VOLUME IV

Pages 521-702

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Monday Morning Session

March 21, 1977

WHEREUPON,

The following proceedings were had and entered of record on Monday morning, March 21, 1977, at 9:00 o'clock, A.M. without the hearing of the jury:

THE COURT: Is Counsel ready for the jury this morning?

MR. TAIKEFF: Not yet, Your Honor.

THE COURT: Very well.

MR. TAIKEFF: Your Honor, I believe Your Honor asked the government to respond to certain requests that have been made by defense counsel on Friday. I think it would be appropriate that before the government responds I correct myself in one regard. Amongst the various things that I called the Court's attention to was a request I said we made of the government in writing concerning a certain rifle with telescopic sight. In reviewing our files and in speaking with certain people on the defense team I find that although that letter was drafted it was never sent, so I withdraw the statement that such a request has been made to the government and we will make it in writing.

THE COURT: That accounts for the report of the clerk to me that he couldn't find the letter.

MR. TAIKEFF: Yes. It was in fact Mr. Hanson's request that I give him an extra copy of that letter that led me to the information which I just imparted to Your Honor. I apoligize to all for the mistake on my part.

However, as to the other requests, I stand on them.

THE COURT: Thank you.

Does the government have a response?

MR. HULTMAN: Your Honor, if the Court would give me a chance at break time to get with Mr. Taikeff, I think we would be able then to get this worked out. I'm not really quite sure what this last response is. I'm confused at this point. I'd like an opportunity at least to visit with Counsel.

With reference to the first request, Your Honor, which has to do with a transcript that is about, I'm serious when I say it's about that deep (indicating). It will take me some time to reporduce it, but I am in the process of getting that started this morning and I will produce that transcript even though, Elliot, I think you have easier access almost to it than I did originally. But I will do however manu thousand pages it is.

THE COURT: This relates to the extradition procedures?

MR. HULTMAN: That's correct, Your Honor. It's in effect like a transcript of these proceedings from beginning to end of what took place in Canada.

I will, as I say, I put people about that this morning {523} and it's going to take some time to get it reproduced, but I will produce that and in plenty of sufficient time, Elliot, for, prior to any witnesses of any kind that would be coming from Canada.

Secondly, Your Honor, with reference to the specific request on witnesses, I am not sure what the posture, having not talked to those witnesses myself as yet, I am not sure what their posture is in terms of whether or not they, what their position will be with reference to interview, so I think that is something that maybe the Court ought to give some guidance as to what is going to be the procedure with reference to a determination by any of those individuals as to whether or not they are willing to consent to interview.

THE COURT: Well, as I noted, reference was made in connection with that request for possible witnesses of the United States. When would you expect those witnesses to be called?

MR. HULTMAN: Let me look at the list again, Your Honor, because I didn't get the transcript until this morning.

I would indicate to the Court with reference to two of these that they would be available and I would hope tomorrow morning that I would have a chance. That would be Draper and Anderson. On Harjo I do not know yet and on Smith I do not know yet so I can't even inform the Court yet at this time on those two. But Draper and Anderson would be available first thing tomorrow.

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THE COURT: For interview?

MR. HULTMAN: I mean, I'm not about to say, Your Honor, that they are going to be willing to. We have already had one witness or two that have refused to be interviewed by anybody up to this particular point. I have not talked to either of those individuals yet but I intend to talk to them if I can tonight or first thing in the morning and that's why I say they would be available, I know, first thing in the morning.

But on Harjo and on Smith I don't know yet when. I have no communication of any kind on those two.

MR. TAIKEFF: What we're seeking in that regard quite simply, Your Honor, perhaps in the presence of the court reporter, to advise the witnesses that we are the defense counsel, we would like to speak with them, tell them that they have a right to speak with us or not speak with us as they choose and ask whether they wish to submit to an interview. If they say no, that is the point at which it would terminate. If they say yes, we propose to proceed to interview them.

MR. HULTMAN: I will make the first two available in the morning, Your Honor. As I say, the other two I don't know yet when because I have not yet talked to any of them and as soon as I do know we certainly can follow a similar procedure with reference to Mr. Smith and Mr. Harjo. I would have them available.

MR. LOWE: Your Honor, last year we had a similar {525} procedure worked out for consent interviews with people. As a matter of fact, several said they would and several said they wouldn't. But the procedure we used in order to protect not only the court's interest in maintaining the interests free from undue pressure but also to protect defense counsel from any claims that we were using improper influence of some sort is we had the court reporter go, in that instance it was a bankruptcy courtroom, but some available room,the witness came there, was allowed to bring someone with them if they wanted, including the attorney if they wanted to. We were there and asked them and explained the Court had set up a procedure whereby if they chose and were willing to be interviewed we could do it on the record ex parte and if they didn't that would be the end of the proceedings. It worked quite well and it protected everyone's interests. I hope we might be able to obtain your cooperation in that regard again because it removes any taint from the interview.

MR. HULTMAN: A deputy marshal, as I remember, was also present during --

MR. LOWE: I think that was because those people were under protective custody, that was why the marshal was there. As I understand, nobody's in protective custody right now.

MR. HULTMAN: I'm going to have to check and find that out. There was none under when you asked me.

MR. LOWE: I would ask for an updating if there is {526} somebody in protective custody, just to be advised.

MR. HULTMAN: I will find that out.

THE COURT: I would suggest that Counsel confer at the mid-morning break and then sometime before the day is over we'll lay down some definite guidelines on procedure in this respect.

MR. HULTMAN: Very good, Your Honor.

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.

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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 Ada ms 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.

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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.

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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 ta