LEONARD PELTIER: TRIAL TRANSCRIPT EXCERPTS
The following is excerpted from the trial transcript
of US Vs Leonard Peltier Vol. 5. The witness is a
government witness named Michael Anderson, he was from Ft
Defiance AZ, lived in "tent city" for a time during the
events at the Jumping Bull compound. He was 16 years old at
the time and had first met most of this group at the Farmington,
NM AIM conference....the following portion of the transcript
describes events after they had dispersed.
Michael's testimony below was elicited on cross examination.
He was asked at the end of his testimony if he followed
traditional teachings and responded in the affirmative.
Witnesses had the option of swearing in for testimony on either a
Bible or the Pipe..this witness chose not to swear in on the
Pipe.......
Q In June of 1975 this too, place near Oglala, South
Dakota. You described that you and some other people were on the
move for several days thereafter. You were not arrested, nor was
anybody arrested in the group until you had actually disbursed,
isn't that true?
A Yes.
Q What was
the first time and occasion that you had to talk with a police
officer or an FBI agent, whichever it was, about what you knew
about this shoot out?
A In
Kansas.
Q In
Kansas?
A Yes.
Q Was this
following the incident you described in which you were in an
automobile that had some problems in a fire?
A Yes.
Q And who
was the agent or the police officer that you spoke with about
this event?
A Gary
Adams.
Q Was
anybody else present?
A Yes.
Another agent.
Q Do you
know what his name is offhand?
A No.
Q And
where was it that you were located when these agents talked to
you?
A In
Kansas.
Q I
understand. Were you in a hospital, in a car, in a police
station, in a motel?
A The
federal building.
Q And in
what town? Was that Wichita?
A Yes.
Q And how
many other people were present in the room with you when you were
interviewed by them, if any?
A Nobody.
Two agents.
Q How many
days was that after the car blew up?
A I don't
really remember.
Q Was it
the same day?
A No.
Q Was it
the next day?
A I don't
remember.
Q Were you
under arrest at the time they talked with you?
A Yes.
Q What
were you charged with?
A I don't
know.
Q Were
they state warrants or federal warrants that you were arrested
on?
A I think
federal.
Q Do you
know if any of the other occupants of the car were also under
arrest at that time?
A No.
Q Had you
been put in a jail in Wichita, some sort of a jail type facility?
A Yes.
Q Was that
in the federal building or somewhere else?
A
Somewhere else.
Q Were you
brought up there by the agents or by someone else?
A By the
agents.
Q And how
old were you at the time?
A 16.
Q And did
they tell you that they were investigating the alleged murders of
two FBI agents?
A Yes.
Q And did
they tell you that they had information that you were one of the
people that was involved in the shooting?
A Yes.
Q Did they
tell you that since you were one of the people involved in the
shooting that it was possible you might be charged with the
murder of the agents?
A Yes.
Q And did
they suggest to you that if you cooperated with them that it
would be possible you might not be charged with the murders?
A No.
Q They did
not suggest that to you?
A No.
Q Did you
realize in your own mind if you succeeded in giving them
information which satisfied them that you might not be charged
with the murders?
A No.
Q You
didn't think so. You thought you might be charged with the
murders anyway?
A Yeah.
Q Have you
ever been charged with the murders of those agents?
A No.
Q If I
were to suggest that you were arrested on federal charges
relating to the interstate transportation of guns with
obliterated serial numbers and the interstate transportation of
unregistered explosive devices, would that sound like that
refreshes your memory?
A No.
Q Were you
ever called in front of a magistrate or a judge of any kind and
explained what you were being held for by the FBI?
A Yes.
Q Do you
remember what the judicial officer told you the charges were?
A I think
it was transporting firearms and explosives across the state
line.
Q And did
you know that you had -- or let me ask you, do you know how many
charges individually you had against you?
A No.
Q If I
suggested that you had nine individual charges, would that sound
about right?
A I'm not
sure.
Q Do you
know that you had a number of charges, however many they may have
been, it wasn't just a single charge?
A Yes.
Q If I
suggested to you that the judicial -- did the judicial officer
tell you what possible punishment you could obtain under the
conviction on those charges?
A I don't
remember that.
Q If I
suggested that he had --
MR.
HULTMAN: If it please Your Honor, the question has been
asked and the question has been answered and I would indicate
that now Counsel is trying to put into the record his own remarks
and I object for that reason.
Counsel, if you
just wait until I finish my objection.
MR. LOWE:
I thought you were through, Mr. Hultman.
MR.
HULTMAN: It is obvious, your Honor, the question was very
simple that was asked, the response was very direct, and now
counsel is by repetition, he is only trying to get matters into
the record which this witness -- it is very evident by his last
response -- does not have the knowledge; and I object for that
reason, it is repetitious.
MR. LOWE:
I have just finished asking the witness whether he was charged
with interstate transportation of weapons and explosive devices,
and first he said "no". Then when I attempted to
refresh his recollection, he himself stated it was interstate
transportation of guns and explosive devices.
This is cross
examination, and as long as I ask proper questions and I am not
badgering or overreaching the witness, I think it is proper.
THE COURT:
Proceed.
Q (By Mr.
Lowe) I would suggest to you that the judicial officer advised
you that the charges -- each of the charges against you carried
10 years in the penitentiary as a maximum punishment -- would
that sound about what you were told?
A I don't
remember.
Q You
don't remember?
A No.
Q All
right. Did Agent Adams and the other agent tell you that you had
a right to have an attorney before they talked with you?
A Yes.
Q How old
did you tell them you were?
A 16.
Q Did they
say anything to you about having any of your parents with you or
find out where your parents were located?
A No, I
don't remember.
Q O.k.,
and did you ask for an attorney?
A Yes.
Q And did
they give you one before they talked to you?
A I don't
remember.
Q You
don't remember whether you had an attorney when you talked to
them or not?
A I didn't
have an attorney, wasn't there then when I talked with them.
Q You had
asked for one?
A Yes.
Q And they
simply had not gotten one for you?
A No.
Q Did they
tell you that you had a right not to talk with them if you didn't
want to?
A Yes.
Q Did they
tell you it would be better for you if you did talk with them?
A I don't
remember.
Q Did they
make notes as you were talking to them?
A Yes.
Q Did you
tell them the truth?
A No, not
all of it.
Q Not all
of it, but what you did tell them was true, is that correct?
A It is
part of it.
Q I am not
sure I understand your answer. Do you mean that part of what was
true you told them?
A Yes.
Q But you
just didn't tell them everything, is that what you are saying?
A Yes.
Q What you
did say to them was true, is that also correct?
A No.
Q What you
did say to them was true, is that also correct?
A No.
Q It is
not, so you lied?
A Yes.
Q And how
long did they talk with you on the first time that they talked
with you?
A I don't
know. I don't remember.
Q Well,
was it a half an hour as opposed to all day long? Can you give me
just an estimate of about how long?
A About an
hour.
Q An hour?
A Yes.
Q And what
happened at the end of that hour?
A Well, I
was refusing to talk until Gary Adams said, "If you don't
talk, I will beat you up in the cell."
Q Gary
Adams told you that?
A Yes.
Q And the
other agent was present when he said that?
A Yes.
Q And did
that make you afraid?
A Yes.
Q And did
you understand that you would get beat up if you didn't give him
the answers that he wanted?
A Yes.
Q And did
you then give him the answers that you understood he wanted?
A Yes,
Q When was
the next time that Special Agent Gary Adams talked with you?
A I don't
remember.
Q Was it
while you were still in Wichita?
A I don't
remember.
Q Did
Special Agent Gary Adams in that first interview with you tell
you that one of the dead agents was a good friend of his?
A Yes.
Q Did he
seem quite angry about the fact that they had been killed?
A Yes.
Q Did he
seem quite upset?
A Yes.
Q Do you
recall an occasion when you were in the tent area on the 26th of
June, 1975, when Leonard Peltier made a statement in your
presence that anyone trying to surrender would probably get shot
by the FBI or the police?
A Yes.
Q When he
said that, did you believe that he was probably right?
A Yes.
Q When
Special Agent Gary Adams threatened you in Wichita, did you
recall what Leonard Peltier had told you?
A No.
Q Did you
believe that Special Agent Gary Adams was capable of hurting you
if you didn't do what he wanted?
A Yes.
Q When
Agent Adams asked you questions on that occasion, did he ask you
questions in this matter -- and I am quoting now I am acting as
though I was Special Agent Adams -- did he ask, for
example: Isn't it true that Leonard Peltier was carrying an
A.R. 15, is that the kind of question he asked you?
A I don't
remember.
Q You say
you do not remember?
A No.
Q Did he
ask you questions generally in the style of saying: Isn't
it true that a certain fact is true, and then ask you to just
tell whether it is true or not?
A Yes.
Q And by
doing that, as a person being interviewed, did you understand
that the substance of the question he was asking you is what he
was looking for in your answer?
A Yes.
Q And did
you understand that that was the type of information that he was
threatening you to obtain, do you understand what I am asking?
A I don't
understand, no.
Q All
right. You said just now that you understood that the things that
he was saying in his question and in asking you, isn't that true,
was exactly what he was looking for. Now, I am asking you, did
you understand that that was what he was telling you you should
say or you would get beaten up?
A Yes.
Q Did you
have any other agent or police officer talk to you, Mike, about
this incident while you were in Wichita, or was that the only
interview in Wichita?
A There
was another guy from the Firearms Bureau.
Q All
right. A Federal officer, do you know?
A Yes,
Tobacco and Firearms.
Q And did
he talk with you about the incident on the 26th, or just about
the car?
A No. I
just refused to talk to him.
Q All
right. Where did you go from Wichita -- were you released, or did
they take you somewhere in custody?
A Took me
to the Detention Center.
Q Where is
that?
A In
Wichita.
Q How long
were you there?
A I don't
remember.
Q Where
was the next place you went after the Detention Center in
Wichita, if you remember?
A Downtown
to Phoenix.
Q Phoenix?
A Yes.
Q Were you
still under arrest, or were you released by then?
A Still
under arrest.
Q Still
under arrest. Were you on bond or were you in custody?
A Custody.
Q Where
did they take you?
A To the
Detention Center in Phoenix.
Q Do you
know why they took you there, did they tell you?
A Yes.
Q Why did
they tell you?
A I had
some other charges in Phoenix.
Q O.k.
What charges did you have in Phoenix?
A I don't
remember.
Q If I
suggested that there was a burglary charge there, would that help
your recollection?
A Yes.
Q And did
the FBI say they would try to see what they could do to help you
on the burglary charge in Arizona?
A Yes.
Q Have you
ever been prosecuted on that burglary charge or convicted?
A No.
Q Did the
FBI tell you that they would try to help you on your charges in
Wichita arising out of the exploded car?
A I don't
remember.
Q Have you
ever been prosecuted on those charges?
A No.
Q In fact,
those charges have been dropped, haven't they?
A Yes.
Q Do you
read, Mike?
A Yes.
Q Do you
read very well?
A Yes.
Q I am
just going to show you -- this is not an exhibit or anything,
just the Constitution of the United States, is what it happens to
be; but I would like to ask you to just read, pick any paragraph,
start out reading.
A Section
1. All persons born or naturalized in the United States and
subject to the jurisdiction thereof are citizens of the United
States and of the States wherein they reside.
Q All
right, that's fine, thank you. After Phoenix, where did you move,
where did you stay?
A I went
back home.
Q You were
released then, weren't you?
A Yes.
Q And
where is home? You may have said that, I just didn't remember.
A Fort
Defiance, Arizona.
Q All
right. When is the next time that you talked to an FBI Agent
about this case?
A In
Albuquerque.
Q In
Albuquerque?
A Yes.
Q When was
that, do you remember?
A Just the
past week ago.
Q Just a
week ago?
A Yes, I
don't remember the date.
Q If I --
let me ask you this: Did you say it was a week ago -- you
mean literally seven days or ten days ago, or might it have been
a month ago?
A About a
month ago, I think it was.
Q Who did
you talk with then?
A Gary
Adams and Jim Doyle.
Q The same
Gary Adams that you spoke with in Wichita?
A Yes.
Q And did
you tell them the truth then?
A No.
Q What you
told them was true, just wasn't all of it?
A It
wasn't all of it.
Q O.k.,
but what you did tell them was true?
A Yes.
Q Now, to
be sure, before I pass on, before, you indicated in Wichita that
part of what you told them was not true. Was part of what you
told them in Albuquerque also not true?
A Yes.
Q And
where have you been since then, did you go back home again from
Albuquerque?
A No. I
have been going to school.
Q Where
did you go to school?
A In
Albuquerque, Southwestern Polytechnic School.
Q And then
you came up here for the trial?
A Yes.
Q And have
you seen Special Agent Adams since you got here?
A Yes.
Q Did you
talk with him again?
A No.
Q Did you
talk with somebody, with Special Agent Adams present, that is,
sitting in the room with you?
A No.
Q Where
did you see Special Agent Adams, here?
A He
picked us up.
Q He came
and picked you up.
Now, I want to
go back to June 25th, and I want to go back a little bit before
then to get a little bit of background for what you have told us.
Would you say
again about how many days before the shooting incident, did you
arrive at the Jumping Bull area from Farmington, New Mexico?
A I don't know.
Q Was it
about a week or two weeks or four days, just approximately?
A No.
Approximately about -- I can't remember.
Q Was it
more than two days?
A Yes.
Q Was it
as much as two weeks?
A Yes.
Q Was it a
month?
A I don't
remember.
Q Okay.
During that time did you live in the tent area?
A Yes.
Q Do you
know who J. D.{name withheld} is? Did you know such a person?
A Yes.
Q Who was
J. D.{name withheld}?
A A lady.
Q A lady.
Do you know whether she had any particular friendships with
anybody in the camp?
A No.
Q Do you
know who Myrtle Poor Bear is?
A No. But
I heard of the name.
Q You
heard the name?
A Yes.
Q Did you
ever see Myrtle Poor Bear in the camp, or the Jumping Bull's to
your knowledge?
A I don't
know.
Q Did you
know all the people that you did see in the camp at the Jumping
Bulls'? Do you know there names?
A Yes.
Q Was one
of them Myrtle Poor Bear?
A I don't
know.
Q You had
some disagreements with Leonard Peltier over the question of your
drinking, didn't you?
A Yes.
Q Would it
be fair to say that Mr. Peltier is, was trying to get people to
stop drinking and was complaining when they did drink?
A Yes.
Q Would it
be fair to say that he was trying to help you to straighten out
on that?
A Yes.
Q Do you
think he was looking out for your welfare and trying to help you?
A Yes.
Q Was ho
doing that with other people also?
A Yes.
TRIAL TRANSCRIPT....Agent Coward
The following testimony is taken from volume 7 of
the 27 volume trial transcript of Leonard Peltier's trial in 1977
and is from the cross examination of FBI Agent Frederick Coward
who worked out of the Rapid City office. Marvin Stoldt was
a BIA officer approximate age 22yrs.
Agent Coward claimed to have observed Leonard Peltier in the
company of at least four others running from the area across a
hilltop a half a mile away from a side view. Marvin Stoldt
claimed to have identified Jimmy Eagle (who wasn't there,
BTW)..He claimed to have discussed this with Stoldt during the
course of the day, but never wrote a report on Jimmy Eagle until
September when he again met Stoldt at the office. The 302
was dated two days after the incident and written by Agent
Coward. the report written in September by the same agent
says Stoldt claimed to have identified Peltier that day running
across the hilltop.
GOVERNMENT ATTORNEY : SIKMA
LEONARD'S ATTORNEY: TAIKEFF
"COURT: = JUDGE"
Q I put it to you, sir, and you tell me whether this is
correct or incorrect: That on June 30th, 1975, you and one
or more of your fellow agents sat down and decided from the
evidence you had gathered up to that point what had happened that
day, and to a considerable extent wrote reports which reflected
not what you had seen and heard but what you believed had taken
place, what you believed as of that time had taken place, true or
false?
A False.
Q I put it
to you, sir, and you tell us whether I am right or wrong:
That you wrote certain portions of your report purely on the
basis of fiction, motivated by what you then believed occurred on
June 26th, 1975, is that true or is that false?
MR. SIKMA:
Your Honor, I would object. This question has been asked and
answered No. 1; No. 2, it is misleading; No. 3, it is
argumentative as far as this witness.
THE COURT:
Sustained.
Q (By Mr.
Taikeff) Did you not write in your report something about seeing
Leonard Peltier that day?
A That's
correct.
Q And
isn't it a fact that it is false, that you did not see Leonard
Peltier that day?
A That's
incorrect, sir.
Q Which
way were you looking when you saw Leonard Peltier that day?
A Well, I
was looking in a northeasterly direction.
Q
Generally speaking in the direction of the residences?
A You mean
when I saw him specifically?
Q When you
claim you saw him, yes.
A Well,
when I saw him specifically I was looking east.
Q And you
were in the position off the chart, west of the houses, about a
half mile away?
A Well, I
was approximately 700 yards when I made the viewing of Leonard
Peltier.
Q Isn't it
a fact, sir, that you were a half mile away?
A From --
Q
(Interrupting) When you were at the place from which you say you
saw him.
A Well, if
you take the place where I was and measure the distance to the
houses, it is approximately 800 yards which is less than a half a
mile. If you take where I was and where I made the observation,
it would be approximately 700 yards.
Q I show
you Defendant's Exhibit 92 for identification and ask you, yes or
no, if you are able to answer yes or no, do you recognize that?
A Yes,
sir, I do.
Q Is it an
affidavit?
A Yes,
sir.
Q And did
you sign that affidavit?
A Yes,
sir.
Q And did
you swear to the truth on its contents?
A Yes,
sir.
Q And does
it have certain attachments to it which you referred to in the
text of your affidavit?
A Yes,
sir.
Q And when
you signed that affidavit and swore to it, did you understand
that you were incorporating the attachments by reference and
thereby swearing to the accuracy of the attachments and the
statements you made about them?
A Yes,
sir.
Q Was
there a map attached?
A Yes,
sir.
Q Made
perhaps from an aerial photograph?
A There
was a map attached, however it was made I don't know.
Q And on
that map did you indicate the place where you say you saw Leonard
Peltier?
A May I
see the affidavit, please?
Q Well,
can you tell me from memory, first?
A I think
the general area is probably indicated but I'm not specifically
sure.
Q Do you
recall whether you marked on that map and said in your affidavit
that you had marked on that map the place where you were and the
place where Leonard Peltier was allegedly seen?
A I
believe I did but I would have to see the affidavit.
Q Now I
return to you Defendant's Exhibit 92, I'm showing you the last
page. I'm also placing before you a blue index card with a
straight edge. Do you have a pen or a pencil with you?
A No, sir,
I do not.
Q I'm also
placing before you a fountain pen. Do you see two marks on that
last page?
A What do
you mean "marks"? On the map itself?
Q A mark
with A and a mark with B.
A Yes, I
do.
Q And is
one of them, according to your affidavit and your present
recollection, the place where you say you were and the place
where you say you saw Leonard Peltier? Yes or no, if you can
answer it yes or no.
A That
would be a yes, sir.
Q Is there
a scale on the map which tells you the equivalent of how many
feet per inch?
A Uh-huh.
Q Would
you, sir, use the blue card and the pen, if necessary, and the
scale and tell us the distance between the place where you said
you were and you said you saw Leonard Peltier. Have you
determined a distance?
A Yes.
2600 feet.
Q How many
feet are in a mile, sir? Is it 5,280 feet?
A I
believe so.
Q Would
you concede that short 40 feet the distance was a half a mile?
A I would
concede that.
Q Now when
you were looking through this distance of a half mile, how many
individuals do you say you saw?
A I saw
four.
Q And were
they standing still or moving?
A They
were running.
Q And in
which direction?
A Well,
southwesterly direction.
Q In a
southwesterly direction. Trace on the chart with the tip of the
pointer the approximate route they were running as you viewed it.
A Well,
when I viewed it?
Q I'm
talking about only your own personal sighting.
A That's
right. When I viewed it it was in this area right like this
(indicating).
Q Let me
describe that for the record. That's about a half an inch to the
right of the arrow that's designated "body of Joe
Stuntz" on the road or path?
A Well,
they weren't on the road.
Q No. Your
pointer is on the road.
A Well,
what I'm saying is --
Q Perhaps
east of the road?
A Yes.
Q All
right. And now trace out their path for a short distance.
A Well,
went this direction (indicating).
Q Mostly
in a southerly direction?
A Right.
Q And you
were looking which way?
A Looking
east.
Q You were
looking east and they were moving south?
A (Witness
nods affirmatively.)
Q Okay.
Will you sit in that chair and assume for the moment that the
back of the courtroom is to the south -- correction -- is to the
east.
A Okay.
Q Then
facing the jury would be to the south?
A That's
correct.
Q Now when
you saw, or when you say you saw Leonard Peltier running in the
direction of the jury, was he running that way and looking that
way (indicating) or was he looking at you so you could get a good
look at him?
A He was
running that way.
Q So you
could see only his profile?
A
Basically; yes.
Q And from
a half a mile away looking through the telescopic sight of a
rifle, you were able to recognize the defendant in profile while
running?
A Yes,
sir.
Q Have you
ever performed that feat at any other time in your life?
A No.
Q Now you
were not the only person who accomplished something like that
that afternoon, isn't that true?
A I later
found that out; yes, sir.
Q When you
say "later," when was that?
A Well,
the first time I had heard that was a couple months after my
report. I was not cognizant of it.
Q Isn't it
true that you just forgot to put it in your report?
A No.
That's not true.
Q The
identity by name of the people other than law enforcement
officers who were present that day was exceedingly important to
your investigation, a correct proposition or an incorrect
proposition?
A I lost
you. Could you restate it, please.
Q Yes. I
asked you whether the following hypothesis or proposition is
correct; the identity by name of the people other than law
enforcement officers who were at or near the Jumping Bull
community on the afternoon of June 26th, 1975, was exceedingly
important to your investigation, true or not true?
A True.
Q Agent
Skelly was one of those agents you worked with? Yes?
A Yes,
sir.
Q Agent
Waring was one of those agents you worked with? Yes?
A Yes,
sir.
Q You met
with them every morning?
A I met
with everybody that was there.
Q I
understand. But I have to be precise. You met with those two
agents every morning and every evening in the days following June
26, 1975?
A I saw
them; yes.
MR. TAIKEFF: May I have this marked for identification
please.
Q (By Mr.
Taikeff) Between June 26th, 1975 and the end of your working day
on June 30, 1975, did you and your fellow I agents talk about
people who had been identified positively as being present that
afternoon at the Jumping Bull community?
A Yes.
Q Did
anyone mention the sighting of Leonard Peltier?
A I did.
Q Were you
the only one?
A That I
was aware of; yes.
Q Did
anyone mention the sighting of Jimmy Eagle?
A Yes.
Q Who
mentioned the sighting of Jimmy Eagle?
A You mean
the agent?
Q Yes.
A Or who
in particular?
Q You
don't know?
A (Witness
nods negatively.)
Q As far
as you know, as of June 30 that sighting was common knowledge
amongst all of them?
A As far
as I knew. I was aware of it.
Q Did you
not tell us before that you were working with the BIA officer by
the name of Marvin Stoldt? Yes, sir.
Q Did you
have any conversations with Marvin Stoldt?
A All day.
Q Did he
tell you that he claimed to have spotted Jimmy Eagle in that same
group of four people?
A Yes,
sir, he did.
Q That was
an important fact, wasn't it?
A Yes.
Q Is it in
your 302?
A Is it in
my 302?
Q Yes.
A It's in
one of them; yes.
Q I return
to you Defendant's Exhibit 91 and perhaps you can assist me with
the possible oversight. Can you tell me the page and paragraph?
A It's not
in this particular 302.
Q Oh, I'm
sorry, sir. Did I fail to hand you your report of the activities
of June 26, 1975?
A These
are mine. These are my observations, no one else's.
Q But that
is your report concerning what happened on June 6th, 1975, isn't
it?
A That I
personally did; yes.
Q Only
what you personally did is in that report. Yes or no?
A Well --
Q Yes or
no.
MR. SIKMA:
Your Honor. I'd --
MR.
TAIKEFF: I offer it in evidence again, Your Honor.
MR. SIKMA:
Same objection as stated by the side bar.
MR.
TAIKEFF: Now, would Your Honor examine the exhibit, please.
MR. SIKMA:
Your Honor, the objection is the same for the same reasons.
MR.
TAIKEFF: The basis is entirely different this time, Your
Honor. If I may hand it up to the Court --
MR.
HULTMAN: You're going to the side bar.
MR.
TAIKEFF: I'm not going to say anything.
THE COURT:
Counsel approach the bench, please.
(Whereupon, the
following proceedings were at the bench;)
THE COURT:
Specifically why do you feel that --
MR.
TAIKEFF: Your Honor, the report details in the most
precision imaginable the activities of everybody with whom he was
working, not just himself, and every time he mentions another
person's name it is in capital letters. Your Honor doesn't even
have to read the words, Your Honor only has to read the names
which are boldface. This report impeaches his statement as to the
explanation why the Jimmy Eagle sighting is not in there, because
it doesn't refer to anybody else's activities.
MR. SIKMA:
Your Honor, that refers to things that he personally observed
other people do.
MR.
TAIKEFF: And what people told him.
MR. SIKMA:
That is not -- what does it show other people told him?
MR.
TAIKEFF: There are eight or nine pages of what other people
told him throughout.
MR. SIKMA:
There are things that people said on the radio but not
interviews.
MR.
TAIKEFF: That's not true at all.
MR.
HULTMAN: Let us finish on this side, please. Might I make a
request?
THE COURT:
The report will not be received. It can be used in the
cross-examination of this witness to point up any discrepancies
between his testimony and the --
MR.
TAIKEFF: I'm going to have to read every single word in the
report which is going to be the equivalent of offering it into
evidence.
MR. SIKMA:
Your Honor, I object to that. He's been through this 50 times. I
think Counsel's trying to delay the trial.
MR.
TAIPEFF: Not in this case he's not been through it. He
hasn't begun getting through it yet.
THE COURT:
The ruling of the Court is that this exhibit will not be
received.
MR.
LOWE: A point of inquiry just to clarify. This
is a general, not relating only to this exhibit, but general use.
If Your Honor says that this is not admitted into evidence but it
can be used in cross-examination, Your Honor is not precluding
the reading of portions of it to a witness then, for example, is
that correct? I'm not clear whether you do or don't. I'm going to
make sure we don't offend Your Honor's understanding of what
proper use can be made of it in cross-examination.
THE COURT:
You may show it to the witness, ask him to read a certain portion
and if that is clearly within conflict with what he has
testified, then it may be brought out.
MR. LOWE:
Well, I guess my question, Your Honor, and this is general, but
we're going to hit this on other occasions in this trial. If the
witness has said, assume, number one, he said this only contains
what he saw or did and there are portions here which clearly by
any objective reasoning give other information, namely what other
people have told him, it seems to me we're obviously entitled to
have the jury look at the document for themselves to judge the
candor and credibility of the witness. That's the point I'm
making. Mr. Taikeff showed it to you to offer, to let you see the
clearly inconsistencies.
MR. SIKMA:
There are no prior inconsistencies.
MR.
TAIKEFF: Now we have the inconsistencies and that's the
basis for offering it in evidence, to let the jury view it and
use it as part of the data upon which they judge this witness'
credibility.
MR.
HULTMAN: Your Honor, now Mr. Lowe referred to two Counsels,
I'd like to be heard.
MR.
TAIKEFF: NO objection.
MR.
HULTMAN: Your Honor, this is a bald attempt in order to get
all kinds of hearsay into this record and before this jury. The
very limited purpose that Counsel legitimately understands the
rules concedes he has now done, that in no way then puts a
document with all of these various items, all of us here know
that that 302 represents two things basically; one, what it is
that person may have seen or observed that day and, two, whatever
it is by way of information in a general way likewise came to his
attention.
MR.
TAIKEFF: That's precisely my point.
MR.
HULTMbN: But in no way does it allow the document itself to
come on as the best evidence. The best evidence is the man
sitting right there that's asking the questions.
MR.
TAIKEFF: I'm on the adverse side of the case. I don't have
to accept his answers.
MR.
HULTMAN: You do as far as the inconsistencies, you have
shown those out and used the document.
MR.
TAIKEFF: I haven't begun. I need the document in order to
do that.
MR.
HULTMAN: You've used it. That's what you have been doing.
MR.
TAIKEFF: Your Honor, I understand Your Honor's ruling and I
will proceed.
THE COURT:
My ruling is you may state to the witness what you understand his
testimony to be and to go over what he has said and if he agrees
that's what he has testified. You may ask him to read a specific
portion of that you consider to be in conflict what that
testimony and go on from there.
++++++++++++++++++
AFTER SEVERAL FAILED ATTEMPTS TO GET THE 302 WRITTEN BY AGENT
COWARD (AN FBI REPORT) WHICH CONTRADICTED AGENT COWARD'S CURRENT
TESTIMONY INTO EVIDENCE...THE ATTORNEYS WENT TO THE BENCH........
MR. TAIKEFF: May I ask Your Honor the leading basis for the
sustaining of the Government's position, so that I know whether
or not I perhaps have overlooked something in laying the
foundation for the introduction of this document.
THE COURT:
You may state the legal basis as to why you feel that document is
admissible.
MR.
TAIKEFF: Because it provides graphic illustration that
contradicts important testimony strongly adhered to by this
witness. It impeaches him in a significant way, and I also want
to be able to read the contents of it to the jury. It ties in
with other evidence which will be coming in this case, and I'm
left with something in a black bag that I cannot refer to in its
text if I am not able to introduce this report. It is surely
relevant.
MR. SIKMA:
Your Honor, may I respond?
THE COURT:
You may respond.
MR. SIKMA:
Your Honor, the only testimony that this witness gave essentially
on direct examination was, number one, that he sighted Leonard
Peltier; and in addition he talked about seeing some other
individuals which were fleeing from the area. And I guess there
was one other point where he indicated that he went down to the
wooded area, that there was some shooting in that area. And that
he had sighted two individuals.
Now, the other
one thing that's significant about this: is while he's
testified to this, the defense counsel in opening statements said
that we'll have no people to dispute essentially with the fact
that Leonard Peltier was in this area on the --
MR.
TAIKEFF: That's true, Your Honor.
MR. SIKMA:
-- on the 26th of June. I fail to see what the use of spending
about four hours of the time in court cross-examining this
witness on a very insignificant issue. This particular thing, the
witness has testified that he believes there's any accuracy --
inaccuracy on the date. I do not see where that is an important
and impeaching matter.
I think that it
is a very insignificant matter of perhaps typographical error or
something of this nature. But it certainly is not worth the time
and effort that's been gone into in this.
Second thing is
that it is also very misleading concerning its importance in this
trial the fact that counsel is, for what reason I don't know, but
spending a considerable amount of time on a witness that took
about fifteen minutes on direct examination, if that long.
MR.
TAIKEFF: Your Honor, the answer to the main point made by
Mr. Sikma, which I think could be called out of his statement, is
that we don't dispute his presence. The point is that when this
document was prepared in June of 1975 the Federal Bureau of
Investigation did not know that that was not going to be an issue
in the case that they were planning against the defendant, and we
are going to prove before this trial is over that the FBI has
manufactured evidence and witnesses against the defendants in
this case, or that the defendants in these cases, and this is the
beginning of that proof.
MR. SIKMA:
Your Honor, I would point out a rather credible, incredible
fallacy in the defendants, counsel's argument. They've indicated
that we have manufactured evidence.
MR.
TAIKEFF: Not you, Mr. Sikma. The FBI.
MR. SIKMA:
The FBI. This man stated on direct examination that he made that
observation, made a record of it very shortly thereafter of
identifying this person.
He has stated
that as far as this person is concerned he did not, he did not
discover that someone else had also identified this individual
until some time later, that is, the defendant, Leonard Peltier.
And I can't see where that shows evidence of manufacturing
evidence.
I just fail to
see where that -- totally irrelevant. If we don't call this
witness, I would like to see what difference it makes. Totally
irrelevant whether it's corroborated. It's corroborated
practically by the defense themselves.
MR.
TAIKEFT: We are calling Stoldt when they took Stoldt off
the witness list, we gave them notice that we were calling him,
and we will call him.
MR. SIKMA:
Well, we could still call him, but you know they're complaining
about it and now they want to call him as a witness. They're
saying that he's unreliable and that we've manufactured that
witness. And now they want to call him as a witness. I think it's
totally absurd.
MR.
TAIKEFF: The case is absurd. Our position is not absurd.
MR. SIKMA:
We would like to proceed in our case. They've already had
overnight to prepare this cross-examination. We've been delayed
in putting on another important witness, and I think that this is
a delaying tactic on the part of counsel here.
MR.
TAIKEFF: Let me assure you that we're anxious for Norman
Brown to take the stand. And if necessary be happy to work late
into the night to keep him as late as he has to be on the stand.
THE COURT:
That of course is not possible as I've already announced.
MR. SIKMA:
It's no wonder. Counsel knows it's not possible, Your Honor.
THE COURT:
The offer of Exhibit 105 is denied. Court finds in view of the
witness's testimony that its impeachment value would be very
slight.
Further finds
that the question that preceded the offer was placed in terms of
the witness lying, which the Court views as an improper question;
and the receipt of the exhibit will simply emphasize the improper
suggestion in the minds of the jury.
MR.
TAIKEFF: Your Honor, yesterday morning at the beginning of
the court day in colloquy with the Court I suggested that it had
been my experience that there were times when law enforcement
officers took the stand and had convenient lapses of memory. And
Your Honor was offended by that suggestion.
THE COURT:
That is something for counsel to present to the jury in argument.
It is not a proper interrogation. You may interrogate him as to
whether they have made conflicting statements. When the case is
argued you can argue as to whether or not they were lying, and
were they lying. But for counsel to stand up and make these
insinuations in improper in my opinion.
MR.
TAIKEFF: I understand that Your Honor is not a fact finder
in this case, but if Your Honor is not already impressed with the
fact that this witness has lied on considerable portions of his
testimony, then Your Honor is absolutely immune to what is
obvious. Because Your Honor just cannot believe that the Federal
Bureau of Investigation has done and is doing the kinds of things
which have been going on and are going on in this case.
And I want Your
Honor to know that I sincerely believe that if that's Your
Honor's position, it's because Your Honor has, with all due
respect to the Court, is an incorrect one. And I would ask Your
Honor to keep an open mind with respect to what has been done in
this particular case.
Because if five
years ago someone suggested to Your Honor that the revelations of
1973 and 1974 were going to be made, I'm sure Your Honor would,
as I would have at that time, never believed it possible. But
Your Honor, we will prove before this case is over a criminal
conspiracy on the part of the FBI to convict this defendant. And
Your Honor is frustrating that effort with rulings that are
legally incorrect because Your Honor, in good faith, just cannot
accept the proposition which we offer in this case.
And I assure
Your Honor that we know what we are talking about. We have proof
of it and it's going to develop in the course of this trial.
MR. SIKMA:
Your Honor, this is the same, I heard this same speech before. I
suppose we are going to get into matters of 1960 and early 1970.
Totally irrelevant --
MR.
TAIKEFF: No, we're not.
MR. SIKMA:
-- to the defense, to the guilt or innocence of this defendant.
We have brought
witnesses here, we intend to present our evidence on the basis of
physical evidence. This argument made by counsel, the Government
contends, is totally out of line. I've heard this sort of thing
over and over, and all it does is delay in getting the evidence
before the jury. And I think this is a delaying tactic on the
part of counsel, and I would urge the Court to keep this case
moving along.
MR. LOWE:
May I ask a point of inquiry? I'm not clear when you say about
the lying. And I have a witness later on, so I want to understand
what you said.
THE COURT:
The record is closed. I have made my ruling.
MR. LOWE:
I understand. May I ask just the general effect of what you said
so I do not offend what you said here at a later time.
THE COURT:
You may proceed at a later time. I'm not ruling any further. I've
made my ruling, I'm not saying anything more.
Last updated 04/06/2004
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