VOLUME XVII
Pages 3458-3712
{3458}
TUESDAY
MORNING SESSION
April 7, 1977
9:00 o'clock,
A.M.
(Whereupon,
the following proceedings were had and entered of record on Thursday
morning, April 7, 1977, at 9:00 o'clock, A.M. without the hearing and
presence of the jury, the defendant being present in person:)
THE COURT: The
marshal service has informed me that one juror required some minor medical
attention this morning and that juror is being taken to the clinic and
probably will be 9:30 before they return.
There were
some matters when we recessed yesterday evening that were pending. One of
the problems we are continually facing in this case is the matter of
evidence that is admissible or not admissible, and I'm sure Counsel for
both sides are aware that I construe the issues in this case to be as set
out in the indictment together with the defendant's plea of not guilty.
Now that the
government has completed its presentation of evidence, the Court's
position with reference to evidence to be offered by the defense is simply
that evidence relative to the issues and the evidence presented by the
government will be admitted. I will state, however, that witnesses who
have testified will not be impeached by a showing of misconduct of the
Federal Bureau of Investigation unless that misconduct relates to the
testimony of the individual witnesses {3459} who have testified or unless
that misconduct relates to exhibits that have been received in evidence.
Under that standard I find no relevance in the Anna Mae Aquash matter.
With reference
to Myrtle Poor Bear, she not having testified in the government's case, I
can see no relevance in the matter of her testimony in a prior proceeding
or her activity in connection with the extradition proceeding. The only
thing that's relevant to the extradition proceeding is that they were had
and the defendant was returned. Whether or not he should have been
extradited is not an issue before this Court.
Some days ago
I reserved ruling on Exhibit 166, the last paragraph of 166. The objection
to that exhibit is sustained on two grounds. There is no foundation for
the exhibit and it is irrelevant. The fact that the paper may have been
received from the government does not establish its authenticity for
evidence purposes and as near as I can determine, the purpose of the offer
was to impeach Doll and possible Parlane. It's irrelevant for that
purpose. Parlane testified and was never questioned on it and it is
irrelevant for the impeachment of Doll. I shouldn't say he wasn't
questioned on it. He wasn't questioned as to whether or not he had heard
such a statement. He was simply questioned as to whether or not he had
included that in his report.
Exhibit 185
and 186 will not be received. That's the {3460} list of rifles from which,
that would accommodate certain ammunition. In the absence of a showing
those rifles were actually found or in the area, those two exhibits have
no probative value. Other than that, what is already been presented
through the questioning of the witness and the presentation of the
information to the jury.
Then we come
to the matter of the laboratory report. I have examined those laboratory
reports. The reports in their present form are going to be excluded under
403. They appear to be confusing and would be meaningless and cumulative
to the jury. Furthermore, in the form that they are in some of them
duplicate others. I have particular reference to 134 and 187. However,
with reference to those laboratory reports, if the parties can get
together and agree on what in those reports might be appropriate to
present in evidence under Rule 1006, which is a summary evidence, I would
give consideration to that. If the parties cannot get together, I would
give consideration to an offer of a summary taken from those exhibits by
the defense on those matters which they feel are relevant to their case.
In other words, it would have to be relevant to what has been brought out
on oral examination or otherwise shows some inconsistency to that which
has been presented.
Exhibit 177
because of the discrepancy between it and information contained in 134 and
187 may be relevant but {3461} I'm going to reserve ruling on that at this
time because standing alone it would not be particularly helpful and if
Counsel can extract a summary from 134 or 187 that would make 177
meaningful to the jury, I would then consider receiving 177 because it may
show up an inconsistency.
{3462}
MR. LOWE: Of
course, your Honor, there is an inconsistency right internally within the
document. That by itself has an internal consistency which impeaches one
of two witnesses, at least casts doubt on Special Agent Hughes' testimony
because Mr. Hodge shows one cartridge and Mr. Hughes shows two.
THE COURT: I
have not turned that down. I do recognize an inconsistency. I may admit
that, but I want to give you a chance to see if you can get something
meaningful out of 134, 135, 187, 188, 189, 190, 191 and 192.
MR. LOWE: I
gather what your Honor is saying, you are reserving final decision on
those documents which were offered, except that you are indicating that
you intend not to receive them as they were offered but to give us an
opportunity to work out some summary or some culling of some sort.
THE COURT:
That is right.
MR. LOWE: The
offer is still pending as far as you are concerned until we come up with
some suitable alternative?
THE COURT:
Yes. The exhibits in their present form will not be received. I will give
you an opportunity to work out something, some summary or something from
those exhibits which would have some probative value and would {3463} be
presented to the jury and would not be misleading or confusing.
MR. LOWE: We
will still try to work something out in view of your ruling to avert
having to recall Mr. Hodge. I will get together with Mr. Sikma sometime
today or Monday to try to work it out.
MR. HULTMAN:
Would you read the last total list? You read off the total list. I don't
have copies on all of them, but I know they are reports, so I would like
to have it.
THE COURT: The
list which I just read was 134, 135, 177 -- 177, of course, I think the
Government produced?
MR. HULTMAN:
Yes.
THE COURT:
187, 188, 189, 190, 191 and 192.
MR. HULTMAN:
Thank you.
THE COURT:
Those are the lab reports.
Now, unless
counsel has something more to present at this time, we will recess until
the jury can be brought in.
MR. TAIKEFF:
There are some matters, your Honor, if you have some time.
THE COURT:
Very well, you may proceed.
MR. TAIKEFF:
Pursuant to the position taken by the defense yesterday, we wish to notify
the Government of two additional witnesses who have been qualified since
the time we recessed yesterday afternoon. That is Lavina Deloria -- {3464}
(spelling) D-e-l-o-r-i-a -- and Jimmy Durham -- (spelling) J-i-m-m-y
D-u-r-h-a-m.
I believe that
an application was made which is pending before your Honor, and that is
for the Government to reveal the names of the two Special Agents who
prepared the Myrtle Poor Bear affidavit.
MR. HULTMAN:
Well, your Honor, one, I resist, and two, I think the matter is now moot,
and thirdly, I do not know, standing here, but I want, one, the Court to
know that I resist that particular motion; and two, I feel that it is a
moot matter; and three, if the Court does make such a ruling, I will, of
course, proceed accordingly to make inquiry. I don't even know it is a
fact that it is two individuals, whether or not it is a lawyer or anyone.
THE COURT: I
think that in fairness to the defense you should reveal the names. I don't
know that it has any relevancy.
MR. HULTMAN: I
will make the search. I am not prepared because I don't --
THE COURT:
(Interrupting) Maybe the defense can find some relevancy if you reveal the
names.
MR. TAIKEFF:
Your Honor, I would like to address myself to what appears to be the
articulated basis of your Honor's ruling in connection with the Myrtle
Poor Bear matter. I gather from what your Honor says that if {3465} we
could produce a witness who would say that he or she was approached by
Agents of the Federal Bureau of Investigation and offered an inducement of
one kind or another to give knowingly false testimony against Leonard
Peltier in order to assist in the successful prosecution of him, such
evidence would not be relevant if that person was not called to testify
during the Government's case. Do I misunderstand, your Honor?
THE COURT: It
depends upon who the person would be -- I mean who the FBI Agent was.
MR. TAIKEFF:
One of the Agents involved in the central part of the investigation of
this case.
THE COURT: Did
he testify in this case?
MR. HULTMAN:
Well, your Honor, might I interpose? Is the statement that counsel is now
making that money was given? The postulates that you have just made,
counsel, are you postulating that is what with an offer of proof you will
be showing as far as Myrtle Poor Bear?
I want to make
sure we are on the same track here.
MR. TAIKEFF:
Your Honor, if Mr. Hultman would listen to what I say --
MR. HULTMAN:
(Interrupting) I am trying to. That's why I am asking.
MR. TAIKEFF:
One of the very few talents, if I have any, is to articulate clearly and
unambiguously.
{3466}
I put a
question to your Honor to see whether or not I understood the basis of
your Honor's ruling. I put it to your Honor, what I would say is a
hypothetical.
MR. HULTMAN:
That's what I wanted to know. You are talking first about Myrtle Poor
Bear, and then you propose a hypothetical.
MR. TAIKEFF:
It seems to me that is what your Honor says.
It also seems
to me it doesn't matter which Agent it is if in connection with his
official duties, a Special Agent of the FBI went to someone and said -- I
am giving your Honor an extreme hypothetical so there won't be any
ambiguities -- "We need some extra evidence against Leonard Peltier."
Is your Honor
saying we cannot introduce evidence of that through a person so contacted
by the FBI because that person was not called?
THE COURT: I
am not going to give you a ruling on a hypothetical question. I am simply
stating that evidence relevant to the issues and relevant to the evidence
which has been presented by the Government will be admitted; and I further
stated that witnesses who have testified will not be impeached by a
showing of misconduct of the FBI, in other words, general misconduct of
the FBI.
MR. TAIKEFF:
First of all, we don't intend to offer {3467} general misconduct of the
FBI evidence.
Secondly, we
don't offer it to impeach a particular witness as to that particular
witness' testimony, except to the extent that any witness may have been
asked whether that witness participated in any illegal activities in an
effort to convict the Defendant. Other than that we don't offer that as
impeachment evidence. We offer that as affirmative proof, evidence in
chief, of the effort by certain members of the Federal Bureau of
Investigation to falsely and improperly assemble evidence against the
Defendant; and we will call two separate witnesses, and I am not talking
about Myrtle Poor Bear -- two separate witnesses, one of whom will testify
to serious threats in an effort to induce that witness to give false and
perjurious testimony; and we will call another witness who will say that
he wasn't threatened with physical harm, but he was threatened with a
prosecution for which there was no factual basis if that person did not
assist the FBI.
Now, the
Myrtle Poor Bear episode is one additional episode in the sequence of
events which we have uncovered concerning the Government's effort to
prosecute Leonard Peltier successfully when otherwise they might not be
able to do so or entitled to do so.
I quite
frankly, your Honor, with all due respect to {3468} the Court, cannot
possibly understand your Honor saying that such evidence is not relevant
in this case.
THE COURT: I
want to make it clear I did not say that such evidence is not relevant.
MR. TAIKEFF:
Myrtle Poor Bear is just one more similar type event. In her case there
were, we believe and we have subpoenas out --
THE COURT:
(Interrupting) Just a moment. I also did not say it was relevant, I just
said I am not going to rule on it at this time until I see specifically
what the evidence is.
MR. TAIKEFF:
We won't attempt to put on the Myrtle Poor Bear evidence until we produce
the evidence in the other matters. It won't come in by a vacuum. Perhaps
by then we will have laid a sufficient foundation to satisfy your Honor
that there is at least a fact question for the jury to determine whether
or not the FBI conducted themselves in an improper and illegal manner in
connection with the prosecution of this Defendant for these charges.
THE COURT:
Well, let's assume that they did not. How does that bear on the question
as to whether or not this Defendant is innocent or guilty, based on the
evidence presented by the Government?
MR. TAIKEFF:
That's precisely the point . I assumed your Honor might want to pose this
question. Let's {3469} assume that they did not --
THE COURT: I
meant to say "did".
MR. TAIKEFF:
All right. If you assume that they did, the specific kinds of evidence
that they wanted certain witnesses to offer, which the witnesses knew and
told the FBI was not true, are identical in certain respects to other
items of evidence which the Government has adduced through witnesses
similarly situated.
{3470}
And it only
goes to show that as to certain witness's testimony the FBI succeeded in
getting certain witnesses to give that testimony. When someone was in an
exact same posture to perceive, to remember and to be a witness to the
very same events. Say A it isn't true, and B the FBI pressured me to say
those things.
Now, if
witness B says I was threatened to say X, and X is not true and I was
there with A and we both saw and it couldn't be that, I didn't see X, but
A saw X, and the witness A testifies to X it raises a serious question as
to both the conduct of the FBI in connection with this prosecution and the
veracity of the testimony of A with respect to subject X.
Now, the
witness who comes to testify, if that witness has been intimidated, is
successfully intimidated; and hence will not say this isn't true.
Obviously a witness who has been successfully intimidated isn't going to
get up on direct, and give the testimony, and on cross-examination say,
"Oh, by the way, it wasn't true, I did it only because the FBI bent my
arm." But if someone who was standing next to witness A and who observed
the same events, and who says affirmatively X is not true, and the FBI
came to me and threatened and said you must X or else, then we prove the
nature of the FBI involvement in this case, and we also tend to prove by
rebuttal evidence the falsity of X which is the {3471} testimony given by
A. It's a very simple proposition.
I just can't
understand how Your Honor thinks that it's something that we shouldn't be
able to prove, or shouldn't be allowed to prove in this case.
Indeed one of
the witnesses, I'm reminded by Mr. Lowe, testified that he was physically
threatened and tied in a chair and kept that way for three hours. And now
maintain --
THE COURT: And
that was brought out.
MR. TAIKEFF:
That was brought out, but another witness will testify that the very same
critical testimony that Anderson gave here in his direct was something
which isn't true and which the FBI tried to bend his arm to say was true.
Now, in an
earlier phase of this case the Government asserted that a certain witness
was being coerced by certain forces; and Your Honor's position with
respect to that witness's disavowing of the coercion was if there is a
coercion the witness who has been successfully coerced is not going to
tell the truth about having been coerced. Now, I don't see why it's okay
for the Government to take that position, but it's not okay for the
defense to take that very same position.
If Your Honor
did not believe Angie Long Visitor's unqualified assertion that the
Government was having a fantasy about herself being coerced and Your
Honor's view of it {3472} therefore must have been based upon the fact
that if indeed she was coerced we cannot accept as credible her denial of
the coercion. That principle must apply equally in this situation for the
defense. Your Honor doesn't have to believe the witness we produce but
Your Honor is not the fact finder.
THE COURT: I'm
not the fact finder.
MR. TAIKEFF: I
understand that. If someone says X and someone says minus X, that by
classical definition is a factual dispute that can only be resolved by
that jury, providing it's relevant.
Now, it's
clearly relevant. If someone says that they saw Leonard Peltier down by
the cars and another witness says that the FBI insisted that a certain
witness testify to that, even though the witness said that wasn't true, he
was never down by the cars, then surely that goes to the question of
whether the first witness was telling the truth in that particular sense
with respect to that particular fact.
Now, Myrtle
Poor Bear may or may not have been threatened. We have an ongoing
investigation with respect to the question of whether or not she was
threatened as well as being manipulated. We have concluded our
investigation in that regard. But it makes little difference whether you
go to somebody who is totally competent and threaten them with physical
harm or with an unfounded prosecution, or whether you go to someone who is
in one sense or another a mental defective, {3473} and you manipulate them
and get them to cooperate with you. I can't imagine that it makes any
difference if believed, and at this particular juncture, just as Your
Honor takes a certain view of the Government's evidence when deciding a
Rule 29 motion, Your Honor doesn't decide whether it's true or not unless
it is incredible as a matter of law.
Your Honor
need only determine whether if true that testimony will or could influence
the jury's decision. Now, I don't think Your Honor can find, with all due
respect to Your Honor, that if the jury believe that the FBI did things
like this to the three witnesses that we will produce, including Myrtle
Poor Bear, that they can have sufficient confidence in the prosecution's
evidence. The evidence that concerns the important stuff in this case, not
the myriad of window dressing that we heard. I'm astounded at the
suggestion, if that's the suggestion Your Honor has made, that we cannot
prove conduct like that.
Now, I said to
Your Honor yesterday that, and I trust that Your Honor accepted it for
what it said, we don't intend to assert any general wrongdoing on the part
of the FBI. It is not our purpose here to attack the FBI generally, or to
rake up any old episodes of recent United States history. What we're
talking about, what we intend to introduce evidence about, is conduct of
those agents of the FBI who worked on this case which concerns itself with
an effort to convict {3474} Leonard Peltier of the murder of these two
agents, and that's all.
And, Your
Honor, I am just amazed that Your Honor even suggests that conduct of that
kind, if we have evidence of it, is not something that the jury should
hear.
MR. HULTMAN:
May I respond?
THE COURT: You
may. I just want to ask counsel, does the, is it your contention that the
Anna, or is it Anne?
MR. TAIKEFF:
Anna Mae.
THE COURT:
Anna Mae Aquash matter falls in the category you have described?
MR. TAIKEFF:
No, Your Honor. I made that concession yesterday that it does not. I told
Your Honor that there are certain members of the defense who strenuously
disagree with me and although we usually work as a team and we proceed by
consensus, this is one issue where I take individual action and concede to
Your Honor that it is not relevant.
If before we
rest we develop a sufficient foundation, a sufficient annexus, I will not
be ashamed to come to Your Honor and say I've changed my mind and I offer
to prove that. But I made that concession yesterday.
The facts of
the Anna Mae Aquash episode are not irrelevant in my opinion to this
trial. I'm in a minority in the defense team, but my concession is on the
record.
THE COURT:
Well, I don't want counsel to feel that I {3475} am foreclosing you from
bringing in the witnesses of the type that you have suggested. Whether or
not that evidence is admissible I have not yet determined in my mind.
MR. TAIKEFF:
In apropos, I understand what Your Honor has just said. I do want to
address myself to another --
MR. HULTMAN:
Could I address?
THE COURT: I
have not heard Mr. Hultman.
MR. TAIKEFF:
I'm sorry.
MR. HULTMAN: I
don't want equal time, I just want a little time.
Your Honor,
first of all let us go beyond, and that's all I was trying to get at in
asking counsel a specific question or two, let us get beyond hypotheses
and get to what an offer of proof would show, because that's what we're
really here to talk about. So let us talk specifically I believe for a
moment about what counsel, he finally did get to naming a specific piece
of testimony and a specific witness.
I will carry
that beyond to another specific individual whom I believe he's even going
to call. Counsel has referred to two people, to use his words, in a
hypotheses standing together, looking at something, one saying one thing
and somebody making that person say something different. Now, first of all
I don't think when the offer of proof comes there is going to be any
showing of any kind that two people were standing observing exactly the
same thing at the same time.
{3476}
What the proof
is going to show and what it has already shown is that Mr. Anderson and
Mr. Brown, and if Counsel wants to indicate that it's somebody other than
Mr. Brown who is going to be the individual, then I'll be glad to change
my hypothesis, that these two individuals stood and observed exactly the
same thing. I submit, first of all, that hypothesis is so fantastic that
the proof will not conform in any way. They were two people doing
different things at different times in different places and observing
something at a given time possibly, but in many times not observing the
same things at all.
Now secondly I
believe that the offer, were it to be an offer, will show we're not
talking about iffy, iffy, iffy, but we're talking about specifics, we'll
likewise show that the testimony that Mr. Brown has already given on the
stand and about the events we're now concerned with on the stand that
happen on the 26th, and there was cross-examination about the events that
happened on the 26th, what he saw, what he observed and what he did. That
is evidence in this case and that is what now Counsel in some way, unless
they can attack that testimony that it is dishonest, that it is incorrect,
that in some way that testimony is wrong, then I say it's a collateral
issue totally and that's the point I wish to make four square, straight
out on the record.
If you're
going to dredge up things that Mr. Brown {3477} may have testified about,
then we're talking about collateral matters. Unless it is something which
in fact did happen and Counsel is wishing to take that position from the
beginning and thus they had an opportunity by direct examination and
cross-examination to get at those matters, I say that is a collateral
matter which has no relevancy of any kind in this case.
Now let's deal
then with a further specific. The mere facts that an individual sees
certain things but does not see other things at other times and places
because he doesn't happen to be observing a very given event at that time
in no way can then be used as proof that because another person sees
something in addition, because he was looking at cars and at the events at
a given time when certain things do take place, that we can conjure up at
another time and another place some alleged or possible testimony of the
witness who has been on the stand to disprove the testimony of the
individual who has been on the stand, who has been cross-examined about
the very events and things that he saw as a basis then to impeach him. I
say, Your Honor, that's irrelevant, that's the straw man, that's the
position that the Court has espoused a little bit ago. That's the very
strong position that the government takes.
MR. TAIKEFF:
Your Honor, since Mr. Hultman has focused attention on the Norman Brown
aspect of the case, I {3478} will address myself to it but not by way of
making an offer of proof but rather by trying to show Your Honor the
technique, maybe not a conscious one, maybe one of necessity, which was
employed in this case and which did not provide a basis Your Honor
inhibiting us in our legitimate endeavors.
Norman Brown
did not testify on his direct examination in this case to certain matters.
He did not testify to those matters because he was not asked. I have no
right to inquire of Mr. Hultman as to why he did not ask certain questions
but I can tell Your Honor this: that our investigation reveals as to those
matters, those particular matters that I've referred to without any
specificity that the government did not ask about on this trial, the
witness previously testified under oath, and our inquiries of the witness
reveals that it is the witness's position that the witness previously
perjured himself with respect to those matters, and at the insistence and
upon the threats of the FBI.
Your Honor, I
think Mr. Crooks is having some sort of a unique medical syndrome. Every
time I say something about the FBI he seems to laugh. Now, I would
certainly join in application for a recess so he would consult a doctor.
Now, Norman
Brown is going to testify that in a previous proceeding under oath he gave
certain testimony and that it was knowingly perjured testimony but that he
did so under threats and coercion by the FBI, and that finally he decided
{3479} to be brave and to be honest and he came into this courtroom and
for the first time in connection with any proceeding at which he testified
he took his oath upon the sacred pipe and resolved to tell the truth and
only the truth. He was not asked those questions by Mr. Hultman. I don't
mean to suggest by that so Mr. Hultman will not rise in anger that this is
any plot of Mr. Hultman's. It must be clear to any lawyer who is
interviewing a witness that if the witness is not going to say the desired
answer to a certain question you don't ask that question. I do that, Mr.
Hultman does that and I think any trial lawyer who knows what he's doing
does that. The point is that Norman Brown was not prepared to give that
testimony in this trial. That doesn't end the matter for defense. That
doesn't preclude us because Norman Brown wouldn't say it in this trial
because he swore on the sacred pipe this time and hence Mr. Hultman
performing his function as lawyer didn't ask him that question. But it
turns out that someone else testified that way, someone who did come under
the influence of the FBI and who did not testify on the sacred pipe, even
though in an interview the day before when asked if he believed in the
religion of the pipe he said, "Yes," and when asked if he would then swear
on the pipe before he gave his testimony he said, "Yes, I will," but when
he came into this courtroom he did not.
Now for the
jury not to have the circle closed to {3480} hear Norman Brown's version
of what went on at pretrial with respect to that single aspect of the
case, surely that's not an unimportant aspect. It may be one of the major
reasons why Your Honor denied our Rule 29 Application, because there's
prima-facie testimony saying that the defendant was down by the car or
cars when the agents were found dead. That's a critical piece of testimony
in this case. Surely if we could elicit the five most significant pieces
of testimony in this case, that has to be number one or number two.
I don't
understand how Mr. Hultman thinks that if a witness is willing to come
into this courtroom and swear to the fact that, A, it isn't true and, B,
he was threatened by the FBI to give that testimony and in fact fell
victim to those threats and gave that testimony under oath perjuriously on
an earlier proceeding, how that's not relevant.
I can
understand Mr. Hultman not wanting to hear that testimony in this
courtroom but that doesn't provide a basis for blocking us legally from
doing it.
MR. HULTMAN:
Could I respond before you go to another matter?
THE COURT:
Before you respond, because of comments which Counsel made, I would like
with, with reference to the sacred pipe, I would like to ask you for your
interpretation of Rule 610, "evidence of the beliefs or opinions of a
witness on mutters of religion is not admissible for the purpose of {3481}
showing that by reason of their nature his credibility is impaired or
enhanced." I'd like your interpretation of that rule.
This matter of
the distinction has been made by Mr. Lowe I think on a couple of occasions
and now you have made it in your comments about a witness having taken the
regular oath, a native American witness having taken the regular oath
rather than the oath on the pipe and I'm just wondering what your
interpretation of this rule of evidence which I just read is with
reference to these comments which Mr. Lowe made in the course of the trial
and which you have now made out of the presence of the jury.
MR. TAIKEFF: I
have a response I want to make. I'll consult with Mr. Englestein so I have
the best possible response.
THE COURT: I
notice he's bending your ear.
MR. TAIKEFF:
Your Honor, I believe that that rule addresses itself to an entirely
different proposition. That rule would prevent somebody from
cross-examining a witness and saying to that witness, "Isn't it a fact you
don't believe in God," and then using that as some basis for arguing to
the jury that a person who doesn't believe in God should not be believed.
What we're
dealing with is the fact that a certain
{3482} person
has a certain religion which under the normal course of events would
require that person to take his oath in a certain way, a very significant
way. In fact, it is believed by those who follow the religion of the pipe
that if you take an oath or make a commitment on the pipe and you do not
fulfill it in every sense of the word that a terrible thing will happen to
you, there will be a death to your family or maybe you yourself will die
as a result of that.
Now when a
witness believes that way, comes into court already a member of that
religious belief and then does not pursue the taking of the oath in the
way in which you would expect a person who concededly had those religious
beliefs would, then there is some significance to it.
THE COURT: I
read the first sentence of the advisory committee's notes: "While the rule
forecloses inquiry into his religious beliefs or opinions of a witness for
a purpose of showing that his character for truthfulness is affected by
their nature and inquiry for the purpose of showing interest or bias
because of them is not within the prohibition."
MR. TAIKEFF:
Your Honor, the first part of that, the preamble portion of that I think
parallels to what I said to Your Honor was my belief as to the meaning of
that rule. That is to say, it is not possible to ask somebody whether they
are an atheist as a means of impeaching that person. On the other hand, if
there is some aspect of his religiosity {3483} which may in the example
given cause bias, let's say a member of a particular church is on trial,
that would be appropriate; in other words, total, there is not a total
prohibition on any reference to religion or religious beliefs but it is
not possible to impeach someone who may be agnostic or atheist.
THE COURT: I
think a suggestion that a witness's testimony may be more credible because
he took an oath on a pipe or less credible because he didn't take an oath
on a pipe or any suggestion to that effect it seems to me is totally in
conflict with this rule.
MR. TAIKEFF:
As between two witnesses. As between a witness who swears on the bible and
then a witness who comes in and swears on the constitution and then a
witness who comes in and swears on the sacred pipe, Your Honor, is
absolutely correct. But as to a witness who professes a certain kind of
belief, suppose a Christian person came in and claimed to be a devout
Christian but refused to take an oath an a bible, only wished to affirm to
tell the truth, I think that's an area of a legitimate inquiry. "How come
you will not swear in the name of the bible if you are a Christian who
believes in the bible," is a legitimate inquiry.
THE COURT: I'm
not going to pursue this any further. I just wanted to raise the point
because, as I say, comments that you made on this dialogue this morning
and particularly {3484} because of comments by Mr. Lowe made with
reference to his cross-examination of a couple of Indian witnesses.
MR. TAIKEFF:
Your Honor, I do not mean to suggest that the defense at any time will
either offer testimony or argue that a person who swears on the pipe is
more believable than a person who swears on the bible or any other form of
acceptable oath, but there is a very special issue here and that is a
person who does in fact follow the religion of the pipe and who avoids the
confrontation of swearing on the pipe, that is a relevant and significant
matter, particularly when that witness says before he testifies, "yes, I'm
going to so swear on the pipe," and then does not.
THE COURT:
That is not an issue for the jury.
MR. TAIKEFF:
If that's Your Honor's ruling, obviously we will abide by Your Honor's
ruling but we accept from Your Honor's ruling.
THE COURT:
That is not an issue for the jury. That's an issue between the Court and
the witness how he wants to take his oath. Once he takes the oath, he
stands in the same position as anyone else who has taken the oath.
MR. TAIKEFF:
That's a determination as to the matter of law whether or not the witness
has taken an appropriate oath to make the witness a competent witness.
THE COURT:
That is right.
MR. TAIKEFF:
But as to the witness' credibility, that's {3485} an issue for the jury.
THE COURT:
That credibility will not be enhanced under Rule 610. Rule 610 prescribes
attempting to enhance or diminish the credibility of that witness by
reason of having taken the oath in one form or another but the matter is
closed for now.
MR. HULTMAN:
Your Honor, on the old matter --
THE COURT: By
the way, I'll advise counsel for both sides I have been informed that the
juror is back and the jury is ready to proceed.
MR. HULTMAN:
This will be brief, Your Honor. First of all, Your Honor, on the last
matter, it seems to me, and I only bring it up because it seems to me that
Counsel is now trying to take a position which is astounding to me that,
one, an individual who has previously said, "I am telling the truth and I
will tell the truth," that because he hasn't sworn on a sacred pipe at
that particular moment that he's not going to do what he said he's going
to do.
Secondly, when
he's been given an oath which he has taken to tell the truth that because,
again because he hasn't taken on the pipe that there is something
automatically concluded that he's going to be a liar and I say that's
astounding, that conclusion to me.
But let me go
now back to the item I wanted to discuss for a moment in response. Counsel
somehow, and I'm going to {3486} approach the exhibit because it will be a
little more demonstrative and maybe I'll use less words. Counsel somehow
has taken the position that when the government asked Brown what took
place on the 26th that it then deprived Counsel because I didn't ask a
specific question about something in particular that took place on the
26th concerning one little shred of the event, that I then closed him out
as far as on cross-examination from going into the matter. That appears to
me astounding under the Rules.
But let's
assume that that is the conclusion that was drawn. There isn't any
question and Counsel, learned Counsels know without any question and under
Rule 611b that is all he's got to do is just ask a question and unless
objection comes he's going to get whatever answer to whatever question
concerning whatever events were included on the 26th that he wants to ask,
and in fact even if there was objection, the Court under 611b can then
indicate, "Counsel, you can go ahead and ask the question because it's
very appropriate this time and place." I merely want to make the point,
Your Honor, that it seems to me absolutely astounding, the concept and the
argument that somehow the matters that we're now going to talk about with
reference to Brown were being deprived, that the government by not asking
a given question somehow specifically deprived Counsel from attacking
whatever that issue was straight on, head on right then {3487} and there
when the witness was on the stand and that's the only thing I want to
respond to with reference to that particular additional comment by
Counsel.
MR. TAIKEFF:
Your Honor ruled on numerous occasions that we could not go into anything
on cross that was not covered on direct and that we would have to reserve
certain witnesses and additional testimony from those witnesses to our own
case. That was something that was not gone into and I would surely have
been deprived of a proper presentation to the jury assuming that Your
Honor allowed me to ask the first question. I think the record is clear
that Your Honor would not have allowed me to then pursue the background
facts concerning that bit of testimony because of Your Honor's ruling
about not going into things on cross that were not covered on direct. So I
saved not only the background but that particular bit of evidence for our
own case.
{3488}
The only
reason I did it that way was because your Honor had ruled on several
occasions that we separate the two cases.
There is one
point that remains open on topics already covered this morning, and that
is concerning the Myrtle Poor Bear matter. We have never been able to talk
to her. As I previously indicated to your Honor, one afternoon about two
weeks ago Mr. Crooks notified us that she was about to be released from
protective custody. She was presently then and there in the Marshal's
office. He said that he did not believe that she would be willing to talk
to us, and he thought that we should go in and ask her the one question,
that presumably being, "Will you voluntarily speak with us?" and
presumably her answer would be "no", and that would be the end of it.
When we went
in there, as we previously indicated to your Honor, we found that Chief
Deputy Warren and one of his deputies was there, and we asked whether
those two people would leave so we could have a chance to speak with this
person; and we were told in words or substance, "No, we won't leave, why
don't you ask your one question and be done with it?" -- and we have a
transcript of that to show it to your Honor, so apparently both Mr. Warren
and Mr. Crooks had the same view of the situation. They both seemed to
know we were only going to get a chance to ask {3489} one question, and
they apparently knew what the answer was going to be; and the answer was,
"No, I will not speak with you." That's the only dialogue we have ever had
with Myrtle Poor Bear.
Now, if Mr.
Hultman wants an offer of proof and if at the time your Honor requires an
offer of proof before we can make any presentation to the jury, the only
way we can do that is putting Myrtle Poor Bear on the stand. We cannot
tell your Honor precisely what the testimony will be because we have never
spoken with her. She has refused to speak with us, and that means that
Myrtle Poor Bear has to be brought in and that an appropriate effort has
to be made to get her here.
Now, as of
this time she is apparently unavailable to get, and I understand that the
Marshal, Chief Deputy Warren was going to report to your Honor this
morning as to the progress of that particular search and the effort to
bring her here.
I would assume
that if some definite word of her arrival is not available by
approximately midday, then we will have to apply to your Honor for
appropriate relief in order to get her here, but we are intent on bringing
her here, and at the very least having your Honor hear her testimony.
We believe it
would be perfectly appropriate to put {3490} her on and ask her questions
in the presence of the jury. Quite frankly, we don't know what her answers
are going to be. We suspect what they are going to be. We have a good
faith belief what they are going to be. We don't know until we put her on
the stand, so we are not in a position to make an offer of proof.
MR. CROOKS:
Your Honor, could I rise very briefly on this matter?
THE COURT: I
would like to terminate this discussion as quickly as possible and get on
with the jury. We have kept them waiting since about 3:20 yesterday
afternoon.
MR. CROOKS:
The only thing I wanted to say, your Honor, counsel apparently inferred or
implied that Mr. Warren or myself were guilty of some kind of a misconduct
insofar as Myrtle Poor Bear; and I can assure the Court that neither of us
were guilty of any kind of misconduct. Miss Poor Bear informed us that she
did not wish to speak with defense counsel, and I informed her that she
had a right to or not to and it was her decision; and that's exactly what
I told defense counsel, and I think it is unfortunate that counsel
repeatedly infers that the Government is somehow or other doing something
untoward to them and that is not, that is not correct and counsel knows it
is not correct. I informed them at the time we came out.
The other
thing I would like to touch on very briefly, {3491} I am rather astounded
that counsel stood up yesterday and spoke for approximately half an hour
about what one could tell at a glance by talking to Myrtle Poor Bear; and
here it turns out he has never talked to her other than to ask her if she
wants him to and she has responded in the negative.
MR. TAIKEFF:
That was the glance.
MR. CROOKS:
Apparently counsel is clairvoyant, which would again indicate the sheer
fantasy of counsel's argument.
Co-counsel, I
believe the record will show, talked to her a year or so ago, and she
indicated she did not wish to talk.
MR. LOWE: That
was another glance.
MR. CROOKS: So
apparently both of them are clairvoyant as to Myrtle Poor Bear.
It seems to
me, your Honor, that counsel is indicating that they want to put Myrtle
Poor Bear on simply to destroy the poor woman; and it is very obvious from
their presentation that's exactly what they want to do, and that I think
is exactly why the Court has already ruled that that is not going to be
relevant unless there is a further showing.
As a matter of
fact, I think there will be testimony from Myrtle Poor Bear, if she does
testify, that she has {3492} been harassed. It has not been the Federal
Bureau of Investigation that harassed her, and I leave it to supposition
who the parties would be that have done the harassing, but it is not the
Federal Bureau of Investigation because, unlike Mr. Taikeff, I have talked
to Myrtle Poor Bear, and I have some basis for what I say.
MR. TAIKEFF:
Your Honor, I have to ask your Honor a question before the jury is brought
in because it will determine how we proceed. I don't mean to prolong this
any longer than necessary.
With respect
to Defendant's Exhibit 166 -- that's the document from which we offered
Paragraph No. 4 -- I believe your Honor said that there was not a
sufficient basis, by way of authenticity, establishing who prepared it,
what its source was, and that was one of the grounds upon which your Honor
rejected it.
I gather then
that we would be permitted to offer proof as to where it came it from and
how it was prepared, and what its basis is, am I correct in that
assumption?
THE COURT:
Except that --
MR. HULTMAN:
(Interrupting) Your Honor, which exhibit?
THE COURT:
166.
MR. HULTMAN: I
don't have a copy.
MR. TAIKEFF:
That's the document that purportedly {3493} listed the four separate
admissions made by Mr. Peltier.
THE COURT: The
second reason was that it was irrelevant.
MR. TAIKEFF:
Well, I am mindful of that. That's why I put my question to the Court.
Will the Court
allow us to show its authenticity, would that in any way affect the
question of the relevance?
Suppose, for
instance, a witness was competent to do so was called and said, "This
document was prepared by the Government," based upon consultations with
either the people who claimed to have received the admissions or their
superiors. Would that then be a sufficient foundation as to its accuracy
and authenticity and source as well as affect the relevancy?
I ask that
question not out of academic curiosity, because if your Honor answers my
question in the affirmative, I want to put on such proof.
THE COURT: And
for what purpose would it be offered?
MR. TAIKEFF:
To show -- you mean what ultimate purpose?
THE COURT:
Yes.
MR. TAIKEFF:
To show that an admission -- the Government was at an earlier stage in
these proceedings prepared to show an admission by one police officer
which was not in that police officer's report although that police officer
{3494} wrote a lengthy detailed report purporting to summarize all
conversations had with the Defendant; that the absence of that particular
alleged admission was particularly significant because it virtually
contained an admission of guilt in this case.
Its content is
such that it essentially admits the murder or murders, depending on
whether you read the singular to mean only the singular, or the singular
to mean plural -- of the two FBI Agents.
That admission
was something which the Government was told would be made. I am not saying
that the Government created that admission. I am saying the Government
accepted from a reliable source, a source that they viewed as being
reliable, a statement that a police officer had heard such an admission.
The proof of the fact that they accepted it as being reliable and that it
came from a reliable law enforcement source is that in the course of
making information known to the defense at the earlier trial, they
prepared that document and listed that admission. Now, the text of that
admission --
THE COURT:
(Interrupting) I am aware of it.
MR. TAIKEFF:
You are aware of it?
THE COURT: I
am aware of it.
MR. TAIKEFF:
Basically that he would have shot them if he had known they were cops, and
he had done it before.
{3495}
THE COURT: It
is entirely conceivable that either side may, in the preparation of their
case, accumulate what may appear to be evidence and disclose it to the
other side, and then on further investigation find that it has no basis
and not offer it. The fact that neither side asked Parlane as to whether
he heard that statement, when he was on the witness stand and when they
had the opportunity to do so, is the basis for the Court's ruling that it
is irrelevant and there is no relevancy, in addition to the fact that the
foundation is lacking, but to cure the foundation defect does not cure the
relevancy.
MR. TAIKEFF:
But your Honor, first of all, it is such a significant admission, if made,
that the failure of the Government to adduce it raises serious questions
which they certainly could explain in rebuttal, if not on cross
examination, during the defense case; but to say that as a threshold
matter that is something that the jury cannot consider, when presumably
the evidence was there, how did it get there? What was the source of it?
Why was it then not brought to the jury's attention? This seems to be a
highly significant and relevant matter.
THE COURT: I
have ruled.
MR. TAIKEFF:
So your Honor is saying that establishing the foundation isn't going to do
us any good?
THE COURT:
That is right.
{3496}
MR. TAIKEFF:
All right.
MR. LOWE: I
have a 60 second application. The Clerk can strike me down physically if I
go over that time.
In laboratory
report, PCM052 -- excuse me -- 0520MM, dated February 10, 1976, there is a
reference to laboratory report, PC-M0794MM, dated 12-16-75, which we do
not have to the best of our information and belief; and we do not believe
we received a copy from the Government. I checked with Mr. Sikma and Mr.
Hodge yesterday as relates to firearms, neither of them can produce a
copy; and I am confident in good faith that they looked in their files and
they didn't have it.
We would call
on the Government to produce that laboratory report, or if that is an
incorrect identification of the laboratory report in the first cited
laboratory report, we would ask for a correct identification of it so we
can use it.
We believe it
is Brady material. I will give this card to Mr. Hultman. I want to put it
on the record. I realize they have to make a search. Mr. Sikma said he
would try to find it, and I will check again. This is the reference
(handing).
THE COURT: The
jury may be brought in.
MR. HULTMAN:
Your Honor, might I ask a question to know the first witness may be so I
might have a moment -- {3497} I would like to know.
THE COURT: Are
the defense willing to disclose the name of the first witness?
MR. TAIKEFF:
Yes. Jean Day. I have given the names to Mr. Hultman yesterday in the
order in which we intend to call them.
MR. HULTMAN: I
appreciate that, counsel. I did not know that.
(Whereupon, at
10:04 o'clock, a.m., the jury returned to the courtroom; and the following
further proceedings were had in the presence and hearing of the jury:)
THE COURT: As
the jury is aware, the Government completed the presentation of its
evidence yesterday and the defense counsel had indicated that they do
intend to present evidence.
Now, I have
not repeated my admonition each day because I know that the jury is very
much aware of it; and that is that until all of the evidence is in and
until the case has been submitted to you for your deliberations under the
instructions from the Court on the law, you must continue to keep an open
mind and not reach any conclusions in the case and not discuss it with
anyone.
There is just
one other matter that I should mention to you. It is possible that the
defense, in presenting its case, may recall some witnesses that have
previously {3498} testified.
As a general
rule, when a witness testifies, the cross examination of that witness is
limited to the subject matter of the direct examination, and it may be
necessary at times for one side or the other to call a witness that the
other side has called and question them on some matter that was not
brought out the first time the witness was on the stand.
I just offer
that as an explanation in case you had any question in your mind relating
to it should some witnesses that have already testified be recalled.
You may
proceed.
MR. TAIKEFF:
Yes, your Honor, before we call our first live witness, we want to
introduce certain documents.
I have a
stipulation, your Honor, which has been signed by the prosecution and
defense. I would like to read it before filing it with the Clerk.
THE COURT: You
may.
MR. TAIKEFF:
This is a stipulation entered into by Government and defense counsel and
reads as follows:
On April 10,
1976, the following vehicles were in a locked enclosure adjacent to the
Bureau of Indian Affairs' jail in Pine Ridge, South Dakota:
1. A 1976
Ford, black over green, 1975, South Dakota license, 65-2355.
{3499}
2. A red
International Scout, four-wheel drive vehicle, 1974, South Dakota license,
65T116.
3. A white
over red Chevrolet van which had no license plate.
Secondly, your
Honor, Defendant's Exhibit 87 for identification is a 302 by the FBI
which, except for its preamble paragraph, copys verbatim a report of the
BIA officer by the name of Ecoffey.
When Ecoffey
testified, he provided the information which I have just alluded to.
On the basis
of the foundation laid during Mr. Ecoffey's testimony, the defense offers
Exhibit 87 for identification.
(Counsel
examine document.)
MR. HULTMAN:
Well, I will object to its introduction on the same grounds that we have
stated numerous times before.
THE COURT:
This is a matter, I think, that should have been resolved before the jury
was called in.
MR. TAIKEFF:
Your Honor, I can resolve it very briefly if your Honor wants to hear us
at the side bar.
THE COURT: I
will.
(Whereupon,
the following proceedings were had at the bench:)
MR. TAIKEFF:
Actually I have no special interest in {3500} the entire report, your
Honor; but knowing that if you offer one part of a report, it usually
results in the other side asking for the entire report. I wanted to avoid
the possible inference in front of the jury that I tried to conceal
something.
My interest is
in the last paragraph on Page 5 which I show to the Court, and I think
your Honor will immediately see the significance of it.
(Court
examines document.)
MR. TAlKEFF:
That, your Honor, is a verbatim quotation of Ecoffey's report which was
incorporated in a 302. The entire 302 is Ecoffey's report except that
preamble paragraph.
MR. HULTMAN:
Your Honor, my basis for objection, without going into all the detail
again, is the very reasons that we have stated here many times.
This is a bald
attempt now, with the witness not being here -- the witness was here --
counsel had the document that's in front of them in their possession and
have had it for a long time. The question, to which anything that's in
that material, could have been asked the witness on that particular
occasion; and I object to the introduction of the document for all of the
grounds we have indicated before.
MR. TAIKEFF:
Your Honor, the witness said that it {3501} was his report of his
activities of the day; and I offer that paragraph, or the entire report,
as the case may be, to prove the inference.
MR. HULTMAN: I
object to either and both, your Honor.
THE COURT:
Well, this is something additional to what the witness testified to, is
that it?
MR. TAIKEFF:
No, it is not something additional. He testified -- well, the content of
the report he testified -- wasn't in evidence. He testified that he wrote
a report that day of all of his official activities, and then I showed him
this document and he said, "Yes, that is my report reproduced on the 302,"
and he authenticated and answered all the questions concerning the
foundation that one would lay for a business record and also said that
that was in fact his report, and what he wrote that day was accurate as
far as he knew it on that particular day.
Now, I want to
introduce that paragraph to show on that day, when he made that report --
it is dated June 26th -- he made an utterance.
THE COURT: You
had the opportunity to ask him that.
MR. TAIKEFF:
He did say that, he did say that.
THE COURT:
That he made this evidence?
MR. TAIKEFF:
Of course, he did. The record is clear. {3502} I represent to your Honor
he said that. I specifically and purposely asked him those questions,
knowing full well I would offer that paragraph in our case.
MR. HULTMAN:
He asked about the report, the same objected to 302 business.
My basic
objection now is an attempt without the witness being here to put things
into the record, that counsel got into the general matter but didn't go to
the specific matter.
THE COURT:
Hold it down.
MR. HULTMAN:
He had the opportunity to ask the question. Now, this is a document on the
outside he is trying to introduce as being the evidence.
MR. TAIKEFF:
Your Honor, he said he wrote every single word in that report.
THE COURT: You
are not offering it to affect his credibility and it is not -- a 302 --
admissible as substantive evidence in the case.
MR. TAIKEFF: I
am offering it to show that he wrote those words.
THE COURT: You
should have asked him that on the stand.
MR. TAIKEFF: I
did ask him. He said "Yes".
THE COURT: You
asked the specific words?
MR. TAIKEFF:
The entire report.
{3503}
THE COURT: No,
I am talking about the specific words.
You are
attempting to put this in as evidence.
MR. TAIKEFF:
That he wrote those words.
THE COURT: All
right. He may have some explanation of it at this time. It would go to --
MR. LOWE:
(Interrupting) The Government can call him in.
MR. HULTMAN:
There is no duty on me.
MR. TAIKEFF:
The shoe is on the other foot. The Government didn't ask the question in
response to our laying the foundation at the time.
MR. HULTMAN: I
don't have to ask any questions.
MR. TAIKEFF:
Of course, you don't. The same rule applies to us. Don't criticize us for
not asking questions that are not appropriate.
MR. HULTMAN:
Don't say I have to recall him.
THE COURT: I
am saying you cannot put his testimony in in this way. The best evidence
is his testimony from the witness stand.
MR. TAIKEFF:
But all I could ask him I call him to the stand right now is essentially
the same thing I have already asked him, "Did you write that paragraph on
June 26th?" And he would say, "Yes, I did write that paragraph on June
26th." He has already said that because he said he wrote the entire
report, and that includes every single {3504} paragraph.
Now, if the
Government has some explanation as to why he wrote those words --
THE COURT:
(Interrupting) The offer is denied. You had the opportunity to ask him
when he was on the stand.
MR. LOWE: I
think that the paragraph should be identified.
THE COURT: It
should be identified.
MR. LOWE: It
is the last full paragraph on Page 5 which begins, "I went back to where
Eastman and Glenn Littlebird was," and then continues.
{3505}
MR. TAIKEFF:
Your Honor, I have before me Defendant's Exhibit 181, two page document.
Copy has been previously provided to the Government. Mr. Hultman has
indicated to me that he will not challenge the authenticity of this
certified document. I offer it in evidence.
MR. HULTMAN:
The Government has no objection, Your Honor.
You gave me a
copy, Counsel?
MR. TAIKEFF:
Yes.
THE COURT: No.
181 is received.
MR. TAIKEFF:
Your Honor, I also have a stipulation from the Government that the vehicle
described in the second page of this Exhibit 181 is the van, the red and
white Chevrolet van.
THE COURT:
Does the Government concede that stipulation?
MR. HULTMAN:
Yes, Your Honor, the Government does, Your Honor.
THE COURT:
Very well.
MR. TAIKEFF:
Jean Day to the stand.
JEAN DAY,
being first
duly sworn on the sacred pipe, testified as follows:
MR. TAIKEFF:
May I proceed, Your Honor?
THE COURT: You
may proceed.
DIRECT
EXAMINATION
BY MR. TAIKEFF
Q Your name is
Jean Day?
{3506}
A Yes, it is.
Q Could you
move the microphone over a little bit so you don't have to turn your head
to the left?
A Okay.
Q Maybe move
it over a little further so that you can turn your attention towards the
jury.
A Okay.
Q How old are
you, Miss Day?
A I'm
twenty-six.
Q And where do
you live?
A Madison,
Wisconsin.
Q Married or
single?
A Single.
Q Are you a
Native American person?
A Yes, I am.
Q Of which
tribe or band?
A Wisconsin
Winnebago band.
Q Are you a
member of the American Indian Movement?
A Yes, I am.
Q Have you
worked in connection with the efforts of American Indian Movement?
A Yes, I have.
Q Do you know
the defendant, Leonard Peltier?
A Yes, I do.
Q You see him
in the courtroom?
{3507}
A Yes.
Q Where is he
sitting?
A He's sitting
next to John Lowe.
MR. TAIKEFF:
May the record reflect that that fact is true.
Q (By Mr.
Taikeff) Now, were you on the Pine Ridge Reservation in the spring of
1975?
A Yes, I was.
Q And during
what period were you there?
A From March
until June, the end of June or July.
Q And while
you were there where were you staying?
A Well, when I
first got there I was staying, well, I was staying in the community of
Oglala.
Q And
specifically where were you staying, if you were staying in more than one
place tell us where you stayed.
A Okay. When I
first got there I stayed at Ted Lame's home and then --
Q Whose home?
A Ted Lame.
Q L-a-m-e?
A Yeah.
Q All right.
A And then we
moved to Jumping Bull's.
Q Would you
look over your right shoulder and tell me whether you recognize what that
chart is? It's designated Government {3508} Exhibit 71 in evidence.
A Yes. That's
the area that we, that I lived in at Jumping Bulls'.
Q And can you
give us the dates that you were there, approximate dates if you don't have
exact dates.
A We moved
there in May I think it was, and I left in June.
Q What part of
June?
A Well, I left
the 22nd of June.
Q Did you
return to the reservation after the 22nd of June?
A Yes, I did.
Q And for,
when did you return?
A June 27th.
Q And for how
long after that did you stay on the reservation?
A Well, I was
coming back and forth quite a bit, you know. But I suppose probably left
around the first, you know, the first week in July.
Q What was the
latest date that you were on the reservation that you can recall?
A July 5th.
Q Is there any
particular event that pinpoints that in your mind?
A Yeah. I
stayed there because we were going to bury Joe Stuntz, and so I stayed
there.
Q And on what
date was that burial?
A July 1st,
1975.
{3509}
Q And then you
stayed there a few days beyond that?
A Um-hum.
Q Now, was
your visit to the Pine Ridge Reservation a social visit?
A I don't
think you could call it a social visit, no.
Q What was the
purpose of your visit?
A I was, we
were asked to come into Pine Ridge, into the Oglala community; and so it
was more or less something to do with the Movement, to help the people
there.
Q Are you
saying that you went there in connection with your activities on behalf of
the American Indian Movement?
A Yes.
Q Now, briefly
can you summarize for the Court and jury what kind of work you did as an
American Indian Movement person. Not specific events, just generally what
were the kinds of things that you as an active member of AIM were doing in
the name of the organization?
A Well, we
went there because we were asked to go to Oglala to help the Oglala
people.
Q Who asked
you?
A The Oglalas.
Q Can you be
more specific? I'm not sure that the people in this courtroom who are not,
who are unfamiliar with the reservation would know what you mean by that.
A Well, it was
in the White Clay District; and some of the {3510} people from White Clay
asked us to come in because there was so much, so many things going on at
that district where their homes were being shot up and stuff like that. So
they asked us to come in and try to mediate in any way that we could.
Well, that was
mostly for the men. And for the women we went there, well, you know, to
take care of their household things that have to be taken care of, and
also to help the women in the community in any way that we could.
Q Could you
summarize in a relatively short paragraph what were then, and as far as
you know now, the purposes for which AIM was organized, and what you were
doing in connection with your work as an active AIM member.
A Okay. AIM is
an organization, it was organized to help the people, the Native American
people throughout the United States to get to know their tradition and to
live the traditional way and to teach it to our young.
And also if
there was anything that we might be able to help them with in their
community, to come in and help them. More or less a supportive group than
anything else.
Q You, I think
used the traditional people when you were talking before about the White
Clay District. Are there different categories, generally accepted
different categories of people living on the reservation?
A Yes. Well,
they're probably split into two groups: your traditional and your
nontraditional.
{3511}
Q And can you
briefly summarize what it means, or how one is identified as a
"traditional" Native American?
A A
traditional Native American would be one who would practice and live the
ways that our people did a long time ago.
Q And the
others, any special characteristics of the others?
A You could
probably characterize a nontraditional as a person who believes in the
white ways and goes to -- who are Christian people.
Q Did the
American Indian Movement have anything specifically to do with attempting
to revive the traditional religious beliefs?
A Yes. That's
how I got to know the pipe, through the American Indian Movement.
Q For how many
years have you been a follower of the religion of the pipe?
A Fully and
everything since maybe January of 1975.
Q Now, it is a
fact, or is it not a fact that people of the American Indian Movement
carry weapons?
A Yes, it is a
fact.
Q With respect
to your actual personal experience on the Pine Ridge Reservation can you
explain the necessity for that?
A On Pine
Ridge if you are a member of the American Indian Movement you've already
got one mark against you, for the main fact that a lot of the people who
are, and the tribal or, you know, associated with the tribal council did
not like the {3512} American Indian Movement. And so it was more or less a
thing where you had to protect yourself because you never knew from one
day to the next what could happen to you. And if you didn't have anything
to defend yourself with, you know, that somebody could be shot and killed.
Q Do you have
occasion to speak with people on the Pine Ridge Reservation in the White
Clay District who were not members of AIM?
A Not really
because they wouldn't even associate with people who were AIM because the
very fact that if the people found out you were even talking to AIM
members or anything like that they would also peg you as being a friend of
the American Indian Movement and then you're, either your goons or your,
even some of your relatives wouldn't even talk to you then.
Q Do you know
who made the invitation for the American Indian Movement group to come
into the White Clay District?
A It was some
of the women of White Clay that lived near Oglala.
Q And do you
have any personal knowledge of any official invitation that occurred
sometime in the month of June, 1975? When I say "official" I mean from the
traditional council of chiefs only. Don't say anything about it unless you
have personal knowledge of such an invitation.
A No, I really
don't know.
Q Would you
tell the jury about some of the specific activities {3513} which you and
the other members of the American Indian Movement who were there in White
Clay District actually involved yourself in during the months that you
were there?
MR. HULTMAN:
Your Honor, I haven't objected up to this time, but I would offer an
objection that this is irrelevant.
THE COURT:
Will the reporter read the question back.
(Question read
back: "Question: Would you tell the jury about some of the specific
activities which you and the other members of the American Indian Movement
who were there in White Clay District actually involved yourselves in
during the months that you were there?")
MR. TAIKEFF: I
want to withdraw that question to lay in further foundation testimony.
THE COURT:
Very well. You can withdraw.
Q (By Mr.
Taikeff) Can you name initially the AIM people who came to White Clay
District with you?
A There was
Dino Butler, Neelock.
Q Who's "Neelock"?
A Neelock
Butler.
Q All right.
A Me, Leonard
Peltier, Melvin Lee. Let me see, I think Mike Anderson came with us then,
too.
Q Anybody else
you can remember?
A I can't
remember all of the people that were there.
{3514}
Q How about
Joe Stuntz?
MR. HULTMAN:
Well, now if it please, this is clearly leading, Your Honor. I have no
objection, but I think if counsel will ask the question as to who it was I
have no objection. But this is clearly leading.
MR. TAIKEFF:
Your Honor, the first time and the second time said it he was correct. It
is leading. However, the witness says I can't remember, and it's
appropriate to ask that leading question in response to a statement that I
can't remember.
THE COURT:
I'll allow it.
MR. TAIKEFF:
Thank you.
A Joe didn't
come and move with us until I think it was the end of April, beginning of
May, something like that.
Q (By Mr.
Taikeff) All right. Have you told us then as far as you can remember the
names of all the people who came with you originally?
A Yes. As far
as I can remember.
Q All right.
Now, can you name any people who joined the group after you first got
there up to and including the time you left on June 22nd?
A Yeah. There
was Joe Stuntz, Norman Charles, and then Norman Brown, Wish, Jimmy
Zimmerman, Lynn and Jeannie Bordeau.
Q Now, can you
then tell us of the activities that you know or of your own personal
knowledge participated in in the White {3515} Clay District by these
people whom you've mentioned?
A Yes. We used
to have sweat gatherings with the people and then us girls would go in
earlier, you know, to help clean up the home, you know, where the
gathering was going to be.
And then we
also brought some Oglala people who have come from traditional families
but never really got to know what it was like.
Q When you say
a "sweat" what are you referring to?
A I am
referring to a religion, the sweat lodge.
Q All right.
A And also for
the, to have pipe ceremonies and your weepies.
Q That second
thing you mentioned is a different kind of religious ceremony?
A Yes.
Q Now, what do
you know of the existence of police protection in the White Clay District
in the spring of 1975?
A The only
kind of police protection that they had was probably the men that were in
our group.
Q Well, can
you elaborate upon that?
A Well, before
we came, there was, you know --
Q First of
all, let me interrupt you. Officially as of that time what kind of police
protection was supposed to be available there?
A Well, you
were supposed to have your BIA police, but they really didn't protect
anybody that was there. That is as far as {3516} I knew while I was living
there.
Q You
mentioned before a category of person called "goons". Can you briefly give
the Court and jury some idea of what you meant by that expression?
A Goons is
like an organization that lived on the reservation who weren't Native
Americans, who came and harassed the people mainly, mostly because of
their beliefs that they had.
And so in
order to, it was in order to get them away from what they were working
against the tribal council at the time, against Dickey Wilson.
Q Who is
"Dickey Wilson"?
A At the time
he was the tribal chairman of the Pine Ridge Indian Reservation.
{3517}
Q The entire
reservation?
A Uh-huh.
Q What was the
relationship, if any, between the goons and the administration of Dickey
Wilson in terms of whether they supported him, didn't support him or
whether it was an indefinite thing?
A He was, they
supported Dickey Wilson more than the American Indian Movement did.
Q And I think
we got off on this tangent when I asked you about available police
protection. You said the BIA police were supposed to be the police force
on the reservation.
A Uh-huh.
Q Did they
serve in that capacity, did they act as a police force?
A No. You see,
because some of the policemen that were on the BIA force were also goons.
Q How did this
reflect itself in the lives of the traditional Indian people on the
reservation?
A It would be
just like if you went to the city and said these people are supposed to
protect me and help me in any way you can, if I get in trouble but yet in
turn they really aren't going to help you because they can't stand you,
maybe because of what you stand for.
Q As a
traditional?
A As a
traditional Indian and also as a member of AIM.
{3518}
Q So who
provided the, while you were there, the protection for traditional Indians
in the White Clay district?
A The men from
our group.
Q Do you know
the name Myrtle Poor Bear?
A I've heard
of it.
Q Was she a
member of your AIM group living either at Ted Lame's or later at the
Jumping Bull area?
A No.
Q I'm placing
before you Defendant's Exhibit 158 for identification which is a copy of a
photograph not in evidence so the jury can't see it at this time. Would
you tell us whether in your opinion it's a photograph of a female person?
A It's a
female.
Q Could you
tell what race?
A She looks
like she may be native American.
Q Have you
ever seen that person in your life?
A No, I
haven't.
Q Could you
tell us whether during the spring of 1975 Myrtle Poor Bear was --
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, I haven't objected up to this point but Counsel has, one,
proceeded in view of the {3519} course for this ruling and I made no
objection but now --
MR. TAIKEFF: I
don't recall any such thing.
MR. HULTMAN:
Wait until I get done, Counsel, please.
Now even after
he's asked the questions and it's clear he had access to this witness to
know whether, what the responses were going to be to the question. He's
raised the issue before this jury knowing that, one, a response was going
to be exactly what it was, that she doesn't know this person, doesn't know
anything about this person, doesn't even recognize. Now he's continuing
even after that question to go into proceed with further questions of this
kind.
MR. TAIKEFF:
Because that was a foundation.
MR. HULTMAN: I
object.
MR. TAIKEFF:
Next question.
MR. HULTMAN:
It's highly prejudicial and I object on the record.
MR. TAIKEFF: I
don't see how it's prejudicial. If you would be patient and realize that
you can only prove a case in increments, you would see that all of that
was a foundation for the next inquiry.
THE COURT: I
don't see that --
MR. HULTMAN:
What is going to be the next inquiry?
THE COURT: I
don't see anything prejudicial at this point. I did construe it as being
preliminary. I don't know what might be coming.
{3520}
MR. TAIKEFF:
In two questions Your Honor will clearly see it was preliminary and what
it was leading up to.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
Q (By Mr.
Taikeff) During the period of March, 1975, to the end of June, 1975, did
you or did you not see Leonard Peltier every day?
A Yes, I did.
Q And during
that period of time could you tell us, I'm asking yes or no, could you
tell us whether or not Myrtle Poor Bear was living with Leonard Peltier or
was his girlfriend?
A No.
Q You couldn't
tell us anything about that subject?
A No.
Q I didn't ask
you whether she was, I said you could you tell us anything about that
subject?
A She wasn't
living with him.
Q How do you
know that?
A Because I
was.
Q Was there
any other woman living with him whose name you didn't know?
A You mean at
Jumping Bull's?
Q No. Living
with him intimately as his woman while you were living with him?
{3521}
A Yes. There
was somebody else.
Q Who was
living with him?
A Well, not
all the time or anything but there was Audrey Shields.
Q And you knew
of her existence?
A Yes, I did.
Q Is that
woman depicted in that photograph?
A No. That's
not Audrey.
Q Now did you
go to Farmington?
A Yes, I did.
Q During that
period?
A Yes. In June
of '75.
Q And what
was, briefly, just by descriptive term what was going on in Farmington?
A There was an
American Indian Movement national conference in Farmington.
Q And did the
rest of the group, the AIM group go from the Pine Ridge --
A Yes. All of
us went.
Q How many
people attended that conference or meeting?
A Oh, I'm not
really sure but maybe between 500 and 1,000 or a little over that.
Q Did you
return from that meeting, that national meeting with any people who then
lived with you at Jumping Bull's who had not been there before?
{3522}
A Yes. We
brought back some people with us that were, you know, going to be living
with us at the camp.
Q If necessary
you can refer to that chart behind you again. Where specifically at the
Jumping Bull community did you all live?
A We were
staying at the place that is marked the log cabin at the time we came back
from Farmington.
Q And could
you use the pointer, if that's convenient for you and show either exactly
or approximately where that was?
A That was
right here (indicating).
Q By the way,
how many times have you spoken with either me or anybody else connected
with the defense concerning your testimony?
A Just once.
Q With whom
did you speak?
A I spoke with
you and Terry.
Q Terry
Gilbert?
A Yeah.
Q Do you
recall whether during that conference any question was put to you about
the log cabin?
A No. Never
asked.
Q Now where
were the other people living?
A We were
living, all of us were living there at the house and then we had a tepee
that was set up outside the house where Dino and Nilak stayed.
{3523}
Q Was there
another area on the premises that was lived in at some time?
A By us you
mean?
Q By any of
the people who were staying there.
A Well, the
Jumping Bulls stayed right next door.
Q Did you have
an area that you referred to as tent city or is that just a phrase that
we're using here in this case?
A We never
called it tent city.
Q Would you
turn and look at the chart again and look in the upper right hand corner
and you'll notice there is a lot of marking there. Can you tell us
something about that area?
A You mean way
over here in the corner?
Q Yes. The
upper right hand corner.
A Yeah. That's
where we set up a camp like.
Q Did you have
a sweat lodge?
A Yes, we did.
Q Where did
you set up the sweat lodge?
A It was right
along the creek not too far from where the main tents were.
Q Is that the
area designated up there with the shaded or lined section?
A Yes, it is.
Q Now you said
that you returned to the White Clay district on June 27th.
A Yes, I did.
{3524}
Q How was it
that you are able to pinpoint the date exactly?
A It was the
day after the shoot-out on the 26th.
Q How did you
know about the shoot-out on the 26th?
A I heard it
on the radio.
Q Where were
you when you heard it on the radio?
A I was in
Cedar Rapids, Iowa for the sentencing of Crow Dog.
Q And after
the 26th did you hear news about the events of the 26th while you were on
the reservation?
A Yes. Well,
if you had a radio or television or anything like that you knew. You could
hear what happened.
Q Did you have
access to radio or television?
A Yes, I did.
Q How would
you characterize the amount of news that was coming across concerning that
subject?
A There was
quite a bit of news going on about Oglala and what was going on and maybe
about every hour, sometimes even every half hour.
Q Now after
June 26th and specifically directing your attention to the events after
Joe Stuntz' funeral, did you have any contact with Leonard Peltier?
A Yes. I saw
Leonard after we buried Joe.
Q Do you
recall the exact date after the funeral?
A Well, we
buried Joe the 1st of July and it had to be within the next few days that
I saw him, whether it was the 2nd or 3rd,
{3525} I'm not
real sure.
Q Where was it
that you saw him?
A I saw him at
Oscar Bear Runner's place out in the country.
Q How much
time did you spend with him?
A Just a
little while. I didn't talk to him that long.
Q Now between
the time you returned on the 27th and the time that you saw him in early
July, you said it was either the 3rd or the 4th?
A Uh-huh.
Q Did you have
occasion to be at different places on the reservation?
A Yes. See, I
was going around to different homes and things like that because we heard
that the FBI were looking for me.
Q Looking for
you?
A For
questions and stuff like that. So then I would, you know, go to different
homes and visit people and find out what was happening because I didn't
even know what happened June 26th.
Q Now from
your travels around the reservation between June 27th and the day, July
3rd or July 4th that you met with Leonard, did you make any observations
about unusual activities on the reservation?
MR. HULTMAN:
Your Honor, I'm going to object to this as being incompetent, irrelevant
and immaterial.
{3526}
MR. TAIKEFF:
Well, if he saw her, Your Honor, it's not incompetent.
MR. HULTMAN:
She indicated she didn't know anything about the 26th.
MR. TAIKEFF:
I'm not asking her about the 26th.
MR. HULTMAN:
With reference to anything from that point on I object on the grounds that
general observations, that there is no relevance.
THE COURT:
Overruled.
MR. TAIKEFF:
Thank you.
Q (By Mr.
Taikeff) I asked you whether between the time you returned to the White
Clay district on June 27th and the time you saw Leonard on July 3rd or
July 4th, in your travels around, as you've already described them, did
you make any observations of the things which were happening on the
reservation?
A Yes. There's
quite a few FBI agents and S.W.A.T. teams and, well, right in Pine Ridge a
great big van there. I don't know what it was, like on the corner right
across from the post office there was a bunch of guys there in fatigues
and some who were carrying rifles and some weren't. Then like if you, on
the 27th we were stopped by a bunch of men who carried guns and were in
those bullet proof vests or whatever you call them and they stopped us. So
there was policemen all over the place .
Q Do you know
what an APC is?
{3527}
A Yes, I do.
Q What is it?
A An armored
personnel carrier.
Q Did you see
any of them there during that period I'm questioning you about?
A Yes, I did.
Q How many?
A I saw one
and then I saw, that was the only one I saw. But then I also saw
helicopters and airplanes, too.
Q Now when you
saw Leonard on July 3rd or July 4th, could you tell us how much time you
spent with him on that occasion?
A I spent only
about 15, 20 minutes with him.
Q Did you
speak with him?
A Yes, I did.
Q What did you
say to him, if anything?
A Well, I was
glad to see that everybody was okay and nothing happened to them and that
we had buried Joe, and that there were a lot of police around and FBI
agents.
Q Did you have
any conversation with him concerning his possible whereabouts or whether
he should stay on the reservation?
A Well, I knew
--
Q Tell us your
conversation, not what you knew.
A He had to
get, said something about they had to leave the reservation.
{3528}
Q Did he say
why?
A See, since
they were living, you call it tent city, and they were looking for the
people who lived there and since we did live there they knew they had to
get off the reservation and that they were also afraid that, this is with
other conversations with other people that were there, they knew that they
had to get off from there because they were afraid if the FBI agents did
come in or, you know, your military personnel that were there did come in
and find them they probably shoot them all.
Q Now based on
your own personal work with members of the American Indian Movement -- by
the way, before I ask you those questions, how much time did you spend on
behalf of the American Indian Movement as a full time worker?
A You mean
working every day with the movement or how long I have been associated?
Q The first
question is the one I want to put to you. How much time did you spend
working full time for the American Indian Movement?
A Full time
ever since the Abby takeover in 1975 in Wisconsin.
Q Until right
now?
A Yeah.
Because I'm still working every now and then with the movement.
Q When you
were on the Pine Ridge, you got a salary, I assume?
{3529}
A No. I wish I
did.
Q Leonard got
a salary?
A No.
Q Who got a
salary?
A None of us
did.
Q How did you
eat?
A Well, the
people would donate food to us and then we would have, you know, bingos
and things like that to raise money for our food.
Q Now based on
the period of time that you worked with and for the American Indian
Movement, would you tell the Court and jury whether in your opinion the
people of AIM are violent people?
A No. Because,
see, like if you believe in the pipe, and that is your main, the
groundwork for the American Indian Movement, if you believe in the pipe,
the pipe does not believe in violence; in other words, we don't believe in
violence. So the American Indian Movement isn't a violent group.
Q But it's
undisputed that at least the group that was in White Clay carried weapons,
had weapons, isn't that true?
A You would
too if somebody, if you thought somebody was going to be coming after you
to shoot and kill you.
Q Did you have
occasion during the period that you spent in the White Clay district to
speak with people concerning Leonard Peltier?
A Well, mostly
with the women and, you know, some of the guys; {3530} yeah.
Q And as a
result of speaking with those people, did you have some sense of what his
reputation is in that community?
A The people
respected Leonard a lot and they would do, do a lot for Leonard and for
the group that was there.
Q
Specifically, if you know, if you ascertained it, what was the reputation
specifically as to certain characteristics amongst the people in that
district?
A Leonard was
probably thought of like the head of the group or the leader and that. One
of his big things was there was no drinking within the group and also, and
no hard drugs or anything like that could ever be brought into the group
at all and if you did you'd probably have to leave.
{3531}
Q That I think
addresses itself to the discipline for the group. I am talking about you
learned about his reputation in the community. Specifically how was he
viewed in the community as to what kind of a person, if you have such
information?
A He was
respected a lot. People, you know, listened to what he said, and I don't
know more than that because the people, for you to gain respect in the
community like that, is one of the highest honors you can have; and they
knew Leonard was not a violent man for the mere fact that there was times,
you know, when Leonard could have gotten angry at any one of us in the
group, and he never really did. He may try to find other means of taking
care of things.
MR. HULTMAN:
We object. She is not being responsive.
We have gone
clear beyond the question itself.
THE COURT: The
answer is not responsive.
Q (By Mr.
Taikeff) During the period of time that you knew him, to what did Leonard
Peltier devote himself?
A He devoted
himself towards the people.
Q Which
people?
A The native
American people.
MR. TAIKEFF: I
have no further questions.
MR. LOWE: May
we have a word for a moment?
MR. TAIKEFF:
Yes. Excuse me, your Honor.
(Counsel
confer.)
{3532}
MR. TAIKEFF: I
have no further questions on direct, your Honor.
THE COURT: The
Court is in recess until 11:15.
(Recess
taken.)
{3533}
(Whereupon,
the following proceedings were had in the courtroom, the Defendant being
present in person:)
THE COURT: The
jury may be brought in.
MR. TAIKEFF:
Has the jury been sent for?
THE COURT:
Yes.
MR. TAIKEFF: I
have some additional witnesses. I am going to give the names to the
Government off the record.
THE COURT:
Very well.
(Whereupon, at
11:17 o'clock, a.m., the jury returned to the courtroom; and the following
further proceedings were had in the presence and hearing of the jury:)
(Witness
resumes witness stand.)
MR. HULTMAN:
May it please the Court?
THE COURT: You
may proceed.
CROSS
EXAMINATION
By MR. HULTMAN:
Q Is it Miss
Day or Mrs. Day, or how --
A
(Interrupting) It is Miss Day.
Q Miss Day,
all right.
You indicated
that you are 26 years old at this time, Miss Day. You were approximately
24 back at the time of April, May, June of 1975, is that a fair statement?
A Yes, I was.
Q All right.
You indicated that you were from the Winnebago {3534} Tribe, is that
correct?
A Wisconsin
Winnebago.
Q Yes, all
right. I would like to go back and attempt to pin down a little closer, if
you can, when was it that you first came to the Oglala area?
A It was in
March of '75. I can't remember the exact date.
Q All right.
Sometime in March, that's the best you can recall?
A Um-hum.
Q All right.
Now, why specifically did you go to Oglala?
A Because we
were asked to come to Oglala.
Q Well, who
asked you to come to Oglala?
A Me
personally?
Q Yeah. I am
only concerned with you at this particular time.
A Well, the
Oglala people did.
Q Well, I am
just simply trying to establish who was it that asked you, people is a
group of some kind, but they don't speak as a group. They didn't speak as
a group to you, did they?
A You mean,
come right out and say, you come there?
Q I would like
to find out who is it that you talked to that asked you to come to Oglala?
A Somebody
came right out and asked me personally to come to Oglala. It was more or
less as a group that we were there.
Q Well, how
was it that you personally decided that you would go to Oglala?
{3535}
A Because I
wanted to go to Oglala.
Q You were
living where before you went to Oglala?
A I was
staying on Rosebud Indian Reservation in South Dakota.
Q O.k. Well
then, let me back up a little more. When was it that you went to Rosebud,
approximately?
A It was in
February sometime of '75.
Q All right.
Where had you been living before February?
A Oh, I was
traveling then, but before that I was living out in California for awhile,
and then before that I was in -- living in Wisconsin.
Q All right.
So it wasn't anybody in particular that asked you to come to the Oglala
area then, is that a fair conclusion for me to draw?
A Well, see, I
was living with Anna Mae and so she asked me to come along with her too.
Q Where did
you come from?
A Originally?
Q Yes.
A From
Wisconsin.
Q All right.
When did you leave Wisconsin? I am trying to back up and find out a little
bit of the sequence of time.
A I left
Wisconsin after the Abbey takeover in '75.
Q Were you
involved in the Abbey takeover?
A Inside the
Abbey, no, but I was involved with the takeover.
{3536}
Q Was there
any force used in that matter?
A Mostly from
the vigilantes.
Q When you
first arrived then at Pine Ridge, or Oglala, where was it that you stayed?
A I stayed at
Ted Lame's home. It is outside of Oglala.
Q All right,
and where approximately from Oglala does Ted Lame live, or his home?
A Maybe about
seven miles from Oglala or something like that. I am not exactly sure how
far it is.
Q What
direction from Oglala with reference to Pine Ridge, is it toward Pine
Ridge or away from Pine Ridge?
A Yes. It is
toward Pine Ridge because if you go the other way, you would probably go
off the Reservation.
Q Now, about
when was it then that you arrived and started living at Ted Lame's?
A I told you
in March of '75.
Q All right. I
just wanted to get the dates here where you were.
A Um-hum.
Q All right.
Now, who was it that lived at Ted Lame's at that time?
A Ted and his
wife. You mean besides us?
Q Well, I am
trying to just find out who it was totally that lived at Ted Lame's at
that time.
A There was
me, and then there was Leonard Peltier, Dino {3537} Butler, Neelock
Butler. I forgot, Anna Mae was there too; and Melvin Lee and Michael
Anderson; and I can't, you know, there was more people, but it has been so
long, but I can't remember exactly who was there at the time.
Q All right,
and about how long did you live there before you moved to some other spot?
A Well, we
stayed there for April, and then in May we moved to Jumping Bull's.
Q And when you
moved to Jumping Bull, was it the same people that you have mentioned
other than the Lames that moved to Jumping Bull's with you?
A No. Joe
Stuntz moved in with us, and so did Norman Charles, so they were two other
people that moved in.
Q So in April
sometime when you went to Jumping Bull's, would you relate to us who it
was that was in your group at that time or living together?
A There was me
and Larry and Dino and Neelock, Norman Charles, Joe Stuntz, Lynn; and I am
not sure if Jeanie was with us then when we moved over there or not.
Q All right,
and you indicated that, I believe, on direct examination that you
basically moved into the log house, is that right?
A Yes, um-hum.
Q All right.
Now, did you stay then -- about how long was it then that you stayed in
the log house, until you moved or {3538} went some other place other than
the log house?
A It was after
we came back from Farmington.
Q All right.
A And that was
in June.
Q All right.
So it wasn't until after you came back from Farmington then that you
stayed some place other than the log house, right?
A Right.
Q All right.
Now --
MR. TAIKEFF:
(Interrupting) If that question was intended to summarize the testimony up
to that point, I think it misstates it. I think the testimony was she
didn't move into the log house until Farmington.
I object to
the question and ask to strike it as misleading.
MR. HULTMAN: I
am trying to find out.
THE COURT: Are
you withdrawing the question?
MR. HULTMAN:
Yes, I will withdraw it and ask another question.
Q (By Mr.
Hultman) When you went to Jumping Bull's, in whose house or where did you
live?
A In the log
cabin or the log house.
Q Did you live
anywhere other than the log house until you left to go to Farmington?
A No.
{3539}
Q When you
came back from Farmington then, where did you live?
A At the log
house.
Q All right.
At least for some time?
A Yeah, for a
few days.
Q All right.
When you were in the log house before you were at Farmington, did you see
anybody at any time with weapons of any kind?
A Yes.
Q Would you
tell the jury what those weapons were and who had them?
A Well, I
don't know, you know, that much about weapons so I wouldn't know what kind
or anything like that; but they were, you know, handguns and some rifles.
Q All right.
Who had them?
A Dino did.
This is after we came back from Farmington?
Q First
talking about before you went, you first went, you were in the log house
at Jumping Bull's before you went to Farmington.
A O.k. Well,
Dino had one and Joe, and Leonard.
Q All right.
Would you describe to the jury -- you indicate you are familiar by names,
would you describe what those weapons looked like that you recall?
A Well, they
were long; but you know, I don't know that much about, you know, what they
would exactly look like, so that I {3540} could, you know, truthfully tell
you.
Q They were
long though, you distinctly remember that?
A Yes.
Q Do you
remember anything about any color about any of them?
A Well, they
had, you know, some of them had -- I don't know -- the beginning of them
were brown in color, and then there was a metal one like --
Q Do you
remember what color that one was, the metal was?
A It was dark
in color.
Q Do you
remember who had that particular one?
A Well, it was
just there at the house. It was mostly hanging on the wall most of the
time.
Q Which weapon
-- you stated earlier you had seen, you mentioned Leonard having a weapon.
What weapon, if you recall, did he have of those that you described?
A It was the
metal one.
Q All right.
The dark one, you also described as being dark.
A Um-hum.
Q All right.
Now, you then left and went to Farmington, you indicate, is that right;
and about, approximately when was that you went to Farmington?
A Let's see.
Probably about the 6th or something like that, of June.
Q And about
how long -- who was it that went to Farmington?
A All the
people that were at the group.
{3541}
Q Same ones
that you have mentioned before?
A Um-hum.
Q All right,
and about how long did you stay in Farmington?
A For about a
week.
Q And then
where did you go from Farmington?
A We came back
to Oglala.
Q All right.
Back to the log house, is that right?
A Yes.
Q Now, on the
way down to Farmington did you see any weapons of any kind?
A No, unh-unh.
Q Did you see
any weapons while you were in Farmington?
A No.
Q Did you see
any on the way back?
A No.
Q You
indicated there were some additional people that came back with you, is
that correct?
A Yes,
unh-unh.
Q All right.
Had you known those people before?
A No, I
didn't.
Q Would you
tell the jury again, as you best can recall, who those individuals were
that joined you and came back with you, the additional or new people?
A There was
Jimmy Zimmerman.
Q Now, how old
approximately was Jimmy Zimmerman at that time?
{3542}
A 10 or 11.
Q All right.
A And Norman
Brown.
Q And do you
know approximately how old he was at that time?
A He was
either 15 or 16.
Q If I were to
tell you his birthday was in 1960, he would have been 15 as you have
indicated, that is right?
A Yeah.
Q Who else?
A And Wish.
Q And when you
refer to "Wish", who are you referring to, do you know him by any other
name or did you come to know him by any other name?
A Well, I only
knew him by "Wish" then.
Q Have you
come to know him by another name since that time?
A Well, since
the trial. I knew Dino --
Q
(Interrupting) What is his name?
A Wilford
Draper.
Q Do you know
about how old he was?
A Maybe 17. I
don't know. I am not sure.
Q All right,
and any other persons?
A I think
those are the only three that we brought back.
{3543}
Q Why was it
that a, how old did you say Zimmerman was? I don't recall specifically.
A He was ten
or eleven.
Q Why was a
ten or eleven year old coming back with you to join the group for the
purposes that you've indicated?
A Well, see,
we were learning the ways of the pipe and he was coming there to prepare
for his sun dance.
Q Well, didn't
you also indicate under cross-examination that this group was the enforcer
group, or the group that was going to give you protection?
A Yes. But,
see, we were also a group that was there to learn the ways of the pipe.
Q All right.
A It wasn't,
we weren't there just to be policemen or whatever.
Q What about,
I assume he didn't come back for the other purpose that you discussed on
direct examination?
A No.
Q What about,
what about Mr, Brown, the fifteen-year-old, what purposes if you know did
he come back with you?
A Norman had
danced in the sun dance before and so he was coming back, see, we had
sweats at the house or, you know, every now and then, and plus ceremonies
that we would go to; and also where us girls learned how to prepare our
ceremony where a medicine man would be. And so we had hoped that some day,
{3544} you know, more younger people would come into the group where they
would learn the traditional ways of the Sioux.
Q And there
wasn't any question in your mind that he was not coming with you for the
purpose, the other purpose that was discussed, that of the enforcement and
protection purposes; is that right?
A Right.
Q Now, what
about Wish, was he coming for the purpose, one of the purposes being for
protection?
A I really
didn't get to know Wish that well.
Q Did you ever
see him with a gun at any time?
A Not that I
can recall.
Q So that am I
fair to conclude, or I ask you which members of the group were in the
group for the purpose of giving you protection, or the words, whatever the
words were that you used on direct examination?
A Well, if you
really come down to it all of us.
Q Well, now
you indicated surely that ten or eleven-year-old wasn't there for that
purpose?
A Well, see,
well of course Jimmy wasn't carrying around a gun or anything like that,
and neither were the women because, see, women are not supposed to carry
guns.
But if you
were there and if you knew what it was like to live on Pine Ridge you
would be carrying a gun, whether for your own protection or the protection
of the people that were {3545} with you.
Q Well, did
you carry one during the time that you were there?
A At times I
had to, yes.
Q Did you
carry one during the times that we're talking about in, that you were at
the Jumping Bull property?
A If I had to
go into town or be out, you know, go to a ceremony or anything like that,
at times there was a gun in the car. But it was like a .22 pistol or a
handgun or whatever you want to call it.
Q Well, now,
Miss Day, I want to come back to the question I started with and ask you
which members of the group that you've discussed were there for protection
purposes? You've ruled out the women, I think you indicated that to me,
right?
A Um-hum.
Q And you
ruled out Jimmy Zimmerman; isn't that correct?
A Um-hum.
Q Now, I want
you to tell me which members of the group were there for one of the
purposes that you indicated on direct examination, that of giving you
protection?
A The older
men.
Q All right.
And who were those individuals?
A Joe, who is
now dead, Leonard, Dino, Bob and at times the younger men if we needed
security, you know, people to look out that we heard that, and maybe the
goons or somebody would come in and get us.
{3546}
The younger
men at that time would stand on security.
Q All right.
Do I conclude from what you are now indicating to me that there were other
weapons then at some time other than the three that you've described to
the jury in the log house; is that a fair conclusion for me to draw?
A There
probably were, yeah. But, see, I don't go looking around all over the
place trying to find weapons.
Q Well, I'm
going to ask you during the time from whatever time it was in April until
the time you left on, did you say the 22nd of June? Was that the date that
you recall that you left?
A Yes. I left
the 22nd.
Q To go to
Cedar Rapids. All right.
And then you
came back at sometime after the 26th? Isn't that right?
A The 27th I
came in.
Q All right.
During the time that you were living on the Jumping Bull property from the
time you got there until you left to go to Cedar Rapids I want you to tell
the jury what other weapons if any you saw than the three that you've
described earlier.
A I saw a few
at Harry Jumping Bull's home.
Q All right.
Would you describe what weapons it was that you saw at Harry Jumping
Bull's home?
A Well, they
were, you know, one that he had got from Fools
{3547} Crow
for his 50th anniversary; and then another one, I don't know what, you
know, what it is. It was a rifle, though.
Q Where was it
that you saw the revolver or the handgun that you talked about that was in
the car when you went places? Where did you see that one for the first
time?
A Joe used to
have that one.
Q All right.
A And, see, if
we went anywhere, you know, he would let us use it.
Q Do you
recall seeing any other guns other than those that you have mentioned thus
far?
A No.
Q All right.
Let's go down to the tent, the area where the tents were down along the
creek where the sweat lodge was. Do you ever remember seeing any guns in
that area at all?
A No. In the
sweat lodge you do not have guns around at all.
Q So that --
I'm not just referring just in the lodge, the sweat lodge itself,
understand my question. Is that in that area?
A Well, I told
you no, and then I said, "Not, or in the area of the sweat lodge."
Q So you never
saw any guns of any kind during the time that you went down to the area
long the creek where some tents were located; is that right?
{3548}
A No.
Q All right.
Did there come a time that you moved from the log house at any time and
lived down where some tents were along the creek? Did you live down there
at any time?
A For a while
there, yeah. Before I left.
Q All right.
And how long a time was that?
A It wasn't
very long because, maybe four or five, maybe four days, five days, I don't
know. I don't count the number of days I live someplace.
Q Would that
have been just before you left to go to Cedar Rapids?
A Yes.
Q All right.
Now, do you know where the guns that you saw came from?
A No, I don't.
Q You
indicated that subsequent to coming back that, and subsequent I believe,
and you correct me if I'm wrong, to your discussions with Leonard after
you came back from Cedar Rapids after the 26th that you were aware that
the FBI wanted to visit with you, or words to that effect; is that right?
A Yeah.
Q All right.
And in fact I believe you indicated that there was an occasion when they
stopped you somewhere; is that right?
A Yes. See, on
the 27th when I came back I went into Jumping Bull's because I heard that
Harry Jumping Bull was there. And
{3549} so I
went in there, you know, more or less to tell him I was really sorry for
what had happened because when we moved there we never wanted anything
like that to happen. And that was one reason why, too, that Harry let us
live there.
Q Well, did
you tell him the reasons on that occasion or any time since?
A Pardon?
Q Did you do
what you just said you intended to --
A Yes, I did.
I saw Harry that day and then -- so when we were coming out, you know, to
go into Oglala because his wife was sick and so I was going to go over and
see how she was doing, all of a sudden there was a bunch, there was two
school vans, and I don't know how many cars, of police and FBI agents and
they had flack, those bulletproof vests. They were carrying guns.
Q My question
was, I'd like to get back to my question, that is, did you identify
yourself to the FBI at all at that time?
A I didn't
give them my real name, though.
Q In fact
there have been other occasions when you have not given your real name;
isn't that a fact?
A Nope. That's
the only time.
Q Have you
ever used the name Denise Green Glass?
A Green Glass?
Q Denise Green
Glass.
A No.
{3550}
Q Have you
ever checked in anywhere during the time period that we're now talking
about and used the name Denise Green Glass?
A No.
Q Did you ever
check into a hospital in Cedar Rapids during the period that you've
testified to, that period?
A No.
Q You never
were treated of any kind during the period that you were in Cedar Rapids
to which you have been testifying to here?
A No. I never
used the name Denise Green Glass.
Q What were
the occasions when you gave a different name?
A Just that
once, when the agents or whoever, you know, the FBI, or whatever it was,
stopped us at the road going out of the Jumping Bull Hall.
Q Is it a part
of the things that you were discussing on direct examination concerning
the pipe and the things you were going to discuss with Little Jimmy, as
well as the other people you came into contact, is a part of that a
willingness to come forward and state what the truth is about what you
know?
A Yes.
Q Then isn't
it a fact that you refused on a previous occasion under oath to discuss
any of the things that you've discussed here today?
A There's only
one time, and I think you have to clarify yourself on that, because that
was at the grand jury hearings and you had {3551} given me immunity for
June 26th but no other day.
And so I was
-- and then there was no pipe there at the grand jury hearings. And so if
you were going to give me immunity you were going to give me immunity,
like going for Storeping and riding in a car and that was it.
Q You didn't
have any misunderstanding at all as to what the purpose of your appearing
there and the immunity received at that time? Is there a mistake?
A You just
said June 26th and that's all you gave me immunity for.
Q First of
all, let's clarify something. When you are saying "you" you're not talking
about me, the one who's asking the questions here, are you? I mean you are
using a generic you?
A Mr. Sikma
was there.
Q All right,
all right. Have you at any time indicated the things that you've told the
jury here to anybody who has asked you at any time about them other than
those, the instances you've referred to, to the defense team or people
that you have discussed to that are related in some way to the defense
team?
A I think you
better clarify yourself because I really don't understand what you are
trying to get at.
Q Have you
ever told the things you've told here to anybody from the FBI?
A No, I
haven't talked to the FBI.
Q And then
they didn't threaten you in any way to get any {3552} particular
information out of you then, did they?
A Yes, they
did.
Q Well -- -
A They said
they were going to take away my kids if I didn't go and talk to them.
{3553}
Q Let's go
back and I'll ask you a few more questions. Maybe you'll be responsive to
my questions. Do you have any children?
A Yes, I do.
Q How many do
you have?
A I have two
girls.
Q Were they
with you when you came to Jumping Bulls to live?
A No. They
were living with my parents in Wisconsin and they tell me if I didn't talk
to them, FBI, they were going to take the children away from my parents.
That's when my father came out looking for me.
Q Will you
tell me whether it is the FBI specifically that talked to you?
A Well, they
tried to talk to me a few days after my father picked me up and that was
in July of '75 and I wouldn't talk to them so they said, they sent me
home.
Q And you have
never talked to any of them or to anyone from the government's standpoint
at any time, have you, including a grand jury?
A That's
right.
Q You've
refused to, have you not?
A I didn't say
I was. I did, I did talk to you about things on June 26th and that's all
you asked me about. As far as the grand jury is concerned, you gave me
interview only that day plus I wasn't going, told you if I was going to
testify or {3554} anything like that for you. The things I'm telling you
now are the truth because I swore on the pipe when I came in here and if I
said something that is wrong I'll be the one to be punished for it not
you.
Q If you don't
swear on the pipe, are you saying to me then ha any other times that you
have had any conversations or discussed any matter unless you're on the
pipe that you have no feeling that you're obligated in any way to tell the
truth, is that what you're trying to say to me?
A You mean in
the white way?
Q Anytime. I'm
just talking about in general. Do you have to be on the pipe in order to
respond truthfully?
A That's what
I believe in.
Q Have you
ever seen a rifle that in any way resembles this particular one here?
A Probably. I
think so. I'm not sure.
Q Why is it
that you think so?
A I've never
seen, you know, that thing, the clip or whatever you call it sticking out.
Q You have
never seen this clip here sticking out, is that right?
MR. TAIKEFF:
Could we have the exhibit number in the record, please.
MR. HULTMAN:
I'm sorry. The exhibit number is 69A.
Q (By Mr.
Hultman) Why is that except for the clip that's {3555} sticking out, do
you think you've seen this before?
A I might have
seen it because, see, like even at home we have guns and stuff and most
guns look the same to me.
Q Does it look
like one of those that you were referring to earlier? Is that why you
think what you've just indicated?
A I think so.
But I'm not sure. I honestly couldn't tell you.
Q Do you know
where this gun came from?
A No.
Q Did anybody
while you were there indicate where this gun might have come from?
A No.
Q Have you
ever heard the word Rooks before?
A Rooks?
Q Yes.
A No.
Q Do you know
where the Rooks live?
A No, I don't.
Q Well, were
you generally familiar with the homes in the area of the Jumping Bull
property?
A Not all of
them. Just like Wallace Little's place.
Q And if I
were to tell you that the Rooks lived just across the creek from the area
that you have been talking about, you would indicate then, as I
understand, that you didn't know who lived across the creek, is that
right?
{3556}
A Well, I know
there were homes and people live there, but I didn't know everybody that
lived right in the immediate area.
Q You didn't
go visit them or do any of the things that you talked about?
A No. Mostly
the people from Oglala.
Q All right.
Have you ever
seen a gun that looked like this generally?
A Yeah.
Q Where did
you see one that looked like this generally?
A We had one
something like that, I guess, in the house.
Q And when you
say "we," to whom are you referring?
A Well,
everybody that was there. That one is one that hung on the wall most of
the time.
Q And I
believe you indicated that this is the one that you'd seen Leonard with,
too, isn't that right?
A A few times.
Q One like
this?
A Yeah.
MR. HULTMAN:
Counsel is holding in his hands Government Exhibit 34AA.
Q (By Mr.
Hultman) Now during this period of time, and I'm referring and I want you
to respond to my questions not on the basis of something you may have
learned since the time that you left Jumping Bull's and went to Cedar
Rapids, in other words, not {3557} what you've learned since the 26th of
June, 1975 when the events we're concerned about took place but questions
I'm going to ask you now I want you to respond to me on the basis of what
you knew at the time you left and went to Cedar Rapids. You understand the
period I'm talking about?
A Yes, I do.
Q Not what you
saw in terms of APCs or FBI a week later or a month later or since that
time but I'm talking about up to the time you went to Cedar Rapids now do
you understand the basis upon which I'm going to ask you some questions?
A Uh-huh.
Q How many
instances during the time from March, or whatever the time was when you
came, or April, until the time you left in June to go to Cedar Rapids, how
many instances did you have when you had to have protection?
A When I had
to have protection?
Q Yes. You
yourself.
A When I went
into Pine Ridge.
Q Well would
you relate the circumstances to the jury on what those occasions were.
A You mean
where somebody was going to harm me if I didn't do something or like that?
Because, see, a far as I'm concerned, I needed protection every day that I
was there whether it was somebody coming right out to get me or anything
like that or do any bodily harm to me. Any one of us needed protection
every {3558} day.
Q Well, did
there ever come a time in that period when anybody did do bodily harm to
you?
A No. But
there were times --
Q Was it fair
for me to conclude then that this was something that you based upon
something, events that you saw or observed, is that right, that you needed
personal protection?
A You said --
Q You didn't
see any event of any kind, you said, that happened to you that in any way
harmed you or you needed protection for, did you?
A No. But see,
when you live on Pine Ridge you need protection every day when you're in
AIM. Look at what happened to Bisenet. She'd been going to a wake and on
the way back she was shot.
Q I'm asking
you -- yes. That might have happened here in Fargo this afternoon, too,
might it not?
A It might
have. But it happens more frequently on Pine Ridge.
Q I'm asking
you point blank, and if you would please be responsive to what events you
saw and you know.
A. And I told
you nothing ever really happened to me.
Q Now I'm
going to ask you about the others that were in your company during the
period of time that you've testified to. Did anything at any time in any
way happen to them in terms of {3559} being harmed in any way?
A I really
wouldn't now. You'd have to ask them.
Q I'm asking
during the times that you were with them and you would have knowledge.
A No. They
didn't tell me anyway.
Q I'm not
asking, there's been a, you've answered a lot of things on direct
examination about what somebody else told you, isn't that fair?
A For example?
Q Well, for
example, about what the feelings were and the attitudes were and so forth.
A Well, see,
they talked to me, too.
Q I'm asking
--
A I knew it
wasn't secondhand.
Q So I'm
asking you firsthand. That's what I'm interested in.
A Uh-huh.
Q Did any of
the individuals that came to Jumping Bull with you the first time or came
back with you in addition to the second time from Farmington, did any of
those people in your presence at any time, were they at any time harmed in
any way to your knowledge?
A Not that I
can recall.
Q Did you ever
see anybody with any ski masks while you were there?
{3560}
A No.
Q Did you ever
see anybody use one during the time that you were there?
A No.
Q Would the
use of a ski mask and pulling it down over the face, would that be
consistent with the reasons that you've indicated that you were there in
the Jumping Bull area?
A What? I
don't understand what you mean by that.
Q Was the use
of a ski mask in any way with it pulled down over the head, did that have
anything to do with the reasons that you were there, the religious reasons
that you've referred to or the security reasons?
A No.
MR. HULTMAN: I
have no further questions.
MR. TAIKEFF:
May I inquire, Your Honor?
THE COURT: You
may.
REDIRECT
EXAMINATION
BY MR. TAIKEFF:
Q You said
your father came after you. When is that?
A It was in
July of '75.
Q Where did he
come from?
A From
Wisconsin.
Q What brought
him there?
A You see, my
father worked for federal corrections, Bureau of Corrections at Oxford,
Wisconsin.
Q Is that the
Federal Bureau of Prisons you're talking about?
{3561}
A Yes, it is.
So, see, he
was, knew that something had happened in South Dakota and then an FBI
agent, I don't know what his name is or anything like that, had come to
talk to him and told him that --
MR. HULTMAN:
We're getting clearly --
A -- he should
try to --
MR. HULTMAN:
-- into hearsay. I object on the grounds there is clearly hearsay as to
what somebody said.
MR. TAIKEFF:
I'm not offering it as the proof of the contents but to prove her state of
mind and the declaration made by her father which proceeded her
confrontation by the FBI.
MR. HULTMAN:
And further irrelevant on the basis, Your Honor, that it's after the
facts, 26th of June. That was a response given which was unresponsive to
the question which was asked as far a Counsel.
MR. TAIKEFF:
Your Honor, the government made inquiry about her refusal to speak with
the FBI and I am pursuing some of the surrounding circumstances.
THE COURT: The
response was volunteered on the government's question. It wasn't a
question that the government asked but I will permit her to answer.
Q (By Mr.
Taikeff) You're telling us, I assume, what your father told you when he
found you on the Pine Ridge --
{3562}
A Yeah.
Q You don't
know whether what he said was true or not, you only know what he told you?
A Right.
Q Now tell us
what you learned from your father.
A He came --
MR. HULTMAN: I
think it might be proper at this time that the Court make an instruction
so there's no misunderstanding as to the nature of, one, the questions and
the reasons that are now being asked and the basis upon which, and the
limited basis upon which they come in.
MR. TAIKEFF: I
have no objection to that, Your Honor.
THE COURT:
Counsel approach the bench.
(Whereupon,
the following proceedings were had at the bench:)
THE COURT: You
people obviously know more about this case than I do and you're talking
riddles as far as I'm concerned. I don't know that there is anything that
may be prejudicial or not.
MR. HULTMAN:
The reason for my request and response at this particular time is that on
the basis, one, that we are dealing clearly with hearsay and the testimony
itself could only come in on the basis of, Counsel is indicating he is
offering it this particular time.
MR. TAIKEFF:
Not for the truth of the content.
{3563}
MR. HULTMAN: I
would want that made very clear, otherwise the jury not knowing the law is
going to conclude automatically what has been said is the truth.
THE COURT: I
want to know what the answer is.
MR. TAIKEFF: I
think her father told her that he'd been contacted by the FBI and he'd
better come home. I don't know the exact answer myself but I think Mr.
Hultman is entitled to Your Honor telling the jury that this offered to
show what she was told and how it may have affected her decision not to
speak of the FBI and not to prove the truth of what her father told her. I
think it's a proper instruction.
THE COURT: I'm
primarily interested in what the answer will be.
MR. TAIKEFF:
I'm not entirely certain.
THE COURT: I
think I extended the rules a bit in permitting you to ask the question.
MR. TAIKEFF: I
think the answer is going to be she was told there was going to be trouble
for her of one kind and another and she ought to come home and take care
of her children or something to that effect. It was not a matter I went
into in great depth with her so I can only give Your Honor an
approximation of what I think the answer is going to be.
THE COURT:
Very well.
{3564}
(Whereupon,
the following proceedings were had in the courtroom in the presence and
hearing of the jury:)
THE COURT:
Earlier in this trial I mentioned to the jury at one time that hearsay
testimony, except subject to certain exceptions, is not admissible; and
hearsay is repeating a statement that somebody else for the purpose of
establishing the truth of that statement.
However, a
person may testify as to a statement that someone else made to them as
long as the only purpose of that testimony is to testify that the
statement was made, not whether or not it is true, and that is the
category of this statement about to be elicited from this witness, not
that what was said to her was a true statement but simply her statement
that this comment was made.
You may
proceed.
MR. TAIKEFF:
Thank you, your Honor.
Q (By Mr.
Taikeff) All right, now, tell the Court and jury what your father said to
you when he found you on the Pine Ridge Reservation after June 27th?
A When he saw
me, he told me, he said, that I had to go home right away because the
county was trying to take the girls away from my parents since they didn't
have the legal guardianship over them; and so I said that I would go with
him in order to take care of this, and so now my girls' legal guardians
are now my parents so that if anything happens they will be the {3565}
ones to take care of them, that nobody can take them away from them.
MR. HULTMAN: I
do move now the answer be stricken because it is irrelevant.
MR. TAIKEFF:
That's the foundation to my next question. Could I at least ask the next
question before your Honor rules?
THE COURT:
Very well.
Q (By Mr.
Taikeff) Now, following that, one or more FBI Agents attempted to question
you, is that correct?
A Yes.
Q Do you know
the name or names of those people?
A I can't
remember, you know, the guys in Rapid City; but there was a guy in
Wisconsin, last name was Farmer.
Q All right,
but let's get back to South Dakota. What did the agents say to you?
A Well, they
wanted to know -- well, they really didn't get that far because, see, I
told them I wouldn't talk to them unless I had a lawyer with me.
Q And what did
they say to you, if anything, about your children?
A Well, they
just asked how I was and, you know, that was about it then.
MR. HULTMAN:
Your Honor, now I do move once again on the same basis that I have
mentioned before, and further, {3566} we are getting into all kinds of
leading questions at this point.
MR. TAIKEFF: I
will ask a non-leading question.
Q (By Mr.
Taikeff) In connection with Mr. Hultman's cross examination, you mentioned
the FBI and your children, did you not?
A Um-hum, yes,
I did.
Q Tell us
about that episode.
A Well the
only reason, the only way that I really knew that they was, was through my
father, what had been told to him.
Q Well, that's
what I am talking about. What did he tell you?
MR. TAIKEFF:
Again, your Honor, I do not offer it for the truth but only the fact that
it had been told to her.
THE COURT: By
whom?
MR. TAIKEFF:
By her father in connection with her refusal to speak with the FBI.
THE COURT: All
right. She also testified as to who made the statement to her father, and
that is what I want brought out in your question.
Q (By Mr.
Taikeff) All right. Can you tell us what you know about that?
A Well, the
FBI Agent back in Wisconsin -- that was a guy {3567} named Farmer, but if
it was -- I am not sure if it was exactly that guy that talked to my
father.
Q O.k. Now, as
far as you understand, without claiming that it is true, tell us what you
learned from your father on that subject.
A Well, my
father asked me to come back so that I could take care of it, where that
him and my mother would be legal guardians of my children in case anything
happened, where either I would be put in jail or anything like that, so
that they could take care of them and so that the county or the state, or
whoever, could never take them away from them.
Q Did he say
anything about the FBI commenting about your children?
A No, but he
asked me if I would talk to them because they wanted me to talk to them.
Q Did he say
anything about what would happen if you didn't talk to the FBI?
A He was
afraid I would be put in jail.
Q If you
didn't talk with the FBI?
A Yes.
Q Now, you
mentioned a person by the name of Anna Mae. Do you know her last name?
A Aquash.
Q And you said
you saw no weapons at Farmington at the National AIM Convention?
{3568}
A Yes.
Q Do you know
whether there were any specific rules concerning the carrying of weapons
at Farmington?
A You couldn't
carry them.
Q And if
anyone came with a weapon what happened?
A It was
confiscated.
Q By whom?
A The security
people at the front gate.
Q Were they
private security people or were they connected with AIM?
A They were
connected with AIM.
Q Now, you
mentioned the 11 or 12 year old by the name, Jimmy Zimmerman. What was his
mother's name?
A Evelyn
Bordeau.
Q Did you know
her?
A Yes, I did.
Q Was she at
Farmington?
A No, unh-unh.
She was in Rapid City.
Q Which is how
far from the Reservation?
A Oh, maybe
about an hour, hour and a half's drive.
Q Was Jimmy
Zimmerman a runaway from his mother?
A No, unh-unh.
Q Was Jimmy
Zimmerman there with his mother's knowledge?
A Yes, she
knew he was there.
Q Was he there
with her permission?
{3569}
A Yes, he was.
Q Mr. Hultman
asked you about the presence of young people as members of the encampment.
Do you recall that line of questioning?
A Yes.
Q Is it
unusual for AIM to have contact with young people?
A No.
Q In fact they
have a special program for young people, don't they?
A Yes, they
do.
Q What is it
called?
A The survival
schools.
Q And can you
briefly summarize what the survival schools are all about?
A It is a
school where you learn your education plus you also learn the traditional
ways of the Sioux people or of your own tribe.
Q Do you know
if there is a survival school run by AIM in Rapid City?
A Yes, there
is.
Q Do you know
the ages of the people who attend that school?
A Around --
there is even babies there that stay at the house, ranging probably from,
you know, your first graders or kindergarteners, all the way up to the
Senior High person.
Q Are there
any special facts or circumstances of the people {3570} who are at the
school concerning their family ties or family situation?
A A lot of
them are basically looking for something, and that to be proud of what
they are and that's the native American, and at times maybe the family
can't take care of them because they don't have the financial fundings to
take care of their children.
Q Are the
survival schools full-time sleep-in schools, or do the students go home at
the end of the school day?
A They would
be more like your boarding schools.
Q You said
that Norman Brown had danced at the sun dance, am I correct about that?
A Yes.
Q Can you tell
the Court and jury briefly the relative importance or significance of the
fact that a young person has danced at the sun dance?
A It is a very
religious thing. The only thing I can really compare it with would be like
in your Catholic religion like confirmation, where you are a part of the
Great Spirit and that you pray there and that you suffer for your people.
Q Now, Mr.
Hultman asked you about specific incidents where you yourself were
actually confronted with danger or the threat of danger, do you recall
that?
A Um-hum.
Q And he also
asked you about things that you know about {3571} other than things that
you may have seen with your eyes, do you recall that?
A Yes.
Q Now, was
there a rodeo sponsored at or near the community where you were living
during the period, March to June, 1975?
A Yes. There
is a rodeo thing right near Oglala.
Q Did you
participate in that?
A No, I didn't
go over there.
Q Do you know
any people personally who were shot on the Pine Ridge Reservation?
A Yes, I do.
Q Name those
people.
A Jimmy Eagle
-- Eagle's little brother, and Joe Stuntz, and Anna Mae Aquash.
Q You
mentioned a person by the name of Bisenet?
A Janet
Bisenet, but I don't really know her that well.
Q Did you know
a person named Pedro Bisenet?
A Not
personally, but I know of him.
Q Was he shot?
A Yes, he was.
Q Dead or just
wounded?
A He was shot
dead.
Q Now, in
addition to those things that involve people that you knew well or
casually, while you were on that Reservation did you hear from other
members of the community about other {3572} shootings and beatings?
A Yes. See,
like for the first few days that we were there, we had been going to
wakes, the girls that were there because we would go on hunts for food and
clean up and do everything, you know, we could to help; and so there was
quite a few killings while we were there the first month or so.
Q Are you
saying that these wakes were of people who had died of violent causes
rather than natural causes?
A Yes.
Q And what
effect, if any, did these experiences have on your belief that it was
necessary when you left the Jumping Bull area to either have protection or
go armed?
A Well, even
reinforced it even more, we would need some sort of protection.
MR. TAIKEFF: I
have no further questions.
MR. HULTMAN: I
just have a very few questions.
RECROSS
EXAMINATION
By MR. HULTMAN:
Q First so
that I understand, because I am not sure from the last responses on
redirect as to the period of time we are talking about. Did the events
that counsel specifically asked you about, did they happen before you left
for Cedar Rapids, Iowa, or after?
A Which one?
Some of them happened before, and some happened afterwards.
{3573}
Q Do you
recall -- so that your response then was to the events that had happened
some before and some after, is that right?
A Right.
Q Which one or
ones were before you left to go to Cedar Rapids?
A When Janet
Bisenet got killed while we went to the wakes, when Jimmy Eagle's little
brother got shot, and then of course -- that's it.
Q I am
referring to those that happened before.
A O.k.
Q You don't
know any of the details about those, as to the events surrounding them or
anything, you were not there, were you?
A No, I
wasn't.
Q With
reference to your redirect having to do with the FBI or possibly FBI
Agents, I believe you referred specifically to a time in the Oglala Pine
Ridge area, is that correct, that you -- one of the times counsel was
asking you about, or the one time he was asking you about, was in the
Oglala area, that you saw FBI Agents there and they were going to ask you
some questions, but you would not respond to their questions?
{3574}
A No. When I
saw them at the roadblock I mean, you know, when we were coming out of
Jumping Bull's, I responded to them. The other times were after, would
have been in July or afterwards.
Q All right.
So that you were responding to counsel's questions as to any times
concerning the FBI; is that right? Is that what you are indicating to me?
A You mean
that I talked to them?
Q Yes.
A Yeah.
Q All right.
Now, I want to ask you with reference to those occasions as well as
occasions when the FBI, you've referred to with reference to seeing them
and so forth. Do you have any trouble at any time identifying their cars
on any of those occasions?
A There was
only, let me see, that time at Jumping Bull's when they stopped us, and
then they were in the school vans. And then the next time I probably saw
them was in Rapid City. But I don't know what kind of car they were
driving.
Q Do you
remember any observation that you have given on any previous occasion with
reference to any questions that may have been asked you about observations
concerning FBI cars?
A Nobody ever
asked me.
Q Have you
ever had any problem at all identifying FBI cars?
A I never
identified one.
Q You saw them
on the reservation during the times and the {3575} periods that you have
testified to here?
A Well, the
only time I ever saw, you know, when I thought that I would -- knew that
they were FBI agents is like when they were riding around in their cars
right after June 26th on the 27th because they had those big aerials and
then there were a bunch of white people, white men in them.
Q You never
had any problem at any time identifying what you thought to be an FBI car
or distinguishing it from a goon, did you?
A No.
Q The FBI
wasn't the goons, there's never been any questions in your mind about
that, is there?
A I really
wouldn't know.
Q Well, now
basically has there ever been a time on any occasion any time anywhere
where you had any reason to believe that those individuals that you've
testified to and now are relative to FBI that they were ever anybody that
was FBI?
MR. TAIKEFF: I
don't understand the question, Your Honor. I ask that the question be
rephrased.
MR. HULTMAN:
All right.
Q (By Mr.
Hultman) You referred, and you have referred to specific people, have you
not, as being people who you classified as being, using a generic term of
goons; isn't that correct?
A Um-hum.
Q All right.
And you didn't include the FBI in any of that {3576} definition at any
time, did you?
A No. I didn't
say that they were the FBI.
Q All right.
Is there any doubt in your mind, or any doubt in your mind, any reason to
believe at any time that they were FBI?
A You mean
where a goon or an FBI could be the same in one.
Q That's
right.
A To honestly,
truthfully answer that question, I don't really see much difference.
MR. HULTMAN: I
have no further questions.
THE COURT: Any
more?
MR. TAIKEFF:
No, Your Honor.
THE COURT: You
may step down.
THE WITNESS:
May I be dismissed?
MR. TAIKEFF:
Yes. May the witness be excused, Your Honor?
THE COURT: Any
objection?
MR. HULTMAN:
No objection.
THE COURT: You
are excused.
MR. TAIKEFF:
Does Your Honor wish the defense to call its next witness?
THE COURT: We
might as well put in ten minutes.
MR. TAIKEFF:
All right. The defense calls Francis He Crow.
{3577}
FRANCIS HE
CROW,
being first
duly sworn on the sacred pipe, testified as follows:
MR. TAIKEFF:
May I proceed, Your Honor?
THE COURT: You
may proceed.
DIRECT
EXAMINATION
BY MR. TAIKEFF
Q Mr. He Crow,
can you move the microphone a little closer to make sure that everyone in
the courtroom, but particularly the Court and jury can hear you.
How old you,
sir?
A Forty-six.
Q And where
were you born?
A Oglala,
South Dakota.
Q And where do
you live now?
A Pine Ridge.
Q And have you
ever lived anywhere other than on the Pine Ridge Indian Reservation?
A Yes. I lived
in Dallas, Texas.
Q For how
long?
A About seven
years.
Q Now, is
there a group of people who in English might be called the traditional
council of chiefs?
A Yes.
Q Could you
briefly explain to the judge and the jury who the traditional council of
chiefs is?
A Traditional
chief council is older peoples of Oglala Sioux {3578} Tribe.
Q The elders
of the Oglala Sioux Tribe?
A Yes.
Q Can you
raise your voice, or move a little closer to the microphone, please, or
move your chair closer if that's more comfortable for you.
Now, do you
have any connection with that traditional council?
A Yes. Since
November 20, 1972.
Q And would
you be kind enough to tell us what is your connection, what is your
function and reference to the traditional council?
A I work as a
coordinator and researching the treaty, treaties.
Q What kinds
of treaties, between who and whom?
A Oglala
Sioux, the Sioux nation and United States Government.
Q Now, I'm
going to put before you a piece of paper which has been marked Defendant's
Exhibit 193 for identification. I ask you first to look at it and then
after you've looked at it to please tell us whether you know what it is.
But I must tell you that it's not in evidence and you cannot say anything
about the details of what's in or on that piece of paper. Look at both
pages, please.
A Yes.
Q You do know
what it is?
{3579}
A Yes.
Q Can you tell
us the name of the person or the group that is responsible for that piece
of paper?
A Yes.
Q Please do.
A Head chief
is Chief Fools Crow. And other chiefs are David Flying Hawk, Luke Weasel
Bear, Charlie Red Cloud, Mathew Bear Shield and Frank Kills Enemy.
Q What do
those people have to do with the traditional council of chiefs?
A Well, it's
the people, members of the tribe. If they have any problems or anything,
that bring it to head man. And head man are the one that put in written or
research.
Q No, don't
tell us about the document yet.
A Okay.
Q I just want
you to give us certain basic information first, and then we will get to
the document. Do you understand that?
A Yes.
Q You
mentioned before that you were the coordinator for the traditional council
of chiefs?
A Yes.
Q You just
mentioned certain names to us. I want to know whether those people you
mentioned are the council, the traditional council of chiefs?
A Yes.
{3580}
Q There's also
an additional government on the Pine Ridge Reservation, isn't there, or an
additional governmental body?
A Oglala Sioux
Tribe.
Q There's a
tribal government?
A Yeah. It's a
tribal government under 1934 Indian Reorganization Act.
Q Okay. Now,
this traditional council of chiefs is not the same as the tribal
government that exists under the 1934 Indian Reorganization Act, right or
wrong?
A No.
Q I'm wrong?
A Yes.
Q All right.
Explain, are they the same or are they different?
A Different.
Q They're
different, okay. I think maybe my question confused you.
The tribal
government is a result of the 1934 Indian Reorganization Act?
A Yeah.
Q The
traditional council of chiefs is a group of elders from amongst the
traditional full-blooded Indians on the reservation; is that right?
A Yes.
Q And there
are two different kinds of groups?
A Yes.
{3581}
Q All right.
Now, in the spring and early summer of 1975 was Leonard Peltier on the
reservation?
A I think in
April.
Q Do you know
who he is when you see him?
A Yes.
Q Would you
look in the courtroom and see if he's here.
A Yes.
Q Where is he?
A Sitting
there (indicating).
MR. TAIKEFF:
May the record reflect that he's pointed at the defendant.
Q (By Mr.
Taikeff) Is he a personal friend of yours?
A Yes.
Q How long do
you know him?
A I don't
remember. I know him quite a while.
Q When he came
to the reservation did he come with anybody else?
A Well, when
he come on the reservation they told us they were there. So we went over
there and we met them.
Q When you
said "they," that's what I'm trying to get at, who do you mean by "they"?
Leonard and who else?
A He's the
only one I recognize. I forgot the others names.
Q Was there a
person named Dino?
A Yes.
Q Was there a
woman named Neelock?
{3582}
A Yes.
Q Was there a
man named Bob?
A No, I don't
know him.
Q Were there
others in addition to the ones I just mentioned?
A Ernie
Peters.
Q By the way,
when you speak at home, do you speak English or do you speak another
language?
A Both.
Q What is the
other language you speak?
A Sioux
language.
Q What is that
called?
A Lakota.
Q Now, do you
know what organization Leonard and these other people represented in the
spring of 1975?
A American
Indian Movement.
Q And do you
know, I don't want the details at this moment, I just want to know if you
know how it is that they came there to that location, to that area?
A They were
invited.
Q And can you
tell us who invited them?
A Oglala
Sioux. Full-blooded members.
Q And does the
document that is in front of you have anything to do with that invitation?
A Yes.
Q Without the
Court and the jury --
{3583}
MR. TAIKEFF:
Your Honor, considering the time and knowing the nature and extent of the
answer I would respectfully ask that I be permitted to stop at this point.
THE COURT: I
think we will stop at this point.
MR. TAIKEFF:
Thank you, Your Honor.
THE COURT:
Court is in recess until 1:30.
(Recess
taken.)
{3584}
(Whereupon,
the following proceedings were had in the courtroom without the hearing
and presence of the jury:)
THE COURT:
Question has been raised as to whether or not the Court will be in session
tomorrow and the answer is yes, the Court will be in session for the full
day.
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: Mr.
Taikeff, you may continue.
MR. TAIKEFF:
Thank you, Your Honor.
May the record
reflect I am returning to the witness Defendant's Exhibit 193.
Q (By Mr.
Taikeff) Mr. He Crow, I think I was asking you questions about the
invitation to the American Indian Movement, do you remember that?
A Yes.
Q And we had
been talking a little bit about that document which is in front of you.
When was the invitation originally made to the American Indian Movement?
A I remember
1975. January they generally have a traditional counsel and this is
suggestion they wanted to invite the American Indian Movement to come on
the reservation and protect Indians and property, fish and wildlife and in
February they had another one and in March and April they started drafting
this resolution.
{3585}
Q Would you
explain to the judge and the jury why there were four meetings, if there
was any special reason?
A This is part
of our religion, Indian religion. When I hold that pipe, pray with that
pipe four days and four nights and when at that meeting, they going to
have four days, one first meeting is discussion and second is researching
and third is put it together and fourth is resolution.
Q Now these
meetings take place in what language?
A They record
it on tape recorder.
Q On a tape
recorder?
A Tape
recorder.
Q What
language do the chiefs speak?
A Sioux
language.
Q You said you
speak English and the Sioux language, Lakota, is that correct?
A Yes.
Q In fact you
have a job in that connection, do you not?
A Yes.
Q What is that
job?
A I have to
gather treaty documents or I go out in district and I do some researching
and then I have a tape recorder so I tape all the peoples and bring it
back to the meeting.
Q And did you
have anything to do with the making up of that document which is in front
of you?
A Yes.
{3586}
Q And is it
fair to say that you acted as an interpreter as far as the making of that
document is concerned?
A Yes. There's
about six Indians within there that speak both languages and I was
appointed to help the legal aide to put it in English. So I put it in
English and then legal aide, they put in the right words on there.
Q Did you
check that document?
A Yes. I check
it both times.
Q How did it
compare with what the chiefs agreed to do at their four meetings?
A Chief
counsel, each chief took about hour to explain it and read it over.
Q Who
explained it?
A Would be of
the coordinator, one called coordinator, but I don't remember. I wasn't
there when they go through this because I work out in the field then. So
after they go through that four times, each chief's, and then they sign
it.
Q And now do
you recognize those signatures?
A Yes.
Q And that
document which is in front of you, does it have the signatures of the
members of the traditional council of chiefs?
A Yes.
Q And who is
the head chief?
A Chief Fools
Crow.
{3587}
Q And when was
the last time you saw Chief Fools Crow?
A Yesterday.
Q And was
there a time in the defense office when you saw him within the last week?
A Yes.
Q And did you
show him the piece of paper which supposedly has his signature on it?
A Yes.
Q And what did
he say as to whether or not that was his signature?
A He told me,
"I signed that and I took it to Washington in September, 1975."
Q And now is
there anything in that document which makes mention of the invitation to
the American Indian Movement?
A Yes.
MR. TAIKEFF:
Your Honor, I'm prepared to offer the entire document. Perhaps the
government would object. I at least offer the portion that makes reference
to the invitation to the American Indian Movement.
MR. HULTMAN:
Your Honor, the government does offer its objections on the grounds of
relevancy.
MR. TAIKEFF:
May I show Your Honor the particular portion.
THE COURT: You
may.
MR. TAIKEFF: A
copy was provided yesterday to the {3588} government.
It's in
paragraph 9. I'm prepared to settle on a stipulation instead of the entire
document.
MR. HULTMAN: I
might add an additional reason, Your Honor, that in addition to relevancy
that the document itself, I think on its face, might import to have some
legal force of some kind and in fact I would object for that additional
reason.
MR. TAIKEFF:
Your Honor, the defense will stipulate that the traditional council of
chiefs has no official governmental status on the reservation but is
recognized only privately by the traditionalists. We make no claim that
they have official governmental status.
THE COURT:
Paragraph 9 of the document will be received.
MR. TAIKEFF:
Thank you, Your Honor.
Q (By Mr.
Taikeff) Now would you tell the jury if every member of the traditional
council of chiefs signed the document after you prepared it in English and
explained it to them in the way you've testified?
A Yes.
Q Now are you
aware of your own personal knowledge or based on your own experience on
the reservation as to the circumstances which made it necessary to invite
AIM to come to the White Clay District?
{3589}
A Yes.
Q First I want
you to tell us very generally, not in specific detail, what was the kind
of situation, what was life like in the White Clay district that made it
necessary to call in the American Indian Movement?
MR. HULTMAN:
Before, Mr. He Crow, you answer I would like to offer an objection, then I
won't interrupt Counsel.
MR. TAIKEFF:
All right.
MR. HULTMAN:
Your Honor, I want to make an objection and then I'll leave it as a
standing objection if the Court rules to the contrary so I don't interrupt
Counsel. My objection is that the matters now about to be discussed are
not relevant and then I will not continue if the Court so rules otherwise.
THE COURT: The
record may show that the government has a standing objection to the
testimony of this witness relating to the subject about to be mentioned in
response to the question of Counsel. The objection is overruled.
Q (By Mr.
Taikeff) That means you may answer the question, Mr. He Crow. But I want a
general answer before we get to any specific events.
A There is no
law on the reservation.
Q Is there a
police force, or was there in 1975 or in 1974 and 1975 a police force
supposedly on the reservation?
A Yes.
{3590}
THE COURT: I
may mention for the benefit of the jury that this evidence, the Court is
allowing it in but is allowing it in only for the purpose of the defense
showing the reason for the representatives of the American Indian Movement
being on the reservation.
MR. TAIKEFF:
Yes, Your Honor.
THE COURT: You
may proceed, Mr. Taikeff.
Q (By Mr.
Taikeff) I think I asked you whether there was at least supposed to be a
police force on the reservation.
A Yes.
Q Was there a
name for that police department?
A Bureau of
Indian Affairs.
Q BIA police?
A Yes.
Q Were there
people employed as BIA policemen?
A Yes.
Q Were they
supplied with uniforms and cars?
A Yes.
Q Were they
maintaining law and order?
A No.
Q In what
year, I think you said there was no law on the reservation, is that a fair
representation of what you said?
A Yes.
Q In what year
did this condition begin?
MR. HULTMAN:
Well, if I might interpose, I would like {3591} to go back and get the
response which the witness made in order that I might -- I believe,
Counsel, he responded, "There is no law." He was not referring to
something in the past and I would like the reporter to go back and find
that response for me to make sure that I am correct and then on the basis
of that I may interpose an objection.
MR. TAIKEFF: I
have no objection if the question is read along with his answer.
MR. HULTMAN: I
have no objection to that.
THE COURT: The
reporter may read the question and answer.
MR. TAIKEFF:
Your honor, if that's the issue, I can make a representation on the side
bar which is present tense and past tense. There will be a witness in that
regard. I think I can explain, Your Honor, something Mr. Hultman is
unaware of.
MR. HULTMAN:
I'd like to have the response if Counsel is going to use and state a
response.
THE COURT: The
reporter was diligently looking for the response, then the lawyers started
talking and he had to quickly get back to his record.
I will ask the
reporter to again look for the question and answer and once he has started
looking, then I would ask Counsel to be quiet until he's found it.
(Whereupon,
the following question and answer were {3592} read back: Question: "First
I want you to tell us very generally, not in specific detail, what was
life like in the White Clay district that made it necessary to call in the
American Indian Movement?" Answer: "There is no law on the reservation.")
MR. TAIKEFF: I
think Mr. Hultman said he wanted to hear that answer so that he might
decide whether to say something further to the Court. That's why I'm
waiting.
MR. HULTMAN: I
was just objecting on the grounds that Counsel did not state in his
question correctly the response of the witness. That's all I was getting
at.
Q (By Mr.
Taikeff) When you said there is no law on the reservation, what time were
you talking about?
A That was way
back in about '72 or before. I don't remember exact.
Q And for how
long did that continue?
A Many years.
Q Did that
situation exist in 1974?
A No. Way
back.
Q But was it
still in existence in 1974?
A Yes. Yes.
Q Was it in
existence in the first half of 1975?
A Yes.
Q At this
point, once again I don't want you to tell us about specific events that
you were at but just generally what were the kinds of things that were
happening that made you say {3593} there was no law?
A There was
too many violence and murder and --
Q Was there
any attempt by the traditional people to hold traditional ceremonies or to
have traditional meetings?
A Yes.
Q Was there
any interference with that?
A No.
Q Were there
beatings?
A Yes.
Q Were people
arrested for doing those beatings?
A Yes.
Q How many
deaths would you say, violent deaths that you know of in that area in
1974?
A Too many.
Q Now when AIM
was invited to come to the White Clay district, what were they to do
there, what was to be their job?
{3594}
A Their job is
to protect Indian members of the Oglala Sioux Tribe members and their
property and the fish and wildlife.
Q In the White
Class District are there a lot of traditional people?
A Yes.
Q You know, do
you know of people known as the goons?
A Yes.
Q How would
you describe what that means?
A Goons is a
Richard, Dick Wilson will take over the tribal government. He divide
between full-blood Indians and mixed-blood Indians and he organized a goon
squad.
Q What did the
goons do?
A They
threatened Indians if they were going to have a meeting or traditional
ceremonies or Indian dance.
Q Or Indian
what?
A Indian
dances.
Q When you say
"Indian dances" are you including a special kind of Indian dance?
A Yes. Every
year they have celebration on the 4th of July and one in August.
Q And what is
that special celebration called in English?
A 4th of July.
Other one is Oglala Sioux affair.
Q Are you
talking about the sun dance?
A And they
have a sun dance, too, also.
Q When does
that occur?
{3595}
A That usually
come in the first part of August.
Q Now, were
the AIM people, how many AIM people came there in the spring of 1975?
A I don't
remember.
Q Did they get
paid a salary?
A No. We have
the food.
Q You what?
A We have them
food.
Q You gave
them food?
A Yes.
Q And did they
have a place to stay?
A Yes.
Q And did they
get any other kind of pay?
A No.
Q And for how
long did they stay?
A Some were
there from that district.
Q Some of them
lived in that district?
A Yes.
Q How about
the ones who came from outside that district?
A That outside
district, they come in back in 1973 and they live on the reservation.
Q Did you ever
see Leonard Peltier in 1975?
A Yes.
Q He wasn't
from that district, was he?
A No.
{3596}
Q Did they do
work for the people living there, the older people?
A Yes, they
do.
Q Can you tell
the judge and jury the kind of work that they did?
A Some older
people used to have wood stove. So they hauled dry wood for them and they
chopped wood for them.
Q Did they do
any work on cars?
A Yes.
Q What kind of
work?
A In a
district most of them, they drive old cars, and if they have car trouble
they take it over to this AIM and they fix their car.
Q How much did
they charge for hauling and chopping the wood?
A I think it's
free.
Q How much did
they charge for repairing the cars?
A Sometimes
they helped them food.
Q Give them
food for it?
A Yes.
MR. TAIKEFF:
If I may have a moment, Your Honor.
(Defense
counsel conferred.)
MR. TAIKEFF:
No further questions, Your Honor.
CROSS
EXAMINATION
BY MR. HULTMAN
Q Mr. He Crow,
you responded to a number of questions concerning {3597} law on the
reservation, and so that I don't have any doubt in my mind or anyone else
because of language difficulty, and we do have that on occasion, do we
not?
A Yes.
Q So that we
don't misunderstand at all, when you responded to counsel that there is no
law on the reservation, and then you went back and you referred to I think
some words "going way back" or some words to that effect, is this a
condition, or is this a response that you were giving from some time far
in the past up to and including here in the courtroom today, is that a
fair conclusion for me to draw?
A What I say
there's no law on the reservation. What I'm talking about is the peoples
that need help. If anything happen on reservation we go to BIA police and
they never showed up.
Q And I
understand I think what it is you're saying. My question is: You are not
pointing out by your response to Counsel earlier or to me now, are you,
just one period of time? You're talking about sometime way in the past up
to and including the present time; is that correct?
A Yes.
Q All right.
So I want to make sure I understood that you were not just talking about
something in the past or a given time in the past, that you're talking
about the far past, the immediate past and the present. This is a general
condition that {3598} you are talking about, is that fair?
A Yes.
Q All right.
Fine. You referred to the fact that on Defendant's proposed Government --
proposed Exhibit 103, and of which one paragraph is now in evidence of
that document, that the traditional chiefs had gotten together, and then
through the four meetings had ultimately put down in paper what you have
in front of you. Is that a fair conclusion for me to draw?
A Yes.
Q All right.
And is it fair for me to include that you were enunciating or stating some
principles or some positions that the ten items represent?
MR. TAIKEFF:
Your Honor, I suspect that that's too vague a question. I object to the
form on that basis.
MR. HULTMAN:
Well, I'm just trying to do my best, Counsel.
THE COURT: Do
you understand the question?
THE WITNESS:
No.
THE COURT:
Objection is sustained.
MR. HULTMAN: I
will withdraw my question.
Q (By Mr.
Hultman) What did you do with paragraph 9 after you had agreed on June 1
of 1975? What did you do, what did the traditional chiefs then do? The
date on this is June 1, 1975, is it not?
{3599}
A Yes.
Q And so
paragraph nine applies to that date, does it not?
A Yes.
Q All right.
Now, what was it that you did with reference to paragraph nine after June
1, on June 1 or after June 1, 1975?
A They make
documents and they prepared to take it to Washington after.
Q All right.
Was the purpose then of the document to go to Washington? Is that a fair
conclusion for me now to draw?
A Yes.
Q Including
paragraph nine; is that right?
A Yes.
Q Now, my
point is that after you agreed, or the chiefs, the six chiefs who are
traditional chiefs whose names appear thereon, after they had had the
meetings and resolved the meetings and the thoughts to writing did you
contact anyone about those, and specifically paragraph nine, other than
going to Washington?
A I don't
understand.
Q Well, let me
ask you point blank: Did you or any of the chiefs talk to Leonard Peltier
concerning paragraph nine on June 1 or there after?
A Say that
again once.
Q Did you
personally, or to your knowledge, any of the six traditional chiefs whose
names appear on that document speak to {3600} Leonard Peltier about any
subject matter of any kind?
A I understand
this Leonard Peltier is the one of the leader, and that when they were
invited he's one of them that he contact. But I don't remember exact date
when we have meeting with them.
Q All right.
I'm not trying in any way to be difficult. Is it fair for me to conclude
from what your remarks in response to my question is that you don't have
any knowledge, first of all yourself, you never contacted Leonard about
paragraph nine, did you?
A I worked
with his traditional, and when they're going to have a meeting I happen to
set up the meeting. And legal aides and the chiefs and some interpreters,
they work on this.
Q Well, I'm
still asking you one very basic, I'm trying to question, not what about
somebody else may or may not have done that you really don't know about,
I'm asking you first of all here's a document that June 1 was at least
reduced to writing; is that correct?
A Yes.
Q And the
purpose was to take these things that are set forth in it, including
paragraph nine which is now in evidence here, to Washington; isn't that
correct?
A Yes.
Q Now, my
question is just very simply this: Did you, Mr. He Crow, did you speak to
Leonard Peltier after June 1, 1975 {3601} to June 26, 1975 about anything
that's referred to in paragraph nine?
A I remembered
they were there the last meeting. So when the American Indian Movement
there, but I don't know this. But I think he was there, too.
Q Pardon?
A I think he's
there, but the person, I don't talk to him.
Q All right.
Now, let me ask you, is there anything in paragraph nine that says
anything other than you welcome American Indian Movement to reside and
work to support you in your goals?
A Yes. This
is, means we have some treaty meetings and we want to negotiate with the
United States Government concerning 1868 treaty.
Q Well, now
there isn't anything in here about using guns to enforce the law against
anybody, is there?
A Well, you go
to a reservation. You are going to see a lot of cars, they carry guns. And
also the American Indian Movement, they carry rifles.
Q Well, did
you look to the American Indian Movement then as being, having a purpose
to enforce the law? Is that your understanding of the reason for the
American Indian Movement to have guns and enforce the law?
A Yes. It's
pretty dangerous to live on the reservation, and they have to carry in
case anything happened. Because there are {3602} goon squads were there
and they carry guns.
Q Well, let me
ask you this: Who were the people, other than Leonard Peltier, you've
mentioned him in direct response to the name being used by counsel in
examining you on direct examination, who are the other members of the
American Indian Movement other than, or in addition to Leonard Peltier
that were at the Jumping Bull area, or in that group that you specifically
invited in for a specific purpose?
A All I know
is the American Indian Movement.
Q So is it
fair for me to conclude that all you are talking about is that as
paragraph nine reads, and I think it's, since it's in evidence it might be
appropriate that I read it, "The legal aides are recognized by this Lakota
treaty council to reside and work within the boundaries of the Pine Ridge
Reservation for an unlimited time," end of sentence.
Second
sentence, "The American Indian Movement is likewise recognized by us to
reside and work here to support us in our goals," end of second sentence.
End of paragraph nine.
A This legal
aides were there in 1974, in November. And when they worked there they
need protection.
Q Well, are
you saying you went out and hired some guns, is that what you are saying?
A No.
Q Well, what
is it that you are saying then to this jury {3603} concerning what your
relationship was with the American Indian Movement in general, and any
specific individuals other than to come in and assist you in any ways with
your general goals as traditionalists?
A Well, we
asked the American Indian Movement to come on our reservation, what
they're going to expect as to goons. This is one reason they carry guns.
Q Well, then
you did hire them as hired guns, is that fair for me to conclude?
A They carried
guns, I know that.
Q Well, now
let me ask you specifically about the individuals that we're concerned
with here. Whose names have appeared in the course of these proceedings
rather than generalities. Is Leonard Peltier a Sioux?
A He's
Chippewa.
Q So I
conclude from that that he is not a Sioux; is that correct?
A No.
Q He's a
Chippewa.
Now, why is it
that you have to go out and hire a Chippewa to do whatever it is that you
want done that you couldn't do yourself as a Sioux?
MR. TAIKEFF: I
object to the form of the question because it implies something which has
not been testified to. He didn't specifically go out and hire a Chippewa.
{3604}
MR. HULTMAN:
Well, then I'll include some others, some from the Wisconsin Winnebago --
THE COURT:
Just a moment. Are you withdrawing the question?
MR. HULTMAN: I
was just going to make it ever more specific.
THE COURT: Why
don't you withdraw it and restate it.
MR. HULTMAN:
All right.
Q (By Mr.
Hultman) Why is it, if you can tell us, Mr. He Crow why is it that in the
group of individuals that we are concerned with here, specifically on the
Jumping Bull property, that the individuals are Chippewa, Wisconsin
Winnebagos, Navajos and maybe some others that I'm not absolutely certain
of? Why is it that you have to hire those people to come in and do the
things that you were referring to here other than you doing them
yourselves?
A Well, this
organization, they come back in in 1972. And one Indian were murdered at
Gordon, Nebraska, and there's no investigation. So his relative's name is
Yellow Thunder.
Q Is Gordon,
Nebraska on the reservation?
A No.
Q Then we're
not talking on the reservation as far as that issue; is that right?
A Yeah. That's
his first time, I know, American Indian Movement to come on reservation.
{3605}
Q Well, my
question is: I thought we were talking about events on the reservation; is
that fair in my discussion?
A Yes.
Q Now, the
event you just mentioned wasn't on the reservation at all, was it?
A Yes.
Q Is there any
specific reason that you know, other than you stated thus far, as to why
Leonard Peltier is the one that you have referred to and not to any others
by name specifically?
A He's the
only one I know or recognize him, and I know him before.
{3606}
Q Do you know,
when did you first meet him approximately?
A That was
probably in 1975, in January I believe it was.
Q Did you know
at that time that there was a warrant for his arrest for attempted murder?
A No.
MR. HULTMAN: I
have no further questions.
REDIRECT
EXAMINATION
By MR. TAIKEFF:
Q Mr. He Crow,
do you know the name, Russell Means?
A Yes, I do.
Q What
connection, if any, does he have with the American Indian Movement?
A I remember
he was the leader at one time.
Q How about
Ted Means?
A Yes, I know
him.
Q What
connection does he have with the American Indian Movement?
A I don't
know.
Q How about
Bill Means?
A Yes, I know
him.
Q What
connection does he have with the American Indian Movement?
A I don't
know. I know he is a member.
Q He is a
member?
A Yes.
{3607}
Q Do you know
if Ted Means is a member?
A Yes, he is a
member.
Q Pedro
Bisenet, do you know his name?
A I know Pedro
Bisenet.
Q Do you know
whether he was involved with the American Indian Movement?
MR. HULTMAN:
Your Honor, now I am going to object. I don't think there is any relevancy
of any kind to show any association of what we are concerned with here.
MR. TAIKEFF:
If Mr. Hultman would just exercise a modicum of patience, I will show him
that this is an extension of his last objection.
THE COURT:
Proceed.
Q (By Mr.
Taikeff) You said you knew the name, Pedro Bisenet. I asked you whether he
was involved in any way with the leadership of the American Indian
Movement?
A No.
Q How about
Bob Yellow Bird?
A Yes.
Q Is he
involved with the leadership of the American Indian Movement?
A Yes, he is a
member.
Q How about
Byron DeSersa?
A Yes.
Q Involved in
the leadership of the American Indian Movement?
{3608}
A He is a
member.
Q He is a
member. O.k.
How about
Marvin Ghostbear?
A Yes, I know
him.
Q What is his
involvement with the American Indian Movement?
A I think he
is a member too.
Q How about
Leonard Crow Dog?
A Leonard Crow
Dog, yes, I know him.
Q What is his
involvement with the American Indian Movement?
A He is a
member.
Q Does he have
any official standing as far as you know with the American Indian
Movement?
A Spiritual
leader.
Q Which of
those people that I have read the names of and that you have identified
are Sioux Indians?
A Means.
Q The three
Means?
A The three
Means. Pedro Bisenet, Crow Dog, Bob Yellow Bird Ghostbear. I can't
remember those other names.
Q Did I read
the name Byron DeSersa?
A Yes.
Q Is he a
Sioux?
A Yes.
Q Now, I think
you said that the legal workers came on the Reservation, came there in
1974, is that correct?
{3609}
A Yes.
Q Were they
Indian people or white people?
A Some are
Indian and some are whites.
Q Now,
Paragraph 9 of the document indicates that those people are welcome to
stay and live there, is that correct?
A Yes.
Q Does that
mean that they couldn't come until they had that document?
A No. They
were there before.
Q They were
there before?
A Yes.
Q Now,
likewise after that document was signed, the document which is in front of
you, there was no special invitation given after the document was there?
A I think they
call this Legal Aid before that, but I don't remember the date.
Q When did the
AIM people come into the district?
A They come in
the district about around 1972.
Q Do you know
who told the people from AIM who came there in 1957 about the goon
problem?
A I don't
remember.
MR. HULTMAN:
Well, I object to this, your Honor, again on many grounds, the last one of
which is that it is a matter which has been gone into and is a matter
which is new material again as far as redirect examination, and {3610}
further, there is no showing as to times or places or events specifically
to which we are now referring, and further --
THE COURT:
(Interrupting) The witness says he doesn't know.
MR. TAIKEFF:
Your Honor, I believe it was on the Government's cross examination that
they elicited that fact.
THE COURT:
Well, the witness has stated he has no knowledge.
MR. TAIKEFF: I
was merely asking for details, if he had any.
Q (By Mr.
Taikeff) Now, Mr. Hultman asked you about a killing you talked about in
Gordon, Nebraska, you remember him asking you about that?
A Yes.
Q Now, Gordon,
Nebraska, is not on the Reservation, is that right?
A No.
Q What
connection did the Reservation have --
MR. HULTMAN:
(Interrupting) Well, again, your Honor now I am going to renew my
objection. We are not getting into specific events of other kinds that are
highly prejudicial and are not material.
MR. TAIKEFF: I
didn't finish my question. I don't {3611} know how Mr. Hultman could
possibly know whether the question is objectionable or not.
MR. HULTMAN:
The form of the question clearly indicated it to me, your Honor. That's
the reason I objected.
THE COURT: You
may complete your question.
MR. TAIKEFF:
Thank you, your Honor.
Q (By Mr.
Taikeff) What connection, if any, was there between the Gordon, Nebraska,
incident and the Pine Ridge Reservation?
MR. HULTMAN:
And again I object, your Honor, that being totally irrelevant and
immaterial unless that question goes to the issue that's before this jury
as the events on the 26th.
MR. TAIKEFF:
The subject was opened up by the Government, and all I am trying to do is
counter the Government's cross examination on the question of whether
there was any connection between that incident and the Reservation.
That subject
was gone into for the first time by the Government on cross.
MR. HULTMAN:
That is not correct, your Honor. This witness was asked specifically about
a given death. My only question was: "Was it on or off the Reservation?"
The subject matter was raised in direct examination,
MR. TAIKEFF: I
think he said, "Did it have any {3612} connection whatsoever with the
Reservation?" And that is what I am addressing myself to.
THE COURT: I
will allow him to answer that.
MR. TAIKEFF: I
am entitled to ask a leading question and I am not doing this.
Q (By Mr.
Taikeff) Was there any connection between that death on the Reservation
and the people on the Reservation?
A Yes. Raymond
Yellow Thunder, he is from Pine Ridge.
MR. HULTMAN:
Again, your Honor, I object on the grounds that there is no showing of any
relevancy of any kind.
THE COURT: He
has answered. I will let it stand.
Q (By Mr.
Taikeff) Now, you said on your cross examination that the people from the
American Indian Movement were going to or did help you with your treaty
work?
A Yes.
Q Can you
briefly explain what you mean by your treaty work, just in general?
MR. HULTMAN:
Again, your Honor, I would object on the grounds of relevancy. I can't see
what possible relevancy does that have to the issues that are stake in
this particular trial for materiality or relevance.
MR. TAIKEFF:
It was brought out on the Government's cross examination.
THE COURT:
Well, I have allowed defense counsel to {3613} go into the reasons, at
least their alleged reasons for AIM to be on the Reservation; and on that
matter, I would allow the question.
Q (By Mr.
Taikeff) I asked you in general terms, not to get into complicated things
or specifics, when you said that the AIM people were going to help you
with your treaty work, and you summarize for the Court and jury what you
meant by "treaty work"?
A 1974 they
were going to have a treaty hearing in Lincoln, Nebraska.
Q And in the
Federal Court?
A Yes, and
after that Court, they want to take it on up to the upper Court.
Q When you say
an "upper Court", you mean a higher Court?
A Yes, higher
Court.
Q Yes.
A And this is
one reason their Legal Aid live on the Reservation.
Q And it is
that case that you were referring to when you said "treaty work"?
A Yes.
MR. TAIKEFF: I
have no further questions.
MR. HULTMAN:
No further questions.
MR. TAIKEFF:
May the witness be excused?
THE COURT: Any
objection?
{3614}
MR. HULTMAN:
No objection, your Honor.
THE COURT: You
may step down, and you are excused.
(Witness
excused.)
MR. TAIKEFF:
The defense calls Al Trimble.
ALBERT
TRIMBLE,
being first
duly sworn, testified as follows:
MR. TAIKEFF:
May I proceed?
THE COURT: You
may proceed.
DIRECT
EXAMINATION
By MR. TAIKEFF:
Q Your name is
Al Trimble?
A Yes.
Q Where do you
live?
A Batesland,
South Dakota.
Q And is that
on an Indian Reservation?
A Yes.
Q Which
Reservation?
A Pine Ridge.
Q Were you
born on that Reservation?
A Yes.
Q And have you
resided there all your life?
A No.
Q What part or
how much of your life did you live off the Reservation?
A Three years
in military service from 1945 and approximately {3615} 16 years in Federal
Service in Spokane, Washington.
Q What was
that Federal Service?
A With the
Bureau of Indian Affairs. It was various other places too.
Q In
Washington you lived on an Indian Reservation though, did you not?
A No.
Q Do you
presently hold any official and public office with respect to the Pine
Ridge Reservation?
A I am the
president of the Oglala Sioux Tribe.
Q And is that
a position which you hold pursuant to an election?
A Yes.
Q And when
were you elected to the presidency of the Oglala Sioux Tribe?
A In January,
1976.
Q And where do
you have your official offices?
A Pine Ridge,
South Dakota.
Q Pine Ridge
is the place on the Reservation at which the center of Government sits, is
that correct?
A Yes.
Q The entire
Reservation has approximately how many residents?
A I am not
sure about the number of residents, but we say there are more than 12,000
tribal members.
Q And of that
total number, how many live in Pine Ridge?
{3616}
A I am given
to believe about 3,000.
Q Is that the
largest single center of population on the Reservation, Pine Ridge?
A Yes.
Q But it is
not referred to as a city, it is a village, am I correct?
A Yes.
Q Now, in
addition to your present function as tribal president, did you hold any
official position on the Pine Ridge Reservation in the past?
A I was the
superintendent of the Pine Ridge Agency for the Bureau of Indian Affairs.
Q And during
what period did you hold that position?
A Beginning
November of 1973 until the end of March 1975.
Q Can you
summarize for the Court and jury the relationship between, or the
comparison between the tribal government of which you are the chief
executive officer, and the BIA so they will understand the different
functions that you performed in the past and that you perform now?
A Well, the
Bureau of Indian Affairs carries out certain service functions for the
people of the Reservation pursuant to Statutes and legislation, and in
some cases treaty obligations; and these are services, such as education,
welfare, law enforcement, and a variety of other programs; and the tribal
government of course, is the elected tribal government of that particular
{3617} sovereign entity of which the United States is trustee of the land.
Q Now, the
Bureau of Indian Affairs is an agency of the United States Government, is
it not?
A Yes.
Q Particularly
which Department?
A The
Interior.
Q And the
tribal government is a local government, is that correct?
A Yes.
Q It is the
Reservation Government, so in some sense is it fair to say that the tribal
government is like our State Government?
A Yes.
Q In
relationship to the Federal Government, that it has its own areas of
responsibility, and the Federal Government has its areas of
responsibility?
A Yes.
Q Now, as the
BIA superintendent, you were the executive who supervised many activities
including which services, if any?
{3618}
A Well, we
provided all the education services.
Q That would
be the school system, the public school system?
A No. The
Bureau of Indian Affairs school system and welfare services, law
enforcement services, trusteeship and management of Indian land. Those are
the varieties.
Q There are
others. Your reference to law enforcement services, that would include the
BIA police?
A Yes.
Q Now these
employees who were known as BIA police, were they employed as federal
employees?
A Yes.
Q And which
criminal law did they enforce?
A They
enforced all of it. Well, the tribal code which is essentially those which
are not felony in nature or major crimes. That's the nature of the tribal
code. And, of course, they also assisted in the investigation of major
crimes and in conjunction with the Federal Bureau of Investigation, major
crimes being the responsibility of the United States government.
Q If I can
summarize that, the FBI has exclusive jurisdiction as to certain crimes,
the BIA police had exclusive jurisdiction as to local or misdemeanor type
crimes which are defined in the tribal code?
A That's not
quite right. There is an overlap. The Bureau of Indian Affairs plays a
responsibility, had a responsibility to assist the Federal Bureau of
Investigation but they did not {3619} present cases.
Q Now as the
BIA superintendent you had then a very special relationship with the
police department. In a way you were the top cop, is that a fair
statement?
A According to
Title 25 of the Code of Federal Regulations, the superintendent is the
commander of police.
Q Okay.
Have you ever
heard the term "goons"?
A Yes.
Q Does that
term refer to a category or a group of people?
A At Pine
Ridge it did; yes.
Q And did that
term have any meaning in 1974 and 1975?
A Yes.
Q Can you
describe the meaning of that term for the Court and jury?
A Well, the
common understanding of the term "goon" at Pine Ridge during the time I
served as superintendent there, I guess I'd call them sort of a right wing
activist that was a follower of the Dick Wilson and his administration,
Dick Wilson being the tribal president at that time.
Q Was there
any pattern to their make-up concerning racial make-up?
A Yes. I
believe they're mostly thought to be mixed blood people as opposed to the
more predominant full blood and traditional people that live in the
outlying districts of the {3620} reservation.
Q I'm sorry. I
didn't mean to interrupt you.
A And they, I
believe, were people that did not mind exercising, oh, violence and
intimidation in carrying out the role that was sort of expected of them.
Q What was
their role?
A Well, they
are felt to be sort of enforcers for the Wilson administration at that
time.
Q Wilson then
held the tribal position that you now hold, isn't that correct?
A Yes.
Q And if you
as tribal president found some violation of law to be in existence, is
there a mechanism by which you could do something about that?
A Yes.
Q Specifically
what could you do now if you became aware of the fact that there was a
violation of the tribal code, for instance?
A Call it to
the attention of the law and order people.
Q And that
would be specifically who or what?
A At this date
it's still the Bureau of Indian Affairs police.
Q And
specifically in 1975 if you were the president at that time of the Oglala
Sioux tribe and you were cognizant of any violation of law, you'd notify
the BIA police, would you not?
A Yes.
{3621}
Q And expect
them to carry out their duty under the law, would you not?
A Yes.
Q When you
made specific reference a few moments ago to "even right now it's the BIA
police," were you thinking about some change which is in the process of
occurring?
A Yes.
Q Would you
briefly summarize that for the Court and jury.
MR. HULTMAN:
If it please the Court, I have not objected up to now. I see no
materiality or relevancy of the testimony evidently now elicited by this
question.
MR. TAIKEFF:
I'll withdraw this question, Your Honor.
I would like
to point out that when Mr. Hultman objects he always notes that he hasn't
objected up to that point. I would like to suggest I haven't asked any
objectionable questions, it's not because he's being overly generous.
THE COURT: You
may proceed.
MR. TAIKEFF:
Thank you.
MR. HULTMAN:
It's the latter, Counsel.
Q (By Mr.
Taikeff) Now to go back to the point of departure, you said in substance,
I don't mean to quote you, that the goons acted as some kind of, did you
say enforcers? I don't want to use the word you didn't use.
A I believe I
did.
{3622}
Q Enforcers
for Mr Wilson who was your predecessor in office. Was there then, did I
misunderstand, no BIA police department?
A There were
BIA police; yes.
Q Did the
goons have any official governmental status?
A No.
Q As far as
you could tell from your own observations, did they enjoy the equivalence
of having the governmental status?
MR. HULTMAN: I
object to this, Your Honor, as calling for clearly an opinion and
conclusion of the witness to which there is no proper foundation. Purely
speculative.
THE COURT:
Sustained.
Q (By Mr.
Taikeff) Would you say that the goons brought to the reservation peace,
tranquility and law and order?
A No.
Q Did they
bring anything to the reservation?
A I believe
they made a contribution; yes.
Q And what did
they contribute?
A To a
considerable amount of social disruption or disorientation in the whole
reservation community.
Q And within
the definition you gave us, were there any violations of law?
A Yew.
Q Any
violence?
A I believe
so.
{3623}
Q Now at first
I asked you of your own personal experience rather than things which may
have been generally believed on the reservation and I direct your
attention to Labor Day, 1974, the rodeo.
MR. HULTMAN:
Your Honor, may we approach the bench.
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. HULTMAN: I
fail to see what the Labor Day of 1974 has any relevance of any kind.
There is no showing that this defendant was even in the territory, let
alone with any events we're not going into and I think I have been most
generous in not raising objections but I think we're getting into all
kinds of matters that go beyond the scope of relevancy and I'm going to
indicate that on the record now and then I'm going to continue to object.
I want that made very clear.
MR. TAIKEFF:
Your Honor, I took that point because I thought it was a reasonable point
in advance of the spring of 1975 and to come forward from there to show
some of the specific incidents and some of the problems which the people
of Pine Ridge were confronted with in terms of lawlessness and violence
and the two incidents I was going to ask him about which he was personally
involved are rather extreme ones and {3624} he was the head of the police
department. The one that I'm asking him about involves the take over of
the goons of the jail, the disarming of the police and the emptying of the
jail.
MR. HULTMAN: I
clearly object, Your Honor, that there is no nexus of any kind between
this defendant, June 26th and that event. That is so irrelevant to any
issues in time and place and it's highly prejudicial and I think under the
rules the bringing of this kind of testimony before the jury clearly out
Weighs probative value.
THE COURT:
We're getting far afield and I think I can see the relevance of the
general conditions but I'm not going to permit you to go into the specific
events.
MR. TAIKEFF:
All right. I just wanted to point out to Your Honor, not by way of further
argument, but to refresh Your Honor's recollection for general purposes
that in the course of the government's case there was testimony from one
witness that there were rumors that the goons were going to attack the AIM
group and one of the things I wanted to do with this particular bit of
testimony was to show their potential, the actual strength that they had
and the kinds of things that they were capable of doing so that they won't
be in an indefinite, ill-defined force.
THE COURT:
Well --
MR. HULTMAN:
Could I respond also one more thing, {3625} Your Honor?
THE COURT: You
may.
MR. HULTMAN:
Counsel is attempting here to set up something by way of a straw man,
straw man and straw men of goons and then somehow to lift himself by his
boot straps to then say somehow that this defendant acted on that day
because of events that had to do with goons. Now there has been, I'm not
going to indicate what Counsel has just postulated may not be true. There
may be some scintilla to the effect of what he said not raised by the
government. I don't think at all, but maybe on the government's case,
maybe that comment somewhere did enter and I'm not attacking that. What
I'm saying, Your Honor, is there is no nexus of showing of any kind in
this record other than maybe that one scintilla that this defendant and
goons on that day had anything to do with Leonard Peltier and the FBI. All
of the testimony to my knowledge clearly shows that the FBI was not looked
upon in any way as goons. There is not one scintilla to that effect.
MR. TAIKEFF: I
don't make that claim and we will not.
MR. HULTMAN: I
don't see a nexus of any kind here.
THE COURT:
Well, as I mentioned, the only purpose of this evidence, and I think the
defense has a right to show a reason for these people to be on the
reservation, that's why I'm allowing general evidence relating to the
reason for them being on the reservation but not getting into specifics.
{3626}
MR. TAIKEFF: I
understand.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
MR. TAIKEFF:
Could I have one moment to consult with Counsel?
THE COURT:
Yes, you may.
Q (By Mr.
Taikeff) Mr. Trimble, contrary to my recent suggestion to you about
focusing your attention on specific incidents that you were personally
involved in, I would rather that you answer a different line of inquiry.
I would like
you to focus your attention on the one year period, June '74 through June
of '75 and in terms of, or with relationship to the subject of violence
generally, that is to say, presence or absence of violence, I would like
you to characterize for the Court and jury the Pine Ridge Reservation.
A A general
statement, sir?
Q A general
statement; yes. You think is a fair appraisal of the situation on the
reservation.
A It was a
period of time when a very high number of killings were reported on the
reservation, some of them brought to trial. It was a period when my
administration, Bureau of Indian Affairs sort of came apart with the
administration, the tribal government because of differences as to, at
least from my part. However, I could not in good conscience in supporting
what I felt was {3627} a corrupt tribal administration and I believe this
led to some escalation. Certainly it did lead to instances which you
initially asked me to comment on. Is that what you wanted?
Q If that's
your answer to my question, that's what I wanted.
Was there any
particular impact that this situation had on the full blooded or
traditional Indians on the reservation as opposed to any person in
general?
A Yes. It did
increase the feeling and belief on the part of the full blooded
traditional people living on the reservation that laws were not being
equitably applied to them as others, that there was definitely, I guess
you'd refer to it as selective law enforcement on the part of the police
force that we had on the Pine Ridge Reservation.
Q At that time
you were, at least nominally, in charge of the police department?
A Yes.
Q Did you make
any attempts to change the situation?
A We made
constant attempts to try to change the situation.
{3628}
Q And were you
successful?
A I don't
believe the picture would reveal any success, or at least considerable
success
Q At least
during the year I asked you about, from June of '74 to June of '75?
A That's
right.
Q I think you
said that in the village of Pine Ridge there were 3,000 people and that in
the entire reservation there were at least 12,000 registered, if not
living there. Did I hear you correctly?
A We believe
there are 12,000 living there.
Q That means
if all 12,000 are in fact living there, there are 9,000 living outside of
the village of Pine Ridge?
A Yes.
Q Those areas
outside the village, is there a word or a phrase that describes those
areas generically?
A Yes.
Districts.
Q They call
them districts?
A Yes.
Q How many
districts are there?
A There are
eight districts and the village of Pine Ridge which is considered a
district, as a political entity or subdivision I should say.
Q Are there
any districts in which the traditionals have a rather substantial
influence or presence?
{3629}
A At this
point I believe there are.
Q Let's go
back to 1974-75, if there's any difference since then I'd like to know the
state of affairs back then.
A Well, I
believe that the traditional philosophy among the Sioux people is more
prevalent in the White Clay District in which Oglala community is located
and in the Porcupine District.
Q Now, in
connection with your presence on the reservation as the BIA
superintendent, which I understand continued until March of 1975, do you
have any awareness of the presence of the American Indian Movement on the
reservation?
A Yes.
Q Do you
consider yourself a member of the American Indian Movement?
A No.
Q Would you
categorize yourself as a supporter of the American Indian Movement?
A No.
Q Are you
cognizant from your work on the reservation of any changes that may have
been brought about by the presence of the American Indian Movement?
A Well, it's
my personal belief that the traditional and full-blooded people are much
more cognizant of their own personal individual rights and seem more
willing to try to exercise them now. And I believe they evidenced this in
my own election as president of the tribe.
{3630}
Q Are you a
full-blooded Indian by the way?
A No.
Q From what
you've observed, or by the way, your tenure as BIA superintendent ended in
March of 1975. Did you continue on your reservation beyond that date?
A I maintained
my residence on the reservation; but officially I was moved by the Bureau
of Indian Affairs to Albuquerque, New Mexico. I commuted to my job on a
weekly basis.
Q And did you
then, after March of '75, resume full-time residence on the reservation?
A I did again
in November of '75.
Q So then you
were gone for a period of, on a part-time basis, somewhere between six and
eight months?
A Yes.
Q Based on
your experience and observations would you say that the American Indian
Movement is a violent organization?
A Not based on
my experience as an administrator.
Q Did you ever
have to negotiate with them in connection with your role as BIA
superintendent, or deal with them in your official capacity?
A As a
superintendent --
MR. HULTMAN:
Well, again, Your Honor, I object to the relevancy. I had not realized
that the American Indian Movement was the subject of the trial here other
than in a very, very possibly remote way. And I object to any further
{3631} questions of this kind as to relevancy.
THE COURT:
Sustained.
MR. TAIKEFF: I
have no further questions.
CROSS
EXAMINATION
BY MR. HULTMAN
Q Mr. Trimble,
would you explain to me, and maybe in a comparison like counsel used, as
to what the relative position is between the office you now hold and the
office that you previously held with reference to law enforcement? I'm not
quite sure I understand what that relationship is.
A Well, in my
present capacity as president of the tribe I'm simply sworn to uphold the
laws of the tribe and the United States. And we take part in creating
these laws as far as the tribe is concerned.
Q So you would
be like --
A I haven't
finished answering your question.
Q Oh, I'm
sorry, go ahead.
A And as
superintendent of the Bureau of Indian Affairs I was in charge of the
police force that should have enforced those laws.
Q So that it
is fair for me to conclude that when you referred to Dick Wilson and what
his capacities were then compared to what yours are now, his was similar
in nature; is that right?
A Yes.
Q And I don't
want to get into the political matters here, I want to talk merely about
relationships. Now, do you have anything {3632} to do then today in
telling the Bureau of Indian Affairs agents in terms of enforcing a law
what they are to do or what they are not to do?
A Not
directly.
Q And that
would have been the same relative position that Mr. Wilson was in at that
time, is that fair?
A It should
have been, yes.
Q All right.
So it is fair for me to conclude that you yourself, during the time that
counsel was asking you, were the chief law enforcement officer? Is that
fair for me to conclude?
A By title,
yes. In job description.
Q Well, you
certainly had more authority than the position you're now sitting in,
there's no question about that, is there?
A No. But I
didn't have as much authority as the area Director in Aberdeen, or as much
as the director of Indian Affairs.
Q I'm not
talking about the president of the United States ultimately.
A Both of
these had line authority that happened on Pine Ridge.
Q I'm talking
on Pine Ridge, but ongoing day by day events.
A I'm --
Q You were it,
were you not?
{3633}
A No. I was
the superintendent with the job description and a title. What I'm trying
to say, I did not have the final answer as to what happened with regard to
law and order in Pine Ridge.
Q Well, you
sure were a key man in it on the reservation, were you not? The same as
the chief of police in a city, isn't that comparable?
A Yes, I
thought so.
Q Well, now
you mentioned that there were specific groups that had some responsibility
then, and I assume still have some of the same responsibilities today with
reference to enforcing the laws, and would those, I believe you indicated
in response to counsel with, one, primarily the Bureau of Indian Affairs
officers, one; and secondly, the Federal Bureau of Investigation; is that
fair for me to conclude?
A Yes.
Q Now, that
was true then, that's true now, is it not?
A Yes.
Q And it was
true before?
A (No
response.)
Q All right.
Now, you also indicated that there were some individuals who were referred
to as goons, and I assume that those are not, one, the FBI?
A I couldn't
answer that for sure.
Q Well, now
give me your fairest and most honest response, {3634} Mr. Trimble. You
don't know any FBI agents that are goons?
A No, I don't.
I didn't say I did.
Q Well, you
didn't respond straight out as you now have to me.
A I couldn't.
Q There were
some, also some individuals evidently who may not have been BIA-FBI or
goons who likewise committed some crimes of violence on the reservation,
was there not?
A It's
possible.
Q Were there
any AIM members that you know of?
A That
committed crimes?
Q Yes.
A According to
court decisions I guess there were, yes.
Q Well, all
I'm trying to indicate is that there, that you just can't nicely package
up into one group and say that the goons are the people that caused the
violence on the reservation; and you didn't mean to imply that in any way,
did you?
A No, I
didn't. I just, I think I mentioned a contribution that I felt they made.
Q Okay. There
were some others that made some contribution likewise, too, did they not,
and we're talking about an unfavorable contribution, are we not?
A Yes, sir.
Q All right.
They likewise had something to do with escalation as I believe was the
word you used, right?
{3635}
A It's
possible, yes.
Q Would it
just be fair for me to conclude, by the way before I get to that, did you
have any knowledge of any kind as to what took place in this area on the
26th of June, 1975?
A Not until I
read it in the news.
Q All right.
A I heard it
on the T.V.
Q You had no
knowledge concerning the specific events we're concerned with here?
A No.
Q Would it be
fair for me to conclude that if I were not a member of the BIA, the FBI or
the goons, that if I were one who used weapons of this kind against
individuals that I would be contributing to the violence, or the
escalation on the reservation, or the general area that you've been
talking about during the period of time you've been referring to. Would
that be a fair conclusion for me to draw, or to you to draw as the chief
law enforcement officer?
A Be fair.
Q Okay.
MR. HULTMAN: I
have no further questions.
MR. TAIKEFF:
Would you leave those weapons there, please.
REDIRECT
EXAMINATION
BY MR. TAIKEFF
Q Do you know
what kind of weapons these are, Mr. Trimble?
{3636}
A No, I don't.
Q Can you tell
-- beg your pardon?
A I believe we
had something similar in our police arsenal at Pine Ridge. I'm not sure.
Q But the
weapons you had were capable of firing fully automatically; isn't that
correct?
A Yes, sir.
Q As you
looked at those weapons, and so the record is complete, let me state that
these are Government Exhibits 37-A and 34-AA. Is it your impression that
they're automatic weapons or weapons capable of firing automatically?
A Yes.
Q Did that in
any way influence the answer you gave to Mr. Hultman?
A Yes.
Q Now, if I --
MR. TAIKEFF: I
just wanted to wait until Mr. Hultman finished laughing, Your Honor.
MR. HULTMAN:
I'm not laughing.
Q (By Mr.
Taikeff) If I told you that each of these weapons was a semiautomatic that
you could buy in any sporting goods store that had them in stock, would
you reconsider the answer you gave before concerning contributions to
escalation?
A I don't
believe the answer I gave expressed any believe on my behalf. It expressed
the possibility, and that's the {3637} way he asked the question.
Q If you owned
either one of those two weapons or anything like them and you felt that
you or your family was under attack, would you hesitate to keep that gun
loaded nearby, or that you were potentially under attack?
A I don't know
how to answer that question because I'm not much on guns.
Q I understand
that. But I have to ask you to make an assumption. Assume that you
believed you were in a dangerous posture and you had access to a gun like
that.
MR. HULTMAN:
Your Honor, that's objectionable on the grounds that there's no such
showing in the record at this time.
MR. TAIKEFF: I
believe that area of inquiry was opened by the Government on
cross-examination, Your Honor.
THE COURT: You
may ask the question.
MR. TAIKEFF:
Thank you.
Q (By Mr.
Taikeff) If you believed that you were in danger from violent attack and
you had access to one of those weapons would you make sure that you had it
nearby and loaded?
A I can
understand why a person would, but I don't think I would, no.
Q All right.
Do you think that a person who used a weapon to defend himself against an
attack by another who had a weapon --
{3638}
MR. HULTMAN:
Well, now again I object, Your Honor, that there's no showing on the
record as far as this is concerned.
MR. TAIKEFF: I
didn't suggest that there was a showing .
MR. HULTMAN:
Then it is irrelevant.
MR. TAIKEFF:
It's misleading to suggest that that's what I'm asking about.
THE COURT: You
may. You hadn't finished your question.
MR. TAIKEFF: I
had not finished my question.
THE COURT: You
may finish your question.
MR. TAIKEFF:
Thank you.
Q (By Mr.
Taikeff) I asked you whether you your opinion, considering the Pine Ridge
situation, a person who used a weapon, shot a weapon under circumstances
where that person believed or in fact saw that he was being fired upon
could be said to be escalating the violence rather than defending himself
against it?
A I believe
that's so.
Q He would not
be escalating the violence, is that what you're saying?
A Not if he's
protecting himself.
MR. TAIKEFF: I
have nothing further.
Q (By Mr.
Taikeff) Oh, by the way, I do have something {3639} further.
There came a
time in the spring of 1975 when you thought it appropriate to acquire a
little hardware which you didn't in your life before that; isn't that
true?
MR. HULTMAN:
Don't put them away, Counsel. I've got a question or two to ask.
MR. TAIKEFF: I
wanted to share the burden with you, taking them out and putting them
back.
Q (By Mr.
Taikeff) Isn't it a fact that you acquired a piece of hardware that you
had not previously owned?
A Yes. After
receiving a threat from a former policeman at Pine Ridge I did have the
chief of police issue a .38 police special to me.
Q Now, did you
put bullets or bubblegum in that revolver?
A I believe
they issued bullets.
Q And did you
carry it loaded?
A Yes.
MR. TAIKEFF: I
have no further questions.
RECROSS-EXAMINATION
BY MR. HULTMAN
Q Mr. Trimble,
so that there's no question as to the opening remark, when I asked you
about these weapons did it make any difference to you whether I was asking
you about two weapons you were looking at; isn't that right?
A I guess.
{3640}
Q I didn't say
to you "Are they automatic or semiautomatic," did I?
A No.
Q I was asking
you about an impression by looking at two weapons; isn't that fair?
A (No
response.)
Q And did it
really make any difference to you whether they were automatic or
semiautomatic?
A Well, I
think if you -- I don't know.
If you showed
me a .22 I might have answered a little different. I don't know.
Q Well, I was
not showing you a .22. I was showing you these two weapons right here
(indicating), was I not?
A Yeah, I
understand.
Q And it was
you looking at them and the impressions of what they are, the kinds of
guns they are, the number of rounds they fire that you drew the
conclusion; fair for me that you did that, did you not?
A I believe I
answered your question.
Q And you
answered me fairly, did you not?
A That's what
I said.
Q And I didn't
represent whether they were automatic or semiautomatic or anything else?
Isn't that fair?
A (No
response.)
Q Would it
have made a difference in your response if you {3641} had known that
either of these weapons were fully automatic or only semiautomatic?
A Well, it's
difficult because out in the country where we live every pickup has a
rack.
Q Answer my
question, please.
MR. HULTMAN: I
want the question responsive, Your Honor, and I have a right to object.
THE COURT:
Just a moment. The answer was not responsive.
The reporter
may read the question back.
(Question read
back: "Question: Would it have made a difference in your response if you
had known that either of these weapons were fully automatic or
semiautomatic?")
A No.
Q (By Mr.
Hultman) That's all I'm trying to get at.
You are an old
military man I believe from an opening question, are you not?
A I never had
anything like that.
Q Where did
you serve in the military?
A Germany.
Q What branch
of the service?
A Army
Engineers.
Q And you
never even seen weapons of this kind or these many rounds even in that
capacity; is that right?
A I've seen
them.
{3642}
MR. TAIKEFF:
Objection. The gun in Mr. Hultman's left hand didn't exist in the 1940s.
THE COURT: I
think it's getting far afield too --
MR. HULTMAN: I
have no further questions. Thank you, Mr. Trimble.
MR. TAIKEFF:
May the witness be excused?
THE COURT: Any
objection?
MR. HULTMAN:
No.
THE COURT: You
may step down and you are excused.
Court is in
recess until 3:30.
(Recess
taken.)
{3643}
(Whereupon, at
3:30 o'clock, p.m., the following further proceedings were had in the
courtroom out of the presence and hearing of the jury, the Defendant being
present in person:)
THE COURT: Mr.
Taikeff.
MR. TAIKEFF:
Yes, your Honor, just a few matters that should not take very long.
I am wondering
whether the Government has discovered the names of the agents who prepared
the Poor Bear affidavits.
MR. HULTMAN:
Your Honor, what I have been able to find out at this point is that the
affidavit itself was prepared -- and correct me because I have not talked
to Mr. Halprin -- the affidavit itself was prepared by Mr. Halprin, that
during the period of time itself there were two agents that assisted, and
I am not sure what part each of the three individuals play; but the three
individuals, two in addition to Mr. Halprin, would you identify the two
agents -- Agent Woods and Agent Price.
MR. TAIKEFF:
Thank you.
The second
matter, your Honor, is that at this time the defense is considering the
possibility of calling Leonard Crow Dog. One of the factors which will
determine whether or not we do call him is whether your Honor, pursuant to
the application I am now making, suppresses {3644} for use on cross
examination his prior Federal convictions, neither of which concern any
conduct which would go to his propensity for telling the truth.
I do not have
specific details about those convictions. I think one of them arose out of
an assault which we have heard something about on trial. He was a
participant in some way or other, he was convicted. I understand by what
is probably quadruple hearsay that the Judge in that case found in the
main that his principal wrongdoing was that as a spiritual leader he did
not interfere and stop the fighting which apparently he had the power to
do.
THE COURT: You
are not suggesting that I exclude or make a collateral inquiry into the
justice of his prior conviction?
MR. TAIKEFF:
Not at all. I am merely revealing, your Honor, the full extent of my
knowledge on the subject and characterizing it properly so that your Honor
doesn't think I am offering personal knowledge of the subject.
THE COURT:
Thank you.
MR. TAIKEFF:
The other conviction, I am not sure of, it may have arisen out of the
Wounded Knee occupation and may have something to do with the fact that
there were two Federal employees -- they may have been postal employees --
who came into Wounded Knee because there is a small Post Office there; and
these two men were captured, {3645} if I may use that word, by certain of
the occupiers of Wounded Knee; and in certain ways Leonard Crow Dog was
involved in their restraint for a certain period of time.
These are the
two events which lead to Federal convictions, and I believe that neither
of them reflects in any way upon his ability to testify truthfully; and on
that basis I would ask if the Government won't voluntarily restrain
themselves from impeaching him with his convictions, that the Court
suppress the convictions for such purposes.
MR. HULTMAN: I
haven't had a chance to brief this, your Honor; but I would at this time
indicate I would fully intend to use those convictions the same as I would
fully expect the defense at any time any witness is going to appear on
behalf of the Government who has been convicted of a felony, would be a
proper matter and a proper inquiry; and I am not prepared at this time
because, one, I have not seen the specific request, and two, I remember
one of the convictions very well because I was there in Cedar Rapids when
the trial took place in Cedar Rapids, so I am very familiar with that one.
So at this
point on the record I would indicate that I would fully intend to use
those as a basis within, within what the present law is, for whatever
purposes I can use it. I would in no way indicate anything to the {3646}
contrary.
MR. TAIKEFF:
My brief reply is that case law before the publication and effective date
of the Federal Rules of Evidence has held that the Court has discretion in
connection with convictions, to suppress them particularly if they have no
relationship to the tendency on the part of the witness to tell the truth,
so that a conviction for larceny would surely be something that could be
used for impeachment. A conviction for some act of violence might be, but
need not necessarily be.
I believe that
that case law was adopted in the Federal Rules of Evidence, but I regret
at this moment I cannot say to your Honor what I think the Rule number is.
THE COURT:
Well, I was just sitting here reading the Rule and listening to you at the
same time.
The Rule 609
says: "For the purpose of attacking the credibility of a witness, evidence
that he has been convicted of a crime shall be admitted if elicited from
him or established by public record during cross-examination but only if
the crime (1) was punishable by death or imprisonment in excess of one
year under the law under which he was convicted, and the court determines
that the probative value of admitting this evidence outweighs its
prejudicial effect to the defendant or (2) involved dishonesty or false
statement, regardless of the punishment."
{3647}
Then there is
a 10 year time limit in the next sentence.
What would Mr.
Crow Dog testify to, what would be the substance of his testimony?
MR. TAIKEFF:
It would concern events on the Rosebud Reservation in September of 1975.
MR. HULTMAN:
Well, I think, your Honor, on the basis of that -- and I haven't had a
chance to go back and brief the law -- but I think on the basis of that,
for the one specific offense involved, goes to the very kind of matter and
the very issues that are involved in this case as well as the fact that
were the Government deprived of that opportunity, then we are left with a
witness who is put in the posture of being a medicine man, which he is,
and the cloak of honesty, the cloak of lawfulness, the cloak of uniqueness
that a person in that posture has; and I think it would be doubly critical
for the Government under that cloak to have the opportunity to show that
he is a convicted felon and especially of the type and nature of what that
felony is, or felony was.
THE COURT: The
holding of the Court would be, in view of the testimony that would be
elicited from this witness, that a showing that he had been convicted of a
felony within the last 10 years would be admitted.
MR. TAIKEFF:
Your Honor, I am wondering whether there {3648} has been report made to
the Court by the Marshal concerning the Marshal's efforts to contact
Myrtle Poor Bear?
THE COURT: Not
directly to me. I do not know whether Mr. Hanson has any information or
not.
THE CLERK: I
have none, your Honor.
MR. TAIKEFF: I
just wish to remind the Court that in the conversation with Chief Deputy
Warren which I think took place yesterday, he indicated to me that he
would report to your Honor sometime early today. That's my vague
recollection, and I would respectfully ask the Court to make some contact
after the close of court this afternoon so counsel could be advised.
THE COURT: I
will try to get a report from Mr. Warren this afternoon.
MR. TAIKEFF:
The only other matter I have, your Honor, is an administrative one. It
concerns the fact that the defense team intends to devote this weekend in
the main to discussing its closing argument and preparing counsel for
same.
We would like
to allow our client to participate in that activity. It is going to be an
activity participated in by every member of the defense team; and since
the Defendant has been here throughout the proceedings and has listened
intently to the testimony, he will have many reasons to be there and
because of his presence he would {3649} be able to make contributions
concerning his observations in the courtroom.
I would ask
your Honor in view of the fact that the Marshals have never had any
difficulty with him, they don't seem to have to take any special
precautions with him, as I have observed it, that your Honor allow us
during the hours of 9:00 to 5:00 to work in Room 326 and have Mr. Peltier
present with the appropriate number of Marshals standing guard outside.
THE COURT:
There may be a problem with that because of the availability of the
Marshals, particularly on Sunday which Easter Sunday.
MR. TAIKEFF: I
would modify my request in light of that then to be Saturday only.
THE COURT: Let
me finish what I was going to say.
For your
information I was just going to mention that the Marshal will, of course,
because of this jury being sequestered, have to give special attention to
them on Easter Sunday.
MR. TAIKEFF: I
understand.
THE COURT: And
it will require more personnel.
MR. TAIKEFF: I
understand that, and I think if the arrangements could be made for
Saturday, it would be very helpful to all of us if Mr. Peltier could
participate in that critical phase of the proceedings.
{3650}
THE COURT: You
are asking for 9:00 to 5:00?
MR. TAIKEFF:
Yes, your Honor.
THE COURT: I
will take that up with Mr. Warren.
MR. TAIKEFF: I
appreciate that, thank you.
THE COURT: By
the way, as long as you are talking about that -- and I realize this is
premature -- but do counsel for both sides have any requests to make to
the Court as to how much time should be allowed for argument? I thought it
might be something you might want to consider at this time if you are
going to be discussing it.
MR. TAIKEFF: I
am glad your Honor asked. I would appreciate if I could respond after Mr.
Hultman because I think my answer would be more dependent upon his than
his upon mine.
MR. HULTMAN:
Very frankly, I haven't given it any thought of any kind, but I would
suggest two hours. I don't think I intend to take that long, for both
opening and closing, but I would think two hours would be at least --
THE COURT:
(Interrupting) Well, in a trial of this length I am inclined to be
liberal. On the other hand, each side will have the same amount of time,
and the Government will have to divide their time between their opening
and their closing.
MR. HULTMAN: I
understand, your Honor, that's why I am making at least a suggestion
because counsel said that {3651} he was going to determine on what I said.
I don't know what that really means, but I would like to have two hours,
for a total of opening and closing.
MR. TAIKEFF: I
trust that your Honor will find no offense in what I am going to say. If
your Honor is ever inclined to be liberal, I am inclined to take the
maximum advantage of it.
MR. HULTMAN:
Are you suggesting that isn't enough?
MR. TAIKEFF:
No. I said what I said. I trust the Judge understands the good spirit in
which it was said.
THE COURT: Is
there a hidden message in that?
MR. TAIKEFF:
No, your Honor, it is a public message.
In any event,
it is said with respect. I hope your Honor appreciates that.
THE COURT: I
appreciate the humor of it.
MR. TAIKEFF:
Thank you, your Honor.
Since your
Honor wishes to allow both sides to have the same amount of time, I think
from what I anticipate, as most trial lawyers do, having an idea of how it
is going to go in summation from the first word of testimony, that perhaps
your Honor should allow each side to have up to three hours which would
give the Government two hours approximately to make its principal closing
and then up to an hour -- he doesn't have to divide it that way -- to make
his rebuttal summation; and I think that I could not {3652} have a sense
of security about being able to say all that might appropriately be said
if there were not up to three hours allowed.
I would hope
to do it in less, but I would like your Honor to allow up to that time.
THE COURT:
What is the response of the United States?
MR. HULTMAN:
Well, the Government certainly has no objection of any kind, your Honor.
THE COURT:
Very well. Counsel may then count on time for argument, when we get to
that point of the trial, of up to three hours on each side.
MR. TAIKEFF:
May I assume that the second portion, the so-called rebuttal summation of
the Government will indeed be a rebuttal summation, but not merely a
continuation of what might have or should have been presented initially,
that is to say, it is to answer specific arguments?
THE COURT:
That is the requirement of the Rule.
MR. HULTMAN: I
will do my best to stay within the Rules, that's for sure.
MR. TAIKEFF:
If Mr. Hultman has any difficulty, your Honor, I will do my best to help.
MR. HULTMAN: I
know that will be the case.
MR. TAIKEFF:
Although I would like to say now -- so that Mr. Hultman understands what I
said was meant {3653} primarily to be facetious -- I think that summations
should never be interrupted by adversaries; and I hope that both sides are
going to make a very, very strong effort to do so. Unless an extreme
violation of the basic rule of not referring to something that isn't in
evidence is broken, I don't think there should ever be an interruption of
closing argument.
MR. HULTMAN:
Our feeling is very mutual.
MR. TAIKEFF:
He has the same feeling.
Your Honor,
the defense has submitted to the Court by this time its requested charge,
and because there are now countervailing considerations on the same
subjects, we counter-proposed, as it were, some of the Government's
proposal.
{3654}
MR. TAIKEFF:
I'm wondering whether Your Honor would consider setting aside the time,
but not necessarily fixing the time now, to hear argument as to those
items where the Court be assisted in hearing from Counsel. We've submitted
at least one and I think two memoranda of law as well as a rather lengthy
set of proposed instructions and at sometime we would like to have an
opportunity to make our view of the situation known in oral argument.
THE COURT: I
believe that could be arranged.
MR. HULTMAN:
Your Honor, I have just one matter and again I don't wish to press
Counsel, and that's not my reason, but tomorrow is Friday and I would like
to know as soon as reasonable whether or not Mr. Kelly is going to be
called. Tuesday is going to be here and he has to get here and come on
Monday. That's more reason for my request. I might know as soon as
possible.
MR. TAIKEFF: I
will answer that question and possibly provide some additional information
that may assist the Court and the government. I think that the defendant's
case will end by Tuesday evening. Of course, we can never tell when we get
into a complicated situation and may prolong our expectations by a day or
two. There are no special problems and no lengthy cross-examination beyond
that which is anticipated, I think that three more full days of evidence
are the maximum that will be necessary.
{3655}
But now to
specifically answer Mr. Hultman's question. This evening I think the final
plans with respect to which witnesses to call and the order of proof will
be made, but surely by 9:00 o'clock tomorrow morning, and at that time
I'll be able to inform Mr. Hultman of our decision with respect to Mr.
Kelly.
MR. HULTMAN:
That's very satisfactory. Thank you, Counsel.
THE COURT:
Very well.
I might
mention, however, before Mr. Kelly is called you're going to have to get
the approval of the Court.
MR. TAIKEFF:
Your Honor, the twice mentioned procedure would be adhered to without
question.
THE COURT:
Very well.
MR. TAIKEFF:
Your Honor, there is one last question and that is that in the next day or
two a few witness whose tenure on the stand will not be very lengthy would
be ideal for Mr. Engelstein and/or Mr. Ellison to examine and I'm
wondering whether Your Honor would object in any way if we gave each of
them the opportunity to do that.
THE COURT: I
will allow that.
Are Counsel
ready for the jury?
MR. TAIKEFF:
Yes, we are, Your Honor.
MR. HULTMAN:
Yes, Your Honor.
(Whereupon,
the following proceedings were had in the {3656} courtroom in the hearing
and presence of the jury:)
MR. TAIKEFF:
Your Honor, the defense will call Jim James.
Your Honor,
I'm sorry. I just received a report before that Mr. James had arrived from
Oregon but apparently he's somewhere in the building so instead at this
time we'll call Marvin Stoldt.
MARVIN STOLDT,
being first
duly sworn, testified as follows:
DIRECT
EXAMINATION
BY MR. TAIKEFF:
Q Is your name
Marvin Stoldt?
A It is.
Q Do you wear
those sunglasses with prescription lenses?
A No.
Q Do you have
any illness that requires that you wear them?
A No.
Q Would you
mind taking them off so I can see your eyes?
A No.
Q Thank you.
A Does that
look all right to you?
Q Yes, it
does.
A Okay.
Q Are you
angry with me about something?
A No. I'm in a
habit of wearing sunglasses. I feel more comfortable with them on.
{3657}
Q I understand
that. But I would like the jurors to see your facial expression when you
testify.
Have you ever
spoken with me in your life in person or on the telephone?
A Not as I
recall.
Q How come
you're here today?
A Because I
was subpoenaed here.
Q Now your
name, your full name is Marvin A. Stoldt?
A Right.
Q What is your
present occupation?
A I'm a heavy
equipment operator.
Q And in 1975
what was your occupation?
A I was a
police officer for the Bureau of Indian Affairs.
Q Where did
you work?
A Pine Ridge.
Q Were you on
duty on June 26th, 1975?
A Yes.
Q And where
did your official duties take you that afternoon?
A I was in the
vicinity of the Jumping Bull residence.
Q And how did
you go from the vicinity to wherever you went, if you went anyplace?
A In a
vehicle.
Q How did you
know you had to go someplace?
A I was called
there.
Q On the
radio?
{3658}
A Yes.
Q And what
time was it that you received that call?
A At
approximately, roughly around 11:30, 12:00 o'clock.
Q When you
went to your assigned place, exactly where did you go?
A That
depends. When I was called the first time I went immediately towards the
Jumping Bull residence and turned back at Jumping Bull Hall.
Q Do you see
the chart behind you, Government Exhibit 71?
A Uh-huh.
Q Do you
recognize what it shows?
A Yes, I do.
Q And is that
the Jumping Bull area?
A Yes.
Q Now sometime
during the day you worked with a group of other law enforcement officers,
is that correct?
A That's
correct.
Q And when did
you first join up with other law enforcement officers, approximate time of
day?
A Oh, soon
after 12:00 o'clock.
Q And where
was that that you joined them?
A
Approximately where it says three and three-tenths miles to Oglala.
Approximately that area right there (indicating).
Q On Highway
18?
A Right.
{3659}
Q Where did
you go from there?
A From there
we went to the vicinity that's not marked on this map. There's a back road
that goes all the way around this area (indicating).
Q Is that
Highway 35?
A I don't
recall if it was a highway. It's a road. But goes behind the dam there.
Q Let me just
ask you in light of other testimony that we have had, is that a road that
starts on Highway 18 in the direction of Oglala and goes around the
Jumping Bull area and gets back to Highway 18 towards Pine Ridge?
A That is
correct.
MR. TAIKEFF:
Would the government stipulate that's Highway 35?
MR. HULTMAN:
Yes. I assume it is. I don't know the number, Counsel.
Q (By Mr.
Taikeff) Now where were you on that highway 35, if you can look at this
chart and give us some indication in reference to some point on the chart,
perhaps that would be helpful.
A
Approximately to the rear of this wooded area back in here (indicating).
MR . TAIKEFF:
The witness is pointing to the lower right-hand corner of Exhibit 71.
A That would
be approximately southwest of Jumping Bull's {3660} residence.
Q And how far
back from the Jumping Bull residence is that road which we decided to call
Highway 35?
A Well,
actually, it's maybe, could be 700, 800, maybe 900 yards, you know.
Q Something in
the vicinity of a half mile?
A Uh-huh.
Q What time of
day did you get to that point approximately?
A Oh, roughly
around, between 12:00 and 1:30 perhaps.
Q And for how
long did you stay in that vicinity?
A Roughly
between that time and maybe after 4:00 o'clock sometime.
Q And when you
left that vicinity, where did you go first?
A Well, I
headed back towards Highway 18 back around that area there where it goes
back (indicating), you call that Highway 35 back and towards, that would
be Highway 18.
MR.TAIKEFF:
The witness has indicated a circular motion going clockwise around the
periphery of the diagram.
MR. HULTMAN:
Counterclockwise.
MR. TAIKEFF:
I'm sorry. Counterclockwise. Thank you.
Q (By Mr.
Taikeff) Now when you left that area and traveled back to Highway 18 on
Route 35, what kind of a vehicle were you in?
A A police
unit.
{3661}
Q And were
there any other people in the vehicle?
A After I had
left that area there?
Q Yes.
A No. I was
alone.
Q What sort of
activities were you involved in immediately after getting out of that
vehicle that you were in alone?
A I was
turning back some people that were causing a disturbance at a roadblock.
Q Now did you
then return to the wooded area or --
A Yes.
Q -- the scene
of events around Jumping Bull Hall?
A No. A gun
battle broke out and I was called to assist.
Q Where was
that gun battle?
A Well, it
isn't shown on the map there but it's the road that runs between Highway
18 and this wooded section area here (indicating). It was about halfway
between here (indicating).
Q Halfway
between the wooded area and that part of Highway 18 which travels
east-west?
A Right.
Q I'm sorry.
That part of Highway 35 which travels east-west?
A Uh-huh.
Q Okay.
Where was the
shooting coming from that you were involved in at that time?
{3662}
A The shooting
was, it begun over in the wooded area. There was shooting at a police
officer and then they bypassed him and they headed south, southwesterly
direction.
Q Initially I
think you pointed in this vicinity. Is that where you pointed when you
said there was a shooting incident or was it further up?
A I'd like to
say I was engaged in shooting all day but this one here, two of them I was
involved in (indicating).
Q All right.
Let's talk about the one that you refer to as a shooting incident of
people shooting at a police officer. Did you make any determination of
where that shooting was coming from initially?
A Yes.
Q Where was
that shooting coming from?
A Up in that
area right up there where the creek bottom is, south from there
(indicating).
Q That is to
say a place slightly below what we have been calling tent city and about
six inches to the right on the diagram.
What time of
day was it that there was shooting up in that vicinity?
A Hard to say.
There was gun battle going on and nobody was looking at watches. But
between 2 a.m. and 4:30 approximately.
Q How many
different locations in this general area did you detect shooting that was
being done by people who were not law {3663} enforcement officers?
A We couldn't
see exactly where all of the shooting was coming from, but they were
coming from the Jumping Bull residence there and some coming from the
Jumping Bull residence there (indicating).
Q Stop one
second.
MR. TAIKEFF:
The first place the witness pointed to was on top of the crest designated
"residences, body of Joseph Stuntz." The second place he pointed to is to
the left and somewhat below marked "residence" on the chart and I think
previously with a magnetic device that said "red and tan house." That's
the two places.
Q (By Mr.
Taikeff) Go on.
A There was
shooting came from the tree level area there (indicating).
Q Here?
A Yes. On the
edge there.
Q Right here?
A Uh-huh.
Q That's the
area to the right of the Y intersection that has been variously labeled
including "Z1."
Go on.
A There was
gun firing coming from the areas marked "Williams and Coler." Shooting
coming from that area, too (indicating).
Q Right here?
{3664}
A Yes.
Q The words on
the chart are "bodies of SA Williams and SA Coler."
Go ahead. Any
other places you detected shooting coming from that day?
A Yes. But it
isn't on the map.
Q Help us by
using the map as a reference point.
A We were dug
in in an area that is, as I said before, to the southwest of this wooded
area (indicating).
MR. TAIKEFF:
Let me explain that for the benefit of the record that the witness has
designated a place which is approximately in the middle of the right-hand
third of the exhibit and below the lower edge of it.
Q (By Mr.
Taikeff) How far below would you say? If the chart were extended, could
you approximate how much longer the chart would have to be?
A 200 yards
beyond that.
{3665}
Q Two hundred
yards below the lower edge of the chart?
A Yes.
Q Now, when
you were in that area was it a wooded area?
A No. We were
pretty much exposed.
Q And where
was the firing coming from?
A Well, we
were caught there at one time in cross-fire. They were behind us and in
front of us.
Q Now, those
in front of you, were they inside the wooded area?
A No. They
were shooting from up in that area there (indicating).
Q The area of
the residences on the crest?
A Yes.
Q And where
was the other firing coming from that put you in cross-fire?
A As I said
before it wasn't on the map. It was to the rear of us, a hill there. We
were pinned down between a hill and a flat area here (indicating).
Q That second
place where the firing was coming from, was that on the Jumping Bull side
of Highway 35, or was it on the far side of the Highway 35, remembering
that Highway 35 is the road that goes around the chart as I'm showing you
with the pointer.
A Okay. With
the second bunch of firing was coming from the south. Well, I would say
the west side of Highway 35.
{3666}
Q It was west
of the highway?
A Right.
Q All together
by the highway, is that all of the locations from which you detected
firing that was not coming from law enforcement positions?
A Well, I
didn't look up all the times to see where it was coming from because I was
afraid I might get hit.
Q There was a
lot of shooting going on?
A Yes. A whole
lot of shooting going on.
Q And that
went on all afternoon?
A Yes.
Q And how many
years were you a police officer as of that afternoon?
A Oh, about a
year.
Q Had you ever
been in a fire fight before?
A Yes.
Q Anything of
that magnitude, of that size?
A No.
Q Could you
tell us, based upon both your memory and your observations of that day the
total number of people that you counted or that you estimate were shooting
at you or your colleagues, your law enforcement colleagues that afternoon?
A I don't
think there's any way of determining that, you know.
Like I said,
you're not going to stand up and expose {3667} yourself with bullets
zipping around you, you know. There's no way that you can count that. I
don't think anybody can.
Q I understand
that you can't make a precise count, but surely it was more than two
people?
A Oh, yes.
Q And surely
it was less than a hundred people?
A (No
response.)
Q So now we
have the lower and the upper limits. Could you give us some kind of idea,
not a guess, but based upon your own observations the sound that you
heard, the rapidity with which firing came, the differences and the kinds
of sounds that different guns make? Could you tell us what your
observations were concerning the approximate number of people whose firing
you detected?
MR. HULTMAN:
Your Honor, I would object to this. I think the question has been asked
and has been fairly answered. I have no objection if counsel will ask with
reference to those specific places to which he has alluded to. If again he
can't tell, well, approximate. But I think otherwise this is pure guess
and speculation.
MR. TAIKEFF: I
think that's a suggestion I'll take, Your Honor, if I may.
THE COURT:
Very well.
MR. TAIKEFF:
Take the positions one at a time and tell us from what you saw, from what
you heard your best estimate {3668} as to how many people were firing from
each of those locations.
A There was,
from the area of this lower area, sounded like a semiautomatic weapon to
me at times because I'd hear him crank off fast rounds, you know.
Q Which is
that, the residence up by the crest or the red and tan house on the left?
A Yes.
Q We've been
calling that the red and tan house?
A Yes. That
area there. And it's hard to say other than that. I couldn't say anything
more than that.
Q At least as
to that location there was at least one person?
A Could have
been two with automatic weapons.
Q Okay. How
about up at the residences by the edge of the crest?
A In the heat
of battle you don't stop to count bullets or shots. You just try to keep
down.
Q I understand
that, but did you have some impression? I'd like you to share that with
us.
A I have no
impression, you know.
Q How about in
that area in the upper right-hand part that you pointed to earlier
somewhat below and to the right of tent city? You told us of an incident
up there, or did you recall about -- what do you recall about that?
A Well, as I
said I heard over the radio that it was a gun battle broke out there and I
was to lend assistance.
Now, I
couldn't very well tell you how many shots were {3669} being fired because
I was somewhat two hundred yards up the road there, you know, working with
these other people. And I was just called over to assist. I went over
there and assisted.
Q Any
impression about the kinds or the number of weapons being fired by non-law
enforcement people in connection with that incident?
A No. All I
could see was five people running up the hill.
Q What time of
day was that?
A Like I said
it could have been any time between 2:00 and 4:30, you know.
Q Which hill
are you speaking of, by the way, when you say you saw people running up
the hill?
A Well, it's,
the hill is in a, once they get in a southwesterly direction, but more
further south. There's no way of showing it on a map. It's pretty rugged
terrain and it would take a heck of a big area to cover all that area.
Q It's off the
right-hand side of the chart is what you are saying?
A Right.
Q How about
any incident or any incidents in the wooded area, or the lower portion of
the chart. Do you have any information to give us concerning the possible
number of people, possible number of weapons or possible kinds of weapons?
A No.
{3670}
Q Now, at some
time that afternoon you made a sighting at a distance, did you not?
A Yes.
And in
connection with that you reported to the FBI that you could identify one
or more people?
A Yes.
Q Now, I would
like you to start at the beginning of that particular aspect of the
afternoon by telling us what time it was, where you were, what you were
doing and then tell us the details about that.
A Okay.
Approximate time, I can't really say the time of the sighting. I would
again say between 2:00 and 4:00. Nobody was looking at watches. We were in
the heat of battle.
There was some
commotion and one of the officers that we were with mentioned that he had
seen some people break out of the woods area there and running up in a
plowed field. I was standing with several other officers and one of them
asked about a weapon. I don't recall at this time who it was. I thought
possibly Fred Coward. I grabbed his weapon and looked through the scope to
see if I could make an identification on it; but I wasn't getting a clear
picture.
One of the
other officers that I was with had a pair of binoculars, I think they were
735's with zoom lenses on them. He handed them to me and I looked through
the binoculars. And I was pretty certain I had identified two people out
of that.
{3671}
Q Now, what
did you do if anything concerning the subject of your observations? Did
you speak with someone about it? If so, whom, where and when?
A At that time
I didn't speak that particular incident to anybody except I ran out to
where one of the FBI agents was in his car with his radio; and I asked
him, I told him that I knew the terrain, the lay of the land and which way
these five would probably break out, and to try to get a back-up unit to
try and head these guys off.
I went back
inside and they dropped out of sight. They had gone into that tree area
there (indicating).
Q Go ahead.
A I then, I
then was called back outside for some reason and my radio came on. And I
was asked to come and render some assistance to some police officers that
were operating a roadblock.
Q You went to
that FBI agent and told him about what you had seen and your knowledge,
did he do anything about it?
A Yes, he did.
I didn't told him, I didn't state to him what I had seen. I only told him
that these five had run across the field and that I knew which way they
were going to break out.
And I asked
him to get assistance. And there was so much going on on the radio, there
was gunfire and there was other people on the radios, and he was trying to
make contact with a unit that would come to our assistance and at this
time he couldn't.
{3672}
Q Did you
think that I asked you whether you told him the name of the person you had
seen?
A Yes. That's
what I thought you asked me.
Q I see. Now,
did he transmit this information?
A He was
trying, but like I said there was other police officers on the radios and
all the transmission was all tightened up, you know, you couldn't break
out.
Q This was
definitely an FBI agent; is that correct?
A Yes, it was.
Q Now, those
binoculars that you say you looked through, they weren't yours?
A No. Belonged
to one of the other officers.
I don't think
they were his personally. I think they were some we checked out from the
Government.
Q Now, Agent
Coward had a rifle with a telescopic sight on it, right?
A Yes. He was
using a rifle of that type that day.
Q And before
you looked through the binoculars you looked through his telescopic sight,
right?
MR. HULTMAN: I
object. That's not a correct statement. This witness said that it may have
been. He did not say it was.
MR. TAIKEFF:
Coward?
MR. HULTMAN:
Mr. Coward.
MR. TAIKEFF:
I'll stand corrected on that.
{3673}
MR. HULTMAN:
All right.
Q (By Mr.
Taikeff) The person you think it was, was Coward; is that correct?
A That's
possible.
Q But you are
not absolutely certain?
MR. HULTMAN:
Let him answer.
A That's
possible, but there were a whole group of us officers and there were
several of them that had scope-mounted rifles.
Q How many of
them?
A Maybe three,
maybe four.
Q And you took
one of the rifles?
A Yes.
Q From a
person you think was Agent Coward, might have been Agent Coward?
A Possible,
yes.
Q And you
looked through?
A Yes.
Q Describe to
the jury what you saw when you looked through.
A Well, when I
had looked through the scope two people had already dropped down into the
tree area. I picked up one running in the scope, you know, and then I
swung the scope to the one running last and I swung, I couldn't get a
clear picture of him. All I could see was running objects of human beings
in the scope.
And I handed
the scope back and grabbed the binoculars from one of the other guys, you
know, and used the binoculars.
{3674}
Q What
prompted you to take someone else's binoculars instead of saying to that
person "Use your binoculars, take a look up there"?
A Because he
wasn't using them. Since he wasn't using them thought I would use them,
you know.
Q Well, when
you first saw this group of people how many were in the group?
A
Approximately five.
Q And when you
then looked through that telescopic sight there were less than five,
right?
A Right.
Q And you
determined that the reason you saw less the second time was because they
were moving, and the first two had gone to position completely out of
sight, right?
A Right.
Q So time was
of the essence?
A Yes.
Q And if you
waited too long they would all be out of sight, right?
A Right.
Q Did you say
to the man with the binoculars, "Hey, take a look up there quickly"?
MR. HULTMAN:
Well, I object that this is clearly leading, Your Honor. I don't have any
objection if he asks what if anything he observed.
{3675}
THE COURT:
Sustained. But he's answered.
Q (By Mr.
Taikeff) Do you know the names of the other agents you said had telescopic
rifles?
A Yes, I do.
Q In your
group who were present at that time?
A Yes. I
remember at least one of them, you know, for a fact, you know, beside
Agent Coward that was carrying a scope on a rifle that day.
Q What was
that agent's name?
A He was BIA
police officer Pourier.
Q Can you
spell his name?
A P-o-u-r-i-e-r.
Delbert Pourier.
Q Do you know
whether he took a look and saw anything?
A No, I don't,
you know. It was a lot of excitement going on in that window, you know.
Q But the
rifle that you took was from a person who was a special agent of the
Federal Bureau of Investigation; is that right?
A No, I didn't
say that.
Q Oh, I'm
sorry, I misunderstood you. I thought you said there were several agents
there who had rifles with telescopic sights. You thought it might be
Coward, but you're not absolutely certain. It may have been one of the
other agents; is that what you said?
A There was,
yes, there, like I said before, there was other {3676} agents there that
had telescopic rifles, you know. But as I said we were all grouped at this
window trying to get a look at these guys going across there, you know,
and it could have been anybody.
I could have
grabbed Coward's rifle, I could have grabbed another agent's rifle, I
could have grabbed Delbert Pourier's. I just grabbed a rifle and looked
through the scope.
Q When you
looked through that scope before you looked in the binoculars you saw the
figures of three people; is that right?
A Right.
Q And there
was no doubt in your mind that you were looking at three objects which
were human forms, right?
A That's
correct.
Q Could you
see any detail?
A Through the
rifle scope?
Q Yes.
A I really
couldn't say, you know. Like I said it was hot, it was a lot of excitement
going on, sweating. Maybe I had sweat in my eyes. Looking through a rifle
scope like that, you know, especially if you just swing it up, if you know
anything about rifles and guns you got to, sometimes your eye relief isn't
all the same on the rifle. Each man sets his according to himself, you
know. But as I said I could see human figures running there, you know.
{3677}
Q Could you
see any features of any kind on the faces?
A Through the
rifle scope?
Q Through the
rifle scope.
A No.
Q Now, putting
aside the presence of BIA officers, could you tell us the number of FBI
agents?
A Three.
Q Who were
there at that time, who had telescopic sights on their rifles?
A One of the
agents was out in the car. Two of them that were with us by the window
there.
Q The window
of what?
A The Pumpkin
Seed residence.
Q And what
were you doing immediately before the time you first saw these human
figures at a distance?
A Well, prior
to that --
Q I mean
immediately before, I don't mean three minutes before. I mean seconds
before. What were you doing?
A Ducking
bullets.
Q Where were
you ducking bullets?
A In the
Pumpkin Seed residence?
Q Inside the
residence.
A Right. We
were all near the window area.
Q How many
windows are there in the Pumpkin Seed residence facing east?
{3678}
A Facing east?
There's one, and then there's one over on the, sort of the north side
there.
Q On the north
side facing north, or on the north side facing east?
A Well, the
house is set in such a way it's sort of catty- corner to that area. So if
you look from the north window you can see the Jumping Bull residence, and
if you look from the east window you can also see them.
Q How many
people all together were in that room at the time when you first saw the
figures at a distance?
A Seven of us.
Q And how many
FBI, and how many were BIA?
A There was
two RBI, and the rest of us were BIA.
Q Was Agent
Coward one of the people in the room that time?
A Yes. He was
watching out the window that sits catty-corner on the north side.
Q So then if
you looked at a telescopic sight which was on a rifle being held by an
agent of the FBI it either had to be Coward or one other person, is that
right?
A No. There
was, like I said, there was another agent there, and I'm quite certain he
had a scope-mounted rifle.
Q Well, the
FBI had how many rifles with scopes in that room?
A Two, as I
recall.
Q And was
Coward carrying one of them?
A Yes.
{3679}
Q Let's, for
the moment, call that second person Agent X , all right?
A All right.
Q So we have a
shorthand.
Now, tell me
whether the following is true: The gun which you took and looked through
before you looked through the binoculars was either handed to you Agent
Coward or Agent X?
MR. HULTMAN:
Well, I object again, this being an unfair question, Your Honor. This
witness has already indicated that there was another BIA agent who had
such a weapon, and that there were seven people in the room.
I think it's a
very unfair question and I objection to it on that grounds. Cumulative,
been asked and answered.
MR. TAIKEFF:
Never been asked, Your Honor.
THE COURT: I
don't think it's in accord with his previous testimony.
MR. HULTMAN:
And further, Your Honor, that it's totally leading.
THE COURT: The
objection is sustained.
Q (By Mr.
Taikeff) Did you get that rifle with scope from a special agent of the
FBI?
A I don't
recall.
Q Is it a fact
that the identification you made was made through binoculars?
A Yes.
{3680}
Q Are you
absolutely, positively certain of that fact?
A Are you
quoting out of my 302? Way I look at it if that's what you're quoting out
of because that happened almost two years ago, you know, and you don't
remember everything, you know.
{3681}
Q I press my
question, sir, are you absolutely certain?
MR. HULTMAN:
Well, again I object, your Honor, on the showing that this time counsel is
trying to elicit an answer to which he has already given an honest
response.
THE COURT: He
did not actually respond to the question. He asked a question of his own.
Q (By Mr.
Taikeff) My question, sir, is: Are you absolutely certain that the
identification you say you made was made through a pair of binoculars?
A Like I said,
I don't recall that. It was almost two years ago, you know.
MR. TAIKEFF:
Your Honor, I would like some leeway in asking what might be considered
leading questions in view of that last answer.
THE COURT: You
may proceed.
MR. TAIKEFF:
Thank you, your Honor.
Q (By Mr.
Taikeff) At the beginning of your testimony, didn't you tell us in essence
that with your naked eye you saw some people?
A Yes, that is
correct.
Q That you
made use of a rifle with a telescopic sight that was in the hands of
someone nearby?
A Yes.
Q That that
was not sufficient for you to see anything other than the general outline
of human forms?
{3682}
A Yes.
Q That there
was another BIA person there with binoculars?
A Yes.
Q That you
took those binoculars, put them to your eyes, looked at what was now a
smaller group and identified at least one person, actually made an
identification, wasn't that the substance, the essence of what you said at
the beginning of the testimony you gave here today?
A I never said
anything about positive identification. I think you are implying that, you
know.
Q All right.
Putting aside for the moment the question of whether it was a so-called
positive identification, you made some kind of identification?
A Yes.
Q Other than
that word, "positive", being there, didn't I just fairly summarize what
your testimony was 10 or 15 minutes ago?
A Yes.
Q Now, sir,
will you explain why you say, when I ask you if you are certain that you
made that sighting through the binoculars, that you don't remember?
A Well, like I
said, that was almost two years ago. You don't remember every minute
detail that happens that far back, you know.
Q Well, did
your loss of memory occur in the last 15 minutes?
{3683}
A No.
Q Well, when I
originally asked you the questions, why did you say you looked through
binoculars?
A I did look
through binoculars, you know. I told you that once, you know.
Q Why did you
say you made whatever identification you made through the binoculars?
A Because I
did,
Q Are you sure
of that?
A Sure of I
did or sure of using the binoculars?
Q Sure of
using the binoculars.
A I am sure of
using the binoculars, yes.
Q You are sure
you made whatever identification you made through the binoculars?
A Yes.
Q So you
didn't forget?
A I don't know
what you are trying to do.
Q I am afraid
I can't say what I am trying to do. I regret that.
MR. HULTMAN:
Well, I object to that, your Honor, as being clearly inappropriate on the
part of counsel.
THE COURT: The
statement will be disregarded.
Q (By Mr.
Taikeff) What kind of binoculars were those that you used that day?
A Standard
Government issue, I imagine. They have a zoom on {3684} them, you know.
Q How does
that zoom work, where is the mechanism, what part of the binoculars is it
attached to itself?
A Up near the
adjustment, the focus magnification, there is a switch you pull over, you
know.
Q Do you know
how much power that binocular is capable of giving you?
A No. No, I
don't.
Q Did you ever
know?
A No.
Q Is it fair
then to conclude that you never told anyone what power that binocular was?
A That's
possible I never told them. Why should I tell someone when I don't know
anything about it, you know?
Q I have no
quarrel with you about that.
That day,
after your involvement with the binoculars, did you ride in an automobile
with any agents of the FBI?
A Yes, I did.
Q How many
times?
A Oh, twice.
Twice.
Q Can you tell
us the approximate time of day in each instance?
A Like I said,
it could have been any time after 2:00 o'clock into, you know, 6:00
o'clock, for all I know, you know.
Q On the first
occasion how many agents were there?
{3685}
A Oh, there
was a lot of excitement going on there. I recall some of the BIA I was
with. The agents, the only one I remember is Fred Coward. Some of them --
there were some SWAT teams from other organizations, probably the State
Patrol or something, that were also there that we joined up, so I couldn't
really say. It was just a big group of us, you know.
Q Is it
accurate to say that you were once that afternoon in a car with Agent
Coward?
A I may have
been with Coward and several others, you know.
Q On June 26th
did you discuss with Agent Coward what you had seen through the either
telescopic sight or the binoculars?
A It is
possible that I did.
Q Do you have
any recollection of doing that?
A There was a
lot going on that day, you know.
Q Yes, we know
that. I asked you whether you have any recollection?
A Maybe yes
and no, you know.
Q Those are
the only two possibilities, isn't that true?
A Um-hum.
Q So now tell
us whether you have any recollection of it, "yes" or "no".
A Like I said,
I may have and I may not have. I don't remember, you know. There was a lot
going on, I said.
Q That day was
June 26, 1975. When was the next time you either saw or spoke with Agent
Coward?
{3686}
A About two
months after that.
Q Do you
remember what month that was in?
A I think
probably around in September sometime.
Q You made
reference before to 302's?
A Yes.
Q You know
what a 302 is, it is a FBI report, right?
A Yes, I know
what it is.
Q When was the
last time in your life you ever looked at a 302?
A It has been
some time, you know. I really couldn't say. It may have been when I was up
there in Cedar Rapids, you know. It may have been then, I don't recall
exactly.
Q But not
within the last month?
A No.
Q Did you see
Agent Coward two days later on June 28, 1975?
A No.
Q Is it
possible that you have forgotten, and that only you and Agent Coward were
alone in that building?
A No.
Q That's not
possible?
A It is not
possible.
Q By the way,
in connection with your report to the FBI Agent about spotting people --
A
(Interrupting) Um-hum.
Q (Continuing)
-- do you know Agent Skelly?
{3687}
A Yes.
Q Was he the
person to whom you made that statement?
A What
statement?
Q That you saw
some people running, and you told us you went to a FBI car to tell them
that you saw people running and that because you knew the terrain, you
could figure out where they were going to come out?
A Yes, that
was Ed Skelly.
Q And do you
recall anything that he attempted to say into the microphone of his radio?
A No. I seen
-- he already had his radio in his hand when I ran up, and I told him and
I went back inside the building.
Q Right away?
A Yes.
Q In other
words, you didn't hear what he said?
A No.
Q Then please
be kind enough to tell this jury how you knew he had trouble trying to
make a transmission?
A Because he
told me that after I came back out. He told me that. They were calling me
on my radio -- he couldn't get through -- he was to lend assistance up to
the roadblock.
Q He couldn't
get through on your radio?
A On a police
radio you can pick up transmissions from other units, you know. You don't
necessarily have to be in Skelly's unit or my unit or Coler's or Williams'
unit. You could have {3688} been in any unit. The transmissions are the
same, you know, unless one is State and one is local, you know.
Q You
testified before the Grand Jury in this case?
A What?
Q Did you
testify before the Grand Jury in this case?
A No.
Q Did you
previously testify under oath in any proceedings concerning this case?
A Yes, in
Cedar Rapids.
MR. TAIKEFF:
May I have a moment to consult with Mr. Hultman, your Honor?
THE COURT: You
may.
(Counsel
confer.)
Q (By Mr.
Taikeff) Do you know what a Grand Jury is?
A Yes.
Q This is not
a Grand Jury, right?
A No, this is
the jury.
Q This is a
petit jury?
A Right.
Q Now, did you
ever testify before a Grand Jury in connection with the June 26th
incidents?
A Not that as
I recall.
Q Does it
refresh your recollection any if I suggest to you that on November 24,
1975, at slightly after 5:00 p.m. you testified before a Grand Jury in
connection with this case?
{3689}
A It is
possible. Maybe I did, you know.
Q Well, that's
why I am asking you. What is your best recollection?
A I am trying
to think, o.k.?
Q You think
while I get this document marked for identification.
A All right.
Q I am going
to place before you the document which has just been marked Defendant's
Exhibit 196 for identification. It is not in evidence so it cannot be read
from except under special circumstances.
I want you to
look at it for as long as you think necessary to possibly refresh your
recollection.
A (Examining)
I am trying to remember where this took place, you know.
Q Wait a
second. No one said anything took place. All I am asking you is to look at
that document, don't reveal what it is and see if it helps you. Don't
comment on it because it is not in evidence.
(Counsel
confer.)
Q (By Mr.
Taikeff) Yes. Mr. Stoldt, don't hesitate to read beyond the first page.
You can look at any part of that document, just don't read from it outloud.
A (Examining).
{3690}
Q Have you
looked at it?
A (Witness
nods affirmatively.)
Q After having
looked at that document, do you have a different recollection?
A Yes.
Q What is your
recollection now?
A What
confused me is I have been to several grand juries and, you know, can't
always remember the date and stuff, you know, and other incidents I was
involved in, you know.
Q How many
times did you testify about the June 26th incident before a grand jury?
A Just that
one time.
Q Now when you
went before that grand jury, were you under oath?
A Yes.
Q For all
practical purposes, it was the same oath that was administered to you by
Mr. Hanson here?
A (Witness
nods affirmatively.)
Q And you
understood that that obligated you under the law to tell the truth as you
knew it at that time, right?
A Yes.
Q Now when you
were asked questions in the grand jury room, you listened to the questions
so that you would give the correct answer, isn't that right?
A Yes.
{3691}
Q And as far
as you know you didn't lie to that grand jury, is that right?
A As far as I
know; yes.
Q You didn't
make anything up?
A No.
Q Well, didn't
you tell them that you had a pair of binoculars?
A No. Not as I
recall; no.
Q And didn't
you tell them that it was a 15 power set of binoculars?
A It's
possible.
Q It's
possible?
A There was a
lot of things going on that day, you know.
Q You said
that five or six times.
But explain,
how is it possible that you told them it was 15 power if a few minutes ago
you said you didn't know and you couldn't tell anybody something that you
didn't know?
A Well, maybe
at that time I thought they were 15 power. 17.35 to 15 power zoom
binoculars are very popular, you know.
Q Do you deny
that you told them that it was 15 power?
A No. I'm not
denying it.
Q Do you
remember that you told them?
A I don't
remember that either.
Q All right.
Take a look at
the page marked 144 in Exhibit 196 {3692} reading from lines 5 through 16
to yourself.
MR. TAIKEFF:
Do you have a copy, Mr. Hultman?
MR. HULTMAN:
Yes.
Q (By Mr.
Taikeff) Did you look at that page, sir?
A Yes, I did.
Q Now in
looking at that page, do you have any recollection now whether you told
the grand jury that you had a pair of binoculars that were 15 power?
A
Approximately 15 power; yes.
Q Yes. I'm
sorry. You told them that you had a pair of binoculars that were
approximately 15 power.
A Uh-huh.
Q Can you
explain to us how it happened that you gave such testimony to the Grand
Jury?
A Because at
that time I did have in my hand, I had taken it from someone but I had a
pair of binoculars; yes.
Q How about
the 15 power?
A That was an
assumption at that time; yeah. I said approximately on that statement
there and that's the way it's going to stand.
Q I show you
Defendant's Exhibit 195 --
MR. TAIKEFF:
But first I show it to Mr. Hultman and his colleagues.
Q (By Mr.
Taikeff) Did you ever see that document before in your life or a copy of
it or the original?
{3693}
A Yes.
Q You've seen
it before?
A No, I don't.
I don't recall seeing that before.
Q Earlier in
your testimony you said that in Cedar Rapids you read some 302s.
A Yes. It's
possible I may have seen that there. You know, I don't recall.
Q That was
last summer, was it not, either June or July?
A Yes.
Q And you were
called as a witness in the trial in Cedar Rapids, is that right?
A Yes.
Q How many
302s did you review on that occasion?
A I don't
recall, you know. I just looked at a bunch of papers, glanced through
them, you know.
Q Have you had
a chance to read the exhibit which I placed before you a moment ago?
A Yes.
Q Based on
things which you know of your own personal experience, just answer this
question yes or no, is there anything in that document which is factually
incorrect?
A The date.
Q What date?
A 6/28/73. I
never saw Coward after the 26th of June.
Q Where do you
see that date?
{3694}
A Up on the
top there.
Q Up on the
upper right-hand corner?
A That's
right.
Q Now, sir,
may I have the document, please.
Is it your
testimony here and now when you looked at the document you said the date
in the upper right-hand corner, saw it was June 28th and realized that
that was a mistake because you hadn't seen him on June 28th, is that
right?
A That's
correct. I never saw him on June 28th.
{3695}
MR. HULTMAN:
Well, I object, Your Honor. Now counsel is trying to make out that there
is an inconsistency of some kind, and I think the documents --
MR. TAIKEFF:
No inconsistency, Your Honor, not at all. I promise Your Honor I will
pursue it to a logical and proper conclusion.
THE COURT:
Proceed.
MR. TAIKEFF:
Thank you.
Q (By Mr.
Taikeff) Did you discuss with anyone in the last month, any other human
being, your possible appearance and possible testimony in this case?
A I never saw
any of those agents again after June 26th, until maybe two months later.
Q I'll ask my
question again.
In the past
month have you talked with or consulted with any other person concerning
the content of your testimony in this trial? That's the last month.
A No, I don't
recall.
Q You don't
recall or no.
A I don't
recall. No.
Q You didn't
speak with Agent Coward in the last month?
A I hadn't
seen him.
Q I asked
whether you spoke with him. You've heard of the telephone I assume?
A No. I have
never spoke with him.
{3696}
Q Did anyone
tell you anything about a possible wrong date --
A No.
Q -- on one of
your reports?
A No.
Q And you
looked at this document, 195 for identification, carefully when you were
looking at it, did you not?
A Yes, I did.
Q And you
read, wherever there were words, you read the words?
A Yes.
MR. HULTMAN:
Your Honor, could I voir dire just two simple questions. There's a
possible basis for an objection.
MR. TAIKEFF: I
object to that, Your Honor. I'm about to conclude this line of
questioning.
THE COURT:
Well, the voir dire is --
MR. HULTMAN: I
object.
THE COURT:
Just a moment. Voir dire is normally for purposes of establishing a
foundation for an objection, and there's no questions pending.
MR. HULTMAN:
Well, Your Honor, counsel has had all kinds of questions about a given
document that he's all but offered in front of the jury, and we all know
that there's a date 6/28/75 on the face of it. And I'd just like to voir
dire to establish that I think anybody looking at it would come to the
same conclusion.
MR. TAIKEFF:
Well, that's precisely the point of this {3697} part of this examination
and I think I can do it quite well myself.
MR. HULTMAN:
That's the basis why I'd like to voir dire.
MR. TAIKEFF:
May I proceed to the next question?
THE COURT: You
may proceed.
Q (By Mr.
Taikeff) Isn't it a fact, sir, that the date that you referred to of June
28, 1975 in the upper right-hand corner has preceding it the printed word
"date of transcription"?
MR. HULTMAN:
If he can read it. Will you ask him that?
MR. TAIKEFF:
No, I will not. And I do not appreciate signals being thrown to the
witness.
A Yeah, I can
read it.
Q (By Mr.
Taikeff) What does it say?
A "Date of
transcription 6/28/75".
Q What does
that mean to you?
A When that
was written, that piece of paper there.
Q What does
that have to do with any day that you saw or didn't see Agent Coward?
A What does
that got to do with it? Because it simply says that I didn't see him on
that date.
Q It says you
didn't see him on that date?
A I'm saying I
didn't see him on that date, you know.
Q Does date of
transcription, 6/28/75 mean to you that he {3698} saw you on that date?
A It's
possible he may have seen me on that date, but I didn't see him.
I never talked
to him. I never saw him from the 26th of June until sometime in September.
Q Isn't it a
fact, sir, that what you were referring to was in the lower left-hand
corner, that someone alerted you to that, said interviewed on 6/28?
MR. HULTMAN: I
object, Your Honor, as that being highly improper.
THE COURT: The
statement "That someone alerted you to" will be disregarded.
Q (By Mr.
Taikeff) Weren't you referring to the fact when you gave your answer about
you didn't see him on the 28th, weren't you referring to the fact that in
the lower left hand corner it says "interviewed on 6/28/75"?
A I was
looking up at the top and I recall that I never saw him on the 6/28/75.
I saw him the
last time on the 26th of June, 1975.
I never saw
him for two months later.
Q Anything
else in that document which you found to be actually incorrect?
A No. I can't
see anything else on there.
Q Then isn't
it a fact that you told Agent Coward that with the use of his 7 power
binoculars --
{3699}
MR. HULTMAN:
If it please the Court may we approach the bench?
THE COURT: You
may.
(Whereupon,
the following proceedings were had at the bench:)
MR. HULTMAN:
Your Honor, I haven't objected but very, very seldom. This is direct
examination, this isn't cross-examination, and I object on the grounds
that counsel is not proceeding properly. But again it's obvious he's
setting up a strawman, first of all in trying to destroy. The misleading
things that he's just now put before the jury, there's nothing in that
document, other matters that he's talked about up to this particular time,
that are in any way but to destroy a witness in some way for which he is
called.
Now, I further
object on the grounds that he's again trying to get information from a
302, reading from it in fact in front of the jury as if it were
cross-examination at this particular point, and I object to the procedure.
This witness,
we know did not write that 302. This was somebody else's.
MR. TAIKEFF:
But it purports to say that he did, and if he said what's in there, that's
inaccurate. And furthermore if you object I'll offer it in evidence.
THE COURT:
Just a moment.
MR HULTMAN:
Are you finished, Counsel? When you're {3700} finished --
MR. TAIKEFF:
I'm sorry.
THE COURT: We
might just as well have stayed at the counsel table. All right.
MR. HULTMAN:
My objection, Your Honor, is that it's an improper use, and it's an
improper method. This is direct examination and he has no basis in which
there's been no showing of any kind that at this particular time that
there's anything inconsistent in any way.
He hasn't even
elicited what the response is going to be, and he's already set up a
strawman assuming that the response is going to be something different
than what he's got.
MR. TAIKEFF:
Your Honor, I'm proceeding under 607 under the Federal Rules of Evidence.
THE COURT: You
mean impeaching your own witness?
MR. TAIKEFF:
That's correct.
THE COURT:
Well --
MR. TAIKEFF:
And I am prepared to introduce the entire document if Mr. Hultman thinks
it would be fairer.
THE COURT:
Well, the problem is, as I see it, this witness seems to be totally unable
to state definitely one way or the other --
MR. TAIKEFF:
But, Your Honor, he read the document and I asked him whether he found any
factual mistakes other {3701} than the question of the date. He said
there's nothing in there that is factually incorrect.
THE COURT: He
has also testified at least twice that he didn't know what the power was.
MR. TAIKEFF:
And could not possibly tell it to anybody. And now I'm inquiring about how
is it possible, if it is possible, if in fact it occurred that he told the
agent --
MR. HULTMAN:
That's the strawman.
THE COURT: He
is your witness, and you do have the right under that rule to impeach him.
I'm not going to, however, if you're going to offer this exhibit I'm not
going to receive this exhibit. You can question him with reference to the
statement made at that time.
MR. TAIKEFF:
That's what I started to do, and that's when the objection came.
THE COURT:
Very well.
(Whereupon,
the following proceedings were had in the courtroom in the hearing and
presence of the jury:)
Q (By Mr.
Taikeff) My question, sir.
A Yes.
Q Is: Did you
tell Agent Coward on June 26, 1975 that with the use of your 7 power
binoculars you were able to identify somebody in that group of people?
A As I recall
I said I didn't positively make identification.
Q Put aside
the positive identification aspect of it. The {3702} question that I'm
focusing on is the possibility of whether or not you told Agent Coward
something about your 7 power binoculars.
A Yeah. It's
possible I did.
Q What would
have been the basis of your telling him something about 7 power
binoculars?
A I don't
know. Maybe we were discussing binoculars.
Q You mean
just in general?
A It's
possible.
Q Did you ever
say to him that with the use of your 7 power binoculars you focused on
those Indian males whom you saw at a distance?
A It's
possible, sir, yes.
Q Didn't you
tell us much earlier that you didn't know what the power of those
binoculars were and that they weren't yours?
A Yes. Told
you earlier that they were approximately 735, you know, on up. Zoom
binoculars, you generally are, you know.
MR. TAIKEFF:
Does Your Honor want me to conclude at this point?
THE COURT: Are
you about ready to conclude?
MR. TAIKEFF:
Noting Your Honor has closed his book the answer is yes.
THE COURT:
Very well. Are you going to want this witness held?
MR. HULTMAN:
No.
MR. TAIKEFF:
Oh, yes, I'm not finished with my {3703} examination.
THE COURT: You
are not finished with your examination. Very well.
Court is in
recess until 9:00 o'clock tomorrow morning.
(Whereupon,
the Court recessed at 5:00 o'clock, P.M.; to reconvene at 9:00 o'clock,
A.M. on April 8, 1976.)
{3704}
(Whereupon,
the following proceedings in chambers:)
THE COURT:
First of all, I want to report that I just talked to Mr. Warren on the
telephone and he said that he will arrange that 9:00 to 5:00 Saturday
matter with the defendant. It may create problems for him but he'll do it.
MR. TAIKEFF:
Thank you.
THE COURT: He
said his report on Myrtle Poor Bear is no different than what he gave you
yesterday. He again attempted to contact her at noon today. I said, well,
maybe I'd suggest you talk directly to him. She just apparently has
disappeared.
MR. TAIKEFF:
Your Honor, I want to say that I anticipated something like this
happening. That in itself doesn't tell anybody anything factual except
that I have an active intuition. But I just want to say at this particular
time by way of encouraging Your Honor to grant whatever relief we decide
to ask Your Honor for tomorrow morning that when Mr. Crooks came to me
that afternoon to report that she was available he told me that she was
about to be released from protective custody. Up to that time and for a
long time she had been in protective custody. I don't know why. But I will
assume there was some good reason for it. The moment that we heard that
she was in protective custody and was about to be released we raced to Mr.
Hanson and got a subpoena hoping that we'd at least get that much of a
hook into her.
{3705}
My instant
reaction at that time, and again it's very subject, I just tell it to Your
Honor for historical reason if there is no other reason, I sensed that
that woman was going to disappear, that after all these months and
possibly almost two years of her being in protective custody, suddenly
when we decided to use her as a witness she was being released from
protective custody. We were informed and I have reason to believe that
it's true if a witness doesn't want to be in protective custody there is
no way under the law that you can force it upon that witness.
THE COURT:
That's right.
MR. TAIKEFF:
So we did not press to have her held in protective custody, but we
elevated her status from that of a person who was subject to the call of
the subpoena to that of a material witness. By serving her with that
subpoena a little after 5:00 on the day in question which was returnable
the next morning, we placed a certain kind of obligation on the marshal. I
think the marshal would have been embarrassed to say the least if he let
her go then and she didn't show up the next morning. When she showed up
the next morning we made an application which resulted in Your Honor
declaring her as a material witness. Your Honor is aware of the fact she
has signed at least two and possibly three separate affidavits saying that
she was standing right there and watched the agents being shot.
{3706}
THE COURT: I
am not aware of it other than what you people may have said to me. I have
not examined the record.
MR. TAIKEFF: I
meant to say Your Honor is aware of it because Counsel has represented to
you that that is the fact.
THE COURT: All
right. All right.
MR. TAIKEFF:
Your Honor held her as a material witness and signed a warrant which was
merely a technicality because she was down the corridor and she was
technically arrested on the warrant and was taken to the magistrate, I
understand. The order of arrest or the warrant specifically provided that
she could be released on a thousand dollar PRB. We consented to that.
THE COURT:
Excuse me. You didn't consent to that.
You requested
it. If you had requested a bond other than PR I would have granted it. I
thought of it as the same as I did on Angie Long Visitor.
MR. TAIKEFF:
Your Honor is quite correct.
THE COURT: I
remember I had it in mind at the time. I remember when you asked for it. I
remember Mr. Lowe, when Mr. Lowe asked for the PR bond I know the thought
entered my mind, "They must know her pretty well if they're willing to let
her go on a PR bond."
MR. TAIKEFF:
Your Honor is quite correct. Actually if I finished my sentence Your Honor
would have known the intent {3707} of my statement.
THE COURT:
Excuse me for interrupting.
MR. TAIKEFF:
We didn't want her to fail to meet the bond and be incarcerated. There is
perhaps a defect in all defense lawyers but they just don't like to see
people behind bars.
THE COURT:
Well.
MR. TAIKEFF:
In any event, we felt a PRB would be sufficient because she'd be subject
to the same requirements of the law and the same punishment if she failed
to appear.
Then something
hard to imagine took place. She was arraigned before the magistrate and
she was not bailed. She was just turned loose.
THE COURT: I
don't know. That has been reported to me by Ralph or somebody and I didn't
know what the explanation is. I have not talked to the magistrate. I don't
know how that could have happened.
MR. HANSON: I
don't believe I reported it to you, Judge.
MR. NELSON: I
did.
THE COURT:
Sometimes get those two fellows mixed up. Mike reported to me.
MR. TAIKEFF:
But in spite of the fact that she had not been formerly bonded, she did
apparently comply with the requirements that she keep in touch with the
marshal up to a {3708} point which was last Sunday and then all of a
sudden she stopped communicating.
Now I think
she's a very important witness, an exceptionally important witness and I
have to think about this and consult with my colleagues on the defense
team as to the extent of the assistance that we need from the Court to
make sure that we find her before this case goes to that jury, and I'm
afraid under the circumstances I can't help but think that this just
didn't happen itself. I can't point the finger at anybody or anything and
I cannot specifically indicate to Your Honor what item of relief we'll ask
for but I will tell you Your Honor that we are very much concerned with
the fact that we don't have her to call as a witness. I know the
government isn't here and I won't say anything new to disadvantage them.
But if the facts we allege with respect to her involvement in those
affidavits is as we say, that is a very, very serious piece of conduct on
the part of certain government officials.
THE COURT: I'm
not willing to accept the fact because I have no knowledge or information,
I am not willing to accept the fact there is anything irregular here other
than the fact this woman apparently doesn't want to come back.
As I say,
because of the fact that I was prepared to set a monetary bond on her.
MR. TAIKEFF: I
don't dispute that, Your Honor. I would {3709} say that Counsel encouraged
Your Honor to do it that way.
But there is
no question it originated with us out of a desire to make sure there is a
compulsion but no incarceration. That's true. I wanted the record as well
as Your Honor to be clear.
THE COURT: I
don't want to go into this any further now.
You're making
a certain, I was going to use the word insinuations, I guess that's too
strong, you're questioning whether the government may have had anything to
do with this or someone. I'd rather if you're going to go into something
like that we do it when they're present.
MR. TAIKEFF:
We will by tomorrow morning be in a position to make application to Your
Honor with respect to this matter and there is no sense speculating on
what we will do at this particular time.
THE COURT: The
reason I asked you to come in this afternoon and at 5:00 o'clock today is
on this last request for subpoenas for another five people. I asked the
clerk to give me a list of the number of subpoenas that you have indicated
so there would be, there is 54 or 53 plus 13 government witnesses that
maybe you would wish to recall plus these five.
I have been
issuing subpoenas on the affidavit, or the certificate that they are
necessary for an adequate defense, {3710} but a comment you made in court
yesterday and another comment you made in court today after I had asked
you to come in here leads me to believe that an awfully lot of these
witnesses may be just taking a free trip across the country.
MR. TAIKEFF:
Many of them are not taking trips, they are remaining subject to telephone
calls.
THE COURT:
That's just what I wanted to clarify. I believe that in an indigent case
that where counsel certify it is necessary for adequate defense I
shouldn't have to go behind that. But on the other hand, I don't want,
just because it's government money a lot of money coming in from all over
the country just for the trip or just for an interview.
MR. TAIKEFF:
We have an investigator working out and can interview five people in five
different locations.
THE COURT:
This was the reason or thought that came mind was that was one of the
reasons I gave you this appointment of investigators.
MR. TAIKEFF: I
want Your Honor to know before anyone's name is certified there is
sufficient discussion to satisfy either me or Mr. Lowe that such a person
is really a potential witness.
Now in the
last day I interviewed a number of people and I was quite certain that I
wanted to call them. Two of them I had to decide I wasn't going to call. I
can't prevent that from happening from time to time.
{3711}
THE COURT: I
appreciate that.
MR. TAIKEFF:
There are many people standing by who are not making the trip until
they're actually told their testimony is needed.
MR. HANSON:
May I interject a point at this time. I'm starting to sound like Mr.
Hultman. Two witnesses have now been excused, one has been certified for
payment, the other one has been requested certified for payment. Frankly
it disturbs me that one was here twelve days --
MR. TAIKEFF:
For us?
MR. HANSON:
The other one I think eleven days. We're being asked, I suggested to you I
think --
MR. TAIKEFF:
Are you talking about Fools Crow?
MR. HANSON:
Would be him. Fools Crow I think was one. He never did testify, quite
frankly. One never did testify and the other one testified sometime today,
He Crow I think in one instance he's been here eleven days and the other
one twelve days. A point that maybe you would want an explanation at this
point.
THE COURT: I
wasn't aware of that information but this is kind of in line with what I'm
talking about.
MR. GILBERT:
There was a point in the government's case when we were anticipating they
would finish on the Friday or Monday that we're now referring to. I think
it was the 27th was Monday, 28th.
{3712}
MR. TAIKEFF:
28th was Monday.
MR. GILBERT:
We had reason to believe the government was going to finish approximately
Monday or Tuesday of that particular week.
MR. TAIKEFF:
They told us that.
MR. GILBERT: I
was down on the reservation doing investigation and trying to arrange
logistically the getting of people from the reservation up to Fargo. It's
a very isolated place down there and people have to plan. It's a tough
trip. Some people don't take planes. Some people have to drive. I told
people they should get there by Sunday or Monday with the anticipation
they may be called earlier that week. It turned out once they arrived in
Fargo that a severe blizzard, snowstorm hampered the reservation.
THE COURT: I'm
aware there was a very bad snowstorm.
MR. GILBERT:
We couldn't get through to a lot of people. Rather than taking an 86 year
old man and sending him back to Pine Ridge and having him subject to
recall we felt it was best to keep him here.
THE COURT: I
guess all I'm asking you is you monitor and keep control of it. As long as
you give me your assurance we're doing it, fine.
MR. TAIKEFF:
With the sensitivity to spending the money as if it were our own, we do
that, Your Honor.
THE COURT:
That's all I was concerned about.
MR. ENGELSTEIN:
It's partly ours.
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