US vs LEONARD PELTIER TRIAL TRANSCRIPT EXCERPTS Case Number 77-3003

US VS LEONARD PELTIER CASE: CR77-3033
JUDGE BENSON, FARGO ND

VOLUME XVI
{3242}
 WEDNESDAY MORNING SESSION
 April 6, 1977
................

(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)

THE COURT:  The United States having rested, there are some legal matters which the Court must hear from Counsel and so the jury will be excused from the courtroom at this time for your afternoon recess.

(Whereupon, the following proceedings were had in the courtroom without the hearing and presence of the jury:)

THE COURT:  Mr. Taikeff, you indicated you had a motion.

MR. TAIKEFF:  Yes, Your Honor. I would move at this time on behalf of the defendant pursuant to Rule 29 of the Federal Rules of Criminal Procedure for a judgment of acquittal by the Court. The basis of that motion, Your Honor, is that {3420} the government has failed to offer sufficient proof to either show that the defendant committed the crime charged or in the alternative has offered insufficient proof to warrant sending the case to the jury in such a state that the jury could make a rational decision without speculating and guessing.
The evidence viewed in a light most favorable to the government, as I think the Court must at this particular juncture, shows at worst that the defendant was shooting the firearm, the AR15, from a distance of approximately 200 feet or more. Perhaps I'm wrong about that. Perhaps it's 200 yards.
I refer to that area which has been marked at different times "P1" and "Z1." I think we all recognize that as the Y intersection in the road leading to tent city.
The only other connection between Mr. Peltier and the particular event which we're concerned, namely the shooting of the agent, is that a witness testified that at some time in the course of the day he saw Leonard Peltier in the vicinity of the agents' cars, did not testify that Peltier was shooting, did not testify that at that time he saw the agents alive or immediately prior to that time he had seen the agents alive. The proof is insufficient.
I realize after a three and a half week trial with several thousand pages of testimony and hundreds of exhibits {3421} it may seem difficult to make such a statement, but in fact, Your Honor, there is no testimony in any form from which a jury could rationally find. They do toss a coin and decide, yes he did it as opposed to no he didn't. But there is not sufficient proof to warrant the submission of the case to the jury because there is no proof that gets Leonard Peltier shooting a gun any closer than 200 yards and the only proof of him being in the vicinity, the immediate vicinity is that he was standing there with other people. But he wasn't the only person who was standing there that day. A person by the name of Bear Runner was there. Agents were there. Obviously they're not accused of the killing. So the mere presence at the place where the agents had been killed is certainly not sufficient proof to ask a jury to consider whether he may have killed the agents.
There is no other proof that would place him in a posture or in a position which would warrant a rational jury returning a verdict of guilty of the crimes charged in the indictment.
Now one might argue in response to what I have said that being at the Y intersection, you have to assume that fact is true on the United States case at this juncture in their case. Assuming it was true that from 200 yards he was firing his rifle, that in and of itself does not constitute a basis for finding he committed the murders which have been proven in {3422} this case. The murders which have been proven in this case have been shown to be killings that took place at very close range. They were execution style murders and shooting from that distance could not constitute committing that act.
Well, the alternative argument in response to the defendant's position would be that that constituted aiding and abetting those who committed those murders.
Perhaps now it is clear to Your Honor why at the beginning of this case through an application for a Bill of Particulars we required the government to take some posture on the subject. They said in resisting that application that they didn't know how the testimony was going to go and perhaps they did not. {3423} But now the testimony is in the record and there is nothing that would show any joint venture, any conspiracy, any scienter on the part of the defendant from which a jury could rationally find that his conduct if believed, and I think we have to treat it as a fact at this point, his conduct is being at the intersection firing his rifle constituted aiding and abetting those who committed the murders. So we have no proof that he himself committed the murders and no proof or any knowledge or participation on his behalf in helping those consciously, specifically helping those whose purpose and intent it was to commit first degree murder. As such, Your Honor, the proof fails. It fails absolutely and in the alternative it fails as being sufficient to submit the case to the jury in such a way as to prevent them from making an irrational decision which is the only decision they can make on the state of this record.

MR. HULTMAN:  Your Honor, might I be heard just with a sentence or two, since Counsel has anticipated a part of what the argument will already be.
I submit to the Court that in this case as in most instances of murder there is rarely, if ever, an eyewitness to the event itself, because two of the eyewitnesses here are dead. They are the agents.
I would submit that the evidence but for an eyewitness saying that I saw the defendant pull the trigger and do the {3424} things that the rounds very obviously from the evidence in here did do resulting in the death of the two agents, but for just that one single item everything else in terms of a circumstantial case has been presented in this case and is a part of the evidence. And I would say that the government resists only with that discussion to the Court.

MR. TAIKEFF:  Your Honor, I would just like a moment to respond to that.
It is a big but for that Mr. Hultman comments upon. But for a few minor chromosomes I could be the Queen of England. The fact of the matter is I don't have those chromosomes and here I am court appointed counsel in this lovely city of Fargo. It is a critical but for.
The fact of the matter is there is no question but that these agents were killed and undoubtedly killed in such a way so that those who did the killing or the person who did the killing, person or persons, I should say, committed murder in the first degree. But the question is whether or not the government has offered any proof from which a rational decision could be made on the part of the fact finder. Juries are not permitted to speculate, they are not permitted to make decisions on hunches. They have to have something in particular to go on.
By Mr. Hultman's own arguments it is clearly a case of circumstantial evidence, it is clearly a case of {3425} circumstantial evidence. The law is clear with respect to circumstantial evidence. If the circumstantial evidence is equally consistent with innocence as it is with guilt, then there must be an acquittal.
Our position is that as a matter of law the evidence is such that it is equally consistent with his innocence as it is with his guilt. There is no dispute of fact which could change that. If there were some disputed fact or some disputed facts, then there's a question for the jury. But there are no disputed facts.
We take the position as we must on this motion that, let us assume he was firing. Let us assume that on some subsequent time that afternoon he was in the vicinity of the cars. That's all there is. In order to fill in the blank spaces you must guess, you must hypothecate. You cannot find some piece of evidence somewhere that would be a link in the chain that would lead you to the conclusion in a rational, reasonable way that he was there shooting and that's why the proof fails totally, or in the alternative fails in such a way as to warrant not sending the case to the jury because there are cases, as the circuit courts have enunciated in the past several years, I'm thinking of the second circuit case, United States against Taylor, I regret I don't know the eighth circuit case. That circuit case was modeled after a D.C. circuit case and apparently it is the view at this time that {3426} there are cases that even technically are prima facie that won't go to the jury because the deficiencies are such that there is no rational way to fill in the blank spaces. It has to be done purely on guess work and speculation.
{3427}
We take the position first and foremost that there isn't even a prima facie case here; but secondarily, if there is, it is in that special category of cases in which the Government has made prima facie proof that does not warrant the case being sent to the jury.

THE COURT:  Without discussing or detailing the reasons why, I am denying the motion.
Is there anything more to be presented?

MR. HULTMAN:  Yes, your Honor, the Government has items that they would like to take up with the Court and counsel presently; and I would give to counsel the first item, and to the Court.
This is a request, your Honor, and it may be in one sense premature in normalcy, but in line of the way things have progressed to this point and observations have been made, I do not think it is really premature; and that is, we are now going to point out where we are going to be dealing with witnesses as counsel has indicated for the defense and certain of those witnesses are Government employees, and the first one I am concerned with, which is the subject of the matters which I have just now presented, is that counsel has indicated -- and I trust that the time has come when at least we can at least make some determinations, at least, that Mr. Kelly, the Director of the Federal Bureau of Investigation, may possibly be called, {3428} and we agree to a sequence of events.
I am now presenting this at this particular time because, one, I believe that there is no relevant matters, based upon the items which I have shown; and I would like to get this issue at least on the move because, as I have indicated to counsel, if he is going to be requested, it is my understanding that such a request will be made and a showing in camera to the Court, that an opportunity on the part of the Government to quash on behalf of the witness, to quash any possible subpoena that would result from that, and then the problem of getting the schedule worked out of the named individual.
I have made inquiry, based upon the observation that counsel indicated that he might be called, so that we did not have a problem; and I have found that -- and I would report to the Court in no way do I want to indicate that this is in any way a change in resistance because the Government strongly will resist at all steps -- but in the event that it should come to pass that this individual be called as a witness, that next Tuesday would be the most appropriate time because of problems in scheduling and so forth that he has; and I indicated to counsel I would so indicate after inquiry as to what those possibilities were.
I am not asking here that a determination be made at this time in any way. I just wanted to bring this matter {3429} to its present posture and indicate to counsel and the Court what I have done up to this particular point.
The second item, your Honor, that I would like to bring to the Court's attention has to do with other possible witnesses that may be called in this particular case (handing); and again the Court may well feel this is premature, but I think it is an appropriate time that at least the Government place some things specifically on the record for the reasons which I am going to enumerate.
Cross examination has led me to believe -- and I don't think erroneously -- that certain witnesses will be called for the reason to go into some specific events; and it is the feeling of the Government, so that there can be no prejudice of any kind to this jury, by even preliminary questions to specific witnesses that on specific events and specific witnesses there be a determination prior to anything going before this jury.
For example, on cross examination it has become apparent to me by counsel referring out of a group of witnesses or people that were in a group, questions as to just one individual that was in that group and repeated on more than one occasion; and I am specifically referring to the example of another death which in the posture of the Government is a totally unrelated and in no way a material matter to this particular case,, and I submit in {3430} that instance that no other death on Pine Ridge specifically has any more relevancy -- unless it has been shown first by an offer of proof -- than if, for example, we were here at the present time concerning ourselves with the murder here in Fargo, North Dakota, and there was another death somewhere in Fargo or in the general Fargo area.
Likewise it seems to me the allegation that other crimes or other alleged crimes, for example, someone attempting to sneak into someone's tepee, just to use an illustration, has no more relevance than again if we were here in Fargo and there was some other unrelated events of this kind, that any one of those would be highly prejudicial; and were the Government on the one hand in any way to attempt to introduce any evidence of that kind, even the very mention of it, I am sure counsel would be on their feet and asking for a mistrial and probably would be grounds for same.
And so it is the position of the Government at this time, your Honor, that there are certain matters which I think are known to all, and by the questioning that has taken place on cross examination, that in the Government's belief are, one, highly prejudicial, and two, have no relevance; and I seek to make sure at this juncture, your Honor, that we not get into matters of that kind so that the Government will not be accused, as we already have been, {3431} of using too many objections or objecting every time counsel is about to ask a question because I want to place it on the record here now, that if we are going to get into matters of that type, I am almost going to be objecting before the question is even asked. I know that is not exactly the normal posture for counsel on either side to be placed in, but because the very mention, for example, of an unrelated death, that statement alone is so prejudicial to this jury I want to do everything to insure, your Honor, at this time within the Rules and the specific Rules that we go under and we exercise examinations under, that those events do not happen.
In addition, your Honor, it would indicate to me -- cross examination has indicated that a witness may well be called, because there has been cross examination in quite detail about this given possible witness because of the testimony that has been elicited, that this witness somehow will be set up as a straw man or in this case a straw woman, and then whatever statements she does make then will be attacked, accordingly her credibility from the beginning; and I indicate again, your Honor, that I think this one is an improper matter and way in which to proceed.
And again I want to go on the record at this particular time because I believe likewise that particular subject {3432} matter in that way is something that should not appear before this jury in a hostile way or in a way which would prejudice this jury. I am specifically referring to remarks of counsel who has indicated that the competency of this woman on many occasions, words to the effect that she is mentally imbalanced, that she has been institutionalized, in fact she has seen snakes, to use some of the phraseology that has been used by counsel in the past in referring specifically to this particular witness.
I would also note, your Honor, that at this juncture there are certain reports -- I put that in parenthesis, quote, unquote, of certain hearings and certain studies; and I raise this because I find myself in the posture of seeing things and observing things and events that are almost exactly repetitious of things I have seen and observed before; and I want to make certain again that if we are going to be dealing with alleged reports of alleged fact-finding groups, that again the relevancy of that particular testimony first be tested by some showing of some kind to this Court before it becomes a matter within the hearing of this jury because I think that it will not meet the test ultimately if those things are to be introduced, the tests of relevancy as far as when you test the -- as the Court has made a judgment on other matters earlier in this trial, when you test first whether or not the items {3433} are relevant under the test of relevancy; but secondly, even if the test then is met of relevancy, that under 404 the prejudicial impact of it is so great that it is not testimony or evidence that should be allowed before this jury.
So I wanted at this time, your Honor, to bring this matters up out of the presence of the jury, and in anticipation -- and in some anticipation maybe I will be wrong, I can only confess I can only do those things that I had analyzed or viewed or seen or believed from what has been taking place up to this point in the course of this trial as to matters that may well be and probably will be matters of possible testimony or possible documentary evidence in this trial.
The last thing of which I am concerned at this moment is that counsel has furnished me with a list of witnesses; and I believe under the Rules in all good faith and what our understanding has been, in order that this trial progress in an orderly way, that I have been provided with a list at this time of two, four, six agents, and one former governmental employee, a total of seven that may well be called or probably will be called as witnesses in this trial; and I would ask that reciprocity, as I believe was the understanding because we have furnished prior to trial a list of all possible witnesses {3434} that the Government would call, and then to the best of our ability have indicated who the next witness is that is going to be called, that the same reciprocity be given within the degree of possibility; and I understand there are times when a witness for one reason or another maybe is not available; but at least reciprocity under the Rules, the Government be given this in order that we may properly be prepared and so that we will not have to ask the Court for any time that we might be able to see documents or prepare something in order to proceed accordingly.
Lastly, with reference then, in addition to witnesses -- and I make this as far as the future -- and counsel, when I made this motion awhile ago informally, I was not referring to anything in the past, I am referring to anything in the future -- that I think the only right and fair, and within the Rules, that if there is going to be any documents of any kind that are going to be used in the course of the Defendant's case, that the Government be supplied with a copy of that in order again to save time, that I might be able, or counsel for the Government, to read it, to look at it, to analyze it, in order to properly then be prepared to make any objections that we might have or to be used in whatever the proper methods are.
I have raised these matters at this time because I think it is an appropriate time for them to be raised.

{3435}
MR. TAIKEFF:  Your Honor, I have both listened to Mr. Hultman and read his brief and argument for excluding collateral matters; and I think I have made a list of all the things he is interested in including some things he didn't mention but which are in his brief.
I would like to just quickly tick them off, and if I have them all, you can respond that I do.
Question of Mr. Kelly's appearance, a witness list, copy of documents that the defense might offer, Myrtle Poor Bear, Anna Mae Aquash, the number of deaths which have occurred on the Pine Ridge Reservation, and testimony concerning state of mind of the Defendant, particularly with reference to the question of first degree murder.
I would like to know of Mr. Hultman if I have touched or mentioned every topic which he has brought up either in writing or orally.

MR. HULTMAN:  No, I don't believe you have. There have been some others like an individual who may have lost an eye at some time or some place, or a child, something may have happened -- I am talking about any specific events, I have tried to indicate that as not being relevant.

MR. TAIKEFF:  I am sure that that latter point doesn't appear in the brief, and I am fairly certainly, in spite of my somewhat debilitated condition right now, that Mr. Hultman did not say anything about that a few moments ago but I will add that to the list.
{3436}

MR. TAIKEFF:  Perhaps it would be fair for simplicity sake to say what Mr. Hultman was referring to generally is the existence and past existence, particularly in 1975, of violence on the reservation. May I ask whether that's the topic that he has in mind?

MR. HULTMAN:  I'm referring to specific isolated instances and whatever those might be. That's specifically what I'm referring to. The isolated instances.

MR. TAIKEFF:  All right. If I may proceed, Your Honor --

MR. HULTMAN:  Because of any relevancy to this particular matter.

MR. TAIKEFF:  First of all, with respect to Clarence Kelly. I thought that a mutually agreeable program had been worked out with respect to certification to the Court, and then if the Court granted the subpoena and opportunity for the Government to act. And I see no reason to deviate from what had apparently been our mutual understanding.
Counsel cannot at this time certify to the Court the need for Mr. Kelly, and we will take into consideration the fact that the best day for him would be next Tuesday. I don't think our case will last so long that there would be many other days on which we could possibly want him. So that if we want him it would be next Tuesday if the Court agrees, and if at the same time denies the Government's application to {3437} quash the subpoena. I trust that for the moment that takes care of the matter.
MR. HULTMAN:  Yes.
MR. TAIKEFF:  Now, secondly, with respect to a witness list, we will, although I don't think we're obligated to do so under any of the rules of criminal procedure or under any of the case law, supply the Government with a witness list in this form. As we have arranged right now there are approximately five witnesses whom I have interviewed, and whom I have determined are to be called to the witness stand. I believe that in fact they will be called to the stand.
I would happily give Mr. Hultman that information right now. Jean Day, Francis He Crow, Russel Loudhawk, Ethyl Merrival and Jimmy Eagle. Those are the only people that we have thus far determined that we will call to the stand other than the FBI agents in the first category of the two categories on the list that I gave to Mr. Hultman, either yesterday or the day before yesterday. As to those people, which includes Marvin Stoldt, the BIA employee, former BIA employee I am told, there is no doubt that we will call him to the stand. That's not speculation.

MR. HULTMAN:  And they are and will be available by tonight, or I'm not sure all of them are here yet, but they will be tonight. So they'll be ready for tomorrow.

MR. TAIKEFF:  There are additional names in the second {3438} category. I believe Your Honor has been previously informed that we do not require their presence. We only require that a reasonable opportunity be given to us to get them here, and I understand that except in some presently unanticipated cases, twenty-four hours would be sufficient. So I think we have that under control.
As to the additional witnesses that we interview and determine that we will put on the stand, we will voluntarily notify the Government as we certify them; and we will do so in the same spirit in which the pretrial discovery was done. They won't be any holding back and there won't be any game play. As soon as we know somebody's going to be a witness we'll notify the Government.
Now, I think in spite of the fact that Mr. Hultman would not join me in a general description which would cover a number of specific items that he talked about, I want to address myself to the question of violence on the reservation and the relevance that it has to this case. Quite simply the Government has adduced rather substantial amount of evidence of the presence of weapons in the tent city area in the possession of the defendant and others with whom he was working or associating, and in fact we have objected to some of that because we felt it was attenuated, it showed events at other locations at other times, and the Government has said it's relevant because it shows armed flight. And that {3439} in turn is a sign of consciousness of guilt.
Now, in fact there are other reasons why the defendant and his colleagues carried weapons and had weapons, and we're going to offer proof by way of explanation. So I think given the fact that we've had an arsenal on display in this trial and that an examination of a record which is well in excess of two thousand pages will show that at virtually every moment during the course of the last three and a half weeks there was either a gun or bullet or a casing on display while a witness was testifying, that surely we have an opportunity to offer testimony as to why the defendant and his colleagues went armed. That covers the topic generally. There will be one specific matter that I will refer to in a moment.
With respect to copies of documents, we certainly do not intend to try the kind of case that would cause delay or would in any way be unfair; and we're not going to come up with documents on a surprise basis, and not provide the Government with some advance insight as to what's coming.
Now, there are certain exceptions to that, and I trust that until such time as the Court finds that counsel for the defense do not act in a sensible, professional way that Your Honor will allow us to proceed on our representation that we will act properly and in good faith. These exceptions are, for example, if we have received a document from the Government {3440} and we, in the middle of an examination, find the need to present that document to the witness, our office is across the hall, the Government's office is a comparable distance away, I think that the Government should have the same obligation that we had, and that is to keep everything at their fingertips so that when a document comes up they have the same access to it that we have. And I speak primarily, if not exclusively, of documents of which the Government has supplied to us. So the authenticity of such document is certainly no dispute, and the Government's constructive knowledge of the content of the document certainly isn't in dispute.
Another possible exception, Your Honor, is the fact that we will call to the stand certain witnesses whom we believe will not be friendly in any sense of the word, such as the special agents of the FBI. Now, there are times when one is either cross-examining an adversary's witness or one is examining on direct examination a hostile witness that one does not want to telegraph one's punches. And I think in those appropriate situations counsel should be given leave without any unnecessary noise being made by the Government not to reveal the contents of a document.
I think the record will show, and Mr. Hultman's memory should be consistent with it on most occasions, if not virtually all occasions, voluntarily shown to counsel before I offered {3441} something in evidence a document so he would know what document I was using. There have been exceptions to that, and in fact even upon his request I have indicated my unwillingness because I felt that as an adversary I did not want to give him an advantage that he had known it if I showed it to him. So except for those special cases where I felt justified in doing it I have not played the game in such a way that I've refused to show documentation.
If we come up with any documents of our own that the Government did not supply we will most assuredly make copies available to the Government the moment we decide to use such a document. I trust that that offer of cooperation, subject to our not performing, is acceptable to Mr. Hultman.
Now, Your Honor, there are a number of items of somewhat greater substance and greater significance. Perhaps the least of those four is the question of the number of deaths on the Pine Ridge Reservation. The proof will show, the proof offered by the defense in connection what those people from the American Indian Movement were doing in tent city, that they were providing protection to traditional full-blooded native Americans living in the White Clay District at the request of the traditional tribal council, at the request of the chiefs. And in fact we have a document concerning that subject, and we will make a copy of it and turn over a copy of that within the next fifteen minutes, document dated June 1, {3442} 1975; although the events which we will prove predate June 1, 1975. There were times, and the period of March, 1975 to the end of June, 1975 is included amongst those times when members of the American Indian Movement were called to the Pine Ridge Reservation by the traditional people, or their chiefs to help them, to protect them, to protect them from violence, to protect them from murders, to protect them from shootings, to protect them from beatings; and in order to do so, weaponry was necessary.
And it is not possible for us to have a fair opportunity to show to the jury why these people had the number and kind of weapons they had without showing the circumstances under which they were invited. Part of the fear felt by the traditional native Americans living in the White Clay District was the fact that people are murdered with regularity, people die violent deaths at a rate, and I don't make this as a representation, but it is a qualitative statement to give Your Honor some idea of order of magnitude, the equivalent violent death rate in the Fargo-Moorhead area would have to be something like 600 or 700 deaths a year to equate to what goes on on the Pine Ridge Reservation, what went on in 1975 and what prompted the traditional leaders to call in the American Indian Movement.
So I don't see how it's possible for us to prove that which is necessary to rebut directly, rebut a portion of the {3443} Government's case without alluding to the these things. We're not doing this in an effort to create sympathy or make any statement for the press, for the spectators or for anybody else. That is not relevant and appropriate to this particular case and its surrounding facts. That leaves me with three items: There is the question of Anna Mae Aquash. Now, there are two aspects of that. First I must briefly summarize the situation for Your Honor. Anna Mae Aquash was an AIM activist. As I understand it she was a member of AIM. She was found dead in the early part of 1976 wrapped in a blanket about a hundred feet off of a road on the reservation. Her body was not taken to Rapid City where bodies are taken for autopsies, but to Nebraska. A curious fact in itself. She was known to certain agents of the FBI, personally known, at least one of those agents viewed her dead body, and yet she went unidentified for a long time.
In addition to going unidentified when it appears she should not have gone unidentified she was said to have died of exposure, her body being found in the wintertime. And this was as a result of an autopsy, not speculation, that was to say the Nebraska autopsy. After her family went to the Wounded Knee legal defense-offense office in Rapid City an action was taken by one or more attorneys working on that committee. Her body was exhumed. My understanding is that the FBI exhumed her body voluntarily, that is to say they didn't {3444} have a court order but the pressure was building.
There was then an autopsy performed by a doctor, I will characterize as being more competent, and they managed to find a hole in the back of her head which apparently was the portal through which a .38 slug had killed her. And the bullet was still in her head. That's just a barest outline of the situation.
Now, I tell Your Honor so that Your Honor will understand, maybe I should add one thing. Sometime before her death she was interviewed, I have no direct knowledge of it, I believe for a radio broadcast, and she asserted at that time, and I do not claim that at this time that it would be possible to produce that evidence, I just tell Your Honor for background she asserted at that time that she was afraid of the FBI; she was fearful they were going to kill her. And then of course she died and somehow or other the FBI couldn't identify her.
And then the doctor couldn't properly determine the most obvious cause of death, and the question is what relevance does that event have to any aspect of this case. Well, there is at least one witness that I have personally interviewed who will testify for the defense that he or she testified falsely under fear of the FBI because of things which had been said to that person by the FBI, threats that had been made to that person by the FBI, and that amongst the several specific {3445} factual considerations which prompted that witness to lie under oath and give false testimony that favored the Government's position or posture in this case was what happened to Anna Mae Aquash.
{3446}
Now I think that for that person to testify as to his state of mind based on what happened to somebody else, I'm not talking about the entire set of circumstances, I merely told those to Your Honor so Your Honor would see the entire thing in content. For that person to testify as to his state of mind as a result of his confrontations with the FBI seems to be highly appropriate because part of our case will be to show the misconduct of the FBI in creating false and fictitious and perjurious evidence.
Now as to whether or not it will ever become relevant to attempt to prove the entire history of this event from the time Anna Mae Aquash was found dead, I cannot in good faith say to Your Honor that there is now a basis upon which I can assert that it is relevant. Some of my colleagues feel that it is relevant. We have had some debate on the subject. At the moment the question is unresolved in the defense team and my individual, professional belief is that we do not yet have sufficient evidence to warrant making the assertion that it's relevant. So to that extent I at this time have to agree with Mr. Hultman that to spell out the entire episode and the FBI's involvement at this particular time, I do not make the assertion that it's relevant and that we should offer to prove it. Of course, if we do change our position, we will naturally notify Mr. Hultman and the Court so that we do not spring any surprise witnesses on the {3447} government.
The next to the last item which was not alluded to in Mr. Hultman's oral presentation, but I assume he stands on his brief -- may I make that assumption?

MR. HULTMAN:  I'm not sure which one, Counsel, you're now referring to.

MR. TAIKEFF:  There's a question of proof of state of mind.

MR. HULTMAN:  All right.

MR. TAIKEFF:  Which was not alluded to orally.

MR. HULTMAN:  No. I do not. Right. Right.

MR. TAIKEFF:  I'm in a somewhat difficult position as a lawyer because the government, as I said, in the course of arguing the Rule 29 motion has to this moment not taken a position as to what their theory is of this particular case.
Now it seems to me that there are two possibilities, two realistic possibilities:  either the government will ask the jury to believe that the defendant participated in the sense that he was in the proximity and either directly shot the agents or in someway at that location participated in the shooting of the agents which is perhaps two alternatives. But I see them in the terms of the distance between the defendant and the decedents as one alternative. That is to say, he was there and he either directly or by aiding and abetting then and there within ten or twelve or fifteen feet {3448} participated in the killing. That's one possible theory that the government could go to the jury on.
The other is that if the jury believes that he was shooting that afternoon, that because there was an ambush or some plan or perhaps at the last moment some decision to collectively assault these agents which resulted in their death and that the defendant did not come any closer while the significant shooting was going on at 200 yards, then it would seem to me the alternative argument to the jury is that they should find him guilty for aiding and abetting at a distance.
Now those cases are significantly different cases, and as lawyers know, perhaps laymen don't, out of the same body of evidence it's possible to take either of those position. But it seems to me if the government is moving in limine, which is the way I interpret Mr. Hultman's presentation, and since the complaint that they had at the beginning of the case that they were uncertain of where their evidence would go, that there is no longer any need for the government to be uncertain. The evidence is in; they have rested. They are not permitted to put in any more evidence unless and until we put in evidence and then only to specifically rebutt the evidence we put in. So I think it's appropriate before I can respond on the state of mind issue, the government to finally make their choice:  is he up close or {3449} is he at a distance, is he a principal or is he an aider and abettor, and I think that perhaps I should give Mr. Hultman a moment to make a response to that because we have to deal with every permutation and combination.

MR. HULTMAN:  My only response, Your Honor, is that the proof indicates that both of those very conclusions by the proof so indicate and that's been our position from the beginning. One, not knowing specifically what the proof would show and now believing that's what the proof does show.

MR. TAIKEFF:  But it can't be both. We asked the jury to find as a fact, we asked them to come to a conclusion. The government finally has to take a position:  what happened here. They don't have to take a position on the basis that they know what happened. They have to take a position that they want to restrict us with a motion in limine as to a choice. They may not make the right choice but they have to make a choice because otherwise it is impossible for Your Honor to rule or for us to respond to the application which they made. They want to have it every way for themselves and no ways for us.

THE COURT:  It seems to me the government's response was to present all of the available relevant evidence and it's up to the jury to make the determination on the basis of that evidence whether one or either of these situations --
{3450}

MR. TAIKEFF:  Then, Your Honor, it's clear if one of the possibilities is that Leonard Peltier was firing from 200 yards we should be permitted to show the justification for firing from 200 yards and their state of mind and the matter is resolved.
I don't mean to be presumptuous, but it seems to be crystal clear. If a man were on the corner of Broadway and First Avenue North firing an AR15, any juror would want some explanation as to why was he there and why was he doing that. Well, it's not quite Broadway and First Avenue North at that Y intersection, but we have an explanation and that's the subject matter that the government says we shouldn't be permitted to prove. It seems to me obvious that their application must be denied on the basis of the very position he took in their original argument.
And that, Your Honor, brings me to the last point. That's the matter of Myrtle Poor Bear. Now I think that Mr. Hultman characterized that as a case of a straw woman we want to set up in order to knock down and if in fact that's what we intended to do, I would certainly understand his objecting to it. I would understand Your Honor's supporting his position. We don't intend to show that Myrtle Poor Bear said things and then turn around to prove that they're not true. That's only part of what we're going to show.
We're going to show that the things she said not only {3451} were not true but she could not possible have known those things and that the FBI took advantage of a poor, unfortunate human being whom they could manipulate and cause to do their bidding because of her inability to assert herself and perhaps at times to act in a competent manner and they solicited and suborn her testimony; that they made her sign affidavits alleging that she was standing there and she watched Leonard Peltier and others machine gun the agents to death and these affidavits were then sent to Canada and they were, and we will produce expert testimony they were the single most significant fact in complying with the requirements of extradition law in getting Mr. Peltier to this country.
I'm reminded by Mr. Lowe that I may have misstated a fact and I want to correct myself. It was another episode that involved the alleged machine gunning with somebody else. That will be another phase of our defense. Apparently my memory is incorrect in that regard. Myrtle Poor Bear said that individual single shots, one or more, were employed in shooting, killing the agents and then in shooting them after they were apparently dead.
Now is true along with the other evidence which we will offer of gross criminal misconduct on the part of the FBI, then it is surely relevant. It is surely noteworthy in connection with all the testimony given by FBI agents, all the testimony given by the witnesses who came under the {3452} influence of the FBI, at least one woman will testify as to the methods employed by the FBI to coerce that purjurous testimony and this is just another episode of what they did in an effort to convict in this case, not in some other case with some other defendant but what they did in connection with this defendant in this case.
Furthermore, Your Honor, our independent investigation confirmed the information communicated to us by the government and I think it may have been Mr. Hultman himself who communicated that information in open court that the affidavits prepared in connection with the extradition proceedings were prepared by a Canadian governmental attorney by the name of Halprin. I don't remember specifically whether he did so in Rapid City, whether he did so in Canada or did so by working in two or more locations. But that's the gentleman's name. It just so happens that our investigation shows that Mr. Halprin did not prepare the Myrtle Poor Bear affidavit. Of all the affidavits that were filed in the Canadian extradition proceedings, he did everything except the Myrtle Poor Bear affidavit. Curious fact. Interesting exception to the pattern.
Myrtle Poor Bear we trust, although she has refused to speak with us, when finally in this courtroom under oath will tell the truth about how she came to tell the FBI under oath that she stood there and watched Leonard Peltier shoot the {3453} agents. Now I don't think that's a straw woman operation at all. I think that very clearly shows the attitude of certain agents of the Federal Bureau of Investigation toward this particular defendant in this particular case and what lengths they will go to to successfully prosecute him. And I might add as an addendum this particular time that we called upon the government under Brady against Maryland to advise us of the names of the two FBI agents. We have learned through our investigation that there are two who in the stead of Mr. Halprin prepared the Myrtle Poor Bear affidavit and if they are not already on the list of names of FBI agents, we've asked the government to make available to us to call as defense witnesses. Then we further ask that they be produced because we wish to call them as defense witnesses in this case.
Now I believe, Your Honor, I've addressed myself to each of the separate subjects which Mr. Hultman has raised with the Court.

MR. HULTMAN:  Your Honor, could I respond very briefly. I don't want to go into -- I think the discussion, first of all, in re:  Anna Mae Aquash. Counsel's own remarks indicates the position of the government with reference to relevancy and I won't deal any further.
With reference to certain allegations about it, I am very much in dispute. I think the facts will show something's {3454} different as to the allegations that he's made with reference to it and I'm not going to argue those except to make a general statement. With reference to the last discussion, I find it absolutely astonishing, and this has been the course of this trial that Counsel will set up a given straw man and when the government knocks that straw man down or plugs that hole, then a new theory comes and I see no better or worse example than Myrtle Poor Bear.
I want to relate, Your Honor, to words that Counsel in opening statement told that jury and compare that statement with the comments of Counsel just now. On page 47 of the transcript of Counsel's opening remarks to the jury, and this is what the jury is sitting on right now, if they believe what Counsel was saying, believe this about Myrtle Poor Bear. Second paragraph:  "And finally we believe that you will find a witness, at least one witness whose mental imbalance is so gross as to render her testimony unbelievable." Now I don't think there is any doubt in anybody's mind as to whom Counsel was referring to at that particular time.
Now if we accept that as a posture that Counsel has indicated to the jury, now we're to accept a total and new posture. Now this witness is so competent that she's now going to be able to come in and do all of the things that Counsel says now she is competent to come in and testify about and with that, Your Honor, I will make no further response on any other item.
{3455}

MR. TAIKEFF:  Your Honor, I want to address myself only to Mr. Hultman's interpretation of our position.
We do not suddenly certify that she is a sterling individual with all of her marbles in place, quite the contrary. Merely producing her in this courtroom will demonstrate that no sane, honest FBI agent would accept a story from her and proceed to reduce it to affidavit form and file it in a judicial proceeding without having her mentally examined.
We don't change our position about the unfortunate nature of her life, although I don't think she is incompetent in the true sense or the legal sense of that word; but anyone who sees her, anyone who has the slightest opportunity to converse with her just one sentence must find, by employing common sense, that there has got to be something wrong with any Agent of the Federal Bureau of Investigation who hears the most startling revelation out of the mouth of such an unfortunate soul in such a serious case as this and then proceeds to see to it that that person files an affidavit, that her story is unbelievable on its face; and when one has an opportunity to judge her manner and demeanor, one must come away from that experience knowing that the FBI found some unfortunate soul who is willing to do anything to have a little excitement in her life, and they took advantage of her.
{3456}
In the extradition proceeding it was not necessary for her to be there. Indeed, your Honor -- and I certainly do not ascribe any wrongdoing to Government counsel -- I only want to point out how effective was the FBI's course. She didn't have to appear in Canada because as your Honor undoubtedly knows, that's just a case of filing all the right papers that make all the correct allegations. Extradition proceedings are really not a fact finding process. They are basically comparable to common law pleading, where if you say all the right things, you get what you want; and if you don't, you are out of court.
The Government itself didn't know whom they were dealing with. They only had the paperwork, just as his Honor in Canada had only the paperwork and put her on the Government's witness list at the last trial, and then quickly took her off after they interviewed her.
That shows the nature and the quality of the conduct of the FBI in connection with our client, that the Government itself from the face of the papers took this very seriously, this was the hottest witness on the list until somebody spoke with her and they promptly eliminated her from the witness list.
It is that aspect of it, it is the use, the knowing, willful use of this witness who is willing to put her signature on a sworn document, knowing full well as any {3457} ordinary person would and surely a trained FBI Agent would, that she couldn't be telling the truth and that, we think, is highly relevant because we have and we will continue to attack the integrity or the veracity of the FBI in connection with this case.
We don't want to try Watergate over again. We are not going to bring up the fact that the FBI burglarized the psychiatrist's office in connection with another criminal case. That's sad history.
We are going to talk about the events that pertain to this particular Defendant in this particular case.

MR. LOWE:  Do you need a motion to bring that about, Judge?

THE COURT:  I am just wondering whether we should bring the jury back or whether we should recess?

MR. TAIKEFF:  Your Honor, I will make it easier for all. In view of my physical condition, I would request on a personal basis that there be an early recess today.

THE COURT:  Very well. We will recess today then until 9:00 o'clock tomorrow morning.

(NOTE: The defense attorneys all came down with the flu..one after the other during trial...)