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

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VISITATION DIFFICULTIES  B

THE COURT:  The reason I asked Counsel to come in is because the Clerk of Court received a call this morning from a Patricia O'Day relating to one of the jurors and I instructed the Clerk to have her present it in affidavit form which has been done. I will pass it around to Counsel.
 MR. HULTMAN:  Just read it, Elliot.
 MR. TAIKEFF:  May I do that, Your Honor?
 THE COURT:  Surely
 MR. TAIKEFF:  It's dated 3/17/77. "I hereby swear that on the 10th day of March, 1977 I in the presence of two witnesses at a coffee break heard Shirley Klocke say these words during our conversation about her eminent jury selection process in the Peltier case:  She said, quote "`I am so prejudiced against Indians.'" unquote. She also made this statement back in the office in more general terms.
 I swear this statement to be true as I was prompted by no one to make this statement and make it as a matter of principle to my own conscience." Signed Patricia O'Day, witness to the conversation. And it is sworn to before a notary public of this state.
 THE COURT:  She names two persons who apparently were witnesses to the conversation.
 MR. TAIKEFF:  I'm sorry. I did not read that correctly.
{119} It doesn't say to the conversation it says, "witnesses to the conversation," and then two people have signed their names. They appear to be Margaret Loss, L-o-s-s and Carol Schatzke, S-c-h-a-t-z, or S-c-h-a-t-z-k-e.
 May I return it to Your Honor?
 THE COURT:  Unless you wish to.
 MR. HULTMAN:  Could I look. Fine. Thank you.
 Your Honor, could I at least make a query or a response of some kind introductory?
 THE COURT:  That's the reason I asked Counsel to come.
 MR. HULTMAN:  First of all, Your Honor, of course, I know nothing about what we're looking at and I would like to inquire, and again with no, certainly no reflection on Counsel, and Counsel understands this, but --
 MR. TAIKEFF:  The answer to the question is no, we know nothing about it.
 MR. HULTMAN:  Your Honor, see, the problem is we went through exactly the same thing when you have a juror forced out, as I understand just from the discussions that have gone on, and things that have been said and done up to this time. I have no knowledge of it other than what I've learned in the courtroom and discussion with Counsel.
 When you have two groups, as Counsel has indicated, and, one, I'm not sure who makes up one and certainly the second one is so large that maybe it's 500 or 1,000 people that have {120} an interest in this case of some kind that are all over the courthouse, they are all over the community, I run into them every place I go, which have to do, as I say, and it's no reflection or any way directed in terms of counsel or control. I clearly understand that and Elliot Taikeff and I understand that he has no control over that. But it seems to me, Your Honor, that if an inquiry of this kind is to be made, there are two precautionary matters and one is, and that's the reason for my motion I filed a little bit ago with reference to the sequestration as far as witnesses from this point and looking to people that are in the courtroom, that I in no way am implying that searching matters of this kind and interposing is going on. But because of the numbers of people that are involved and their interest in it, in the case out here, it seems to me that the Court has to be doubly cautionary in the terms of, one, finding out the source and how matters of this kind are generated, and I'm not suggesting, because I have no knowledge, that is the case here and I don't want the inference of that kind. I know Counsel understands that that's the motive in which I state what I state now.
 I think unless a careful approach is made from that kind, and maybe even some precaution from the Court's standpoint alone, and that's the very reason why again the government requested the sequestering of this jury, because of the opportunity of people to interject themselves and create a problem of the {121} kind here where there is a response of some kind which then leads to a hearing and leads to discussions and so forth. So all I'm saying is, Your Honor, one, I have no knowledge of any kind as to what this event is, but, two, I wanted to state to the Court the genesis of a general problem because it was the same kind of problem that, John, if you remember, we had a discussion --
 MR. LOWE:  That's a complete misstatement of what happened last summer. We never had that last summer.
 THE COURT:  I'm, excuse me. I'm not going to get into what may or may not have happened last time.
 Let me make a comment at this point. The only thing I'm concerned about is whether or not this juror did actually make that statement at the time. That's the reason I asked for a sworn affidavit from this person as to whether or not this juror did in fact make such a statement and unless Counsel have some different ideas, I propose that she be brought in sometime today in chambers and shown this statement and asked to comment on it.
 MR. TAIKEFF:  I have an idea in conflict with that, Your Honor.
 THE COURT:  All right.
 MR. TAIKEFF:  I think we should not confront the juror now that she's a sitting juror because it may have some affect upon her as a juror.
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 I would propose that instead we bring in the three people whose names appear there. That would accomplish two purposes:  first, it would avoid the necessity of, or possibly avoid the necessity of any confrontation with the juror unless it becomes absolutely necessary. Secondly, it would allow defense counsel to discover for the first time the identity of this person and exactly who she is and what relationship, if any, she has to the defendant supporters, if I may use a term of no great precision, and perhaps satisfy Mr. Hultman that the defendant or the defense team did not come here with legions who have infiltrated this state. There is an implication of a sinister conspiracy --
 MR. HULTMAN:  I didn't mean that.
 MR. TAIKEFF:  Not that Counsel has any connection with it or responsibility for --
 THE COURT:  I think I understood what Mr. Hultman said and I understand what you're saying.
 What is your response to the suggestion made by Mr. Taikeff?  MR. HULTMAN:  I have no objection, Your Honor. I think the Court --
 THE COURT:  Well, I'm not going to bring anybody in without the lawyers being present.
 MR. HULTMAN:  I understand.
 MR. TAIKEFF:  I understand.
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 THE COURT:  So I do think --
 MR. HULTMAN:  I have no objection, Your Honor, to that.
 THE COURT:  Mr. Taikeff's solution is probably a better solution than mine.
 If there are three persons that will, if the other two people substantiate or corroborate what has been said here, then I think my duty is to make a decision as to what should be done as far as this juror is concerned.
 MR. HULTMAN:  Your Honor, could I ask a question? I would take it from the procedure that's been suggested that it would be the Court that would first make the inquiry of these particular witnesses in the presence of all of us.
 THE COURT:  Yes.
 MR. TAIKEFF:  I would hope so.
 THE COURT:  That is my intention. I would make the inquiry.
 MR. HULTMAN:  Yes.
 THE COURT:  I want it to be done on the record and the lawyers be present.
 MR HULTMAN:  Government would have no objection and join in it.
 MR. TAIKEFF:  I would like to voluntarily bind myself not to contact those people or to have any of my investigators or other legal workers contact them. I'd like these people to come into the courthouse without any interference or inquiry {124} made of them until such time as they appear before the Court.
 MR. LOWE:  Are you willing to make a similar offer?
 MR. HULTMAN:  No question.
 THE CLERK:  I wonder, Your Honor, would you like to go to the extreme of having Summons issued for these three persons and served upon them by the marshals to appear before you at a certain time?
 THE COURT:  I don't think I have any authority to issue Summons.
 MR. TAIKEFF:  Your Honor, a Subpoena could be issued. I would think if these people were asked to come they undoubtedly would come. They apparently did this as a voluntary act.
 THE COURT:  As long as you're here, I have been thinking about the request made by Mr. Lowe yesterday.
 We'll follow that procedure and I'll leave it up to you to see if you can arrange for them to come in at some time. And I assume then that Counsel are agreeable that this juror will remain on the jury until I get these people in? We'll try to get them in today.
 MR. TAIKEFF:  Yes, Your Honor.
 THE CLERK:  Any particular time of the day, Judge?
 THE COURT:  Find out when they can come in. We may have to accomodate the court proceedings accordingly.
 MR. CROOKS:  I would suggest that be done after court and after the jury has left. If these are fellow employees, {125} that in itself might create a problem. I would suggest it be done with as few spectators as possible.
 MR. LOWE:  It won't be a problem if they're brought to chambers. The jury will be in their jury room. It can't create problems possibly.
 THE COURT:  Ralph, would you find out when they can come. I would like to see all three of them.
 Just one thing more. I have given some thought to the suggestion made by Mr. Lowe that the marshals be required to monitor the TV shows to exclude any police shows and I think the only authority, I have kind of concluded the only authority the Court has on sequestration is to prevent the jury from reading or hearing any report on the case and I don't really believe that I have got any authority to move into the area of normal TV programming that they might otherwise be entitled to watch.
 MR. LOWE:  Would you be willing to receive from authority from that, Judge, other than -- there's a district court decision that just recently did that. Would you be willing at least to tell the jury in your judgment it would be wiser for them not to do that because it might, you asked them as a matter of grave not to do it?
 THE COURT:  The other thing is the jurors do not have a TV, they do not have radios, they do not have the TV in their room.
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 (Whereupon, at 10:50 o'clock A.M. the following proceedings were had in judge's chambers:)
 Pages 118-125 placed by Clerk in sealed envelope in file, upon order of the Court.
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 THE COURT:  Ralph, would you find out when they can come. I would like to see all three of them.
 Just one thing more. I have given some thought to the suggestion made by Mr. Lowe that the marshals be required to monitor the TV shows to exclude any police shows and I think the only authority, I have kind of concluded the only authority the Court has on sequestration is to prevent the jury from reading or hearing any report on the case and I don't really believe that I have got any authority to move into the area of normal TV programming that they might otherwise be entitled to watch.
 MR. LOWE:  Would you be willing to receive from authority from that, Judge, other than -- there's a district court decision that just recently did that. Would you be willing at least to tell the jury in your judgment it would be wiser for them not to do that because it might, you asked them as a matter of grave not to do it?
 THE COURT:  The other thing is the jurors do not have a TV, they do not have radios, they do not have the TV in their room.
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 MR. LOWE:  I did not know that.
 THE COURT:  If they're going to watch TV they have to go down to the marshal's control post and watch it.
 MR. LOWE:  Maybe I have a suggestion, Your Honor. You certainly have control over the marshals. Order the marshals not to watch television programs that are of violence, police and detectives. It may knock out 85 percent of the programming, I know.
 We feel strongly about this, Judge. There is a lot of psychological studies and I'd like to make an offer of showing on it.
 THE COURT:  You may make a showing on it.
 One thing more. A motion has just been handed to me for a sequestration of witnesses. I presume this is a rule of evidence 615 motion for exclusion of witnesses.
 MR. CROOKS:  I might inform the Court this has been filed moments before coming in.
 THE COURT:  Have you seen it?
 MR. TAIKEFF:  We have a copy of it.
 Does that mean to exclude them from the courtroom?
 MR. HULTMAN:  That's correct.
 MR. TAIKEFF:  I'm sorry it was necessary for the government to put that in writing. We would have stipulated.
 MR. HULTMAN:  I thought we had an understanding. Really had not put down and the Court had not so ruled.
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 THE COURT:  As I read the Rules, if either party asks the Court shall --
 MR. TAIKEFF:  There's no objection to it being done in any event.
 THE COURT:  Very well.
 How to implement it now. Are there witnesses sitting --
 MR. CROOKS:  We don't know.
 MR. HULTMAN:  There are none as far as the government. I think merely if the Court would, as well as Counsel know maybe, the Court would make an announcement from the bench to those people that if there is somebody that Counsel has not contacted that is anticipating being a witness, they will be aware.
 MR. TAIKEFF:  There's no one in the audience, Your Honor.
 THE COURT:  Very well.
 I also am planning to follow the procedure during this trial of having the jury brought in after I have gone in and after everybody's ready to proceed. By that time the spectators have cleared the corridors and I think it will work much smoother. And then occasionally I'm confronted with matters by Counsel which the jury shouldn't hear and if the jury is in when I come in, then we have got the problem of either going to the bench or sending the jury back out again.
 MR. TAIKEFF:  Would Your Honor suggest a time, I realize {128} it's after 11:00 now, it would not be appropriate, when Counsel could see Your Honor about a matter relating to a marshal's office that I don't think concerns the government. It has to do with the problems that the defense team is having.
 MR. HULTMAN:  Would you want to take it up now?
 MR. TAIKEFF:  My question is, it needs about three minutes. I don't mind if the government stays.
 MR. HULTMAN:  We have no reason --
 THE COURT:  If you don't mind if the government stays, let's take care of it right now.
 MR. TAIKEFF:  Your Honor, I understood that the order which Your Honor issued in connection with our motion to modify the visitation arrangements said in essence, if not in words, that the matter was wholly within the discretion of the Clay County Law Enforcement officials who run the jail, subject to what their needs were and their desires were, keeping security in mind, et cetera, and that we would therefore be in a position to negotiate with the jailer as to visitation hours and things of that sort.
 Yesterday a matter came to my attention that the defendant was trying to have a medicine man come into the jail and perform a pipe ceremony for him. As reported to me, I can't tell Your Honor by firsthand knowledge, but as reported to me the jailer said, "We would like to do it. We have no objection, perfectly all right, except the federal authorities {129} wouldn't like it," or, "Have told us not to do it, You get their okay." So I went to see a Mr. Warren last night who was very cordial in his demeanor but who said, "I can't allow that to happen." I said, "It's my impression that the judge's attitude towards the jail is that it's to be run by the jail officials and if they want to permit something it isn't necessary for us to keep going back to bother the judge for an order for some nominal thing that's of really no importance and shouldn't take the Court's time." He said, "That's not my understanding. You have to get everything you want through the Court." I said, "Are you aware of the fact that the Judge has in essence superceded the letter to the sheriff with his order which says," and then I repeated to him what my interpretation of Your Honor's order was. He said, "No, I'm not aware of that." So I brought him a copy of Your Honor's order with attached the letter to the sheriff and he and he said as far as the subject matter of counsel's visitation is concerned he does not read that order as saying that counsel have a right or an opportunity to negotiate with the sheriff for visitation hours which are acceptable to the sheriff. Now if he doesn't read that order that way, then truly the role he's playing in preventing our client from having this religious ceremony is inconsistent with what we think is Your Honor's attitude on the subject.
 THE COURT:  The problem as reported to me by the {130} marshal's service is that this person that came down to have this ceremony or powwow, or whatever they call it, went down and told, or at least, of course this is second or thirdhand now, told the sheriff that the Court had ordered that he would be permitted to have a powwow down there.
 MR. TAIKEFF:  Your Honor, that is inconceivable. I know the conversation I had with Mr. Warren and I know he was unambiguous about it. He said, "You cannot change." I was trying to use that as a stepping stone to persuade him up to a certain point Your Honor didn't want to be bothered with certain things and I tried to persuade him that we had a right to change the visitation hours from 7:30 A.M. to 8:30 instead of from 9:30 to 10:30 without consulting with him, or with you because that's how we read Your Honor's order. He said, "That order doesn't say that." Now if his limitation with the English language or his attitude toward the defendant is such that he has trouble understanding what that order says, we can't get the simplest thing done without bothering Your Honor.
 THE COURT:  I did not intend that order would change that, I simply intended if you were to be given access to the defendant in addition to those times that were set out in that order and if it was consistent, security would have to be worked out with --
 MR. TAIKEFF:  That's exactly -- when I first approached {131} Mr. Warren last night, I said, "Mr. Warren, you're probably going to get a call from the sheriff's office because we're about to deliver a certified copy of this Order to the sheriff with a verbal explanation by one of the attorneys on the defense team that we believe that order is a signal to the sheriff when it comes to minutia, as long as the sheriff has been asked and he's willing to accede to it, subject to the necessary security arrangements that it's all right for us to deal with the sheriff on minor matters." He said, "No. That's not true," and that's what brought us to a discussion of the order.
 When we got to the order itself he showed an understanding of the order which was wholly inconsistent with its plain language which I can only attribute either to his attitude or to his limitation with the language.
 THE COURT:  The other thing is I had discussed the matter with him before the order was, I had discussed it with him informally here in chambers, whether he remembers that or not, because I wanted to be sure I was not suggesting anything that was in any way going to interfere with the relationship between the marshal's service and the Clay County Law Enforcement Center.
 MR. TAIKEFF:  There's no problem about the relationship except as those problems are generated by Mr. Warren when he says there is a problem. He creates a problem when he says {132} there is a problem. Your Honor's orders seem to be clear cut. We would go to the sheriff and say, "Would you mind if we had a conversation between 9:00 P.M. and 10:00 P.M. tonight?" If the sheriff thought it would be okay there would be no intrusion upon the Court's intention. Mr. Warren says that's not true. We have to come to you and ask you if we can make such an arrangement. That seems to be wholly inconsistent with Your Honor's order.
 THE COURT:  I'll talk to Mr. Warren.
 MR. TAIKEFF:  Thank you, Your Honor.
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