Q Right here
(indicating)?
A Somewhere
around there.
MR. HULTMAN: I
believe counsel used a specific yardage when I asked him this morning. And
I would have no objection if you use a distance that he used. If you want
to use a spot on the map, I would just request you use both
characterizations that he gave.
MR. TAIKEFF:
Is it your position that it's about two hundred yards?
MR. HULTMAN:
It's father than indicated on the map anyway.
Q (By Mr.
Taikeff) Is it your position that it's about two hundred yards?
MR. HULTMAN:
It's farther than indicated on the map anyway.
Q (By Mr.
Taikeff) Okay. Would you say you were shooting a distance of at least two
hundred yards? Six hundred, seven hundred foot?
A Yeah, I
guess so. I don't know.
Q Have any
idea how many tires you shot out with that single shot 22 from two hundred
or more yards?
A I don't
know. I think two.
Q Now, when
you were back up near tent city in the area marked "NB" you were supposed
to keep your eye out for anyone approaching tent city because you thought
that the women were {1601} up there, right?
A Right.
Q Were you
watching the road, the one that runs north-south across the chart, that
short little road?
A That was
another one. It comes down this way. It's a dirt road down this way
(indicating).
Q All right.
Let me ask you an easier question, perhaps. Were you watching all the
roads that lead into tent city?
A Yes.
Q Could you
see the roads from where you were positioned yourself from where you -
A Just part of
the road. But right where I was at there, I could see that main road
going. I was watching for it.
Q How about
the road that came up from the area of the houses, could you see that
road?
A Just to
where -- right there (indicating).
Q That's the
part that runs from left to right?
A Right across
from "Plateau"?
Q Yes.
A Yes.
Q Okay. That's
what I was asking you about before. You could see that, right?
A Just the
part that, just right there towards camp. Those two places.
Q Okay. Were
you paying attention and keeping your eye open a {1602} for anybody
coming?
A Yeah.
Q Were you
listening to hear if anyone was coming either on the road or through the
woods?
A Right.
Q Did you see
any cars or trucks coming that way while you were there?
A You mean by
those two roads?
Q Yes.
A No, I didn't
see no cars.
Q Now, when
you left that area where "N.B" is, you went directly to tent city; is that
right?
A Yeah, that's
right.
Q And did you
find Leonard Peltier there?
A Right.
Q And he was
loading something, wasn't he?
A Right.
Q And what was
he loading?
A A van.
Q A red and
white van?
A Yeah.
Q The one that
the Government showed you pictures of; is that right?
A Yes.
Q When you and
your brothers and sisters left tent city you {1603} said there was some
shooting at you before you got out of the area; is that right?
A At me?
Q At your
group, shots were fired at the group?
A No. I mean
when Jimmy went back, heard same shots.
Q How about
after you left?
A You mean
when we got through the culvert?
Q Well, from
the time you left tent city you went south first; isn't that correct,
towards Highway 35?
A Right.
Q How far is
it to Highway 35 approximately?
A About half a
mile, three-fourths of a mile.
Q In that
distance, in that half mile or three-quarters of a mile, anybody take any
shots at you?
A No.
Q Or at
anybody else in the group?
A No. Just
quiet.
Q But sometime
after you left, there was some shooting at you, wasn't there?
A Right.
Q Where were
you then, where was the group at that time?
A Running up
the hill.
Q Where was
that hill? Beyond 35, Highway 35?
A Yeah, yeah.
Q Okay. When
you were running up the hill and shots were {1604} fired at you was anyone
-- who shot first in the group, or was someone shooting at the group?
A At the
group.
Q Now, the
Government showed you two pistols which you said resembled the pistols you
saw in the cabin one night where the ten of you stayed.
A Right.
Q How big
would you say that cabin was?
A Small cabin.
It's about --
Q As big as
the jury box?
A Smaller.
About halfway.
Q Half the
size of the jury box?
A Yeah.
A little bit
wider. It was just small, just small.
Q How many of
you slept in that cabin?
A Eight. But
Norman and somebody went on security when we came back.
Q So eight
were sleeping in the cabin and two were on guard duty?
A Yeah.
Q Now, was
anybody carrying those pistols that you saw? Did you see anyone carrying
the pistols? I'm talking about when they were sitting on the table.
A Yeah. Dino I
saw carrying one.
Q Did you ever
see Leonard carrying one of those pistols?
A I don't
know. I can't remember.
{1605}
Q Do you know
who brought those pistols to that cabin?
A No.
Q Do you have
any knowledge of where they came from?
A No.
Q Were you at
Crow Dog's Paradise in September of that year?
A Yeah.
September, right.
Q How long did
you stay at Crow Dog's Paradise in September of 1975?
A You mean how
long did I stay there?
Q Yes. On that
visit.
A About a week
there.
Q I'm sorry, I
didn't hear the last part of your answer.
A When I got
there, about a week before September 5th.
Q You see any
FBI agents while you were there?
A Yeah. They
passed by.
Q Any of them
come into the camp?
A You mean
before June -- I mean September 5th?
Q Or on
September 5th?
A Yeah, I saw
them come in.
Q How many?
A There was a
lot of them. About eighty, a hundred of them. There was a lot of them
there.
Q This is on
the reservation, right, the Rosebud Reservation?
A Right. Crow
Dog's Paradise.
Q Now, Crow
Dog's Paradise is a holy place, is it not?
{1606}
A Right.
Q And that's
where Leonard Crow Dog and Henry Crow Dog live?
A Right.
Q Henry Crow
Dog is Leonard's father; is that right?
A Right.
MR. HULTMAN:
Your Honor, I haven't objected to this point, but I'll enter an objection
at this time about anything from this point on. It is irrelevant.
THE COURT:
Sustained.
MR. TAIKEFF:
I'd like to come to the sidebar and explain to Your Honor the relevancy.
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. TAIKEFF:
Your Honor, I am now entering upon a portion of the cross-examination
which will elicit information concerning the conduct of this witness under
the influence or fear. And what I am about to elicit from him, the fact
that I'm about to elicit represent part or the information concerning the
fear which was motivating him when he took certain conduct on a subsequent
date. That conduct concerns testimony which he has given in this case.
MR. HULTMAN:
Well, I fail to see any relevancy at all, Your Honor, in what has been
indicated without some showing of some kind of that by counsel.
{1607}
MR. TAIKEFF:
Well, certain threats were made to him by the FBI to put it more bluntly
and succinctly, and the effectiveness of those threats is connected to
what happened on that particular day in his presence, and did influence
him in responding to those threats.
MR. HULTMAN:
Well, now first of all I object, Your Honor, that it has nothing to do as
far as the subsequent events as to what we're talking about here.
MR. TAIKEFF:
Oh, it will. I will tie it together.
MR. HULTMAN:
Wait a minute, Counsel, until I finish. Secondly, now if you are going to,
if you are going to discuss specific 302's and so forth, then, you know, I
will have an opportunity and you already have. But just to have a general
discussion, you haven't shown, except on one single instance with this
witness, where anything he has ever said any time, any place differs from
anything he said on direct examination.
MR. TAIKEFF:
That's exactly what I'm getting to.
MR. HULTMAN:
That's one small --
MR. TAIKEFF:
Mr. Hultman, my position on that is that it was a mistake. It was not any
kind of intentional statement of fact. I am now getting to the very
subject which you just described in general terms. That's the beginning of
it is --
{1608}
MR. HULTMAN:
You mean that his testimony on the stand here, which you are now setting
up, that he has given testimony at the present time which is false?
MR. TAIKEFF:
No.
MR. HULTMAN:
On direct examination?
MR. TAIKEFF:
No.
MR. HULTMAN:
That's what I fail to see, and I would continue in my objection until
there's a foundation showing of some kind of relevancy.
THE COURT:
Well, if you are not going to show his testimony is false, then it's
irrelevant as to why he told the truth, whatever he told the truth,
because somebody told him to.
MR. TAIKEFF:
Your Honor, he previously testified in connection with this case before
the grand jury and he lied before the grand jury and he lied before the
grand jury under the influence of the FBI, and he will so testify.
And he lied as
to a specific fact which was testified to by another witness, something
which the FBI wanted very much for him to do, and he did it before the
grand jury, but was not sworn with the pipe. And he has not testified that
way here only because he was sworn by the pipe and could not tell anything
but the truth.
THE COURT:
Right. But if he --
MR. HULTMAN:
He's asking -- excuse me, Your Honor.
{1609}
THE COURT:
Just a minute. Just a minute.
MR. HULTMAN:
Your Honor, at this point I think we should have his own counsel here
because we're now talking about perjury at this particular point.
THE COURT:
We've got enough lawyers up here right now.
MR. HULTMAN:
I'm sorry, Your Honor.
MR. TAIKEFF: I
thought from that Your Honor said I thought you were suggesting perhaps
too many.
THE COURT: If
this witness has told the truth under the oath that he took on the witness
stand and that the reason he did it is because he took the oath on the
pipe rather than the customary oath that is administered in federal
courts, then what probative value is there in showing that he lied at a
prior time because he didn't take the oath on the pipe?
MR. TAIKEFF:
No. He lied on the prior occasion because he was coerced into doing it by
the FBI.
THE COURT: But
unless that's, unless you somehow show that his testimony here in this
courtroom is coerced I fail to see the probative value.
MR. LOWE: Let
me say this, Judge. We will show, and I will make an offer of proof that
the witness will say the he perjured himself in front of the grand jury
because of the threats of the FBI and the subject matter of the perjured
{1610} testimony was that he saw Bob and Dino and Leonard down at the cars
where the two agents were right at the cars.
Now, this is
the very testimony that Mike Anderson gave and the purpose of adducing
this is to show that Mike Anderson, to support our case, that Mike
Anderson has lied when he said that because he was subjected to the same
threats by his own testimony of physical violence in that case. And the
relevance of showing here that this witness did succumb to those threats
on one occasion before the grand jury, even though he is now candid, is
for the purpose of governmental misconduct of witnesses, subordination of
perjury which was not to the credibility of other witnesses. We believe
the witness is telling the truth now, but we believe they're entitled to
show active subordination of perjury through threats by FBI agents on this
young man in the past with regard to this investigation, because it casts
the credibility of Mr. Anderson, Mr. Draper and others in doubt; and would
support in a general line of testimony that we would present to the Court
in that regard.
MR. HULTMAN:
That is so irrelevant, Your Honor, that I won't comment any further.
MR. TAIKEFF: I
don't see how it could be irrelevant.
MR. HULTMAN:
They had an opportunity to attack the witness and they're now trying to
attack through this witness, Your Honor, by what happened to this witness.
{1611}
If they had
any basis to attack the testimony of the witness that was on the stand,
they had full and ample cross-examination. And this is an attempt by
irrelevancy through this witness with no inconsistency to try and show, to
put the FBI or the Government on trial here.
There is no
showing of any kind that this man hasn't told the truth.
MR. TAIKEFF:
Your Honor, the Government does not succeed or should not succeed in
concealing that earlier episode by not attempting to impeach the witness
with his sworn grand jury testimony. The Government has a transcript of
grand jury testimony in which he testified that he saw the three adults
down by the car which is essentially the same testimony that Mike Anderson
gave in this case.
When asked
that question here on direct examination the witness said, "No, I did not
see them down there."
THE COURT: He
wasn't asked the question. He was asked if he saw anybody else down there.
He wasn't asked if he specifically saw those three gentlemen down there.
MR. TAIKEFF:
Well, but by being asked, and he said, "no." He is in essence disavowing
that earlier testimony.
Now, it would
seem to me that a proponent of a certain proposition who had a witness on
the stand who had previously sworn to the fact that the Government would
want to adduce before a grand jury and get a different answer on {1611}
trial would surely, particularly in light of the speech with a hostile
witness, would surely attempt to introduce that into evidence, or at least
impeach the witness with it. But they do not do so because their theory is
that therefore we cannot inquire about it. They don't cut us off from an
inquiry about very serious FBI conduct by failing to bring that out on the
direct examination.
It has to do
with the integrity of the entire body of evidence.
THE COURT: The
only matter that is relevant in this cross-examination of this witness are
matters relating to his testimony on direct examination. Now, if you, if
what you allege is relevant that is a part of the defense case if you
intend to present the defendant's case.
MR. TAIKEFF:
Then I would like to adopt a witness at this time.
THE COURT: No.
I am going to limit. I decided yesterday I am limiting the
cross-examination to the relevant inquiry into the direct examination and
unless you are prepared to tell me that this testimony which you seek to
elicit is somehow directed towards showing that he has testified falsely
on the stand yesterday afternoon or today it's --
MR. TAIKEFF: I
will not make that representation to Your Honor because it isn't true.
{1613}
THE COURT:
Well, then under Rule 611 the rule states specifically, I will read it,
"Cross-examination should be limited to the subject matter of the direct
examination and matters affecting the credibility of the witness. The
Court may, in the exercise of discretion, permit inquiry into additional
matters if on direct examination."
MR. TAIKEFF:
That's what I am asking, Your Honor.
THE COURT: I
know, and you asked me to do it yesterday
MR. HULTMAN:
That's what I --
THE COURT: You
asked me to do it yesterday and I declined.
MR. TAIKEFF: I
understand.
THE COURT: And
I take the same position today.
MR. TAIKEFF: I
understand. It will require that the witness be held to be a defense
witness, continue to be available to the defense.
THE COURT: I
don't know. You have the responsibility for presenting your defense case
whichever way you feel best.
MR. TAIKEFF: I
understand. I am prepared to do it that way, and I understand that Your
Honor wants the Government's case to come in unaffected by evidence
adduced by the defense as part of its case in chief.
I just want to
make it clear that it is our intention to call this person as a defense
witness. I presume he's here {1614} pursuant to a subpoena and I ask the
Court not to excuse him and advise him that he is subject to that
subpoena, and he will be recalled on as many hours or days notice as he
requires.
In fact, I
would specifically request that he be here Tuesday of next week to testify
as a defense witness.
THE COURT:
Well, I will certainly grant that request.
MR. TAIKEFF:
All right. Then I'll see if I have anything on cross-examination itself
and announce what my position is with respect to whether there are any
further questions.
THE COURT:
Very well.
{1615}
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
(Counsel
confer.)
(Counsel
confers with Defendant.)
MR. TAIKEFF:
Your Honor, the defense has no further cross examination.
THE COURT:
Very well.
MR. HULTMAN:
Your Honor, I believe counsel has indicated that maybe Norman wishes to
speak with counsel before I would begin any redirect.
MR. MARING:
Your Honor, I thought that Norman had indicated that he might want to
speak with me.
THE COURT: Do
you want to speak with him?
THE WITNESS:
Yes.
THE COURT: You
may step down and confer with Mr. Maring.
(Witness and
his counsel confer.)
(Witness
resumes witness stand.)
REDIRECT
EXAMINATION
By MR. HULTMAN:
Q Norman, I
have just a few questions that I would like to ask you.
Counsel asked
you some questions about your tribe, and I believe you indicated that
there are about 120,000, is that the figure?
{1616}
A 145.
Q How many,
145?
A 145.
Q About
120,000 were the traditionals, is that what the response was?
A Yes, about.
Q Now, counsel
asked you questions back and forth about traditional and AIM; and I want
to make sure about members of the American Indian Movement.
You didn't in
any way by your answers want the jury or anybody to conclude that those
120,000 traditional Indians in your tribe are members of the American
Indian Movement, did you?
A What?
Q Counsel
asked you a number of questions at the beginning about the American Indian
Movement, and about your nation, do you remember those questions?
A Yes.
Q Now, what I
want to make certain, that there is no question in either my mind or the
mind of the jury, you weren't saying that the fraction of 120,000 or
three-quarters of your nation, because that number approximately are
traditionalists, traditional Indians, that those people are members of the
American Indian Movement, are they?
A No.
Q About how
many of them would you approximate are members {1617} of the American
Indian Movement?
A Lots, I
guess -- I don't know.
Q You were
also asked some questions about the event at Farmington, is that right?
A Right.
Q And you
indicated this was an event that -- where is that from, where is
Farmington or the place where this event took place from your Reservation?
A About two
hours' drive, two and a half.
Q Two hours'
drive?
A Two and a
half.
Q Are there
many Reservations in this general area where Farmington is located?
A Around here?
Q No. I am
talking about Farmington now with you, Farmington, New Mexico?
A Right.
Q All right.
Are there many Indian people that live within 200 miles of Farmington?
A Yes.
Q Would you
have any idea of approximately how many?
A No.
Q All right.
Now, how many approximately people were at the meeting in Farmington to
which you were asked questions on cross examination, as best you can
estimate and recall?
{1618}
A I don't
know, about -- I don't know.
Q Pardon?
A I don't
know.
Q Would you
give us just the best estimate that you could?
A About 800, I
guess, 900.
Q And were
they from all over the United States?
A Yes.
Q Including
some people like yourself from your area?
A Yeah.
Q All right.
Now, did you see any guns at that meeting?
A No, not at
-- no.
Q Did you see
any of the people that you were with with any guns at that particular
time?
A No.
Q Now, as I
understand it, that you went from there then to the area that we both have
been discussing on direct and cross examination, is that right?
A Yes.
Q Now, you
were then asked questions by counsel that had to do with a condition that
you had concerning the goons. Do you remember the questions asked about
that?
A Yeah.
Q Do you
remember I asked you some questions about that on direct examination --
now, was there ever anything that you saw in all the time that you were at
Jumping Bull's and the {1619} places that you went, why you were there,
that indicated to you something that would give you fear of something in
your mind called "goons"?
A Did I see
them do anything bad or what?
Q Yes.
A No.
Q So that the
only thing that you knew was what -- something that somebody else told
you, is that right?
A Yeah.
Q Well, do you
normally have any fear from something that somebody else has told you that
you haven't witnessed yourself?
A Say that
again.
Q Who was it
that told you that there was something -- there were some people named
"goons" that were bad people, who was it that told you that?
A Well, I read
it in the papers, Anna Mae told me about goons, some other people from
Pine Ridge, I don't know their names. They were kind of old, and Bob was
telling me about goons.
Q Did anybody
ever tell you at any time, any place, that any FBI Agent was a goon?
A No.
Could you say
that again, I mean --
Q
(Interrupting) I think you understood my question, and you responded to
it, did you not, or is there something about it you didn't understand?
{1620}
A Explain it.
Could you say the question over?
MR. HULTMAN:
Would the reporter read the question back?
(Question here
read by the reporter was as follows: "Did anybody ever tell you at any
time, any place, that any FBI Agent was a goon?")
A No.
Q (By Mr.
Hultman) There is no question about that, is there?
A No.
Q Now, counsel
asked you about some vehicles, whether you saw any vehicles when you were
down in the area that was marked "NB", where you were down in the general
area, where the tents were located; and I want to ask just a question or
two about that. If you remember, Mr. Taikeff asked you some questions
about when you were here in this area here (indicating). "Did you see any
automobiles?" Do you remember his questions of you and what your responses
were at that time; you gave some answers about automobiles, that you had
seen some, I believe, if I remember, coming in?
A Back there
(indicating).
Q You remember
that?
A Yes.
Q Now, you
also talked about that you were looking for automobiles also on any roads
that might be coming in, is that {1621} right, to the tent area?
A Yeah.
Q All right.
Now, I want to ask you, did you see any other automobiles, either when you
were here or when you went over here (indicating), other than the ones
that you have talked about both on direct examination and in response to
cross-examination?
A Yeah, that
one up there (indicating).
Q All right.
So there was another car there, but this is something you just didn't
remember when I asked you the questions?
A You asked me
a question like that?
Q I don't --
A
(Interrupting) You didn't ask me any questions like that.
Q Now, by your
response to me now, is that you are only responding specifically to what I
ask you, is that right?
A Right, yeah.
If you asked me that --
THE COURT:
(Interrupting) Are you able to hear him?
A Would you
say that again?
Q (By Mr.
Hultman) Well, is what you are saying to me now that unless I or Mr.
Taikeff asks you specifically about a specific item, such as when he was
talking and asking you about cars -- I don't remember what the exact
questions were -- but he asked you something, "Tell him about cars"?
A Yes.
Q Then unless
he asked you specifically something such as, {1622} "Did you see any other
car in this area right here (indicating)?" -- that you didn't feel that
you needed to answer that question, is that what you are saying to me?
MR. TAIKEFF:
Your Honor, I must interrupt because there is included something which was
not my area of inquiry. I asked him if he saw any vehicles go by on those
inner roads, not whether he saw any vehicles inside Tent City when he got
back; and because of his possible limitation in understanding, it is
particularly confusing that way.
THE COURT:
Would you restate your question?
MR. HULTMAN:
All right, yes, your Honor.
Q (By Mr.
Hultman) Then is it your response that there were some other cars in the
area, is that a fair response, conclusion on my part?
A I don't
understand.
Q All right.
When you were here (indicating) or in the tent area, or going out of the
tent area, while you were in this area -- and I am making a wide circle
now -- did you see any automobiles other than the two that you have
specifically referred to?
A Yeah, I saw
--
Q
(Interrupting) As being here and some automobiles that you talked about
being over here (indicating), in this general area, on a highway, did you
see any other automobile?
{1623}
A Other than
those two there?
Q Yes, other
than those two.
A Up in there
(indicating).
Q Was this a
car that is represented somewhere here on Exhibit 71 now?
A Yeah.
Q All right.
Would you tell the jury what that car was?
A What do you
mean?
Q Well, would
you describe it for us?
A Well, it had
a radio and it was going.
Q Had you seen
that car any time earlier in the day?
A Yeah, down
there (indicating).
Q One of these
cars down here -- remember which one?
A That one
right there (indicating).
Q Would it be
this one or this one (indicating).
A That one
(indicating).
Q This one
here (indicating), is that right?
A Yes.
Q All right.
Now --
A
(Interrupting) It was one of them cars.
Q One of the
cars. You said something about the radio in response to my question. Would
you explain what you meant by that?
A I could hear
people talking on that radio.
Q Where were
you when you could hear it?
{1624}
A Inside the
camp.
Q And would
you tell the jury approximately how many yards away from that vehicle were
you when you heard that radio?
A About 20
yards.
Q All right.
So you did see another car in the general area, is that right?
A Yeah, right.
Q All right.
Do you know how that car got there?
A No.
Q Did anybody
indicate to you or tell you how it got there?
A No.
Q Now, counsel
asked you specifically with reference to the two men that were down at the
cars; and I believe your response, as he quoted it correctly on direct
examination, you used the word "agent". Is that what you said when I was
asking you questions?
A Agents, yes.
Q Was there
any reason why you used that term?
A Because now
I know who it was.
Q All right.
It wasn't because I told you or told you to use those words?
MR. TAIKEFF:
Your Honor, there was no such suggestion meant. Mr. Hultman knows that
with the professional respect I have for him, if anyone got that idea, I
disavow it. It was not my intention in asking that question.
{1625}
THE COURT:
Thank you.
MR. HULTMAN:
All right.
Q (By Mr.
Hultman) What was it that you remembered -- did you remember whether they
were native Americans at the time or that they weren't native Americans
when you saw them that day?
A Well, you
could tell by the color.
Q All right.
Could you tell anything by their cars?
A What do you
mean?
Q Was there
anything about the cars that you remember that would relate anything to
you in your mind (indicating), that would draw -- then allow you to draw a
conclusion of some kind that they were agents?
A No, just
cars.
Q All right.
Now, you didn't have anything in your mind at that particular point --
strike that.
How was it
that at that time -- or let me withdraw it.
Did you have
any idea at that time, Norman, that the three persons and Little Jimmy
down in the tent area were in any danger?
A Yeah.
Q Well,
explain to the jury, how did you come to the conclusion that two people,
one with a gun of some kind at the back of a car, and the other with a
pistol down here (indicating) in the area where they were, and with
Leonard with the weapon that he had when you got here (indicating), and
Dino with the weapon {1626} that he had and the others with the weapons
that they had here, here (indicating), that you have already talked about,
how did you conclude at that time that the two women and Jimmy Zimmerman
were in any danger from the two men, one with the rifle and one with the
pistol?
{1627}
A Well, I saw
those cars. Me and Jim saw them coming around this way (indicating).
Q Well, now
that's at a later time. You're down here --
A Yeah.
Q -- to this
point here (indicating). I'm not talking about that, understand?
A Yeah.
Q I'm talking
about when you first get here. You'd heard firing in this area, right?
A Right.
Q And that's
the only firing that you heard to that time, right?
A Right.
Q Now how is
it -- I want to ask you again, you hadn't seen any cars any other places
coming and going at this time, right?
A Right.
Q What is it
with you knowing right then and there when you see two men down here,
Leonard here with the kind of weapon that he had doing the shooting that
you saw him doing, Dino with the kind of weapon that he had, and was there
anybody else here in this period that you saw here other than those two?
A No.
Q You knew Bob
was somewhere in here?
{1628}
A Yeah.
Q And you
don't know where he was and he had a weapon. There was Joe Stuntz with you
up here and you and two more here, all with weapons (indicating). How is
it that you conclude in your mind at that time that the women and children
not only in the tent area but didn't you indicate something for them to
get out of there or something before you left?
A Well, they
already knew where to go.
Q They already
knew where to go. To leave, is that right?
A Yeah. To
leave, because what else would you do when you heard shots?
Q Now I'm
asking you how is it that you then concluded with that circumstance,
knowing what you say and what you observed and that the three women or
girls and little Jimmy are leaving, down in the bottom of the hollow here,
two men, one with a pistol and one with his long gun that they are going
to endanger the girls and little Jimmy?
MR. TAIKEFF:
Objection to the form of the question because the testimony was never that
those two men were going to endanger the women and child and that's how
the question was phrased. I think it's unfairly phrased.
THE COURT:
Objection sustained.
Q (By Mr.
Hultman) Just tell me what it was in your mind at that time knowing what
it was that you were seeing that resulted in your statement to Counsel and
restatement now by {1629} counsel that you had fear for the women and
children?
A Well, they
were shooting at me, they were shooting at all of us.
Q Norman, I
just have one more question. Have all of your responses that you have
given been on the sacred pipe?
A Right.
Q And in every
instance as far as the testimony you have given here today?
A Right.
MR. HULTMAN: I
have no further questions.
A Seems like
I'm on trial.
THE COURT: The
Court is in recess until 3:30.
(Recess
taken.)
MR. TAIKEFF:
May we have a word with the Court before the jury comes in, Your Honor.
THE COURT:
Yes, you may.
MR. MARING:
May I approach the bench?
(Whereupon,
the following proceedings were had at the bench:)
MR. MARING:
Your Honor, I think Mr. Brown will be through testifying for the day
fairly shortly and, as I understand it, he's going to be called next week
as a witness for the defense. I would ask that he be released from the
subpoena to the extent that he can travel outside the district of North
Dakota for the period until he's recalled.
{1630}
THE CLERK: Mr.
Taikeff.
THE COURT: It
will be necessary for you to hear this request.
MR. TAIKEFF: I
thought that Mr. Maring and I both wanted to speak to Your Honor about the
same thing.
MR. MARING:
That was the matter I was referring to. As I was saying, I think Mr. Brown
will be finished with his testimony fairly soon this afternoon and it's my
understanding now that he will be called back as a witness next week at
some point in time and called as a defense witness.
MR. TAIKEFF:
Correct.
MR. WARING:
I'm requesting of the Court that he be released from the Subpoena to the
extent that he can travel outside of the district of North Dakota until he
is recalled to testify.
MR. TAIKEFF: I
would not characterize that as being released from the subpoena.
THE COURT: I
wouldn't either.
MR. TAIKEFF:
But there is certainly no necessity of him staying within the jurisdiction
of the district.
THE COURT:
He'll remain under Subpoena but he will be permitted to travel outside of
the district so long as he keeps somebody informed as to where he can be
reached.
MR. TAIKEFF: I
would assume the best person for that would be his counsel. We would like
not to have any direct {1631} contact with them except in the presence of
his counsel.
THE COURT: He
will then be permitted to travel wherever he wants to so long as he keeps
you informed and so that he can be reached.
MR. TAIKEFF:
Instead of asking him to return on a specific day --
THE COURT:
Excuse me. Keeps you informed as to where he's at and where he can be, as
to where he's going and where he can be reached.
MR. TAIKEFF: I
think it would be fairest if we do not specifically request that he return
on next Tuesday but make the request through his counsel at least one day
in advance, then he won't have to come here and wait out our need to put
him on the stand, because he apparently is not especially happy about
being away from home and we certainly want to accommodate him in that
regard.
THE COURT: His
home is in Arizona.
MR. TAIKEFF: I
assume he's going back home, which raises the question of his
transportation.
MR. MARING:
It's my understanding from the discussions with the government that they
will provide transportation for him either to South Dakota where his wife
is presently staying and if he would like to go also to Arizona for the
weekend.
Now in regard
to him contacting me or me being in {1632} contact with him, my only
problem might be that I don't know if the place where he is going, if they
have telephone facilities. I would have to check that out with him.
Otherwise I perhaps would nave no way of being in touch with him. But it
was my understanding that Mr. Mike Ness, I believe his name is, is he an
FBI agent?
MR. HULTMAN:
He's a Navajo agent.
MR. MARING:
That he would be accompanying him to wherever Mr. Brown does go and he
would be, that we'd be able to contact through the government Mr. Brown
when he is supposed to be returned and Mr. Ness to make arrangements for
him to return at that time.
MR. HULTMAN:
If that matter --
MR. TAIKEFF: I
wonder why the FBI accompanies where he goes. They brought him here under
a subpoena without an arrest warrant from a great distance and I don't
quite understand the escort that he has.
MR. HULTMAN:
Counsel, all I'm saying is this is the responsibility of his lawyer and he
to determine, not any of the rest of us. I certainly have made no
suggestions of any kind, of this kind. I think there is a concern by you
that you want him back here.
MR. TAIKEFF:
That's my only concern.
MR. HULTMAN:
Let me say to you, I think you may well have reasons to have very grave
concerns concerning whether {1633} he would be back unless there is some
means of communication of some kind.
MR. TAIKEFF: I
won't press the issue.
MR. HULTMAN:
His counsel and the witness I think are the proper people to decide
whatever that is.
MR. TAIKEFF: I
understand he's indigent and I assume appropriate arrangements would be
made for him to be transported or given funds for transportation and if an
agent is the one who is going to be the intermediary, then we'll surely
give adequate notice of our desire to put him on the stand. There's no
question we will put him on the stand.
MR. LOWE: I
would like to have the record reflect the fact, are you saying that an FBI
agent is going to be escorting him from the time he leaves here until the
time he comes back?
MR. HULTMAN:
I'm saying that's the matter for he and his counsel to decide, whatever
they decide to do.
What I am
saying is I would make whatever it is Counsel wishes in terms of
availability, what he might or might not want through his Counsel, that's
all I'm saying, John, because otherwise I'm saying to you here right now,
I think Elliot has indicated very clearly he wants him here. What I'm
saying is that I think if they aren't allowed to at least, his Counsel and
he, I think they have a right to do it {1634} any way. I think if not,
you're under some very grave risks that somebody is not going to be here.
MR. LOWE: I
want to make a matter of record, number one, I have no doubt this witness
will come back. I'm convinced from what he said and the way he said it
he's coming back here. Number two, he's going to be our witness and I
think if we were to suggest that a person who is associated with the
defense should be able to accompany him and escort the government witness
during the time before he testifies, I think the government would go
through the roof. I think to the extent that an FBI agent represents
intimidation for some native Americans, and I don't mean this young man,
but I want to object to the procedure that FBI agents have no business
accompanying defense witnesses and that's what this young man will be when
he's released from the testimony today. I want to assert, we do have a
standing objection to intimidation type circumstances. I'm not saying it's
going to intimidate this witness or not. I don't even know whether Mr.
Maring wants this to take place. I don't know whether he'd have any
options in it. I'd like to ask on the record if Mr. Maring feels he has no
option in this regard or whether he has been told that an agent --
MR. HULTMAN:
John, let me make it clear on the record that it is for this man, the
lawyer, and his client to decide, and I'm stating it on the record and I'm
not going anywhere {1635} beyond it.
MR. LOWE: Is
that your understanding, Mr. Maring?
MR. MARING: No
one has told me that that is the situation that must take place. All I
want to make sure, this young man has the finances and will be able to
make arrangements so he can travel to the point where he wants to go so he
can see the family until he's called as a witness again. If those
arrangements can be made where he can get the money and go on his own --
MR. LOWE: He
doesn't need to have the FBI agent accompany him.
MR. MARING: We
don't need to have the FBI agent.
MR. LOWE:
That's a somewhat misleading atmosphere.
THE COURT:
It's resolved.
(Whereupon,
the following proceedings were had in the courtroom without the hearing
and presence of the jury:)
THE COURT:
Counsel ready to have the jury brought in?
MR. TAIKEFF
Yes, Your Honor.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
MR. TAIKEFF:
Am I to presume Mr. Hultman is completed?
MR. HULTMAN:
Yes.
MR. TAIKEFF
May I proceed, Your Honor?
THE COURT: You
may.
{1636}
RECROSS-EXAMINATION
BY MR. TAIKEFF:
Q Norman, I
think there are only two things I want to ask you questions about that
were just brought up before the recess by Mr. Hultman.
None of the
people at the Farmington meeting carried guns at the meeting, is that
right?
A I didn't see
any; no.
Q Isn't it a
fact that everyone who came there had to check guns if they had them at
the front gate?
A Yeah. Front
security.
Q And people
were assigned to security to make sure all guns, alcohol and drugs, if
carried, were turned in at the front door, isn't that correct?
A Right.
Q Now the
other point I want to touch base with you on is Mr. Hultman's questions
about your worry about goons.
A Yeah.
Q Now he asked
you whether you were worried because of what people told you.
A Yeah.
Q And I think
you also indicated that you were worried because of things which you read.
A Right.
Q Now the
people who told you these things about goons lived where?
{1637}
A Pine Ridge
Reservation.
Q And how many
different people told you things about goons?
A Four or five
people.
Q And did they
tell you about their own personal experiences?
A Yeah. One
did.
Q What did
that person tell you?
MR. HULTMAN: I
object now, Your Honor. This is calling clearly for hearsay.
MR. TAIKEFF:
Your Honor, I'm not offering it for the truth of the content but to show
what he heard as a basis for his own concern.
THE COURT: He
may answer.
A Well, told
me that the reason why he got shot at was because he was an AIM supporter.
Q (By Mr.
Taikeff) Now I think also in response to Mr. Hultman's question or
questions you said that you were concerned about the possibility of goons
interfering with you because of things which Anna Mae told you?
A Yeah.
MR. HULTMAN: I
object to this, Your Honor. It's clearly going beyond the scope of recross-examination.
That response was made on cross-examination by Counsel and there was no
testimony elicited by me in any way in that {1638} particular, and that's
clearly beyond and also, Your Honor, that it's irrelevant.
MR. TAIKEFF:
Your Honor, I believe that Mr. Hultman is factually mistaken. In
cross-examination I asked whether Anna Mae was ever at the Jumping Bull
community and asked him nothing else on the subject. It was on redirect
examination when Mr. Hultman was exploring the basis or lack of it of the
witness' concern for goons that he elicited from the witness that Anna Mae
told him certain things about goons which concerned him.
MR. HULTMAN:
If that's correct, Counsel, I would withdraw my objection. I don't know it
was not my understanding but I will assume that is correct. I take
Counsel's word, Your Honor.
THE COURT:
Objection being withdrawn, you may proceed.
MR. HULTMAN:
For that limited purpose.
MR. TAIKEFF:
Yes.
Q (By Mr.
Taikeff) Would you tell us what she told you about goons.
A You mean
after June 26?
Q No. Before
June 26.
A Well, told
me, you know, "Watch out for goons," you know, "they're dangerous." That's
all. Told me to watch out for --
MR. TAIKEFF: I
have no further questions.
Have you
finished your answer?
{1639}
THE WITNESS:
Yeah.
MR. HULTMAN: I
have no questions.
{1640}
MR. TAIKEFF: I
have no further questions.
Q (By Mr.
Taikeff) Have you finished your answer?
A Yeah.
MR. HULTMAN: I
have no questions, Norman. Thank you.
THE COURT: Mr.
Brown, you may step down and you are just a minute. You are released from
any further testimony today, or maybe in the next few days, but counsel
have informed me that you will be called back so you do remain under
subpoena. And you should confer with your lawyer who has been appointed to
represent you, Mr. Maring, with reference to when you will have to come
back and any limitations on your travel. You are not, you are not being
limited, I mean under subpoena. You're not being limited under subpoena.
You must understand that you will have to come back when you are notified.
You understand that?
THE WITNESS:
Yeah.
THE COURT: And
Mr. Maring will explain it to you.
Very well. You
may step down.
MR. HULTMAN:
The plaintiff calls Dru McCullum, Your Honor.
DRU McCULLUM,
being first
duly sworn, testified as follows:
DIRECT
EXAMINATION
BY MR. SIKMA
Q Would you
please state your name for the jury.
{1641}
A Dru McCullum.
Q Where do you
live?
A In Ada,
Oklahoma.
Q And was that
your home during September of 1975?
A Yes, sir.
Q Do you
remember a particular date, the 10th of September, 1975?
A Yes, sir.
Q And where
were you on that afternoon?
A I was
returning from Wichita.
Q And on what
route were you traveling?
A We took the
Kansas Turnpike and then on 35.
Q I would draw
your attention to about 3:30 on that afternoon on the turnpike north of
the Wellington exit and ask you whether or not you observed anything
unusual at that particular time?
A Yes, sir, I
did.
Q Would you
tell --
THE COURT:
Excuse me. Would you speak a little closer to the microphone.
THE WITNESS:
Yes, sir.
Q (By Mr.
Sikma) Would you advise the jury what it was that you, that you observed?
A Yes, sir. I
was traveling south. I was a passenger in a southbound car and about a
mile and a half to two miles north of the Wellington exit the car
immediately in front of me {1642} exploded.
Q And about
how far in front of you was that vehicle at that time?
A When it
first exploded it was about a quarter of a mile in front of us.
Q And did you
drive on up to that vehicle?
A Well, we put
on the brakes immediately and waited for some of the smoke to clear, and
then we drove around the car very slowly.
Q Okay. Did
you have an opportunity to observe that vehicle as to what kind of car it
was?
A Yes, sir. It
was an older model, light beige, tan station wagon.
Q I will show
you what is marked as Government's Exhibit 62 for identification and ask
you just to look at these photographs if you would on page 1, or excuse
me, on page 2, 3 and 5 and ask you whether or not you recognize what you
see in those photographs?
A Yes, sir.
It's the same car.
Q Okay. Would
you tell the jury what you did at that time.
A Pulled over
to the side of the road as soon as we heard the explosion and we stopped
and we waited there for about, oh, maybe forty-five seconds and drove on
around the car very slowly.
We pulled over
into the center median because there debris in both lanes of traffic, and
we pulled around very slowly {1643} and looked. We thought someone might
still be in the car and need help.
Q Did you see
anyone around the vehicle?
A Not around
the vehicle, sir.
We saw some
people, oh, maybe forty-five yards away from the car running in the field.
It was right next to the highway.
Q And in what
direction were they running?
A They were
running to the southwest.
Q Did you
observe what they were wearing?
A Not really,
sir. It was a bright casual clothing.
Q Could you
tell whether or not the people who were, you saw running along the side of
the road saw you?
A I believe
they did, sir. As we pulled around the car they appeared to be looking
back and ducking.
Q Can you
describe how many people there were?
A Yes, sir.
There were five people in two groups. There were two people and then three
people and in the road there were two people dragging the third person.
Q You say the
three people were dragging another individual?
A Two people
were dragging the third person.
Q Okay. Do you
recall what these people were wearing. What type of clothes they were
wearing?
A No, sir. It
was just loose, casual-type clothing.
Q Do you
recall the color of any of their particular clothing?
{1644}
A It was, I
believe on had on a red shirt.
Q Were you
able to help these people at all?
A No, sir.
They were, they were continuing running in the field, you know, away from
us.
Q They were
running in a direction away from you; is that correct?
A Yes, sir.
Q What did you
do then?
A Well, we
drove around the car very slowly and we didn't see anyone in the car. We
drove on still pretty slowly and went to the Howard Johnson's which is the
next place you could pull off, and reported what we had seen.
Q Did you hear
anything after you had pulled away from the car?
A Yes, sir.
When we pulled into the Howard Johnson's we looked back and there was like
a series of popping noises, like firecrackers. And there was a lot of
black smoke.
Q And where
did you say that was, that this took place?
A The
explosion was about a mile and a half, two miles north of the Wellington
exit on the Kansas Turnpike.
MR. SIKMA:
That's all I have at this time.
CROSS-EXAMINATION
MR. TAIKEFF
Q Is it Ms.
McCullum?
A Yes, sir.
Q Did you
enjoy your trip to Fargo?
{1645}
A Yes, I have.
MR. TAIKEFf:
No further questions.
THE COURT: You
may step down.
MR. SIKMA:
Plaintiff calls Ann Johnson.
MR. HULTMAN:
Your Honor, I have just learned of a matter that I think we should
approach the bench, Your Honor.
THE COURT:
Very well.
(Whereupon,
the following proceedings were had at the bench:)
MR. HULTMAN:
Your Honor, I have just learned, and I don't know what the source is, but
I'm sure the defense can verify that Mr. Levy has been subpoenaed for
Monday, and that's all I know. Now, first of all I can't imagine what on
Monday Mr. Levy would be doing. Secondly --
THE COURT:
Excuse me. Who is Mr. Levy?
MR. HULTMAN: I
assume it's the former Attorney General of the United States. That's all I
know.
MR. TAIKEFF:
I'm afraid Mr. Lowe and I are going to be embarrassed because we don't
know of either requesting or serving such a subpoena.
MR. LOWE: Who
told you?
MR. CROOKS:
That's the word that came through the Department of Justice.
MR. HULTMAN:
He's been subpoenaed to appear next Monday.
{1646}
MR. TAIKEFF:
Someone's checking on that, Your Honor.
THE CLERK:
That name is on the list.
MR. HULTMAN:
My point simply is, Your Honor, that one, I would hope the Government
would be given enough time to respond to anything of this kind because I'm
sure, and depending upon the Court's subpoena that's been served upon him,
one, know that; two, and then given enough time to respond, and because in
our judgment we do wish to respond.
THE COURT: I
have authorized some subpoenas on a routine basis which people that I
assumed were -- would everybody be quiet and let me finish making the
statement. I have authorized some subpoenas on a routine basis of people
requested by the defense team in this case.
I had no
knowledge that there's been any attempt at this point to subpoena the
former Attorney General of the United States, and I'll stop there.
MR. TAIKEFF:
It took me personally by surprise as well, Your Honor.
MR. LOWE: Let
me just state that I have been told, and what I misunderstood what I was
first advised, I did this test with Mr. Ellison and certain others, I
thought they were talking about the present Attorney General when they
said Attorney General. I was aware it is of relevant testimony to give on
behalf of the defense. I don't mean that we need him on Monday. I think we
were picking that as a {1647} target date with the usual manner of
advising witnesses when they move the timetable as to when they could
appear.
THE COURT: All
right. I will say this that any high officials sought to be subpoenaed are
going to be, the names of those people are going to be released to counsel
for the Government in order that a record can be made, if they deem it to
be made if necessary, as to whether or not that witness should be brought
in.
MR. LOWE:
Perfectly agreeable, Judge.
THE COURT: As
I say this was a complete surprise to me.
MR. HULTMAN:
It's Monday. It's getting close to Monday, and I'd hate to think -- the
reason I wanted to go on the record, Your Honor, and let me put it in the
record, I requested the Court, the last time there was a subpoena similar
to this, it was the head of the FBI, and very frankly it ended up in such
an extremely embarrassing situation to the Government and embarrassing as
far as the whole case, and I just don't want to be put in any more
positions of that kind. And what happened is simply this, that the
Director of the FBI was in a hospital and I checked it out once I learned
of a subpoena, and I informed the Court and counsel for the defendant that
he would appear.
We didn't even
fight the subpoena.
THE COURT:
Now, I will just, we don't have to go into {1648} this.
MR. HULTMAN:
All right.
THE COURT: The
order of the Court is that if there has in fact been a subpoena issued for
former Attorney General Levy it will be quashed, and if counsel desire
that this witness be subpoenaed and a specific application will have to be
made setting out in detail what testimony it is that you seek to elicit
from him.
MR. TAIKEFF:
There's no objection to that, Your Honor. I just wanted Your Honor to know
that the significance of that name as being the name of a public official
of such rank completely escaped me, and my surprise when I heard Mr.
Hultman five minutes ago was legitimate. I hadn't the slightest idea that
that had occurred.
MR. LOWE: As I
say I knew that an Attorney General was coming, but I thought it was the
present one that was going to be subpoenaed. I didn't know the status. It
will be a proper showing and we'll do it pursuant to that. We'll do it
pursuant to what you've just ordered.
THE CLERK:
Judge?
MR. TAIKEFF:
The Clerk wanted me to call Your Honor's attention to this name and this
name. Now, I know this person to be a federal official, but not a high
ranking federal official. And he did in fact testify for the defense at
the last trial.
{1649}
He is a person
who is the author of a certain report which deals with certain subject
matter which is relevant to the case.
MR. LOWE: He
also is the author of the report which is relevant to the subject matter
of the case.
THE COURT: And
these people have been subpoenaed to appear when?
MR. TAIKEFF:
Well, we sent out the form with the subpoenas indicating that they need
only be subject to telephone call. We had to pick a date because we had to
get our subpoenas out. I understand the subpoenas went out with forms
indicating that we would allow them to remain subject to telephone calls
so we didn't have a backlog of people here unnecessarily crowding the
streets of Fargo.
But we had to
put some target date on, and we put the 29th on. But I think all of the
people will be notified, and it will be verified with them that they do
not have to be here on the 29th, but that they are technically subject to
this subpoena.
The Government
issued all of its subpoenas for March 14th and used basically the same
technique, Your Honor.
THE COURT: I
have no objection to that procedure. But as I explained, any persons who
hold high positions in the Government, I do think some consideration
should be given.
MR. TAIKEFF:
There's no question. Your Honor, I {1650} have to concede that I didn't
know the significance.
MR. LOWE: He's
not in the government any more.
THE COURT: He
is included in the category.
MR. LOWE: We
have no objection to following that procedure, Judge.
{1651}
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
THE COURT: Are
you ready for the witness?
A Yes, I am.
THE COURT: The
witness may be brought in.
ANN M.
JOHNSON,
being first
duly sworn, testified as follows:
DIRECT
EXAMINATION
BY MR. SIKMA:
Q Tell the
jury your name.
A Ann M.
Johnson.
Q Where do you
live?
A Rapid City,
South Dakota.
Q And what is
your occupation?
A
Stenographer.
Q And for whom
do you work?
A The FBI.
Q And was that
your occupation on June 26th, 1975?
A Yes.
Q Do you
remember where you were at about noon on June 26th, 1975?
A I was in the
office preparing to go to go to lunch.
Q O.k. What
was your job in the FBI office in Rapid City at that time?
A I was a
stenographer in which I take shorthand and {1652} transcribe it and answer
the phones and the radio.
Q In the room
where you worked, how many other people worked that particular room?
A There were
six other agents that usually sat in there, and I and one other steno; and
the senior resident agent sat in a room off of the one big room.
MR. TAIKEFF:
Your Honor, I am sorry but the voice is not audible here.
THE COURT: I
am having the same difficulty. You are requested to please speak up and
into the microphone. Perhaps if you turn it a little bit and speak a
little bit across it -- turn it a little more.
MR. TAIKEFF:
Would it be possible, your Honor, for that question to be re-asked and
start at the beginning of that answer?
MR. SIKMA: I
will go --
THE COURT:
(Interrupting) Do you want the reporter to read the question?
MR. SIKMA:
Yes.
THE COURT: The
reporter will read the question back.
(Question and
answer were read by the reporter.)
Q (By Mr.
Sikma) Who was the other steno that was in the room with you?
A Linda Price.
Q And who was
the senior resident agent that worked in the {1653} room off of your room?
A George
O'Clock.
Q Now, would
you tell us what happened, if anything unusual happened, at about noon on
the 26th of June, 1975?
A We heard
radio transmissions that some agents were under fire.
Q And do you
know who was transmitting those radio transmissions?
A Ron
Williams.
Q Did you
recognize his voice?
A Yes.
Q Had you had
occasion to listen to Ron Williams talk over the radio on other occasions?
A Yes.
Q What, if you
recall, was the nature of those transcriptions
A The first
thing I heard was "There is something wrong here, we are being fired on."
Q And about
what time was that?
A About 11:55.
Q And what did
you hear next?
A
Transmissions back and forth between Ron Williams and Gary Adams, trying
to get a location on where Ron Williams was.
Q About how
much time was there between the first transmission concerning the fact
that Ron Williams indicated he was being fired on, and the transmission
that Gary Adams was responding {1654} to that call?
A I really
don't know.
Q Would you
say though it was -- could you give me an estimate of about how much time
it was?
A I would say
only a matter of some seconds, maybe a minute or two.
Q O.k. What
did you hear next?
A Just mainly
transmissions back and forth, and the last thing I heard from Ron was -- I
didn't really hear the words, but I heard like he kind of broke off and it
sounded like a moan.
THE COURT:
Speak up, please.
Q (By Mr.
Sikma) What, if anything, were you instructed to do at that time?
A I was told
to start taking notes.
Q And were you
able to hear the transcriptions or understand what the transcriptions were
at that particular time?
MR. TAIKEFF:
Your Honor, I trust Mr. Sikma meant transmissions?
MR. SIKMA: I
am sorry, I did.
A Not fully. I
could hear him, yet I really didn't know what I was supposed to be taking
down, whether I was supposed to be taking a summary or trying to get it
sort of verbatim, so I really didn't know what I was doing.
Q (By Mr.
Sikma) Did anyone come to your assistance at that {1655} time?
A Yes.
Q Who was
that?
A George
O'Clock.
Q And what, if
anything, did he do?
A He would
tell me more or less what was said, and I would write it down.
Q You would
take notes?
A Yes.
Q And how long
did this go on, about?
A Until --
well, only about 12:30, and then I was on my own.
Q O.k. What
did you do after that time?
A I took notes
the rest of the day.
Q Do you
recall the radio calls throughout that day, do you recall what was being
said throughout the day?
A Not real
well, because it was so much, and I was on it all day. Not specifically.
Q As a matter
of procedure -- and you said the first half hour or so George O'Clock was
telling you generally what was being said and you were taking notes. What
did you do after that?
A I tried to
get down as close as I could just what was being said on the radio back
and forth.
Q Did you keep
track of the time?
A Yes, as
close as I could. When the transmission would {1656} come in, I would try
to look at the clock and get the time as close as possible.
Q What did you
do with the notes that you transcribed?
A Well, I
transcribed the notes onto a 302.
Q And whose
302 was that?
A Well, it is
a 302 of George O'Clock in part. The actual first part of it is what he,
you know, was telling me, which took notes on; and then after that it is
really all my notes on that day.
Q How long did
you go on that particular day taking notes?
A Until about
9:40 that night.
Q What was
Linda Price doing at this time?
A She was
answering the radio, or I mean, the telephone, I am sorry.
Q And did she
at any time assist you in taking down the radio messages?
A Yes,
whenever I needed to take a break.
Q And about
how many times did that take place during the course of the day?
A Only about
three, I think.
MR. SIKMA: May
I have a moment, your Honor?
THE COURT: You
may.
(Counsel
confer.)
Q (By Mr.
Sikma) Defendants have marked Defendant's Exhibit 75. I will show you this
and ask you whether or not you {1657} recognize what Defendant's Exhibit
75 is?
A Yes.
Q And what is
that?
A That's the
transcription of what my notes were from that day.
Q Now, would
you look at that and tell me, if you can, what time it was, as noted on
that transmission, that you started taking notes on your own without the
assistance of Special Agent O'Clock?
A About 12:36.
Q That was the
first time that you did not have his assistance, is that correct?
A Yes.
Q And to go
throughout this document, how long into the evening did you take notes on
these radio messages?
A Well, the
last entry is 8:50.
Q I will
direct your attention to Page 1 of that document, and tell me if, after
reading it, you can tell me what the transmissions were between 11:55 and
12:10 p.m. -- 11:55 a.m. and 12:10 p,m. I will ask you if you will read
them first, and then tell me if you recall, after reading them, what you
heard.
A (Examining)
I don't recall hearing these direct, I mean myself.
Q Now, up
until 12:26, I believe, or 12:36, rather, you were receiving dictations
from George O'Clock, is that correct?
{1658}
A Yes.
Q Do you
recall any of those radio transmissions from your independent recollection
without reading them?
A Not very
well, no.
(Counsel
confer.)
Q (By Mr.
Sikma) What was the general nature of the radio transmissions, what was
being said between 11:55 and 12:10 p.m.?
A There was a
general background of what had been happening, of the agents being fired
at, and what was being done.
Q O.k. What
happened at 12:06?
A Adams was
receiving fire.
Q And what
happened at 12:10, approximately 12:10 p,m.?
A An ambulance
was called to go down there.
Q O.k. and
what happened --
THE COURT:
(Interrupting) Excuse me. Would you repeat that? You didn't speak loud
enough.
THE WITNESS:
O.k. Ambulance was called to go down there.
Q (By Mr.
Sikma) O.k. and what happened at about 12:18 p.m.?
A Adams was on
the scene and he had been receiving fire.
Q And what
else happened?
A He said that
he saw a red pickup leaving the Jumping Bull Hall area, and the Pine Ridge
Police were instructed to stop this pickup.
Q And what
happened at 12:21 p.m.?
{1659}
A Adams and
the BIA unit with Adams reported they both had flat tires, and they didn't
know where it came from.
Q What
happened at 12:23 p.m.?
A Adams stated
there was firing from both directions at both Adams and the BIA
reinforcement with him.
Q Do you know
from the transmissions what time Special Agent Hughes arrived on the
scene?
A At 12:24
p.m.
Q And what
happened at 12:27 p.m.?
A Adams
reported there was still firing, and they were receiving fire from Jumping
Bull Hall.
Q Now,
approximately how long throughout the course of the afternoon, if you
recall, did they receive fire or receive -- were they receiving fire in
that area?
A I don't
recall.
MR. SIKMA: I
have no further questions.
MR. TAIKEFF:
May I inquire, your Honor?
THE COURT: You
may.
CROSS
EXAMINATION
By MR. TAIKEFF:
Q Miss
Johnson, you have Defendant's Exhibit 75 for identification in front of
you?
A Yes.
Q I am going
to place before you, in addition, Defendant's Exhibits 81 and 82, after I
show them to Mr. Sikma, so he will {1660} know what I am talking about.
(Counsel shows
document to Mr. Sikma)
{1661}
This
particular time I'm going to put them facedown. Okay.
How long have
you been employed by the Federal Bureau of Investigation?
A Since '72.
Q Do you like
working there?
A Oh, yes.
Q You do
stenographic work amongst your other duties?
A Yes.
Q And does
that involve the preparation of forms known as 302s?
A Yes.
Q Do you have
any objection to my referring to them sometime as reports just for a short
hand?
A That's fine.
Q Now as a
general rule, the 302s or the reports are dictated to you by the agent
whose 302 it is?
A Right.
Q And then I
assume that you're one of the people in the office who types the reports
and then gives the reports back to the agent who dictated it?
A Yes.
Q Now there
were certain events which occurred in your office on June 26th that you've
told us about in part, is that right?
{1662}
A Yes.
Q Now 302 as a
rule contain a lot of precise detail, don't they?
A Yes.
Q And as a
general rule they're meant to contain as much detail of events as are
deemed important by the person writing the report, isn't that correct?
MR. SIKMA:
Your Honor, I'd object to this as calling for a conclusion on the part of
the witness.
THE COURT: The
objection is sustained on the grounds of lack of foundation.
Q (By Mr.
Taikeff) Do you know from from your own experience that when an incident,
perhaps one that only lasted a few moments or perhaps a fact which is not
very complex is recorded in a 302, it is done with a great deal of detail
and a great deal of language to make sure that every conceivable aspect is
put down on paper, isn't that a fair description of how thoroughly and
accurately 302 are prepared?
MR. SIKMA:
Your Honor, I'd object. This calls for conclusion on the part of the
witness. Not within her knowledge.
THE COURT:
There is no showing that this witness has any expertise other than a
stenographer who's typed 302s dictated by other people. That's the reason
I sustained the first objection. {1663}
Q (By Mr.
Taikeff) There's a 302 in existence that was typed on June 28, 1975. It
appears to be an interview of you by an agent named Leon Canton. Are you
familiar with the existence of that 302?
A Yes.
Q Were you
interviewed by Agent Canton?
A Yes.
Q Did he
dictate the 302 or the content of the 302 after he interviewed you?
A Yes.
Q To whom did
he dictate it?
A Myself.
Q And who
typed it?
A Myself.
Q Now Agent
Canton works out of what office?
A He's in the
Minneapolis division.
Q And have you
ever read that 302?
A Yes.
Q See if one
of the two documents I gave you, specifically No. 81, is the document I
have been questioning you about.
A Yes, it is.
Q Now look at
that first paragraph. It tells your occupation, doesn't it?
A Yes.
Q And where
you're assigned?
{1664}
A Yes.
Q And what
room you work in?
A Yes.
Q And the city
and state and building in which you work?
A Uh-huh.
Q Based on
your experience in working with and preparing, or rather typing 302s, is
that kind of detail unusual?
A No.
Q In fact, a
rather prominent characteristic of 302s is that they contain a great deal
of precise information and detail about every event that they talk about.
MR. SIKMA:
Objection, Your Honor, the foundation has still not been established and
this witness does not know what --
MR. TAIKEFF:
Your Honor, please. I do not think Counsel should signal the witness what
Counsel thinks the witness should say.
MR. SIKMA:
Your Honor, I think that it's a legal matter of whether or not this
witness is competent to answer that question. As a matter of law, in fact,
she is not.
THE COURT:
Sustained.
Q (By Mr.
Taikeff) How many 302s have you typed since you started working for the
FBI?
A There is no
way to state.
Q Yes, there
is. How many do you type a day?
{1665}
A It varies.
Q Average day.
A I suppose it
could be at least ten, twelve.
Q Do you read
them after you type them?
A No.
Q Do you
understand what's being said to you when the dictation is being given?
A Usually.
Q When an
agent sits down with you, assuming you sit, and dictates a 302, do you
have any sense of what he told you when you get finished taking that
dictation?
A Most of the
time.
Q As a general
rule, when an agent dictates a 302, after the dictation has been completed
but before you type, do you know in general terms what it was he just said
to you in he course of the dictation?
A I don't
think so.
Q You mean you
have no memory of what he said to you?
A Not well
enough that I could state in general terms what ne whole thing was about.
Q You mean you
couldn't give a general idea of what it was just reported to you via his
dictation?
A I could
probably pick out a few of the more prominent things that might have hit
me, that I might have especially noticed while I was taking his dictation,
but as far as the {1666} whole thing was about --
Q I didn't ask
you what the whole thing was about.
If, for
instance, an agent described to you the fact and detail of having followed
somebody during the afternoon you have had that experience, haven't you?
A Yes.
Q You would as
a general rule know when you got finished taking that dictation that the
agent had followed somebody, isn't that correct?
A Yes.
Q And you
might remember some of the principle details, isn't that correct?
MR. SIKMA:
Your Honor, I would object to this line of questioning as irrelevant and,
further, I request I be able to ask one or two questions in voir dire for
the purpose of making an objection to this line of questioning.
MR. TAIKEFF:
I'm trying to lay the foundation which Your Honor requires.
THE COURT:
Would Counsel approach the bench.
(Whereupon,
the following proceedings were at the bench:)
THE COURT: I'm
not sure that anyone can lay a foundation with this witness unless you can
show that she has had some training relating to what is to go into 302s,
what specific items should be recorded, what should not. In other words,
{1667} exercising judgment. I don't think a stenographer simply reciting
what somebody has dictated to her is qualified.
MR. TAIKEEFF:
I can approach it in an entirely different way, Your Honor.
In response to
this specific thing, Your Honor, just said, I am not trying to establish
through this witness whether the 302s are done in conformity with the
requirements of the FBI. I'm only seeking to establish a fact through her
which is based on her own experience that anyone familiar with the English
language would have an impression about after working on 302s for years.
However, I can approach it in an entirely different way that probably will
not be objectionable.
THE COURT: But
what I am, the reason I'm sustained the objection is because of the fact
that one agent may have recorded a fact she may not know. She may know
that he did record a fact but she may not know why he selected that
particular fact.
MR. TAIKEFF: I
understand that. My point, Your Honor, is that I think that any
intelligent person knows the difference between a narrative text that by
its nature has a mired of detail, peripheral details, and one that
narrates very specific major points. That's a facility every person who is
literate and has a functioning mind is capable of. It is only Mr. Sikma's
bold assertion that she is not capable {1668} or competent to answer the
question. Any literate adult could answer that question. Giving a sample
of writing, "Is that in your opinion something which is chalked full of
detail?" And the Federal Rules of Evidence permit a lay witness to express
such an opinion. That's the only thing I'm trying to get out of this
witness and Mr. Sikma doesn't want me to get it in.
THE COURT: The
impression I get is you're attempting to establish through this witness
the significance or lack of significance of something that is recorded and
I don't think that this witness has any --
MR. TAIKEFF:
No.
THE COURT: --
expertise in this area.
MR. TAIKEFF:
No. It is the absence of something I'm leading up to. But first --
THE COURT:
That's exactly the reason that I am sustaining it, because that is a
judgment factor to be exercised by the trained investigator who makes the
determination. I don't think this witness, whether something was left out
or not or the significance of something being left out or not is anything
is witness could testify to.
MR. TAIKEFF:
All right. I would like to ask some other questions along different lines.
THE COURT: You
may do that.
(Whereupon,
the following proceedings were had in the {1669} courtroom in the hearing
and presence of the jury:)
Q (By Mr.
Taikeff) How did Agent Canton conduct the interview of you on June 28th?
What happened?
A Just asking
questions on what I heard and what I was doing.
Q Did he ask
you whether you worked in room 260?
A No.
Q It's in that
302, isn't it?
A He asked me
if that's where I was at the time because there is, was another room that
I could have been in.
Q Did you tell
him that your place of employment is room 260?
A No.
Q You knew
this form was an interview form?
A Yes.
Q And you're
the one who took dictation and typed it, right?
A Yes.
Q And it's
your understanding, is it not, that a form is supposed to contain what the
person being interviewed has said, right?
MR. SIKMA:
Your Honor, I would object to this. Outside of the knowledge of this
witness. I would make a competency objection.
Q (By Mr.
Taikeff) Didn't you just say yes to my question?
THE COURT: I
am going to overrule that objection.
{1670}
Q (By Mr.
Taikeff) I'll withdraw the last question and ask you whether it's your
understanding that an interview report is supposed to report what the
person being interviewed has said?
A Yes.
Q No more,
right? A person taking the interview is not
supposed to
make up things, isn't correct.
MR. SIKMA:
Your Honor, I would object to this.
THE COURT: I
think that we're getting to the area we discussed at the bench. That
objection is sustained.
{1671}
Q Did you tell
Agent Canton all of the things which you considered important concerning
your activities on June 26, 1975 when he interviewed you on June 28th? Yes
or no.
MR. SIKMA:
Your Honor, I'd object to that as irrelevant.
THE COURT:
Overruled.
Q (By Mr.
Taikeff) Do you want the question again?
A No. I just
wasn't sure I was supposed to answer.
Q Yes. If the
Judge says overruled to an objection you may answer.
A Okay.
Q Are you
nervous?
Q Yes.
THE COURT: The
reporter will read the question to the witness.
(Whereupon,
question read back: "Question: Did you tell Agent Canton all of the things
which you considered important concerning your activities on June 26, 1975
when he interviewed you on June 28th? Yes or no.")
A Yes.
Q (By Mr.
Taikeff) Now, did you tell Agent Canton that at or about 11:50 or 11:55
A.M. you had been taking dictation in a different room other than Room
260, and that when you complete doing that work you returned to Room 260
at approximately 11:50 A.M.?
A Yes.
{1672}
Q To what
question did you give him that information?
A He asked me
what I had been doing, and that's when I said had been taking dictation
and was preparing to go to lunch.
And we
prepared to go to that room to go to lunch because that's where our purses
and everything were.
Q Now, there's
some sort of a speaker on the wall, or on a table in Room 260?
A The radio,
it's on the table next to my desk.
Q And is it
fair to say that as a general rule what comes over that radio could be
heard by anyone with normal hearing the room?
A Yes.
Q And was the
radio functioning as well as usual on that particular day?
A Yes.
Q Now, take a
look at Defendant's Exhibit 75 for identification. That's also a 302,
isn't it?
A Yes.
Q It's a long
one, it's thirty-six pages long; is that correct?
A Yes.
Q How do you
know that something happened around 12:36 P.M. June 26, 1975 that changed
what you were doing, or what was happening in connection with your work?
A I'm not sure
I know what you mean.
{1673}
Q Well, maybe
I've stated the wrong time and I will be happy to be corrected by Mr.
Sikma if I did.
But I thought
you said on your direct examination that something changed for you that
day at or about 12:36?
A Well, I was
taking the notes on my own from then on.
Q How do you
remember that?
A Just by more
or less locking at the notes I can recall from hearing those things
personally.
Q When you
were looking at what notes?
A These here
(indicating).
Q Let's be
careful about the use of the word "notes". You have Defendant's Exhibit 75
for identification in front of you?
A Right.
Q That's a
typewritten 302?
A Right.
Q When you
took notes in the office you took them with a pen or pencil and wrote them
on a different piece of paper; is that correct?
A Yes.
Q So when we
talk about notes, let's be referring to the notes you took with your hand.
A All right.
Q Okay. Now, I
ask you how is it that you are now able to remember almost two years later
that it was at 12:36 P.M. that the circumstances under which you were
working changed on {1674} June 26, 1975?
A It's by
looking at this. That's the first thing I recall personally hearing.
Q Ms. Johnson,
in your direct examination didn't Mr. Sikma ask you a question about the
first transmission that came in from Ron Williams?
A Yes. But
that was on, that was not taken down in notes at because at that time I
was not taking notes.
Q Ms. Johnson,
please try to answer my question as I ask it.
I asked you
whether on direct examination you were asked to tell us about the first
transmission that came in that caught your attention; is that correct?
A Yes.
Q And you told
us the content of that transmission, did you not?
A Yes.
Q From your
memory here in this courtroom?
A Yes.
Q So a few
moments ago you said that the first transmission you took down on your own
was at 12:36. You don't mean to say that that was the first transmission
that you heard or have any memory of, did you mean to say?
A That's the
first transmission on this 302 here.
Q Forget
Defense Exhibit 75 for the moment. I'm talking to {1675} you about facts,
historical facts which have nothing to do at the moment with what's on
that piece of paper.
Did you hear
the initial transmission?
A Yes.
Q Or what you
believed to be the initial transmission from Williams?
A Yes.
Q And did you
hear additional transmissions?
A Yes.
Q And do you
have some recollection of those transmissions?
A Some.
Q I'm not
asking you whether you know them exactly verbatim, you understand that?
A Yes.
Q Nor am I
asking you them today as well as you did on June 28th, but you did hear
transmissions prior to 12:36, did you not?
A Yes.
Q And they
were in the English language?
A Yes.
Q And you have
some recollection of at least some of them, don't you?
A Yes.
Q When you
were interviewed -- do you have Defendant's Exhibit 81 in front of you?
{1676}
A Yes.
Q Is it face
up?
A Yes.
Q Please turn
it over.
When you were
interviewed on June 28th by Agent Canton did he ask you questions about
any portion of the transmissions which you then on June 28th remembered?
A Yes.
Q And did you
tell him what you then remembered?
A Yes.
Q And did you
either quote or paraphrase, depending on how accurate your memory was,
some of those transmissions?
A Yes.
Q Now, did he
make specific reference to certain transmission and ask you whether you
have heard those, or did he say to you, "Tell us, tell me what you heard,"
and you just told him what you heard? Which way did it go, if it went
either of those two ways?
A He asked me
what I had heard.
Q And then on
June 28th you told him, based on what was then your best recollection,
what you remembered, right?
A Yes.
Q And you told
him of a number of transmissions which you heard before 12:26 -- 12:36 in
that interview; isn't that correct?
{1677}
A Yes.
Q Did you use
any notes in the course of your interview?
A No.
Q What did you
do with your notes made during the transmissions as they were actually
occurring?
A They were
destroyed.
Q I beg your
pardon?
A They were
destroyed.
Q Who
destroyed them?
A I did a few
months later.
Q Did Agent
Canton ask you the names of the people who were resent in Room 260?
A Yes.
Q And did he
ask you what were you doing while the transmissions were coming in?
A I don't
recall.
Q Well, I
assume that he asked you whether you were present, right?
A Yes.
Q And I assume
that he asked you whether you heard the transmissions?
A Yes.
Q And I assume
he asked you for the content of some of the transmissions, right?
A Yes.
{1678}
Q Didn't he
ask you what your official duties were in connection with the
transmissions?
A I don't
recall if he asked that at all.
Q Take a look
at the opening paragraph, first paragraph on the first page of Defendant's
Exhibit 75 for identification. Read it to yourself, it's not in evidence.
That's part of
the 302, is it not?
A Yes.
Q Are the
statements in that paragraph true or false?
A True.
Q Then is it
not a fact that the radio transmissions were monitored by stenographer,
Ann M. Johnson, on June 26, 1975, to the best of her ability and are not
intended as verbatim; isn't that factually true?
A Yes.
Q You never
told Agent Canton that you got any help from anyone from 11:55 to 12:36,
did you?
A No.
Q Why not?
A He didn't
ask.
Q Did you
think it was important?
A I didn't
really think so. To me it was part of the dictation.
Q What do you
mean "it was part of the dictation"?
A Well, part
of my taking down the notes.
{1679}
Q Let's go
back to 12:36 P.M., not the entry there, your memory. Couldn't it have
been at 12:10 P.M. that Agent O'Clock stopped helping you instead of
12:36?
A I don't
believe so.
Q Why not?
A It's just to
the best of my recollection. I don't, you know.
Q Are you
saying that you have a specific recollection that goes back to the
afternoon of June 26th that at 12:36 he stopped helping you?
A No. I'm
saying that by having looking at these, this 302.
Q Yes. That's
No. 75 for identification?
A Right.
Q I have to
keep saying those numbers so the record is complete.
Go ahead.
A Okay. That
by looking at this I usually can recognize something that you occurred
yourself, especially when you read it. And by looking at this, the first
thing I can recall hearing myself is the 12:36 entry.
Q When you use
the expression "hearing myself," are you telling us that until 12:26 you
yourself heard nothing coming Dyer the speaker, but you only got it from
Agent O'Clock? Or are you saying that you heard it, he heard it and he was
helping you in your note taking?
{1680}
A That we both
heard it and he was helping me in my note taking.
Q As far as
you know did he ask you while he was helping you to write anything down
which was inconsistent with what your ear had heard?
A No.
Sometimes I didn't catch the whole thing, though, and he would fill it in
for me.
Q Can you tell
with respect to the 12:18 P.M. entry whether you heard that one yourself?
A I don't
recall it at all.
Q Does that
mean you don't recall whether you heard it, or you don't recall anything
about it at all?
A I just don't
recall it.
Q Now, when
Agent O'Clock was working with you was he working in his official
capacity?
A Yes.
MR. TAIKEFF:
Excuse me one moment, Your Honor.
{1681}
(Counsel
confer.)
MR. TAIKEFF:
All right, your Honor, battle by stipulation.
Instead of
offering the entire document, we offer the first two pages of Defendant's
Exhibit 75 for identification.
MR. SIKMA: We
have no objection to that, your Honor.
MR. TAIKEFF: I
have no further questions of this witness.
THE COURT:
Just a moment. I want to be sure I understand the stipulation. You are
offering it in evidence, the first two pages of 75?
MR. TAIKEFF:
That's correct.
THE COURT:
There is no objection?
MR. SIKMA: No
objection.
THE COURT:
Very well. The first two pages of 75 are received in evidence.
(The first two
pages of Exhibit 75 are received in evidence.)
MR. LOWE:
Counsel, wait just a moment.
MR. SIKMA: I
have no further questions of the witness, your Honor.
MR. LOWE: Just
a moment.
MR. TAIKEFF:
May we approach, your Honor?
THE COURT: You
may.
{1682}
(Whereupon,
the following proceedings were had at the bench:)
MR. TAIKEFF:
Your Honor, that leaves the rest of the document without a proper
foundation. I would assume that's the Government's position?
MR. SIKMA:
Yes, your Honor.
MR. TAIKEFF:
Now, there remains one witness who could complete the foundation, and that
is Agent O'Clock. We have two agents coming on on Monday, Agent Waring and
Agent Hughes; and I suspect that this document may be necessary in the
course of cross-examining them, and I really don't know why the Government
is resisting the offer of the document, but it was my understanding that
some reasonable opportunity would be afforded the defense to lay the
foundation so that your Honor could make a final ruling on this entire
document; and it was suggested by Mr. Hultman when that was being
discussed at the side bar that we do it in front of the jury, and they
produced this witness.
However, I
think the record will show -- and I am basing this upon, not a memory, but
a past recollection recorded, that Mr. Sikma said in open court during the
argument on this subject -- we had a rather lengthy argument -- that Agent
O'Clock was not present during the first half hour and the reason I
believe that that was {1683} his statement -- I will have to search the
record to find it -- is because on the second page of the 302 it
specifically said that he was present, and I made a little footnote for a
potential cross examination question to see whether there would be a
contradiction between the testimony to be given and what it said there,
and Mr. Sikma's remark.
Now, maybe he
misspoke when he said that, but now we are dealing with the exact
opposite. We not only have him present, but he is present and performing
an extra function. It seems to me it would be appropriate to request at
this time that Agent O'Clock be made available Monday morning so that we
can finally explore the foundation of this document because we always seem
to be frustrated by some missing link; and then if appropriate, get the
entire document into evidence and so we can use it in cross-examining here
and use it --
MR. LOWE:
(Interrupting) May I make an inquiry?
MR. SIKMA:
Just a moment. Your Honor --
MR. CROOKS:
(Interrupting) Would you mind letting us finish?
MR. SIKMA:
(Continuing) -- I am going to object to this for the reason that they went
into it on the grounds back there that they were concerned about the first
two pages of this; and I had a misunderstanding with regard to the initial
part of that, that the initial part of this -- {1684} I thought that this
was a summary, was a summary in fact of Special Agent O'Clock, the first
part; and I thought that this would solve this problem by going along with
this and saving some time; but if counsel is going to attempt to put this
entire document in, I think it clutters up the record. I am going to
resist it, and I am going to resist it very strenuously I am going to
resist putting Agent O'Clock on out of order because it is totally
irrelevant. It has no bearing on the facts of the case. As far as this
case is concerned, it is totally immaterial, and for this reason we are
going to resist it.
MR. LOWE: May
I just make an inquiry of Mr. Sikma? It may save us a lot of time, Judge.
On a lot of
Government exhibits you asked us to stipulate foundation without waiving
arguments about relevancy. It seems to me that what you are talking about
here is relevancy. I doubt that you would challenge the foundation of the
accuracy of an agent's 302.
Are you
willing to stipulate foundation in order to present the question of law to
the Judge as to whether it is relevant or not and avoid a lot of time
delay in having to call Agent O'Clock in? It seems to me that really would
save us a lot of time and trouble here.
MR. SIKMA: I
would have to consider that later. I don't think that foundation could be
established through {1685} Agent O'Clock or any other witness, the type of
foundation that would make this document admissible.
If the
Defendant insists on calling Special Agent O'Clock who has retired
subsequently in their own case, there is nothing we can do about it, but
we are not going to go any further on this issue with regard to this
unless we are ordered to do so by an order of the Court.
MR. TAIKEFF: I
think, your Honor, unless your Honor is going to rule that this witness is
not competent to give the testimony she gave, that the foundation is
really already in. She says he was listening, she was listening, he was
telling her what to write down, June the 1st, 41 minutes approximately.
She was an FBI employee. He was a Special Agent. Whether he made a mistake
goes to the weight, not to the admissibility. It was put down on a 302
which is an official FBI report, and it stands for what it says it is. The
jury should know.
MR. SIKMA:
Your Honor, this first 40 minutes, or whatever, is already in evidence,
and we can argue about that.
MR. TAIKEFF:
That's the point. The foundation is already here on the record.
MR. SIKMA: We
have waived it to this limit, and I think the rest of it the Court has
ruled on; and I think that, unless the Court changes its ruling, that we
are {1686} going to retain our earlier position.
MR. TAIKEFF:
It is the only document that purports to relate what was transmitted that
day. There are no original notes left. It has perhaps not the fullest
exploration of what weight to give to the document because Agent O'Clock
is not here to testify; but if the Government feels that the document
should be given less weight than it would merit on its face, the burden
would be upon them to introduce evidence to show why the jury should not
accept this document for what it says.
It puzzles me
that the Government tries to keep out a document which is apparently
prepared by the FBI in a meticulous and detailed fashion, which says it
doesn't purport to quote but rather to give a summary of what was going
one. That's the only piece of evidence of what was happening over that
radio in existence in the world.
THE COURT:
Well, I am still going to reserve ruling. I am going to review this
colloquy and think about it over the weekend.
MR. TAIKEFF:
Thank you, your Honor.
MR. LOWE: May
I raise one question? I presume Miss Johnson wants to go home?
MR. SIKMA Yes,
and so does Mrs. Price because she has a small child at home.
MR. TAIKEFF:
We can agree --
{1687}
MR. LOWE:
(Interrupting) I have a couple of questions. I don't care if you want to
excuse the jury and do it out of the presence of the jury and have
something like that rather than to have to call her back.
MR. SIKMA:
What do you want to know?
MR. LOWE: I
want to have it on the record that these times were times -- let's put it
this way -- that she gave to Agent O'Clock times which she herself
observed were coincident with the items she wrote down here; and then
either by stipulation with you or by calling Agent O'Clock, we would want
to have Agent O'Clock say that she accurately recorded the times she gave
to him, similarly to lay the foundation that these times and these
transmissions are accurate.
MR. TAIKEFF:
Times are accurate.
MR. LOWE: Put
it in the record, that's all.
MR. SIKMA: I
think that the defense misunderstands what the witness has testified to.
The witness testified that during the first --
MR TAIKEFF: 41
minutes.
MR. SIKMA:
(Continuing) -- 41 minutes, Special Agent O'Clock was there. She is making
the estimate of the time in this period of time.
MR. LOWE: I
understand that, during the first 41 minutes.
{1688}
MR. SIKMA: He
is making a statement of what was said.
MR. LOWE: I
assume that we would have her put this on the record that after 12:36 -- I
am assuming he interviewed her with the assistance of reading her notes --
but they went down the notes and he used that to prepare the 302; but that
the notes had the time, 12:41, 2:55 reading on the notes.
MR. SIKMA: We
will stipulate to that, that's generally what she did, She made the
estimate.
MR. LOWE:
Agent O'Clock would say that he accurately broke down whatever times it
was she gave him. That's all I am talking about, getting it in the record.
MR. SIKMA: I
think she actually typed down the times when she typed the notes. She
typed it.
MR. TAIKEFF:
She read a time off the clock in the office. You would be prepared to
stipulate that's a fact?
MR. SIKMA: We
would.
MR. LOWE:
Probably stipulate also to the best -- I think it says here to the best of
her ability what she wrote down, you know, at a given time here, with the
names and everything, was as accurate as she could write it down as she
was listening to it. Agent O'Clock would say that this is an accurate
depiction of what she told him, basically the same.
{1689}
MR. SIKMA: I
think we would say that.
MR. LOWE: That
would be good.
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
THE COURT: It
is five minutes almost past the time that I usually promised you that you
can leave the courtroom.
The Court is
in recess until 9:00 o'clock, Monday morning; and would ask the jury to
remember that you must continue to keep an open mind and not discuss the
case.
MR. SIKMA:
Your Honor, I beg the Court's pardon. This witness is excused, I take it?
MR. TAIKEFF:
Yes, your Honor.
THE COURT: We
almost left you in the witness chair. You are excused.
(Witness
excused)
(Whereupon, at
5:05 o'clock, p.m., the trial of the within cause was adjourned until 9:00
o'clock, a.m., on Monday, March 28, 1977.)
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