US vs LEONARD PELTIER TRIAL TRANSCRIPT EXCERPTS Case Number CR77-3003
BENCH
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TUESDAY MORNING SESSION
April 5, 1977
Pursuant to adjournment as aforesaid, at 9:00 o'clock, a.m., on Tuesday,
April 5, 1977, the Court met, present and presiding as before; and the
trial proceeded as follows, the Defendant being present in person:
THE COURT: Have counsel resolved the matter of 34-B?
MR. LOWE: I believe we have, your Honor. I have just been given
a written stipulation which appears to be in order. I would like to take
it up with Mr. Taikeff. I don't think there would be any problem.
MR. CROOKS: Because it involves the witness on the stand, I would
like to delay until this is taken care of.
(Counsel examine document and confer.)
MR. TAIKEFF: Do you have the original?
MR. CROOKS: That is the original, I think, and two copies.
MR. TAIKEFF: This is the original?
MR. CROOKS: Yes.
(Counsel confer.)
MR. TAIKEFF: I have signed the stipulation, your Honor, at this
time. Mr. Peltier is looking it over, and he is about to sign it.
While that's occurring, perhaps I could take a moment of the Court's
time with three minor housekeeping matters.
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THE COURT: Very well.
MR. TAIKEFF: I understand the Court has obtained the services
of a Lakota English interpreter, and I am in need of the interpreter for
interviewing a witness. I am wondering whether it is possible to have that
interpreter available during the luncheon recess so that I can use the
interpreter's services for about a half hour or 45 minutes.
THE COURT: Mr. Suby has made the arrangements for the interpreter.
Mr. Suby, I do not believe the interpreter lives here, does he?
MR. SUBY: He does not. He lives in Wakpala, South Dakota. He
would be available only on about 24 hours' notice.
MR. TAIKEFF: All right, thank you.
Last evening Mr. Lowe --
THE COURT: (Interrupting) Are you giving notice that you want
him?
MR. TAIKEFF: No. I was sort of withdrawing the request because
I don't know whether that witness will be available tomorrow and would
not want to bring somebody up from South Dakota until I had a very definite
arrangement in mind.
THE COURT: Very well.
MR. TAIKEFF: Then I will renew the request.
As I started saying, last night Mr. Lowe and I {3045} interviewed Jimmy
Eagle at the Clay County Law Enforcement Center. I don't know what the
intentions are with respect to keeping him here for the next several days.
He may very well be called by the defense within the next two or three
days.
Since we are having certain problems about residents of the Reservation
getting here, we might have to take him out of turn in order to keep our
case going uninterrupted so we would request that he not be sent to any
other facility except one that is very close so that he would be available
on one or two hours' notice.
And the last item is to indicate that we will in fact be calling Myrtle
Poor Bear, and we wish to have the Marshal's Service notified by or through
the Court to make her available to be called within the next couple of
days.
We assume the Government is going to rest today, and our efforts are
orientated around that assumption.
MR. ELLISON: Your Honor, I would like to bring something to the
Court's attention for information purposes.
I spoke to Deputy Marshal Bruce Jacob yesterday afternoon in Rapid
City -- then you have the information, your Honor.
MR. TAIKEFF: It was the thing that I advised the Court at the
side bar concerning the transportation problems because of the snowbanks.
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THE COURT: All right. There is one other matter before the Court
here, and that is the motion of the United States for compliance with Rule
17(b), Federal Rules of Criminal Procedure relative to the calling of witnesses
by the Defendant.
MR. TAIKEFF: Your Honor, I am sorry to interrupt, but I think
we have resolved that informally.
I have divided the agents whom we might call into two categories, those
that we are virtually certain of calling -- and Mr. Hultman has informed
me that they will be brought here either tomorrow, or those that can't
make it tomorrow will be here Thursday.
I have given him a second list of those that we might call but we could
not say with any strong degree of certainty, so they are going to remain
on call but will not be brought to Fargo; and he has agreed to comply with
that request, so I think the matter is resolved.
THE COURT: Thank you. Then there is no need -- well, I have another
matter.
Mr. Hultman, are you in agreement with that?
MR. HULTMAN: Yes, that is correct, your Honor.
The rest of my motion though I would hope would still be in the same
posture, with reference one, to such witnesses as -- or possible witnesses
as Mr. Skelly; and two, also I think there are some other matters in terms
{3047} of whether or not specific witnesses at a given time -- I think
we are probably going to have to meet those issues as any one of them is
called with reference to the Rule, but I am in no posture right now because
I don't know for certain which ones, other than the seven agents -- six
agents and one other person that are definitely going to be called.
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THE COURT: The Court has authorized the issuance of subpoenas
on the certification of defense counsel that a certain witness is necessary
for an adequate defense. At this point the Court does not incline to go
behind that certification. I think it would involve a lot of time and probably
wasted time, and with respect to any individual witness or with respect
to the testimony of any witness the Court will, the Court is confronted
with motions to quash subpoenas, or if the Court is confronted with objections
to testimony on the grounds of relevancy or some other matter the Court
will act on it at that time.
MR. HULTMAN: Very good, sir.
THE COURT: Now, one other matter, I have before me a motion for
the issuance of a subpoena duces tecum directed to the Oregon State Police
commanding that authorities representative arrive and bring with him or
her a complete copy of the Oregon State Police Department report, three
pages of which are attached to Appendix A. This matter was referred to
in the discussion that was had yesterday morning prior to the jury having
been brought in. And I want, I'm wondering if the defense doesn't have
all the information required.
MR. TAIKEFF: The answer to Your Honor's inquiry is that we do
not. That is a different report. I alluded to that yesterday but --
THE COURT: You alluded to it yesterday. It's typed {3049} this
way, it's typed vertically on the sheet of paper instead of horizontally.
It seems to contain substantially the same information.
MR. TAIKEFF: No, Your Honor, I believe that is not correct. As
I read the report which Your Honor read from there by revealing that we
had a copy of the same report, that was a retrospective report written
sometime after the 19th of November because it makes reference to events
occurring on the 19th of November and going back to the 15th of November.
That is sort of a summary report of all aspects of the Oregon State
police activity. The pages which are attached to the subpoena, or the request
for the subpoena, are pages which are attached to a 302. And because of
the fact that the list seems to be essentially the same as the one in the
report which Your Honor read from, and because of the numbering in the
upper left-hand corner of those pages, or at least the first of those three
pages, we believe that that comes from a report which details the finding
of those objects which are contained within that list which is not the
case with respect to the report that Your Honor read from.
We think that is a report of activities of the 15th, or at least a
portion of it, and that's why we have requested in the subpoena the balance
of the report, or the entire report of which those three pages are a part.
We believe {3050} that the result will be the production of a document
which reflects the detailed activities of the search on the 15th.
THE COURT: Does the United States have any information on this
matter?
MR. CROOKS: None whatsoever, Your Honor. I have no idea if there
is any other report than Mr. Hanson's. Frankly I did not have even his
report prior to it being obtained. The only thing that we used was the
version which was reduced in 302 form.
Whether he has an additional report or not I have absolutely no knowledge.
THE COURT: All right. I have one other inquiry to make of counsel.
You've had investigators appointed. The evidence has indicated that at
least one investigator has made a trip out to Oregon. Was that not, was
that matter not checked into by your investigator?
MR. TAIKEFF: Our investigator has no access to police reports.
I wish it were otherwise, and that all counsel, both Government and defense,
had the same access to Government documents. But it's not the case.
And we have surmised from what we see attached to a certain 302 that
indeed there is another report and that the schedules on that as yet unproduced
report were probably used as a basis for providing a certain portion of
the retrospective report. But we, we have no direct knowledge that there
is such {3051} a report. We have very strong indication that there is such
a report. Those schedules we believe are that indication.
MR. CROOKS: Your Honor --
MR. TAIKEFF: Our understanding by the way is that all of the
weapons were taken out of the mobile home at the same time. The reason
we're pursuing this, in case it is unclear to the Court or to Government
counsel, is that by way of explaining the absence of the AR-15 from the
photograph which showed all the weapons except the AR-15. The agent on
the stand said that that weapon was discovered later, or the next day,
I don't remember exactly what his testimony was. We believe --
THE COURT: He said it wasn't discovered yet?
MR. TAIKEFF: He said it wasn't discovered yet.
THE COURT: He said it hadn't been found yet.
MR. TAIKEFF: He said it hadn't been found yet. We believe, because
of the information that we have, that all the weapons were in one place
and they were taken out of the mobile home at the same time.
We further believe that the report which we've asked for will confirm
that fact, that they were all discovered at the same time in the mobile
home because the three pages which are attached to the request for the
subpoena duces tecum list all of the things taken out of the mobile home,
and that list includes the AR-15.
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MR. CROOKS: Well, I might just add, Your Honor, that I don't
think that counsel heard the testimony the same way I did. My recollection
of the testimony was that Mr. Zeller was very carefully going through the
individual items, and there was no mass exit of anything from that mobile
home until it had been completely dusted for fingerprints. And that is
confirmed by Mr. Hanson's report of which the Court has seen, that at as
matter of fact they could not even complete their search the first day
because the time had run out and they sealed the matters up and went into
it the next day.
The testimony of the witness was simply, was that the AR-15 was not
in the picture because it had not yet been found. I don't believe that
he seated or even knows exactly when that weapon had been found, and there
was no testimony to that effect. But that is I think beside the point.
As far as I'm concerned, through the Federal Bureau of Investigation, I
will request of Mr. Hanson that he have any additional report. However,
I do not want to assume, if the Court is inclined to grant the subpoena,
responsibility for getting it there. If the Court wishes to grant the subpoena
that's, I think, something within the discretion of the Court. But I will
on my own attempt to contact Mr. Hanson and find out if there is any other
report; and if there is, have it sent to us and relay it to counsel.
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But if the Court feels the subpoena is necessary I do not wish to have
my representation taken in lieu of the subpoena because that, if they wish
to have an actual subpoena and actually bring him in, fine. But I will
voluntarily attempt to ascertain if there is another report, and if there
is one I will furnish it.
THE COURT: Well, if counsel will go forward on the basis of your
representation then I won't issue the subpoena. If they still ask for the
subpoena I'll issue the subpoena.
MR. TAIKEFF: We're asking for the subpoena, Your Honor. We feel
that we're entitled to have a subpoena issued.
The only reason we have to ask Your Honor is because we have an indigent
client. Otherwise it wouldn't be necessary, we'd go to the Clerk's office,
prepare the subpoena, deliver it to the marshal and we wouldn't have to
seek the Government's assistance in that regard. We'd much rather save
the favor for some other time. When we can't do something via subpoena,
we'll ask the Government to help us then.
MR. CROOKS: This is why I stated, Your Honor, I do not wish to
have any representation taken by counsel of whatever list they have because
I don't guarantee I can guarantee the production of anything else. This
is not an agency under the control of the United States. But I will make
that attempt, and if I locate such documents subject, I {3054} suppose,
to any instructions that I might have from the Oregon State Police, I will
make them available to defense counsel. But I do not wish to assume that
responsibility in lieu of counsel whatever they wish of the Court.
THE COURT: Very well. Is there anything else to take up?
MR. TAIKEFF: No, Your Honor.
THE COURT: Jury may be brought in.
MR. HULTMAN: Your Honor, we do have just one brief matter.
MR. SIKMA: Your Honor, when the firearms examiner, Mr. Lodge,
is on the witness stand he's going to be referring to the weapons over
there. I wonder if it would be all right if they would be brought a little
bit closer so we wouldn't have to go back and forth across the courtroom.
They are numerous firearms there. If we could wheel that stand up a little
closer here it would probably be easier for us.
MR. LOWE: In here? We have no objection.
MR. SIKMA: If there's no objection to that we'd appreciate that.
THE COURT: Very well. That will be done.
You may now bring in the jury.
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(Whereupon, the following proceedings were had in the courtroom in
the hearing and presence of the jury:)
