US vs LEONARD PELTIER TRIAL TRANSCRIPT EXCERPTS Case Number CR77-3003

WINTHROP LODGE {CROSS EXAM}
WINTHROP LODGE [DIRECT EXAM} PART 1
WINTHROP LODGE [DIRECT EXAM} PART 2

VOLUME 15

CROSS-EXAMINATION
BY MR. LOWE
Q  Mr. Lodge, my name is John Lowe. We've met before, haven't we?
A  Yes, sir, we have.
Q  And we've talked briefly on at least one occasion, I think more than one occasion, haven't we?
A  Yes, sir.
Q  On the 27th of June of 1975 you indicated you went to the crime scene area and you made certain examinations of items. And that on the 29th of June, if I understand, you examined the car of Special Agent Coler at Hot Springs?
{3112}
A  Yes, sir, that's correct.
Q  Were there occasions, and if you mentioned this I simply didn't make a note of it, when you made similar examinations of Special Agent Williams' car, the red and white Chevrolet van and the 1967 Ford Galaxie, and if so, would you state what the sequence was, what dates?
A  Yes, sir. I arrived in Pine Ridge the early morning of the 27th of June, 1975. And I had occasion to examine and process Special Agent Williams' automobile on that date.
Q  On the 27th?
A  On the 27th.
Q  And was that at the site, or was it at another location?
A  No, sir. Was at the site.
Q  So that Special Agent Williams' car was still there on the 27th, which was a Friday, I believe the day after this incident took place?
A  Yes, sir, It was there on the same day I arrived.
Q  And when you say you examined it, did you make your complete examination, or did you only make a preliminary examination and then spend more time with it later?
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A  That was the preliminary examination; right. The sight.
Q  Did you later make a more detailed examination of it?
A  We processed the automobile for latent prints. The ones that we could lift we lifted and they were later photographed, not at the sight but in another location in Pine Ridge.
Q  I understood you to say you made a preliminary examination on the 27th.
A  The 27th.
Q  That would suggest implication that you made a later more detailed examination. Am I misreading something into what you said?
A  It wouldn't be. I wouldn't consider it more detailed in that particular instance.
Q  Well, did you examine it again at a later time?
A  The automobile?
Q  Yes.
A  No, sir.
Q  So that was the only examination you made of Williams automobile was on the 27th?
A  The 27th.
Q  How about the 1967 Ford Galaxie?
A  I'm not certain of that date. I think that was on June 30, 1975.
Q  Well, let's do it a little different way then. On the {3114} 27th you examined Mr. Williams' automobile out in the tent city area, I guess is where you saw it?
A  Yes, sir. It was in the clearing just above tent city.
Q  Did you observe any other automobiles on that day or examine any other automobiles on that day?
A  I observed other automobiles but I did not examine them on that particular day. The next day which was the 28th, did you examine any automobiles?
A  No, sir.
Q  Did you examine anything on the next day?
A  Yes, sir. But it was confined mostly to other items of evidence that had been brought to me in Pine Ridge from different locations.
Q  On the 29th you said you examined Special Agent Coler's car. Is that the only one you looked at on that day?
A  Yes, sir.
Q  And when did you look at the red and white van?
A  That was also processed on the 30th. June 30th.
Q  So you looked at the 1967 Ford and the red and white van on June 30th?
A  Yes, sir.
Q  And where were they when you saw them?
A  They were brought to the compound. That was a maintenance garage and compound in Pine Ridge.
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Q  All right.
I place before you Defendant's Exhibit 93 and Defendant's Exhibit 94 and ask you if you have ever seen that vehicle to your knowledge?
A  Yes, sir. It appears to be a vehicle that was examined also in the compound. It was brought to the compound area of the maintenance garage.
Q  This is a International Scout as is shown in Exhibit 94?
A  Yes, sir.
Q  And you say it was in the compound. Were you asked to examine it for latent fingerprints?
A  Yes, Sir.
Q  Did you make such an identification?
#A  I made an examination but there were no latent prints of value developed.
(Counsel confer.)
Q  (By Mr. Lowe) Now on the 29th when you went to see Coler's car, was it in the BIA compound or somewhere else?
A  Yes sir. That was somewhere else.
Q  Do you remember where it was?
A  Yes, sir. It was located in the sheriff's department garage in Hot Springs, South Dakota.
Q  Okay.
When you arrived there were you accompanied by anybody or did you go there alone?
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A  No, sir. I was accompanied by another by another examiner.
Q  Who was that?
A  His name was Tommy Morfield.
Q  And were the two of you alone in your traveling to that particular place?
A  Yes, sir.
Q  And when you arrived did you present yourself to someone in particular to gain access to the car?
A  Yes, sir. There was a dispatcher and a deputy.
Q  All right.
And did they -- first of all, let me ask whether at that point what the condition of the automobile was. Was it locked up in a building, was it inside of a fence, where was it located?
A  It was in a garage part of the building. The front entrance, the large doors were locked and sealed and there was an entrance from the interior of the building and that was also locked and sealed with tape.
Q  And when you arrived did they break the seals and give you access to it through one or more doors?
A  Yes, sir. We identified ourselves and showed them our credentials and they opened the garage for us.
Q  And did you examine the car in the garage or did they bring it outside?
A  We examined it inside and later on it was pushed out into {3117} the sunlight where it could, the lighting wasn't too good on the inside so it was moved barely out in the sunlight.
Q  And about how long did it take you to examine that automobile?
A  We started at approximately 8:15 in the morning and we completed our phase of the examination around 2:00 o'clock in the afternoon.
Q  Did you personally make notes as you went along?
A  Yes, sir, I did.
Q  And did you, what type of paper did you use? Did you use a little notebook or legal pad or just generally what did you make the notes on?
A  It was legal type, yellow legal type pad that I made my notes on.
Q  Was this a pad that you had with you when you went there?
A  Yes, sir.
Q  And the notes you made were made by you and kept by you later and I believe you said used to dictate a 302?
A  Yes, sir.
Q  And so whatever notes were made by you were made by you for your use and kept in your possession until after you left the area and until you dictated your 302?
A  Yes, sir, they were.
Q  Am I correct in assuming what you describe as your notes are exclusively your notes and not the notes of anybody else?
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A  There may be one or two small notations made on the notes by the individual as I mentioned before, Tommy Morfield who was assisting me.
Q  I show you Plaintiff's Exhibit 180 and ask you if this document is, or consists of the notes that you made?
A  Yes, sir. These papers are the notes that I made right at the scene during my examination.
Q  I'll just leave that there for the moment.
Did you make any such notes when you examined Special Agent Williams' vehicle?
A  As far as --
Q  Did you make any notes like this when you examined Special Agent Williams' vehicle?
A  Only concerning the lifts and the area where it was found and so forth.
Q  And as to those notes, did you associate them in some way either by attachment or by putting them in a plastic envelope with the particular lifts?
A  Yes.
Q  So those you didn't keep, you gave them then to some evidence person who was collecting such items or kept them in your possession?
A  The lifts?
Q  Yes.
A  Were kept in my possession and later returned to, turned {3119} over to the personnel handling the evidence in Rapid City.
Q  And when you did Special Agent's Coler's car, did you find any and take any lifts from that car?
A  Yes, sir.
Q  And did you treat those in the same way, that is, you make independent notes which you attach or associate in some way with the lifts and kept those together?
A  Yes, sir. Normally they are, notations are made right on the lift or a tag; attached to the lift.
Q  And is that the procedure you followed for both Special Agent Williams' car and Special Agent Coler's car?
A  Yes, sir.
Q  Those notes I trust then are in addition to the notes that are in Government Exhibit 180, I believe?
A  Yes, sir. 180.
Q  Those would be in addition to those notes?
A  Yes, sir.
Q  As to the red and white van that you examined, did you find, you found some latents, I believe you testified to, and did you treat them in the same way?
A  Yes, sir.
Q  Did you make a list of notes for the red and white van in any fashion similar to Government Exhibit 180?
A  No, sir.
Q  As to the 1967 Ford and any lifts you found there, did you {3120} handle them in the same way with notes attached or written on the lifts?
A  Yes, sir.
Q  And did you make any independent notes such as those as to what you found in the 1967 Ford?
A  No, sir.
Q  Now when you examined Special Agent's Williams' vehicle in the tent city area, do I understand your testimony that you found no boxes of ammunition in the vehicle, in the trunk or anywhere else in the vehicle?
A  I don't recall. I think I was asked the condition of the material that was inside the car. As I recall, there may have been several shotgun shells or empty shells but I don't recall. I would have to go back through notes to, the 302s to give you exactly what was found.
I do recall that there are a number of items such as a suitcase containing clothing, but as far as definitely stating that ammunition was found in there, I would have to refer back to that 302.
Q  Now you just started to say and you catch yourself, or change in the mid-sentence. You said you'd have to refer back to notes. What notes did you have reference to when you said that?
A  What I meant to say was the 302 which I did not dictate.
Q  As to the findings you made of things you observed in {3121} Special Agent Williams' car on June 27, did you make a 302 as to what you observed, what you found?
A  No, sir. An agent assigned to that particular vehicle inventoried the evidence that was in there and he dictated it.
Q  But you didn't dictate a 302?
A  No, sir.
Q  And as to the red and white van, or the 1967 Ford, I gather you didn't dictate a 302 either?
A  No, sir.
Q  Since you did not -- okay.
MR. LOWE:  Your Honor, for the purpose of the record we have disclosed to the government and in order to save calling a bunch of witnesses. Defendant's Exhibit 100 and Defendant's Exhibit 102 are pictures o£ the red and white Suburban Chevrolet van which has already been identified repeatedly in this case. These pictures were taken by members of the defense on April 10, 1976 on an occasion when they were given access to these vehicles under the supervision of Special Agent Hughes and others for the purpose of discovery in this case, and I represent to the Court that these are accurate depictions of the vehicle as it was observed and photographed on that date at that time.
MR. CROOKS:  Counsel is offering them, we have no objection.
MR. LOWE:  We would offer them into evidence and I {3122} gather there is no objection to that.
MR. CROOKS:  We have no objection with the statement that Counsel represents as to the date and so forth of the taking of the pictures.
THE COURT:  Exhibits 100 and 102 are received.
Q  (By Mr. Lowe) I show you Defendant's Exhibit 100 and 102 and ask you if that appears to be the red and white van that you've referred to on some occasions in your testimony which is also shown in Government Exhibit 12?
A  Yes, sir. That appears to be the same vehicle.
Q  Thank you.
So in the Williams' vehicle you do not presently have any recollection as to whether you saw any ammunition boxes or not in the trunk? I don't understand if you answered that or not. Maybe you did in the process of answering.
A  As I recall, there were several shotgun shells that I can recall offhand and possibly a shell box, empty shell box. But I don't, other than that I would have to go back; over the 302.
Q  But presently you have no recollection of any box of live cartridges like 20 or 50 in a box, any of that type of ammunition in Williams' car?
A  Offhand, no, sir.
Q  Now I believe you testified that you examined Coler's {3123} automobile and you were done about 2:00 o'clock in the afternoon on the 29th, am I correct in that?
A  Yes, sir.
Q  Who was present with you at that time if you finished up other than Special Agent Morfield, if anybody?
A  Turned the vehicle over to Special Agent Cortland Cunningham and Special Agent Kelso.
Q  At that time?
A  At that time.
Q  Did you turn over any other things to them at that time?
A  I don't recall.
Q  Did you turn anything else over to either one of them later on that day or at any other subsequent time that you recall?
A  Just about everything was turned over to them except for the material concerning the latent fingerprints.
Q  I show you Defendant's Exhibit 178 for identification and ask you if you would look at that, study it for a moment and see if you can identify it for us, tell us what it is.
A  Yes, sir.
This is a 302 concerning the evidence collected from Special Agent Jack Coler's automobile.
Q  And did you prepare this -- first of all, strike that.
Did you dictate that 302?
A  Yes, sir.
{3124}
Q  Did you dictate it using your notes which are Government Exhibit 180?
A  Yes, sir.
Q  And if you need an opportunity to review this, you may. It's possible, I realize, that you've reviewed it prior to this time.
Is this an accurate recitation of the information which is contained therein reciting various observations you made and various items that were collected to the best that you were able to put it down on the day you dictated it, July 3, 1975?
A  Yes. To the best of my knowledge this contains the evidence that is listed in my notes made after.
Q  Although this was dictated on the 3rd of July which is approximately five days after you actually made the examination, you did have the benefit of notes that you took on the day of the examination when you prepared it, didn't you?
A  Yes, sir.
Q  So that as much as is humanly possible for you to have done, you have accurately recorded here the various things of significance which you observed on June 29 when you examined that automobile?
A  Yes, sir.
{3125}
A  Yes, sir.
Q  Now, I would call your attention to the first page, up at top, on the first line is written "the passive voice" without identifying a particular person, says the following items were collected; and I ask you who collected the items that are shown in there -- it does not state -- was that you?
A  At the bottom of the first page to the left it has the names -- my name and the individual who assisted me; and also following the typewritten names are the initials of both myself and Mr. Morefield.
Q  So would I be correct in stating that these are items that you found, you, being plural, you and Mr. Morefield found on June 19 and as you found them -- or as you found them you made the notes in Government Exhibit 180 at that time as to each item, and then later used it to prepare this 302?
A  Yes, sir.
Q  So that the following items were collected -- would indicate that they were collected by you and Mr. Morefield?
A  Yes, sir.
Q  All right. Now, it is not clear to me as to all of these items that were collected, did you actually remove them from Coler's automobile at the time you and Mr. Morefield were going through, dusting for prints and prior to the arrival of Special Agent Cunningham?
A  Were they removed?
{3126}
Q  Physically taken out of the places in the car that you have identified here, in the car.
A  No, sir, not all the items.
Q  All right. Prior to your departure on that date, were the items that are listed here removed in your presence or under your supervision and direction from the automobile?
A  No, sir.
Q  Well, when you say in here "evidence collected from a certain place", does that not indicate that the item was actually taken into possession by you or Mr. Morefield at that time and physically removed from the automobile?
A  The items that appear here were inventoried by Mr. Morefield and myself; and some of these items were later processed, some in Pine Ridge, South Dakota.
Q  I understand the difference between collection and processing. What I am trying to find out is what the difference is in your mind or at the time you made this, what it was between collecting an item and merely seeing it and making a notation that you observed it -- was there a distinction between those two activities?
A  Yes, there would be a distinction.
Q  As to all items that you say in here were collected by you, do you mean that at the time you actually saw it you physically took it into your possession?
A  If you mean, did we carry it with us, no.
{3127}
Q  No, I don't mean "did you carry it with you". Did you physically take it into your possession and in your hand and put it out of the car and perhaps on the sidewalk or whatever might have been in there or in a box or somewhere, place it other than where you picked it up out of the car?
A  Yes, sir. Most of the items were actually taken out of the automobile.
Q  I understand.
Do I understand that all of the items were actually taken out of the automobile where you have said they were collected or only most of them?
A  The automobile was inventoried and processed, a certain area at a time, as I had them listed in Exhibit 180, that is, the glove compartment, the front seat, the rear of the vehicle, the trunk and so forth.
Q  Well, let's look -- turn over to Page 2 for a moment -- let's take an example, maybe I can get by specific example -- Page 2 lists, about a third of the way down, evidence collected from driver's side, floor; and there are four items listed there, a tennis can, a paperbag, a cigarette butt and a calling card bearing the name, Jack Coler.
From your recollection being refreshed by looking at the document in front of you, can you tell me whether you actually removed those four items from the automobile and put them either in something or on a table or something at the time you {3128} made your notation that you were collecting those items?
A  Yes, sir. As far as I recall, they were removed from the automobile.
Q  Now, do you recall that, or are you merely inferring that from the fact that it says "collected" on this piece of paper?
A  No, sir.
Q  All right. You said before -- maybe I better be sure I understood what your answer was. Your answer was -- you said "No, sir," that you are actually recalling that, is that correct?
A  As I recall, we normally collect the evidence and label it as to where it was taken from, and put it in some sort of container that would keep it separate from evidence from another location.
Q  All right. The problem I am having, Mr. Lodge -- if I identify this for you, perhaps we can get to it quickly and we will move on -- is that each of the categories -- and you check me on this as you look through there -- each of the categories of items found in different places in Coler's automobile are all identified as being "evidence collected from", and then an identification of the place; and I understand by your definition of what it means to collect evidence, that you would have then taken those into your possession and either put them in a box or put them on a table or put them on the concrete walkway next to you?
{3129}
A  Yes.
Q  Is that correct?
A  That's correct.
Q  But when I asked you that question, you said that most of these items would have been treated in that way, and I don't understand why you say "most of them" instead of "all of them". I am trying to find out from you what items in here were not treated in that way.
A  Well, there were, for one thing there was -- as I recall, there were five plastic bags containing what was indicated to me from the tags that appeared on it and so forth, that this was evidence that Special Agent Coler had collected, already collected in some other case that he had been working on, so I wouldn't have inventoried that any more than just state that it was five plastic bags containing evidence.
Q  Can you tell me where you are looking at that on this 302?
A  (Examining).
Q  Is this Item 34 on Page 4?
A  Page 4, Item 34.
Q  All right, so this was five plastic bags containing tagged evidence (evidence from burglary of Pine Ridge P.D.) and this was found by you in the trunk of the automobile, is that correct?
A  Yes, sir.
Q  Now, up on Page 3, at the bottom, you have that list of 34 items, captioned "Evidence collected from trunk", and my {3130} question to you is:  Was Item 34, that is, the five plastic bags, were they actually collected by you or were they just simply sighted and noted?
A  They were collected and noted, and turned over to the individuals, the personnel in Pine Ridge.
Q  But did you actually remove them from the trunk at that time?
A  Yes, sir.
Q  Well then, I still don't understand what items you did not actually take into your possession when you said "most of the items you took into your possession".
A  Well, maybe you misunderstood me; but what I meant to say was that all evidence was inventoried and removed from the vehicle.
Q  I didn't think you said that, and that was what I was trying to find out. That answers that question.
Now, I don't recall if I asked you about this document specifically, but would it be fair to say that as to the information as to what items you collected and where you collected the items from, where you found them and what the description of the items were that are listed in Defendant's Exhibit 178, would it be fair to say that in all of the cases you handled you don't have an independent recollection of all those items without referring either to your notes or to your 302?
{3131}
A  Yes, sir.
Q  And it would be fair to say, as I am sure is true in most of your cases, that you depend on the 302 or your notes in order to give testimony as to what items were found and what latent prints you identified, isn't that true?
A  Yes, sir, especially in a case like this where there were numerous items of evidence.
Q  Exactly, and as to every item that is listed in the 302, you personally either collected it or observed the collection in your presence and made the note at the time, I believe you said that?
A  Yes, sir, that's correct.
MR. LOWE:  Your Honor, we would offer Defendant's Exhibit 178 in evidence on the basis that it is a past recollection recorded. This witness has said he has no independent recollection of all these items, he would have to rely on this list to testify from which, of course, is completely to be expected, and we would offer it in evidence at this time.
MR. CROOKS:  178 being the 302?
MR. LOWE:  Yes.
MR. CROOKS:  Your Honor, the United States would object to this. We have been through this again and again and again. We object to the 302 as not proper evidence. If counsel wishes to offer -- in addition, this is not the {3132} best evidence. If counsel wishes to offer 180 which was the original notes, we, of course, would have no objection to that; but the 302 is not the proper evidence. It is simply a statement made later at a different time. This man has indicated he has reviewed his notes in preparation of testimony. If counsel wishes to offer them, we would not object to that. We would certainly object to the 302 Form.
MR. LOWE:  The fact the notes would be admissible does not mean that 302 is not admissible. He has laid a proper basis. I am astounded to hear Mr. Crooks say that it is not a proper foundation. He gave me, the same information I gave, in the objection to the 302. This was made in circumstances that fit the Rules of Evidence. The witness testified he reviewed it, that what he relies on is the 302. That is not unusual -- I don't mean to be critical -- I would expect it. I think it is a proper document, It is a typewritten list of the items this witness testified he collected and found, and I think it is absolutely admissible under -- certainly under Rule 401 as your Honor cited before.
MR. CROOKS:  Could we approach the bench to make our legal argument?
THE COURT:  You may.
(Whereupon, the following proceedings were had at {3133} the bench.)
MR. CROOKS:  Well, your Honor, just simply again, this issue has come up again and again and again in this trial; and the Court has consistently ruled that the 302's are not admissible. I don't figure there is any need for me to make any extended argument. If counsel wishes to put in the notes which we brought up and laid foundation for, I will have no objection to that.
This 302 is again the same type of offer that's been made again and again, and the Court has consistently ruled that these are not admissible evidence. If counsel can establish, for the purpose of impeachment, that there is something contrary to his testimony, then there is a proper way to put in the information and that's conceded; but to put the entire 302 in is not a proper way of eliciting evidence and we object to it.
MR. LOWE:  Judge, that's simply a misstatement of the record. The Court has admitted 302's in this trial Exhibit 120 is an example of them, 121, 123 -- I guess those are the three 302's I can recall. It is perfectly proper.
What is so absurd about this is that the 302 is a typed version of these notes which I have no reason to say is not verbatim as to the information in the 302, although there is some information in these notes that was not extracted and put into the 302.
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It is absolutely absurd -- I don't know what the Government is trying to keep out. It is their own 302. It is their information.
Mr. Crooks came up before and offered this in evidence on the ground it was a past recollection recorded. It is absurd for him to argue we can't put evidence in on the same basis.
THE COURT:  What is the purpose of the offer?
MR. LOWE:  Because this is a list of all of the thing he found, and I want to make a record of many of the items that were actually found, identify them, particularly ammunition components found in Coler's car.
Now, I think that I am entitled to show this and also have it in a recorded form which it is in --
MR. CROOKS:  (Interrupting) John, keep your voice down. You were criticizing me yesterday.
MR. LOWE:  (Continuing) -- to have it in recorded form which it is in here, so that the jury can review it as an item of evidence to see what was actually there; and what is absurd is that the Government is not objecting to introducing this (indicating) which has the same information. It is not typed, it is not as legible, and I would represent to the Court that certainly would be one of the considerations in my offering it into evidence, is that it is in a legible form and a lot easier to use than this {3135} (indicating).
MR. CROOKS:  Counsel, I am not sure what you are offering. You are talking about offering something, and you are referring to 180. I am objecting to the 302. We have made this argument again and again. I don't see what useful it does to re-argue. The 302's are not the best evidence. If this man is asked specific questions, the best evidence is his testimony.
I have stated that we have no objection if counsel wishes to offer 180 for some particular reason; but as far as I am concerned, the best evidence is this man's oral testimony. If counsel is simply attempting, as they have in the past, to put the 302 in some kind of a transcript or whatever of testimony, counsel knows how to examine a witness and ask questions, ask him what he found, refreshing his memory or whatever, but we have been through this so many times I don't see it has to be argued.
MR. LOWE:  Judge, this witness has said he has no recollection, that he has to rely on reading this (indicating), not that it refreshes his recollection. There is a difference between refreshing -- meaning you actually have a recollection -- and saying, "I have no recollection, I must rely on the written recordings I made at the time when I did have a recollection or had notes."
Now, we are entitled to have -- to say that it is the {3136} best evidence to ask this witness questions when all he is going to do is read the 302, that makes it secondary evidence. The best evidence is the 302 in this instance or the notes. I think we are entitled to pick which one we want to introduce.
THE COURT:  In this particular case, Mr. Crooks, why do you feel this does not come within the Rule 612?
MR. CROOKS:  Well, No. 1, it is not the best evidence. He testified that the document that he refers to is -- are his notes which are 180. I have already stipulated or agreed that I won't object to 180 if counsel wishes to introduce that; but counsel is attempting to introduce the 302 as a shorthand of this man's testimony and that is not proper. Counsel can ask him what he found, and he can go through it item by item if he wishes to take the time; but to put the exhibit in, the 302 in which is just a listing of all the items is improper. It is not the best evidence that should be offered.
If counsel wishes to cross examine or impeach him or something, then parts of it obviously are admissible. As I understand it, that isn't the purpose. Counsel wishes to again clutter the record up with documents for no specified purpose at all. If counsel wishes to impeach or counsel wishes to establish a specific item was there and wishes to show that this was past recollection recorded {3137} specifically, that's fine; but he is simply offering the entire document, and it simply is not a proper way to impeach the testimony.
THE COURT:  I will rule on it after lunch. I am going to think about it over the lunch hour.
MR. LOWE:  I will try and ask some other questions.
THE COURT:  You have been using it anyhow to question.
MR. LOWE:  I understand. I will cover some other things. I am sure I will be on cross until after lunch.
(Whereupon, the following proceedings were had in the courtroom in the presence and hearing of the jury:)
Q  (By Mr. Lowe) Agent Lodge, when you turned over items that you collected from the front seat or from other parts of the Coler automobile to somebody else, was that somebody else in all instances covered by Defendant's Exhibit 178 and the items that are contained in there, in all instances did you turn those items over to Special Agent Cunningham?
A  Yes, sir. As I stated before, they were collected and tagged from different areas of the automobile, and then the evidence was turned over to Cunningham and Kelso along with the automobile.
Q  I understand, but I just wanted to be sure that I had it clear that you turned all of the items that you list in here over to Special Agent Cunningham, and Kelso?
A  Yes.
{3138}
Q  As to any of the items that you note, evidence collected from various places in Defendant's Exhibit 178, I gather your answer was that Special Agent Cunningham did not find any of these, that he came in afterwards, these are exclusively items that you and Mr. Morfield found?
A  Yes, sir.
Q  Did you obtain any kind of receipt from Special Agent Cunningham as to the items you turned over to him? Is there any receipting that was done at the time you gave them to him?
A  No, sir.
Q  As to all of the items listed here are you able to say from your own recollection that you gave all of these items to Special Agent Cunningham, or simply that to your recollection you gave a whole lot of things to him at that time and did not take any away with you?
A  As far as I recall everything, the automobile and the contents, were turned over to Mr. Cunningham.
Q  When you made your inventory of Coler's automobile did you attempt to be thorough and to inventory all items, or only items which you looked at with a view towards finding latent prints?
A  No . We inventoried all items I would say.
I mean, it's, as you can see there's quite a list of items that were collected from the automobile.
Q  Okay. And would I be correct in assuming that you took great pains and care to look thoroughly at all items, including {3139} places where things might have fallen down behind a seat or rolled under carpeting or whatever it might be, that you examined it quite thoroughly.
A  Yes.
Q  Now, you made some examinations of the tent city area I believe, including some books that you've identified and other items here, and I ask you if you would look at, first of all look at Defendant's Exhibit 179 for identification which I place before you and tell me if you can identify this document or the, or at least if you are familiar with the information contained therein?
A  Yes, I recall this. This was more or less my departure memo from Pine Ridge, South Dakota.
Q  All right. And then refreshing your recollection to the extent necessary, or looking at that document, can you tell the jury how many latent impressions of value total were derived from the following sources:  the red and white van, the various documents, motor vehicle documents you've identified, the tents in the vicinity, in the tent area, the documents from Albert Eugene Kelly of Porcupine, South Dakota, the 1967 Ford Galaxie and its content, the two agents' automobiles, the green house near the crime scene, the white house near the crime scene, the log house near the crime scene, and a residence in South Dakota, in Rapid City, can you tell me how many latent impressions of value were found in all of those sources that you {3140} examined?
A  Up to that date there were 533 latent impressions.
Q  So there were 533 total of value; is that correct?
A  Yes, sir.
Q  All right. Now, can you tell me how many of those 533 were eliminated on the basis of belonging to the handlers of the items, and by that I trust you would mean Special Agents of the FBI or people of that nature?
A  I couldn't tell you at that time. I didn't -- our comparisons weren't complete.
Q  All right. On the second page of the document would you look at the first line there and see if that refreshes your recollection as to what you ultimately determined were at least some eliminated fingerprints.
A  Yes, sir. It does indicate that.
Q  All right. How many did you eliminate from the 533?
A  125.
Q  Am I correct that when you say handlers you would mean such as yourself, Agents Morfield and Special Agent Cunningham, perhaps if you examined items later, or any of the agents that might have closed the trunk of the car or whatever it might be, am I correct on that?
A  I wouldn't have identified my own because I wore gloves.
Q  Fine.
A  But there were, I'm sure, other people that would normally {3141} handle the item.
Q  But these would not be people who might conceivably be suspects of being involved in the shoot-out other than the law enforcement officers, would then?
A  Are you referring to the elimination parts?
Q  Yes.
A  Right.
@@Q  So we had a hundred and twenty-five, and if my arithmetic is correct, that leaves 408 other than known handlers.
Now, of these can you tell me whether you made further identifications, looking at the next paragraph in that document, as to certain, seven certain specific people which you identified by name because they had recorded fingerprint cards or otherwise?
A  Do you mean that additional latent identifications?
Q  Yes. I refer you to the second full paragraph on page 2 of that document.
A  Yes, sir.
Q  All right. And in fact there's a list of seven people there whose fingerprints were specifically identified among the remaining 408, am I not correct about that?
A  Yes.
Q  And those included Leonard Peltier, Theodore Lame, Harry David Hill, James Theodore Eagle, Joseph Bedell Stuntz, deceased, Darelle Dean Butler, Donald Mathew Loudhawk; is that correct?
{3142}
A  Yes, sir.
Q  How many of the 408 of total latents of value, other than handlers, did you identify to those seven individuals?
A  Forty-two latent fingerprints.
Q  So that left 366 latent fingerprints which were not matched up to those seven people, and they're not identified specifically in this document, am I correct about that?
A  Yes, sir.
Q  And in fact as to some of the 366 prints would I be correct in assuming that you never have been able to identify them to any particular person's fingerprints and they are just simply known people at this point to you?
A  Yes, sir, that's correct.
MR. LOWE:  Your Honor, I'm on a convenient breaking point. If I go into my next area I will not be in point at 12:30. Do you want to give us a five minute leeway or slippage?
THE COURT:  I'll give you five minutes.
MR. LOWE:  Thank you, Your Honor.
THE COURT:  Court is in recess until 1:30.
(Recess taken.)
{SEE BENCH VOLUME 15 ON LIST EVIDENCE}
{3155}
MR. LOWE:  May I proceed, Your Honor?
THE COURT:  You may proceed.
Q  Mr. Lodge, I place before you Government Exhibit 180 and also Defense Exhibit 180A and I will tell you that Defendant's Exhibit 180A purports to be a typewritten list of the items which you had in your Government Exhibit 180 and I think by looking at it you can see where it has been extracted from and at the request of Government I think I would like to have you have another opportunity, if you would, to check it and satisfy yourself that that is the same list essentially of the items found. There are some notations of names and things on the handwritten list which did not carry over to the typewritten list because the typewritten list only purports to be the items you found rather than some of the information.
Would you like to take a moment and look at that and see if it appears to be the same list and in order to do that let me give you another document which I will not identify specifically but which I think will be familiar to you which you may want to use to compare in order to see whether you can make an evaluation.
A  Yes, sir. I would say that it's accurate.
Q  For the record will you compare, if you have not already done so, Government, excuse me, Defense Exhibit 178 with 180A and see if those lists also appear to be the same items as to the substance of the list. Not some of the extraneous {3156} information that is shown on there.
I'm sorry. I was waiting for you.
Do they appear to be the same items on each of those two lists?
A  Yes, sir, they do.
Q  Now what I want to do is have you look at Defense Exhibit 180A and I want to go down as ask you some questions about certain items. First let's take the front page of it, if you'd look on there. I don't want to stand in your way but I --
MR. CROOKS:  Your Honor, excuse me. Counsel has not yet offered it.
MR. LOWE:  I'm sorry. I will offer both Government Exhibit 180 and Defense Exhibit 180A.
MR. CROOKS:  Your Honor. We have no objection to 180 and we have no objection to 180A as a typed reproduction as stated at the bench.
THE COURT:  Exhibit 180 is received and Exhibit 180A is received as a typewritten list of the items that are listed by handwriting on Exhibit 180.
MR. LOWE:  Thank you, Your Honor.
Q  (By Mr. Lowe) Looking at the first page of Defense Exhibit 180A, I call your attention to item 21 and ask you first of all as to whether this list containing item 21 was found in the front seat of the automobile known as Coler's car? Is that correct?
{3157}
A  Yes, sir.
Q  In other words, this is a list of items that you found in Coler's automobile, to go back to what we said before lunch?
A  Yes, sir.
Q  And that is one .38 special cartridge case, correct?
A  Yes, sir.
Q  And that's, I believe, the only cartridge case that you found in your search of the Coler automobile in the front seat of it, is that not correct, on your list?
A  Yes, sir.
Q  There are 24 items and only one of them is a cartridge case and that's the single cartridge case found in item 21?
A  Yes, sir.
Q  Going to the second page we have evidence collected from several other places and on that page, correct me if I'm wrong, the only cartridge case or cartridges which I see are shown as having been collected from the right front floor and that includes four boxes of .38 caliber Western Super Match Cartridges, item two, and one box of .38 caliber Winchester Super X Cartridges, item three. Am I correct so far the cartridges or cartridge cases shown on that page?
A  Yes, sir.
Q  Now do you recall how many cartridges were contained in each of these boxes?
{3158}
A  No, sir, I don't.
Q  They were full boxes unless you indicate to the contrary, would that be a fair assumption?
A  Yes, sir.
Q  You don't know whether they were, 20 or 50 or how many were in the boxes from recollection?
A  No, sir. From recollection, no, I don't.
Q  So these were then found in the right front floor and I ask you, because sometimes the term right front seat means to some people the whole compartment, when you said right front seat on the first page, do you mean literally on the seating surface or the bench type seat in the front of that car?
A  Yes, sir.
Q  Was it a bench type seat?
A  It was, as I recall, it was just a, it was no break in it. It was just a continuous seat.
Q  And then this would have been found down where the passenger in the right front seat would have had his feet, I gather, when you said right floor or under the seat or somewhere?
A  Yes, sir. On the passenger side.
Q  Then I'll ask you to look at page 3 and again see whether I have circled in green three items, whether I've caught all of the cartridges or cartridge cases which are shown on that list. There is a revolver there. I'm talking only about {3159} ammunition components now.
A  Yes, sir.
Q  All right.
And again you have one box of Winchester Super X .38 caliber cartridge containing 12 cartridges and I gather that's an incomplete box and you counted the cartridges?
A  Yes. Evidently it was an incomplete box.
Q  As to the fourth, the same is true except there were seven cartridges, is that a fair assumption from your listing there?
A  Yes, sir.
Q  And down below you have one paper bag containing Winchester Super X box, empty. So there were no cartridges in that, although that item refers to ammunition?
A  Yes, sir.
MR. LOWE:  In order to clarify one point for the jury, will Government Counsel agree to sate what that weapon was, that that was a weapon that Special Agent Coler apparently had in conjunction with an unrelated matter that does not relate to any of the evidence in this case, is that a correct statement?
MR. CROOKS:  I have no personal knowledge but that is my understanding.
MR. LOWE:  The gun in the glove compartment, that has nothing to do with this case and should not be confused.
{3160}
Q  (By Mr. Lowe) On the fourth page of the list of things you found I have circled items five, six, seven, nine, ten at the top and 23, 29, 30, 31, 32. Would you check over and see if I caught all of the cartridges or cartridge cases shown on that page, or empty boxes. I think one of them is an empty box. Does it appear that that list circled all of them?
A  Yes, sir.
Q  All right now.
Item No. 5, first of all, is two empty boxes and I gather there were no cartridges or cartridge cases in those boxes?
A  No, sir, there were not.
Q  Then two full boxes, and again you don't recall how many cartridges there were in a full box at this time?
A  No, sir. I do not.
Q  And one box containing six cartridges. I assume that was a, partial boxes were on the other page?
A  Yes, sir.
Q  Two full boxes of high powered 12 gauge shot shells, five each, and would that indicate two times five or a total of ten shotgun shells, is that what that indicates to you?
A  Yes, sir.
Q  And one empty box which means there were no shells or cartridge shells in there?
A  That's correct.
{3161}
Q  Down to item 23, one box and it says, "48 Western Super X cartridges." Would the 48 indicate the number of cartridges in the box.
A  That would indicate the number.
Q  And then item 29, 1One .23 caliber Remington Cartridge Case R-P. I believe you previously identified that as Government Exhibit 34B. Would that be the one.
A  Yes, sir.
Q  And item 30 is one .30 caliber cartridge. Just loose I gather.
A  Yes, sir.
Q  And then item 31 is 52 .38 caliber Western Super Match Cartridges. I gather they were loose in the trunk?
A  Yes, sir.
Q  And then item 32 is one .38 Special or R-P cartridge which again was loose in the trunk?
A  Yes.
Q  These four pages contain all of the items that you collected as a result of your search of and inventory of the automobile known as Coler's automobile?
A  Yes, sir.
Q  Now I want to ask you one or two additional questions about {3162} that. When you finished with the automobile and your collection that you did there, I believe you indicated earlier that you had identified the items, noted where you found them and had removed them, perhaps tagged them, marked them, put them in either boxes or envelopes or on tables or wherever it was you put them and that eventually you turned them over to Special Agent Cunningham. Am I reciting that correctly?
A  Yes, sir. That was not everything. Not everything was turned over to Cunningham.
Q  Maybe I'm just not thinking of what you said. You took --
A  There were --
Q   -- some latents or something?
A  Yes. There were things pertaining to the latent examination weren't turned over to Cunningham.
Q  Well, did you take some things other than those that you actually made yourself, that is, latent impressions which I understand you would take off and take with you, but that item would not have been in the car when you first approached it?
A  No. That's correct.
Q  As to any of the items that were in the automobile when you first gained access to it, did you turn all of those types of items over to Special Agent Cunningham when you left?
A  No. Some of the items were carried back to Pine Ridge and turned over to the agent personally in charge of the evidence.
{3163}
Q  And was that because they were items that you wanted to process further for fingerprints?
A  Some of the items; yes.
Q  Do you have any way of determining now which of the items you took back to the evidence man at Pine Ridge and which ones you gave to Special Agent Cunningham?
A  No, sir, I don't.
Q  Would you be able to look at this list and tell us any items you know you gave to the evidence man at Pine Ridge, for example, or know you gave to Special Agent Cunningham or are you simply only aware that you gave everything to those two sources?
A  I'm sure that I gave everything to those two sources, but to distinguish between the evidence I gave to Cunningham and the evidence I turned over to the agent personnel in Pine Ridge, I don't recall just what it was.
Q  Do you remember, was there a specific person you gave these things to in Pine Ridge?
A  I --
Q  Was there an evidence man as such?
A  Yes.
Q  Do you know who that was?
A  I believe the name was Brugger.
Do you remember -- strike that.
{3164}
MR. LOWE:  May I have a moment, Your Honor?
~THE COURT:  You may.
Q  (By Mr. Lowe) As to everything that you found in Coler's automobile, identified, marked down where it was found, perhaps checked it in some way and then removed and identified and put into whatever container or location you put it in and subsequently turned over to either Special Agent Cunningham or Special Agent Brugger, as to all of those items, was anything else left in the car other than those items when you finished with your inventory to the best of your knowledge and belief?
A  To the best of my knowledge nothing was left in the automobile.
Q  Now I want to, calling your attention to -- let's take one of the areas of the car. Let's pick the trunk. That's a nice compartment type thing. When you finished with the compartment examination and you made a list here of all the various items that you found there, inventoried, removed, and put aside for the moment, eventually turned over either to Special Agent Brugger or Special Agent Cunningham, was there anything left in the trunk to the best of your knowledge or belief?
A  To the best of my knowledge nothing was left in the trunk.
Q  And as with all areas of the car you searched, were you fairly cautious and thorough in your examination of the trunk compartment as well as the other compartments?
{3165}
A  Yes. I tried to be as thorough as I possibly could.
Q  Is it even conceivable in your mind that there could have been, let's say, a box of some sort left in the trunk that you didn't see or identify or inventory?
A  No, sir.
Q  Is it conceivable there could have been, for example, a dozen or so cartridge cases left in there that you didn't see and identify?
A  No, sir.
Q  Did you personally take the items to Special Agent Brugger or did Mr. Morefield take them, Special Agent Morefield or did you take them together?
A  We took them together.
Q  And as to the items that were turned over to Special Agent Cunningham, was he also there and did he also assist in turning over all those items?
A  At the same time?
Q  Yes, sir.
A  No. When we turned the automobile over to Special Agent Cunningham we left.
{3166}
Q  Maybe I didn't make myself clear.
At the time you turned over the automobile and these other items, I gather since he was standing right there, that what you really did was said something like, "There it is, you have got control of it now," rather than actually hand items to him, would that be a fair assumption on my part?
A  That's right.
Q  And at the time that you said to him, "All right, there are the items I found," was Special Agent Morefield there participating in their turning over?
A  Yes, he was.
Q  Did you enumerate for him or point out to him any special items that you found particularly, or did you just say, you know, "These are the items we found, they are lined up here, they are piled up here in this box, they are piled up here in this pile, you have got control of them, I am going to take these other items over to Special Agent Brugger," is that what you said?
A  Yes, sir. As I recall, we went over previously with Special Agent Cunningham the material that we removed.
Q  You didn't say, "Here is one blackjack, three tennis balls one bag of candy," blah, blah, blah, down the list, did you?
A  No, sir.
Q  In fact, you didn't call any particular attention to any specific items on there except to point out that those were {3167} the items, isn't that fair?
A  Yes, sir.
Q  And isn't it true that you did the same thing with Special Agent Brugger when you got to him, that you had a number of items and you simply turned them over to him and assumed that he would properly log them in and write identifications based on the notes you had inserted with them and secure them properly?
A  That's correct.
Q  But you didn't say to him, "Here is one notebook and pen, one Mobile travel map, one pen and mechanical pencil," or anything like that?
A  No, sir.
Q  In fact, right now of your own recollection, as I understand your testimony, you cannot identify a specific item that you either gave to Special Agent Brugger or turned over to Special Agent Cunningham except to say that everything on this list was turned over to one of them or the other, isn't that fair for me to say?
A  Yes, sir.
Q  Now, I want to turn for a moment to the fingerprints, the latent fingerprints you identified; and I believe you have an exhibit here which is marked Government Exhibit 42, and I probably have a note on there -- you might tell me quicker -- let me just look at my note. I think I remember which one it {3168} was you did that on. I believe that that was a comparison of Government Exhibit 38-D which was a latent print on the rear view mirror of the red and white van and you compared that with a print off of Government Exhibit 38-A -- it is Print No. 5, I don't remember what finger you told me, it would be the pinky finger of one hand?
A  That is the right little finger.
Q  That's what I thought my notes indicated.
Now -- now, let me just talk a little bit generally about fingerprints. When you take a comparison of that nature you look for points which compare, either ridges or loops or whirls or dots or something in the known print, comparing that to the latent print which you have lifted or have been sent for comparison, in order to see how many points are comparable on each of the two, isn't that just generally what you do?
A  Yes. One thing that you mentioned that I might clear up, the ridges are broken, that is, they are not continuous; and they form ridge characteristics known as points of identity. We don't particularly look for, as you said, a whirl or a loop, whatever the pattern type is. We try to take the points and compare them with the points in the other print and if they fall in the same relative area and position, without any unexplainable dissimilarity, then we have effected an identification.
Q  All right, and is there a number of points of similarity {3169} which you like to have before you conclude that the latent was put there by the same finger that put the inked print on the known card, is there a certain number you like to have to be certain to a scientific level that you accept?
A  Well, I try to take both prints in question; and to begin with, every print is different, most latent prints are fragmentary. That is opposed to the inked print taken under ideal conditions and transfer immediately, but as far as having a set number of points, that's entirely up to the individual examiner.
Q  In any event, you certainly would want to have a number of points of similarity and not merely two or three or something of that nature, as a general rule wouldn't you?
A  Yes, sir.
Q  And in fact, a latent print usually has dissimilarities from the known print of the person who put the latent print there, for a variety of reasons, such as scars or something that may have been picked up on the finger since the known print was put on the card, isn't that one possible thing that might change it?
A  Yes, sir.
Q  And aren't there actually physiologically characteristics of the finger, sweat glands and things which change daily or more frequently, that will give you minor variations any time you make an impression of your finger?
{3170}
A  Yes.
Q  Just physical dirt can make a difference, can't it?
A  Yes, sir.
Q  The degree to which a person is all heated up or very dry might affect what ridges are prominent and what ones don't even show, isn't that true?
A  That's correct.
Q  In cold weather you might have an affect on the ridges that might make a variation from what they would be like if it were warm out, that also might affect it, wouldn't it?
A  Yes.
Q  Would it be proper to say that in any instance where you compare prints, you are never going to find every point to be identical, but rather you look for enough similarities to convince you that the person who made the one had to be the one who made the other one, isn't that true?
A  Yes, sir; yes, sir.
Q  Now, as to Government Exhibit 42, when you examine this, what you really determine from your examination is that there are enough points of similarity to convince you that the latent fingerprint was made by the finger which is shown by the inked fingerprint on the known card, isn't that the substance of your testimony?
A  That's correct.
Q  You are not testifying, I trust, that the latent fingerprint {3171} is identical to the inked fingerprint?
A  No, sir, Technically it is not identical.
Q  All right, and that's not necessary in order to make your identification, is it?
A  No, sir.
Q  In fact -- well, let me ask you a foundation question or two.
Within the technology that is available in the scientific world, it is actually possible today for someone with proper equipment, laboratory, whatever might be necessary, to forge or duplicate a fingerprint, isn't it?
A  It is possible. There is a question there of the difference between forgery and duplicating.
Q  Well, if you took a known fingerprint card and you took a picture of it and used some sort of a photo-chemical process to etch a piece of latex with that impression, so you would end up with a latex copy of the finger that made the known card, you would have what I would call in simple terms like a rubber stamp of that fingerprint, that is possible technologically to do today, is it not?
A  Yes.
Q  Isn't it true when we are talking about identity, if you ever found a fingerprint that was truly identical with a known print, one of the first things that would pop into your mind as an expert might possibly be a duplication because of the fact {3172} that it is identical instead of having some dissimilarities?
A  Yes, that would be one reason.
Q  It is not required for you to find identical comparisons between a known print and a latent print in order to make your identification and make it in a valid scientific way?
A  That's correct.
Q  And would I be fair in saying that as to the prints you have described of Mr. Robideau, Mr. Butler and Mr. Peltier, that you did not find any of the latents that in fact were identical with the known inked prints of the cards that you looked at?
A  No, sir.
Q  That would be correct for me to say that you did not find them to be identical, but merely similar enough to resolve in your identification?
A  Yes.
Q  All right.
Did you execute an affidavit concerning certain of the examinations that you made in this case pursuant to a request from somebody in order that the affidavit would be used in the extradition proceedings for Mr. Peltier in Canada, do you remember that?
A  Yes, sir, I do.
Q  Would I be correct in recalling that you actually made two affidavits, I think one was made in March of '76 and one in April of '76?
{3173}
A  I don't recall exactly the dates. I do recall one was in the first week of March, I believe.
Q  All right. Let's see if I can find it.
In any event, there was another one you made later at a later time?
A  Yes, sir.
Q  There was some differences in the two of some sort, and that was the reason for your executing a second one?
A  Yes.
Q  Do you remember how you received those, did you actually prepare them, did someone give them to you by hand or did you receive them in the mail?
A  The original one was prepared by me, and then I received another one with amendments.
Q  Do you know who sent that to you?
A  I believe it came through the FBI office in Rapid City.
MR. LOWE:  O.k. May I have a moment, your Honor? I think I am just about finished.
THE COURT:  All right.
(Counsel confer.)
MR. LOWE:  That's all the questions I have, Your Honor.
 CROSS EXAMINATION (Redirect?)
By MR. CROOKS:
Q  Mr. Lodge, just one point for clarification. Counsel {3174} asked you about things that may or may not have been left in Coler's trunk following your examination, and I don't recall particularly what your answer was, but you responded that you took most, if not all, of the things out that you observed?
A  Yes. Everything that I determined that would be used for my examination.
MR. LOWE:  Your Honor, I will object to the form of the question. The testimony was that he took all of the things out, not most of the things. He said to the best of his ability he took everything he could find by a careful and thorough search. I think that's the testimony
THE COURT:  Was that your testimony?
THE WITNESS:  Yes, sir.
Q  (By Mr. Crooks) The question I was getting to, Mr. Cunningham performed his examination shortly after you did, is this correct?
A  Yes, sir.
Q  As I believe you stated earlier, that he was actually there when you left?
A  Yes, sir,
Q  All right. Do you have any way of knowing what, if anything, he may have found in the vehicle and logged in his evidence?
A  No, sir, I don't.
(Counsel confer.)
{3175}
MR. CROOKS:  We have nothing further.
MR. LOWE:  No redirect -- recross, I should say, your Honor.
COURT:  You may step down.
(Witness excused.)