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

FURTHER ON ATTEMPTS TO PROCURE MYRTLE POOR BEAR AS A WITNESS
TESTIMONY VOL21

 MONDAY MORNING SESSION
 April 11, 1977
Whereupon, the following proceedings were had and entered of record on Monday morning, April 11, 1977 at 9:05 o'clock, A.M., without the jury being present and the defendant being present in person:

THE COURT:  .......
Are there any other matters that should be taken up before the jury is brought in?
MR. TAIKEFF:  Yes, Your Honor.
THE COURT:  You may proceed.
MR. TAIKEFF:  I'm wondering if it would be possible for counsel for the defense to approach to advise Your Honor of certain matters concerning witnesses and their whereabouts.
THE COURT:  You may.
{3930}
MR. TAIKEFF:  Because I believe some course of action may be appropriate after the information is given.
(Whereupon, the following proceedings were had at the bench:)
MR. TAIKEFF:  Your Honor, yesterday I interviewed the father of Myrtle Poor Bear and one of her sisters, both of whom arrived sometime within the twelve hours before I interviewed them. They both independently informed me that Myrtle Poor Bear has been living at home in Allen, South Dakota and the saw her at home just before they came up here.
I am reporting that to Your Honor in the event that she is produced here today because it seems to me that it was sometime in the latter part of last week that the marshals office was notified by Your Honor that she might be arrested as a material witness.
THE COURT:  I think that was Friday.
MR. TAIKEFF:  Yes. And I would imagine that under the circumstances they should have taken immediate action of one kind or another. And by Sunday she apparently was still home. That makes a total of at least three people and possibly four people who have advised us that they have seen her in and around Allen, South Dakota throughout the preceding week.
Now, in addition to Your Honor eventually notifying the marshall service that she was to be arrested as a material witness there was also the obligation of the marshall service, {3931} as I understood it, to find her or stay in touch with her because she had earlier been declared a material witness. And Mr. Warren personally advised me that they had lost contact with her as of a week ago yesterday. That would be the 2nd, as of the 2nd of April I don't know what steps they took to make sure that they knew where she was or that she stayed in touch with her, and I don't know that any inquiry should be made at this particular time. But I'm telling Your Honor what I know and what I've experienced in the past week as soon as I learn things on this subject in the event that there may be the necessity to ask Your Honor for a hearing. I'm only doing this to protect our position and to make an accurate and complete record.
THE COURT:  I am not sure what authority you are referring to when you say there is an obligation of the marshal service to remain in touch with a material witness.
MR. TAIKEFF:  Well, she was supposed to keep in telephonic contact with the marshal service. And sometime early last week I went to see Mr. Warren to make inquiry about her appearance here because we were getting close to the time when we thought we would call her as a witness. And he informed me that the last contact they had had with her was on the preceding Sunday, which would be April 2nd.
THE COURT:  This is a requirement on her part.
MR. TAIKEFF:  This is a requirement on her part.
{3932}
THE COURT:  Right.
MR. LOWE:  You would think as a term of her being released on her personal recognizance.
THE COURT:  That's right. I'm not sure that that imposes any additional duties on the marshal service except to receive a telephone call.
MR. TAIKEFF:  It may be that that is true
THE COURT:  The telephone communication.
MR. TAIKEFF:  The telephone communication. I wasn't necessarily pressing the point.
THE COURT:  The reason I raise the question is because I am not just aware of anything in the statute that would require the marshals to monitor the whereabouts of a material witness. It seems to me that's the purpose of the bond.
MR. TAIKEFF:  Well, in any event there was some conversation with Mr. Warren in the course of that week from which I received information of the following kind:  That she's not anywhere to be found. So apparently that's a reflection of some effort on the part of the marshal service to locate her. I say apparently because I didn't make any specific inquiry.
THE COURT:  I don't know.
MR. TAIKEFF:  And she's apparently been in Allen, South Dakota all this time.
In any event I would imagine that she should be here {3933} today under the circumstances because they had a warrant for her arrest as of Friday. I don't know what time of the day that occurred, but even if it occurred towards the end of the day they could have arrested her over the weekend and brought her here. And I gather that she's not here.
THE COURT:  When did the warrant issue for --
THE CLERK:  Friday, Your Honor.
THE COURT:  Pardon?
MR. HANSON:  It's dated April 8th.
THE COURT:  Was it Friday afternoon? My recollection is that it was Friday afternoon.
MR. TAIKEFF:  I seem to recall the same thing, Your Honor.
MR. ENGELSTEIN:  I got the information about 2:30.
MR. TAIKEFF:  The other thing is that it was necessary for three witnesses to be produced with writs. Those witnesses are Ricky Little Boy, Marvin Bragg and Marion High Bull. I'm wondering if Mr. Ellison can inform us if they're within a reasonably close distance.
MR. ELLISON; Your Honor, I was informed this morning that Mr. Bragg and Mr. High Bull are in county facilities somewhere in this area. I don't know exactly where. And my understanding is that the marshal service can have both of these gentlemen present in Fargo by the latter part of the day. And we have instructed the marshals to bring them here {3934} as quickly as possible.
And I'm not quite, if they're here at the end of the day, it may seriously interfere with our expected order of call of witnesses and we would request that they be brought here as quickly as possible.
I don't know how far from Fargo they are. I was just told they were in county facilities in this area.
THE COURT:  Well, have you made inquiry of the marshals?
MR. ELLISON:  Not further inquiry than that because court was starting. I can do that at this time.
THE COURT:  Very well.
MR. TAIKEFF:  I have one other point that I want to advise Your Honor of. We expected the sister and the father of Myrtle Poor Bear to arrive at 2:45 on Saturday. These are arrangements which had been made with them by the telephone and we told them that they would be picked up at the airport and taken to their hotel. And exactly that time on Saturday I received a collect telephone call from Elaine Poor Bear, the sister, the sister who actually finally showed up on Sunday. And she said I'm calling to let you know that I'm not on my way to Fargo but that I'm still in South Dakota.
And I asked her why, and I will tell Your Honor what she said, not suggesting that she is accurate about it, only what she told me. She said that the FBI came to her house.
I then questioned her whether it could have been {3935} deputy United States marshals and she said, "Well, it could have been." I'm not sure whether they were FBI or marshals, but she seemed to understand the difference between the two. She said that he came to her house and told her and her father that it was not necessary for them to come to Fargo prior to Monday; that they were subpoenaed and that they didn't have to come over the weekend.
I told her that that was incorrect. I didn't know who these people were who spoke with her. I don't know what the basis of their inquiry was but that we requested her appearance before the time of giving testimony because we want an opportunity to interview in some detail. And she then promised that they would make an effort to get there the following day, Sunday. And indeed appeared the following day.
Now, I know nothing of the incident which occurred which was the basis of her collect phone call and statement. I am merely reporting to Your Honor and placing upon the record the experience I had at 2:45 P.M. on Saturday afternoon.
THE COURT:  What happened to those two investigators that were required for the work on the reservation? I would assume that they should have completed the interview down there.
THE TAIKEFF:  The existence of Elaine Poor Bear as a potential witness was not known to us until Jeanette Tallman came here and had her interview with me, not interview for the {3936} purpose of getting the information, but interview for the purpose of calming her down.
Your Honor may recall that when we were in chambers with Ms. Tallman I assured her that she should relax because the information she had given me produced a new potential witness; and that this new potential witness might be much more valuable than she on the very same subject. So I didn't know about Elaine Poor Bear's knowledge until either Thursday or Friday of last week.
THE COURT:  Very well.
MR. ELLISON:  Your Honor, I have some further information concerning Mr. High Bull and Mr. Bragg. I just spoke to Mr. Warren and he informs me that Mr. High Bull will be here by 11:30, and that Mr. Bragg will be here by 3:30. And that the reason for the two different times is a shortage of personal as far as U.S. marshal service is concerned. So that the same individuals will have to get Mr. High Bull and then go and get Mr. Bragg.
MR. TAIKEFF:  Just on the suggestion of Mr. Hanson, a word to Your Honor to explain why we started a little later today. I received a call from Mr. Hanson that a witness by the name of Gregory Dewey Clifford had shown up pursuant to a subpoena and that he appeared to be very upset. And Mr. Hanson thought that I should confer with him for a moment and calm him down. And I went into Mr. Hanson's office and spent a few {3937} minutes with him assuring him that he should be calm and that he would be called as a witness sometime later in the day. just wanted that explanation because o£ the late start.
THE COURT:  Very well.
(Whereupon, the following proceedings were had in the courtroom without the hearing and presence of the jury:)
{3938}
THE COURT:  Is Counsel ready for the jury?
MR. TAIKEFF:  Yes.
MR. HULTMAN:  Yes, Your Honor.
MR. TAIKEFF:  Your Honor, there are just two matters that I'd like to take up at this particular time concerning the appearance of the witnesses. I don't know whether it's clear to the government, I would like to make clear that the Special Agents Wood and Price who were on the tentative list should now be considered on the actual witness list and their appearance is required.
In connection with our assumption of the obligation of notifying the government as to our witnesses, we now have what we believe to be the final list of witnesses and with Your Honor's permission I would like to advise the government in open court on the record.
THE COURT:  You may.
MR. TAIKEFF:  Other than the special agents, we will call, and this is in approximate order of call which is a fact the government asked us to supply them with, William Muldrow, M-u-l-d-r-o-w, Marion High Bull, Marvin Bragg, Gregory Dewey Clifford, Robert Ecoffey, Marvin Amiotte, A-m-i-o-t-t-e, Florence Fire Thunder, Jeanette Tallman, Madona Slow Bear, Rickey Little Boy, Theodore Poor Bear, Elaine Poor Bear, Myrtle Poor Bear and Norman Brown.
Oh, yes. As mentioned last week, a Subpoena was {3939} served upon Special Agent Zigrossi of the FBI for his appearance and for him to bring a certain object with him, and as far as we know that the Subpoena was served and we have not heard from him. As far as we know he's not in Fargo. Perhaps the government would be in a position to make some inquiry about that.
MR. HULTMAN:  I don't know, Counsel. But I shall. The list you've just given me, it might be Friday before you got to him from the list I see now, about 30 witnesses. Would you kind of give me some indication as to which order, which group is going to come first, like starting with the first witness this morning.
MR. TAIKEFF:  I believe, Your Honor, I made the statement in such a way as to indicate the order in which the witnesses will be called from right now until we rest our case.
MR. HULTMAN:  You didn't mention the eight agents that we've talked about. Are they coming first or at the end?
MR. TAIKEFF:  Neither. They come where they fit in the logical sequence.
MR. HULTMAN:  Who is going to be the first witness today, Counsel? Are you willing to indicate that at least?