VOLUME XIII
Pages 2608-2829
{2608}
FRIDAY MORNING
SESSION
April 1, 1977
9:00 O'Clock,
A.M.
Whereupon, the
following proceedings were had and entered of record on Friday Morning,
April 1, 1977, at 9:00 O'Clock, A.M., without the jury being present and
the defendant being present in person:
THE COURT: Are
there any matters to be considered before the jury enters?
MR. TAIKEFF:
Yes, Your Honor.
MR. CROOKS:
Yes, there is, Your Honor.
MR. LOWE: I
yield to the Government.
MR. CROOKS:
Your Honor, pursuant to the request of the Court I did obtain from Mr.
Hanson, the Department of State Oregon Police report. Mr. Hanson however
has requested that this report not be turned over to the defendant in
total, principally because they do have charges pending in Oregon which
they do not feel that this contents of this report should disclosed at
this time.
However, I
have examined this report completely insofar as the question raised as to
when the AR-15 was found. I can state that there's only one reference in
the report to the finding of weapons. That's on page 3, and reads as
follows. Now, this would be referring to approximately 7:00 P.M. on the
15th. I believe it's the 15th, at least if it's in the proper sequence. It
stated: "Police in charge of arson division {2609} advised him that
vehicle," and this refers to the Plymouth as I understand it, "contained a
quantity of dynamite. Write; requested that Lt. McCullom contact Trooper
Bill Fettig. Advise him of the dynamite. See if he would be able to come
to this area to dispose of the dynamite".
During the
search of the motor home on this date there were several boxes of
ammunition and several rifles found. These items will be listed under
exhibits on this report.
Then I believe
commences on the next page, they simply start with a list of exhibits.
Item 7 is the AR-15. Item 7, AR-15.
A model .223
model SP1. Obliterated serial number, four loaded magazines, two loose
cartridges, backstrap, all contained in a rifle case. And that's the only
reference in the report at all to this matter which counsel raises.
I'll be happy
to submit this report to the Court in camera and I have no objection as
far as the Government is concerned to parts of this report which the Court
think might be pertinent to be disclosed. But I have been requested by Mr.
Hanson that the report not be disclosed to the defendants in total because
of the nature of their pending case there.
I believe the
record will indicate if I'm correct that Mr. Peltier was extradited on a
burglary charge in Oregon and that is still pending and papers have been
filed. If the Court wishes to examine this I'll be more than happy to
submit it to the Court for whatever use the Court then feels {2610} should
be made of the report.
MR. TAIKEFF:
Your Honor, might I ask if it's possible for the Government to indicate to
the Court which sections of the report should be deleted.
MR. CROOKS: I
have no idea, Your Honor. I'm not sure what parts Mr. Hanson does not wish
disclosed other than obviously for tactical reasons they do not feel that
the entire report should not be disclosed. And I would rely on the Court's
discretion as to what parts if any may pertain to this case, and to the
matter specifically which counsel requested reports for the date of
finding of the AR-15.
I can't state
to the Court that that information is I not contained in that report.
There is nothing to indicate the time at which any weapons were found
other than the general statement which I read.
MR. TAIKEFF:
May I ask whether Mr. Hanson is still in the building?
MR. CROOKS:
No. Mr. Hanson has returned to Oregon and this information was relayed to
me by the FBI who caught him I think at the airport and obtained a copy of
the report.
MR. TAIKEFF: I
assume, Your Honor, that the list attached encompasses not only the AR-15
but also all of the other objects which are depicted in the photograph
which is the subject matter of this inquiry. And therefore one might
rationally conclude that all of those objects were found at {2611}
approximately, if not at exactly the same time.
There's
nothing to differentiate between the AR-15 and the other objects to the
list which do in fact appear in the photograph.
MR. CROOKS:
Well, I can answer that question. The list is simply their list of the
items that have been either turned over to the FBI or returned in the
search warrant. There's no dating. It's everything that they seized, lock
stock and barrel over approximately a two day search. And the Court can
examine for himself, and I'm sure that the same conclusion that the Court
will come to, that there's absolutely no indication as to when any
particular item was found.
It's over a
period of a search of approximately two days, and those are all the items
that are returned. And counsel has already the list. If counsel wishes a
list, I'm sure Mr. Hanson would have no objection to the list. But it's
simply the return of showing all the items that they've seized.
MR. TAIKEFF:
Well, in the alternative, Your Honor, we would ask the Government to
advise us of the names of the people who conducted the search so that we
may serve subpoenas upon these and bring them here as defense witnesses.
MR. CROOKS:
Well, Your Honor, apparently we're off on another ghost hunt. This
completely collateral matter. The United States has no idea of the exact
people. This was {2612} the State of Oregon search. I don 't think we have
any obligation to go to the extent that counsel wishes on a collateral
matter.
As understand
it the issue that counsel is attempting to raise is that the AR-15 was
found when the photograph was taken. This has got to be one of the most
absurd arguments raised by counsel in any trial that this is supposed to
be some kind of impeachment. There's no question that an AR-15 was found.
Apparently this is again counsel's attempt to establish some grand
conspiracy which is now also being entered into by the Oregon State
Troopers. And it's absurd.
The AR-15 was
found. That's never been in any way minimized by the Government. It's
immaterial whether that was found at any particular time or not. We're
talking about a collateral matter which at the very most would tend to
impeach one statement by Mr. Hancock. And certainly I think the Court has
ruled on numerous occasions, they're bond by the answer on collateral
matters and they couldn't prove it anyway.
MR. TAIKEFF:
The Government seems to have a magnificent talent or totally perverting
and misconstruing what our position is. We say that the FBI agent who
testified that the explanation for the absence of the AR-15 from the
photograph was not a true explanation. That he just made that up as a way
of explaining its absence instead of telling {2613} the truth. And we're
entitled to explore the question of when that AR-15 was actually found.
Because if in fact that AR-15 was found along with the other guns and was
not in that photograph, that's relevant to show a conscious effort on the
part of the FBI to exclude at least temporarily that AR-15 from the body
of evidence being collected and recorded.
Now, I think
that it is perfectly simple for us to acquire the names of the Oregon
State Police people through the Government who participated in that
search. We're entitled to that information in Brady against Maryland and
we ask the Court to order the Government to give it to us.
MR. CROOKS:
Well, Your Honor, Counsel, that information is just as available to
defense counsel as it is to the United States. The witnesses were on the
stand. They could have asked at any time. We had two people who we knew
were involved. Mr. Hanson and Mr. Zeller, and either one of them could
have asked.
I haven't the
slightest idea of the names of the people that were involved, and I will
not offer to find it, because I couldn't care less. Counsel wants to
pursue that matter. I would assume that they have ways available to assume
it just as easy as the Government. United States doesn't know the answer,
and I don't think we have any obligation to pursue it on a petty matter
such as this.
{2614}
THE COURT:
What was that picture that was referred to?
MR. CROOKS:
Government's Exhibit 61. The photograph that I believe was being referred
to was the photograph on page 3.
THE COURT: The
Court will review this and take this home after under advisement.
Are there any
other matters to be brought to the Court?
MR. LOWE: Are
you finished, Mr. Crooks?
MR. CROOKS:
Yes, I am.
MR. LOWE: Your
Honor, we have several very brief matters. First of all, James Theodore
Eagle is being held by the marshal service, I believe in Grand Forks, the
Court advises us. We would like to have an interview with him. It's timely
at this point and we would ask that the marshals be instructed to have him
available somewhere in the courthouse, perhaps, or in the Marshal's office
or in room 326, whatever Your Honor thinks would be best, a suitable place
to interview him on Monday. Because of the court schedule, we would
request that he be available at 5:00 o'clock on Monday. I think that would
give us an opportunity to talk with him. I do not anticipate it would take
long. I would anticipate perhaps an hour and perhaps two hours at the
absolute outside. So they would have plenty of time to {2515} return him
at an early hour Monday evening to Grand Forks. They would not have to
worry about keeping him overnight or anything of that nature.
THE COURT:
What about the possibility of interviewing him over the weekend?
MR. LOWE: We
are, all Counsel for the defense are going to a religious ceremony being
conducted for Counsel at White Earth, North Dakota. Minnesota. White
Earth, Minnesota. And it's an entire weekend of religious activities.
THE COURT: Are
there any other matters?
MR. LOWE: Yes,
sir.
Your Honor,
this is a bright clear day. I don't know if it's yet cloudless or will be
cloudless, but it is substantially cloudless. We ask Your Honor to take an
opportunity at one of the recesses or a special recess for that purpose or
on the lunch hour to take a view through the scope on the Coward rifle.
That is, to have Your Honor do it in order for Your Honor to make a
finding of fact with regard to what can be observed on a bright, clear day
of substantially the same conditions that were present on June 26th, 1975
when agent Coward reportedly looked through the scope.
We believe
we're entitled to at least have you look through it, we believe, to make a
finding of fact. We believe Your Honor will be impressed. It is not a
close question. {2616} There is no light condition that would enable
anybody to see a face at a half a mile which is what Agent Coward
testified was what was involved there. We would ask you to do that in
order for two purposes: first, in order to evaluate the question of
whether you would allow the jury to look through and, second, for the
purpose of making a finding for the record.
THE COURT: The
Court on any findings of fact that the Court is required to make, I will
make them on the basis of the evidence presented in the courtroom. Now if
you can reproduce the situation and produce an expert that would look
through that and present evidence, that is admissible. That of course is
your prerogative. I am not, I have ruled. I cannot conceive of any way
that I can duplicate the facilities. Furthermore, I'm nearsighted and I
don't think it would have much probative value for me to look through that
telescope.
MR. LOWE: Your
Honor, I would only point out it is possible we could use one of those
windows to gain access to a half a mile sighting from the courtroom. I
don't know whether Your Honor was indicating that would make a difference.
We offer that as an alternative if you do not choose to go outside of the
courtroom.
THE COURT: It
makes no difference.
MR. LOWE:
Third, Your Honor, we had discussions {2617} earlier in the trial with
regard to some objections, I think I'm correct in saying there were three
exhibits that constitutes, or were comprised of fragments or bullets which
the experts said they could not positively link up with a particular
weapon but said that they could possibly be associated with a particular
weapon, meaning that it was, let's say, a 30 caliber or whatever it might
be. We asked that those numbers be charged because they were misleading
and Your Honor overruled us on that and indicated you would allow the
numbers to remain the same.
In reviewing
our notes on this it occurs to us that there is no reason in face of that
ruling why the exhibits in question which are charts containing, first, a
depiction oŁ the rifle involved or weapon involved which is then
surrounded by depictions of various cartridge casings and comparisons of
firing pin impressions and so forth. There is no reason why those
fragments which have not been linked up to the weapon in question should
be allowed to be depicted on those charts.
Now that's not
asking that the numbers be changed, but in putting those fragments on a
particular chart such as the M1 chart, let's say, in one instance, I
believe. It is a deliberate effort to suggest to the jury improperly and
make them speculate that those fragments came from that gun when in fact
they could have come from any number of guns {2618} that are in evidence
or any other number of guns that might have been there at the time. There
is at least one chart, I believe, that already has one objectionable
exhibit marked out on it by just having white paper pasted over it and we
ask Your Honor make a view, make an examination of the exhibit in question
for the purpose of making defemination as to what we're asking and
ordering that they be covered up. I think that the government has those
here in the building and could make them available to Your Honor at some
point to look at before the expert is called upon to identify them.
The government
may want to respond to that so I'll sit down a moment.
MR. SIKMA:
Your Honor, I would state, first of all, that the charts clearly state
that these are not positive identifications; that they could have been
fired from the firearm in question.
Secondly, it
is not merely a possibility that they could have been fired from this
firearm or a number of other calibers. On all of these cases there are at
least some similar distinguishing marks or characteristics which relate
these shell fragments to firearms in question and so that while the charts
are very clear in establishing the distinction between a positive
identification and a possible identification, or partial identification,
these matters are set out in length and were clearly on the charts which
will be presented to the jury.
{2619}
Furthermore,
we would contend that the jury, on the basis of the evidence, could
conclude substantially more than that these are just chance items which
really have little or no significance as with regard to the weapons which
are known items.
We would state
that, for example, the charts state, for example, I will use as an example
34-H, which states that the bullet fragments had similar rifling only, and
therefore, to that extent it is limited.
All of these
on others, 33-A, for example, they are clearly set out apart, away from
the rest of the items, away from the rest of the examples or samples on
the chart, by saying similar rifling only, and set out by Q numbers so
that the jury can connect them up with the very specific items, can look
at them, and by reason -- have some additional reason to question whether
or not they are sufficiently connected up.
In addition to
this, the Government contends that the rest of the evidence in the case is
relevant in connecting these items to the questioned items which are of
similar rifling only, so I think that it is not only the fact that these
are found in the particular area in question, but in addition to that,
they have similar rifling and could have been fired from certain rifles.
In addition to
this, there is evidence of testimony {2620} of witnesses which state and
corroborates the fact that a rifle of this type was in a particular area;
and I think that that is sufficient to permit the Government to very
specifically set out on these charts, in order to aid the jury in making
their determination, because the evidence is so voluminous in this case
the jury could be confused, and this does not confuse them. This would not
mislead in any way. Counsel can bring it up on cross examination. Counsel
will have the charts there and can show the jury and emphasize the fact
that these are similar in nature only and are items which could have been
fired from a given rifle but they could also have been fired from some
other rifle of the same kind.
THE COURT:
What will be the testimony of the expert on that question?
MR. SIKMA: The
testimony of the expert on this -- and I will give you an example on 33-A
which is a .44 magnum carbine. You will recall that a bullet fragment was
found in the side of Special Agent Williams. It was the one, the bullet
fragment that passed through his left shoulder and out the underarm, and
then into the side. The bullet jacket of that was recovered. It is Q-1. It
is identified, it is Government Exhibit 33-C.
The witness,
Government firearms examiner will testify that, for example, that article
or bullet was fired {2621} specifically by Government Exhibit 33-A, and
that that was fired from that gun to the exclusion of all others.
Now, by
contrast he will testify that Government Exhibit 33-J and 33-K, for
example, are bullet fragments, one recovered from Williams' car, 33-K, and
33-J recovered from Coler's car, have rifling which has the same number of
lands and grooves which could have been fired. It is also a .44 magnum
caliber, and could have been fired from Government Exhibit 33-A, but it is
not to the exclusion of all other firearms, that is, not to the exclusion
of all other .44 magnum Ruger carbines which have a particular and
distinct number of lands and grooves in the inside of the rifle. In other
words, in the rifling -- but the proof in the case, I believe, we contend
shows that only one of those kind of rifles was at the scene on that
particular day, being fired by either the Defendant or his companions.
I think that
this is relevant to the issue as to whether or not the Government should
be able to present this evidence since it tends to show it is
circumstantial evidence of a fact question which should be resolved by the
jury.
MR. LOWE: Mr.
Sikma misstates our objection. We do not believe that he should be
precluded from showing this evidence. He should be precluded, however,
from putting {2622} it on a chart which purports with the same numbers --
now, again your Honor is allowing them to use the same sequential numbers,
you know, weapon 34-A, for example, is the AR-15 in evidence, 34-B, 34-C
and 34-D, and so forth -- all purportedly relate to the .223; and with the
exception of, I think he said 34-H, they will have evidence which will at
least purport to show that all of those items are connected; but as to
34-H the firearms expert will say -- I believe this is a fair summary of
what he would say -- is that that round could have been fired from any
AR-15. It has the same number of lands and grooves, same rifling, or
whatever it might be. It could have been fired from any AR-15 now in this
case.
Your Honor,
before the experts are finished, there will be evidence clearly that there
were two AR-15's fired on that day; and we believe the evidence will show
three or four AR-15's being fired by the Government's witness himself.
That's why we object to having them put the bullet fragments on the chart
for the weapon, 34-A. They don't have a chart for these other AR-15's,
however many there may be fairly inferred from that.
Obviously they
don't want to suggest there were any other AR-15's. This witness will say
the weapons had markings in them and he will identify the markings from
the weapon, 34-A. He will testify as to the .223 cartridges {2623} which
contained no markings which could have been identified with Exhibit 34-A.
There are two weapons already, and there are other reasons, as the
evidence will develop, why we may very well show that there were at least
three weapons fired on that day. To allow the Government to take fragments
that could have been fired from any one of those AR-15's and put them on a
chart which only relates to one of the AR-15's and have the Court give its
imprimatur to that by allowing it in evidence -- that's what the
Government will intend to do is to ask the jury to speculate or to allow
the Government improperly to suggest that there is proof that those are
related to that weapon.
The expert in
each case on the ones we are challenging will say he cannot say that
bullet fragment came from that weapon, only a similar weapon to the M-1.
He will say it could have come from any one M-1. The same as to the .44
magnum, it could have come from any one.
There is
already evidence, and there will be more evidence, there were weapons
fired on that day that were never recovered, people who were firing who
were never found. We don't know -- I am not sure we will ever know if
there was another M-1 or .44 magnum. I am not sure about this. I believe
there is going to be evidence there was another M-1, or suggestion,
certainly on the {2624} .223 there is going to be direct evidence by the
firearms expert. This is very, very improper for them to put them on the
chart. Now, if they want to put it on a separate chart or if they want to
talk about it while that chart is up there, that's one thing. That's fair
argument or its fair evidence for the jury to consider, but to put it
right on the chart and have this Court approve it by making it an exhibit
is very, very bad and very suggestive.
{2625}
MR. SIKMA:
Your Honor, I would just contend that it's, it is not at all misleading
since the testimony of the witness was an aid in demonstrating to the jury
as to exactly what the witness will testify is contained on the chart.
It's there, available, with the distinction.
Counsel can
raise it, discuss it all he wants to and the Government does have a right
to show, because there is substantial evidence which makes it reasonable
as a matter of circumstantial evidence to draw, at least to argue a
connection between the two.
Therefore, the
Government should not be precluded in presenting demonstrative evidence of
this nature. It is not in any way misleading.
THE COURT: I
have previously indicated that the Court would instruct the jury that the
fact that an exhibit may be marked, for example 33-A, 33-B, 33-C, has no
significance
From the
dialog and argument this morning I concluded and hold that it is proper
circumstantial evidence. However, the Court will consider and request from
defense counsel a proper precautionary instruction at the time the
evidence is received. I would ask that you submit a proposed instruction
to the jury.
MR. LOWE: Yes,
sir.
Your Honor, I
hope, maybe I didn't make myself clear.
{2626} I would
ask that you reserve your ruling until you can see the charts. I think it
will make a difference to you if you see the manner in which this is
presented on the chart.
THE COURT: As
I mentioned on the basis of dialogue, I can certainly reconsider at any
time.
MR. LOWE: All
right. Thank you, Your Honor.
MR. TAIKEFF:
Your Honor --
MR. LOWE: One
last thing, Your Honor, and I mentioned this to mention notice. We're
trying to work out with Mr. Hultman later on this. We would like to obtain
copies, at least if the copies are legible, and I think the FBI makes
pretty legible copies, of all of the known fingerprint cards of Leonard
Peltier so that we can use them for comparison purposes without
fingerprint expert. And I don't know how many that is.
I suspect it's
not too many, three or four or five at the most, and would ask that the
Government have the FBI produce whatever they do of Xeroxed copies or
however they produce them, photographic copies for us. I think one or two
we already have, so I'm talking about, or they're already in evidence. I'm
talking about any other copies that are not already in evidence or which
will not be introduced in evidence in this trial.
MR. HULTMAN:
Your Honor, I've gone on the record about discovery again. The knowledge
on prints have been known and {2627} I will do my best. But I will be very
frank about it, I'm just getting a little bit exhausted in spending my
time in discovery every time I turn around concerning matters that have
clearly been in the purview and capability and the requesting of the
defendant's counsel.
I'm, I'll do
my best and that's what I've indicated. I'm not going to certify in any
way, though, that I'm going to make a search of the United States to try
and discover for the next two weeks whether or not the defendant's prints
are somewhere, and then be accused later that I didn't make a good faith
attempt and withheld something in the process.
MR. LOWE: As
long as they're the ones in the possession of the FBI that's all I ask,
Your Honor.
MR. HULTMAN:
And that's what I was referring to, Your Honor. Counsel, I can't walk out
of this courtroom to find where in the whole United States there may be a
set of prints of this particular defendant. I will do my best, Your Honor,
but I want to know the conditions and understand on the record that the
basis upon which I'm doing it. Not later be accused of not producing
something. It was in the file somewhere, someplace of the Federal Bureau
of Investigation.
THE COURT:
Well, this is hardly a timely request. But I would instruct counsel to
make an effort to obtain whatever information in that area you are able
to.
MR. LOWE: That
this is based on evidence that we did {2628} not anticipate. I don't think
it's a burdensome. I appreciate --
THE COURT: Are
you suggesting that you are suggesting that there wouldn't be fingerprint
evidence?
MR. LOWE: No,
Your Honor, there is character in the fingerprint evidence. We didn't
believe it would be relevant before in view of our previous discussion.
That's all I
have, Your Honor. I believe Mr. Taikeff has something.
MR. TAIKEFF:
Your Honor, I have two very brief matters. The first is to indicate to
indicate to Your Honor that the special visitation arrangement which Your
Honor ordered on behalf of the defense included a period this evening. I
mention it to Your Honor that these arrangements include the necessary of
a marshal being assigned in the evening. We concluded last night the work
we had to do, and therefore will not need the time this evening.
THE COURT:
Thank you.
MR. TAIKEFF: I
thought it would be appropriate, Your Honor, so that the marshal would not
be assigned to work an evening shift.
THE COURT:
Thank you. I will advise the marshal.
MR. TAIKEFF:
Thank you, Your Honor.
The other
matter, Your Honor, is this: Over our objection there has been brought
into this trial on a number {2629} of occasions testimony, and indeed
sometimes photographs, involving dynamite or other explosives. I'm not
going to re-argue that matter at this time. I merely wish to indicate that
after considering certain facts and factors which have come to our
attention, we believe that there is a possibility that some or all of
these explosive devices were supplied, either by a federal agent or by a
federal informant.
And we would
ask that at sometime before this trial is concluded the United States
Attorney's office make appropriate inquiry and certify to the Court that
none of the explosive devices which we have heard about or seen any
photographs of in this case were supplied through or by federal agents or
their informants.
The reason
that we ask that, Your Honor, is not out of idle curiosity, but if the
defendant has to suffer the prejudice of such evidence coming before the
jury we believe that the defense at the very least should have an
opportunity to prove to the jury if that is the case that those explosives
were there with the assistance, if not with the encouragement, of federal
agents or their civilian employees.
MR. HULTMAN:
Your Honor, again we get a shotgun request in the middle of the trial and
my only response to this is that there is a proper procedure and a proper
showing that must be made. And it isn't just a bald statement by counsel
in the middle of the courtroom have an infinitesimal possibility {2630}
that something somehow may have happened. I would only indicate to the
Court that my response is that the Government will stand on the position
that we object to any such, only such time as a proper showing with proper
evidence has been made by the defense, and then the Government will
respond in whatever proper the Court at that time will indicate.
But I'm not
about again to go out and go on a fishing expedition for the next month
and a half throughout the United States and then being accused that I
didn't check something out in Tubalas, wherever that is.
MR. TAIKEFF:
Your Honor, Mr. Hultman has twice in the last ten minutes suggested that
an accusation of the kind of which has not been heard in this trial is
going to be made against him.
The one time
that Mr. Hultman did not in fact produce all of the information that was
available was when he himself was not accurately informed by the Canadian
authorities concerning the existence of a wiretap on Mr. Peltier when he
was incarcerated in Canada. And never did we take the position that he had
any complicity in that misstatement of fact. Indeed our position was
clear. He was misinformed by the Canadian authorities and it was only when
we produced certain documentation that the Canadian authorities then made
a complete disclosure to him.
We have not to
this date, and we do not anticipate, {2631} making any accusations against
Mr. Hultman that he made any bad faith searches or otherwise conducted
himself in an improper way.
And I wish he
would not continue to suggest that such was possible because we don't
think it's possible. I don't know why he thinks it might be possible. Now,
the point is that Mr. Hultman need not make a search for a month or more.
If he wants to go on a fishing expedition I would be glad to join him. The
weather is turning quite nice. However, I would ask that he pick up the
telephone and call the Department of Justice and say, or the FBI or
however it's done, I've never had the privilege of being privy to the
inner chamber, but however it's done he can find out whether or not there
are any Government agents or informants who played an instrumental role in
developing or making available the explosives about which the defendant
has heard a great deal along with the jury in the course of this case.
It does not
require extensive effort on his part. I think it would appropriate for him
to ask, and if he's told that there is no such thing, all he has to do is
repeat that to Your Honor and the matter is closed in this proceeding.
THE COURT: I
would ask counsel, do you have any evidence that any explosive devices
were supplied by federal agents or their civilian employees?
{2632}
MR. TAIKEFF:
We have some indication that such is the case, Your Honor.
I would tell
Your Honor that I personally have conducted an investigation and I have
enough information that I think is reliable. To use a phrase that the
Government uses quite often, I have one or two reliable informants of my
own. And I am satisfied that the information I have received warrants my
making the application. I am not in the habit of making a frivolous
application that is not based on some rational reason. I would call to
Your Honor's attention the fact that in Oregon a number of people were
charged in federal court, I believe in connection with the posse d on of
ten cases of dynamite, and it was promptly destroyed by the FBI, or the
federal authorities. And I trust that I'm accurate in saying that it was
the FBI. And as a result a United States District Court judge dismissed
that case because of the improper behavior.
That is one of
the factors that I'm taking into consideration in making the application
because I believe the dynamite can be traced. And I believe what my
confidential informants have told me is probably true, that that dynamite
could have been trace and it would have been traced back to a Government
informant.
Now, it is not
unheard of for Government informants to act as provocateurs, particularly
in small political {2633} organizations that are not looked upon with
great favor. Because there's nothing better than in one way instigating
people to do things which causes them to cross the line between legality
and illegality and then hustle them off to jail so they can no longer be a
thorn in the side of those don't appreciate their existence. I think the
episode with John Trudell, the national director of the American Indian
Movement, who is now serving sixty days because he said something to the
marshal which the marshal didn't like hearing is a small example of what
I'm talking about.
Now, I
believe, Your Honor, that there is a sufficient basis to ask the
Government to make an inquiry --
THE COURT: I
might interrupt you at this point and say that I take exception to the
suggestion that Judge Davies would have --
MR. TAIKEFF:
Not Judge Davies. I was talking about the action of the marshal, Your
Honor.
THE COURT: I
know, but Judge Davies would not have acted unless there was evidence to
convince him that it was a proper act to take.
MR. TAIKEFF:
Well, this morning they barred a very important person from the American
Indian Movement on the ground that they didn't like the way he closed the
door when he left the courtroom. Isn't it amazing that only American
Indian Movement people seem to be doing things which the {2634} marshal
finds offensive.
THE COURT: I
personally witnessed a very hard slamming of the door by someone when they
left the courtroom. I don't care whether they are members of the American
Indian Movement or whether they are members of any other society or
movement.
It is not
allowed in this courtroom, and the marshals are instructed not to permit
it to go on. The purpose of this courtroom is try the issues stated in the
indictment without distraction from the audience, without demonstrations.
And demonstrations and distractions will not be allowed.
MR. TAIKEFF:
Well, Your Honor, Your Honor was sitting on the bench and I was in this
courtroom when Mr. Trudell was having his exchange with the marshal. And
neither one of us, I'm sure, was aware of what was going on. So it
couldn't have been very disruptive.
In any event
the point is that my professional experience over the last nine years
shows that the nature and the quality and the extent of the things done by
people who are in the employee of the United States Government as
informants is outrageous, particularly in connection with the political
cases I'm speaking from actual revelations, not things which I read, not
things which I'm speculating about, but things which I know because they
were revealed in open court.
{2635}
These things
do happen, Your Honor, whether they happen in and around Fargo, whether
they happen within Your Honor's professional experience is not the entire
question. I represent to Your Honor that they happen, they happen
regularly. They happen in drug cases, they happen in political cases.
THE COURT:
This is not a political case.
MR. TAIKEFF:
This is not a political case?
THE COURT: No.
MR. Taikeff:
We're dealing with a person, Your Honor, who is politically active in a
political organization.
THE COURT: The
only issue before the Court in this case is the issue as set out in the
indictment.
MR. TAIKEFF:
Well, maybe if Your Honor allows the Government or requires the Government
to make their inquiry and in fact we get an answer to that inquiry, Your
Honor might find that this is indeed a political case.
MR. CROOKS:
Your Honor, I would like to rise to one point which counsel went into, and
this is the Oregon matter, the destruction of dynamite in Oregon.
Counsel
misstates the record by not stating it completely. The dynamite was
destroyed in Oregon because it was unstable. It presented a danger to the
community and the officers. The indictment was dismissed by the district
judge and that issue is now up on appeal before the 9th Circuit. And
counsel is {2636} well aware of the circumstances surrounding that case,
and the reason for the problem that arose. And I will not comment on the
court's ruling of the district court ruling, but that is a matter which is
up on the appeal.
The United
States has appealed, not only the suppression of the evidence, but also
the dismissal. And that decision has not yet been handed down. And I think
it's unfortunate that counsel tends to bring a matter like this up which
is under litigation because counsel knows full well that that dynamite was
not destroyed for any purpose other than what was stated by the United
States that the dynamite was unstable and could have well blown up and
destroyed the evidence room or wherever else it was stored. And that is a
matter of litigation which has been well established and is now up on
appeal. And I think it's unfortunate that counsel even suggested something
of that kind.
MR. HULTMAN:
Might we move on Your Honor so that we might all be able to go fishing,
Counsel, this spring as counsel has suggested?
THE COURT: Are
there any other matters to be presented this morning?
MR. TAIKEFF:
No, Your Honor.
THE COURT:
Yesterday I reserved ruling on Exhibits 145 and 147 which were offered in
evidence.
{2637}
My ruling will
be that the exhibits will be received in evidence, but I will instruct the
jury that the only relevant portion of the exhibit is paragraph 10 on each
exhibit. And that is relevant only on the issue of credibility of Mr.
Zeller.
The jury may
be brought in.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
THE COURT: As
the jury probably surmises the delay this morning was again on legal
matters that had to be resolved before we continued with the testimony.
One of those legal matters related to an offer of two exhibits,
Defendant's Exhibit 145, Defendant's Exhibit 147. Each of these exhibits
is an affidavit of William P. Zeller.
The jury may
recall that William P. Zeller identified himself as an Oregon State
Policeman who was the supervising sergeant of the latent print fingered
section of the identification bureau in the Oregon State Police.
{2638}
The testimony
of the witness on the witness stand is the substantive evidence in the
case. In other words, it's the evidence which the Court, which the jury
should consider. However, as you may recall, there was evidence brought
out that Mr. Zeller made two affidavits and these affidavits are
identified as Exhibits 145 and 147, one was later than the other, and
there is a difference in what was stated in paragraph 10 in each of these
affidavits.
These two
exhibits are received only by reason of that difference in the statement
in paragraph 10. That is the only part of the exhibit that is relevant and
that part of the exhibits and that part of each of the exhibits is
relevant to the issue of the credibility of the witness.
As you may
also recall on my opening instructions, I told you that it is the duty of
the jury to determine what credibility should be given to the testimony of
any witness and these two exhibits are received on that issue of
credibility.
MR. ELLISON:
Your Honor, before we go further may we approach the bench on that matter?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. ELLISON:
Your Honor, upon checking my notes, it {2639} became apparent there is
another passage of both of these documents which are the same in the March
4th affidavit and then then the April 4th affidavit which pertained to an
alleged identification by Sergeant Zeller of a fingerprint of Leonard
Peltier's on the microphone inside the mobile home. Mr. Zeller gave no
testimony to that effect during trial and there was the testimony of his
that he may have told Special Agent Hancock that he did not make such an
identification in a November 17 interview and there was testimony by
Special Agent Hancock that what he described as a preliminary examination,
or the results thereof were to the effect that he had tested the
fingerprints lifted from the microphone inside the mobile home and found
they did not compare to those of Leonard Peltier. We would therefore ask
the Court to allow for that section of his affidavits to also be pointed
out to the jury because this too goes to the credibility of not only Mr.
Zeller but possibly also other individuals.
MR. CROOKS: I
don't have the slightest idea what he's talking about. Sergeant Zeller
testified he made the examination of the microphone and he testified that
he did make later identifications but the identifications, I believe, and
I didn't go into it because I wasn't using him as an expert. The testimony
would have been that he made the identifications basically before the
Oregon incident. The FBI had no reason to go back to Mr. Zeller because
Mr. {2640} Mulholland was there and gave them the identifications. It
seems to me that that issue has never been raised by the evidence one way
or the other. It seems to me that all need to be said by those two
exhibits has been said and we object to anything further being commented
by the Court. If Counsel wishes in closing argument to raise that type of
point, that's his option. I don't care to make any further comment.
MR. ELLISON:
We have nothing further.
THE COURT:
Very well.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
THE COURT: You
may proceed.
MR. HULTMAN:
The plaintiff calls Angie Long Visitor.
THE COURT:
Counsel approach the bench.
(Whereupon,
the following proceedings were had at the bench:)
THE COURT: I
am told that the witness cannot be located. I am surprised that her
Counsel is not present. He apparently is in St. Paul.
MR. TAIKEFF:
She's been on the floor all week because I've seen her from time to time.
THE COURT: All
week isn't significant if she isn't here this morning. I'm told she was
advised to be here at 9:00 o'clock.
MR. HULTMAN:
Your Honor, as late as yesterday {2641} specifically I personally saw her.
I never talked to her because of conditions she refused to, and upon the
statements of Counsel here in the courtroom. I have not sought to. She was
instructed yesterday that she was to appear here to testify at 9:00
o'clock this morning. I know she was specifically told here in this
building.
Secondly, her
counsel was called yesterday and so indicated to him. Now that's all I can
do, Your Honor. I can't do any more than that when I'm placed in the
posture I'm placed in.
THE COURT: I'm
not suggesting you can. I'm just a little surprised, number one, she's not
here and, number two, her counsel is not present because I would have
expected him to be present in court if he knew she was going to be
testifying.
MR. TAIKEFF:
Could I be allowed to leave the courtroom for a few minutes and make some
inquiries? I may be able to help.
MR. HULTMAN:
If she doesn't appear, Your Honor, I'm going to move to revoke the bond.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
THE COURT:
Members of the jury, we are in an unexpected delay. It relates to the
availability of a witness and inquiry is being made at this time. I think
that there is {2642} nothing for us to do except to stand in recess until
such a time as I have more information. So the Court will stand in an
indefinite recess and as soon as we are able to we will continue.
(Whereupon, at
10:06 A.M. recess taken.)
(Whereupon,
court resumed at 10:40 o'clock, A.M.)
THE COURT: The
jury may be brought in.
MR. TAIKEFF:
The witness is standing outside the door, Your Honor.
THE COURT:
Thank you.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
THE COURT: You
may proceed.
MR. HULTMAN:
Plaintiff calls Angie Long Visitor.
ANGIE LONG
VISITOR,
being first
duly sworn, testified as follows:
DIRECT
EXAMINATION
BY MR. HULTMAN
Q Would you
state to the jury your name, please.
A Angie Long
Visitor.
Q Angie, maybe
you could put this mike closer.
And where do
you live?
A Oglala.
Q And where in
Oglala?
A In Oglala
housing.
Q Have I ever
had an opportunity to talk to you about the {2643} matters that happened
on the 26th of June of 1975?
A I don't
think so.
THE COURT:
Speak up a little bit so we can hear you.
A I don't
think so.
Q (By Mr.
Hultman) You have on one other occasion testified concerning events that
happened on the 26th of June under oath, have you not?
A Yes.
Q And is that
in 1975?
A Yes.
Q Sometime in
November?
A (No
response.)
Q I want to
take you back to the month of June of 1975 and ask you where were you
living at that time?
A Jumping
Bull's.
Q And when you
referred to Jumping Bull's, would you explain to the jury what it is you
mean by Jumping Bull's.
A Cecilia and
Harry Jumping Bull's house.
Q And I would
ask you to look --
THE COURT:
Just a moment. Defense counsel did not hear the answer to the question.
Would the reporter read it back.
(Whereupon,
the last answer was read back.)
Q (By Mr.
Hultman) I would like to have you turn and look at the exhibit Angie, that
is behind you here in the courtroom {2644} and it's been marked as
Government's Exhibit No. 71. On that exhibit you will see a highway which
is marked U.S. Highway 18 and you will see some various objects up here on
the exhibit, something in the shape of a rectangle that says, "Jumping
Bull Hall," and there are other residences that you see here and I ask you
if you generally recognize what is portrayed on Government's Exhibit 71?
A Yes.
Q Speak up
just a little louder so that everyone can hear.
You recognize
the area that's portrayed on this map?
A Yes.
Q And what is
that area?
A Jumping
Bull's.
MR. HULTMAN: I
think that answer was Jumping Bull's, Your Honor.
Q (By Mr.
Hultman) Now you then recognized the general area here as being Jumping
Bull's, is that right?
A Yes.
Q And where
was it that you lived in Jumping Bull's? Could you describe the house that
you lived in or slept in at that time?
A In the green
house.
Q A little
green house.
MR. HULTMAN:
Counsel hear the response at all?
{2645}
MR. TAIKEFF:
Just barely. Would the Court mind if Counsel moved over to the other side?
THE COURT: You
may.
MR. TAIKEFF:
Thank you, Your Honor.
Q (By Mr.
Hultman) Now would you show us, show the jury with this pointer on this
map, if you can, by looking at some rectangles that appear on the map
which previously have been testified to to represent houses in this area
where the green house is that you have just testified to.
A Right here
(indicating).
MR. HULTMAN:
Let the record show that the witness has identified the green house.
Q (By Mr.
Hultman) Now about how long had you lived there?
A About seven
years.
Q And was
there anyone who lived with you at that time?
A My husband,
my kids.
Q And how many
children did you have, do you have?
A Three.
Q Three
youngsters. Did you have three at that time?
A Yes.
Q Now who
lived, was there anybody else that lived in any of the houses that are
represented here on Government's Exhibit 71 which is the Jumping Bull
property, anyone that lived in the house next to where you lived?
A My grandma
and grandpa.
{2646}
Q What are
their names?
A Harry and
Cecilia Jumping Bull.
Q Would you
describe what kind of a house or what color of a house they lived in?
A It's a white
house.
Q Now could
you point out for the --
Could you
point out to the jury which one of those houses it is, Angie?
A Right here
(indicating).
MR. HULTMAN:
Let the record show that she pointed out the house that is referred to as
the "white house."
Now you are
here under subpoena, are you not?
A Yes.
Q Were there
any other houses in that same general area that anybody lives in during
the period of time?
A Wanda Sears
right there (indicating).
Q Is that the
point here? Wanda Sears you say lived at that house during that time. Who
lived in the Wanda Sears house besides Wanda Sears?
A Wanda and
her kids.
Q Was there
any other person that lived there at that time?
A No.
Q Now was
there anybody, and I'm talking about generally now, I'm not talking
necessarily the very day, whether people were there or not. Do you
understand my question? I'm just asking {2647} if people lived in this
general period of time in any of these houses, then we'll get to the exact
day. Was there anybody that lived in any of these other houses up in this
area next to the house, the green house you said you were in and the
grandparents, the Jumping Bulls? Did anybody live in this house that's
located here on this exhibit?
A No.
Q What kind of
a house was that, do you remember?
A A log house.
Q A log house.
All right.
Now there is
another building of some kind shown over here in this area. Did anybody
live in that house?
Q Then up here
is an object called "Jumping Bull Hall." Do you recognize that?
A Uh-huh.
Q Was there
anybody that lived in that house?
A No.
Q Now I'm
going to take you to the -- well, at that same period of time was there
anybody else that lived in the total area of Jumping Bull's property that
you had seen prior to the 26th of June, 1975?
A Just around
there?
Q No. In the
whole area, including down by, along the stream or in the woods or
anywhere on the property.
{2648}
A Yeah. Up
there (indicating).
Q When you
say, "Yes, up there," to what area are you referring?
A Tent city.
Q Now there
were some people then that lived in some tents, is that right?
A Yes.
Q Do you
remember and could you tell the jury who it was that lived in the tents
during that time?
A Give the
name?
Q Yes. Could
you tell the name or names of any persons that you recall.
A Leonard
Peltier.
Q Would you
describe him to the jury. Would you describe his appearance, as you
recall.
MR. LOWE: Your
Honor, we could not hear the response over here.
MR. HULTMAN:
The reporter would read the response back.
(Whereupon,
the following answer was read back: Answer: Leonard Peltier.)
MR. LOWE:
Could the witness turn around if they're not actually using the chart,
while they're not using it and turn around. It would help us hear.
MR. HULTMAN:
I'm going to have to come back to the {2649} chart quickly. I'll do my
best to do that, Your Honor.
{2650}
Q (By Mr.
Hultman) And would you describe this person to us?
A He is just
sitting right there.
Q Pardon?
A Sitting
right there.
Q All right --
did counsel hear the response -- and would you indicate where you met --
MR. LOWE:
(Interrupting) If that was an identification of Mr. Peltier, we will
stipulate that she made an identification of Mr. Peltier. I didn't know
what it was, that's all.
MR. HULTMAN:
Let the record so show.
Q (By Mr.
Hultman) Now, was there anybody else that lived in the tents that you
recall?
A Bob Robideau.
Q All right,
and would you for the jury --
THE COURT:
(Interrupting) Did you get that response?
MR. TAIKEFF:
Just barely. Of course, I know the answers, I am able to pick it out. I
don't know whether every juror is hearing the answer.
THE COURT: Are
you jurors able to hear the witness? All right, proceed.
Q (By Mr.
Hultman) Would you describe Bob Robideau to the jury?
A No, I can't.
{2651}
Q All right.
You knew him well enough to know his name, is that right?
A Yeah.
Q All right.
Now, were there any others that lived in the tent area?
A Dino Butler,
Neelock.
Q All right.
Just take it slow for us.
Could you
describe just in a general way Dino Butler?
A Medium tall
is all.
Q You knew him
well enough to know his name, is that right?
A Yes.
Q And you know
him well enough that you would recognize him if you saw him today, is that
right?
A Yeah.
Q All right.
Is the same true with Mr. Robideau, with Bob Robideau?
A Um-hum.
Q Now, you
mentioned then another name, and what was that, who was that?
A Neelock.
Q All right,
and would you describe Neelock to us, do you know her by any other name?
A No.
Q All right.
Would you describe Neelock to the jury, please; would you tell us about
how old she was, for example?
{2652}
MR. TAIKEFF:
Your Honor, perhaps I could assist. Would Mr. Hultman be interested in
knowing if some of these people are in the courtroom?
MR. HULTMAN:
No. I have no particular reason for anybody to stand up in the audience at
this particular time.
Q (By Mr.
Hultman) You knew her well enough to recognize her, is that right?
A Yes.
Q And you
would know her well enough to recognize her today, is that right?
A Yes.
Q All right.
Who else was living in the tent area?
A Jean.
Q Jean, and
could you tell the jury anything about Jean, I mean, where she was from?
A No.
Q Or anything
at all about her?
A No.
Q All right.
Was she associated with anybody in particular?
A No.
Q For example,
any of the men or anything?
A No.
Q All right.
Do you recall any other persons that lived in the tent area, were there
any other women that you recall?
{2653}
A Lynn.
Q All right.
Lynn, do you know her by any other name or any additional name?
A No.
Q Was she --
do you relate her to anybody else in any way?
A No.
Q All right.
Do you know anything about her or where she was from or what tribe she
belonged to?
A No.
Q All right.
Were there any other women that you recall that lived in the tent area?
A No.
Q All right.
Now, were there any other men that you recall that lived in the tent area
or boys or young men?
A Joseph
Stuntz.
Q All right.
Joseph Stuntz. Did you know Joseph Stuntz enough at that time to recognize
him?
A Yeah.
Q All right.
Do you know where he was from, what tribe he belonged to?
A No.
Q All right.
Were there any other men?
A Norman
Brown.
Q Norman
Brown, do you remember anything about him, what tribe he possibly came
from?
{2654}
A No.
Q All right.
Do you remember any other young men or men who lived in the tent area?
A Norman
Charles.
Q Norman
Charles. There were two Normans then, is that right?
A Yes.
Q And did you
know what tribe or where he came from?
A No.
Q All right.
Would you know him again if you saw him, be able to recognize him?
A I don't
know.
Q All right.
Were there any other men or boys that you recognize that lived in the tent
area?
A No.
Q Had you --
about how long a time had you seen, for what period of time had you seen
these persons that you have just identified?
A How long?
Q Yes, how
long had you known them or had you seen them, do you remember the first
time that you saw them approximately?
A No.
Q Had you seen
them, had you known them very long?
A No.
Q About how
long had you known them?
{2655}
A About a
weeks two weeks.
Q All right.
Now, prior to -- where was it that you first saw them or met them, was it
on the Jumping Bull property?
A Yes.
Q All right.
Had you at any time to your knowledge before the week or two on the
Jumping Bull property, had you ever seen to your knowledge any of these
people before?
A What do you
mean?
Q Had you ever
seen them or known them before that time?
A No.
Q Now, I wish
to take you to the morning of the 26th of June of 1975, and I want to ask
you late in the morning were you in the Jumping Bull area somewhere that
morning?
A Yes.
Q And would
you tell the jury where it was that you were late in the morning at the
time some things began to happen?
A Right there
(indicating), grandma and grandpa's house.
Q All right.
What were you doing?
A I washing
dishes.
Q All right.
What, if anything, happened that came to your attention, did you have an
occasion to look out your window at any time?
A No.
Q All right.
What was it that came to your attention that morning for the first time?
{2656}
A Well, we
heard something, firecracker or something.
Q All right.
Where was it that you heard something like firecrackers?
A I was in the
house.
Q All right.
Do you recall where the sound came from in any way, what general
direction?
A No.
Q All right.
What, if anything, then did you do?
A Well, my
husband ran out. He heard the sound too.
Q Was he in
the house with you?
A Yes.
Q All right,
and what, if anything, did you do next?
A Well, he
told me to go see. The kids were playing outside, so I went outside.
Q All right,
and what did you do next?
A I looked
over and I seen them two FBI cars standing there.
Q All right,
and where was it that you saw the two FBI cars standing?
A Down below
the house.
Q All right.
Could you on the map here show the jury where it was approximately that
you saw the two FBI cars?
A (Examining)
About right here (indicating).
MR. HULTMAN:
Let the record show that she has identified a point that is between the
areas of where two objects are located and along the road or trail that is
{2657} indicated on Government's Exhibit 71.
Q (By Mr.
Hultman) Now, you indicated in response to my question just in general
that you saw, when I asked you what, if anything, did you see next, you
responded "two FBI cars", is that right?
A Yes.
Q Now, had you
seen those cars at some time earlier that morning?
A No.
Q You had not
seen those cars at any time?
A No.
Q Earlier that
morning?
A No.
Q How is that
you recognized them as FBI cars?
A Because
nobody has new cars around there.
Q All right.
Is there anything else about them that led you to the conclusion they were
FBI cars?
A Aerials.
Q Aerials?
A Yes.
Q And is that
a conclusion then you drew at that time, that they were FBI cars, is that
right, for the reasons you have stated?
A Yes.
Q Was there
any other reasons that caused you to conclude {2658} at that time that
they were FBI cars?
A Nobody has
cars like that.
Q All right.
Is that a general conclusion in the area, that new cars with aerials of
that kind are FBI cars?
A Yes.
MR. LOWE: Your
Honor, counsel is getting awfully leading. I would ask the witness to be
asked interrogatory questions. Objection.
MR. HULTMAN: I
think, your Honor, this witness, I think by her demeanor, is such that I
think it is difficult for counsel and he ought to be given a little
latitude. I don't think I have been leading. It is the first question in
any way a response to an answer she has already given, but I will withdraw
the question.
MR. LOWE: The
witness may be nervous. She is answering carefully. She is trying to
answer directly. She has not shown an inability to answer, and I will ask
that counsel not ask leading questions.
MR. HULTMAN: I
will do my best.
THE COURT:
Very well.
Q (By Mr.
Hultman) When you came out of the house, did you see or observe anything
else other than the two FBI cars?
A No.
Q Did you see
any people at any time?
A No.
{2659}
Q What, if
anything, did you do next?
A Well, after
I see them two cars down there, I ran back in and told my husband.
Q All right,
and what, if anything, did you do next?
A I grabbed my
kids and ran.
Q Now, what,
if anything, then did you see when -- if anything, when you left the
house?
A Nothing.
Q Did you see
any persons at all?
A No.
Q Did you hear
any firing?
A I don't
remember.
MR. LOWE: I
didn't hear the response if there was a response.
THE COURT: The
reporter will read the response.
(Answer was
read by the reporter.)
Q (By Mr.
Hultman) Do you recall having previously testified at a Grand Jury
proceeding under oath and having been asked similar question?
A Yes.
MR. LOWE: Your
Honor, could the witness face this way when she is not actually directing
her attention to Government's Exhibit 71? We could hear and perhaps the
jury could hear then.
Q (By Mr.
Hultman) Did you respond at that time with {2660} reference to a similar
question, I am asking you now?
A Would you
say that again?
Q Did you give
some answers at another time under oath just in response to a general
question as to whether or not you had seen any persons at this time or
heard anything, do you remember giving some answers at another time?
A In the Grand
Jury?
Q Yes.
A Yes.
Q And do you
recall what your testimony was at that time?
A Seen three
persons.
Q All right,
and who was it that you saw?
A Joseph
Stuntz.
Q All right,
and where was it that you saw Joseph Stuntz?
A By the wood
pile.
Q All right,
and would you point out to the jury here where it was that you saw Joseph
Stuntz -- you referred to a wood pile.
Would you
point out to the jury as best you can where it was that you saw Joseph
Stuntz?
A
(Indicating).
MR. HULTMAN:
All right. Let the record show that she is pointing out an area which is
between the white house and the green house and to the west of the green
house and on the edge of what has been marked on {2661} Government's
Exhibit 71 as the crest of the plateau, a line which runs in that general
area.
Q (By Mr.
Hultman) Now, what, if anything, was he doing at the time you saw him?
A He was just
laying there,
Q All right,
and did he have a weapon of any kind?
A I don't
know.
Q Do you
recall at any time in the past, under oath in response to general
questions of the kind I am asking you now, recall at that time whether or
not he had any weapon or not?
A I don't
remember.
Q You don't
remember, is that right?
A No.
Q Now, if you
did on that occasion, would your memory have been better then than it is
today?
A Yes.
Q All right.
Would you tell the jury what Mr. Stuntz was doing?
MR. LOWE: I am
sorry. I could not hear the response. If counsel will have the witness
turn around when she is not at the blackboard, we might be able to hear
this.
THE COURT: The
reporter will read the answer.
(Answer was
read by the reporter.)
Q (By Mr.
Hultman) What was Mr. Stuntz doing when you saw him, and when was it that
you saw him, where were you when you {2662} saw him?
A I was
running across the field.
Q All right.
You were running across the field, you say, is that right?
A Um-hum, yes.
Q All right,
and what was he doing at the time you saw him?
A He was just
laying there.
Q All right.
Did you see anybody else?
MR. LOWE:
Excuse me, your Honor, it was not audible.
MR. HULTMAN:
Counsel, could you come around here?
MR. LOWE: No.
Counsel, I have got a table, and I am writing on it. You are required to
ask the witness in such a way we can all hear. I don't mind the witness
turning when need be, but I would like to hear the response.
MR. HULTMAN:
Would the reporter read back the response?
(Answer was
read by the reporter.)
MR. LOWE:
Thank you.
Q (By Mr.
Hultman) Who else did you see?
A Norman
Charles.
Q And where
was Norman Charles when you saw him?
A He was with
Joe.
Q Pardon?
A Laying with
Joe.
{2663}
Q He was
laying with Joe. All right, was that at the wood pile?
A Yes.
Q And at the
point that you previously pointed out, is that right?
A Yes.
Q Who else did
you see?
A Robert, Bob
Robideau.
Q And where
was it that you saw him?
A By our
house.
Q All right.
Would you point out on Government's Exhibit 71, where is it that you saw
Bob?
A (Indicating)
Right there.
Q All right.
Now, was that a point between the green house and an object that looks
like an automobile, is that where it was?
A Yes.
Q All right.
What was he doing?
A He was
standing there.
Q And was
there anything you remember about him at that time?
MR. LOWE: If
she is finished with the chart, can she please turn around? Thank you.
Q (By Mr.
Hultman) Do you remember anything about his appearance at that time?
A He had a ski
mask on.
{2664}
Q And you had
seen him before, is that right?
A Yes.
MR. HULTMAN:
All right.
MR. LOWE:
Excuse me. Before that, I object to the question as too vague.
Q (By Mr.
Hultman) Well, it is obvious if you had seen him before that time, that
occasion, that moment, is that right?
A That
morning?
Q That moment
that you are just testifying about, you had seen him on earlier occasions,
had you not -- in your earlier testimony you said that you had known a
person by this name during the general period of a couple of weeks, is
that right?
A Oh, yes.
Q All right.
So it is somebody you had seen before, that's all I am asking -- is it?
A Yes.
Q All right.
Now, did he have any weapon?
A Yeah, he
did.
Q All right.
Would you describe it to the jury?
A I don't
know.
Q All right.
Just tell us in general terms what it looked like.
A I don't
know. I can't --
Q
(Interrupting) You know the difference, Angie, between a small handgun, a
pistol, and a gun that's shoulder fired, {2665} just in size?
A I think it s
a big gun.
{2666}
Q All right.
Would it be one that would be like this than like this (indicating)? Is
that a fair conclusion?
A Yes.
Q All right.
Now, where, describe to the jury where the ski mask was and where it was
on him at that time.
A It was on
his face.
Q All right.
It was pulled down over his face; is that correct?
A Yes.
Q Now, you
mentioned Norman Charles, and I don't know whether or not I asked you, did
he have a gun when he was with Joe?
A I don't
think so.
Q All right.
Now, what if, did you hear any firing of any kind?
A Where about?
Q I'm asking
you to tell the jury where it was, if you heard any firing.
A I can't. I
don't know where.
Q You don't
remember at this time, is that --
A Yes.
Q All right.
Do you remember at any time being asked a similar question and giving a
response concerning hearing firing in the vicinity of the trees?
A No.
Q What other
object did you see if any during the time that {2667} we're talking about?
Did you see any other automobiles?
A We seen a
red and white van.
Q All right.
And where was it, would you point out on the map where it was you saw a
red and white van.
A Right here
(indicating).
Q All right.
Is that in a general area where on the map now there is sort of a diamond
in the road and a letter "P"? Is that the general area you're pointing to?
MR. LOWE: Your
Honor, I think Mr. Hultman misspoke. It's not a diamond it's a "Y".
MR. HULTMAN:
Well, Counsel, the object drawn, the "Y" constitutes a diamond. Now, if
you want to call it a "Y" I'll be delighted to call it a "Y".
Q (By Mr.
Hultman) Did you just now point at a point which is indicated by a "Y" in
the road and thus a diamond as represented in the center and the letter
"P"? Is that where you just now pointed, right here (indicating)?
A Yes.
Q All right.
Had you seen that car before? That van, red and white van before?
A No.
Q Had you seen
it on any other day prior to the time you're now testifying to?
A No.
Q Did you know
whose car it was?
{2668}
A Used to
belong to Sam Loud Hawk.
Q And who is
"Sam Loud Hawk"?
A What do you
mean "Who is Sam Loud Hawk"?
Q Well, do you
know him by any other name?
A No.
Q Do you
recall, have you ever in response to a similar question under oath,
remember responding who this person is by another name?
A No.
Q Is it
anybody in the courtroom here?
A No.
Q Is anybody
in the courtroom here to your knowledge or from your previous testimony,
you've indicated that you knew that had that car?
A Yes.
Q Who was it?
A Sam Loud
Hawk.
Q All right.
But anybody else by any other name that you know?
A No.
MR. LOWE: Your
Honor, can we go to the sidebar, please?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
{2669}
MR. HULTMAN:
Your Honor? I'm trying to be just as fair as I can. And I will go the
Grand Jury testimony specifically --
MR. LOWE: Keep
your voice down.
MR. HULTMAN:
-- if I have to, but the Grand Jury testimony is that she specifically --
MR. LOWE: I
must object to him speaking so loudly.
MR. SIKMA: Oh
come on, John, we can hear you clear across the courtroom.
MR. HULTMAN:
She specifically said Leonard, and I've been trying in a way as fair and
as honest as possible to have her elicit her testimony without going back
and having to use the specific words in the testimony from the previous
Grand Jury.
MR. TAIKEFF: I
understand that I think in doing it or attempting to do what you just
described you may have left the impression whether there was any one in
the audience about whom she had previously testified was Sam Loud Hawk. It
left the impression in my mind, being as objective as I could under the
circumstances, and it may have been very well left in the mind of jury.
She previously testified Leonard and Sam Loud Hawk are the same person.
She has never given the testimony because in fact they are not the same
person. And all I think we want to do is make sure that you clarify that
in some way, either through the witness or making a {2670} statement to
the Court in the presence of the jury, that it is not your intention to
suggest that she ever testified previously that the defendant was known by
the name of Sam Loud Hawk.
MR. LOWE: Do
you have a page in the Grand Jury transcript that you are referring to?
MR. HULTMAN:
I'm referring to exactly page 17 of the transcript.
THE COURT: If
you're trying to impeach her on the answers that she has now given why are
you not using the transcript?
MR. HULTMAN:
Well, Your Honor, I've been trying not to get to that point unless we
absolutely had to. I think maybe now we are at that point. But I -- as
noticed. But when I come back and ask maybe a more clarifying question she
will then respond and respond --
MR. LOWE: Let
me just show, Your Honor, I think it's very significant that in the
testimony the only thing she said is down here (indicating). There's no
area in there where she says Leonard Peltier, or made an identification of
Leonard Peltier because he was not in the Grand Jury. Now, there have
already been discussions about Leonard Crow Dog and there may be other
Leonards. All I am saying is that the Grand Jury testimony does not
identify Sam Loud Hawk or the owner of the vehicle as Leonard Peltier, and
any such {2671} representation would be inaccurate.
MR. HULTMAN:
Your Honor, she then goes on to describe the person. But I think they call
him Leonard, and then she goes on and describes Leonard as curly hair and
on and on.
MR. LOWE:
Well, I'm saying it is incorrect to say and refresh her memory whether she
said Sam Loud Hawk was Leonard Peltier because she did not say that.
That's why we asked to come up here.
MR. HULTMAN:
I'll go to the transcript at this point, Your Honor.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
Q (By Mr.
Hultman) Angie, do you recall at another time under oath you being asked
this question:
"Question: You
previously, you mentioned previously red and white Chevy van. You pointed
on the map where it was marked. Do you know who owned this car, this van?"
"Answer:
Yeah."
"Question:
Pardon?"
"Answer: He
used to be a guy used to own it. His name is Sam Loud Hawk. But I think
they call him Leonard. He fixed it up and he owned it."
"Question:
Leonard?"
"Answer: Yes."
{2672}
"Question: And then could you describe Leonard for me?
Do you
remember those questions and those answers being previously given?
A Say that
again once.
MR. HULTMAN:
Would the reporter read back the, or I could read it back if it would be
easier.
THE COURT:
Reporter will read back the response.
(Previously
quoted questions and answers read back: "Question: Angie, do you recall at
another time under oath you being asked this question: "Question: You
previously, you mentioned previously a red and white Chevy van. You
pointed on the map where it was parked. Do you know who owned this car,
this van? Answer: Yeah, Question: Pardon? Answer: He used to be a guy used
to own it. His name is Sammy Loud Hawk. But I think they call him Leonard.
He fixed it up and he owned it. Question: Leonard? Answer: Yeah. Question:
And then could you describe Leonard for me?
"Do you
remember those questions and those answers being previously given?")
A Yes.
Q (By Mr.
Hultman) Who's the Leonard you are referring to?
A Leonard
Peltier.
Q All right.
Now, at the time we are talking about I want to ask you whether or not
there were any people in the white house {2673} other than the people you
have already described, that being your husband and your children. Was
there anybody else in either the green house or the white house during the
time we're talking about now?
A No.
Q Was there
anybody in this house (indicating) that's noted or been referred to as the
log cabin?
A No.
Q Were there
any women and children in this house over here or men?
A No.
Q Were there
any men, women or children in Jumping Bull Hall?
A No.
Q Were there
any men, women or children in the house or residence that's located here
and has been referred to earlier by you?
A Yes.
Q And who was
there?
A Wanda Siers
and her kids.
Q And was
there anybody else besides Wanda Siers and her children there?
A No.
Q Now, beyond
the people that you have just described, you and your husband and your
children and Wanda Siers and her children, were there any other people
that lived or stayed in {2674} any of these houses, in any of those houses
at this time as you knew that morning?
A No.
Q Now, I'm
going to direct your attention to, you indicated that you saw two FBI cars
down here (indicating). Would you describe the two FBI cars for the jury,
and would you describe them one at a time, please.
A One was
brown and white. Tan, tan and white.
And the other
one was dark green.
Q All right.
And did you see any persons in the general vicinity of the two cars you
described?
A One was in
the green car.
Q All right.
And would you describe to the jury where it was you saw the person in
relationship to the green car
A He was in a
green car.
Q All right.
And did you see any other person?
A The other
FBI.
Q And where
was he?
A He was
kneeling right beside his brown and white car.
Q All right.
And do you remember anything else about the cars themselves?
A What do you
mean?
Q Just
anything in particular, do you recall that you may have observed about the
two cars other than that they were cars?
A No.
{2675}
Q All right.
Now, would you tell the jury if you can recall what was the general
direction that either of the cars was pointed, by reference to where you
were and where they were. Can you indicate what direction either of the
cars was pointed if you recall?
A One was
pointing towards that way (indicating).
Q Could you,
here on the map, come down and show us the direction as you are now
saying.
A Well, one
was parked this way (indicating) and the other one was parked right beside
it.
Q All right.
There are two objects here right now. And let us assume for a moment that
they are two cars. Were they pointed in the general directions that the
two cars or objects that are there now at the present time?
A No.
Q Would you
show us then, would you move them as best you recall and show us how they
were pointing?
A
(Indicating).
Q All right.
Now, would you tell us as you looked, would you go back, would you tell us
which car, which color was the car that was pointed towards you or in your
general direction? Do you recall what that car looked like from your
memory?
A That brown
and white one.
Q The brown
and white one, all right.
And so it was
the other car then that was pointed, {2676} the green car in the other
direction; is that right?
A Yes.
Q All right.
Now, what if anything did you do next?
A What do you
mean?
Q Well, I
believe we were in the area and you said that you were leaving the general
area, and as you left you saw a car, a red and white van parked here,
right?
A Yes.
Q Now, did you
see or view anything in that area?
A No.
Q Did you hear
any firing of any kind going on anywhere?
A No.
Q From the
time that you were outside of your house do you recall hearing or seeing
any firing of any kind?
A When I came
out of the house I seen one FBI He was kneeling. I heard one shot.
Q All right.
And where did that shot come from if you know?
A The FBI.
Q Is this the
only shot of any kind that you heard?
A I heard one
and I heard some more, but I don't know how many.
Q All right.
You heard one shot from the FBI. Do you recall how it is you know that the
one shot came from where the FBI was?
A Because it
sounded from there.
{2677}
Q All right.
It sounded from there.
Did you see
somebody at that very time?
A I seen the
FBI kneeling by his car
Q And by which
car was he kneeling, if you recall?
A By the brown
and white.
Q The brown
and white car; is that right?
A (No
response.)
Q And where
with relationship to the brown and white car was he kneeling?
{2678}
A About on the
side.
Q And with
relationship to the side, which side? Could you remember which side it
was?
A The left
side.
Q The left
side.
Would that be
the left side of the car itself, is that what you mean by the left side?
A On this side
(indicating).
Q Would you
point out on Government's Exhibit 71 which side. You have a car there.
Would you point out which side on the map so we all understand.
A Over in here
(indicating).
MR. HULTMAN:
Let the record show --
Q (by Mr.
Hultman) Do you remember any other firing? You say you heard some other
shots. Do you recall where they came from?
A I don't
remember.
Q Pardon?
A I don't
remember.
Q Do you
remember anyone else doing any firing during that time?
A No. Did you
at this time or during this period of time see any other persons other
than the ones that you have testified to up until now? Do you recall
seeing any other person?
{2679}
A No.
Q Do you
remember seeing any persons leave the area during the time that we're now
talking about?
A No.
Q Do you
remember seeing any other cars in the general area of Jumping Bull's other
than the ones we've talked about up to this particular time?
A No.
Q Were there
any junked cars parked anywhere in the area?
A Yeah.
Q And where
were the junked cars parked?
A Below our
house. O And would you take the pointer and point out to the jury where
those junked cars below your house were located.
A Right here
(indicating).
MR. HULTMAN:
Let the record show she has indicated the spot where there is a road and
previously been identified as junked cars.
Q (By Mr.
Hultman) Do you remember anything about the junked cars?
A No.
Q You had seen
them before, had you not?
A Yes.
Q And you were
generally familiar with them, is that right?
A Yes.
{2680}
Q I'm going to
show you what has been marked by the defendant as Defendant's Exhibit No.
93 and I want you to look at the defendant's exhibit, first to look at the
vehicle that's represented there and also look at the area, the ground,
the scene, the view that is in the background of this picture.
A It's right
below the house.
Q You
recognize it as being right below your house, is that right?
A Uh-huh.
Q Have you
seen that car before?
A It was
standing there for a long time.
Q It was
standing there for a long time, is that right?
A Just a
junked car.
Q One of the
junked cars?
A Uh-huh.
Q Do you
remember about when it was that that car was put into the area of the
junked cars that you're now testifying to?
A I don't
know.
Q It was
before this time, was it not?
A It was
parked there for a long time.
Q It had been
there for a long time prior to this, is that right?
A Yes.
Q Do you know
whose car that was before it was parked there {2681} and had been there a
long time?
A No.
Q I want you
to think real hard and tell the jury whether or not, had you ever seen
that car anyplace other than as one of the junked cars there?
A No.
Q Was the
scene that is portrayed in Defendant's Exhibit No. 93 the place in which
you last saw the vehicle that is represented there, is that the last place
that you saw it?
A Yes.
Q And it had
been parked there for an extended period of time prior to the day we're
talking about, is that right?
A Yes.
Q There is no
doubt in your mind about that at all, is where, Angie?
A No.
Q Now in
looking at Defendant's Exhibit 93, can you point out to the jury anything
that's in the background of that picture that you recognize?
A Can't see
anything.
Q Could you on
the picture point out where it is that the green house is approximately
located?
A Yeah. Right
here (indicating).
Q Would you
show the jury where it is approximately that the green house was located.
{2682}
A
(Indicating.)
MR. HULTMAN:
Let the record show that she is pointing to the point on the picture where
the skyline and the ground come together and there is a fairly dark green
area, is there not?
THE WITNESS:
Uh-huh.
Q (By Mr.
Hultman) And that's the point you were pointing at, is that right?
A Yes.
Q There's also
some other junked cars in this picture, isn't there? You can see one on
each side of this one, can't you?
A Uh-huh.
Q And that's
the general scene, as you recall it, that you pointed out as being the
area of the junked cars, is that right?
A Yes.
MR. HULTMAN:
Your Honor, I don't know, is the Court going to take a brief recess at all
this morning?
THE COURT: No.
MR. HULTMAN:
Might I just take a moment, Your Honor. I'm trying to find a spot in the
transcript and the pages are not numbered, that's why I'm having
difficulty.
Q (By Mr.
Hultman) I want to take you back where we were discussing the man that had
the mask on. Do you remember we were talking, I asked you some questions
about whether or not {2683} you saw any other person and we talked a
little bit about that person?
A Yes.
Q Who was
that?
A Bob.
Q Now I'm
going to ask you whether or not under oath at a previous time you remember
being asked this question --
MR. LOWE:
Counsel, give a page number.
MR. HULTMAN:
Page 12 of the transcript. I'm sorry, Counsel. Page 12.
Q (By Mr.
Hultman) Your response was, "He had those stocking cap on with the little
holes," and the question is, "Ski mask?" Answer: "A kind of, you know one
of those on." Question: "It covers his face?" Answer: "Yes." Then this
question. Do you remember this question being asked of you: "Was he firing
at the FBI agents?" And then the answer: "Yes." Do you remember being
asked that question and your answer?
A No. I don't
remember saying that.
MR. LOWE: Your
Honor, I'm sorry.
MR. HULTMAN:
She doesn't remember having said it.
Q (By Mr.
Hultman) At the time you were asked these questions and you answered these
questions, you answered them truthfully and honestly at that time, did you
not?
A But I don't,
I don't, I never said that.
Q Now you
understand, Angie, that you've said that today {2684} earlier you didn't
recall, is that right?
A Yes.
Q Now all I'm
trying to do is to go back and ask you whether or not you recall being
asked this question and you giving an answer of that kind and you don't
recall, that's what you have now said?
A Yes.
Q Is that
right?
A Uh-huh.
Q And that's
very honest and truthful. You're telling me the truth and the jury, are
you not?
A Yes.
Q And it's
true that you did your very best under oath previously to tell the truth,
did you not?
A Yes. But I
don't remember saying that.
Q And I'm not
trying to say you did or you didn't.
Now at the
time that you gave the answers at that time, that was a time which was in
November of 1975 and the event itself was on the 26th of June, isn't that
right? During the year 1975.
A Yes.
Q And would it
be fair for me to conclude that the memory you had at that time in the
year 1975 and what you may have responded in terms of any question, you
would have had a better memory then than you have here at this time, is
that a fair {2685} conclusion for me to draw?
A Yeah.
Q So that
you're not saying that you didn't say this, you're saying you don't
remember, is that what you're telling us?
A No. I never
said that.
Q I'll ask you
another question on the same page later. Question: "You are sure on the
gentleman wearing the ski mask? He was firing at the agents?" Do you
remember a question of that kind and your answer at the top of page 13 of
the same transcript: "Yes." Do you remember that second question being
asked and your answer at that time?
A I don't
remember.
Q Then you
were asked a further question, question: "Now was the man who was standing
with the ski mask and firing at the agents, do you know his name?" And
your answer: "I think they call him Bob, I think."
A Yeah.
Q Now the man
with the ski mask was Bob, there isn't any question in your mind about
that, is there?
A No.
Q Does all of
this in any way refresh your recollection as to whether or not anybody
else was firing at this particular time on that day?
A No.
Q Now you
testified earlier that some people lived in the {2686} white house but
later there was no one there, isn't that right? You testified that, I
believe it's the grandparents, the Jumping Bulls that lived in the white
house during this period of time?
A Yes.
Q You also
testified they weren't here on the 26th when these events took place, is
that right?
A No.
Q Do you know
where they were?
A They went to
town.
Q And that's
why you know they weren't there during this period, is that right?
A Yes.
Q Now was
there anybody else who may have lived in the area anywhere that was gone
that you knew were gone on the 26th?
A No.
Q Now we've
covered some automobiles, or the word I've used, "an automobile." Were
there any other vehicles or trucks or cars or pickups or vans, any other
vehicles of any kind that you remember that morning during the time that
I've been asking you questions about other than the ones that you've
testified and mentioned to the jury?
A No. I never
seen no cars.
Q I just want
to make sure now so let me go over them with {2687} you. You said you saw
two agents' cars down here, right?
A Yes.
Q And you
indicated that you saw a red and white van --
A Yes.
Q --at this
point, is that right?
A Yes.
Q And that was
the red and white van you testified to here today?
A Yes.
Q That you had
seen or knew was Leonard Peltier, isn't that right?
A Yes.
Q Now you said
there was some abandoned junked cars down here.
A Yes.
Q Is that
right? Including one that you've identified here.
Do you
remember any other vehicles of any kind that were in the area? Were there
any up in this area at all that you recall at all?
A The station
wagon and the green car.
Q All right.
You recall a
station wagon and a green car. Tell the jury about a station wagon and a
green car.
A It was just
an old junked station wagon.
Q An old
junked station wagon. Had it been there for some time?
{2688}
A Yeah. For a
long time.
Q Would you
point out to the jury where the old junked station wagon was at that time
that had been there for quite sometime.
A
(Indicating.)
Q All right.
And then you
mentioned a green car, and where was the green car?
A Right here
(indicating).
MR. HULTMAN:
Let the record show that the junked car she referred to is generally to
the south of the green house and a second object, a car which is shown on
Government's Exhibit 71 which is to the east and south of the green house.
Q (By Mr.
Hultman) Now tell us about that particular car.
A It's just an
old junked car, too.
Q That's an
old junked car, too. Had it been sitting there for quite some time, too?
A Yes.
Q Now with
reference to those cars, either one of them or both of them, I want to ask
you, do you recall anyone in the vicinity of those cars doing any firing?
A No.
{2689}
Q Do you
remember any more firing of any kind other than what you have testified to
the jury?
A No.
Q Now, where
did you go after you left the green house, white house area, would you
point out on Government's Exhibit 71 where it was that you went, and could
you use the pointer again and maybe start on Government's Exhibit --
first, the house that you were in, the general area that you were in, and
then trace the direction, the general direction that you went?
A Right here
(indicating).
Q Could you go
down and maybe it would be a little easier?
A Me and my
husband and kids ran across the field and went down to the little road
that goes to the highway.
Q And then you
went to the highway, is that right?
A Yes.
Q All right,
fine, thank you.
Now, about how
long a period of time was it from the time you first heard what you have
testified to here as sounding like firecrackers, from that time until you
left, about how long a period of time were you there that these events
that you have testified to took place?
A About five
or ten minutes.
Q All right --
MR. TAIKEFF:
(Interrupting) Could I have that answer, please?
{2690}
MR. HULTMAN:
Five or ten minutes.
Q (By Mr.
Hultman) And where -- did you see anybody then when you got to Highway 18?
A Yeah. There
was a lot of cop cars going by.
Q All right.
Did you talk to any of those people at all?
A No.
Q Was there
any reason why you didn't talk to any of them on that day?
A Because they
didn't stop.
Q Just didn't
stop, all right.
Now, at the
time you left, Angie, were there any other people back here (indicating),
as far as you know, that you had seen other than the persons that you have
testified to, were there any other persons?
A No.
MR. LOWE: I
object to the form of the question, your Honor, as to the witness'
previous testimony. The question is leading. I think a simple
interrogatory question should be asked.
MR. HULTMAN: I
asked a general question, if there were any other people she saw.
THE COURT: I
am going to overrule the objection. There is a certain amount of leading
that will be allowed on this witness.
Q (By Mr.
Hultman) Were there any women and children in the {2691} area?
A No.
Q That you
know of?
A No.
MR. LOWE: Your
Honor, may we identify the area either by reference to something or by
reference to a previous question or something? There has already been
testimony that at least Angie and -- Mrs. Long Visitor and her children
were in the white house and some in the Siers' house.
THE COURT: You
may clarify your question.
MR. HULTMAN:
That's the reason for my question.
Q (By Mr.
Hultman) Did you see -- you said earlier that Wanda Siers and her children
were in the house in which they live in, is that right?
A Yes.
Q And did you
see them leave?
A I don't
know. I didn't even look over there.
Q You didn't
see anybody leave at the same time you did, or approximately the same
time?
A No, I didn't
see anybody.
Q Do you
remember ever having been asked that question on any previous occasion and
--
A
(Interrupting) No.
Q When was it
that you saw Wanda Siers and her children {2692} that day, where was it
that you saw them and when?
A They were
home.
Q That's what
I am asking you. How do you know they were home?
A Because the
door was open.
Q Did you see
them at any time during the time that we are talking about here?
A No.
Q Did you see
them that morning at any time?
A No.
Q So you don't
know whether they were there or not that morning?
A I don't
know. When they leave, they close the door. When they are home, their door
is open.
Q Angie, I am
just asking you whether or not that morning you saw anything other than
their door being opened or closed.
A No.
Q All right.
When you left in a hurry, as you left that morning, were you concerned
about whether your door was open or closed?
A We closed it
before we left.
MR. HULTMAN: I
see.
I have no
further questions, your Honor.
MR. LOWE: May
we approach the bench, your Honor?
THE COURT: You
may.
{2693}
(Whereupon,
the following proceedings were had at the bench:)
MR. LOWE: As I
think your Honor realizes from previous proceedings that we have been
through, that there have been a lot of interactions involving this witness
in this court and otherwise. She is obviously quite upset.
The issues of
the Grand Jury testimony have come up here today, and how to deal with it
will create some very significant tactical questions for the defense; and
frankly, as to the types of questions that we would ask in this emotional
state, I think it would be very difficult to get meaningful responses.
I would
suggest and would urgently request your Honor to make an exception today
and break away for lunch so that she can regain her composure and also to
enable us some consultation so we may be able to tailor our cross
examination -- to avoid upsetting her further -- perhaps on the basis of
what her direct testimony has been.
She is sitting
there crying and sobbing, and that is no mental state for us to have such
an important witness on cross examination. It is shortly after noon
already; and while this would be earlier than your Honor's practice, I
think under these circumstances, with such a critical witness, that it
would warrant it; and we would {2694} respectfully ask that we break for
lunch now and let us start cross examination after lunch.
MR. HULTMAN:
Your Honor, I strongly resist. Every time during this trial requests have
been granted. They have been accommodated. I think it is only fair that
counsel proceed and will not delay this trial. She is in a state to answer
and respond to the questions. She has on direct examination displayed the
same emotion.
I submit that
we will get a more fair and more honest response from this witness in the
courtroom now than we would at a time, at a later time when this witness
again, your Honor, is kept, as she has been from the very beginning as the
Court knows the record on this without counsel's stating it, placed in a
posture where she has to face the very people that are here in this room.
That's what is going to happen again the minute she walks off that witness
stand, and it is for these reasons that I strongly resist that we take any
recess other than at the normal time, and that counsel proceed with his
questioning.
MR. LOWE: May
I have just a moment to consult?
(Counsel
confer.)
MR. LOWE: Your
Honor, I understand the concern that Mr. Hultman expresses, and I take no
exception with him holding that concern. That is not in any way
contradictory of the concern that I express, and in order to meet his
{2695} concern we would ask that this witness be simply designated a
material witness, if you want to, or whatever the Court wants to do, and
have her have the lunch hour under the supervision of the Marshal's
Service, if necessary, but to give her the time to regain her composure.
She is obviously upset. She is sobbing. Let her have lunch in the custody
of the Marshals.
However, if
you want to do it, the Court could rule that nobody shall have any contact
with her over the lunch hour, not to have conferences with her or allow
anybody to interfere. I think it is quite reasonable rather than to have
her sitting here sobbing hysterically --
THE COURT:
(Interrupting) The record may show that she is not sobbing hysterically.
You are exaggerating. She is emotionally upset obviously, but not to the
extent you have described.
MR. LOWE: She
is sitting over there crying.
THE COURT: You
may proceed with your examination, and if it appears that she is in no
condition to answer, then I will consider your request.
MR. LOWE:
Then, your Honor, we ask for a brief moment to be able to confer because
there are some very significant tactical questions we have to deal with
prior to going to cross examination, as to which areas to go, particularly
of this Grand Jury testimony.
{2696}
THE COURT: You
have had this Grand Jury testimony -- I do not know how long?
MR. HULTMAN:
An extended time.
MR. LOWE: The
point is: It was used on direct, and we must decide how we should respond
to it.
THE COURT: You
are capable of responding. You may proceed.
MR. LOWE: All
right, sir.
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
CROSS
EXAMINATION
By MR. LOWE:
Q Mrs. Long
Visitor, can you hear me from there?
A Yes, sir.
Q I am going
to ask you if you could speak up so that we can all hear what your answers
are. Take whatever time you need, but when you do make your answer, if you
could speak loud enough so we can all hear, it will help to get your
testimony before the jury.
I believe you
indicated that you lived in the green house which you identified on
Government's Exhibit 71, and am I correct in saying that you have lived
there for seven years?
A Yes.
Q Was it
actually in that house or just in the cluster of houses that you lived for
seven years?
{2697}
A Well, I
stayed there seven years. I haven't lived in that house for seven years.
MR. LOWE: I am
sorry, your Honor. Could you speak a little louder? Try and talk into the
microphone. It will magnify your voice a little, and I can hear.
Q (By Mr.
Lowe) Would you tell me again whether the seven years was all in that
house or just in the Jumping Bull area?
A Just in the
Jumping Bull area.
Q Jumping Bull
area, and during the seven years that you lived there, were there times
when you observed FBI Agents on the Reservation?
A No.
Q Was that the
first time that you ever saw what you believed to be FBI Agents on the
Reservation?
A Yes.
Q Are you
familiar with the BIA Police who are on the Reservation?
A Yes.
Q If I use the
word or the term "goons", do you know what I mean, or do you have an
understanding in your mind what the word, "goons", refers to?
A Say that
again.
Q If I talk
about goons on the reservation, do you know what I am talking about?
A Yes.
{2698}
Q Did the
goons -- did you see goons from time to time or people who were pointed
out to be goons or people who you believed to be goons?
A Say that
again.
Q All right.
Do you know any people on the Reservation that you believe are goons?
A Yes.
Q Do some of
the goons have new cars?
A Yeah.
Q I am sorry?
A Yes.
Q Do some of
the goons who have new cars have aerials on their cars?
A Yes.
MR. HULTMAN:
Your Honor, I would object at this time. First of all, it is beyond direct
examination, but I am objecting not really primarily for that reason, but
for the reasons that there has been no foundation showing on the basis for
this question as to specifically in time and place what new cars it is,
where and who, you know, who is it that is this "goon", so I am objecting
for that reason, indefinite foundation of any kind.
MR. LOWE: Your
Honor, this witness has testified on questions from the Government, that
she sighted these cars as FBI agents. They had new cars and had aerials.
{2699} I think it is proper for me to ask if there were other cars that
she saw that had aerials, many new cars, that didn't belong to FBI Agents.
That's perfectly proper cross examination.
THE COURT: You
may continue.
MR. LOWE: May
the reporter read back the last question and answer? I didn't hear the
answer. I think that would be the simplest way to deal with it.
(Question and
answer were read by the reporter.)
Q (By Mr.
Lowe) Now, you answered Mr. Hultman, I believe he asked you a question
about the time of the shooting and who were in different houses around the
Jumping Bull Area; and I would like to ask you, first of all, if you knew
a person named Wilford Draper?
A No.
Q Did you know
anybody named "Wish"?
A Yes.
Q Was Wish
living in the Jumping Bull area?
A Yes.
Q I am sorry.
A Yes.
Q Do you know
where he was living?
A Down at Tent
City.
Q Isn't it
true, Mrs. Long Visitor, that from time to time people stay in different
houses in the Jumping Bull area who {2700} were among the different people
you have talked about here this morning?
A What do you
mean by that?
Q Maybe I will
have to be a little more direct.
A Say it
again.
MR. LOWE: Can
I have a moment, your Honor?
THE COURT:
Very well.
(Counsel
confer.)
Q (By Mr.
Lowe) Isn't it true that some of the people who lived or who you have
described as living in Tent City actually stayed in one or more of the
houses up near where you lived from time to time?
A No.
{2701}
Q Now, you
said that Leonard Peltier lived in the tent area?
A Yes.
Q And I'll ask
you whether Leonard Peltier ever lived in the log house or stayed in the
log house, and I don't mean lived there necessarily, but stayed overnight
in the log house?
A Yes.
Q Pardon?
A Yes.
Q I'm sorry, I
didn't hear it.
A Yes.
Q Yes. And in
fact he stayed there on more than one night, didn't he?
A Yes.
Q Do you know
who Jean Day is?
A Yes.
Q Will you
tell the jury who Jean Day is.
A Jean Day is
Leonard's girl friend.
MR. LOWE: May
Mr. Taikeff approach the witness with a photograph, Your Honor?
THE COURT: He
may.
MR. TAIKEFF:
158.
Q (By Mr.
Lowe) Mrs. Long Visitor, in front of you we have just put a piece of paper
that has a copy of a photograph, and {2702} it's identified as Defendant's
Exhibit 158. And I will ask you it that is a picture of anybody you know?
MR. HULTMAN:
Could I take a look at it, Counsel?
MR. TAIKEFF:
I'll show it.
A No.
MR. HULTMAN:
She's responded.
MR. LOWE: I'm
going to ask additional questions. If you want to see it you'd better look
at it now because I'm going to ask her additional questions.
(Mr. Hultman
viewing Defendant's Exhibit 158.)
Q (By Mr.
Lowe) You indicated that that is not a picture of anyone you know. In
order to be specific is that a picture of Jean Day?
A No.
Q Do you know
who Myrtle Poor Bear is?
MR. HULTMAN:
Well, now if it please Your Honor, I'm going to object. Clearly this
witness has asked and answered this question emphatically. Now, counsel is
trying to bring particular names into the record after it's been clearly
established, and I say it's improper.
She has
answered to the very best of her ability and responded to a specific
picture and to a specific question. And I object now, it being repetitious
THE COURT:
Objection is sustained.
The witness
has testified that it's not a picture of {2703} anyone she knows.
MR. LOWE: I
think it's important, Your Honor, to establish -- I think she answered
before there was an objection that it was not a picture of Jean Day, and
that's the only other question I'm going to ask about it.
THE COURT: She
also stated in response to your question that that is not a picture of
anyone she knows.
Q (By Mr.
Lowe) Do you know a person named Myrtle Poor Bear
A No.
Q To your
knowledge has anybody named Myrtle Poor Bear ever been on the Jumping Bull
Reservation, excuse me, the Jumping Bull area during the seven years you
lived there?
A No.
Q You talked
about a person who had a ski mask on, I believe who you observed?
A Yes.
Q And I
believe in response to Mr. Hultman's questions he asked, you said that he
had a long weapon, or a rifle instead of a short weapon or a handgun; is
that correct?
A Yes.
Q I show you
what has been marked as Government Exhibit 34-AA and I ask you if this in
any way resembles the gun that you saw this person using?
A No.
Q Mr. Hultman
read to you certain portions of a transcript {2704} with regard to this
person that you saw wearing a ski mask. He only read certain portions of
it and I want to read additional portions to you and see if you also
stated this information at that time.
"Question: --
MR. LOWE: And,
Mr. Hultman, I'm on page 13 at the top if you'd like to follow. I'll try
and identify pages and line numbers for you. Line 2.
"Question:
Now, was the man who was standing with the ski mask and firing at the
agents, do you know his name?"
"Answer: I
think they call him Bob I think."
"Question:
Bob?"
"Answer:
Yeah."
"Question: Do
you know his last name?"
"Answer: No."
Q (By Mr.
Lowe) Now, do you remember whether on the date you were in the Grand Jury
you knew his last name, or was that correct that you did not know at that
time?
A I didn't
know his last name.
Q Have you
found out since that time that a person named Bob Robideau was arrested
and involved in this case in some way?
A Yes.
Q Is that
where you found the name Robideau and is that the source of your saying
that the last name of that person was Bob Robideau?
{2705}
A Yes.
Q Now, on page
14, line 15.
"Question: Had
you seen this Bob with the ski mask before?"
"Answer: No, I
didn't see him. I don t know how he looks. I know he is kind of slim and
he had a vest on."
"Question: He
had a vest and a ski mask?"
"Answer: Yes."
"Question:
What else can you tell me about his physical description, what he looked
like?"
"Answer: He
had long hair."
"Question:
Long hair?"
"Answer: Yeah.
That's all I can say.
"Question:
About how tall?"
"Answer: Oh,
about 5-5, 5-6 I would say. I don't know how tall that is."
"Question: If
I can help you on height I will stand up. I am 5-91/2. Does that help you
to remember the height of this Bob with the ski mask?"
"Answer: I
think about that tall."
"Question: As
tall as me?"
"Answer: Yes."
"Question:
Taller than 5-6 then?"
"Answer: Yeah,
I would say."
"Question:
What color was the ski mask?"
{2706}
"Answer:
Black, blue, dark blue."
"Question:
Dark blue?"
"Answer: Yeah.
I will say that kind of dark."
"Question:
A solid
color?"
"Answer:
Yeah."
"Question:
What color was the vest?"
"Answer:
Brown."
Q (By Mr.
Lowe) Do you recall being asked those questions and give those answers, or
does that help to refresh your recollection?
A Yes.
Q I'm sorry?
A Yeah.
Q You are
saying "yes"?
A Yes.
MR. LOWE: Now,
on page 23, Mr. Hultman, I'm going to ask the next question.
Referring to
line 6.
"Question: I
don't believe I asked you to give a weight for Bob, the individual wearing
the ski mask. Could you give a weight for him?"
"Answer:
About, anyway he is a kind of light, 120."
"Question: Do
you know his approximate age?"
"Answer: No, I
don't. About, he is, I think he is around 20, 21 I will say."
{2707}
"Question:
What hair color?"
"Answer: Light
brown I will say."
Q (By Mr.
Lowe) Does that refresh your recollection, or do you remember giving those
questions and answers at that time?
A Yes.
Q All right.
Now, let me ask you something about the Grand Jury testimony. When you
gave that testimony where were you located? What town, if you will tell
us.
A Rapid City.
Q Rapid City?
A Um-hum.
Q And in what
building were you in?
A Federal
building.
Q And do you
remember if there's a particular kind of room that, was it a courtroom,
small office, or what kind of a room was it?
A Grand Jury
room.
Q And who was
in the room while you were being questioned? I don't mean by name
necessarily, but that, just types of people. If you know the names, give
the names.
A There were a
lot of people there.
Q First of all
were there grand jurors in there?
A Yes.
Q Do you
remember how many, about just an estimate? Was it {2708} just -- give a
rough estimate of how many there were of grand jurors.
A Probably
nineteen.
Q Pardon?
A About
nineteen.
Q Nine to ten,
is that what you are saying?
A Nineteen.
Q Nineteen.
Thank you.
Was there a
court reporter?
A Yes.
Q How about
United States Attorneys or Assistant United States Attorneys or other
Government attorneys? Were there any of them in the room?
A I can't
remember who was all there.
Q I ask you if
you can remember anybody in particular that you see in the courtroom here
who was in the grand jury room with you?
A That man
there (indicating). He's the --
Q Which one
are you referring to? What color suit does he have on?
MR. HULTMAN:
Let the record show that the transcript, it shows counsel Mr. Sikma. If
you just would have read his name you would have had the response.
MR. LOWE: I'm
trying to be fair and not lead the witness in suggesting answers to --
{2709}
MR. HULTMAN:
We would stipulate that that is the name that does appear in the
transcript along with other counsel.
MR. LOWE: Will
you stipulate that Mr. Sikma and Mr. Cutler who were Assistant United
States Attorneys who were present and interrogating Mrs. Long Visitor in
front of the grand jury?
MR. HULTMAN:
One or the other were asking questions, that's correct.
MR. LOWE: May
I ask the witness whether Mr. Clayton was also present?
MR. HULTMAN:
That I do not know. I haven't, I didn't see his name in the transcript.
You read it.
MR. LOWE: Mr.
Sikma can probably solve it for us and tell us.
MR. SIKMA:
Your Honor, Mr. Clayton was not there. Mr. Cutler and myself were in the
grand jury room.
MR. LOWE:
Thank you.
MR. HULTMAN:
As stated in the transcript which you have in front of you.
Q (By Mr.
Lowe) Mrs. Long Visitor, were you permitted to have an attorney in the
room with you while you were being questioned?
MR. HULTMAN:
Now, if it please the Court I object and I request to approach the bench.
{2710}
THE COURT: You
may approach the bench.
(Whereupon,
the following proceedings were had at the bench:)
MR. HULTMAN:
Your Honor, I think it's wholly improper for the question first of all to
be asked. He's now prejudiced the jury to something that now is within the
jury's mind that there's something improper that took place as far as
those proceedings.
This counsel
knows one, that there's no counsel present in the grand jury room. Clear
prejudice to this jury by making a statement that he made as a matter of
law. Secondly, he also knows that this particular witness was a witness
who refused to testify in that grand jury. That she had counsel all
through the proceedings that took place. Mr. Tilsen was there, all kinds
of proceedings took place. She had counsel available to do anything any
time that she needed, and I object strenuously on the record, Your Honor,
that this conduct and this question was totally improper. And I'd like the
jury to be so admonished.
MR. LOWE: I
have no objection to either the Court or Mr. Hultman or myself, I'll bring
it out, bring out the facts of whatever counsel might have been available
outside of the courtroom of the grand jury room. It's entirely proper in
showing the pressure on this witness and to cast doubt on credibility of
what she may have said there. Her state of {2711} mind, whether she was
being, whether she was in a state of terror or whether she was -- what the
state was to whether she had counsel present. There's nothing improper,
and I don't suggest anything improper by the question.
I don't mind
the Court instructing the Grand Jury that that's a normal procedure. I'm
only seeking properly to show who was present and to show what assistance
if any she had, and what state of mind she had. Now, I'm not trying to
cast any questions about it being improper, and I don't think that can be
derived from my question,
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
THE COURT:
Counsel have indicated that when this witness appeared before the grand
jury she was advised by an attorney outside of the presence of the grand
jury and was represented by an attorney. Jury is advised that under the
procedures according to law a witness before a grand jury is not entitled
to an attorney in the grand jury proceedings itself.
MR. LOWE:
Thank you.
THE COURT: The
court is in recess until 1:30.
(Recess
taken.)
{2712}
AFTERNOON
SESSION
April 1, 1977
Whereupon, the
following proceedings were had and entered of record on Friday afternoon,
April 1, 1977, at 1:30 o'clock, P.M., the defendant being present in
person:
THE COURT: The
jury may be brought in.
You may
proceed.
You're short a
witness?
MR. LOWE: We
are short a witness or have a short witness.
THE COURT:
Counsel approach the bench.
(Whereupon,
the following proceedings were had at the bench:)
THE COURT: I'm
informed the witness is still having lunch at the Soup 'n Such.
MR. HULTMAN: I
can't verify anything, Your Honor, have no knowledge.
MR. TAIKEFF:
Neither do we. We stayed in our office throughout the lunch period.
MR. CROOKS: We
did see her over there but she was there when we left.
MR. LOWE: Did
anybody think to tell the witness what time to be back?
MR. CROOKS:
I'm not sure.
MR. TAIKEFF:
She may have heard the Court say "in {2713} recess. I don't think she
comprehends everything being said to her.
MR. CROOKS:
Here she is now.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
CROSS-EXAMINATION CONTINUED
BY MR. LOWE:
Q Mrs. Long
Visitor, I wonder if you would try to keep as close to the microphone as
possible to make it easier for all of us to hear, then you would not have
to strain your voice.
Are you a
little bit nervous on the witness stand today, Mrs. Long Visitor?
A Yes.
Q We'll try
and ask the questions so that you can understand them the first time. If
you don't understand, just ask and I'll speak slower or I'll state the
question again.
You stated
that on June 26 on the day that the shooting took place you were in your
grandparents' house which is called the white house, is that correct?
A Yes.
MR. LOWE: May
I approach the witness, Your Honor?
THE COURT: You
may.
MR. LOWE:
Excuse me, Your Honor.
Q (By Mr.
Lowe) I show you a transparency marked Defendant's Exhibit 161. This is
just a sketch map and I will tell you that {2714} it is a sketch map which
is generally the same as Defendant's Exhibit, excuse me, 71 which is
behind you here except that it's a picture of a smaller copy of that and
I'll ask if you will first of all just look at it and see if you recognize
that just as you recognize the map behind it. Take a minute or two and
look at it.
A All right.
Q Okay?
A Uh-huh.
Q There is a
place here just the same as it's marked up here where it says,
"residences." I'll ask you if you can identify in your own mind and say
whether the building that I'm pointing to right now, let me just put a
circle in purple around this building, if that building is not the
building here which is marked as the "white house"?
A It is.
Q And is that
the building you were in when you and your husband took your children and
left the area?
A Yes.
Q Now what I'd
like to ask you, a little bit more orientation, this area up in here, can
you identify and see is the same area marked up in the upper right-hand
portion of Government Exhibit 71 as the tent area?
A Yes.
Q And you
recognize the various roads that are shown on this {2715} exhibit as they
are marked on here also, do you?
A Yes.
Q And this
little thin line here which reads, "crest of plateau," the same thin line
is marked on that map, isn't it, or appears to be?
A Yes.
Q Will you
take this purple ink pen, starting at the purple circle where you say you
began and just draw as best you can recall the route that you and your
husband and your three children used when you left the area that day. You
might want to take a moment and study it, then when you've decided go
ahead and just mark it in purple.
A
(Indicating.)
Q All right.
And at that
point you started running out of diagram.
You've drawn,
now is that an accurate, as accurate as you can recall the general route
that you and your husband and your children took when you left the area on
June 26th?
A Yes.
Q Thank you.
MR. LOWE: Your
Honor, I would offer this as Defense Exhibit 161 in evidence.
MR. HULTMAN:
The Government has no objection.
THE COURT: 161
is received.
{2716}
Q (By Mr.
Lowe) So the jury can see, the purple line is the line you marked on
there, isn't that right?
A Yes.
MR. LOWE: For
the information of the Court and the jury, these pens that we are using
are permanent and they are not water soluble or anything so this is a
permanent mark on this exhibit in case anyone wondered about different
exhibits we may have.
Q (By Mr.
Lowe) Now when you left the area on that day, were you frightened?
A Yes.
Q Did you and
your husband and your children run?
A Yes.
Q Did you run
the whole way out of the area that you have marked?
A Yes.
Q Did you see
anybody else while you were running away?
A No.
Q Did you see
Mike Anderson while you were running away?
A No.
Q Do you know
who Mike Anderson is?
A Yes.
Q After you
ran away on June 26th, what was the first time that anybody contacted you
from the government, FBI agent or BIA police officer or anybody like that
to ask you questions {2717} about what may have taken place on the day of
the incident?
A The U.S.
Marshal I think.
Q The U.S.
marshal?
A Yes. Uh-huh.
Q How long; in
days was that after you left your house on that shoot-out day?
A About two
days after.
Q And you say
the U.S. marshal contacted you, or was anybody else with him or did
anybody else contact you?
A There was
another guy with him. I don't know who he is.
Q Did anyone
identify themselves as FBI agents that were in that group?
A No.
Q Did you talk
to anybody about the events that day or did they simply tell you something
or give you something?
A No.
Q When was the
first time that you ever talked to an FBI agent about that particular day?
A Two days
after the shooting.
Q Two days
after the shooting?
A (Witness
nods affirmatively.)
Q Where did
you talk with them?
A We was going
back to our place and they stopped us.
Q I'm sorry. I
didn't hear.
A We were
going back to our place and they stopped us.
{2718}
Q When you say
you were going back to your place, are you referring to the house, the
green house that you have talked about earlier?
A Yes.
Q And was it
in the general area of the houses that they stopped you?
A No.
Q Where was
it?
A By Wanda
Sears' house. The road.
Q All right.
And do you
know the name of the agent who talked with you?
A Stull or
something like that.
Q Stull?
A Yeah.
Q How long did
that conversation take place? How long did he talk with you or you talk
with him?
A About 20
minutes.
Q When was the
next time that anybody from the FBI talked with you about that day? I
don't mean in exact date. If you can say in rough terms approximately.
A The same two
FBIs came to the house again.
Q About how
much later?
A About a week
later.
Q You said two
weeks?
{2719}
A A week.
Q Week later.
And on that
time how long did you meet with the FBI agents?
A We didn't
talk to them.
Q What was the
next time that you had any contact with the FBI?
A They came to
the house twice but I can't remember every day.
Q On the
occasion when you didn't talk with them how long were they actually there,
do you recall?
A About five
minutes.
Q And on the
other occasion, do you remember?
A No.
Q Now about
any times after that, were there any other times?
A I don't, I
can't remember.
Q I believe
you said it was two days later you came back to your house and the agents,
Stull I think you said it was, talked to you. Did you actually get back to
your house to stay there or visit there on that day?
A No. We made
--
Q When was the
next time after the shooting you actually got back to look in your house
or stay in your house?
A We couldn't
go back there for a long time. They wouldn't {2720} let us in.
Q Do you know
about how long it was before you were next able to go back to your house?
A It was a
long time. I can't remember how long.
Q Was it more
than a week?
A Yeah. It was
more than a week.
Q Was it more
than a month?
A I would say
about a month.
Q What about
your personal belongings that were in the green house at the time you left
on June 26th, were you able to get any of them or did they stay also?
A They stay
there also. They wouldn't let us get anything out.
Q Did you have
any clothing or other personal belongings located anywhere else or were
they all in the green house?
A They were
all in the green house. O When you finally did get back to your home, will
you describe what you found in terms of the condition, first of all, of
the green house in which you lived?
A Everything
was messed up.
Q Was it
messed up when you left on June 26th?
A No.
Q What about
the condition of the house about any bullet holes or holes of any kind?
A There was so
many bullet holes on the house.
{2721}
Q How about
windows, what was the condition of the windows?
A They were
all broken. Tear gas all over the house.
Q What about
the inside of your house, were there any indications of bullets that were
fired inside of your house?
A I don't
know.
Q What about
the conditions of your grandparents' house which was called the white
house, what was the situation on the outside of that house, what did it
look like?
A There was so
many holes all around the house.
Q So you know
what the holes were caused by, could you tell from --
A Guns.
Q Had those
holes been there before June 26th?
A No.
Q How about
the inside of your grandparents' house?
A It was
really messed up.
Q Was it
messed up on June 26th when you left?
A No.
Q In what way
was it messed up?
A Papers
laying all over, dishes scattered all over the place, everything was
messed up there.
Q There's
tissues and water in front of you, Mrs. Long Visitor, if you need to use
some and I'll wait until you're ready to proceed.
{2722}
Q (By Mr.
Lowe) Inside of your grandparents house were there pictures on the walls?
A Yes.
Q Tell the
jury what the condition of those pictures were?
A Well, the
pictures that were hanging had bullet holes in them.
Q Where in the
pictures were the bullet holes?
A I don't
know, there were so many bullet holes in those pictures.
Q I am sorry,
I didn't hear you.
A There were
so many bullet holes in those pictures.
Q Were the
bullet holes in some of the pictures directly in the faces of the
pictures?
A Yes.
Q Was it
obvious in looking at the pictures that the bullets were fired from inside
the house rather than bullets coming through the walls?
A Yes.
MR. HULTMAN: I
object. This is calling for an opinion and conclusion of the witness.
There has been no foundation laid.
MR. LOWE: This
witness saw these pictures. This is an opinion of a lay witness as
permitted by the Federal Rules of Evidence. I asked her if she could tell.
She did. I asked her when she was there -- it was obvious.
{2723}
MR. HULTMAN: I
think an expert in the trial earlier has indicated there were many
instances when he couldn't even tell.
THE COURT:
Well, she has answered the question.
MR. LOWE: Your
Honor, I am afraid I did not hear what the response was in the middle of
the interruption. May we have the response read back?
MR. HULTMAN:
If it please your Honor, I have a right to object and that doesn't
constitute an interruption.
THE COURT: She
answered "yes".
MR. LOWE:
Thank you.
Q (By Mr.
Lowe) Was there tear gas in your grandparents house?
A Yes.
Q Prior to
leaving on June 26th, did one of your children have a doll?
A Yes.
Q Did you find
the doll when you finally returned to your home?
A Yeah, we
found it.
Q Will you
tell the jury what the condition of the doll was?
A Well, it was
pretty bad.
Q Were there
any holes in it?
A Oh, yes.
Q Where were
the holes?
{2724}
A There was on
the face.
Q One on the
face?
A Yes.
Q And could
you tell what caused the hole?
A Probably a
gunshot.
Q I am sorry?
A Gunshots.
Q Now, on June
26 you indicated you were in the white house, I believe, washing dishes.
Am I remembering that correctly?
A Yes.
Q And I
believe you said you heard a noise or something that caused you to go
outside and look. Am I correct about that?
A Yes.
Q When you got
outside, you described seeing the two cars; and am I remembering correctly
that you went back inside and said something to your husband?
A Yes. I said
there were two FBI cars down there.
Q Is that what
you said to him?
A Yes.
Q At that
point did you and your husband your children immediately leave and run
away?
A We didn't
know what to do at first.
Q I am sorry?
A I said we
didn't know what to do at first, just closed the door and stayed in there
for awhile.
{2725}
Q O.k. Stayed
in there for a minute or two or longer, could you tell how long?
A About two
minutes.
Q About two
minutes?
A Yes.
Q Then did you
leave and immediately run away?
A Yes.
Q How long
would you estimate it took you from the time you heard the noise to walk
out and see the cars and walk back in to tell your husband?
A About a
minute.
Q All right.
Do you have any idea how long it took you to run from the house you were
in out past the tent area?
A About 15
minutes.
Q O.k. Were
you watching your watch at that time, or is that just a guess, an
estimate?
A Just a
guess.
MR. LOWE: May
I approach the witness, your Honor?
THE COURT: You
may.
Q (By Mr.
Lowe) I show you what has been marked as Defendant's Exhibit 78-A, a set
of pictures; and I show you the third page, the photograph which has been
marked as No. 3, and ask you if that is a picture of Norman Charles?
MR. HULTMAN:
Could I see, counsel, so I might have an opportunity to interpose an
objection?
{2726}
MR. LOWE: I
thought you had seen that several times.
MR. HULTMAN: I
don't know.
MR. LOWE: It
is an exhibit you provided us.
(Counsel
confer.)
Q (By Mr.
Lowe) Again I show you Exhibit 78-A, Page 3, No. 3, and ask you if that is
picture of Norman Charles?
A (Examining)
I don't know.
Q You don't
know?
A No.
Q O.k. Do you
know what Norman Charles looks like?
A Yes.
Q Do you know
who Sammy Loudhawk is?
A Yes.
Q Where does
he live?
A In Oglala.
Q Does he have
any particular relationship or has he in the past with your husband?
A They were
related.
Q Do you know
what he looks like -- you not only know him in the sense you are related,
you have actually seen him and you know what he looks like, do you?
A Yes.
Q Do you know
that this is Leonard Peltier sitting here?
A Yes.
Q Do you know
that this is not Sammy Loudhawk?
{2727}
A No.
Q All right.
Let me ask my question again. This is not Sammy Loudhawk, is it?
A No.
Q To your
knowledge has Leonard Peltier ever used the name, Sammy Loudhawk?
A No.
Q To your
knowledge has Sammy Loudhawk ever used the name, Leonard Peltier?
A No.
Q To your
knowledge has Sammy Loudhawk ever used the name "Leonard"?
A No.
Q When is the
last time you saw Sammy Loudhawk, if you remember?
A This past
year.
Q This past
year?
A Yes.
Q Thank you.
At any time on
June 26, the day of the shooting, did you see Leonard Peltier?
A No.
Q I show you
what has been marked as Government Exhibit 50-A and 50-B, and ask you to
take a look at them and see if you have ever seen these items or ones that
look like those?
{2728}
A Never seen
them before.
Q Never seen
them before?
A No.
Q Did you see
those in the white house?
MR. HULTMAN:
Well, now, I object.
MR. LOWE: I
will withdraw the question.
MR. HULTMAN:
The question he asked was if she had ever seen them. It is fairly obvious
she has never seen them at any place any time.
MR. LOWE: I
will withdraw the question.
Q (By Mr.
Lowe) Mrs. Long Visitor, you described two little identification markers
here as two cars that you saw on the period of time that you looked out
from your house before you and your husband left the area; and Mr. Hultman
talked you through putting them where you wanted to put them to describe
where they were; and I would like simply to describe them, I think, a
little bit more precisely for the record; and you look and listen and make
sure that I describe them accurately.
The car which
is as we are facing Exhibit 71 is on the left, is a rectangular piece of
what appears to be cardboard of some sort that says "SA Coler's car", and
it has got what looks like a little gold emblem of an automobile on it;
and if I understand how you have the front and back of the car, it is
pointing with the headlights towards the top of Exhibit 71 generally, am I
correct in that?
{2729}
A Yes.
Q And if you
look at it directly it is pointing approximately in the direction of the
log cabin, is that correct?
A Yes.
Q And if
somebody were to sit in the front seat behind the driver's seat, the
steering wheel of Special Agent Coler's car, the green car which is the
little rectangle marked "Special Agent Williams' car", and has a blue
symbol of a car on it, would be seen by the driver of the Coler car by
looking out the right side of the car next to it, is that correct?
A Yes.
Q All right,
and as I understand the way you have these positioned, the Williams' car
was pointing with its headlights generally up towards the "Y" in the road
like this (indicating), is that correct?
MR. HULTMAN:
Your Honor, I don't have any objection as long as counsel will refer to
the colored cars because she obviously doesn't know which is Coler's car
and Williams' car. I have no objection if he asks what color car and what
direction.
I think the
record clearly shows also that upon my next question of her with
relationship to which car was on which side, she made a response that in
effect was different from where the two cars as we call them by name
{2730} are placed. I just say I have no objection to counsel asking what
colored car was where and what direction and so forth, but to refer to
them, counsel, as Coler's car and Williams' car, I think is not a proper
way to examine the witness.
MR. LOWE: I
don't think there is any confusion in the way I ask the question, but I
will make sure the witness had it straight.
MR. HULTMAN: I
want her to answer whatever car she was talking about, not Coler's and
Williams', she doesn't know.
MR. LOWE: I
think she understood the question. I will make sure.
Q (By Mr.
Lowe) Is that color on this little symbol on the right-hand side --
MR. HULTMAN:
(Interrupting) Well --
MR. LOWE:
(Interrupting) May I ask the question without being interrupted?
THE COURT:
Proceed.
Q (By Mr.
Lowe) This little car shown on the right-hand of these two rectangles
appears to be blue or blue-green, is that the way you describe it?
A Green.
Q Green, all
right; and is that the car which was in the location shown on here with
its headlights pointing generally {2731} up towards this "Y" in the road
where there is a point marked "P"?
A Yes.
Q And is that
the correct position of that car in relation to the yellow car, the gold
car?
A Yes.
Q And is the
gold car -- does that appear to be a gold or tan symbol of a car on that
little rectangle, the way you look at it right now?
A Yes.
Q And is that
the one that you described as being pointed generally in the direction of
the log cabin where it is now?
A Yes.
Q And as these
are now put here, as they were put here, I believe, by Mr. Hultman when he
was doing the direct examination with you, is that the correct position of
those cars as you saw them when you looked at them?
A Yes.
Q Mrs. Long
Visitor, on June 26th during the time that you were present there at the
residences, did you see Wish at any time up there?
A No.
Q Did you see
Wish at any time fire a gun on June 26th?
A No.
Q Do you
remember being asked that question when you testified {2732} before the
Grand Jury and giving a different answer?
A No, I don't
remember.
MR. LOWE: All
right, counsel, turn to Page 11. I am going to ask some questions.
MR. HULTMAN: I
will have no objection as long as you read all of them that concern this
particular matter.
MR. LOWE: I am
going to read what I want to ask the witness. I am going to fairly. If Mr.
Hultman wants to ask more on redirect examination, he is free to do that.
Q (By Mr.
Lowe) I am turning now to Page 11, Line 9 -- I better back up a little bit
so we can see where they were. me first line there, it says:
Question:
Between House No. 6 and the point that is marked I on the map as letter
"B", there is a wood pile?
Answer: Yeah,
right here.
MR. LOWE: Mr.
Hultman, may we stipulate so we don't confuse the Court or the jury, that
there was a map used in the Grand Jury that had different letters and
designations than Exhibit 71?
MR. HULTMAN: I
believe it is the one, counsel, that you have got in as an exhibit.
MR. TAIKEFF:
This one (indicating).
MR. LOWE:
Fine, good.
MR. HULTMAN:
Which is a reproduction.
MR. LOWE: May
the witness have Exhibit 133? It may {2733} refresh her recollection while
we are describing this.
(Counsel hands
document to witness.)
Q (By Mr.
Lowe) I will start over again.
Question:
Between House No. 6 and the point that is marked on the map as letter "B",
there is a wood pile?
Answer: Yeah,
right here.
Question: And
you saw two men laying there?
Answer: Yeah.
Can you point
on Exhibit 71 to the area that we are generally talking about, Mrs. Long
Visitor.
A The wood
pile.
Q Pardon?
A The wood
pile.
Q me wood
pile. Where is that, generally just describe it with relation to one of
the houses you have been talking about?
A (Examining).
Q Is it near
one of those houses?
A It is
between the white and the green house.
Q Between the
white and the green house, and that's the same and white and green house
we have been talking about in Exhibit 71, is it?
A Yes.
Q All right.
Question: And
you saw two men laying there?
Answer: Yeah.
{2734}
Question: What
were they doing?
Answer: They
had guns and they were facing towards those two FBI cars.
Question:
Would you describe these two men?
Answer: Well,
one was Joseph Stuntz.
Question:
Joseph Stuntz, o.k.
Answer: I
think the other one, I think they called him "Wish", I think.
Question:
Wish?
Answer: Yes.
Question:
A fellow named
Wish was lying there with Joseph Stuntz?
Answer: Yeah.
Those are the only two persons I seen.
Does that
refresh your recollection, do you remember giving those questions and
answers, or giving the answers, rather?
A No, I don't
remember.
Q All right.
Now, on Page 16 at Line 20, you were talking about, you just talked about
the "Bob" with the ski mask, and you were asked:
How about the
other Indian named Wish?
Answer: I
think I only heard one.
Question: He
fired one shot?
Answer: Yeah.
Do you
remember giving that testimony at that time?
{2735}
A No, I don't
remember.
MR. LOWE: All
right.
MR. HULTMAN:
Your Honor, I rise now to enter an objection on the grounds that counsel
has taken only out of context some very brief remarks, and thus by the
question has left an impression that is a totally unfair one; that if the
total remarks are taken in there to the context, there is a very clear
explanation by this witness as to what that response is.
I object on
the grounds that he selected to remove only for the questioned purposes a
sentence or two which, out of context, leaves a totally misleading
conclusion.
MR. LOWE: Your
Honor, I would be very happy right now, and I would offer to interrupt my
cross examination for the purpose of letting Mr. Hultman ask this
Government witness questions out of the transcript that he thinks should
be asked in addition to this, instead of waiting until redirect
examination. I certainly think, as I pointed out before, Mr. Hultman can
ask any questions he wants to on redirect. In order to meet this
objection, I would ask that Mr. Hultman ask those questions and answers so
he can bring out anything he wants as far as this information is
concerned.
{2736}
MR. HULTMAN:
May I proceed, Your Honor?
THE COURT: You
may proceed.
MR. LOWE: If
you would tell the page --
MR. HULTMAN:
Would you just -- may I proceed, Counsel?
MR. LOWE: I
thought you were going to read from the transcript.
MR. HULTMAN:
Mrs. Long Visitor, do you remember during the course of the proceedings
with reference to the people that you were asked questions about at
another time in the proceedings being shown a large group of pictures and
asked to identify which ones of those individuals were the particular
ones, and particularly the ones that counsel has just now been asking you
about? Do you remember selecting pictures as to who the person was that
you had testified earlier and specifically the person that he's now asking
you about?
THE WITNESS: I
can't remember.
MR. HULTMAN:
May I go ahead and proceed, Counsel?
MR. LOWE: I've
invited you to read anything about that in here. I want to be open and
fair and let the witness respond completely.
MR. HULTMAN:
Do you remember from a large number of pictures, looking at a large number
of photographs?
THE WITNESS:
Oh, yes.
MR. HULTMAN:
And from those photographs you picked out {2737} specific pictures that
referred to the very people that you were talking about in the proceedings
in that transcript, did you not?
THE WITNESS:
Yes.
MR. HULTMAN:
All right. Your Honor, I'll go back on cross-examination on the pictures
specifically.
MR. LOWE: This
is the Government's witness. This would not be cross-examination.
Redirect.
Mr. Hultman
has implied that I somehow fully misread to the jury by not reading parts
of the transcript. I offered to have him read the portions that are
pertinent. Do I understand that he chooses not to read those portions that
were pertinent as to make an objection?
MR. HULTMAN:
Yes. It's the remainder of the transcript that has to do with the specific
identifications of the individuals that you have specifically talked to
her about.
MR. LOWE: I
thought you were going to read to her.
MR. HULTMAN:
All right. That's the part which I said, and I thought you would agree
that you would wait on that, that I would take up.
MR. LOWE: All
right. That's fine.
Your Honor,
we'll still give Mr. Hultman the opportunity right now. We're through with
our cross-examination
THE COURT: You
may proceed with your redirect.
{2738}
REDIRECT
EXAMINATION
BY MR. HULTMAN
Q All right.
Mrs. Long Visitor, do you recall identifying pictures of persons as well
as testifying that you knew those particular people in the grand jury
proceedings? The people that you have been asked about and have answered
questions about here today.
A Yes.
Q Who was it
that, who were the two persons that were lying between the green house and
the white house?
A Joseph
Stuntz and Norman Charles.
Q Now, was
there any question about that in your mind on the day that you saw them?
A What do you
mean?
Q You've
indicated to us here just now as to who those two people were. Is that
because you remember them on that particular day?
A Yes.
Q There wasn't
any doubt in your mind about it then, was it?
A No.
Q And there
hasn't been any doubt in your mind since?
A No.
Q Now, you
also mentioned that there was somebody with a ski mask; is that right?
A Yes.
Q And who was
that?
{2739}
A Bob Robideau.
Q And where
was he?
A He was
standing by the station wagon.
Q All right.
Now, there are, you mentioned there were two Normans; is that right?
A Yeah.
Q And was
there also somebody, do you know what the names of the two Normans were at
that time?
A Yes.
Q And what
were their names?
A Norman
Brown, Norman Charles.
Q All right.
And you knew them then; is that right?
A Yes.
Q Now, did you
also know somebody named Wish?
A Yes.
Q And was that
Norman Brown or Norman Charles?
A No.
Q Now, my
question now then is to you, was Wish at any time, did you see Wish at any
time in the area on the hill to which you've testified?
A No.
Q Did you see
anybody other than those you have specifically identified at the specific
places that you've identified?
A No, no.
Q All right.
{2740}
MR. HULTMAN: I
have no further questions.
MR. LOWE: May
I just have a moment, Your Honor, please?
THE COURT: You
may.
MR. LOWE: We
have no further questions, Your Honor, for this witness.
THE COURT: You
may step down.
MR. HULTMAN:
May we approach the bench, Your Honor?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. HULTMAN:
Your Honor, in light of the bond situation with this particular witness I
would at this time move that her bond be released and --
MR. LOWE: We
have no objection.
MR. HULTMAN:
-- and she might be able to leave and proceed accordingly.
THE COURT: The
material witness bond of Angie Long Visitor is exonerated and may be
returned to the owners.
MR. LOWE: Do I
understand she is no longer under subpoena to the Government either then?
MR. HULTMAN:
That is also correct
THE COURT: And
the witness is discharged from the subpoena.
MR. LOWE:
Thank you, Your Honor.
{2741}
MR. HULTMAN:
Thank you, Your Honor.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
MR. CROOKS: If
it please the Court the United States would next call Mr. Dale Parlane.
DALE ROBERT
PARLANE
being first
duly sworn, testified as follows:
DIRECT
EXAMINATION
BY MR. CROOKS:
Q Mr. Parlane,
would you give you full name again for the record, please.
A Dale Robert
Parlane.
Q And where do
you live, sir?
A Edmonton,
Alberta. Canada.
Q What is your
occupation?
A Member of
the Royal Canadian Mounted Police.
Q How long hue
you been with the Royal Canadian Mounted Police, Mr. Parlane?
A Six years.
Q Excuse me?
A Six years.
Q What is your
present duty station?
A I'm a member
of the general investigation section stationed in Edmonton.
Q And was that
also your post on or about February of 1976?
A That is
correct.
{2742}
Q Now, Mr.
Parlane, during the course of your employment with the Royal Canadian
Mounted Police did you have occasion to go into the Hinton area of Alberta
to make an arrest?
A I did.
Q And with
regard to the individual who you went in to arrest, well, let me be a
little more specific, was this concerning an area known as the Small Boy
Camp?
A That is
correct.
Q And when you
went into this area what, first of all would you describe the physical
buildings or out buildings that are present in the area?
A There was a
number of buildings, somewhat like one room buildings in the area.
Makeshift buildings kind of. And small portable school rooms. There were
several tents around the area.
Q All right.
Is there a, with regard to your arrest, or entry of the area, did you
enter a school house area?
A I did.
Q And did you
find a subject there who subsequently was arrested?
A Yes, I did.
Q And who was
that?
A Mr. Leonard
Peltier.
Q And with
regard to Mr. Peltier, where was he when you first saw him?
{2743}
A I first saw
him sitting down in the east area of the school building, the one room
school house.
Q And who had
entered the school house first, you or some other officers?
A I went in by
myself.
Q Were there
other officers in the area?
A Yes, there
was.
Q And when you
entered the school room you described Mr. Peltier seated in a chair. I
would hand you Exhibit No. 163. Ask if this is something you can identify?
A Yes. This is
the school house that I entered. In fact I am in this picture myself.
Q Is Mr.
Peltier in that picture?
A No, he's
not.
Q All right.
Insofar as the scene depicted, what roughly is shown there?
A It's the
general area where I found Mr. Peltier sitting and the area where an
amount of luggage and assortment was found.
Q How long
after the actual arrest was this photograph taken as best you recall now?
A Probably
fifteen minutes.
Q All right.
MR. CROOKS:
United States will offer Exhibit 162 -- or 163, I'm sorry.
{2744}
MR. TAIKEFF:
No objection.
THE COURT: 163
is received.
Q (By Mr.
Crooks) Now, would you hold this up to the jury so they can see it and
point out where in the room was Mr. Peltier sitting when you first
observed him?
A When I first
observed him he was sitting in this area right here (indicating), right
over by the blackboard.
Q Be in the
area where the man is seated in the black --
A That is me
sitting there.
Q That is you
sitting there?
A Yes.
Q Okay. So
that would be where he was seated when you arrived?
A That is
correct.
Q
Approximately what time of day did you arrive?
A 3:00 P.M.
Q And when
you, well, would you just simply describe the circumstances under which
the arrest was made.
A I entered
this building at approximately 3:00 P.M. Observed Mr. Peltier sitting in
this chair. I walked over to the chair and placed him under arrest.
Q All right.
Insofar as Mr. Peltier was concerned was there any luggage or other
personal effects in his immediate area?
A Yes, there
was.
{2745}
Q I would hand
you Exhibit No. 162 and ask you if you can identify that photograph?
A This
photograph appears to be the photograph of a suitcase which we found,
which I observed the day of the arrest in the area of where Mr. Peltier
was sitting.
Q And with
regard to that photograph, or the suitcase contained, or shown thereon,
where was that with reference to Mr. Peltier?
A It was, I
would say within seven feet of him.
Q All right.
And insofar as the contents of that photograph without revealing what they
are specifically, are those the contents as you viewed them when the
photograph, or when the suitcase was opened?
A Yes, sir.
Q With regard
to Mr. Peltier were there other people in the area other than himself?
A Yes, there
was.
{2746}
Q And if you
know, were these people local residents or were they people who were not
local residents?
A Not being --
Q Or some of
both?
A Not being
familiar with the general camp itself, but it would appear that most of
the people in there were from around the area.
Q All right.
During the
course of the time that you were in the schoolhouse itself, did you make
any observations of any types of weapons at all?
A Initially
when I entered the building I never saw any weapons as such in the open
area; however, it was not until later a subsequent search of the luggage
that we found numerous weapons.
Q I show you
first Exhibit No. 67A and ask if this is something you've seen before?
A It would
appear this is the 30-30 rifle that I observed on the 6th of February. It
has R.C. Tweedy on it which was my partner at the time, his signature on
it.
Q Where was
that first observed by you?
A This was
observed within seven feet of where Mr. Peltier was sitting, in that area
on the east end of the building.
Q I now hand
you Exhibit No. 65 and ask if that is a weapon that you have seen before?
{2747}
A This also
has a Corporal Tweedy signature on it, Royal Canadian Mounted Police, and
what appear to be the weapon I observed in that schoolhouse.
Q Calling your
attention back to Exhibit No. 162, does that correspond in any way with
the weapon depicted there?
A Yes. That is
the one depicted in the holster.
Q The holster
in the suitcase?
A Correct.
MR. CROOKS:
Your Honor, the United States will offer Exhibit 65 and 162.
MR. TAIKEFF:
No objection.
THE COURT:
Exhibit 65 and 162 are received.
Q (By Mr.
Crooks) Calling your attention back to Exhibit 65, upon that being
examined by the individuals who were making the arrest, including
yourself, what condition was that weapon found in?
A That weapon
was loaded and had a live round in the chamber.
Q So that that
weapon would have then been fired merely by pulling the trigger or
releasing the safety and pulling the trigger if it has a safety?
A Just by
pulling the trigger that would have fired it.
Q Now that
this has been introduced in evidence, hold that up so the jury can see it
and describe the contents of the suitcase as you saw it.
Q This was the
weapon that I observed that is sitting here in {2748} the holster area,
and these two other weapons were also found in there and all the weapons,
the two other revolvers were both loaded also.
Q All right.
Insofar as
this weapon, I'm not sure I ever got so far as to go into an actual
description, what caliber weapon is that?
A That's a
.380 Browning.
Q Insofar as
the 30-30 is concerned, did you find any cartridges, live cartridges that
would have been useable in this weapon?
A Yes, I did.
Q Where did
you find those?
A I found them
in a pack sack right beside where the rifle was.
MR. CROOKS:
United States will offer Exhibit 67A also.
MR. TAIKEFF:
No objection.
THE COURT: 67A
is received.
Q (By Mr.
Crooks) Now calling your attention to late in that day, did you have
occasion to interview Mr. Peltier?
A I did.
Q And where
was that and would you basically describe the circumstances under which
the interview took place.
A The
interview took place around 10:45 on the 6th of {2749} February at the
same date of the arrest and the interview was in the RCMPD attachment at
Hinton approximately 70 miles from the small boys' camp in the province of
Alberta.
Q This would
have been after Mr. Peltier had been removed to basically the office?
A That is
correct.
Q And under
Canadian law, is there any type of warning that is required to be given to
a man who is being interviewed?
A There is.
Q And would
you relate basically what that is, what the contents of it are?
A I have the
warning with me I read to Mr. Peltier and he signed on that day.
Q Would you
refer to that and relate from it refreshing your memory, if necessary
specifically what he was told.
A On the
heading it has, "Royal Canadian Mounted Police, name: Leonard Peltier,
address: no fixed address, place: Hinton, Alberta, date: 6th of February,
1976, time: 10:45 P.M." This is the warning that was read to Mr. Peltier:
"Clearly understand that anything said to you previously should not
influence you nor make you feel compelled to say anything at this time.
Whatever you felt influenced or compelled to say earlier, you're not now
obliged to repeat nor are you obliged to say anything further. Whatever
you do say may be given in evidence. Question: Do you understand what has
been said to {2750} you?" The answer was "Yes." "Would you sign here that
you full understand the warning." Signed "Leonard Peltier."
Q Now I don't
believe I ever asked you to identify the individual who you have been
calling by Leonard Peltier. Do you see that man in the courtroom today?
A I do. O
Where is he seated?
A Sitting at
the end of the table (indicating).
MR. TAIKEFF:
Identification is conceded, Your Honor.
THE COURT:
Very well.
Q (By Mr.
Crooks) Insofar as the warning that you have previously read, is that a
standard form used by Canadian authorities?
A This is what
we call a secondary warning. It's a warning read by a peace officer to a
person that has been previously warned. There is another warning that is
usually read at the first instance; however, if somebody has already been
previously warned and you wish to re-interview this person, you must read
him the secondary warning advising him that anything that he said earlier
was not now compelled to say.
Q That would
be basically the distinction between the two warnings is the secondary
warning would include the provisional that anything he may have said
further should not influence him?
{2751}
A That's
correct.
Q And insofar
as the warning that was given, to the best of your understanding was it
done in compliance with Canadian law?
A Yes, it was
Q Do you know
whether or not he had been given a previous warning?
A I understood
from previous conversation after the arrest that he had been warned
earlier.
Q Now I have
just a few questions concerning your conversation with him. How long
basically did the entire conversation take?
A One hour.
Q Now during
the course of the interrogation or interview, whichever you call it, did
he state to you whether or not he knew --
MR. TAIKEFF: I
object to the leading.
THE COURT:
Sustained. You can ask him what he stated.
Q (By Mr.
Crooks) What if anything did he state concerning his knowledge or lack of
knowledge of what he was being arrested for?
MR. TAIKEFF:
At this point, before the witness answers, I ask I be permitted to inquire
on the voir dire in order to establish a basis for an objection to this
entire line {2752} of questioning.
THE COURT: You
may.
MR. TAIKEFF:
May I have this document marked for identification, please.
I'm placing
before you Defendant's Exhibit 164 for identification. It is not in
evidence, it's contents may not be revealed to the jury. Do you recognize
it?
THE WITNESS:
It would appear to be a document from Staff Sergeant E.W. Mitchell.
MR. TAIKEFF:
Have you ever seen that document before?
THE WITNESS: I
can't say as I have, no.
MR. TAIKEFF:
Would you be kind enough to read any part of you like, but I'd like to
suggest to you a particular part that would perhaps shorten the process,
basically down to the middle of that paragraph which is the third
paragraph, but you're free to read the entire thing if you choose to do
so.
THE WITNESS:
It's a statement of --
MR. TAIKEFF:
Don't reveal what it is or what it says. Read it to yourself, please.
MR. CROOKS:
Could I see the document when he gets done with it?
MR. TAIKEFF:
Yes. Here's a copy of it.
You've read
some of it, I gather.
THE WITNESS: I
have.
{2753}
MR. TAIKEFF:
Do you recognize the document in the sense that you've seen the document
before?
THE WITNESS:
No. I have never seen the document.
MR. TAIKEFF:
Could you turn the microphone a little bit so that we can get the maximum
use of it.
Thank you very
much.
You read part
of that document to yourself, at least up to the point where I asked you
to read?
THE WITNESS:
Yes, I did.
MR. TAIKEFF:
Do you recognize that as a copy of an official police report of your
police organization?
THE WITNESS:
It may well have been.
MR. TAIKEFF:
Do you include that note of uncertainty because you're not sure whether
it's authentic?
THE WITNESS:
No. I was not looking after the file. I was involved in the arrest and the
subsequent statement. I was not looking after the entire file. It was
Corporal Tweedy that was doing that so I did not have access or never did
have the occasion to read over the complete file.
MR. TAIKEFF:
Do you have any personal facts, personal knowledge of facts concerning any
earlier warning that may have been given to Mr. Peltier and what he may
have said in response to that warning?
THE WITNESS:
Yes. As I stated earlier I understood that a warning had been read to him.
{2754}
MR. TAIKEFF:
Were you a witness to that warning?
THE WITNESS:
No, I wasn't.
MR. TAIKEFF:
Are you able to say what was his response, if any, at the time he was
given the first warning?
THE WITNESS:
No, I wasn't.
MR. TAIKEFF:
Now when you gave the secondary warning, am I using the right phrase?
THE WITNESS:
Correct.
MR. TAIKEFF:
Part of that says that you're not obliged to say anything but whatever you
do say may be given in evidence, right?
THE WITNESS:
That's correct.
MR. TAIKEFF:
And you when you read that warning were talking about this very occasion
or one just like it, right?
THE WITNESS:
Correct.
MR. TAIKEFF:
You're about to tell us what he said?
THE WITNESS:
Correct.
MR. TAIKEFF:
May I come to the side bar, Your Honor?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. TAIKEFF:
Your Honor, there's not now before the Court a witness competent to
testify sufficiently for Counsel to make an objection to this line of
questioning; however, I {2755} advise Your Honor that there is a Sergeant
Mitchell who apparently is the person who gave the first warning. I'm not
sure whether I understood this witness correctly but Tweedy may have been
present at that particular time. According to the report Mitchell says
that the defendant essentially, what we refer to it as the Miranda
Warnings, and Peltier said yes, he understood and said he didn't want to
give a statement and then asked if he could obtain counsel and they told
him yes, it would be possible for him to obtain counsel and indeed if he
couldn't afford it they would provide free legal aid for him. Then he
proceeded to interrogate him and engage him in conversation. And then they
gave him the secondary warning and I gather that another statement was
made by Peltier. This one followed the secondary warning.
Now I would
suggest most respectfully that before this witness can give the testimony
that he was about to give that an opportunity should be for us to prove
what I just asserted unless the government is willing to accept that for
purposes of this application as being a fact, in which case I would then
ask Your Honor to suppress the statement because he had already said that
he did not want to give a statement and that he was seeking the assistance
of counsel. They told him he could get counsel and proceeded to
interrogate him nevertheless.
MR. CROOKS:
Your Honor, I think Counsel is {2756} substantially correct. I don't vouch
for exactly what Sergeant Mitchell will say. He will be one of the next
witnesses and it would be an interesting point Counsel raised had this
taken place in the United States. However, we're talking about the
Canadian interview by Canadian authorities and the law is completely
unanimous that the Miranda Warning simply have no application whatsoever
to a foreign country.
I can cite the
Court a couple cases that I have available if the Court wishes, the first
of which being United States vs. Chavarra, find the right page number, 443
Fd 2d, 904, Ninth Circuit, (1971). The next case would be the United
States vs. Welch, 455 Fd 2d, 211, Second Circuit, (1972). Both of those
are recurring opinions.
Another one
which I believe speaks generally to this area is the United States vs.
Cotroni, 527 Fd 2d, 708, Second Circuit (1975). But the general thrust,
cases and unanimous rulings of the courts are Miranda warnings simply have
no application to interrogation by foreign countries unless it's of such a
nature to shock the conscience of the Court, and obviously this man has
complied with the Canadian regulations and that should end the issue.
MR. TAIKEFF: I
expect the cases stand for the proposition it's not necessary that a
foreign police official give the Miranda warnings to a person or to an
American citizen, but once given it is obligatory that they comply with
the {2757} requirements. They wouldn't have given such a warning if it
wasn't necessary for them to cease and desist once the Defendant or
arrestee says, "I don't want to give a statement I want a lawyer."
MR. CROOKS:
The thrust of the case is simply the exclusionary rule has no application.
THE COURT: It
would seem to be the only purpose of the exclusionary rule is to control
the activities of American law enforcement officials and not foreign law
enforcement officials because you have no jurisdiction over the foreign
law.
MR. TAIKEFF:
They're within Your Honor's jurisdiction right now. I'm trying to control
his behavior in this courtroom.
MR. HULTMAN:
You apparently give him a warning now.
THE COURT: I'm
going to permit the witness to testify.
MR. TAIKEFF:
Thank you, Your Honor.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
MR. CROOKS:
I'm not sure on the state of the record. I assume the objection has been
made and overruled, if that be correct.
MR. TAIKEFF:
That's correct.
THE COURT: No
objection was made.
{2758}
MR. TAIKEFF:
Not in the formal sense. Legal inquiry was made of the Court.
Q (By Mr.
Crooks) Mr. Parlane, going back specifically to your interview with Mr.
Peltier. Did he state to you whether or not he had knowledge or did not
have knowledge as to why he was being arrested and detained?
A He advised
that the knew why he was being arrested.
Q And what did
he advise you in that regard?
A It was for
the murder of some policemen in the United States.
Q With regard
to your interview, did he state anything concerning recent wounds that he
may have suffered of some sort?
A Yes, he did.
{2759}
Q And what did
he state with regard to that?
A He stated
that he had been picked up in Oregon by the police there, taken back to
the office and shot in the back with something. He didn't know what he was
shot with.
Q All right.
Do you recall whether or not he displayed to you yourself those wounds?
A Not at that
time, no.
Q Did he at
some later time?
A No.
Q All right.
With regard to the interrogation, calling your attention specifically to
the two firearms, one of which -- I don't recall the numbers -- is lying
before you, 65, and also 67-A, did he make any statement concerning whose
firearms they were?
A He said they
were his.
Q He said they
were his firearms?
A That's
correct.
Q Were there
any other long guns, as opposed to pistols, found at the time that you
arrested him?
A There was.
Q And what
would that have been?
A There was an
M-1 semi-automatic rifle also found beside the 30-30.
MR. CROOKS:
All right. I have no further questions.
MR. TAIKEFF:
May I have a moment, your Honor?
{2760}
THE COURT: You
may.
(Counsel
confer.)
MR. TAIKEFF:
May I inquire?
THE COURT: You
may proceed.
CROSS
EXAMINATION
By MR. TAIKEFF:
Q Constable
Parlane, when you entered the room in which you found Leonard Peltier, was
he alone?
A He was
sitting by himself.
Q Was there
anyone else in the room besides you and him?
A Yes, there
was.
Q How many
people?
A I would say
between 10 and 15.
Q Were you
armed?
A Yes, I was.
Q Did you have
your weapon exposed?
A I did.
Q Did he at
any time make any effort to escape, resist, struggle with you in any way?
A He did.
Q What did he
do?
A At the
initial point of the arrest, I put him up against the wall, and at which
time he shouted to me, "I am not going to do anything you say. I have got
nothing to lose", at which time he started to struggle, at which time I
had to push him {2761} harder against the wall.
Q That's the
extent of what he did?
A That's
correct. I had my gun at him.
Q And did he
have any conversation with you concerning his concern about returning to
the United States?
A Yes, he did.
Q What was
that conversation?
A That was
later that evening, after the warning had been read to him?
Q Yes.
A He stated
that he didn't want to go back to the States because he feared for his
life and said if he didn't fear for his life, he would never get out of
jail.
Q And did you
have any conversation with him about the American Indian Movement?
A I did.
Q How did that
come up?
MR. CROOKS:
Your Honor, I will object to this. This is beyond the scope of the direct,
and it is self-serving statements; and I feel that it is within the
subject matter of the areas of the interrogation which I didn't inquire
about.
THE COURT:
Sustained.
MR. TAIKEFF:
Could I ask how the subject came up without getting to the content of it?
{2762}
THE COURT: You
may.
MR. TAIKEFF:
All right.
Q (By Mr.
Taikeff) My question was: How did the subject come up?
A I asked him
what he was doing up here, at which time he advised that he was a member
of the American Indian Movement, presently a fugitive from the United
States.
Q Did he say
thing about his desire to remain in Canada?
A Yes. He
expressed the desire to stay in Canada.
Q Did he say
why?
A Well, like I
said before, he felt that if he did go back to the States, he would not
get out of jail or possibly get killed.
MR. TAIKEFF:
No further questions.
MR. CROOKS: We
have no further inquiry, your Honor.
THE COURT: You
may step down.
(Witness
excused.)
THE COURT: The
Court will recess until 3:25.
(Recess
taken.)
{2763}
(Whereupon,
the following proceedings were had out of the presence and hearing of the
jury, the Defendant being present in person:)
THE COURT:
Sometime ago the defense counsel made a request for an interpreter; and on
the basis of that request, I had my staff go to work and secure an
interpreter.
Now, I have
just been informed that the defense counsel have also secured an
interpreter. My inclination would be to use the Court's interpreter. Then
there could be no question as to the interpreter being neutral. I do not
think any of us understand the language that is involved.
MR. TAIKEFF: I
assume, your Honor, there would be no objection that if the interpreter we
have found would be present in the courtroom so that if there is -- excuse
me one moment.
(Counsel
confer.)
MR. TAIKEFF:
All right. It has been suggested to me that I make the following
suggestion to your Honor: That the interpreter which the Court has found
stay in the courtroom and monitor the translation, the reason being this:
The witness is 87 years of age, and we believe that he will have certain
difficulties in speaking and making himself known, making his testimony
known. The {2764} person we asked to act as interpreter is someone who
knows him and has in the past acted as interpreter for him when it is
necessary for him to speak with someone who doesn't speak the Lakota
language, so we think it would be easiest for the witness to communicate
through this interpreter; but we have no objection to the other
interpreter being present, so that if there is any problem about the
translation of anything, that interpreter can make his position known
right on the spot.
THE COURT:
Well, it will be the ruling of the Court that the Court interpreter will
be used unless some difficulty develops. There is no objection to the
defense having their own interpreter in the courtroom to monitor the Court
interpreter, if that is what you have in mind.
MR. TAIKEFF:
All right. Thank you, your Honor.
THE COURT:
Very well.
The jury may
be brought in.
(Whereupon, at
3:29 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:)
MR. CROOKS: If
it please the Court, the United States would call as its next witness Mr.
William Mitchell.
EDWARD WILLIAM
JOHN MITCHELL
being first
duly sworn, testified as follows:
{2765}
DIRECT
EXAMINATION
By MR. CROOKS:
Q Mr.
Mitchell, would you again give your full name for the record, please?
A Edward
William John Mitchell.
Q And where do
you live, sir?
A I live in
Ledue in the Province of Alberta, Dominion of Canada.
Q And what is
your occupation?
A I am a
member of the Royal Canadian Mounted Police.
Q How long
have you been with the Royal Canadian Mounted Police?
A 23 years,
sir.
Q Calling your
attention back to February, 1976, did you have occasion to participate in
the arrest of an individual who was involved in this case?
A I did, sir.
Q And who was
that?
A Leonard
Peltier seated there at the defense table with counsel.
MR. TAIKEFF:
Identification is conceded.
THE COURT:
Very well.
Q (By Mr.
Crooks) Mr. Mitchell, during the course of the arrest of Peltier, did you
have occasion to go into the schoolhouse building wherein the arrest took
place?
{2766}
A I did, sir.
Q And did you
observe various items which were located in the area where Mr. Peltier was
arrested?
A Yes, I did
observe certain items.
Q I would call
your attention to what has been received into evidence now as Exhibit 163,
and ask if that depicts the scene of the arrest?
A (Examining).
Q Or the
physical scene.
A Yes, it
does, as I observed it on that date.
Q And I call
your attention to Exhibit 162, and ask if those items depict anything that
you have seen before?
A I observed
particularly the handguns in the suitcase that are contained in this item.
I believe it appears to be the same items that I observed on that date.
Q All right.
During the course of the afternoon did you make an attempt to ascertain
the owner -- who the owner of the handguns were?
A Yes, I did,
sir.
Q And did you
make inquiry of any of the people that were in the vicinity of the
handguns concerning the ownership?
A Yes, I did.
Q And to whom
did you make inquiry?
A I took Mr.
Peltier, Leonard Peltier and Mr. Blackhorse who was with him out to an
unmarked police car that was {2767} situated outside the schoolhouse. Both
of these persons were placed in the rear of the police car, and I then
gave them what is known as the police warning of the type used in Canada.
Q And then
what happened?
A And I then
-- shortly after this time a third person, male person was brought into
the camp in another car. I had encountered him earlier that date on a road
near the camp, and I then asked Mr. Peltier if this third person, Mr.
Blackman, was involved with Mr. Peltier and Mr. Blackhorse in possession
of weapons that I observed in the schoolhouse, the same weapons I have
just pointed out in that photograph. If I may refer to my notes?
Q Yes, if you
would, please.
A (Examining)
During this time, that would be the time that Mr. Peltier and Mr.
Blackhorse were seated in the police car with me.
Q Right.
A One Ronald
Blackman was brought into the camp in another police car.
Q Right.
A I pointed to
Mr. Blackman and asked Peltier and Blackhorse if Blackman was involved
with them in the possession of the rifles and the revolvers found in the
room at the school.
Q Right.
{2768}
What was the
response, if any was given?
A Mr.
Blackhorse was non-committal. However, Mr. Peltier said -- referring to
Mr. Blackman -- "He was not with us. Those guns in the suitcase were
mine." Peltier also said, "The suitcase is mine also."
Q Now, with
regard to the guns that you had observed at the scene, I would hand you
Exhibit No. 67-A, and ask if that is also one of the guns that you
observed at that time?
A It appears
similar to the gun that I observed, sir.
Q Did you see
markings on it which identify it to any of your fellow officers?
A I would --
yes, I see the name of Corporal Tweedy on a Exhibit label on the gun.
Q Is he a
fellow member of your force?
A Yes, sir.
Q All right.
Now, did you have occasion to talk to Mr. Peltier again at a later time?
A Yes, I did,
sir.
Q And would
you describe the circumstances under which that conversation took place?
A On the 7th
of February, 1976, I accompanied Mr. Peltier via aircraft from Edmonton,
Alberta, to Vancouver, British Columbia; and during that time we had a
general conversation en route to Vancouver, and he made certain statements
to me.
Q All right.
{2769}
A I did make
some notes on them.
Q All right.
Specifically with regard to that transportation, was this after you had
given him the warnings originally at the camp?
A That is
correct, sir.
Q And were you
aware that Mr. Parlane had previously given him warnings?
A No, I was
not aware. I cannot swear to Officer Parlane's warning. I had myself
personally given Mr. Peltier a warning.
Q In any
event, was one of the items discussed, or was the subject discussed of any
recent wounds which Mr. Peltier may have had?
A Yes, there
was. If I --
Q
(Interrupting) What was said with regard to the wounds specifically?
A If I may
refer to my notes again, sir?
Q Yes, if you
would, please.
A (Examining)
During the flight from Edmonton, Alberta, to Vancouver, British Columbia,
on the aircraft I discussed the general topics with Mr. Peltier and had
asked Mr. Peltier -- I noted scars on his chest, and he indicated he had
acquired them in a sacred ritual. He referred to his strong belief that
the magic in a necklace -- or in his necklace had cured his buckshot
wounds after he had been gunned down, shot in the back -- that was his
term -- on a highway in the United States {2770} or U. S. during recent
months. He said that he had been unable to get a Doctor but had phoned
Pine Ridge, and they held a prayer session for him. This plus the necklace
had supposedly resulted in a quick cure, he attributed this to this cure.
Q All right.
With regard to the wounds which he referred to in his back, had you seen
those yourself prior to this time?
A I cannot
recall, sir, if I had seen that wound.
Q Do you
recall that you saw them later?
A No, sir. He
mentioned the wounds in his back during this flight. I cannot recall that
I actually observed them earlier.
Q The only
wounds that you had apparently observed were the markings on the front
which indicated the Sun Dance, is that correct?
A That is
correct, sir, yes.
MR. CROOKS: We
have nothing further.
MR. TAIKEFF:
May I inquire, your Honor?
THE COURT: You
may.
CROSS
EXAMINATION
By MR. TAIKEFF:
Q You refer to
certain scars on -- Mr. Peltier's scars. When did you have occasion to see
those?
A I would just
believe, sir, I cannot recall with certainty, I believe they were during
the afternoon at the school or during that same date, the 6th of February.
I can't recall that with certainty though.
{2771}
Q What was the
occasion, putting aside the question of the exact date or time for the
moment?
A It would
have been at some time during the evening, possibly after he had been
searched or something to this effect.
Q Was his
clothing removed during the search?
A I hadn't
removed his clothing. Someone else would have done a search on him.
Our
conversation regarding scars actually was more referring to the ritual of
the Sun Dance which I, of course, knew nothing of; and he explained to me
the ritual, what went on during this, and his strong beliefs.
Q There came a
time when you asked him whether he and Mr. Blackhorse were members of the
American Indian Movement, isn't that correct, on February 6th?
A That's
correct, sir.
Q What
prompted you to say that?
A Pardon me,
sir?
Q What
prompted you to ask him that question?
A Because it
was my information, sir, that they were.
Q Was there
any special significance to the fact that he was a member of the American
Indian Movement as far as your role as a police officer was concerned?
A I was
looking for a Mr. Peltier, sir; and it was my understanding that Mr.
Peltier had been or was a member of the {2772} AIM, as I understood the
movement. I am not acquainted with the AIM movement, and this was just a
natural police curiosity in asking that question.
{2773}
Q And what was
the source of your information concerning the fact that Mr. Peltier, whom
you were searching for, was a member of the American Indian Movement?
A This would
have been just instructions, or at least comments passed on to me which
led me to organize a search in the first place. That would be during the
morning of the 6th of February.
Q Did you have
any contact with the Federal Bureau of Investigation before you made this
arrest?
A No, sir. I
was sleeping in my motel at White Core, Alberta at 12:30 in the morning
when I got a phone call right out of the blue and they told me to go to
Hinton and organize a search.
Q As far as
you know was he sought for any crime committed in Canada when you left
your house that morning?
A It wasn't my
house, I was in a motel.
Q Your motel.
A No. To my
knowledge he had not at that time committed any offense in Canada.
Q Now, the
three people who were in custody on the 6th, Mr. Blackman, Black Horse and
Peltier, what were they taken in custody for, what was the charges against
them as of that moment?
A Well, sir,
we understood that there was a, number one, a warrant that was held for
the return of Mr. Peltier to the United States. It was extraditable.
{2774}
As a result of
a check on the road approximately 12:30 P.M. on the 6th of February while
we had been going down to look at this camp, Chief Small Boys Camp, it was
my belief that they had in their possession loaded firearms or firearms
that had been fired that date. And I'm talking about revolvers handguns,
which there was obviously a question as to whether they were legally in
possession of these weapons.
Q Because you
need a special license in Canada for a handgun; is that --
A That is
correct, sir.
Q So initially
at least and perhaps not with respect to Mr. Peltier but with respect to
Mr. Blackman and Black Horse you placed them under arrest for possession
of the weapons, the handguns?
A No. There
was an outstanding warrant for Mr. Blackman, sir. That was in Vancouver;
and there was also an outstanding warrant in Calgory. We had confirmed
that during the time we had him in our custody.
Q But when you
took him into custody what did you take him into custody for?
A I wanted to
find if he was with Mr Peltier down in that camp. He was searched and some
ammunition was found in his possession. .38 caliber ammunition.
Q And did you
make this known to Mr.Peltier in any way?
A That Mr.
Blackman was -- I wanted to know if Mr. Blackman {2775} was involved with
Mr. Peltier and Mr. Black Horse because it was Mr. Blackman's contention
that he was not.
Q And I gather
that your inquiries with Mr. Peltier revealed the fact that you were
trying to determine whether or not Mr. Blackman hat any involvement with
those guns, or with Mr. Peltier; is that correct?
A Would you
rephrase that again.
Q Yes, I will.
You made
certain inquiries of Mr. Peltier?
A Yes, sir.
Q Concerning
Mr. Blackman?
A That is
correct, sir.
Q And
concerning Mr. Blackman and those handguns, correct?
A That is
correct, sir.
Q And is there
any doubt in your mind that it was clear to Mr. Peltier that you were
holding Mr. Blackman?
A I don't know
what was going on in Mr. Peltier's mind. He saw Mr. Blackman in another
car.
Q Held by the
police?
A Well, he was
in the car. Whether he was held or under arrest or just along for the ride
I don't know. I can't state his state of mind at the time.
Q Well, did
you see anything with your own eyes or hear anything with your own ears
which would indicate that Mr. Peltier did not know that Mr. Blackman was
in police custody when you {2776} put the question to Mr. Peltier as to
whose guns those were?
A Mr. -- I
asked Mr. Peltier if Mr. Blackman was involved with them in the possession
of those weapons because they were supposedly in Mr. Blackman's suitcase.
Mr. Peltier answered me as I have indicated.
Q And then Mr.
Peltier said, "No, that man had nothing to do with it, those guns were
mine"?
A That is
correct, sir.
Q That's what
I'm trying to establish. But at the time he made that statement he could
see that Mr. Blackman was in police custody.
A He could see
that he was with the police members, yes.
Q That's what
I wanted to know.
Now, before
you had any conversation with Mr. Peltier you said certain things to him
as required by Canadian law; is that not correct?
A That is
correct, sir.
Q And you said
either in these exact words or comparable words you need not say anything,
you have nothing to hope from my promise or favor and nothing to fear from
any threat whether or not you say anything. Anything you do say may be
used as evidence at your trial". Is that a fair rendition of what you said
to him?
A That is
correct, sir.
Q And did you
then ask Mr. Peltier whether he understood what {2777} you said?
A If I may
refer to my notes again, sir.
Q Well, see if
you can do it without looking at your notes first.
A I always ask
any accused person if they understood the warning. I will read to them --
Q Did you get
an answer?
A If I may
refer to my notes, sir.
Q Only if you
tell me you cannot answer without looking.
A I cannot
answer without looking.
Q Please look
at your notes then.
A I asked both
Peltier and Black Horse if they understood the warning.
Q I'm only
talking about Mr. Peltier.
A They both
answered yes.
Q Now, please
listen to my question. I am asking about your conversation with the
defendant on trial.
A Yes, sir
Q And they
said something to you in response, right?
A Yes, sir.
Q What did Mr.
Peltier say to your question as to whether or not he understood the
warning which you've just gave? Did he say yes, I do understand, or no, I
don't understand?
A Just the
word yes.
Q Okay. Did he
say anything else immediately thereafter?
{2778}
A Yes, he did,
sir.
Q And what was
that, sir?
A If I may
refer to my notes again, please.
Q If you have
to.
A They both
answered yes And Mr. Peltier said, "I won't give a statement."
Q And did he
make any inquiry of you after he said he won't give a statement?
A Yes, he did,
sir.
Q And what
inquiry did he make?
A Mr. Peltier
asked if he could obtain legal counsel. I believe words to that effect.
Q And your
answer if any?
A Yes. That he
would be entitled to obtain free legal counsel.
Q If he
couldn't afford to retain his own counsel; is that right?
A I didn't use
the last words you used. I said he would be entitled to obtain free legal
counsel.
Q Okay. And
then you proceeded to question him; is that correct? Yes or no. Or have
conversation with him in which he made statements? Yes or no.
A Are you
referring to, sir, the weapons in Mr. Blackman's arrival in the camp then?
Q Anything
whatsoever that you've testified to in this court-{2779} room. Following
that dialogue did you have conversations with him which resulted in your
testimony which you gave here? Yes or no.
A I will have
to refer to my notes again, sir.
Q You have no
recollection?
A I would have
to refer to my notes.
Q I ask you a
question, sir. I didn't get an answer yet. Do you have no recollection of
whether the sequence of events was your warning then, the dialogue about
whether he understood it, then the inquiry about counsel and then you had
the conversation ar conversations that you've testified to. Are you
telling us you do not recall now without looking at your notes whether
that was the sequence of events? Yes or no.
A I do not
recall exactly, sir, without referring to my notes. That was one year ago.
Q Please look
at your notes.
A It would be
during this time then that Mr. Blackman was brought into the camp. That
was after the visits of counsel.
Q Sir, my
question to you is simply this: Do I state correctly the sequence of
events, first to give the warning, you have a right to remain silent and
et cetera, or the equivalent?
A Yes, sir.
Q When he said
he understood what you were saying, then he said I don't want to make a
statement, then he asked you whether {2780} he could get a lawyer and you
said you can get free legal aid, and then after all of that you had one or
more conversations with him that you've testified about in this courtroom;
is that a correct sequence of events? Yes or no.
A Yes, it is,
sir.
MR. TAIKEFF: I
have no further questions.
REDIRECT
EXAMINATION
BY MR. CROOKS
Q Just one
final question. Was your questioning of Mr. Peltier in accord with
Canadian laws as you understood it?
A Yes, it was
MR. CROOKS: No
further questions.
RECROSS-EXAMINATION
BY MR. TAIKEFF:
Q Tell us what
aspect of Canadian law you understand to be operating when someone says to
you I don't wish to make a statement, and indicates that he wants legal
counsel and you then proceed to have a conversation in which you extract
some information out of the mouth of that person?
MR. CROOKS:
Your Honor, I'll object to the form of this question. Number one, the
question is argumentative, and number two the use of the word "extract" I
would assume implies some type of force or violence and --
MR. TAIKEFF:
I'm not implying that.
MR. CROOKS:
Completely unsupported by the record.
MR. TAIKEFF:
I'm not implying that at all.
THE COURT: The
objection to the form of the question {2781} is sustained.
Q (By Mr.
Taikeff) All right. Sir, on redirect examination Mr. Crooks you whether in
your opinion you were operating in accordance with Canadian law and you
said yes?
A That is
correct.
Q Okay. Now,
you give the warning about the right to remain silent in order to inform a
person that they do in fact have a right to remain silent; isn't that
correct?
A That's
correct.
Q And if a
person chooses to remain silent you have no reason to believe that they
should not be permitted to remain silent under Canadian law?
A They have
that right to remain silent, sir.
Q And if a
person who's under arrest asks for the assistance of legal counsel may
they have such assistance?
A Yes, they
may, sir.
Q Now, what
principle of Canadian law do you refer to in your answer to Mr. Crooks'
question on redirect when you, when you question someone who says I don't
want to make a statement and I want to know if I can get a lawyer, and you
proceed to interrogate that person by way of casual conversation?
A Are you
through now, sir?
Q Yes. I am at
least with that one question.
A My comments,
sir, were directed to two people and you keep referring to one. There were
two people in the back of the {2782} police car. My comments were directed
to both of them now. And I indicated Mr. Peltier stated that he did not
wish to give a statement. I had not heard from Mr. Black Horse who was
also in the police car at the rear, and when Mr. Blackman came in I had
asked both Mr. Peltier and Mr. Black Horse the question was directed at
both accused persons seated behind me in the police car.
Q You directed
your question to both of them, right?
A That's
correct. There were two people there. They both would have heard.
Q You just
said a moment ago you directed your question to the both of them; isn't
that correct? Yes or no. Did you not say that?
A I can't say
that yes or no. I didn't ask each one individually. I directed my question
towards both of them as they were seated.
Q Now, you are
modifying that a little bit as to the direction; isn't that true?
MR. CROOKS:
That is argumentative and that is not a correct statement of what the
witness said.
THE COURT:
Objection is sustained. It is argumentative.
Q (By Mr.
Taikeff) When you conversed with Mr. Peltier after your response to him
about legal counsel you knew, did you not, that any answer he gave at that
time might be used in evidence in a trial?
{2783}
A I wasn't
aware, sir, what his final position would be on that.
Q Do you think
that answered my question?
A As well as I
could, sir.
Q Let's try it
again, see if you can do better.
MR. CROOKS:
Your Honor, I'll move to strike those last remarks.
MR. TAIKEFF:
I'll withdraw the remark.
THE COURT: The
remarks will be withdrawn.
Q (By Mr.
Taikeff) When you were having your casual conversation with Mr. Peltier
after the time you told him that he could get free legal aid were you
aware, did you know that his answers, even to casual conversation, was
something that could be offered in evidence against him? Yes or no.
A I can only
answer you with an assumption, sir, on that one.
Q An
assumption about your own state of mind?
A Yes.
Q All right.
Let's have it.
A I assumed
that possibly it could be, but my next question was to see if Mr.
Blackman's involvement, or his presence meant that he was involved with
them. In other words to eliminate him as a party to the possession of the
weapon.
Q But you did
assume that it was possible that any answer he gave to any conversation
could be adduced against him at a {2784} trial?
A Yes, sir I
didn't dwell on it. I would later assume that's possible, but I didn't
dwell on it at that time.
Q I read to
you before what I suggested was your advice to Mr. Peltier, and I think
you said that indeed you had in words or in substance said those things to
him. I want to read to you the last sentence that I read to you before.
"Anything --
MR. CROOKS:
Your Honor, I'll object to this as completely repetitious. That statement
has been read once. It has no probative value of reading it again. I think
it's cumulative, repetitious and argumentative.
{2785}
THE COURT:
Well, I presume it's preliminary to a question he's going to ask. I'll let
him read the sentence.
Q (By Mr.
Taikeff) Reading the last sentence quote "Anything you do say may be used
as evidence at your trial," unquote, did you understand when you uttered
those words that only certain categories of things which he said might be
adduced as evidence at his trial?
A No. Sir. The
word "anything" is there.
Q So then you
knew when you spoke with him that day as to the next day on the airplane
that anything he said to you would be used against him at a trial, isn't
that a fact, sir?
A At his
trial, sir.
Q Isn't that a
fact?
A Yes, sir. I
did not know what charges, if any, would be made.
MR. TAIKEFF: I
have no further questions.
MR. CROOKS:
Just one further question and I ask this at the risk of prolonging this.
MR. TAIKEFF:
Your Honor, if Mr. Crooks doesn't want to prolong, he ought not have a
further question because we have had direct and cross and redirect and
recross.
THE COURT: You
may ask the question.
REDIRECT
EXAMINATION
BY MR. CROOKS:
Q Mr.
Mitchell, under Canadian law does an individual have right to change his
mind?
{2786}
A Are you
talking about the accused, sir?
Q Yes.
A Yes, he
does.
Q Did you beat
Mr. Peltier and force him to change his mind and give you a statement when
he gave you the statement to recite?
A No way, sir,
was he harassed.
Q Was he in
any way flogged, harassed, done anything to induce him to change his mind
and give you a statement?
A No, sir.
Definitely not.
Q Any force or
duress of any kind used by the Royal Canadian Mounted Police force?
A Pardon me?
Q Was any
duress of any kind used to induce him to change his mind and give you a
statement?
A No, sir.
MR. CROOKS: I
have no further questions.
RECROSS-EXAMINATION
BY MR. TAIKEFF:
Q When you
engaged in the conversation, did you tell him that by merely conversing
with you he might be acting as if he changed his mind about not wanting to
give a statement, that the effect of it was exactly the same as if he had
changed his mind?
A No, sir.
Q Did you give
him any further warning when you were on the {2787} airplane that even
indulging in casual conversation with you about the American Indian
Movement, the problems of the American Indians, even that might give rise
to information which could be adduced against him at his trial?
A No, sir, I
did not.
MR. TAIKEFF: I
have no further questions.
MR. CROOKS: I
have no further questions, Your Honor.
THE COURT: You
may step down.
MR. CROOKS:
The United States would next call Corporal Doll.
DAVID GOLDEN
DOLL
being first
duly sworn, testified as follows:
DIRECT
EXAMINATION
BY MR. CROOKS:
Q Corporal
Doll, would you again give your full name for the record.
A Corporal
David Golden Doll.
Q And where do
you live, sir?
A I live in
Hinton, Alberta, Canada.
Q What is your
occupation?
A I'm a member
of the Royal Canadian Mounted Police.
Q How long
have you been a member of the Royal Canadian Mounted Police?
A 16 years.
Q Calling your
attention back to February of 1975, what was your duty station at that
time?
{2788}
A I was in
charge of the Hinton Detachment of the Royal Canadian Mounted Police.
Q And during
the course of your employment with the Hinton Detachment, did you have
occasion to be called upon to participate in the arrest of an individual
who is at trial here?
A Yes, I did.
Q And who was
that?
A Chap sitting
to my left with black hair, black moustache with the buckskin vest on.
MR. TAIKEFF:
I'm glad he identified the best, Your Honor, I thought for a moment it
might be me. But in any event, the identification is conceded.
THE COURT: I
hope that doesn't arise out of a guilty conscience.
MR. TAIKEFF:
Not at all, Your Honor. Just a description.
Q (By Mr.
Crooks) Corporal Doll, have you ever seen the man in the grey suit with
the goatee beard before?
A No, I
haven't.
Q You never
arrested him?
A No.
MR. TAIKEFF:
Not yet.
MR. CROOKS:
Make that clear in the record, Your Honor.
{2789}
Q (By Mr.
Crooks) With regard to the individual you did arrest which you identified
as Defendant Leonard Peltier, I would ask you whether or not at any point
you participated in securing the fingerprints?
A Yes, I did.
Q I would not
hand you what has been married as Exhibit No. 67C and ask if that is a
document you've seen before.
A Yes, it is.
These are the fingerprints of Leonard Peltier which I took on the 6th of
February, 1976.
Q Is that
again the same individual you're previously identified in the courtroom?
A That is the
same individual.
Q With regard
to the Exhibit-67C, the small box in the diagram, do these represent
individual fingers as they would appear and as are designated?
A Yes.
Q And what
process did you use to put the fingerprints on to 67C?
A By rolling
the individual fingers from each hand and placing the corresponding finger
in the corresponding slot on it and rolling the finger across the ink pad
and then onto the paper.
MR. CROOKS:
The United States will offer Exhibit 67C.
MR. TAIKEFF:
There is no objection. No objection to the entire exhibit.
{2790}
THE COURT: Is
that 67C?
MR. CROOKS:
67C, Your Honor.
THE COURT:
Thank you. 67C is received.
Q (By Mr.
Crooks) Now Corporal Doll, previous witnesses have related the arrest of
Mr. Peltier and I would ask you, did you also participate in the arrest at
a Small Boy Camp?
A Yes, I did.
Q Now I'm not
sure that anyone ever pointed out on the large exhibit, we have a large
map of the Western United States and included on that is a part of the
Canadian province of British Columbia and Alberta. Could you take the
pointer behind you and point out to the jury the approximate location of
the place where the arrest took place as is depicted on Exhibit No. 70.
A
(Indicating.) Right in here.
MR. CROOKS:
Let the record show that the witness is pointing to the approximate orange
dot placed within the Jasper National Park to which two green stickers are
pointing.
Q (By Mr.
Crooks) You may retake the witness stand.
Now during the
course of the arrest were you present when Mr. Peltier was searched?
A Yes, I was.
Q And did you
observe any documents, or, excuse me, any items taken from his person?
A Yes. Before
he was placed in a police car I observed a {2791} member take about a
handful of bullets.
Q And what
type of bullets were those?
A Appeared to
me to be about the caliber .380.
Q I show you
Exhibit No. 65 which has been received in evidence. Have you seen that
exhibit before?
A Yes, I have.
G And what does it appear to be to you?
A Appears to
me to be a Browning model .380 semi-automatic.
Q And with
regard to the shells that you previously identified having been taken, the
handful of shells having been taken from the defendant's pocket, would
those operate or function in that pistol that you have before you?
A To my
knowledge they would.
Q Now during
the course of Mr. Peltier's apprehension or arrest, did you overhear any
conversations between him and some other person not a member of your
police force?
A Yes, I did.
Q And would
you describe the circumstances under which you overheard conversations?
A Yes. There
is an elder native from the camp that Mr. Peltier had approached after his
arrest which he had asked him to pray with him.
Q Where did
the conversation take place?
A Took place
in the schoolhouse.
Q Inside of
the school building?
{2792}
A Yes.
Q Go ahead and
relate the conversation as you recall it.
A He requested
that this elder pray with him, which they did. Following the first prayer
there was a second prayer which he asked him to pray with him again to his
grandfather and this sort of thing. Following the second prayer the elder
directed a question to Mr. Peltier which I heard the response as well as
the question that he directed to him.
Q What was the
question?
A He asked him
what would have happened if he had seen the police coming into the camp,
or coming into the schoolhouse.
MR. TAIKEFF:
Your Honor.
Q (By Mr.
Crooks) And what --
MR. TAIKEFF: I
object at this point and ask to come to the side bar.
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. TAIKEFF:
We have received no notice of any such statement exists. We ask whether
the government has in fact served such a notice.
MR. CROOKS:
Your Honor, I am not sure what Counsel is talking about. This is not a
written statement, it's not a report, it's not a statement made to police
officers. We at no time have ever represented to Counsel that we would be
{2793} representing statements of this kind. We have furnished them with
complete copies of all of the police reports. I don't --
MR. TAIKEFF:
It's not in any police reports either and Mr. Hultman --
MR. CROOKS: I
know it's not in a police report.
MR. TAIKEFF:
Why mention you gave us the police reports if it's not in the police
reports. It's misleading to the court.
MR. CROOKS: I
don't see what your objection is.
MR. TAIKEFF:
My objection is that Mr. Hultman said personally in a pretrial conference
informal that we had in our office that he would supply us with all
statements purportedly made by the defendant. He said first and foremost
he would give us those which were clearly and unequivocally produceable
under Rule 16 and that sometime prior to trial if there were any
statements purportedly made by the defendant, even if they were not
strictly produceable under Rule 16, he would voluntarily supply them and
there has been nothing even indirectly notifying us about any such
statement. I just checked it while this witness started testifying.
MR. CROOKS:
Insofar as this statement that we are about to relate, the United States
did not learn of this statement until I was preparing the witness for
testimony today, and, secondly, I did not recall us ever having
represented {2794} that we would make the type of statement that he is
relating available. We certainly have made available all statements that
were made to the police personnel, but this statement was not to police
personnel, it was a statement made and which the overheard and which I had
no knowledge of until today.
MR. HULTMAN: I
had no knowledge at all until now what he may or may not --
MR. TAIKEFF: I
didn't misstate our understanding before trial, did I?
MR. HULTMAN:
I'm not saying you misstated, Elliot. I didn't, I had no knowledge that
there was any statements other than those which were in writing and I
still don't know even, I guess maybe there may now be at this particular
point. I think in all fair --
MR. TAIKEFF:
Could I have the answer?
MR. HULTMAN:
That's what I was about to say. I think in all fairness counsel would at
this time indicate whatever now he anticipates to the response so that it
would be on the record and you would have knowledge.
MR. CROOKS:
Yes. I can do that, Your Honor. As this witness related to me basically as
I came back into the courtroom, or into the federal building --
THE COURT:
When is that?
MR. CROOKS:
Today.
THE COURT: I
mean what time? What's the time frame?
{2795}
MR. CROOKS:
1:20 I assume.
As we were
discussing the preparation of this witness he related to me that he had
overheard this conversation and basically the question was by the elder,
"What would you have done had the agents shot at you or had you seen the
agents coming," and the answer was," I'd have blown them right out of
their socks." The elder then responded, "You're saying that you would have
done this even with my grandchildren sitting here?" And the defendant said
to the elder again, "Yes." And that is in substance what the witness will
testify.
MR. TAIKEFF:
He was in custody at the time when this happened?
MR. CROOKS:
Yes. This was after the arrest and after the prayer meeting that he has
discussed and so forth. And the first notice I had of it was, as I said,
at 11:00, or, well, around lunchtime, whatever time it was I came back.
But it is not in a written report. It is just a recollection that this man
recalled.
MR. TAIKEFF:
We object to it being offered in evidence, Your Honor.
THE COURT: On
what basis?
MR. TAIKEFF:
No prior notice.
THE COURT: On
that basis the objection is overruled.
MR. TAIKEFF:
All right.
Now at this
time before the witness gives the answer {2796} we'd like Constable
Parlane to leave the courtroom.
MR. CROOKS: As
far as I know no one else overheard. it.
MR. TAIKEFF: I
want him to leave the courtroom nevertheless. I'm going to call him to the
stand on this subject.
MR. CROOKS:
All right. All right.
(Whereupon,
the following proceedings in the courtroom in the hearing and presence of
the jury:)
MR. TAIKEFF:
Could I have one moment, please, Your Honor?
THE COURT: You
may.
MR. TAIKEFF:
Thank you, Your Honor.
Q (By Mr.
Crooks) Before I got into this statement, Corporal Doll, is this a
statement which you have related to me earlier today or the contents of
the statement you related to me earlier today?
A Yes.
Q And when was
it that you related this to me approximately, if you can recall?
{2797}
A Right around
the noon hour.
Q With regard
to this statement, were you in any way interrogating Mr. Peltier?
A No, I was
not.
Q Was anyone
else interrogating him other than the person, the elder to whom you
referred?
A Nobody else
was interrogating him.
Q You
described a brief prayer session.
How did this
come about?
A Through the
promptness of Mr. Peltier. He had invited this elder to pray with him.
Q And did your
force authorize this to be done?
A Yes.
Q All right.
Do you know whether anyone else was present other than yourself to have
overheard the conversation?
A I didn't pay
any attention as to whether anybody else was within hearing distance or
not. There could have been. There were several people in the room.
Q There were
several people in the room. No one in your immediate vicinity, would that
be correct?
A That I could
recall, sir. There was just the three of us standing there.
Q O.k. Now,
you had started to relate the substance of the conversation, and would you
relate, first of all, again what the question was that had been raised by
the elder?
{2798}
A The elder
had asked him what would have happened had he seen the police, the RCMP
coming into the camp as well as to where he was at the schoolhouse.
Q And what was
Mr. Peltier's response?
A He indicated
that he would blow us out of our shoes.
MR. TAIKEFF: I
didn't understand that question. Could I have that read back?
THE COURT: me
reporter will read back the answer.
(Answer was
read by the reporter.)
Q (By Mr.
Crooks) And what further conversation was there at that point?
A There was a
response by the elder in the form of another question. He said, "Do you
mean that you would open up fire with my grandchildren and children in the
immediate vicinity, in the immediate area here?"
Q And what
response, if any, was made to that?
A He replied,
"Well, it is my life."
Q He replied
it was his life?
A It was his
life he was protecting, yes.
Q All right.
Now, what was the next thing that occurred insofar as Mr. Peltier was
concerned?
A Following
that he was escorted out of the building and placed in one of the cars.
Prior to being placed in the police car, he was searched by another member
in my presence.
MR. CROOKS:
All right. We have no further questions.
{2799}
MR. TAIKEFF:
Your Honor, I have had a single sheet of paper marked Defendant's Exhibit
166 for identification. I show it to the Government and ask them whether
they provided at some time in connection with these proceedings that
document.
MR. CROOKS:
(Examining) Yes, your Honor, this is a --
(Counsel
confer.)
MR. HULTMAN:
Your Honor, I cannot respond to counsel directly except upon the knowledge
that he has indicated to me it would appear that this particular document
was provided in another matter in another proceedings on the 6th of
February of 1976.
MR. TAIKEFF: I
am not sure about the date. I don't wish to mislead Mr. Hultman into
thinking that there is accuracy to that date. My principal point is that
it is Government prepared, not prepared by defense counsel. That's the
only concession I want from Mr. Hultman.
MR. HULTMAN: I
have no knowledge, and I have indicated that to counsel; but I certainly
-- if that is the information that counsel has and so indicates, I would
accept it.
MR. TAIKEFF: I
do make that representation in order to get the concession from Mr.
Hultman.
MR. HULTMAN: I
am not trying to equivocate in any way. I am not escaping the knowledge.
{2800}
MR. TAIKEFF:
Now, your Honor, I need a moment to get papers marked for identification.
(Counsel
confer.)
MR. HULTMAN:
Counsel, could I ask --
(Counsel
confer.)
MR. TAIKEFF:
Your Honor, after consulting with Mr. Hultman and in looking at the
handwritten date in the lower left-hand corner of this typewritten form
which is Defendant's Exhibit 166 for identification, I am prepared to
state that the greatest probability is that this document, 166, was
prepared by the Government sometime early in the year, 1976, and may in
fact have been prepared in the month of February of 1976.
MR. HULTMAN:
There is a date that appears on it, 2-6-76, some type of description.
MR. TAIKEFF:
May I cross examine at this time, your Honor?
THE COURT: You
may.
CROSS
EXAMINATION
By MR. TAIKEFF:
Q How long
have you been a police officer, sir?
A A little
more than 16 years, sir.
Q And is it
not a fact that you are aware that statements supposedly made by a
Defendant are very significant evidence as opposed to all other kinds of
evidence, such as eyewitness {2801} evidence and things of that sort; is
it a fair statement that in your opinion as an experienced police officer,
you know that testimony concerning what a Defendant supposedly said
carries a lot of weight with a jury?
A Yes.
Q Is it also
fair to say that you are acquainted with the commonplace practice of
police officers writing reports of their activities?
A That is
correct, sir.
Q And that for
a number of reasons perhaps, but at least for one reason, is because often
the police officer who is busy and has many events occurring in his
professional life frequently has to testify at a trial many months or
sometimes years after the event?
A That is
correct.
Q And indeed,
the events of which you speak occurred in February of 1976; and this trial
is taking place right now in April of 1977, 14 months later, isn't that
right?
A Yes, sir.
Q Now, did you
read any police reports before you testified today?
A No, not
today, sir.
Q I didn't ask
you whether you read them today. I said, did you read any police reports
before you testified today?
A Yes, I did.
{2802}
Q I show you
Defendant's Exhibits 167, 168, 169, 170 and 171; and ask that you look at
them for the purpose of determining whether or not you looked at any part
or all of those documents in preparing yourself to testify here?
A (Examining)
Yes. I perused this Defendant's Exhibit No. 167, and the other exhibits I
haven't seen at all today.
Q Did you ever
see them before today?
A No, I
haven't.
Q 167 is a
report concerning the events which I might briefly describe as the arrest
of Mr. Peltier in Canada, is that not correct?
A That is
correct, sir, yes.
Q Now, do you
recognize what 169 is, whether or not you looked at it before you
testified -- I am not asking you whether you can read the words, the
descriptive words on it because I trust that you can. I asked that by
looking at it, do you recognize it for what it purports to be?
A I haven't
seen it before, sir. I would have to read this.
Q Well, if I
showed you a shoe and you had never seen it before, you would recognize
that it was a shoe, wouldn't you?
A That is
correct, yes.
Q Now, I am
asking you to look at that document, whether or not you have seen it
before, and tell us, generically speaking, what is it, if you recognize
what it is; otherwise don't tell us what it is?
{2803}
A No, I don't
know, sir.
Q It is not a
police report, Canadian police report?
A Not a
standard report, sir.
{2804}
Q All right.
Did you ever have any conversations with Mr. Peltier?
A Yes. When I
fingerprinted him.
Q And did he
tell you he was seeking political asylum in Canada?
A He didn't
tell me that. I overheard that. I don't know who he was speaking to.
Q And when you
observed him praying with this older Indian person is there doubt in your
mind that he knew you were near by?
A No. There's
no doubt. I was standing right next to him, sir.
Q Now,
sometime today you told of this supposed episode to Mr. Crooks; is that
correct?
A To this
gentleman with the glasses? Yes.
I believe
that's Mr. Crooks.
Q What
prompted this, how did this come about that you told this to Mr. Crooks?
A We were just
reminiscing as to what transpired at the time of the arrest and talking
about the two prayers that were said, and of Mr. Peltier as a matter of
fact asking me if it would be all right if he could pray with him for a
moment before they left the room.
Q Until that
time it had made little or no dent in your memory? I mean, obviously you
say you remember it today {2805} fourteen months later. Did it make no
impression on you before?
A Certainly it
made an impression on me.
Q You knew
that there was a prolonged extradition proceeding in Vancouver as it was
occurring, did you not?
A Yes, I knew
there was an extradition hearing there.
Q And that
lasted about ten months, did it not?
A I'm not
certain how long it lasted sir.
Q But it was
along here, wasn't it?
A The initial
hearing itself?
Q Yes. Before
any appellate action was taken.
A I don't know
whether it lasted that long. I don't know, sir.
MR. TAIKEFF:
Excuse me one moment, please.
(Defense
counsel conferred.)
Q (By Mr.
Taikeff) Were you aware of the fact that the hearing in Vancouver centered
around the fact that Mr. Peltier was seeking protection from the Canadian
government and wanted to stay in Canada and not be returned to the United
States?
A Yes. I had
heard that he wanted to stay in Canada and not be returned down here.
Q And is it
fair to say that as an adult person and as an experienced police officer
you would consider anyone who would shoot in the vicinity of children, let
alone other people, someone who would not be a worthwhile candidate for
being a citizen of Canada?
{2806}
A Could you
repeat that, sir.
Q Yes.
Wouldn't you do something to prevent the Canadian government from allowing
a person who would shoot in the vicinity of children from staying in
Canada, from getting permission from the Canadian government to remain
there and not to go back to the United States?
A Had it
occurred, yes.
Q Well, did
you go to the authorities and tell them that you wanted to testify that
this was a dangerous man who should be gotten out of Canada immediately
because you overheard that he's willing to shoot bullets?
A No, I didn't
go to any authority, sir.
Q Did you ever
go to anyone other than Mr. Crooks and tell them about this statement?
A Yes I've
told it to several members of our force.
Q Other police
officials?
A Yes. Other
policemen.
Q Was it ever
written down in a report?
A No. I don't
believe it was.
Q Don't you
think that's a significant piece of evidence?
A Not in
Canada it wasn't, sir.
Q You didn't
write a report that day, did you? h No. I haven't submitted a report on
this incident at all, sir.
Q You never
asked anyone to incorporate this particular {2807} additional piece of
information in the report, did you, so that it would be preserved for the
future were it ever necessary to use it?
A No, I did
not.
Q Now, you
identified Defendant's Exhibit 167 if my memory serves me correctly as
something you reviewed; is that correct?
A Yes. I
perused that.
Q Now, that is
a report of the activities of the Royal Canadian Mounted Police who
arrested Mr. Peltier; isn't that correct.
A That report
was written and submitted by my immediate supervisor.
Q That's a
nice answer but it's not the answer to my question.
My question
was: Is it a report of the arrest of Mr. Peltier?
A It includes
his arrest, yes, sir.
Q And the
activities and events of the day on which he was arrested, right?
A That is
correct sir.
Q Did you at
any time go to your superior and advise him of the event that you've just
recently testified to?
A Yes. I've
mentioned it to him.
Q Did you see
any reference to that in his, let me finish my question, five page
single-space typewritten report?
{2808}
A No, I did
not, sir.
Q Now, you
said that you did not read the other documents which I place before you,
169 which is a two page document You say that that is not a regular police
report?
MR. TAIKEFF:
While the witness is contemplating that may I have a word with Mr. Hultman,
Your Honor?
THE COURT: You
may.
(Mr. Taikeff
and Mr. Hultman conferred.)
A This is a
statement which often with regards to our official police reports are
attached as an appendix A. I didn't see the appendix A when I first looked
at it. I do see it right now.
I have not
read the statement before and I still haven't finished reading it. I've
read a half a page of it, sir.
Q (By Mr.
Taikeff) Please read it, not so you absorb the contents, but so that you
become aware of the nature of the contents because I'll put a question to
you that only requires that cursory look.
(Witness
examining Defendant's Exhibit 169.)
Q I see that
you've finished. Is it fair to say that that document of appendix as the
case may be is on legal size paper, is single spaced in the main, and
contains essentially the following: statements purportedly made by Mr.
Peltier to one of your colleagues?
{2809}
A That is
correct, sir.
MR. CROOKS:
Your Honor, in the interest of saving time this man is being asked to read
all the reports. I will stipulate in front of the jury that this statement
was not in any of the reports furnished defense counsel or furnished to
the United States Attorneys' office.
MR. TAIKEFF:
Your Honor, that's not the issue.
MR. CROOKS: In
answer to that I think anything more than that is repetitious. The
contention made that this thing was recorded --
MR. TAIKEFF:
That's not the issue. I'm not exploring whether it's present. I think it's
clear, or should be clear to all that it's not present in these reports.
I'm exploring another aspect, another facet of these reports. Namely their
character. The witness has just testified that this document, two full
pages single spaced concerns primarily statements made by Mr. Peltier,
either at the time of his arrest or the next day.
Q (By Mr.
Taikeff) That's correct, sir, is it not?
A That
statements made to the right.
Q To the right
of that report.
MR. TAIKEFF:
I'm not asking whether it's accurately written or anything of that sort.
Q (By Mr.
Taikeff) Now, I show you No. 170. That's another report, another police
report of the Royal Canadian Mounted {2810} Police; isn't that correct?
A Yes, it is,
sir.
Q And doesn't
that document in the main, one page long, single spaced typing, contain
what purports to be statements made by Mr. Peltier?
A This is
dealing with the writer's had any contact or action with Mr. Peltier. And
this is what they put down on paper, yes.
Q Put on paper
that he purportedly said either on February 6th or February 7th, 1975,
isn't that -- 1976; isn't that correct?
A Also, that
is correct, sir, but it also purports as to what action they took, what
action they did, yes.
Q But in the
main the text relates to things which he said and the circumstances under
which he said them, right?
A Yes. I
perused it fastly.
Q Now, there's
another one page report Defendant's Exhibit 168, that's only two
paragraphs long, single-spaced, not quite a full page. I'd say half a
page. And doesn't that also purport to put down on paper what Peltier said
to one of your colleagues in the RCMP?
A Yes, that is
correct, sir.
Q Now, was
Constable Parlane nearby when this incident that you've told us about
allegedly took place?
A He was in
the same room, yes, sir.
Q How far away
from you was he?
{2811}
A I don't know
for sure.
Q
Approximately.
A Somewhere
within that room, sir. He could have been ten feet away from me, he could
have been twenty-five feet away from me.
Q Tell me,
sir, whether Defendant's Exhibit 171 is a one and a half page
single-spaced typewritten report by Constable Parlane which lists hour by
hour a chronology of everything Mr. Peltier said, or purportedly said on
February 6, 1976.
{2812}
MR. CROOKS
Your Honor, I'll object to the form of the question. That is not correct.
That is what was said to Mr. Parlane. That is not a statement of
everything that was said, does not purport to be.
(Whereupon,
the last question was read back.)
MR. TAIKEFF:
Mr. Crooks is correct, Your Honor. I must rephrase that question.
THE COURT: I
was going to suggest that you do.
Q (By Mr.
Taikeff) Does the document you're now looking at contain what appears to
be the writings of Constable Parlane arranged in a chronological way
stating times before each paragraph and does it purport to contain
statements made by Mr. Peltier on February 6, 1976?
A Yes to your
first question. I'll have to read it in full, sir, with regards to
statements made by him.
Yes. They were
statements made to Officer Parlane.
Q In fact, the
latter half of the first page and all that's on the second page,
essentially that's the latter half of the first page and on the second
page purports to be what Mr. Peltier said on February 6th, isn't that
correct?
A That is
correct, sir.
Q Did you have
any knowledge that any of these documents were going to be prepared before
they were prepared?
A To be honest
with you, with Constable Parlane, I haven't seen him in an official
business or visit from that time, from the {2813} 6th of February and I
haven't had occasion to discuss this file with him since that time other
than the past couple of days that we have been here together in Fargo.
Q But you
knew, did you not, on February 6th, 1976 that any police officer who is
going to write a report and who heard the arrestee, Mr. Peltier, say
anything of any importance whatsoever concerning his criminal prosecution
was supposed to put that down in a report, isn't that correct?
A If he felt
it was of importance; yes, sir.
Q That was
part of my question.
A Yes, sir.
Q And did you
then think what you heard Mr. Peltier say was something of importance?
A As a result
of a discussion today; yes.
Q When you
heard it you didn't think it was important?
A It wouldn't
be important insofar as being relevant to a charge of that statement
itself. That wouldn't be relevant.
Q What did you
hear today that triggered your memory?
A We were just
reminiscing as to what transpired with regards, from the very time we
drove into the camp until we left the camp what was being said. Upon
reminiscing it was suggested that this was of relevance.
Q So you're
saying when you heard it you didn't think it was important at all?
A Insofar as a
conviction of any charge, no. He didn't make {2814} a threat to me.
Q Well, are
you aware of the fact that some of your other fellow officers recorded
everything that was said or apparently everything that was said on all
kinds of subjects, religious ceremonies, the American Indian Movement, the
scars on his chest, prayers for his health, a telephone call to Pine Ridge
so that people would pray for his recovery? Is that uncommon practice to
put down such great detail on police reports?
A Not if
you're directly involved in handling the investigation which I wasn't.
Q But you were
the only person who overheard that statement, isn't that correct?
A No. I
imagine the person that made it and the person that was made to heard it.
Q You were the
only police officer who overheard that statement, isn't that correct?
A I don't
know, sir. I heard it. I don't know whether Constable Parlane or Corporal
Tweedy heard it or Staff Sergeant Mitchell. Staff Mitchell wasn't even in
the building. He couldn't have heard it, I presume.
Q Didn't it
occur to you you should check with someone else to make sure they heard to
make sure it gets down on paper?
A No, I
didn't.
Q At any time
in the last few days did anyone discuss with you any event which
supposedly took place in Oregon?
{2815}
A No.
I've heard
bits and pieces, sir, from newspapers. I haven't heard the exact story.
Q Tell us
again, sir, what happened. What did you hear?
A With regards
to this conversation between the elder and Mr. Peltier?
Q The one that
you say took place.
A Yes. He
asked him to pray with him, to his grandfather and the elder's
grandfather, both of them to pray for grandfathers. Following that he
asked him again to say another little prayer. Following that, before he
was escorted out the elder asked him a question. He asked him what would
have happened had he seen the police coming and Mr. Peltier replied that
he would have blown us out of our shoes, consequently resulting in a
further question by the elder, "Do you mean to say you would have opened
fire with my grandchildren and other children present?" And he said,
"Yes," that was his life that he was defending.
Q Before you
go to sleep tonight are you going to pray to your grandfather?
MR. CROOKS:
Your Honor, I object to this.
THE COURT:
Objection is sustained. The question will be stricken from the record.
MR. CROOKS: We
have no further questions.
THE COURT: You
may step down.
{2816}
MR. TAIKEFF: I
would ask that Parlane be recalled for further cross-examination at this
time, Your Honor. He's available. He's outside.
MR. CROOKS: I
have no objection to that.
MR. LOWE: Can
we approach the bench.
(Whereupon,
the following proceedings were had at the bench:)
MR. LOWE: Your
Honor, I do not believe that I will take very much longer than five
minutes and I note that it's five to 5:00 and Your Honor, of course, is
very prompt. I would ask Your Honor under the circumstances to allow me
the leeway to finish.
THE COURT:
Very well.
MR. CROOKS:
Your Honor, while we're here, perhaps I do have one more Canadian witness
who is the fingerprint man. Now I would kind of like to get him done
before the weekend if possible.
MR. LOWE: From
Canada?
MR. TAIKEFF:
We would stipulate that if you want so either way you want to go. I have
no objection.
THE COURT: How
long will it take?
MR. CROOKS: If
Counsel will stipulate, the only thing is there was a fingerprint found on
the 30-30 rifle which he will identify as Peltier's. Will Counsel
stipulate that?
MR. TAIKEFF:
We have no problem with that. We can {2817} stipulate or you can put him
on and lead him with two questions, either way.
MR. CROOKS:
The only thing I hate to have him staying over the weekend for ten
seconds' testimony.
THE COURT: I
will in view of those circumstances. As long as you're going to be that
brief I will permit you to complete that testimony.
MR. CROOKS:
Thank you.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
DALE ROBERT
PARLANE
being
previously sworn, testified further as follows:
CROSS-EXAMINATION CONTINUED
BY MR. TAIKEFF:
Q Constable
Parlane, I place before you Defendant's Exhibit 167 for identification and
ask you only to tell us whether that is an RCMP report which deals with
the events of February 6, 1976?
A It would
appear to be the report.
Q Now
Defendant's 169, that's Sergeant Mitchell's supplemental report or
addendum?
A Correct.
Q And you've
read it before?
A Just the
part of the first page.
Q Is it fair
to say that in the main it concerns statements purportedly made by Mr.
Peltier?
{2818}
A To Sergeant
Mitchell; yes.
Q Yes, of
course.
And a similar
document No. 170, another supplement. dealing with Mr. Peltier and
statements that he may have made to another individual?
A Yes.
Q And likewise
with respect to 168, at least as to the first paragraph?
A Yes.
Q Now
Defendant's Exhibit 171, that's your report of a similar nature, that is
to say, the events but with some considerable emphasis on things which Mr.
Peltier supposedly said to you, right?
A Correct.
Q Now, sir, I
ask you whether in your experience as a police officer you recognize that
things which an arrestee or defendant days are very, very important
evidence?
A Yes. That's
correct.
Q And in fact
that's why you warn a person when you place a person under arrest, that
the person has a right to remain silent, isn't that correct?
A Right.
Q Because such
evidence is taken very seriously by jurors, isn't that correct?
A Right.
{2819}
Q And basing
the following on your experience, I ask your professional opinion,
sometimes a statement allegedly made, supposedly made by a defendant, if
believed by a jury can often convince him to convict no matter what other
kind of evidence there is in a case, isn't that true?
MR. CROOKS:
Your Honor, I'll object to the form of this question. This is wild
speculation.
MR. TAIKEFF:
Asking for his opinion.
THE COURT:
Objection is sustained. There's no foundation he ever even served on a
jury.
MR. TAIKEFF: I
wasn't suggesting he was.
THE COURT: How
would he know?
MR. TAIKEFF:
As a police officer.
THE COURT:
A police
officer would have no way of making a determination as to how the jury
reached its decision. The question is improper.
MR. TAIKEFF:
All right, Your Honor.
Q (By Mr.
Taikeff) Is it not part of your instruction and understanding as an
officer that it's very important to get down every single word that you
can get down on paper that a defendant supposedly says?
A Yes.
Q Now would
you tell me whether in your report this hour by hour supplemental report
or special report which has been marked Defendant's Exhibit 171 for
identification, it indicates {2820} that at any time Leonard Peltier said
to you in words or in substance, "If I knew you were a cop I would have
shot you, I've already done it once"?
A You're
asking me if he said that to me?
Q I'm asking
you whether it's in your report. Yes or no.
A Doesn't
appear to be in my report.
MR. TAIKEFF:
Your Honor, at this time I offer the fourth paragraph of Defendant's
Exhibit 166 in evidence, a government prepared document in connection with
this litigation.
MR. CROOKS:
Your Honor, I'll object to this on several reasons; Number one, I haven't
the slightest idea exactly where 166 came from. I don't think Mr. Hultman
does either and there is absolutely no foundation for it in any event.
This witness was recalled for apparently having something to do with what
the sergeant, Corporal Doll was testifying about and it's improper
question and improper redirect and absolutely nothing to do with what he
was recalled for.
MR. TAIKEFF:
Your Honor, Mr. Crooks says be doesn't know where that document came from.
Mr. Hultman conceded before it was prepared by the government and not by
Mr. Hultman and supplied to the defense in connection with these
proceedings, although at an earlier time.
{2821}
MR. HULTMAN:
Your Honor, Counsel, I said that if this, there was evidence that this was
the fact, then I would be willing to accept it. I have seen no showing of
any kind as to the source of this document. I am willing to accept any
proof or showing of any kind.
What my
statement was, one, I had no knowledge of this document; two, that I would
accept any showing, of any kind, but there's no showing of any kind as to
where this document came from or the source for it, Counsel, and that's
the reasons now for the objection.
MR. TAIKEFF:
All right. Your Honor, in fairness and in the hope that we only deal here
accurately, I would ask Your Honor not to rule on the offer until Mr.
Hultman has an opportunity, and I'll give him a photocopy of that exhibit
to check, and see whether or not a duplicate of it is in the files of the
Government. And whether they can ascertain if they indeed supplied it.
Other than
that I have no further questions.
MR. HULTMAN:
May we approach the bench, Your Honor?
MR. CROOKS: We
have no more questions of the witness and we'd ask that he be excused.
MR. TAIKEFF: I
have no objection. I hope he enjoys his trip home.
THE COURT: You
may step down.
MR. CROOKS:
Can we approach the bench briefly on the {2822} second matter, Your Honor?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench.)
MR. HULTMAN:
Your Honor, one, as I indicated to counsel anything that's been said or
done about this document has been purely on the basis of whatever
representations counsel have made to me.
MR. TAIKEFF: I
understand that, Mr. Hultman.
MR. HULTMAN:
And I think we're in agreement there. One, I have no knowledge of any kind
of this document. I've never seen it before and I've never seen in our
files before. I think it's incumbent upon the defense, it's their
document.
MR. TAIKEFF:
It's the Government's document. It was turned over as Brady material in
connection with the last trial.
MR. HULTMAN:
Well --
MR. TAIKEFF:
And that's my understanding. I represent to you that it's my
understanding. I wasn't on the last case, so I can't represent that as a
fact.
MR. HULTMAN: I
think there has to be a showing of some kind.
THE COURT:
Well, on the basis of the foundation now I sustain the objection.
Now, you are
still free to --
{2823}
MR. TAIKEFF:
But, Your Honor, I would like to point out technically Mr. Hultman made
the concession. I don't want to hold him to a rigid and unreasonable way.
I ask Your Honor to withhold his ruling giving Mr. Hultman an opportunity
to check on that document. And as I said I will give him a photocopy of
it, or the Clerk can do so. I'm sure when he checks, he will find out that
this was a document produced by the Government as Brady material in
connection with the Robideau-Butler trial. And then the authenticity of it
and its source is not in question.
MR. HULTMAN:
Well, first of all the document, I haven't read it. I glanced at it at the
sidebar, but I don't see where it has anything to do with the statements
that concern --
MR. TAIKEFF:
Be glad to tell you what my opinion is in that regard. We have had a
previously unrevealed serious admission testified to and there is on that
document a comparable one which is not in Parlane's report, was not
testified to by Parlane on his direct examination, and our position is
going to be that this is just evidence of the kind of stuff that law
enforcement people will do in an effort to convict somebody. And I think
--
MR. CROOKS:
Apparently the Mounties are in on the conspiracy, too.
MR. TAIKEFF:
It is too close a call to be just one {2824} of those unbelievable
coincidence. Now, I think you may argue against that. You may feel that
we're wrong, but surely as to whether or not we should have an opportunity
to make that argument to the jury I think there is no doubt. That other
statement is essentially the identical statement, but it happens to come
out of someone else's mouth in a slightly wrapping.
MR. HULTMAN:
Well, then I don't see the problem. I don't see where the duty, there's
any duty on me at this particular point. And that's the resistance I'm
making at this particular time.
MR. TAIKEFF:
Do you want me to call one of your assistants as a defense witness in the
middle of the trial to establish the authenticity of this document, or do
you want to make a concession if you find that a concession is warranted.
MR. HULTMAN:
If you will indicate specifically what it is, what involvement, where
specifically that you are seeking what the information is I will then be
glad --
THE COURT:
Just a minute. To shorten this record this evening I will reserve my
ruling on 166.
MR. TAIKEFF:
We thank you.
MR. HULTMAN:
At least give me a copy.
MR. TAIKEFF: I
will absolutely. There's a piece of evidence that the Government wants to
put in this afternoon.
{2825}
THE COURT: I
know. That's why I want to shorten this proceedings.
MR. LOWE: I
don't want custody of this over the weekend, Judge. I'm going to leave
this with the Clerk. Mr. Hultman and I have discussed this. We'll take it
up sometime on Monday. Is that agreeable?
MR. HULTMAN:
Fine, fine.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
MR. CROOKS:
Your Honor, the United States would like to call now Mr. Gerald Plastow
and hopefully it can be very brief.
THE COURT:
Members of the jury, it's Friday afternoon, we're running a little bit
beyond my usual recess time and the reason for that is that this next
witness has been represented to me as a witness from Canada. His testimony
will be very brief and counsel have asked to be permitted to put him on
this afternoon so that he would not have to stay over the weekend.
GERALD EDWARD
PLASTOW
being first
duly sworn, testified as follows:
DIRECT
EXAMINATION
BY MR. CROOKS:
Q Mr. Plastow,
would you again state your full name for the record, please.
A Gerald
Edward Plastow.
{2826}
Q And with
regard to, first of all, what is your employment and where do you reside?
A I'm with the
Royal Canadian Mounted Police and I reside in Edson, a province of Alberta
in Canada.
Q And do you
have any special duties with the Royal Canadian Mounted Police?
A I'm an
identification technician.
Q And I will,
because of the latest of the hour and without objection of counsel, I will
try to be extremely brief.
Have you
testified and qualified as an expert in the area of fingerprints?
MR. LOWE:
We'll stipulate to that, Your Honor. There's no question about his
qualifications.
MR. CROOKS:
All right.
THE COURT: Is
that acceptable?
MR. CROOKS: We
will accept the stipulation and move directly into the examination.
MR. LOWE: It's
quite permissible in this instance for Mr. Crooks to make one foundation
leading question and let the witness acknowledge it. If he wants to do it
this way, that's fine, too.
THE COURT:
Very well.
Q (By Mr.
Crooks) With regard to Exhibit 67-A, which is a 30-30 rifle, did you raise
a fingerprint on this rifle, and I hand you Exhibit 67-B for
identification?
{2827}
A I raised a
fingerprint on a Winchester rifle. That one is the one I examined. My
initials would be inside the butt plate. You'd have to take the screws
off.
MR. LOWE:
We'll stipulate to the identification. We'll stipulate to the whole thing
if you'll state it. We don't really need to spend a lot of time on this.
MR. CROOKS: I
will represent for the record that this is the rifle without removing the
butt plate. We would offer 67-B which is the negative.
MR. LOWE: On
the representation of counsel, if that is the one, we'll stipulate it,
stipulate the identification as being the fingerprint that was taken off
of that weapon.
Q (By Mr.
Crooks) And I would now hand you 67-C and 67-B and ask whether or not you
made a fingerprint comparison between the latent negative and the ink
print?
A Yes, I did.
Q And do you
have an opinion as to whose print is contained on 67-B, I believe, isn't
it?
A 67-B.
Q Right.
A The two
fingerprints found on the rifle and shown in the photographic negative
were the right ring and right little finger prints on Exhibit 67-C.
Q And that
would be the fingerprint card of Leonard Peltier; is that correct?
{2828}
A That is
correct.
MR. LOWE: So
stipulated subject to the record, Your Honor.
THE COURT:
Very well.
MR. CROOKS: We
have no further questions, Your Honor.
THE COURT:
Just a minute. Which exhibits have you offered?
MR. CROOKS: I
believe that, excuse me, I'm not sure 67-A was offered.
THE CLERK:
It's offered and C is offered and B is offered.
MR. CROOKS: So
all three are offered.
MR. TAIKEFF:
No objection.
THE CLERK: The
Judge has not ruled yet on B nor has counsel.
MR. CROOKS: I
thought they had stipulated to that, Your Honor.
THE COURT: I
know, but I have not actually ruled on it. Now, is that 67-B?
MR. CROOKS:
67-B is the negative,
THE COURT:
Very well. That's received.
MR. CROOKS: We
have no additional questions.
THE COURT: Has
67-A been received?
THE CLERK:
A is in, Your
Honor, and C is also in.
{2829}
THE COURT:
Very well.
MR. LOWE: We
have no questions, Your Honor.
THE COURT: You
may step down.
I expect that
it is not necessary for me to again remind you that you must keep an open
mind, not discuss the case and not reach any conclusions in the case until
after all the evidence is in.
Court is now
in recess until 9:00 o'clock on Monday morning
(Whereupon,
the court recessed at 5:15 o'clock P.M. on April 1, 1977; to reconvene at
9:00 o'clock A.M on April 4, 1977.)
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