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

{BENCH} KEEP DOCUMENTS OUT THAT SHOW EARLIER TRANSMISSION REGARDING RED PICK UP TRUCK  A
{BENCH} PREJUDICIAL ADMITTANCE  PHOTOS OF THE BODIES, ADMITTED  B
TESTIMONY OF DR. ROBERT BLOEMENDAAL  C
CROSS EXAMINATION OF DR. ROBERT BLOEMENDAAL D

VOLUME 4

MR. TAIKEFF:  Your Honor, may I be heard on a few matters?
 THE COURT:  You may.
 MR. TAIKEFF:  Thank you.
 Your Honor, I make reference to Defense Exhibit 75 for identification which is an FBI 302 which reflects the activities of the person employed by the FBI by the name of Ann M. Johnson which apparently is authorized by a special agent whose last name is O'Kloke. I believe Your Honor that the requirement of Rule 803, subdivision six of the Federal Rules of Evidence were met in connection with the information elicited from Special Agent Adams. Now there may be some confusion in the record and I confess that there is some confusion in my own mind as to whether or not that entire document was offered in evidence or whether any part or it was offered in evidence.
{527}
 MR. TAIKEFF:  Mr. Hanson, by taking possession of it, has taken the position that it was offered in evidence. I seemed to recall that what I was trying to do is elicit information about it generally. It occurs to me that it would be best if that confusion were eliminated wherever it may exist. So at this time and on the basis of Rule 803 Subdivision 6 I offer in all of the documents known as Defendants Exhibit 75 for identification, and would suggest to Your Honor that I have established that that document is a report, or a record. It's based on information from a person with knowledge. It's kept in the course of the regularly conducted business activity, that is the regular practice of that business activity to take memoranda of such type.
 And that was testified to, not by a custodian of the record, but by some qualified witness who recognized that document for what it was. And as indicated in the last sentence of that portion of Rule 803 the term "business" here would include the FBI.
 THE COURT:  Do you wish to respond?
 MR. SIKMA:  Yes, Your Honor.
 We would object to it on the grounds stated earlier and state furthermore that document itself does not show the times which are indicated on the document are accurate or estimations or what the circumstances were surrounding the taking of that particular document; and we believe that it still {528} falls outside of the exceptions to the hearsay requirement.
 And furthermore it is not a statement of this witness and not an inconsistent statement as such because the witness himself has stated the time, the witness in making the call into the individual did not state his impression of the time, and so there is no impression on the document itself except an impression of someone who's not in the courtroom.
 There's no way of knowing the meanings, at least as to that particular part of the document, as to what the meanings of those times were. So I would suggest, Your Honor, that it is still outside of the exception to the hearsay requirement.
 THE COURT:  The Court will reserve ruling on that motion.
 MR. TAIKEFF:  Your Honor, --
 THE COURT:  I have not seen the 302.
 MR. TAIKEFF:  I wanted to indicate to Your Honor and at the some time give notice to the Government that if Your Honor finds that the foundation has not been adequately laid as required by Rule 803 I wish to advise Your Honor that we need that document to cross-examine other FBI witnesses, and therefore we make an application in the alternative and in the event that Your Honor rejects the offer of proof that we be permitted to call out of turn the two FBI employees, Price and Johnson, through whom the document can most assuredly introduced into evidence.
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 Taking Mr. Sikma's statement arguendo as being accurate and an appropriate statement under the law then it would be necessary to call the employees, Price and Johnson, in order to introduce that document into evidence. And in view of the fact that we need that document to conduct certain cross-examinations our application then is to take those witnesses out of turn, the defense will call those two witnesses, in order to get into evidence the documents so that we may use it in the course of the Government's case.
 MR. SIKMA:  Your Honor, whether or not the defendant took these witnesses out of order, the defendant's counsel would not be able to use these documents to cross-examine other witnesses who were not part of the conversations or not part of the so-called communications. They could ask them whether or not they knew of certain communications and if they did there wouldn't be any inconsistencies with their testimony.
 Secondly, it's not necessary if the defense were permitted to use these, the 302 concerning the interview with the person who made notes on radio transmissions, would not be necessary to have those items in evidence if they could in fact be used to question other witnesses. They are marked for purposes of identification and it's not necessary that they be in evidence if they are indeed appropriately used to crossexamine other witnesses.
 They already have used them in that means already with {530} Special Agent Adams, but Special Agent Adams was the one they are alleging has made the communication. But there are no other names on this transcript which would in any way indicate that they were, these other persons who they're presuming are going to be able to be cross-examined with this document, there are no other persons whose names are on this and are part of that particular transcription.
 As Your Honor will recall the evidence shows that Special Agent Adams was there a considerable length of time before other special agents arrived, And I believe as the evidence will show later throughout the course of the trial that these other individuals arrived at a later time. They will be testifying as to what they heard, but this cannot be used in any way to impeach them because it's not a statement Or theirs. It's not something that they said.
 The content of the communication perhaps might be used to impeach Special Agent Adams if the content was anything different than he stated on the witness stand. The only question is whether or not the time is different and when he made the communication he didn't say, "I'm calling at 1:30 or 12:30" or whatever the case may be. He just made the communication and it's not necessary to bring in the witnesses out of order at this time to show what they meant by these communications or if they are in fact even accurate.
 This is a third-hand document, a third step removed {531} from the statements themselves. Special Agent Adams made the statement over the radio, someone else took it down and may or may not have accurately recorded the time for that communication.
 Then in addition to that Special Agent O'Kloke made notes of his conversations with the two stenographers, or two clerks, who were taking notes around about that time. So the statements that the defendant, of which the defendant is speaking, are not such that could be used or could be offered into evidence at this time, nor would it be for them to be offered into evidence at this time, nor is it necessary for the defendants to start setting up whatever their case happens to be in the middle of the Government's case.
 MR. TAIKEFF:  Your Honor, even though I both see and hear Mr. Sikma I suspect that he and I are attending different trials. I heard him say that the document in question doesn't contain any other names. It contains perhaps a dozen different names, and the transmissions purportedly made by each Or these people between approximately 12:00 Monday noon and 7:30 P.M. that day. I don't know on what days. The document doesn't mention any other names.
 Secondly, the Government has been trying strenuously to keep out one of its own documents made under circumstances which are carefully detailed in two separate 302's, which at this time I would ask the Clerk to mark for identification; and with Your Honor's permission I would like to leave those {532} documents with the Clerk so that Your Honor might read them in order to appreciate the full significance of Defense Exhibit 75 for identification.
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 MR. TAIKEFF:  Finally, your Honor, I would point out that contained within the many page document previously referred to as defense Exhibit 75 for identification, on Page 4 is an entry denoted 1:26 p.m., Adams to Coward. I assume "Coward" is the last name of an FBI agent rather than a description of some person "South of Oglala, pickup came in here and he just left" which is not the entire transmission.
 So clearly there is no doubt about the fact that at approximately 1:30 Agent Adams made a transmission with reference to a pickup. The Government seems to be contending that what we have here is a case of Adams testifying that there was only one transmission and that occurred at 1:30 in the afternoon.
 Well, this document puts the lie to that fact. It shows that at approximately 1:30 he made a transmission concerning the pickup which came in and left, and about that there is no dispute. We concede he made such a transmission.
 The issue is whether or not he made a transmission concerning a red pickup at approximately 12:18 p.m. That transmission is also recorded in their document. I can't understand why the Government, or what the basis of the Government's position is, to keep out a document made by another FBI employee which was done contemporaneously {534} except for the typing of the document. It is while these events were taking place.
 The only possible position the Government could take is that it puts the lie into Agent Adams. That's no less basis to keep the document out. They have an opportunity through the witnesses or through argument to the jury to explain the apparent failure of Agent Adams to remember what he did that day, but the fact that they don't like the implications of what their document clearly says is not a basis for keeping it out. It has been fully and completely authenticated; and if it is not at this time authenticated properly in your Honor's view, then we have the FBI employees available who can satisfy your Honor, that it is authentic and that it is relevant; and the reason we need it now is because some, if not many or all of the agents whose names appear on this document and who made transmissions, will be taking the stand; and we don't want to be hampered as we were when we tried to examine Agent Adams on the subject, by Mr. Sikma or one of the other prosecutors making objections on the grounds that that document is not in evidence.
 It is in evidence, and the jury can decide what weight to give it; but in the meantime I think we should have a fair and proper opportunity to cross examine the agents as to what they said on the day as the events were {535} taking place.
 MR. SIKMA:  I would say one other thing, your Honor:  There is no showing that the events as set out in that 302, of which counsel is speaking, were made contemporaneous to the events. I think that is a fact that's in contention here.
 In addition to that, your Honor, I realize there are other names in the document; and that's one of the other reasons why it shouldn't be admitted or used with regard to a particular agent's transcription.
 If you want to use it to cross examine a particular agent with regard to the transcriptions that he said that he made, that's one thing; but if you want to ask him about all the other transcriptions that were made, that is another factor which I think is relevant here and in fact indicates that the document should not be put into evidence unless you are using it to impeach all of the people that take the stand here. Until you have established that fact, the other portions of the statements which are consistent with their testimony are in fact inadmissible.
 THE COURT:  Is there any other record of these transmissions available other than what may have been recorded in this 302, Exhibit 75?
 MR. SIKMA:  Right. At that early part in the incident I am not sure that there are. There are perhaps other {536} transmissions of other agents, and I could check that out for the Court.
 THE COURT:  I feel that I understand the position of both parties in this matter, and I am not ready to rule at this time.
 MR. TAIKEFF:  I understand. Mr. Hanson has marked defendant's Exhibits 81 and 82. One of them is a 302 concerning the activities of Ann M. Johnson dated June 28th, 1975. Defendant's Exhibit 82 is similarly dated, and it concerns the activities of Linda E. Price, and I am wondering whether your Honor will permit me to return them to the Clerk so that your Honor may consider them in ruling on this matter.
 THE COURT:  You may.
 MR. TAIKEFF:  Thank you, your Honor.
 THE COURT:  Are we now then ready for the jury?
 MR. TAIKEFF:  There are two other matters, your Honor. The first is to advise the Court that in the course of the weekend it came to my attention that there would be certain witnesses called who might require the assistance of an interpreter who speaks both English and Lakota.
 I wish to advise the Court at the earliest possible moment of that requirement so as to avoid any delay in the proceeding.
{537}
 The last matter, your Honor, is brought to the foreground because the Government has advised us that they intend this morning to put on the medical testimony; and we anticipate the possibility that the Government will attempt to offer into evidence the photographs taken during the post-mortem examination of the dead bodies.
 I believe your Honor is aware of the fact that we have taken the position in our trial memorandum that those photographs are either irrelevant, or if they are relevant, they are so prejudicial because they will tend to inflame the passions of the jury, that under Rule 403 of the Federal Rules of Evidence, your Honor, is obligated to weigh the value of the photographs of the Government in terms of its relevance to the case against the prejudice to the Defendant generated by the content of the photographs.
 Now, it is our understanding, your Honor, that in making that weighing process your Honor, need consider nothing more than what it is the Government will accomplish in the way of proof that it has a legitimate right to present to the jury versus the prejudice that is recognizable on the face of the evidence.
 However, in spite of the fact that, as we understand the law, that is the balancing test; and those are the two factors to be considered.
 We come forward to make your Honor's decision easier {538} for your Honor to make so that your Honor can feel that while protecting the Defendant against prejudice, you do not in any way prejudice the position of the Government by depriving them of the opportunity to establish some fact.
 We want to make our position in that regard very clear and unambiguous. We believe that Rule 403 provides a legal basis for your Honor making a decision which, once made, assume arguendo is against the Government, deprives them of proving whatever fact they might have proven with the evidence if the prejudice outweighs the value of the evidence, the probative value of the evidence; that the Rule allows for the Government in appropriate circumstances to be short-changed, as it were, because of the balancing test when it does come out in favor of the Defendant.
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even though the Rule contemplates that and even though Your Honor would have to make such a decision and might decide against the government in terms of not allowing them to introduce. The fact we come forward at this time, and as we have in our memorandum, and we say, "We don't want the government to be deprived of the ultimate or technical or legal fact." It is not a proper answer for the government to come forward in response and say, "Just because one side in the litigation offers a stipulation the other side is not obligated to stipulate," which I believe was the basis upon which Your Honor made an earlier ruling where we took essentially this position. We are not coming forward with a stipulation and saying, "Because we offer to stipulate the government must stipulate," we are addressing ourselves to the Court, not to the government. And we're saying to the Court that our position is that the prejudice outweighs the probative value, and under Rule 403 of the Federal Rules of Evidence we are entitled to a ruling in our favor. But in case it is a close proposition for the Court, in case it is difficult for the Court to make up its mind, we offer something in an equitable sense to encourage the Court to make a finding that will eliminate the prejudiced of the defendant. We will concede the fact, we don't offer to stipulate in the ordinary sense, we will concede the fact so the government will not be deprived.
 Then, Your Honor, as we interpret Rule 403 we have a {540} simple situation. We have a pair of, a set of scales. On the government's side there is no loss whatsoever because we are willing to concede the technical information which they say the photographs will help them prove. On our side is clear cut prejudice. The scales must tip in our favor, not to exclude the government from introducing the fact but to prevent them from introducing the prejudiced.
 When a court makes a ruling under 403 and finds in favor of the government, it is saying, "I'm limited to a choice between letting the evidence in or not letting the evidence in." I find that the probative value is greater in terms of its overall value than the negative value of the prejudice, therefore I must let the evidence in." But we're not limited to those two choices, Your Honor. There is an opportunity for the government, if it insists that it has to get certain technical information in to get that information to the jury, we're saying that there is no necessity to place the prejudicial matter before the jury.
 Now the government might wish to be candid with the Court and stand up and say, "Your Honor, we'd like to prejudiced the jury that way, it's going to help us get a guilty verdict in this case." Well, if they did that, then Your Honor would clearly know how to rule in this matter. But the government will stand up and make some sort of a double-talk presentation and never tell Your Honor what it is they want the jury to know from these photographs concretely, specifically A, B, C, D, "That's what we {541} want the jury to know by looking at this photograph," because, Your Honor, if they say that in understandable terms we will rise and address the Court and say, "Your Honor, we concede facts A, B, C and D. What else does the government want? E, F, G and H? We concede those facts." We don't want those jurors to see those photographs. They're horrible. They will not allow this jury to make a rational and unemotional decision in this case.
 That's our position and for that reason we don't offer the stipulation. We offer to take a position which we think in equity necessitates Your Honor ruling in our favor concerning keeping the photographs away from the jury.
 MR. SIKMA:  Your Honor, I thank Mr. Taikeff for making my argument for me in double-talk and so forth. I would say that perhaps Mr. Taikeff is more articulate than I am in explaining in a few words of stipulation what actually occurred in the events which concerned what this trial is all about. Myself, I am not able to articulate and that's why I need the photographs. I am not able to articulate what occurred there to the extent which the photographs could be used to do so.
 I cannot help and I cannot do anything about the fact that this offense which occurred, the incident which occurred was a horrible event and I do not believe that it is proper to have the jury make a determination on the guilt or innocence of an individual, and there are two questions involved here:  one {542} is that the jury must determine whether or not the government has proven its case and the other whether it has not. But involving this matter I do not know how we can expect the jury to make that determination if they can't even see the basic evidence which we have available for them which is a photograph of the wounds which were committed on the occasion in question.
 I have cited in my brief a hundred cases perhaps where photographs were admitted into evidence which were at least as difficult to look at as these. They are not made in such a way that they are portrayed in a manner to inflame a juror, to inflame anyone, They are portrayed realistically and they realistically show what the evidence is. They realistically portray the events as they occurred and I believe that the fair presentation of the case to the jury requires that this evidence be presented to the jury.
 I know the Court has had an opportunity to view them and to be able to make up its mind on this matter.
 Your Honor, I would also add that the pictures are less horrible than the actual events and yet if we had photographs or had a videotape of the actual events, surely that would be admissible to show the jury what had occurred.
 MR. TAIKEFF:  Perhaps Your Honor would like to look at those photographs to see what Counsel is referring to.
 THE COURT:  I have seen the photographs.
 MR. TAIKEFF:  Your Honor, I believe that the photographs {543} Your Honor saw at the side bar last week are not the photographs in question.
 THE COURT:  The clerk procured the photographs that apparently were taken at the time of the autopsy.
 MR. TAIKEFF:  I see. I thought Your Honor was referring to Exhibit 6A through D.
 THE COURT:  No. I was not referring to those.
 In this case the Court is persuaded by the definition of murder which is, the statutory definition of murder which is alleged in the indictment in two counts:  "Murder is the unlawful killing of a human being with malice of forethought, of murder perpetrated by poison, laying in wait or any other kind of willful, deliberate and malicious premeditated killing or committed in perpetration of or attempt to perpetrate any arson, rape, burglary or robbery or perpetrated from an unmeditated design unlawfully or maliciously to affect the death of any other human being other than him who is killed is murder in the first degree."
 For the United States to prove murder in the first degree, they are going to have to prove willful, deliberate, premeditated and possibly malicious killing. The fact the Court understands them to be that in this case the two victims which were killed not from a distance but apparently after having been wounded from shooting from a distance, well, then, killed by some persons who approached them and discharged a {544} weapon into their body at very close range is certainly evidence that goes to whether or not the killing was premeditated, willful, malicious.
 MR. TAIKEFF:  We don't dispute that, Your Honor. That's the point we tried to make before.
 THE COURT:  I understand the point.
 MR. TAIKEFF:  That's not an issue in this case. It's not a disputed aspect of this case. The only question is did the defendant participate in that. That's what this trial is about.
 The government doesn't have to prove first degree murder, we concede first degree murder.
 THE COURT:  The jury is entitled to see the evidence and my ruling in this case is that the relevancy of this evidence, and I presume it will be offered in connection with the autopsy, outweighs the possible prejudice of the defendant.
 MR. TAIKEFF:  Your Honor has just elaborated on the fact that the government has the burden of proving a rather difficult to prove mens rea and we have specifically stated to Your Honor that that is not the contention in this case. It doesn't have to be proven by the defendant. We're prepared to acknowledge that the deaths were a result of what we summarized in legalees as first degree murder. That's not an issue for us in this case. We're prepared to concede that point on the record {545} and before the jury.
 The only question as far as we're concerned that the government has yet to prove in this case is whether or not the defendant on trial is guilty of that first degree murder and therefore it not being necessary for the government to make that proof, it is not necessary for the government to adduce that testimony or that evidence. That's the very point we're trying to impress upon the Court.
 They only have one element to prove in this indictment one single element:  the identity of one of the murderers; namely, one Leonard Peltier. They don't have to prove the other elements of it. We're prepared to concede them.
 THE COURT:  They of course also have to prove intent.
 MR. TAIKEFF:  There's no question but that the person or persons who are responsible for the death of the agents committed first degree murder with a requisite intent, malice of forethought and any other legal element that must he necessary. The only question, this is a single issue trial, was one of those persons Leonard Peltier. That's what this trial is about.
 THE COURT:  I understand.
 The Court has ruled on these pictures.
 MR. LOWE:  Your Honor, because this matter if it ever goes to a conviction and appeal is going to be a central question for an appellate court to decide, I'm not sure that {546} we understand in view of the offer of concession in the event that the Court would agree to withhold the pictures because of prejudice. It's not clear to me in view of that offer of concession what additional probative value the Court sees the pictures as having for the government's case other than what we have already offered to concede, if any. If there is no other I think the record ought to reflect that. If Your Honor has some additional probative value that we haven't covered, I think the record ought to reflect that so we eliminate a question in sort of the hindsight as to what Your Honor has in mind.
 THE COURT:  The Court has ruled that the probative value of the pictures outweighs the possible prejudicial effect on the defendant.
 MR. LOWE:  That in spite of our offer to concede to all elements except the identity of the actors?
 THE COURT:  That's correct.
 MR. LOWE:  I presume the Court did not intend to say that these pictures in some way would identify the actors though, there is no contention of that particularly?
 MR. SIKMA:  Your Honor, I think that that to some extent is true because it will corroborate certain testimony which is going to come into evidence.
 MR. LOWE:  We would ask for an offer of proof on that and we would be prepared, I believe, to make a concession or {547} stipulations on that information, too.
 I just want the record to be clear that there are no reservations on the defense part as to what they are willing to stipulate or concede in order to avoid the prejudice of those pictures going in. We don't want a later claim that is not now made, at least by an offer of proof, to say, "Well, we weren't willing to say that," and I want the record clear on that so that we're making an unambiguous offer.
 THE COURT:  Any response?
 MR. SIKMA:  No, Your Honor.
 THE COURT:  Very well.
 The jury may return.
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 (Whereupon, the following proceedings were had in the hearing and presence of the jury:)
 THE COURT:  Members of the jury, the Court will advise you must for your information that we have been in session since 9:00 o'clock, but we have been in session on legal matters. And I told you at the beginning of the trial that there were going to be times when legal matters have to be argued outside of the presence of the jury and that is going to result in the jury standing by.
 The procedure that we're following in this trial is to, for the Court to convene at the time designated and then to take up any legal matters that appears may arise, and if there are no legal matters the jury is brought in right away. If there are legal matters they are heard, and if possible a ruling is made and then the jury is brought in.
 So you will incur other delays of this kind sometimes. There'll be a short delay, sometimes a long delay. But I just want you to understand why you are, were asked to come back at 9:00 and then kept waiting for 50 minutes.
 You may proceed.
 MR. CROOKS:  Your Honor, before Mr. Sikma calls his next witness there's one little matter, more or less of a housekeeping nature, I'd like to enter a stipulation into the record with regard to Exhibit 45B, which was the motor vehicle tax registration.
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 I believe it is stipulated between counsel that Exhibit 45B was found on July 1, 1975 by Special Agent Robert Harvey in the glove compartment of a 1967 Ford Galaxie which was located in the tent area on June 26, 1975.
 For the record I might further indicate that we are speaking of the vehicle described in Exhibit 13A; and that if called as a witness Special Agent Harvey would testify to the foregoing fact. Mr. Taikeff, is that stipulated?
 MR. TAIKEFF:  We stipulate, Your Honor.
 THE COURT:  Very well. Exhibit 45 will be received.
 MR. SIKMA:  Your Honor, I have a stipulation to read which I will file with the Court. The stipulation is:  "That it is hereby stipulated and agreed between the United States of American and the defendant, Leonard Peltier and his counsel, that the bodies of Special Agents Ronald A. Williams and Special Agent Jack R. Coler were removed from the place at which they were found late in the afternoon of June 26, 1975.
 "That the bodies were transported by ambulance to Rapid City, South Dakota and that when the bodies were delivered to Dr. Robert D. Bloemendaal they were in substantially the same condition as when they were found."
 And I would file it at this time, Your Honor.
 THE COURT:  The stipulation just read by counsel will be received and filed.
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 MR. SIKMA:  The plaintiff calls Dr. Robert Bloemendaal.
 DR. ROBERT BLOEMENDAAL,
being first duly sworn, testified on his oath as follows:
 EXAMINATION
BY MR. SIKMA
 Q  Dr. Bloemendaal, would you please repeat your full name for the jury.
 A  Robert D. Bloemendaal.
 Q  And what is your occupation?
 A  I'm a pathologist.
 Q  Dr. Bloemendall, would you explain for the jury what a pathologist is.
 A  A pathologist is a physician who has your M.D. degree, who has an additional four or five years training beyond the M.D. degree in the field of pathology.
 Pathology is basically limited to two main areas:  clinical pathology and anatomical pathology. The clinical pathology aspect has got to do with the diagnostic tests that are performed in a hospital, primarily having to do with chemistry tests such as blood sugar. We're responsible for seeing that blood is available in the blood bank in the hospital, if someone needs blood that they get the proper type and the blood is cross-matched.
 We're in charge of the bacteriology department. If someone comes in with an infection we are the ones responsible to try and determine what organism it is and what drugs might be {551} used on that organism. And other areas of the body has to do with clinical pathology.
 Anatomical pathology has to do with changes in tissues that we can see grossly with the naked eye or by examining the tissues under the microscope. This has to do primarily with all the tissues that are removed from the operating room. We examine those, both grossly and under the microscope.
 We're the ones that do the frozen sections, trying to tell the surgeon what is the cause of the disease, whether it is cancer or not, and reading Pap smears and different changes that we can see under the microscope in the piece of tissues or a cell from the body.
 Q  Okay. Would you give us a brief summary of your background and education.
 MR. LOWE:  We'll stipulate that Dr. Bloemendaal is a qualified pathologist. There's no dispute about that.
 MR. SIKMA:  Very well. Your Honor, I think it would be helpful if he summarized it without going into all of his background, which would normally be necessary to do, so the jury understands the better that of which he speaks.
 THE COURT:  Dr. Bloemendaal, will you just state very briefly your background, training and experience.
 THE WITNESS:  I took my first two years of medical school after my premedical training at the University of {552} South Dakota.
 I graduated from Jefferson Medical College. I then spent five years in post-graduate training in Minneapolis and St. Paul, which I completed in 1963; and have been in the practice Or pathology since 1963.
 Q  (By Mr. Sikma) Did you at any time study under a forensic pathologist?
 A  Yes, I did.
 Q  And would you explain to the jury what a forensic pathologist is, just briefly.
 A  A forensic pathologist is a pathologist that primarily limits his practice to coroners or medical examiners type of work, sudden and unexpected deaths.
 I studied under John Coe who is presently the medical examiner for Hennepin County in Minnesota, which is Minneapolis and some of the suburbs. I studied under Dr. Coe for two years.
 Q  As a part of this work and training did you perform autopsies on persons to determine their cause of death?
 A  Yes, sir, I did.
 Q  And did you in this regard perform autopsies on persons who died of gunshot wounds?
 A  Yes, I did.
 Q  Can you tell us about how many autopsies you've performed?
 A  I've never really kept track, but I would estimate 1500 {553} autopsies.
 Q  Now, did you have occasion to conduct autopsies on Special Agents Ronald Williams and Jack Coler?
 A  Yes, sir, I did.
 Q  And would you tell us when this took place and how it came about.
 A  I received a telephone call from the FBI in Rapid City, I think it was Mr. O'Kloke, on the late afternoon or early evening of June 26, 1975, asking me if I would perform an autopsy on two FBI agents. And I consented to do that.
 Q  Did you examine the bodies on the evening of the 26th of June, 1975?
 A  Yes, I did.
 Q  And where did that examination take place?
 A  That was at the Baron's Funeral Home in Rapid City, South Dakota.
 Q  Did you have occasion to have photographs taken of that occasion?
 A  Yes, sir, I did.
 Q  In the course of conducting the autopsies on how many occasions did you have photographs taken of Special Agents Williams and Coler?
 A  I had some of the photographs taken the evening of June 26 1975, and also photographs on June 27, 1975 when I actually performed the autopsies.
{554}
 Q  I will show you what is marked as Government Exhibits 59 and 60, which I show to defense counsel at this time for inspection.
 Your Honor, counsel has asked that I instruct the witness not to make these, or have them shown to the jury until the photographs are admitted into evidence.
 THE COURT:  Very well.
 Q  (By Mr. Sikma) Would you examine these, please, and then without showing them to the jury and tell me whether or not you can recognize them.
 A  Yes. I recognize the photographs in Exhibits 59 and 60.
 Q  Can you tell me what your purpose is in taking photographs prior to and perhaps during an autopsy?
 A  Well, photographs are really, I consider part of the report. They can tell so much that I cannot put into words.
 They're also useful in refreshing my memory if I need to try to recall things at a later date. And we use photographs and x-rays in any of the cases where we thing they would be helpful, either at the time or at a later date.
 Q  Okay. Now, you've indicated that you also took a series of x-rays; is that correct?
 A  Yes, we did
 Q  And what is the purpose of taking x-rays of the individuals when making an autopsy?
 A  An x-ray is very helpful in evaluating fractures and foreign bodies within a body.
{555}
 It is particularly helpful in evaluation of a gunshot to a body in determining the course of the missile or bullet and any fragmentation that did occur, and in actually locating the bullet or fragment of the bullet.
 Q  So there are times when you are conducting an autopsy when you would not find the bullets, for example, without the use of x-rays; is that correct?
 A  Well, -- we will not do an autopsy on the body looking for a bullet without the x-rays. We feel they are that essential, or that helpful in finding the bullet.
 Q  I will show you what is marked as Government Exhibits 25 and 26 and tell me whether or not you can recognize Government Exhibits 25 and 26.
 Excuse me, let me show them to defense counsel first of all.
 MR. SIKMA:  May the record reflect that the defense counsel and defendant have stipulated to the authenticity of these documents. They are copies, they have not stipulated to the contents therein.
 Q  (By Mr. Sikma) Would you tell, if you can, what Government, first of all, if you recognize Government Exhibit 25?
 A  I recognize the second half of the document in Exhibit 25 which is the, which is a copy of the death certificate on agent Ronald A. Williams which I personally signed.
 MR. SIKMA:  I would offer into evidence Government {556} Exhibit 25, Your Honor.
 MR. LOWE:  No objection.
 THE COURT:  Exhibit 25 is received.
 Q  (By Mr. Sikma) Would you examine Government Exhibit 26.
 A  The second sheet of Government Exhibit No. 26 is a copy of the death certificate on Jack R. Coler which I recognize and which I personally signed.
 Q  I would notice that there is a time of death there which is indicated at 4:00 p.m. on the death certificate; is that correct? Do you see that?
 A  I believe it says 4:30 p.m. on this document.
 Q  Okay What does that indicate, that that is the time that the agents died, or does that indicate something else?
 A  I did not fill that portion out, and I do not know how that was determined regarding the hour of death.
 I filled in that portion regarding the cause of death, and the hour of death was determined by someone else.
 Q  Could you tell, if I refresh your recollection, whether or not that reflects to the time which the agents were found rather than the time that they actually died?
 MR. LOWE:  Your Honor, this is asking the witness to do a lot of speculating. We stipulated the time of death as being noon, and if Mr. Sikma wants to explain to the jury we've been over this a hundred times. I have no objection to him just stating it.
{557}
 THE COURT:  The objection is sustained.
 MR. SIKMA:  Very well, Your Honor.
{558}
 MR. SIKMA:  Very well, your Honor. The Government and the Defendant have stipulated, although the jury has not heard it, that the time of death is agreed by the defendant and the Government to be approximately 12:00 noon on the 25th of June, 26th of June, 1975.
 Your Honor, with that I would offer into evidence Government Exhibit 26.
 MR. LOWE:  No objection.
 THE COURT:  Exhibit 26 is received.
 (Plaintiff's Exhibit No. 26, having been previously duly marked for identification, so offered in evidence, was received.)
 Q  (By Mr. Sikma) I would direct your attention again to Government Exhibit 60 and ask you to examine it once again. You have indicated that these accurately reflect what you observed on the 25th and 26th of -- or excuse me, the 26th and 27th of June, 1975, is that correct?
 A  Yes. They accurately represent what the photographs are supposed to represent. They surely do not represent all of my findings in the course of my examination.
 Q  Are they helpful to you in explaining your findings?
 A  Very much so.
 MR. SIKMA:  Your Honor, at this time I would offer into evidence first Government's Exhibit 60.
 MR. LOWE:  I would like to have some voir dire on {559} that, your Honor, before they are admitted.
 THE COURT:  I am sorry?
 MR. LOWE:  I would like to voir dire this witness before the exhibit is admitted.
 I wonder if you would like to offer the other?
 MR. SIKMA:  I will. I will offer Government Exhibit 59 as well.
 THE COURT:  You may proceed.
 MR. LOWE:  Mr. Bloemendaal, my name is John Lowe. I believe we met once before?
 THE WITNESS:  I believe we have.
 MR. LOWE:  We have talked about this matter also, I believe, informally from time to time.
 Let me ask you some questions about the photographs in these books. First of all, some of the photographs relate to objects which you removed from the bodies, that is, fragments of metal and other such objects, do they not?
 THE WITNESS:  (Examining).
 MR. LOWE:  Bullet fragments?
 THE WITNESS:  One photograph in Exhibit 60 does, and as I recall, one in Exhibit 59.
 MR. LOWE:  All right. The items shown in those photographs, I believe, are also -- if they are not actually here in the courtroom -- they have been available to you and you have examined those, and those are physically {560} available, are they not, to your knowledge?
 THE WITNESS:  They were previously, and it is my understanding, that they are.
 MR. LOWE:  All right. Now, with regard to your use of these photographs, if you were to give a simple statement of your findings, that is, your conclusions on the basis of your pathological examination, for the purpose of this trial, and if in fact you were to do so in a situation in which the Defendants were not disputing anything -- in other words, that everybody agreed what the facts actually were -- but you nonetheless have to communicate your findings to the jury, I would like to ask you some questions in that context.
 If that be the case, one of the pertinent questions would be the direction from which the bullet was fired with relation to each of the bodies, is that correct; that would be a pertinent item for you to tell the jury?
 THE WITNESS:  Well, basically I answer the questions that are asked of me. I don't write or direct anything specifically to the jury.
 MR. LOWE:  You are obviously testifying for the benefit of the jury. My point is that one of the questions that you have testified to and would presumably testify to in this matter would be the directions at which the bullets entered the bodies, isn't that correct?
{561}
 THE WITNESS:  That is correct.
 MR. LOWE:  And if you use a pointer and a person either standing or lying, or whatever position you want them in, you can show the directions from which bullets come. They come in straight lines normally, do they not?
 THE WITNESS:  I agree they come in straight lines normally.
 MR. LOWE:  And is it possible, based on what you do know about the directions, for you to say that one of the bullets came from right to left and touched certain part of the body or penetrated at a certain place without showing a picture, that's possible, is it not?
 THE WITNESS:  Oh, that surely is possible.
 MR. LOWE:  And another item that might be expected would be to testify as to the nature of the bullet that is, to the size and velocity, isn't that true, to the best that you can, you may not always be able to say that?
 THE WITNESS:  Within certain limits I surely could within certain limits.
 MR. LOWE:  And I presume that the size of the bullet would be determined from whatever examinations you made of the fragments, whatever examinations you made of the wound, and perhaps other salient factors based on your own examination, and that you could describe to the jury as closely as possible what you were able to determine, am I {562} correct about that?
 THE WITNESS:  In the broad sense, yes.
 MR. LOWE:  Were you able to determine a specific size of bullet from the pictures in this case, or just the general description?
 THE WITNESS:  Just a general description. I do not claim to be an expert in ballistics or anything. I try to remove the physical material and see that it gets into someone's hands that is more knowledgeable in this area than I.
 MR. LOWE:  All right, sir. To the extent that you are going testify and to the extent that you would use these exhibits, however, you could describe to the jury what information you have been able to derive, based on your own knowledge and experience, about the bullet size without the necessity of showing them a picture, could you not?
 THE WITNESS:  Well, I would at least want to have the pictures available to me to look at to help with my description. This is part of my description, and I do not describe things in as much detail when I know I have photographs of that than if they were not available, and I would have to do it all from my notes or dictation.
 MR. LOWE:  Do I understand that you are saying, sitting on the witness stand right now, it would help you {563} to have the photograph in front of you as you are trying to describe the size of the bullet to the jury, for example?
 THE WITNESS:  Yes.
 MR. LOWE:  But again it would not be necessary for you to show the jury the picture in order for you to make some adequate description of the bullet to them?
 MR. SIKMA:  Your Honor, in part I would object to this. The witness cannot tell completely whether or not the photographs would be helpful to the jury.
 MR. LOWE:  That wasn't the question, your Honor.
 MR. SIKMA:  This is a question of fact.
 MR. LOWE:  This witness is an expert, and that's why I am asking him -- that would not be absolutely necessary, would it?
 THE COURT:  The reporter will read the question back.
 (Question was read by the reporter.)
 THE COURT:  The objection is overruled. You may answer.
 THE WITNESS:  I could describe it to the jury without them seeing the pictures.
 MR. LOWE:  All right. Now, another question which is going to be relevant, and I again -- it may or may not be something that you have tried to determine, I understand, but that to the extent you have tried to determine -- and {564} that would be the distance of the muzzle of the gun away from the body at the time the bullet was fired; and there are certain indications on the body which a forensic pathologist can use to determine or make some estimate as to the distances involved. Did you try to make these estimates or measurements on your own, or was that someone else who did that?
 THE WITNESS:  The only measurements or conclusions that I would be responsible for are the ones that are in my autopsy report as I am not a forensic pathologist. I believe, as I recall, I have some definite feelings about the distance of one of the gunshot wounds. In other areas I think, for the most part, I did not state an opinion as to distance.
 MR. LOWE:  All right. Now, another determination that I believe you made in your autopsy report was an estimate, at least as to which of the shots or which of the bullets which entered the bodies of the two different agents were fatal shots, or which ones you estimated might have rendered the agent disabled or unconscious, am I correct in saying that you attempted to make a determination of that?
 THE WITNESS:  Well, I have it in my own mind. I don't recall how much detail of that is actually spelled out in my report, Mr. Lowe.
{565}
 MR. LOWE:  Let me try to close this down a little bit then based on what you said. You gave me an entry there by what you have said a moment ago that may shorten this down.
 Your autopsy report is basically what you are able to tell the jury, that's a summary of your findings, is that a fair summary?
 THE WITNESS:  It is a summary, but I am sure that I could tell the jury much more than I can put on paper.
 MR. LOWE:  I understand that. I don't mean to limit you by any means.
 Is there, first of all, anything in the autopsy report that you cannot tell the jury without the necessity of showing the jury these very gory pictures, is there anything in there that you cannot describe in your autopsy report without subjecting the jury to the truth of seeing these gory, bloody pictures? That's what I am getting at.
 THE WITNESS:  Well, I am sure there are many details in a photograph that I would not describe that anyone could see in a photograph, that I wouldn't describe. Again I don't know that I can answer that question because it almost implies that I have to be able to think like the individual jury members. I don' know if they would get more out of looking at the photographs or from my description. I don't know the answer to that, sir.
{566}
 MR. LOWE:  But in an undisputed setting where the findings pathologically are not disputed by the defense, is there anything in your report that reaquires looking at pictures in order to understand?
 MR. SIKMA:  Your Honor, I would object to that as calling for a legal conclusion on the part of the witness.
 MR. LOWE:  It is not a legal conclusion, it is a factual conclusion. This is an expert, your Honor. If he can't understand them, then it is hard to see how the jury can understand them. They are not experts.
 MR. SIKMA:  Furthermore, it invades the province of the jury. I think the witness testified at the outset that the photographs are essential to this matter.
 THE COURT:  The reporter will again read that question back.
 (Question was read by the reporter.)
 THE COURT:  The objection to that question is sustained.
 MR. LOWE:  Can you state in your opinion what the cause of death was without referring to pictures, is that possible?
 THE WITNESS:  Yes.
 MR. LOWE:  Do you know of any fact which you consider pathologically significant in this setting, based on all you know and have discussed about this case which {567} cannot be described to the jury by you without the necessity of having them look at these terrible pictures?
 THE WITNESS:  I have to look at the pictures in order --
 MR. LOWE:  (Interrupting) I understand.
 THE WITNESS:  When you said "look at the pictures", I don't think there is any question that I personally cannot describe any finding of mine as well as a photograph can display it, and this is true whether my report is disputed or not.
 As far as I am concerned, these pictures are part of my report whether they are disputted or not. They surely represent my findings better than I can describe them.
 THE WITNESS:  We]l now, do they represent your findings, or are they data on which you reach your findings?
 THE WITNESS:  They are both. They are both part of the findings and represent data that I base my findings on.
 MR. LOWE:  I say "findings", I am talking about conclusions. I don't mean the findings in the sense of discovering them, seeing what is there.
 In terms of your conclusions as a pathologist, aren't they merely the information or the physical evidence upon which you base your conclusions?
 THE WITNESS:  They are a portion of it.
 MR. LOWE:  That's right.
{568}
 THE WITNESS:  They are a portion of it, yes, sir.
 MR. LOWE:  Excuse me just a moment.
 (Counsel confer.)
 MR. LOWE:  Your Honor, I have no further questions on voir dire.
 We would object to the showing of these pictures to the jury as being unnecessary. In view of what Dr. Bloemendaal has said, we are perfectly willing to have him state his conclusions and enter stipulations or concessions. There is no dispute about what his pathological findings are.
 We object to both because we feel it is prejudicial to the Defendant and also unnecessary to subject them to the jury. It is also immaterial.
 THE COURT:  Did you care to respond?
 MR. SIKMA:  No, your Honor.
 THE COURT:  Very well. The objection is overruled.
 Q  (By Mr. Sikma) I would ask you, Dr. Bloemendaal, to take then first Government Exhibit 60 --
 THE COURT:  (Interrupting) Excuse me. Were they offered?
 MR. SIKMA:  Yes, your Honor, they were.
 THE COURT:  Very well. Exhibits 59 and 60 are received.
 (Plaintiff's Exhibits Nos. 59 and 60, respectively {569} having been previously duly marked for identification, so offered in evidence, were received.)
 Q  (By Mr. Sikma) Would you go through and cite the pages now you are starting there, with Page 1, and explain to the jury what it is and what significance it has; and at this time so that the jury has an idea of what you are speaking if you just hold it up -- the jury will have an opportunity later to view these more closely -- but if you just hold it up so the jury can see which picture you are talking about, so they will be able to fresh their recollection later -- would you go to Page 1 of Government Exhibit 60 first and indicate what it is?
 THE WITNESS:  Your Honor, can I now do that and show these to the jury when I refer to them?
 THE COURT:  You may now do so.
 A  Thank you. Government Exhibit No. 60, Page No. 1, is a photograph of a legal pad with some writing on the top of the legal pad. The writing says "Ronald A. Williams, June 27th, 1975," and along the left-hand side of the page are three labels Head, left flank and left foot.
 Adjacent to these three labels are objects which were foreign material, pieces of bullets which I removed at the time of the autopsy from the head, left flank and left foot of Agent Williams.
 Also, on the pad is a ruler so that I could have some idea as to the size of these fragments should that be necessary {570} at a later date.
 Q  (By Mr. Sikma) O.k. Take page -- the next page with the photograph.
 A  Page 2 is a photograph of the head and upper shoulders and portions of the hands and arms of Agent Williams as I first viewed Agent Williams.
 Photograph 3 is a similar photograph, but it extends and includes the area from the upper abdomen to above the head, including both arms of Agent Williams. Both hands and up to nearly the elbow of both arms are partially or almost completely covered with blood. Most of the face of Agent Williams is also covered with blood, and there is some blood in the left axilla or armpit area of Agent Williams in photograph No. 3.
 Q  What is the next page?
 A  In addition, on Photograph 3 there is a darkened area of the skin of the lower axilla on Agent Williams, and on closer examination of Photograph No. 2 there is definite distortion of the tissues of the upper lip and nose of Agent Williams.
{571}
 The next page which has a photograph in it is page number 8.
 Q  Can you tell when this photograph was taken as opposed to some of the others? Tell the jury what the difference is in some of these photographs.
 A  Photographs Nos. 2 and 3 were taken the evening of the 26th when the bodies arrived. This is the way Agent Williams looked when I first viewed the body before it was washed down.
 Photograph Nos. 8 and 9 are photographs of the body after it has been washed. Photograph No. 8 is a photograph of Agent Williams from approximately the waist to the top of the head taken from the left side. It shows a hole or gunshot wound in the left arm of Agent Williams about a third of the way down from the shoulder to the elbow. It involves the muscles of the left arm. There is a large defect in the central portion of the face of Agent Williams involving the upper left nose and extending nearly to the eye on the left side. In addition there are numerous small defects in the skin, plus some distinct linear scratches or abrasions in the skin in a rather uniform manner. In addition, over the forehead there is some rounded, more burning type of defects.
 Photograph No. 9 is the right side of Agent Williams from the chest up. This was taken on June 27, 1975 at the time of the autopsy. There are some defects or abrasions and breaks in the skin of the right anterior shoulder of Agent Williams {572} over the right side of the neck and the right side of the face and forehead. In addition, there is an incision over the base of the right neck which is an embalmer's incision. This was made by the mortician and this is a standard incision that is made on any body when they start to do their arterial embalming.
 Referring to photograph No. 8, before we leave that, in the back of Agent Williams' head on the left side there is a massive hole in the top of his head on the left side. There is a very large break in the skin and there is actually a hole in the, both the skin and the bone there and actually there is brain protruding from that hole in the top of Agent Williams' head.
 Photograph No. 10 is a photograph of Agent Williams from the waist up taken from the left side with the arm extended or abducted. It was taken on the evening of June 26th. It shows some of the previously described features, but in addition it also shows where the bullet that entered the outer portion of Agent Williams' arm penetrated his arm and came through on the inside of his arm. It also showed where it appeared to have struck, had split in two with a portion hitting the body of Agent Williams in an area down several inches from the apex of the axilla and the second piece striking Agent Williams just above the belt line on the left side. Again there is some bleeding around all of those gunshot wounds.
{573}
 Photograph No. 11 is a photograph of Agent Williams from about the ankles up including above the top of the head. It shows how Agent Williams was dressed at the time. At the time I first saw Agent Williams he did have trousers on and did not have any shirt or covering over the upper part of his body. It shows in lesser detail some of the features I have previously described.
 Photograph No. 12 is the back or dorsal aspect of Agent Williams' right hand. There is a gunshot wound of the hand which extends from the index finger over to the base of the little finger and much of the way from the knuckles and including the knuckles nearly up to the wrist. There is a tearing of the skin. This was taken on the 27th after the body was washed.
 Photograph No. 14 is a photograph of the right hand of Agent Williams from the distal end of the arm, including the wrist and the hand. It was taken prior to washing of the hand. It shows four fingers in the photograph, three of which are in a normal position, as is the thumb, and the fourth finger is markedly distorted back here as it was displaced by the gunshot wound. It also shows some very dark pigmentation on the surface of the palm of the hand of Agent Williams near the base of the little finger.
 The next photograph is also a photograph of the hand of Agent Williams. This photograph is not numbered but it follows No. 14 in sequence. Again it is a little different view {574} of the right hand of Agent Williams and again it shows the distortion of one of the fingers and the veins over the hand. It also shows a small amount of black pigmentation which was on the hand of Agent Williams.
 The next photograph is a photograph taken from the left side of Agent Williams which shows a portion of his arm and elbow, the left flank and left hip and this does show in more detail the previously mentioned gunshot wound of the left flank or the gunshot wound which was present just above the belt line in one of the previous photographs.
 The next photograph is a photograph of the trousers of Agent Williams from the ankles up to just below the pockets and it shows some discoloration of the trousers, two different colors, one is a red color which is blood and the second ore is brownish grey or tan pigmentation which appears to be dirt or mud.
 The next photograph is a photograph of the left foot of Agent Williams along with the lower portion of his trousers. It is taken from the inside of the foot. It shows a defect in the inner portion of the shoe proximal to the base of the toes and in addition it shows a tear, a portion of a tear in the inner aspect of the trousers of Agent Williams.
 The following photograph is photograph Mo. 19 and it shows the left foot of Agent Williams after removal of the shoe, stocking and trousers and that photograph shows a gunshot wound {575} over the inner aspect of the left foot of Agent Williams which does correspond to the defect in the shoe shown on the previous photograph.
 Photograph No. 20 is a photograph of Agent Williams taken on the evening of June 26th which shows a picture of Agent Williams taken from the right side from about the knees up to the mid-abdomen. It shows the contents of what were found in Agent Williams' pockets, which included some bullets, sunglasses, keys and other objects that I cannot recognize in that photograph.
 Q  With respect to the last page, you indicated there are some bullets in that photograph. Are they in any kind of container?
 A  Well, they are arranged in three separate groups. One of them is in a black container that appears to have some kind of a snap cover. The remainder of the bullets are loose.
 Q  Are these all, do these all appear to be live rounds to you?
 A  They do.
 MR. LOWE:  Objection, Your Honor. Unless the doctor is qualified to state it, I don't know if there is any dispute about it, I don't think this is the person to state whether they are live rounds or not.
 THE COURT:  Sustained.
 Q  (by Mr. Sikma) Would you go back and --
 THE COURT:  At this time the Court will recess until 11:15.
 (Whereupon, recess taken.)
{---}
THE COURT:  Very well. You may bring in the jury.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 THE COURT:  You may proceed.
 Q  (By Mr. Sikma) Dr. Bloemendaal, I would ask you that you ~o to Government Exhibit 59 and explain briefly to the jury what the various photographs in Government Exhibit 59 reflect.
{583}
 A  Government Exhibit 59, page number 1, is a photograph similar to the first photograph in Exhibit No. 60. Only this is of the material removed from the body of Agent Coler on 6/27/75, and the areas labeled are the head, neck, neck and right chest.
 Photograph number 2 is a photograph of Agent Coler as I first viewed him on the 26th. And photograph number 3 is also a photograph of Agent Coler from a different angle.
 Both show primarily the head and chest of Agent Coler, and photograph number 2, there is a bullet wound involving the neck. And in photograph number 3 there is a bullet wound across the top of the head.
 There is no photograph in page, on page 4.
 On page 5 it is a closer up photograph of the neck and chin area of Agent Coler. There is a large gaping wound beneath the chin on Agent Coler, and in addition there is a wound over the right aspect of Agent Coler's jaw.
 Photograph number 6 is a photograph from the right side of the top of Agent Coler's head and it shows a gunshot wound as it struck Agent Coler across the top of the head, which also involved the bone and the underlying brain.
 Photograph number 7 is a photograph of the right arm of Agent Coler and the right side of Agent Coler's chest. It shows a gunshot wound, or a portion of the gunshot wound, involving the flexion portion, of the flexure portion of the {584} right arm of Agent Coler near the elbow; and it also shows over the posterior right chest where the, this same bullet wound in addition to striking his arm, the same bullet struck the right side of his chest.
 Photographs number 8 and 9 are photographs of the right elbow area of Agent Coler, again from different angles showing the large area of tissue destruction in the area of the right elbow due to the gunshot wound involving the elbow.
 In addition photograph number 9 shows a tourniquet around the left, or correction, the right, the right arm of Agent Coler between the gunshot wound and the shoulder.
 Photograph number 10 is the left arm wrist and back of the agent's hand. Also a portion of the left, side of his body.
 Photograph number 11 is again the right arm from a different angle and again with the tourniquet above the gunshot wound.
{585}
 Photograph No. 12, Photograph 12 is that of the trousers of Agent Coler which shows that they are spattered with blood, particularly the upper part of the right leg.
 Photograph No. 13 is the crown of a tooth or a gold tooth, which are removed from the back of the mouth or the throat area of Agent Coler.
 That is all the photographs in Exhibit No. 59.
 Q  (By Mr. Sikma) Did you have occasion to write a pathological summary concerning the autopsies which you performed?
 A  Yes, I did.
 Q  And you did one on Special Agent Williams and Special Agent Coler, is that correct?
 A  That is correct.
 MR. SIKMA:  After showing counsel for the Defendant, I will show the witness Government's Exhibit 7 for identification.
 (Counsel examines document.)
 THE COURT:  I did not hear the designation of the exhibit.
 MR. SIKMA:  7, your Honor.
 THE COURT:  7.
 Q  (By Mr. Sikma) I ask you to tell me whether or not that is the autopsy report for Special Agent Williams and Special Agent Coler?
 A  Yes, it is.
{586}
 MR. SIKMA:  Your Honor, at this time I would offer into evidence Government Exhibit 7.
 MR. LOWE:  No objection, your Honor.
 THE COURT:  Exhibit 7 is received.
 (Plaintiff's Exhibit No. 7, having been previously duly marked for identification, so offered in evidence, was received.)
 Q  (By Mr. Sikma) I will show you what has been marked as Government Exhibit 22-E, 33-C, 22-D for identification.
 MR. LOWE:  Your Honor, counsel have discussed these. Because as far as we are aware, the defense and the prosecution agree on the pathological findings of fact, as far as I am aware there is no dispute whatsoever unless somebody comes up with a surprise we are not aware of we have suggested that the prosecution save a lot of time and just have Dr. Bloemendaal discuss these exhibits in a conclusionary fashion. There is no dispute on them. We don't plan to contest them in any way. It would save a lot of time.
 MR. SIKMA:  Very well. I would then offer into evidence Government's Exhibits 33-C, 22-D and E; also Government Exhibit 22-A, B and C.
 MR. LOWE:  Based on the representation of Mr. Sikma that these are true exhibits that we have discussed, we have no objection, your Honor.
{587}
 THE COURT:  Very well. Exhibits 22-A, B and C, 22-D and E, and 33-C are received.
 (Plaintiff's Exhibits Nos. 22-A through E and 33-C, respectively, having been previously duly marked for identification, so offered in evidence, were received.)
 (By Mr. Sikma) O.k. Would you go through -- you have described generally what the photographs of Special Agents Williams and Coler presented to the jury. Would you describe for the jury what your findings were with regard, first of all, of Special Agent Williams with regard to the exhibits that I have shown you and photographs which you have shown to the juror.
 A  Exhibits 22-D, 22-E, and 33-C are fragments of bullets which have a similar appearance and in similar containers as removed at the time of the autopsy from Agent Williams from the locations labeled.
 Q  And in this regard would you go back to the photographs of Special Agent Williams and tell the jury, in layman's terms as much as you can, what you found his wounds to be and how you analyzed them from a pathologist's point of view?
 **A  I felt that Agent Williams, was shot three times. I felt that he was shot one time through the outer portion of the left arm with the arm partially away from the body, that the bullet entered the outer portion of his arm, came out the inner portion of his arm, and that the casing or the jacket of the bullet split off from the main core of the bullet with the main core {588} striking him in the upper part of the chest and not penetrating the skin, and the lower portion -- or the jacket entering the lower portion of the body just above the belt line, and the Exhibit --
 Q  (Interrupting) Is it 33-C?
 A  33-C is the copper colored fragment that I removed from the left flank or just above the left belt of the gunshot wound in Agent Williams.
 Q  Dr. Bloemendaal would this wound have been fatal?
 A  No. It would be potentially fatal without medical care, but it would not have been fatal it would have been painful and disabling, and if it were treated properly, it wouldn't have been fatal.
 Q  Very well.
 A  I felt Agent Williams received a second gunshot wound which involved the inner aspect of the left foot, which had also creased the inner portion of the leg of the trousers, striking the inside of the left foot, breaking the main bone to the big toe. It would have been very painful, it would have been disabling, but it would not have been fatal.
 Exhibit 22-D appears to be the fragments of material which I removed from the left foot of Agent Williams.
 I felt the third gunshot wound which Agent Williams received, he received with his hand in front of his face in manner similar to this (indicating), that the gun was in {589} striking him in the upper part of the chest and not penetrating the skin, and the lower portion -- or the jacket entering the lower portion of the body just above the belt line, and the Exhibit --
 Q  (Interrupting) Is it 33-C?
 A  33-C is the copper colored fragment that I removed from the left flank or just above the left belt of the gunshot wound on Agent Williams.
 Q  Dr. Bloemendall, would this wound have been fatal?
 A  No. It would be potentially fatal without medical care, but it would not have been fatal. It would have been painful and disabling, and if it were treated properly, it would not have been fatal.
 Q  Very well.
 A  I felt Agent Williams received a second gunshot wound which involved the inner aspect of the left foot, which had also creased the inner portion of the leg of the trousers, striking the inside of the left foot, breaking the main bone to the big toe. It would have been very painful. It would have been disabling, but it would not have been fatal.
 Exhibit 22-D appears to be the fragments of material which I removed from the left foot of Agent Williams.
 I felt the third gunshot wound which Agent Williams received, he received with his hand in front of his face in a manner similar to this (indicating), that the gun was in {589} contact with Agent Williams' hand like this (indicating), that the bullet went through his hand, struck him in the face and a portion of the bullet out of the back of his head with fragments of bone and possible the bullet causing the linear scratches on the face of Agent Williams.
 Exhibit No. 22-E appear to represent fragments of the bullet which I removed from the head of Agent Williams. The last gunshot wound that he had would have been immediately fatal.
 Q  Did you examine a white with light blue shirt that was white with light blue print on it during the course of your examination?
 A  There was a white shirt with some blue printing on it which was used as a tourniquet around the arm of Agent Coler.
 Q  I will show you what is marked as Plaintiff's Exhibit 24-A. I have shown it to counsel for the Defendant earlier this morning and ask you to examine this and tell me whether or not you recognize it?
 A  (Examining) It appears similar to the shirt that was removed from the arm of Agent Coler that was used as a tourniquet. I didn't specifically identify that shirt so I cannot specifically say. It appears very similar.
 Q  When did you remove that shirt -- or did you remove a shirt from Special Agent Coler's arm during the course of your autopsy?
{590}
 A  One was removed. There were a number of there. I can't specifically say that I did remove it. I was there when it was removed and may have helped. I don't recall those details.
 Q  Where was this, where was this shirt when you saw it?
 A  The shirt was around the injured arm of Agent Coler, proximal or closer to the body from the wound. It was in a position that a tourniquet would have been in.
 Q  Did it appear to you to be applied in that fashion, as a tourniquet?
 A  That was my interpretation, yes, sir.
 Q  Did you examine this for bullet holes, this shirt?
 A  There were holes in the shirt which I felt were bullet holes, yes.
 Q  Did they correspond to the wound in the shoulder of Special Agent Williams?
 A  Yes, sir. They corresponded in that there was a hole in the shirt that corresponded to the outer portion of his arm, inner portion of his arm; and a third hole in the shirt just above the belt line which corresponded to the three defects or holes that the gunshot wound made in the body of Agent Williams.
 Q  These holes in the shirt corresponded then to the first gunshot wound that you described in Special Agent Williams, is that correct?
 A  That is correct.
{591}
 Q  Now, would that lead you to draw any conclusions as a result of that, as a result of your observations did that lead you to --
 A  (Interrupting) Well, I concluded that that shirt did belong to Agent Williams as Agent Williams did not have a shirt on when I first saw him. The holes in the shirt corresponded to the wounds in the arm of Agent Williams, and I concluded that Agent Williams took off that shirt and applied it as a tourniquet to Agent Coler.
 Q  Do you recall whether or not the shirt had buttons on it when you examined it?
{592}
 A  I recall it was a button shirt and I believe some of the buttons were missing.
 Q  What was your opinion -- first of all, did you have an opinion as to the cause of death of Special Agent Williams?
 A  Yes. Special Agent Williams died as a result of gunshot wound to the head.
 **Q  I would now direct your attention to the autopsy and the photographs of Special Agent Coler.
 Would you describe the wounds as they relate to your conclusions, your pathological conclusions in the examination of Special Agent Coler.
 A  I felt that Special Agent Coler also received three gunshot wounds. I felt the first one was to the left arm of Special Agent Coler; that the wound came from the outside, struck his arm and also struck the lateral portion and edge of the back of the chest of Agent Coler. This would would have completely incapacitated that arm in that it destroyed the major muscles at the elbow joint, also the major blood vessels. It would have been very incapacitating. It was potentially fatal. It would have been fatal in a matter of minutes in that there was, would have been major bleeding from this type of wound. Without treatment this may have rendered the agent unconscious very shortly after it occurred or he may have been able to remain conscious for an extended period of time. This varies a considerable amount amongst individuals involved.
{593}
 I felt the second gunshot wound was a gunshot wound to the top of the head of Agent Coler which caught Agent Coler across the top of the head. Again, my findings indicated that the gunshot came from the right side to the left side. It would have rendered Agent Coler unconscious immediately and would surely have been potentially fatal. In my experience a certain number of people with this type of wound will survive, many of them will die from a wound like this.
 The third gunshot wound which Agent Coler received was a gunshot wound in the area of the chin and the right side of the jaw which would have been immediately fatal.
 Exhibit Nos. 22A, 22B and 22C represent fragments of the bullets that I removed from the posterior chest of Agent Coler, from the top of his head and from the neck and chin area. In Exhibit 22C there is also the tooth which I removed which was loose in the back of the mouth or throat of Agent Coler.
 Q  With regard to Special Agent Williams, do you have any opinion as to velocity of the projectile relating to the wound in the right hand and in the face on the left side of the nose of Special Agent Williams?
 A  Yes. I felt it was a high velocity missile.
 Q  Now with relationship to the Special Agent Coler, the wound you indicated to the forehead, could you tell which wound as far as the wound to the forehead and the wound in the jaw, which of those wounds occurred first in you opinion?
{594}
 A  On Agent Coler I felt the wounds occurred in the following order:  No. 1, he received the wound to the arm first, he received the wound to the top of the head second and the wound to the area of the chin and jaw third. And I base this on the extent of bleeding present in the first two wounds in that the third wound was immediately fatal and there would have been no significant bleeding in the other two wounds had he received the wound to the chin earlier than the other two because that was immediately fatal and he would have not had any blood pressure to cause bleeding in the other two wounds.
 MR. LOWE:  We'll stipulate to that to save time. There is no need to go further on that. We agree to that conclusion and there is no contest on it.
 Q  (By Mr. Sikma) Dr. Bloemendall, did you have occasion to present your pathological summary, the autopsies, the photos and x-rays to any other persons for purposes of consulting with him in this regard?
 A  Yes, I did.
 Q  To whom did you present these matters?
 A  I personally went over my reports and x-rays with Dr. Thomas Noguchi in Los Angeles, California, in January of 1976.
 I then made copies of some of the x-rays which I gave to Gary Adams to deliver to Dr. Noguchi.
 On May 13, 1976 I delivered duplicates of all of my x-rays to a James Leach who was to see that Dr. John Coe of {595} Minneapolis received these x-rays. I furnished these x-rays as a result of telephone calls from Mr. Ellison and Mr. Sikma.
 During this period of time I had two or three phone calls with Dr. Coe in Minneapolis asking him if I could furnish any more things or answer any questions that weren't in my report. I also reviewed portions of my findings with Dr. Noguchi in June of 1976 in Cedar Rapids, Iowa, in conjunction with another trial, and visited some with Dr. Noguchi last evening regarding my findings.
 Q  The physical items which you had available such as photographs, autopsy reports, the x-rays, these were all provided to Dr. Noguchi, is that correct?
 A  I went over all the materials that I had with Dr. Noguchi. I only provided him myself with copies of some of the x-rays. I don't recall furnishing Dr. Noguchi with anything else. I assumed that the photographs or copies of my report may have been furnished to him by someone else just as I assume that Dr. Coe got them from someone else.
 MR. LOWE:  Judge, there is no problem on that. If Mr. Sikma will make a representation to the Court what was provided to Dr. Noguchi, I'm sure he had availability of what he needs to make the conclusions he made, if he'll make a representation, that will be all--
 MR. SIKMA:  Very well, I won't find it necessary to go into this any further with this witness.
{596}
 MR. LOWE:  No further questions?
 MR. SIKMA:  That's correct.
 CROSS-EXAMINATION
BY MR. LOWE:
 Q  Not by way of contradiction, Dr. Bloemendaal, by way of clarification, each of the agents received three shots, I believe you stated, and I believe you said that shot numbers one and two which Agent Williams received, on in the foot and a through and through in the arm that got into the flank were not the fatal shots. Am I correct stating that? You said one was potentially fatal but in the circumstances it was not fatal?
 A  No. That's correct. Neither one of those shots were fatal.
 Q  And as to Agent Coler, the shot in his arm again would have been a potentially fatal shot because I guess bleeding and shock and other things. But in this instance your opinion is that the shot to his elbow was not one of the fatal shots, is that correct, was not the fatal shot?
 A  That's correct. That's correct.
 Q  And do I understand further that of the other two shots that Agent Coler received in the head that the best you could say, one of the two of them would have been fatal, although it's not entirely clear whether the first shot of those two across the forehead was fatal or merely rendered him unconscious. If that one was not fatal, the one through his jaw was clearly fatal, is that fair to say?
{597}
 A  That's fair.
 Q  By way of a little clarification, again you may have said this initially because we're not disputing anything about your qualifications. I may have missed this. As a pathologist, do you have any official position as medical examiner for a jurisdiction near or in Rapid City or do you merely serve on call as an available pathologist?
 A  I serve on call as an available pathologist. I have no official title.
 Q  In the past have you on other occasions been asked to do autopsies on people who have met with sudden or violent death either from gunshot wounds or from other sources from the area around Rapid City?
 A  Yes, sir.
 Q  Have you examined the remains of people who met with sudden or violent death on the Pine Ridge Indian Reservation prior to this occasion?
 A  The history was that they did meet with violent death at the Pine Ridge Reservation. I have not ever personally gone down there and done an autopsy.
 Q  Were these persons who met with sudden or violent death on the reservation sometimes brought to Rapid City where you were asked to examine them for one reason or another?
 A  Yes, sir.
 Q  That's what I was asking. I didn't mean to confuse you on {598} that.
 Are you aware that a third person died on June 26th in this event at Oglala, South Dakota, named Joe Stuntz, a native American Had you become aware --
 A  I'm aware that a native American died. I don't specifically recall his name.
 Q  Did you do any post-mortem examination of Joe Stuntz in conjunction with your other examinations?
 A  No, sir, I did not.
 Q  Do you know based on your contacts with the other people who did the pathology on these two agents whether anybody in your hospital or in the funeral home where this was done examined the body of Joe Stuntz post-mortem or whether it was done somewhere outside of Rapid City?
 A  It was not done by any of the four members of our group. It may have been done in Rapid City by another pathologist but if it was I'm not aware of it.
 Q  Did anyone give you any explanation or tell you anything to the effect that you would not be examining the third person or say anything about it at the time you did the two agents, was that subject raised at all?
{599}
 As I recall, Mr. Lowe, things were very confusing at the time. We knew that we had to do two autopsies and there were all kinds of rumors that go around at a time like that, and you heard that there were other deaths. And we had no real idea where we stood there, and whether this would be all we would be involved in or many more, I couldn't give you any more, any more of a definite answer than that.
 Q  Would it be fair to say that you and your associates and the facilities that you had available for post-mortem examination in Rapid City where you did you post-mortem examinations were fully qualified and fully equipped to whatever was necessary to do a thorough post-mortem examination?
 A  I would say that we are qualified, as qualified and as well equipped as there is available in the area. There are some things that surely could be better.
 Q  Fine. In other words, there would be no reason, because of lack of qualified personnel or lack of equipment or anything else, why the body of Joe Stuntz would have to be sent somewhere for a post-mortem? There is no reason that you could have done a post-mortem on Joe Stuntz if you had been asked to do it?
 A  I think that's correct.
 +Q  Did you at any time ever do a post-mortem examination on a person named Anna Mae Aquash?
 MR. SIKMA:  Your Honor, I would object to this as totally irrelevant, has no bearing whatever on this case, has no {600} bearing on this witness's testimony.
 Counsel knows full well that this man did not do a post-mortem examination on this person.
 MR. LOWE:  Are you willing to stipulate that he did not do a post-mortem examination?
 MR. SIKMA:  I would like to approach the bench, Your Honor.
 THE COURT:  You may approach the bench.
 (Whereupon, the following proceedings were had at the bench:)
 MR. SIKMA:  Your Honor, there are certain things we've agreed to approach the bench on. We filed an objection to this sort of thing. Counsel knows this doesn't, this does not relate to this case, has no specific relation to this case. This individual was found dead months, I don't know, it may have been a year following the death of these agents. Has no relevancy to it whatever.
 I think that it's totally improper for counsel to write it up and particularly in light of the fact that he knows of our       objections in the highly prejudicial nature of the matter which he is raising at this time.
 MR. LOWE:  Well, of course we disagree. We think it's very relevant, and we will be laying a proper foundation for introducing that evidence.
 I will say for the moment that the only question I {601} intended to ask Dr. Bloemendaal was if he ever had done an autopsy in order that he did not have to be called back again from Rapid City when the defense comes up. But this is the only question, and I will vouch to the Court that that's the only inquiry we'll make. As long as they're willing to stipulate that he did not, that ends the inquiry for the time.
 MR. SIKMA:  That shows what counsel is doing here, Your HONOR> Mr. Ellison knows who conducted that autopsy.
 MR. LOWE:  The jury doesn't know.
 MR. SIKMA:  What difference does it make whether the jury knows. It's totally irrelevant and it has nothing to do with this witness. And you know full well that it doesn't have anything to do with this witness.
 MR. LOWE:  We're entitled to show that a different procedure was followed with her than it was with the agents and with Joe Stuntz.
 MR. SIKMA:  I think you are not entitled to show that, Your Honor. I think that's totally irrelevant. The fact a good job was --
 MR. LOWE:  That's only inquiry for me.
 THE COURT:  Let's get to the point involved here. The only point involved her, Mr. Lowe has stated that the reason he asked the question, if it should be shown to be irrelevant for him to make a determination as to whether it would be necessary to call this witness back. And Mr. Sikma {602} indicates that defense counsel knows that this witness did not make such an autopsy.
 MR. LOWE:  That's correct. I just want the record to show it.
 THE COURT:  Well, now based on the direct examination I don't see any reason that we need to go any further than that here.
 MR. LOWE:  I don't intend to, Judge. I'm finished on that.
 THE COURT:  You state for the record that this witness did not make such an examination?
 MR. SIKMA:  Sure, he didn't. But Mr. Ellison would know a lot more than I would.
 MR. ELLISON:  I would be happy to get on the stand and testify.
 MR. LOWE:  There are facts that I know that I've got to somehow put in evidence. And this is just one of them. And I've done what I wanted to do and that is just to get him to say that he did not. And that was all I intended to ask. This matter is closed for this witness.
 THE COURT:  Very well.
 MR. SIKMA:  Your Honor, we object to any further raising of this particular issue until counsel offers some, gives us some notice first of all of bringing it up so we have an opportunity to object. Because we don't want to get into a {603} whole trial of the entire reservation, other individuals involved.
 They don't relate to this case. There's no showing that Anna Mae Aquash, that we've been able to find, was at the crime scene on the day in question, that I'm aware of. I'm not aware of any evidence that would show that she was. I can't see how this can conceivable be relevant.
 MR. LOWE:  It is.
 THE COURT:  This is covered by your Motion of Limine, was it not?
 MR. SIKMA:  Yes, it is Your Honor. We would request a rule on it before defendants be permitted to go into this particular issue.
 THE COURT:  Well, my ruling would be that before you go into the issue the matter would be brought to the Court out of the presence of the jury.
 MR. LOWE:  Very well, that's fine. As I say I have nothing further for him on this question. I'm not sure if I have another question before I close. But I think that's all I have.
 THE COURT:  Very well.
 (Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)
 Q  (By Mr. Lowe) Dr. Bloemendall, just to summarize what you have said and to be sure that I understand you conclusion {604} findings among all of the data that you have put out before us, would it be fair to say  that your findings indicate that there were three shots fired at fairly close range, let's say less than ten feet. In one case it was a contact, and the other case it was a distance of probably less than ten feet from the muzzle. And that those three shots were the three shots which killed the agents.
 And would it be further fair to say that the shots were fired from a high velocity weapon, probably a shoulder-type weapon, and that Special Agent Coler was probably lying down on his back at the time that the shots were fired. Is that consistent with your findings?
 A  There's certain portions of it are, and certain portions of your statement are not consistent with my findings.
 Q  They are not consistent or they're beyond what you  determined may be --
 A  Certain parts are beyond and certain are not consistent.
 Q  Will you state what is not consistent?
 A  I don't think that there was anything about -- I concluded anything that some of these were less than ten feet.
 Q  All right. You have the one as the contact room?
 A  One is a contact.
 Q  I'll strike the portion on the rest. I think I maybe confused what Dr. Noguchi did. That's fine.
 MR. LOWE:  On that case we have no dispute, have no {605} further questions.
 THE WITNESS:  I'm not, the statement was so long, I don't know that I --
 Q  (By Mr. Lowe) Let me just say it again.
 A  -- agree with entirely what I have not disputed.
 Q  The three fatal shots were the ones you've described:  one, Williams through the hand; one to Coler across the forehead and one to Coler in the Jaw, and they were fired with a high velocity weapon. And the Williams shot was a contact wound, meaning that the muzzle of the weapon was touching his hand or very close to it at the time it discharged.
 A  Yes. I agree with that.
 Q  That much is correct?
 A  Correct.
 MR. LOWE:  We have no dispute, no further questions.
 MR. SIKMA:  Your Honor, I apologize to the Court, but I believe I overlooked something on direct examination and forgot to show Dr. Bloemendaal a couple of photographs which I think he could identify.
 MR. LOWE:  Well, in view of the fact that we've offer to stipulate all of the pathology, Judge, I would just ask that Mr. Sikma just state what he is, he wants to show or state. We're not disputing any pathological evidence. I don't know whether it's worth taking up the time.
 MR. SIKMA:  Your Honor, I will offer into evidence {606} Government Exhibit 73 which I represent to the Court consists of a photograph of Special Agent Coler's trousers as they were photographed. And Government Exhibit 72A consists of one side of Special Agent Coler's shirt on the outside and the Tshirt on the reverse side. Two photographs of the T shirt on the reverse side of Government Exhibit 72A.
 MR. LOWE:  No objection, Your Honor.
 MR. SIKMA:  And I would then offer them into evidence.
 MR. LOWE:  No objection.
 THE COURT:  That is 72A and 73?
 MR. SIKMA:  Yes, Your Honor.
 MR. LOWE:  No objection.
 THE COURT:  Exhibits 72A and 73 are received.
 MR. SIKMA:  I would also submit into evidence Government Exhibit 24A, Your Honor, which has not been offered prior to this time the Clerk informs me.
 MR. LOWE:  Which on is that? I'm not sure.
 THE CLERK:  Williams' shirt.
 MR. LOWE:  No objection.
 THE COURT:  22A?
 MR. SIKMA:  24A.
 THE COURT:  24A. 24A is received.
 MR. SIKMA:  That's all I have, Your Honor.
 I wonder if this witness might be excused?
 MR. LOWE:  We certainly have no objection, Your Honor.
{607}
 THE COURT:  You may step down and you are excused.