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

TESTIMONY OF MYRTLE POOR BEAR
{NO JURY PRESENT} COURT NEVER PERMITTED JURY TO HEAR THIS

MR. TAIKEFF:  Myrtle Poor Bear.
 MYRTLE POOR BEAR,
being first duly sworn on the sacred pipe, testified as follows:
MR. TAIKEFF:  May I inquire, Your Honor?
THE COURT:  You may inquire.
 DIRECT EXAMINATION
BY MR. TAIKEFF
Q  What is your name?
A  My name is Myrtle Poor Bear.
Q  Do you know who is the person sitting on the bench, the man with the gray hair to your left up there?
A  The judge.
Q  And you know that you are in court?
A  Yes.
Q  Do you know what court you are in?
{4585}
A  Yes.
Q  What court?
A  Federal Court.
Q  Are you nervous?
A  Not exactly.
Q  Are you frightened?
A  Yes, I am.
Q  What are you frightened of?
A  I don't know.
Q  Did you ever meet me before just now when you walked in the courtroom?
A  No.
Q  How about last night when you got off of the airplane, did someone come to get you at the airport?
A  Yes.
Q  Who was that?
A  You.
Q  Okay. Did we speak with each other last night?
A  Yes, we did.
Q  For about how long?
A  It's about fifteen to twenty minutes.
Q  Do you know an agent of the FBI by the name of Mr. Price?
A  Yes, I do.
Q  And do you know an agent by the name of Mr. Wood?
A  Yes, I do.
{4586}
Q  And did they ever have a conversation with you about June 26, 1975?
A  Yes, they did.
Q  Do you know a person by the name of Leonard Peltier?
A  No.
Q  Would you look to your left and there is a distinguished young man there with gray hair and next to him there is another man. Do you know the other man, the one with the dark hair and the moustache?
A  Yes.
Q  Do you know him personally or do you know who he is?
A  I know who he is.
Q  Who is he?
A  It's Leonard.
Q  How do you know it's Leonard?
A  I don't know.
Q  Is it because he's sitting there and he doesn't look like a lawyer?
A  Probably.
Q  Did you ever see him in your life?
A  No.
Q  Before just now?
A  No.
Q  Do you remember the first time that either Agent Price or Agent Wood came to talk to you about June 26, 1975?
{4587}
A  You mean the first time?
Q  Go ahead. Do you want me to ask more questions or do you want me to repeat my question?
A  Repeat it.
Q  You said either Agent Price or Agent Wood or maybe both of them came to see you about June 26, 1975 about what happened on June 26, 1975. I want you to tell us what happened the first time either Wood or Price or both of them came to see you about June 26.
A  You mean what happened at Oglala? I don't understand.
Q  Okay. Let me start at another point.
Would you turn around and look at that big chart behind you which we call Government Exhibit 71. Do you recognize that in any way?
A  No, I don't.
Q  Were you ever shown anything that looked like that by the FBI?
A  Yes.
Q  Where was that?
A  Federal building in Rapid City.
Q  Do you remember when that was?
A  No, I don't remember.
Q  From where you are sitting can you see that model in the far left-hand corner from where you are sitting now?
{4588}
A  Yes.
Q  Did you ever see that before?
A  I think I did.
Q  Where did you see that?
A  In Rapid.
Q  You say "Rapid," you mean Rapid City, right?
A  Right.
Q  Did Agent Price or Agent Wood ever tell you that they heard that you were at Jumping Bull's when the agents were killed?
MR. CROOKS:  Your Honor, before this question is answered I'll interpose an objection that this is clearly a leading question even in an offer of proof it is not proper on cross-examination.
THE COURT:  Sustained.
MR. TAIKEFF:  All right.
Q  (By Mr. Taikeff) Were you ever at the Jumping Bull area on the Pine Ridge Reservation?
A  No.
Q  Did you ever live with Leonard Peltier?
A  No.
Q  Did you see the woman who was sitting in the witness seat when you came in with Mr. Ellison about four minutes ago?
A  Yes.
Q  Do you know her name?
A  Yes. I just met her last night.
{4589}
Q  Where did you meet her?
A  Where did I meet her?
Q  Yes. Where?
A  On the plane.
Q  Did you speak with her on the plane?
A  Yes.
Q  And why did you speak with her on the plane?
A  I wanted to know who she was.
Q  Was that the first time in your life you had ever seen her?
A  Yes.
Q  Now I want you to try to remember signing some papers for the FBI. Do you remember signing some papers for the FBI?
A  Yes, I do.
Q  Do you remember the month and the year?
A  No, I don't.
Q  Do you remember how long ago it was?
A  It was about a year.
Q  About a year did you say?
A  Yeah. I don't really remember.
Q  Who took care of those papers?
A  The FBI.
Q  What were the names of the people who took care of the papers for the FBI?
A  The two FBI agents.
{4590}
Q  I beg your pardon?
A  The two FBI agents.
Q  Which two?
A  Bill Wood and Dave Price.
Q  And did they ever tell you anything about June 26th, 1975?
A  Yes, they did.
Q  What did they tell you?
A  They just asked me if I was there and telling me stuff about the killings.
Q  And what did you say to them?
A  I told them I didn't know much about it.
Q  Do you know a person by the name of Jimmy Eagle?
A  Yes, I do.
Q  Where does he live?
A  I don't know where he lives now. He used to live in Pine Ridge.
Q  Do you know anything about guns?
A  No, I don't.
Q  Did anybody ever tell you anything that you supposedly did at Jumping Bull's on June 26th, 1975?
A  No, I don't remember.
Q  I want to show you three pieces of paper that we've put numbers on, 115, 116 and 117. I want you to take a look at that first piece of paper. It's got two separate pages. First {4591} look at the first page. Have you ever seen that piece of paper before or anything that looked like it?
A  Yes, I did.
Q  Do you remember when you saw it for the first time?
A  No. I don't remember.
Q  Do you remember approximately how long ago you saw it for the first time?
A  About a year and a half.
Q  Now I'm going to show you the second page. Did you ever see that page before?
A  Yes.
Q  There's a typewritten name here that says, can you read that typewritten name?
A  Right.
Q  What does it say?
A  Myrtle.
Q  What does that say?
A  Poor Bear.
Q  And is there a signature above that name?
A  Yes, there is.
Q  Is that your signature?
A  I don't think so.
Q  Did you ever go into the courthouse in Rapid City and sign a piece of paper in front of a woman clerk?
A  Yes. I think I did.
{4592}
Q  Okay.
Let me just move the microphone so it can pick up your voice.
How many different pieces of paper did you sign or how many different times did you go into that courthouse and sign a piece of paper in front of the woman clerk?
A  About two times.
Q  Two times?
A  Uh-huh.
Q  Could it possibly have been three times?
A  No.
Q  Did you read the piece of paper that you signed before you signed it?
A  No.
Q  Did anyone read it to you?
A  No.
Q  Did anybody tell you what was in the piece of paper?
A  No.
Q  What did you think you were signing when you signed it?
A  I don't know.
Q  Why did you sign it?
A  Because they told me to.
Q  Who told you to?
A  The agents.
Q  Which agents?
{4593}
A  Bill and Dave.
Q  Do you know what it says in this piece of paper that has the number 115 on it?
A  Yes.
Q  What does it say? Without looking at it. I'll let you look at it but I want to know whether you know what's in it before you look at it.
A  I don't.
Q  Would you read it to yourself, please. Take all the time you need and when you're finished let me know.
Did you finish reading it?
A  Yes, I did.
Q  Is that the first time in your life you ever read that piece of paper?
A  I don't know. I can't remember.
Q  Did you understand what it said?
A  Yes.
Q  Is it true what it says in there?
A  No.
Q  Do you want to take a little rest from the questioning?
A  Yes. I'd like to.
Q  All right. Do you want to stay here in the courtroom?
A  No.
MR. TAIKEFF:  Your Honor.
MR. CROOKS:  Your Honor, may we approach the bench?
{4594}
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. CROOKS:  Your Honor, the United States would object to this witness being excused from the courtroom. If Counsel wishes to take a short period to let her nerves calm down, that's fine but we object to having this witness taken out of the courtroom.
MR. HULTMAN:  Especially under the nursing care of Mr. Ellison.
MR. TAIKEFF:  I'm not even going to give dignity to that by responding to it.
THE COURT:  Well, the objection is sustained. We will stand at ease and give her a chance to recover her composure but she will not be taken out of the courtroom.
(Whereupon, the following proceedings were had in the courtroom without the hearing and presence of the jury:)
THE COURT:  The Court will stand at ease for a few moments.
(Recess taken.)
THE COURT:  The Court will come to order.
MR. TAIKEFF:  Should I resume the questioning, Your Honor?
THE COURT:  You may resume the questioning.
Q  (By Mr. Taikeff) Miss Poor Bear, now I'm putting another {4595} piece of paper in front of you which is No. 116. As you can see, it looks a lot like No. 115 but it is a different piece of paper. Can I turn to the second page?
A  (Witness nods affirmatively.)
Q  Where it says Myrtle Poor Bear with typing there is a handwriting above that. Is that your signature?
A  I don't think so.
Q  Would you take a look at what it says in this piece of paper, this affidavit, and then I'll ask you a question or two.
Did you ever see that piece of paper before?
A  I can't remember.
Q  Is it true what it says in that piece of paper?
A  No.
Q  Now I'm going to show you another affidavit. This is the last one I'm going to show to you. This one's numbered 117. It's also two pages long. Would you tell me whether you ever saw this before?
A  I don't think so.
THE COURT:  What was her answer?
MR. TAIKEFF:  I don't think so, Your Honor.
Q  (By Mr. Taikeff) Do you see where it says in typewritten words Myrtle Poor Bear?
A  Uh-huh.
Q  Do you see some handwriting above that?
{4596}
A  Yes, I do.
Q  Is that your signature?
A  I don't think so.
Q  Now one more time. This is the last time. Would you read this affidavit to yourself and then I'll ask you a question about it.
{4597}
Q  Did you ever read that affidavit before?
A  I don't remember.
Q  The third page of the affidavit is a copy of a picture of a person. Did you ever see that picture before just now?
A  It is now.
Q  Before that, had you ever seen that picture before, some other time?
A  Yes.
Q  Where did you see that picture?
A  Federal Building in Rapid.
Q  And who showed it to you?
A  The FBI Agents.
Q  Did anyone say anything at the time they showed it to you?
A  They said that was Leonard Peltier.
Q  They said that was Leonard Peltier?
A  Yes.
Q  Did they ask you if that was Leonard Peltier?
A  No, they just told me.
Q  How many times did you talk to Agent Price about June 26, 1975?
A  I don't remember.
Q  Can you tell us approximately how many times?
A  A lot of times.
Q  I am going to stand over here so you can turn a little bit towards the microphone, so the Judge can see you when you are {4598} testifying.
You said a lot of times. Can you tell us more than 10, less than 10?
A  More than 10.
Q  More than 20, less than 20?
A  I would say less than 20.
Q  Can you say how many hours you spent with them altogether?
A  A lot.
Q  What did they tell you about June 26th?
A  They told me about the shooting.
Q  What else?
A  I don't know.
Q  Do you know how the agents were killed?
A  No, I don't.
Q  Did anyone ever tell you how the agents were killed?
A  No.
Q  Did you ever hear the name Aaron Yellow Robe?
A  Yes, I did.
Q  Where did you hear it?
A  From the agents.
Q  When?
A  I don't remember when.
Q  Do you want to take a drink of water?
A  No, I don't.
Q  Are you feeling all right?
{4599}
A  Yes, I am.
Q  Last night did you tell me you were frightened?
A  Yes, I did.
Q  What were you frightened of?
A  I don't know. I am scared of the Government.
THE COURT:  What was her answer?
MR. TAIKEFF:  I don't know. I am scared of the Government.
Q  (By Mr. Taikeff) Did anyone from the Government ever say anything to you to make you afraid?
A  The agents are always talking about Anna Mae.
Q  What did they say about Anna Mae?
A  Oh, they just would talk about that time she died.
Q  What did they say about it? You can tell the Judge, it is all right.
(Counsel confer.)
MR. TAIKEFF:  May counsel approach your Honor?
THE COURT:  You may.
(Whereupon, the following proceedings were had at the bench:)
MR. TAIKEFF:  Your Honor, I would ask that your Honor briefly advise her that she is under oath and that you want to hear what she has to say providing it is the truth, and that she has nothing to fear by telling the truth.
She is very frightened, your Honor. She told me last {4600} night she is afraid that she is going to be killed, and that's why she is so upset at this particular moment.
MR. CROOKS:  Yes, I suspect that she is afraid she is going to be killed. It sure isn't from the FBI.
Your Honor, I would object at the bench to going into anything concerning Anna Mae Aquash for the reasons -- even on the offer of proof -- it has no relevance or bearing to this matter whatsoever. I have no idea what she is going to say, but I think it is completely immaterial and I don't see that there is any justification for going into that in any shape or form.
MR. TAIKEFF:  Well, it influenced her conduct in the past in connection with this matter. I think it is highly relevant.
MR. LOWE:  The FBI used it as a direct threat to her.
MR. CROOKS:  I would ask counsel to state, first of all, what they intend to elicit on that. They certainly know what she is going to say.
MR. TAIKEFF:  I will tell you what she told me last night. At first she refused to speak to me on the way back from the airport. Mr. Engelstein was a witness to all that went on, and finally she told me that the reason she didn't want to talk is that she was afraid she was going to be killed; and I asked her, "Who are you afraid of?" and she said, "The agents," and I said, "Why are you afraid of the {4601} agents?" and she said that they told her that they were going to do the same thing to her that happened to Anna Mae Aquash.
MR. CROOKS:  This is so preposterous, your Honor, This is the same statement that counsel made in court two or three days ago that was supposed to have been made by the witness, and now he tells us it was said last night.
MR. TAIKEFF:  That was based on what her sister told us. Her sister told us she was hiding away and that she was petrified, afraid of the agents.
MR. CROOKS:  Your Honor, this is why the United States has been objecting to this matter going before the jury in any manner, shape or form.
This witness, as the Court well knows, was a prospective Government witness. There is no question that we had considered calling her as a witness. We did not for various reasons, including the garbage that is coming out now.
But what this witness told me in preparing for trial is that she was extremely frightened, that people had been hounding her for a year and a half to change her testimony; and now we come along and we have got a new thing now, apparently she is afraid of the FBI. I specifically asked her when I interviewed her whether or not she was -- the FBI had done anything to her, harmed her in any way, {4602} threatened her in any way. She stated unequivocally "no". As a matter of fact, she spoke very highly of the two agents Price and Wood.
This is exactly what the United States has objected to from the start, that here we are creating a straw man that they are attempting to set up. We are going to get into all sorts of testimony about the supposed threats. Then the Government has to respond, prove that it is pure garbage; and counsel expects that to go to the jury, to prove nothing, to prove absolutely nothing.
MR. TAIKEFF:  Aren't we in the same position with respect to the evidence adduced against our client, and we are here on trial, aren't we?
MR. CROOKS:  We did not offer this witness' testimony in any manner, shape or form against your client.
Counsel seems to be going to the old conspiracy, and now apparently the Deputy Clerk of Court in Rapid City is also part of the grand conspiracy to create false evidence.
They have elicited from this witness that the Deputy Clerk of Court, when she swore her as a witness, did not swear the witness, in effect accusing the Deputy Clerk of Court of misfeasance in office.
MR. TAIKEFF:  I never elicited that testimony.
MR. CROOKS:  That's exactly what you elicited.
{4603}
Your Honor, are we now to get the Deputy Clerk of Court from Sioux Falls in to say that she did her job when she swore the witness, she swore the witness and the witness affirmed the affidavit?
MR. TAIKEFF:  I never elicited that testimony. You weren't paying attention.
MR. CROOKS:  You weren't listening to the answers.
MR. TAIKEFF:  She wasn't sure that was her signature. She remembers going to the court and appearing before a female Clerk on several occasions.
MR. CROOKS:  She never remembered signing the affidavit and --
MR. TAIKEFF:  (Interrupting) She did not say the former, you are fantasizing.
THE COURT:  Did you wish to say something?
MR. SIKMA:  I spoke with this witness about a year ago in preparation for this trial, and in addition prior to the trial in preparation for the first trial.
This witness advised me at that time that a number of people from her own -- she was afraid to go back to her home because the people from the Wounded Knee Defense-Offense Committee had been hounding her ever since she made a statement.
She testified in another case they had threatened to take her life on a number of occasions. She was afraid {4604} to go back and said that the only way that she would be able to ever go back is if she would agree to say that the FBI had forced her to say what she said.
MR. TAIKEFF:  Why don't you indict those people instead of just talking about it? That's a serious violation of Federal criminal law.
MR. CROOKS:  Counsel, if I can find the evidence, rest assured that our job and duty will be performed in this District.
MR. TAIKEFF:  Did you convene a Grand Jury to investigate that allegation, instead of making these assertions, when you have the power to indict the responsible parties, if such a thing ever took place?
THE COURT:  Just a moment. You have made one assertion as to her statement to you, as to her reason for her fears and counsel for the Government has now made a statement as to her statement to them, as to her reason for the fears.
MR. TAIKEFF:  I don't deny that the statement was made. I am asking whether he took action upon it.
MR. SIKMA:  I wasn't a U. S. Attorney in that District; I was a Special Assistant assigned to this case.
MR. CROOKS:  Your Honor, we are getting way off of what we came up here for.
THE COURT:  That was the point I was about to make.
MR. CROOKS:  As far as I am concerned, the Anna Mae {4605} Aquash matter should not be inquired into in any manner, shape or form, it had nothing to do with this case or even these proceedings; and I think it is grossly prejudicial. I would assume that counsel is speaking for the galleries, not for the Court, because it has no relevance to even these proceedings.
MR. TAIKEFF:  You can make that assumption. I am telling you that. According to what she has to say, that is what in part influenced her earlier conduct in connection with this matter. She volunteered that fact to me.
MR. HULTMAN:  Could I address one issue, and that is, your Honor, that the position of -- my position is that I made a decision based upon everything -- the analysis I could make was that she was not a competent witness. That is the reason I did not call her, and I put it on the record right now; and I think it is fairly obvious.
Mr. Lowe in his opening statement put it even more bluntly than I have just put it right now. Counsel has indicated that on numerous other occasions, and that is the specific reason why I did not call her. I want the record very clear.
MR. TAIKEFF:  That's exactly our position.
MR. LOWE:  This is an offer of proof.
MR. HULTMAN:  This is my one time.
MR. TAIKEFF:  One lawyer conduct it on this side, and {4606} one lawyer on that side.
MR. HULTMAN:  I have a right to make that determination at this time, and that is the determination I made.
That has nothing to do with what she had stated, and the things that I have knowledge of -- the things that were stated in the records, the affidavit, et cetera, is a basis in which she could have been and might well be a material witness, without any question; but I made an analysis, not back in 1967, I made an analysis in preparation for this trial. Even after counsel here had spoken to her and the responses that she gave to him and the story she told him was exactly the story she had told before as far as the 302's and as far as the affidavits. I still made a determination based upon everything I had, and I have a right to make that determination; and I want the record to show what that determination was, and I think it is within my responsibilities as a lawyer that were I to bring that witness on this witness stand, who in my judgment at this time I didn't feel was a competent witness, then I would be doing something other than being responsive as to the person. That is why I did not call her. That has nothing to say as to what her posture was at any time in the past or that I served any conclusions as to what her posture was in the past. I made that determination in preparation here, and that is the reason {4607} and that is why I say it is not relevant.
MR. TAIKEFF:  Your Honor, our very point is that what your Honor sees and hears today is precisely the kind of response and reaction that this person was capable of a year and two months ago, and that's going to be part of our proof on the offer of proof, and the actions of the FBI in connection with her and in connection with taking her affidavit and having her sign the affidavit is what we are trying to prove to your Honor.
THE COURT:  Well, you may continue the interrogation.
MR. TAIKEFF:  Thank you, your Honor.
(Whereupon, the following proceedings were had in the courtroom:)
Q  (By Mr. Taikeff) I want to go back to the name, Aaron Yellow Robe. You said a few minutes ago that the agents told you that name, am I right about that?
A  Yes.
Q  What did they tell you about that name?
A  Told me Leonard had gotten him.
Q  Did they tell you anything else about him?
A  No.
Q  Did you ever go to the Jumping Bull area with the agents?
A  Yes, I did.
Q  How many times?
A  About two times.
{4608}
MR. TAIKEFF:  Now, may the witness step down for the purpose of approaching the model, your Honor?
COURT:  She may.
Q  (By Mr. Taikeff) Would you be kind enough to walk over there to that model?
Would you take a good look at it, please?
A  (Examining).
Q  Would you now go back to the witness seat?
{4609}
Q  Now, I think you told us that you saw that model in Rapid City; is that right?
A  Right.
Q  Did you ever see the place that that model looks like?
A  No.
Q  When you went to the Jumping Bull's with the agents how did you know it was the Jumping Bull's?
A  They told me.
Q  And how much time did you spend there?
A  About fifteen minutes.
Q  And what did you do while you were there?
A  They were showing me around.
Q  What did they show you?
A  They showed me where the corral and stuff were at.
Q  I'm sorry, I couldn't hear you.
A  They showed me where the corral and stuff were at.
MR. TAIKEFF:  Could I have that answer read back?
THE COURT:  Showed her where the corral and stuff were at.
MR. TAIKEFF:  I see.
Q  (By Mr. Taikeff) Did they show you anything else?
A  The houses.
Q  Were they saying anything to you when they showed you these things? Did they say any words?
A  They told me it was the Jumping Bull's lived in that white {4610} house.
Q  Anything else?
A  No.
Q  Did anybody ever say anything to you about having to remember certain things?
A  Yes.
Q  Who?
A  The agents.
Q  What did they say about having to have to remember certain things?
A  They told me to remember where Harry Jumping Bull lives.
Q  Did they tell you why you had to remember that?
A  No.
Q  Did you ever hear any discussion about anybody, any talk about anybody about planning to kill FBI agents?
A  No.
Q  Do you know somebody named Dino Butler?
A  No.
Q  Did you ever hear that name before?
A  Yes, I did.
Q  When did you hear it?
A  Last year.
Q  Where did you hear it?
A  The FBI's told me.
Q  Where were you?
{4611}
A  In Rapid.
Q  Did you ever hear the name Bob Robideau?
A  Yes, I did.
Q  Where did you hear that name?
A  The agents.
Q  When?
A  Last year.
Q  What did they say to you, if anything, about Dino Butler?
A  They asked me if you knewed him.
Q  And what did you say?
A  I told them I didn't know him.
Q  And did they say anything else?
A  No.
Q  What did they say to you about Bob Robideau?
A  They asked me if I knew him.
Q  And what did you say?
A  I told them no.
Q  Did they say anything to you after that?
A  No.
Q  Do you know any other FBI agents besides Price and Wood?
A  Yes, I do.
Q  Do you know the name of any other FBI agent?
A  Mr. Skelly.
Q  How do you know Mr. Skelly?
A  I met him one time at the FBI office.
{4612}
Q  And did anything happen between yourself and Mr. Skelly?
A  No, I don't remember.
Q  Did you ever go to Cedar Rapids, Iowa?
A  Yes, I did.
Q  When did you go there?
A  Last year.
Q  Was it in the winter or the summer?
A  I think it was beginning of summer.
Q  How did you get there?
A  The FBI's took me up.
Q  In a car or a plane?
A  No, in a plane.
Q  Was that Price and Wood?
A  Right.
Q  Before you went to Iowa did they take you anyplace?
A  No.
Q  How old is Ricky Little Boy?
A  I don't know.
Q  Do you know anyone named Ricky Little Boy?
A  I heard of his name, but I never saw him before.
Q  Where did you hear that name?
A  From Bill and Dave.
Q  From where?
A  Bill and Dave.
Q  Bill and Dave?
{4613}
A  Right.
Q  I want to show you something. I'm holding Government Exhibit 34-AA in my hand. Can you see it?
A  Yes, I can.
Q  Have you ever seen it before?
A  No.
Q  Have you ever seen anything that looked like this before?
A  No.
MR. TAIKEFF:  May the record reflect that I'm carrying Government Exhibit 37-A.
Q  (By Mr. Taikeff) Can you see what I'm holding?
A  Yes, I can.
Q  Have you ever seen that before?
A  No.
Q  Or anything that looked like it?
A  No.
Q  Did you ever hear the name M-16?
A  No, I never did.
Q  Do you remember June 26, 1975?
A  Yes, I can.
Q  Did you see anybody killed that day?
A  No.
Q  Before you went to Cedar Rapids, Iowa, did anybody talk to you about testifying there?
A  I don't remember.
{4614}
Q  Did anybody ever tell you that you had to testify in Cedar Rapids, Iowa?
A  Yes.
Q  When was that?
A  Last year.
Q  Do you know who that was?
A  The agents.
Q  Do you know which one?
A  Dave and Bill.
Q  Are you afraid of Agent Price?
A  I don't know.
Q  Are you afraid of Agent Wood?
A  I don't know.
Q  Did the FBI ever give you any money?
A  Yes, they did.
Q  How much and when?
A  I don't remember, That time I was going to Iowa.
Q  That was for your travel expenses?
A  Right.
Q  Did they ever offer you any other money?
A  No.
Q  Did they ever offer you anything else?
A  Yes, they did.
Q  What did they offer you?
A  They said they would give me a new name.
{4615}
Q  Anything else?
A  Yeah. They were going to send me to a different state.
Q  To a different what?
A  City, or state.
Q  Did the agents ever talk to you about the possibility of your going to jail?
A  Yes, they did.
Q  What did they say about that?
A  (No response.)
Q  Please tell the judge what they said about that.
A  They said that I could go to jail for court conspiracy.
Q  Did they say what kind of conspiracy?
A  No, they didn't.
Q  Did they say how long you could go to jail for?
A  About fifteen years.
Q  Anybody from the FBI ever talk to you about AIM or the American Indian Movement?
A  Yes. The agents did.
Q  What did they tell you about the American Indian Movement?
A  They told me that they were going to kill me.
Q  Did Mr. Wood ever say anything about the subject of getting away with killing people?
A  I think he did.
Q  Do you recall what he said?
A  He said that they could get away with killing because they {4616} were agents.
Q  Did this have anything to do with signing the papers?
A  I don't know.
Q  I didn't hear you, I'm sorry.
A  I don't know.
Q  When you went to the court in Rapid City and you went before the woman clerk did you spend a lot of time there?
A  No.
Q  Did anybody say anything to you about why you were not spending a lot of time?
A  No, I don't remember.
Q  Do you remember how long you were in front of the clerk or in the room with the clerk?
A  No, I don't.
Q  Do you know the man in the blue suit sitting at the Government table?
A  Yes, I do.
Q  What's his name?
A  Bob, Bob Sikma.
Q  Did you ever speak with him?
A  Yes, I did.
Q  Where?
A  In Iowa.
Q  When you talked with him did he ever show you those pieces of paper that we have put the numbers on which are still in {4617} front of you, 1l5, 116, and 117?
A  I don't remember
Q  Did you tell him anything about whether you were going to testify?
A  I don't remember.
Q  Did you tell him you weren't going to testify?
MR. CROOKS:  Your Honor, I'll object to this. Counsel didn't get the answer he thought he was going to get and then he restates it as a leading question and I object to it.
THE COURT:  Sustained.
MR. TAIKEFF:  Your Honor, I asked that question pursuant to Rule 611 (C) of the Federal Rules of Evidence.
THE COURT:  It was not necessary to ask that question to develop the testimony. She had already given her answer. Rule is not applicable.
Q  (By Mr. Taikeff) What did Mr. Sikma say to you when you spoke to him?
MR. CROOKS:  That's been asked and answered, Your Honor. The witness said she didn't recall.
THE COURT:  Sustained.
MR. TAIKEFF:  Then perhaps I can refresh her recollection, Your Honor.
MR. CROOKS:  With what, your testimony, Counsel?
MR. TAIKEFF:  No.
THE COURT:  You may refresh her recollection if you {4618} have something appropriate to do it with.
MR. TAIKEFF:  I have a good faith basis for doing it.
THE COURT:  You will not refresh her recollection by making an assertion of fact to her or an assertion of the answer. I'm interested in this witness's testimony, not yours.
MR. TAIKEFF:  I understand that, Your Honor. But the law says that in order to refresh a person's recollection you may do anything that might trigger the recollection.
THE COURT:  I have ruled.
Do you have an appropriate document to refresh her recollection? It may be used.
Q  (By Mr. Taikeff) Did you testify last summer?
A  No, I didn't.
Q  Why not?
A  I don't know.
Q  Do you know whose decision that was?
MR. CROOKS:  Your Honor --
MR. TAIKEFF:  I asked if she knew.
THE COURT:  She may answer the question.
A  The agents.
Q  (By Mr. Taikeff) Do you see the man who's sitting at the the end of the Government table, the man wearing the glasses?
A  Yes.
Q  Do you know his name?
{4619}
A  No, I don't, but I met him before.
Q  Where?
A  Here.
Q  When you say "here" you mean in Fargo?
A  Right.
Q  Did you have any conversation with him?
A  Yes, I did.
Q  What was that conversation about?
A  He told me that the trial was going all right and that he wasn't going to use me.
Q  Did you ever see Mr. Crooks, the man in the dark glasses, in another city other than Fargo, North Dakota?
A  Yes. In Rapid City.
Q  When was that?
A  That wasn't too long ago.
Q  Couple of months ago, one month ago, could you tell us?
A  About a month ago.
Q  Was anybody else there when you talked to Mr. Crooks?
A  I think his wife was.
Q  Who was?
A  His wife.
Q  There was a woman in the room?
A  Right.
Q  Anybody else?
A  Bill, but he left.
{4620}
Q  Who was that person?
A  Bill Wood. He's an FBI agent.
MR. TAIKEFF:  Could I have a moment to confer with Mr. Crooks, Your Honor?
THE COURT:  You may.
(Mr. Taikeff and Mr. Crooks conferred.)
Q  (By Mr. Taikeff) Was that woman doing anything in that room?
A  No. She was just sittin' in there.
Q  She writing anything?
A  No.
Q  Were you ever under the Witness Protection Program of the United States Marshal Service?
A  Yes, I was.
Q  Did you ask for that protection?
A  The second time and not the first time.
Q  Do you know how you got it the first time if you didn't ask for it?
A  I don't understand.
Q  Why did you get the protection service the first time?
A  First time? The first time I got it was, I think it was last year.
Q  Do you know who got it for you?
A  The agents.
Q  Do you know where the marshal's office is on this floor?
{4621}
A  Yes, I do.
Q  Do you remember one time you were in that office and this man here (indicating), Mr. Lowe, and I came into that office and you were sitting on the couch?
A  Yes, I do
Q  Did anybody tell you anything before we came in?
A  The U. S. marshal said that I didn't have to talk to you guys if I didn't want to.
{4622}
Q  How many times did you go to the Rapid City office of the FBI?
A  I don't remember. Could be about four times.
Q  Do you remember whether anybody was writing anything down when you were there?
A  I don't remember.
Q  You talked to Agent Skelly one time, didn't you?
A  I don't remember.
Q  Did you tell him that you were living in the big house?
MR. CROOKS:  Your Honor --
THE COURT:  Sustained. She said she didn't remember that she talked to him.
MR. TAIKEFF:  That's precisely what I'm doing, attempting to refresh her recollection from the government 302.
MR. CROOKS:  Your Honor, there has been no proper foundation for refreshing her memory with anything.
MR. TAIKEFF:  She says she can't remember and I have a government document which purports to relate what occurred that day. What could be a better way to refresh a witness' recollection.
THE COURT:  Very well. On that basis I will let him ask the question.
MR. CROOKS:  Your Honor, it seems to me the proper foundation is ask her if she's seen the statement, if the {4623} statement refreshes her memory. I assume Counsel didn't just get out of law school. That's the ordinary way to refresh somebody's recollection with a document, not read it to her.
MR. TAIKEFF:  I'm greatly complimented, Your Honor, Mr. Crooks doesn't think I just got out of law school. Perhaps if I ask one question it might refresh her recollection about --
THE COURT:  You may if it's not a leading question. If you do not assert the answer you want.
MR. TAIKEFF:  I'm going to take it right out of the government document and ask whether she said that.
THE COURT:  The government is correct insofar as the proper way to refresh her recollection. You may show her the document and ask her to read it and ask her if that refreshes her recollection.
MR. TAIKEFF:  All right.
Q  (By Mr. Taikeff) I'm holding a piece of paper that's been marked No. 118. I want you to start here and read the first sentence up to the date May, 1975 to yourself, then I want to ask you a question about it.
Did you ever say that to Agent Skelly or anything like that?
A  No.
MR. CROOKS:  Your Honor, I had understood he was going to be showing her a document to refresh her recollection. I {4624} don't quite understand what the procedure is. He's holding up the document and asking her to read it and then asking her if she saw it.
MR. TAIKEFF:  I'm following --
MR. CROOKS:  I assume he can ask her whether or not she spoke to Agent Skelly and if so what she said.
MR. TAIKEFF:  I'm following the procedure suggested by the government which I objected to but I'm doing it nevertheless.
THE COURT:  The question was asked and answered.
MR. TAIKEFF:  Yes. I want to proceed but there was apparently an objection to my proceeding.
THE COURT:  You may proceed.
MR. TAIKEFF:  Thank you, Your Honor.
Q  (By Mr. Taikeff) I want you to read the next two sentences down to the word "area."
Did you ever see either of those two things to Agent Skelly?
A  No.
Q  Read the rest of the paragraph to yourself down to the words "I surrender."
Did you ever say any of those things to Agent Skelly?
A  No.
Q  As far as you know did any of the things that are in that paragraph, did they ever happen?
{4625}
A  No.
Q  Now read the next little paragraph which ends with the words "that day" to yourself.
Did you ever tell any of that --
A  No.
Q  -- to Mr. Skelly?
Now read the rest of the report to yourself. Not out loud.
Did you finish reading the document with the No. 118 on it?
A  Yes.
Q  Did you tell any of that to Agent Skelly?
A  No.
Q  Do you know of your own personal knowledge whether anything in that report, No. 118, is true or not?
A  No. It's not true.
Q  Now I have another report. This one has No. 119 on it. Do you remember if you ever talked in the Rapid City office with Agents Wood and Price when somebody was taking down notes?
A  No. I don't remember.
Q  Do you remember being in the Rapid City office on, at the end of March, in fact, March 31 of last year, with Agents Wood and Price?
A  I don't remember.
Q  I would like you to read to yourself this report which is {4626} No. 119 and after I'll ask you a few questions.
Did you say anything about Madonna Slow Bear to Agents Wood or Price?
A  No. They mentioned her first.
Q  They mentioned her name to you?
A  Right.
Q  Did you ever mention Jimmy Eagle to them?
A  No.
Q  Did you ever mention Rickey Little Boy to them?
A  No.
Q  Would you then read to yourself the report which is No. 119 and then I'll ask you a few questions afterwards.
Are you finished?
A  Yes, I am.
Q  Did you ever say any of the things that are in that report, No. 119, to either Agent Wood or Agent Price or both of them?
A  No.
Q  Do you know whether anything in that report of your own personal knowledge is true?
A  No. It's not true.
Q  Sometimes when you were giving your testimony you said Dave and Bill. Who were you talking about?
A  The FBI agents.
Q  Do you know why the FBI agents came to see you about the June 26 matter?
{4627}
A  No, I don't.
MR. TAIKEFF:  Could I have a moment to confer with Mr. Lowe, Your Honor?
THE COURT:  You may.
{4628}
MR. TAIKEFF:  I would have three points to cover, your Honor.
Q  (By Mr. Taikeff) You told us a little while ago, Miss Poor Bear -- can you hear me?
A  Yes, I can.
Q  You told us a little while ago that someone said something about charging you with conspiracy, do you remember that?
A  Yes, I do.
Q  Do you know what the word, "conspiracy", means?
A  I know, but I don't know how to explain it.
Q  Well, try your best. Were you talking about any special kind of conspiracy?
A  No.
Q  Were you talking about a conspiracy that had anything to do with June 26th?
A  I don't know.
Q  Where did you hear that word, "conspiracy", for the first time?
A  From the agents.
Q  Did anybody ever tell you that you, you killed the agents?
A  They asked me if I was there.
Q  What did you say?
A  I said "no".
Q  Are you afraid at this moment of anything?
A  Yes, I am -- excuse me -- yes, I am.
{4629}
Q  What are you afraid of?
A  I am afraid of the FBI's.
MR. TAIKEFF:  I have no further questions.
THE COURT:  The Court will recess until 4:10.
(Recess taken,)
(Whereupon, the following proceedings were had in the courtroom, the Defendant being present in person:)
THE COURT:  Will there be cross examination?
MR. CROOKS:  Yes, there will be, your Honor.
MR. TAIKEFF:  I believe the Marshal went out to get the witness, your Honor.
(Witness returns to the witness stand.)
MR. CROOKS:  May I proceed, your Honor?
THE COURT:  You may proceed.
 CROSS EXAMINATION
By MR. CROOKS:
Q  Myrtle, I would like to hand you back a series of documents which counsel had you look at before, and these are the same ones that he was showing you earlier, is that right? Look through them if you would, just to see if they are the same ones.
A  (Examining).
Q  Are those the same ones that Mr. Taikeff handed you before?
A  Yes, they are.
Q  Now, you said earlier that you have talked to me on two {4630} occasions, is that right?
A  Right.
Q  And one of them is in Rapid City?
A  Right.
Q  And that was about a month ago or so, a little over a month ago, and the other one was here in the Marshal's office in court?
A  Right.
Q  Is that right -- now, have I seen you since you left the Marshal's office that time?
A  No.
Q  So I haven't seen you since you have come back?
A  Right.
Q  All right, now when we talked in the Marshal's office, there was another attorney that was there with me, wasn't there?
A  Yes, there was.
Q  And is he the man in the gray suit behind Mr. Hultman, right against the railing, if you recognize him?
A  Yes.
Q  That appears to be the same man, Mr. Vosepka?
A  Yes.
Q  All right. Now, when we talked, I told you that the Government wasn't going to use you as a witness, isn't that right?
A  Right.
{4631}
Q  And I told you that the reason was that the case was, I believe you stated earlier, that the case was going pretty good, and we didn't think we would need you, isn't that what I told you?
A  Right.
Q  Now, did I ask you whether or not you wanted to be a witness?
A  I don't remember.
Q  Well, do you recall having told me at that time that you preferred not to be a witness?
A  I don't remember.
Q  You don't recall that?
A  No, I don't.
Q  All right. Going back to your appearance here, from the time that you left the Marshal's custody when you were here before on our subpoena, where did you go?
A  I went home.
Q  And that's back to Allen?
A  Right,
Q  And did you live in your family home there, I mean your regular home?
A  Yes.
Q  All right, and from that time until the present time did anybody talk to you about your testimony?
A  No.
{4632}
Q  Nobody did at all?
A  No.
Q  All right. When was the first time that you talked to anybody again about your testimony after you talked to me?
A  I don't remember.
Q  Well, what about last night, you talked to Mr. Taikeff, didn't you?
A  Oh, yes, I did.
Q  All right. You also talked to Mr. Ellison?
A  Yes.
Q  And what time, do you remember what time you got in on the plane?
A  Got in at 12:00 last night.
Q  Around 12:00?
A  Right.
Q  Mr. Taikeff was there to pick you up?
A  Right.
Q  Was Mr. Ellison with him?
A  Yes.
Q  And they talked to you then for --
MR. TAIKEFF:  (Interrupting) May I confer with Mr. Crooks for a moment, please?
THE COURT:  You may.
(Counsel confer.)
Q  (By Mr. Crooks ) Well, whoever it was, one of the other {4633} defense lawyers?
A  Yes.
Q  Well, just so we aren't designating the wrong person, would you point out which one of them that was?
A  The one with the glasses.
Q  So it was Mr. Engelstein, not Mr. Ellison that met you at the airport?
A  Right.
Q  What about the individual with the ponytail sitting in the blue suit, did you see last night?
A  No.
Q  Did you see him at all last night?
A  No.
Q  Did you see him today?
A  Right, this morning.
Q  O.k. When you got in from the airport, where did you go?
A  I went to a hotel.
Q  Whereabouts?
A  Here in town.
Q  Do you recall which one it was?
A  No.
Q  O.k. Did you go anywhere else?
A  No.
Q  How long did you talk to Mr. Taikeff last night?
A  15 or 20 minutes.
{4634}
Q  15 or 20 minutes?
A  Right.
Q  And did you tell him all that you told us here in court today in that 15 minutes?
A  No.
Q  Where did he get the information that he had asked you about, did you talk to somebody else?
A  No.
Q  All right. Myrtle, when you were home in Allen, did members of your family talk to you about this?
A  No.
Q  O.k. Now, you were talking about two agents and you said it was Bill and Dave, is that right?
A  Right.
Q  And this is Bill Wood and Dave Price?
A  Right.
Q  All right. When you talked to me in Rapid City, Bill Wood was there for part of the time, wasn't he?
A  Right.
Q  All right. Do you recall me asking you if any agents had threatened you or mistreated you in any way at Rapid City?
A  No, I don't remember.
Q  Well, didn't I ask you when we first started talking if any of the agents had ever threatened you or mistreated you?
A  No, I don't remember.
{4635}
Q  You don't recall that?
A  No.
Q  And did I ask you about Bill Wood?
A  I don't remember.
Q  Well, didn't you tell me that Bill Wood was your friend?
A  No, I don't remember.
Q  You don't recall having told me that?
A  No.
Q  Didn't you also say that Dave Price was your friend?
A  I don't remember.
Q  You don't remember having told me that?
A  No.
Q  All right. What about the interview that I had with you in Rapid City, didn't you tell me that Leonard Peltier was standing over the bodies and he was pointing the gun toward the agent who had just fallen?
A  I don't remember.
Q  Well, are you saying you don't remember or that you didn't tell me that?
A  I don't know.
Q  Well, did you tell me something like that?
A  I don't remember at all.
Q  Well, do you recall telling me when you were in Rapid City that Madonna Slow Bear was there?
A  No, I don't. I don't remember.
{4636}
Q  Well, didn't you tell me when you were in Rapid City that Madonna Slow Bear was there with you when you escaped and got on a horse and then went to get your car?
A  I don't.
Q  You don't remember telling me that?
A  No.
Q  What about Madonna Slow Bear, you said today that you had never seen her before last night on the plane, is that your testimony?
A  I don't understand.
Q  Well, didn't you testify earlier that you had never seen Madonna Slow Bear before?
A  No, I never did.
Q  Well, when did you first meet Madonna Slow Bear?
A  Last night.
Q  Last night. Do you recall telling me in Rapid City that you had seen Madonna Slow Bear a couple of weeks before I talked to you?
A  No.
Q  Do you recall telling me that Madonna Slow Bear had told you that if you were willing to be a witness, that she would too?
A  No, I don't remember.
Q  Do you recall telling us or me where we could find Madonna Slow Bear?
A  No, I don't remember.
{4637}
Q  Do you recall my having told you that we had never been able to find Madonna Slow Bear?
A  No.
Q  And you never told me anything about Madonna Slow Bear?
A  I don't remember.
Q  You don't remember.
A  No.
Q  Well, do you remember having told me anything about June 26th when we were down in Rapid City?
A  I don't remember.
Q  You don't remember telling me anything about June 26th?
A  No.
Q  And what were we talking about?
A  I don't know.
Q  Well, we were talking about something for about an hour and a half or two hours, weren't we? What were we talking about?
A  I don't know.
Q  Well, was there somebody else with me?
A  There was a lady with you.
Q  And did I introduce you to that lady?
A  I don't remember.
Q  Well, did I tell you who she was?
A  No, I don't remember.
Q  Did I tell you why she was there?
A  No.
{4638}
Q  Was Bill Wood in the room?
A  No.
Q  Was Bill Wood in the room at any time when we were talking in Rapid?
A  No.
Q  Never was?
A  I don't remember.
Q  Well, were there any other agents there?
A  I don't know.
Q  Where were we talking?
A  In the Federal Building.
Q  And we were in the FBI office, weren't we?
A  Um-hum.
Q  And when we were sitting there talking, did I tell you why I had come to Rapid City?
A  I don't know.
Q  Didn't I tell you I had come there because of what you had told us before, and that you were a prospective witness?
A  I don't remember.
Q  Well, do you remember anything that we said in Rapid City?
A  I don't think so.
Q  Well, Bill Wood brought you into the office, didn't he?
A  Um-hum.
Q  And you had been staying in a hotel, and he went and got you, didn't he?
{4639}
A  Um-hum.
Q  And he brought you back, and as a matter of fact, Bill Wood was the one that introduced you to me, isn't that right?
A  Um-hum.
Q  Did Bill Wood threaten you or beat you to get you to come in to see me?
Can you answer the question?
A  No.
Q  Bill Wood has never beaten you or threatened you at any time, has he?
Can you answer that question?
A  No.
Q  David Price hasn't beaten you or threatened you at any time either, has he?
Can you answer that, Myrtle?
A  No.
{4640}
Q  As a matter of fact, Mr. Price has investigated a lot of things that you have gone to him about such as being beaten up by people and raped by people?
A  He never did.
MR. TAIKEFF:  I didn't hear.
Q  (By Mr. Crooks) He never investigated things for you?
A  No.
Q  Haven't you made complaints about things that have happened to you and Dave Price went and investigated them for you?
A  No.
Q  How about Bill Wood?
A  No.
Q  Never made any complaints to the FBI?
A  No.
Q  When we talked in the marshal's office when I released you as a government witness, didn't you tell me that some people in your home area had threatened you if you were a government witness, threatened bodily harm to you if you would testify? Didn't you tell me that in the marshal's office?
A  When was that? The last time?
Q  Yes.
A  I don't know.
Q  Didn't you tell me when I talked to you at Rapid City that some people from your home area had threatened to do harm to you if you testified to the government?
{4641}
A  If I did I don't remember.
Q  Didn't I ask you at the end of the interview if you would like to go back into protective custody and didn't you say yes, you would, you would like to go to California to visit your brother?
A  I don't remember.
Q  Didn't you go to California to visit your brother?
A  Uh-huh.
Q  And the government paid for the ticket, didn't they?
A  Uh-huh.
Q  And that was set up at your request, wasn't it?
A  Uh-huh.
Q  And when you went out to California, nobody forced you to go to California, did they?
A  No.
Q  And when you went to California, it was because you wanted to go and asked me to set it up for you, isn't that right?
A  I don't remember.
Q  Do you remember how long we talked in Rapid City?
A  No.
Q  After I left you talked to Bill Wood then, didn't you, for awhile?
A  I don't know.
Q  Didn't Bill Wood after I'd talked to Bill and you had requested to go to California, didn't he then come in and make {4642} arrangements to help you go into the marshal's program, protection program and go to California?
A  Uh-huh.
Q  And that's what you wanted to do, wasn't it?
A  I don't know.
Well, it wasn't my idea that you go to California, was it? I didn't even know you had a brother in California, did I?
A  I don't know.
Q  Neither did Bill. We had to make some calls down to the reservation even to find out where your brother lived, didn't we?
A  Uh-huh.
Q  When you came to Fargo I never told you at any time that you shouldn't talk to the defense lawyers, did I? Didn't I say that that was your choice on whether you wanted to talk to them or not?
A  Yes.
Q  And you told me you didn't want to talk to them, didn't you?
A  Yes.
Q  And didn't you tell me that the reason you didn't want to talk to them was because they were the people that were harassing you?
A  I don't remember.
Q  Now you said earlier you didn't know Leonard Peltier before {4643} walking into the courtroom, isn't that right?
A  Right.
Q  Myrtle, why was it when you walked into the courtroom that you gave Leonard Peltier a big smile?
A  I don't know.
Q  You just picked him out as a person you wanted to smile at?
A  Probably.
Q  Has anybody threatened to do something to you if you did not change your story?
A  No.
Q  Nobody has even talked to you?
A  No.
Q  Nobody even suggested it?
A  No.
Q  So from 15 minutes of talking to Mr. Taikeff you decided to change your story entirely, is that right?
A  I don't know.
Q  Myrtle, when you made out these affidavits to the woman that signed here, Betty B. Barry, she's a clerk of the United States District Court, isn't she?
A  I don't know.
MR. TAIKEFF:  I have to object to the form of the question, Your Honor, because of the assumption of fact which is not in evidence.
{4644}
THE COURT:  Sustained.
MR. CROOKS:  Well, Your Honor, I'll then state for the record I'm reading from Exhibit 115 and I'm pointing to the signature line, "Betty B. Barry, deputy clerk of the United States District Court, district of South Dakota."
Q  (By Mr. Crooks) That's a name that appears there, isn't it?
A  Uh-huh.
Q  And that's the person you signed that affidavit before, isn't it?
A  I don't know.
Q  You don't even remember signing that, do you?
A  No.
Q  Do you remember a woman in the federal building in the courthouse, in the federal building asking you to raise your hand and swear to tell the truth?
A  No.
Q  You don't recall that ever happening?
A  No.
Q  Is the same thing true with everyone of these affidavits, all three of them, do you remember signing any of those?
A  I remember signing only two.
Q  Well, how did that happen when you signed those two? How did it happen that you got your name on there and the deputy clerk of court put her name on there with her seal?
A  I don't know.
{4645}
Q  Didn't she ask you to be sworn to tell the truth and the whole truth and nothing but the truth or words to that effect?
A  No. I don't remember.
Q  Didn't she have you raise your right hand and swear to tell the truth?
A  I don't remember.
Q  Well, it wasn't Mr. Wood or Mr. Price that signed that paper, was it?
A  I don't know.
Q  Well, would you look at it. Do you see their names there? Do you see their name on any of those affidavits?
A  No.
Q  It was the deputy clerk of court that signed it, wasn't it?
A  I don't know.
Q  You said you remembered signing two of these affidavits. How was that done?
A  The agent asked me to sign them.
Q  The agent asked you to sign them?
A  Right.
Q  And they were the only ones there when you signed them?
A  I don't remember.
Q  Do you remember the deputy clerk of court being there at all?
{4646}
A  No.
Q  Didn't somebody have you read those affidavits, swear to tell the truth and then you signed them, isn't that the way it worked?
A  No.
Q  How did it work?
A  I don't know.
Q  Why were you signing these affidavits?
A  I don't know.
Q  Well, did Bill Wood threaten to harm you or hurt you if you didn't sign?
(No response.)
Q  Can you answer that question?
MR. TAIKEFF:  Your Honor, I'd like the record to reflect a 45 second pause measured by the courtroom clock between the last question and the following question.
Q  (By Mr. Crooks) Can you answer the question, Myrtle?
A  I was forced to sign both of these papers.
Q  By whom?
A  By the agents.
Q  By which agents?
A  They said one of my family members was going to be hurt if I didn't do it. By Dave Price and Bill Wood.
Q  Dave Price and Bill Wood?
A  Right.
{4647}
Q  And is this the same Bill Wood that you told me in Rapid City was a good friend of yours?
A  Right.
Q  The same guy you said was a good friend?
A  He's not a good friend.
Q  You didn't consider Bill Wood a friend?
A  No.
Q  Do you consider him a friend now?
A  No.
Q  Did you ever consider him a friend?
A  No.
Q  Didn't you tell me in Rapid City that you did?
A  I don't remember.
Q  When did they tell you that they were going to harm you or your family by signing that if you didn't sign it?
A  That wasn't too long ago. I don't know. Probably last year sometime.
Q  And where were they when they said that?
A  They came down the house.
Q  Came down to the house?
A  Right.
Q  And they had the papers with you there?
A  Yeah, they did.
Q  And then did you sign it in front of them after?
A  I don't remember.
{4648}
Q  Well, you said that they threatened to harm you or your family if you signed it and I'm asking you, did you sign it then?
A  Yes, I did.
Q  You signed it right there on the spot down at your house?
A  Right.
Q  Then when did this lady put her name on it?
A  I don't know.
Q  That would have been sometime later or was that already on there?
A  I don't know.
Q  Was there any other name on there when you signed it?
A  I don't remember.
MR. CROOKS:  We have no further questions.
 REDIRECT EXAMINATION
BY MR. TAIKEFF:
Q  Miss Poor Bear, you said you signed something at home. Was it one of these affidavits that you signed at home?
A  I don't remember.
Q  Could you say whether it was any one of them?
A  No. I don't know, remember which one.
Q  Do you remember Mr. Crooks, that's the man with the dark glasses, asked you a couple of times this afternoon about whether you ever were threatened by Agent Price or Agent Wood. Do you remember him asking you those questions?
A  Which one?
Q  The man with the glasses.
{4649}
Do you remember he said to you did Agent Price ever threaten you?
A  Yes, I remember.
Q  Do you remember that when he asked you that question you remained silent for a very long time every time he asked you that question?
A  Yes.
Q  Why did you remain silent and not answer his question?
A  Because they did threaten me.
MR. CROOKS:  I'd like the answer to reflect she also answered no to each of those questions.
MR. TAIKEFF:  Your Honor, the record clearly reflects he interjected the question, "Can you answer that," and it was to the last question she said no on each instance.
MR. CROOKS:  That's the point --
MR. TAIKEFF:  Not to the original question but after the lengthy pause he said, "Can you answer that," and she said, "No."
Q  (By Mr. Taikeff) Why couldn't you answer these questions? Tell everybody why you were unable to answer that question.
MR. CROOKS:  Your Honor, Your Honor. I'll object to the colloquy of Counsel. He's supposed to be on redirect, not cross-examination.
MR. TAIKEFF:  I'd like to have the original questions of Mr. Crooks read at this time, Your Honor, so that I do not {4650} improperly and without sufficient foundation pursue any further questioning, if I may.
THE COURT:  The Court recalls the question and answer was as Mr. Taikeff indicated. If Mr. Crooks wants the question read back I'll be glad to have the court reporter read it back.
Q  (By Mr. Taikeff) Miss Poor Bear, will you please tell us whether Agent Price ever threatened you.
A  Yes, he did.
Q  What did he say to you?
A  He told me that they were going to plan everything out and if I didn't do it I was going to get hurt.
Q  Did anybody else ever say that to you from the FBI?
A  Bill Wood.
Q  Where were you for the last week?
A  I was at home.
Q  Where in your house? Any special part of your house?
{4651}
A  No, no.
Q  Did you know that there was a subpoena for you that you were supposed to come here?
A  Yes, I did.
Q  Were you hiding from that subpoena?
A  No.
MR. TAIKEFF:  No further questions.
MR. CROOKS:  We have no redirect, Your Honor.
THE COURT:  You may step down.
THE CLERK:  Counsel, you have 118 and 119.
MR. TAIKEFF:  Yes, we do, sir.
Your Honor, that's our offer of proof.
THE COURT:  And as I understand it you are offering that as proof for the purpose of impeaching the entire Government case, not impeaching any particular witness, not impeaching any particular exhibit that was offered?
MR. TAIKEFF:  As I said in response to that question yesterday, Your Honor, that is not a correct statement of our position.
THE COURT:  All right. You may restate your position.
MR. TAIKEFF:  It is offered for both purposes, it is offered to show a pattern of conduct as represents certain unique and special items of evidence which have been introduced by and through certain witnesses. There is a coincidence between, and I don't mean that in the sense of accident, but I {4652} mean it in the actual sense of the word. There is a coincidence between certain pieces of evidence that have come in through certain witnesses and certain elements in what it is that the FBI says Myrtle Poor Bear said she saw.
There is a certain theme here that one would expect to find if a certain number of people were at the same place at the same time making normal observations. But the funny and perhaps tragic part of this continuum is that there are a number of serious defects in it. One witness has already testified before Your Honor that none of it was known to her, she didn't know the defendant, she was never at the scene on June 26th or otherwise; but got to sign affidavits which claimed on their face that she was privy to those particular items of evidence.
Tomorrow morning we will call a witness who will say that he was threatened to give a certain piece of evidence which fits right in. It's a duplicate of a major facet of that testimony that was purportedly available for Myrtle Poor Bear and which she denies any knowledge of and knows anything about.
Jimmy Eagle was a person who purportedly confessed in the presence of a number of people on three different occasions; and on each occasion, according to the people to whom he purportedly confessed, he was saying the very same thing. That would have been the fact had Myrtle Poor Bear really been {4653} there, really seen those things and really reported them to the FBI. And in this very case we have Michael Anderson testifying to some of those facts.
Now, that can't be a coincidence, Your Honor. That has got to be a result of the efforts of a limited number of people who have made a conscious decision that Leonard Peltier is really guilty and it doesn't matter, we have the evidence to prove it, we believe he's guilty, we'll make sure that we have the evidence to prove it. So we rebut by circumstantial evidence certain specific key pieces of evidence which have been introduced against Leonard Peltier and we also offer it to show a pattern of conduct on the part of certain agents of the FBI so that the jury may consider whether they are prepared to find to a moral certainty that another human being should spend the rest of his life in a prison under these circumstances.
THE COURT:  Mr. Crooks?
MR. CROOKS:  Your Honor, in the hundreds of lawsuits that I've ever tried that has got to be the most absurd argument that I have ever heard in my life. Counsel is attempting to do exactly what the United States said at the outset of this offer of proof. They are attempting to set up a strawman and knock the strawman down and suppose to, and argue then that that proves something. Proves absolutely nothing, except that this poor witness has been hounded close, {4654} and indeed probably in fact to committing perjury.
Her testimony on the stand indicates the influence that someone has had on her. When that woman can talk to Government counsel for two hours in a comfortable interview and have no recollection of the conference by an attorney who is not completely inexperienced at interviewing prospective witnesses, I'm not sure what more I can say about her testimony.
But, Your Honor, this is nothing more than an attempt to put the FBI in general on trial for some supposed misdeeds that the paranoid defense team has thought up.
Your Honor, we have faced these allegations again and again and again in this trial without any substantiation, and frankly I'm a little shocked that attorneys would participate in it.
MR. TAIKEFF:  Your Honor, I just want to note one thing. It is true that the FBI has faced allegations of this kind again and again and again and they've been proven every single time eventually.
MR. HULTMAN:  Oh, come now, Elliot, come now. Every single case?
THE COURT:  When counsel were at the bench during this witness's testimony Mr. Crooks made the statement that this was the witness that Mr. Lowe in his opening statement referred to as being of mental imbalance. During the recess I looked up the statement that Mr. Lowe made and I'll quote {4655} it. "And finally we believe that you will find the witness, at least one witness, whose mental imbalance is so gross as to render her testimony unbelievable."
Now, I'll ask, Mr. Lowe, were you referring to this witness?
MR. LOWE:  Your Honor, I will state very clearly that as is the case in all opening statements I was stating the testimony that I at that point expected would come in concerning Myrtle Poor Bear. And I had, of course, at that point not talked with Myrtle Poor Bear. We had never been able to have an interview.
I made that as a good faith statement, I believed that that was what the evidence would be, and at this point we now have the witness herself. And sometimes opening statements turn out to be accurate and sometimes they don't. But that statement was in good faith and it was made without Myrtle Poor Bear. It was not testimony obviously.
And she was also expected to be a Government witness. She at one time was on the Government witness list. At some point they took her off. It may have been before that or after that, but we fully expected, particularly if the Government's case did not gel as to some of the witnesses that had early on, that we would see Myrtle Poor Bear.
And she was a Government witness last year, never called, but was on the witness list. She was a Government witness {4656} this year on the witness list, and while she was not called at that stage in the trial we had every expectation that she would be called because we believed that the Government would not be able to place the defendant at the scene by any other witness.
We had not had an interview with Mike Anderson at that point. We didn't know his expected testimony. The person was referred to Myrtle Poor Bear.
THE COURT:  Now, under the Criminal Justice Act you have had two attorneys plus two additional attorneys plus two additional investigators and you've had them for some considerable period of time, have you not, available to you?
MR. TAIKEFF:  Since the time of their appointment as appointees and in the case of most of them, if not all of them even prior to that time, they worked on a voluntary basis.
THE COURT:  And, Mr. Lowe, you have been through all of the evidence in this case, and you have been through a trial that last six weeks a year ago this summer, a year ago next summer.
MR. LOWE:  That is not accurate, Your Honor. I was through some of the evidence last summer, perhaps a large amount of it, but for example Mike Anderson never testified last summer. Some of the other testimony this year has been different because it's more, or because the details were {4657} different.
But I certainly was familiar generally with the case. I was familiar generally with the documents concerning Myrtle Poor Bear because we had them last year. In fact, Your Honor, the Government delivered those documents to us as 3500 material last year showing not only that she was on the witness list but at one point they expected to call her.
THE COURT:  The Court noticed that this witness was under obvious great mental stress. She, her testimony was interrupted at least three times by an emotional reaction of some kind.
The Court is also aware of the extreme difficulty that was encountered in attempting to bring her back into the court at the request of the defendant.
The Court observed that she had a complete lapse of memory on cross-examination relating to recent events.
The Court also is taking into consideration the fact that this witness was not used in the presentation of the Government's case which defense seeks to impeach by her testimony the three FBI agents who interviewed her were not used in the presentation of the Government's case:  Mr. Wood, Mr. Skelly and Mr. Price.
And the Court concludes that credibility of this witness for any purpose is so suspect that to permit her testimony to go to the jury would be confusing the issues, {4658} may mislead the jury and could be highly prejudicial.
MR. TAIKEFF:  Your Honor, in light of Your Honor's --
THE COURT:  The offer of proof is denied.
MR. TAIKEFF:  Your Honor, in light of the Court's findings I would like to point out to the Court that at the inception of this matter I said that one of the positions that the defense would take in this case is that the use by the FBI of this person to sign the affidavits in question, because of the observations which Your Honor has made and because her condition has been that way essentially throughout her adult lifetime, and that's why I asked Your Honor for the video tape of her demeanor in this courtroom.
{4659}
I originally said to your Honor that the very act of using this witness to sign those affidavits constituted, even if she came forward on her own, put aside the question of whether she was threatened or coerced, that the very act of taking this witness' version, putting into an affidavit and submitting that affidavit, knowing it was going to be used in a judicial proceeding, constituted misconduct on the part of the FBI in connection with this particular Defendant.
THE COURT:  I am concerned that much of her mental imbalance may arise from fear.
MR. TAIKEFF:  She says fear of the FBI, your Honor, not anybody else.
THE COURT:  I am concerned that much of her mental imbalance may arise from fear. I think the record is not at all clear as to where that fear arises from.
MR. TAIKEFF:  That's a matter for the jury, your Honor, and a matter for the Government's rebuttal.
THE COURT:  It is a matter for the jury if it were otherwise relevant; but under the Rules of Evidence, this evidence would not otherwise be relevant.
MR. TAIKEFF:  I would like your Honor to consider for a moment the testimony that was adduced from the FBI Agents.
Now, I know that there is a presumption that Agents of the FBI act in accordance with law; but surely your Honor {4660} would not take the position that they never do any wrong.
THE COURT:  That is not the position that I took. The position that I stated is that it is my observations -- and you will find out after this case is over what part of those observations are based on because I will make a record of it -- my observation is that this witness is under great fear, and I think the record is totally unclear as to the source of that fear.
MR. TAIKEFF:  She was absolutely clear on that particular subject. The only hesitation of any kind that was reflected and which I tried to note, if possible, on the record, was when she was asked specifically about threats from Price and Wood. On a number of occasions she paused between 15 and 30 or more seconds.
But let me ask Your Honor to please consider the testimony from the FBI agents. Your Honor has heard a great deal in this case about 302's and FBI procedure; and if your Honor had never presided over any other criminal case involving the FBI, I would assume that by this point your Honor was inundated and saturated by that information.
Now, consider what the testimony was. There were three affidavits. There were dated February 19th, February 23 and March 31. There is no 302 for the February 19 affidavit. There is a 302 which appears in some way to correspond to the February 23rd affidavit, except {4661} interestingly enough, it shows an interview of February 24, and then there is a 302 which corresponds to the third affidavit, both documents being dated March 31.
Where did Myrtle Poor Bear come from? Can you imagine with what your Honor has heard so far about the practices and procedures of the FBI that a witness such as Myrtle Poor Bear, who was not only an eyewitness to the killings according to those documents, but was privy to the planning, the advance planning, would suddenly walk in or appear in the life of the FBI and give an affidavit directly and immediately to be sent to Canada, and there would not be a 302 as thick as I am tall detailing everything she could remember about anything since the day she was three years old?
I wish that I were talking to an individual at this moment who was not a United States District Judge, so that I could fully express how ludicrous it is to believe that that event could have occurred that way. It is not possible. It is not within the realm of human experience that that could have happened. There must be a 302. There must be some explanation of where she came from. There must be an explanation of why they say there is no 302.
Ah, yes, I am reminded of something in the affidavit of February 19th which perhaps suggest why there is no 302. On Page 2 of that affidavit it merely says that she {4662} was a witness to the planning, that she left immediately after the planning and didn't see the Defendant again until August of 1975 when she saw him on the Rosebud Reservation. No wonder there is no 302 any longer in existence, your Honor, because that 302 was prepared like every other document in connection with Myrtle Poor Bear and had to be gotten rid of because it was something they couldn't live with.
Now they come along and they manage by some magical process to come up with the contents of the affidavit of February 23, no 302, no explanation.
Your Honor talks about Myrtle Poor Bear's lack of memory. How about Agent Price's lack of memory.
I once said at the beginning of this case that my experience shows that from time to time law enforcement officers have convenient lapses of memory, and your Honor became somewhat incensed that I made such a rash statement. Well --
THE COURT:  (Interrupting) Mr. Taikeff, you are misstating the record.
MR. TAIKEFF:  Your Honor thought my statement was inappropriate, that I suggested that officers of the law --
THE COURT:  (Interrupting) I have suggested from time to time that you have made inappropriate statements, but your statement in that respect was a misstatement of the {4663} record.
MR. TAIKEFF:  That is my best recollection, and I say it in good faith.
THE COURT:  I know you are saying it in good faith. I am telling you it is a misstatement of the record.
MR. TAIKEFF:  You and I again have a factual disagreement. I expect that your Honor's statement is valid, and is more valid than mine.
THE COURT:  I have ruled.
MR. TAIKEFF:  I understand, sir. I am calling your attention to the area of the testimony to which your Honor did not address himself. Your Honor said absolutely nothing about the documentation and what it suggests; and then if I may just complete my argument with respect to the documentation:
Mysteriously and without any explanation we have a 302 the next day.
Now, we have had an explanation from Price. When it suits him, he gives one explanation; when that explanation and its implications are called to his attention because of an apparent contradiction, he suddenly doesn't know anything, obviously the sign of a truth teller.
Why was there an affidavit on February 19th -- and he was asked -- and no 302? It was because of the extradition. Affidavits are better than 302's. Why settle for {4664} a Cadillac when you can get a Mercedes Benz?
Then again on February 23 there is another affidavit without a 302, ostensibly the same explanation; and then the next day when they didn't one, they had a 302. Wonder of all wonders.
Now, by the time they get the third affidavit -- maybe the rules change every day at the FBI -- they get the third affidavit, they have another 302.
Your Honor, that alone should make your Honor suspicious, that alone should make your Honor feel conscience stricken that the jury isn't going to get a chance to consider that.
I would like to ask your Honor for a ruling as to whether her testimony or the entire episode, however your Honor views it, would be irrelevant even if she were a believable witness.
THE COURT:  The Court has ruled.
MR. LOWE:  Your Honor, may I just expand on that one moment with the indulgence of the Court?
In doing an appellate record, if that should ever come to pass in this case, it is going to be extremely important for the Appellate Court to know whether you are ruling simply she is not a believable witness as a matter of law. Even if she is a believable witness, it would be irrelevant. It may, among others, affect what belief would be given on the appellate record, whether it would be harmless error or not.
{4665}
And I would respectfully urge Your Honor to clearly, I thought Your Honor said it was irrelevant anyway. If that was Your Honor's ruling I would think this should be clear on the record you were ruling that.
THE COURT:  I think you stated it correctly. The Court rules, number one, that it was irrelevant and, number two, that the witness was not a believable witness.
MR. LOWE:  Thank you, Your Honor.
THE COURT:  That is related to a collateral matter.
MR. LOWE:  Yes.
THE COURT:  Are there any other matters that should be brought before the Court out of the presence of the jury?
MR. LOWE:  Yes, Your Honor. I have one I'd like to approach the bench on.
(Whereupon, the following proceedings were at the bench:)
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