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

AT the BENCH: The government had had Myrtle Poor Bear listed as a witness, but never called her..
TESTIMONY VOL21

VOLUME 17

THE COURT:  First of all, I want to report that I just talked to Mr. Warren on the telephone and he said that he will arrange that 9:00 to 5:00 Saturday matter with the defendant. It may create problems for him but he'll do it.
MR. TAIKEFF:  Thank you.
THE COURT:  He said his report on Myrtle Poor Bear is no different than what he gave you yesterday. He again attempted to contact her at noon today. I said, well, maybe I'd suggest you talk directly to him. She just apparently has disappeared.
MR. TAIKEFF:  Your Honor, I want to say that I anticipated something like this happening. That in itself doesn't tell anybody anything factual except that I have an active intuition. But I just want to say at this particular time by way of encouraging Your Honor to grant whatever relief we decide to ask Your Honor for tomorrow morning that when Mr. Crooks came to me that afternoon to report that she was available he told me that she was about to be released from protective custody. Up to that time and for a long time she had been in protective custody. I don't know why. But I will assume there was some good reason for it. The moment that we heard that she was in protective custody and was about to be released we raced to Mr. Hanson and got a subpoena hoping that we'd at least get that much of a hook into her.
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My instant reaction at that time, and again it's very subject, I just tell it to Your Honor for historical reason if there is no other reason, I sensed that that woman was going to disappear, that after all these months and possibly almost two years of her being in protective custody, suddenly when we decided to use her as a witness she was being released from protective custody. We were informed and I have reason to believe that it's true if a witness doesn't want to be in protective custody there is no way under the law that you can force it upon that witness.
THE COURT:  That's right.
MR. TAIKEFF:  So we did not press to have her held in protective custody, but we elevated her status from that of a person who was subject to the call of the subpoena to that of a material witness. By serving her with that subpoena a little after 5:00 on the day in question which was returnable the next morning, we placed a certain kind of obligation on the marshal. I think the marshal would have been embarrassed to say the least if he let her go then and she didn't show up the next morning. When she showed up the next morning we made an application which resulted in Your Honor declaring her as a material witness. Your Honor is aware of the fact she has signed at least two and possibly three separate affidavits saying that she was standing right there and watched the agents being shot.
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THE COURT:  I am not aware of it other than what you people may have said to me. I have not examined the record.
MR. TAIKEFF:  I meant to say Your Honor is aware of it because Counsel has represented to you that that is the fact.
THE COURT:  All right. All right.
MR. TAIKEFF:  Your Honor held her as a material witness and signed a warrant which was merely a technicality because she was down the corridor and she was technically arrested on the warrant and was taken to the magistrate, I understand. The order of arrest or the warrant specifically provided that she could be released on a thousand dollar PRB. We consented to that.
THE COURT:  Excuse me. You didn't consent to that.
You requested it. If you had requested a bond other than PR I would have granted it. I thought of it as the same as I did on Angie Long Visitor.
MR. TAIKEFF:  Your Honor is quite correct.
THE COURT:  I remember I had it in mind at the time. I remember when you asked for it. I remember Mr. Lowe, when Mr. Lowe asked for the PR bond I know the thought entered my mind, "They must know her pretty well if they're willing to let her go on a PR bond."
MR. TAIKEFF:  Your Honor is quite correct. Actually if I finished my sentence Your Honor would have known the intent {3707} of my statement.
THE COURT:  Excuse me for interrupting.
MR. TAIKEFF:  We didn't want her to fail to meet the bond and be incarcerated. There is perhaps a defect in all defense lawyers but they just don't like to see people behind bars.
THE COURT:  Well.
MR. TAIKEFF:  In any event, we felt a PRB would be sufficient because she'd be subject to the same requirements of the law and the same punishment if she failed to appear.
Then something hard to imagine took place. She was arraigned before the magistrate and she was not bailed. She was just turned loose.
THE COURT:  I don't know. That has been reported to me by Ralph or somebody and I didn't know what the explanation is. I have not talked to the magistrate. I don't know how that could have happened.
MR. HANSON:  I don't believe I reported it to you, Judge.
MR. NELSON:  I did.
THE COURT:  Sometimes get those two fellows mixed up. Mike reported to me.
MR. TAIKEFF:  But in spite of the fact that she had not been formerly bonded, she did apparently comply with the requirements that she keep in touch with the marshal up to a {3708} point which was last Sunday and then all of a sudden she stopped communicating.
Now I think she's a very important witness, an exceptionally important witness and I have to think about this and consult with my colleagues on the defense team as to the extent of the assistance that we need from the Court to make sure that we find her before this case goes to that jury, and I'm afraid under the circumstances I can't help but think that this just didn't happen itself. I can't point the finger at anybody or anything and I cannot specifically indicate to Your Honor what item of relief we'll ask for but I will tell you Your Honor that we are very much concerned with the fact that we don't have her to call as a witness. I know the government isn't here and I won't say anything new to disadvantage them. But if the facts we allege with respect to her involvement in those affidavits is as we say, that is a very, very serious piece of conduct on the part of certain government officials.
THE COURT:  I'm not willing to accept the fact because I have no knowledge or information, I am not willing to accept the fact there is anything irregular here other than the fact this woman apparently doesn't want to come back.
As I say, because of the fact that I was prepared to set a monetary bond on her.
MR. TAIKEFF:  I don't dispute that, Your Honor. I would {3709} say that Counsel encouraged Your Honor to do it that way.
But there is no question it originated with us out of a desire to make sure there is a compulsion but no incarceration. That's true. I wanted the record as well as Your Honor to be clear.
THE COURT:  I don't want to go into this any further now.
You're making a certain, I was going to use the word insinuations, I guess that's too strong, you're questioning whether the government may have had anything to do with this or someone. I'd rather if you're going to go into something like that we do it when they're present.