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

TESTIMONY VOL21

THE COURT:  Mr. Taikeff.
MR. TAIKEFF:  Yes, your Honor, just a few matters that should not take very long.
I am wondering whether the Government has discovered the names of the agents who prepared the Poor Bear affidavits.
MR. HULTMAN:  Your Honor, what I have been able to find out at this point is that the affidavit itself was prepared -- and correct me because I have not talked to Mr. Halprin -- the affidavit itself was prepared by Mr. Halprin, that during the period of time itself there were two agents that assisted, and I am not sure what part each of the three individuals play; but the three individuals, two in addition to Mr. Halprin, would you identify the two agents -- Agent Woods and Agent Price.
MR. TAIKEFF:  Thank you.
The second matter, your Honor, is that at this time the defense is considering the possibility of calling Leonard Crow Dog. One of the factors which will determine whether or not we do call him is whether your Honor, pursuant to the application I am now making, suppresses {3644} for use on cross examination his prior Federal convictions, neither of which concern any conduct which would go to his propensity for telling the truth.
I do not have specific details about those convictions. I think one of them arose out of an assault which we have heard something about on trial. He was a participant in some way or other, he was convicted. I understand by what is probably quadruple hearsay that the Judge in that case found in the main that his principal wrongdoing was that as a spiritual leader he did not interfere and stop the fighting which apparently he had the power to do.
THE COURT:  You are not suggesting that I exclude or make a collateral inquiry into the justice of his prior conviction?
MR. TAIKEFF:  Not at all. I am merely revealing, your Honor, the full extent of my knowledge on the subject and characterizing it properly so that your Honor doesn't think I am offering personal knowledge of the subject.
THE COURT:  Thank you.
MR. TAIKEFF:  The other conviction, I am not sure of, it may have arisen out of the Wounded Knee occupation and may have something to do with the fact that there were two Federal employees -- they may have been postal employees -- who came into Wounded Knee because there is a small Post Office there; and these two men were captured, {3645} if I may use that word, by certain of the occupiers of Wounded Knee; and in certain ways Leonard Crow Dog was involved in their restraint for a certain period of time.
These are the two events which lead to Federal convictions, and I believe that neither of them reflects in any way upon his ability to testify truthfully; and on that basis I would ask if the Government won't voluntarily restrain themselves from impeaching him with his convictions, that the Court suppress the convictions for such purposes.
MR. HULTMAN:  I haven't had a chance to brief this, your Honor; but I would at this time indicate I would fully intend to use those convictions the same as I would fully expect the defense at any time any witness is going to appear on behalf of the Government who has been convicted of a felony, would be a proper matter and a proper inquiry; and I am not prepared at this time because, one, I have not seen the specific request, and two, I remember one of the convictions very well because I was there in Cedar Rapids when the trial took place in Cedar Rapids, so I am very familiar with that one.
So at this point on the record I would indicate that I would fully intend to use those as a basis within, within what the present law is, for whatever purposes I can use it. I would in no way indicate anything to the {3646} contrary.
MR. TAIKEFF:  My brief reply is that case law before the publication and effective date of the Federal Rules of Evidence has held that the Court has discretion in connection with convictions, to suppress them particularly if they have no relationship to the tendency on the part of the witness to tell the truth, so that a conviction for larceny would surely be something that could be used for impeachment. A conviction for some act of violence might be, but need not necessarily be.
I believe that that case law was adopted in the Federal Rules of Evidence, but I regret at this moment I cannot say to your Honor what I think the Rule number is.
THE COURT:  Well, I was just sitting here reading the Rule and listening to you at the same time.
The Rule 609 says:  "For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant or (2) involved dishonesty or false statement, regardless of the punishment."
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Then there is a 10 year time limit in the next sentence.
What would Mr. Crow Dog testify to, what would be the substance of his testimony?
MR. TAIKEFF:  It would concern events on the Rosebud Reservation in September of 1975.
MR. HULTMAN:  Well, I think, your Honor, on the basis of that -- and I haven't had a chance to go back and brief the law -- but I think on the basis of that, for the one specific offense involved, goes to the very kind of matter and the very issues that are involved in this case as well as the fact that were the Government deprived of that opportunity, then we are left with a witness who is put in the posture of being a medicine man, which he is, and the cloak of honesty, the cloak of lawfulness, the cloak of uniqueness that a person in that posture has; and I think it would be doubly critical for the Government under that cloak to have the opportunity to show that he is a convicted felon and especially of the type and nature of what that felony is, or felony was.
THE COURT:  The holding of the Court would be, in view of the testimony that would be elicited from this witness, that a showing that he had been convicted of a felony within the last 10 years would be admitted.
MR. TAIKEFF:  Your Honor, I am wondering whether there {3648} has been report made to the Court by the Marshal concerning the Marshal's efforts to contact Myrtle Poor Bear?
THE COURT:  Not directly to me. I do not know whether Mr. Hanson has any information or not.
THE CLERK:  I have none, your Honor.
MR. TAIKEFF:  I just wish to remind the Court that in the conversation with Chief Deputy Warren which I think took place yesterday, he indicated to me that he would report to your Honor sometime early today. That's my vague recollection, and I would respectfully ask the Court to make some contact after the close of court this afternoon so counsel could be advised.
THE COURT:  I will try to get a report from Mr. Warren this afternoon.
MR. TAIKEFF:  The only other matter I have, your Honor, is an administrative one. It concerns the fact that the defense team intends to devote this weekend in the main to discussing its closing argument and preparing counsel for same.
We would like to allow our client to participate in that activity. It is going to be an activity participated in by every member of the defense team; and since the Defendant has been here throughout the proceedings and has listened intently to the testimony, he will have many reasons to be there and because of his presence he would {3649} be able to make contributions concerning his observations in the courtroom.
I would ask your Honor in view of the fact that the Marshals have never had any difficulty with him, they don't seem to have to take any special precautions with him, as I have observed it, that your Honor allow us during the hours of 9:00 to 5:00 to work in Room 326 and have Mr. Peltier present with the appropriate number of Marshals standing guard outside.
THE COURT:  There may be a problem with that because of the availability of the Marshals, particularly on Sunday which Easter Sunday.
MR. TAIKEFF:  I would modify my request in light of that then to be Saturday only.
THE COURT:  Let me finish what I was going to say.
For your information I was just going to mention that the Marshal will, of course, because of this jury being sequestered, have to give special attention to them on Easter Sunday.
MR. TAIKEFF:  I understand.
THE COURT:  And it will require more personnel.
MR. TAIKEFF:  I understand that, and I think if the arrangements could be made for Saturday, it would be very helpful to all of us if Mr. Peltier could participate in that critical phase of the proceedings.
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THE COURT:  You are asking for 9:00 to 5:00?
MR. TAIKEFF:  Yes, your Honor.
THE COURT:  I will take that up with Mr. Warren.
MR. TAIKEFF:  I appreciate that, thank you.
THE COURT:  By the way, as long as you are talking about that -- and I realize this is premature -- but do counsel for both sides have any requests to make to the Court as to how much time should be allowed for argument? I thought it might be something you might want to consider at this time if you are going to be discussing it.
MR. HULTMAN:  I understand, your Honor, that's why I am making at least a suggestion because counsel said that {3651} he was going to determine on what I said. I don't know what that really means, but I would like to have two hours, for a total of opening and closing.
MR. TAIKEFF:  I trust that your Honor will find no offense in what I am going to say. If your Honor is ever inclined to be liberal, I am inclined to take the maximum advantage of it.
MR. HULTMAN:  Are you suggesting that isn't enough?
MR. TAIKEFF:  No. I said what I said. I trust the Judge understands the good spirit in which it was said.
THE COURT:  Is there a hidden message in that?
MR. TAIKEFF:  No, your Honor, it is a public message.
In any event, it is said with respect. I hope your Honor appreciates that.
THE COURT:  I appreciate the humor of it.
MR. TAIKEFF:  Thank you, your Honor.