VOLUME V

Pages 703-959

{703}

TUESDAY MORNING SESSION

March 22, 1977

(Whereupon, the following proceedings were had and entered of record on Tuesday Morning, March 22, 1977 at 8:40 o'clock, A.M. in chambers:

MR. CROOKS: How on earth did that get made public? I understood that that was all going to be sealed, chambers things.

THE COURT: It has been sealed now.

MR. CROOKS: And I didn't see the report, but what's that about one of the jurors supposedly said she's prejudiced and I --

THE COURT: I think somebody by the name of Mr. Trudell of the defense group held a news conference and made a statement to the press that pretty much detailed what had taken place. And Ralph came to me about the middle of the afternoon and said the press wanted to know if I would comment on it. And I told them just informally that I had no comment.

MR. TAIKEFF: Your Honor may be interested in knowing that one reporter approached me and Mr. Lowe and asked us for details. And instead of giving details we denied that the incident occurred.

We have no knowledge of how that began, but we have refused to acknowledge even a semblance of truth to it, and give a flat denial that there was any such incident.

{704}

MR. HANSON: I might mention, Judge. That when I advised the reporter of your no comment the reporter advised me that that's the third no comment that they received on it, implying that the Government has not commented on it and that the defense attorneys had indicated no comment.

THE COURT: Well, the jury is sequestered so I'm not particularly concerned. But the public I suppose will have to make up their own mind as to what may or may not have happened.

MR. CROOKS: I guess my inquiry was how did anybody find out about it because I understood that that was not to be made public by any party, and all at once here it -- maybe one of the witnesses made it public, I don't know.

THE COURT: Obviously somebody did. And as I say I didn't know that I need to go into that at this time because I don't know what would be accomplished.

MR. HULTMAN: Your Honor, the reason why we asked to meet with the Court is that in open court a request was made, I don't remember, Elliot, whether it was late Friday. I think it was Friday, yes because John was not there, that they have an opportunity specifically to interview four individuals by the name of Mike Smith, Mike Anderson, Wilford Draper and James Hardgill. And I indicated yesterday that they were going to, I would have a chance to visit with them last evening, the three that are in Fargo, and that is Mike Smith, Mike Anderson and Wilford Draper James Hardgill, he's under subpoena but he's {705} not here yet. And I indicated that this morning at 8:30 I would make these three individuals available and indicated to counsel, and they are in the witness room down at the end of the hall.

The small courtroom is locked, and so I got that room. There's a double room, it's an inner office and an outer office so there's two separate rooms in effect. You come in and out of a room and then like in your office, your inner is a second room, it's a separated room, and that's where the witnesses are in each of the three instances.

THE COURT: Excuse me. I'm just curious. You say the small courtroom. I don't understand that.

MR. HULTMAN: We couldn't get in it, Your Honor, and again this morning it was locked.

MR. CROOKS: The room he's referring to, Your Honor, is 212.

MR. HULTMAN: On the second floor.

MR. CROOKS: Which is down from our office. This is the room that I had mentioned earlier that the ag people had been in.

MR. HULTMAN: So now we have a room which is a double room down at the far end which is, is that right, is that the number, 212?

MR. CROOKS: Yes.

MR. HULTMAN: And it's adequate. As I say there are two separate rooms in it. You walk in the outer room. It would {706} be like coming in your outer office; and then there's a second room with an inner door that. you do to the next room which is totally separate. So I've had those witnesses there, as I indicated to counsel yesterday, since about 8:15 this morning. Each of the three of them has indicated to me that they did not wish, from their determination, to talk to the defendant's counsel.

In no way do I indicate to the Court or to defense counsel, and I think this is in any way binding because that's, I'm just merely reflecting what it is. And that was certain, without any coaching or anything else. I just plain asked a straight out question this morning, do you or do you not.

Now, I realize that is in no way binding, but what I am concerned about, Your Honor, is that I want to make absolutely certain, and I think I have a legitimate request to the Court, that once that question is established, and only that question be established first by counsel before getting into any testimony of any kind, because the first level issue is a right of the witness. Do I or do I not wish to be interviewed. And I think that's a free and a fair determination. And counsel --

MR. TAIKEFF: We agree.

MR. HULTMAN: And the only reason I raise it is because at the last trial, and I'm going to refer to the record, we went through this particular proceeding at that time, and I want to read the first couple of pages of one of these two {707} witnesses, Mr. Draper; that we are referring to the interview that took place because I think one, it was never established -- questions were requested specifically about specific people. The very ultimate issues before there was any determination made as to whether or not anybody was willing or not willing to make a consent interview. That's the threshold issue that I feel there is a right for that determination first.

And, I would refer to, I don't know the exact -- it's page 1 of the transcript, of the interview in the last proceedings of Wilford Draper. And the first page here, page and a half, reads as follows, and I'd like to dictate it into the record:

"WILFORD DRAPER, taken at 12:45 p.m., June 6, 1976, in the Bankruptcy Courtroom, United States Courthouse, Cedar Rapids, Iowa, in the matter of the United States of America versus Robideau and Butler. Present: John Lowe and William Kunstler, attorneys for defendants. Mr. Dale Williams, United States Marshal.

"MR. LOWE: My name is John Lowe and I represent Robideau. This is Bill Kunstler representing Dino Butler. This is Mr. Williams who is the United States Marshal. He is here to make sure everything is safe and secure, and this is Mr. Boudreau, Judge McManus's court reporter. Do they call you Wilford or do you have a nickname?

"THE WITNESS: Wishy or Will or anything you want.

{708}

"MR. LOWE: Okay. Is Will good enough?

"THE WITNESS: Yes.

"MR. LOWE: We will call you Will. Judge McManus has indicated that we could have the right to have a consent interview with you. That is, that we could have a right to talk with you if you would be willing to, in order to help us prepare for the trial. You know Bob and Dino are on trial for their lives."

MR. HULTMAN: Now, I submit to the Court that that not only is not a statement of the law, it's an improper statement to state to any witness.

"MR. LOWE: They can get the death penalty . . . "

MR. HULTMAN: Again I say that is clearly not only a misstatement of the law, but it is a clear attempt to in some way influence a witness as to the seriousness of something way beyond; and it gets into a matter which is not a matter of what the law was in that case or in any case.

"They can get the death penalty out of this," and we simply want to find out what kind of evidence is going to be presented so we can do the best we can to defend them.

"MR. LOWE: We feel that the truth is going to help Bob and Dino if we can get the truth out in court, and so we are here today simply to ask you what the truth is as you know it and to ask you what you understand you will be testifying about, in court. We don't know for sure that you will be called {709} to testify but the Government gave us your name on a list. So we have to check all those witnesses out."

"MR. KUNSLER: You know Norman Brown?"

MR. HULTMAN: We are not getting into the very questions and the matters and the issues with reference to an interview, whether or not, there's been a determination that there was to be one or not to be one.

"MR. KUNSTLER: He was in here."

MR. HULTMAN: And so it goes and from that point on. Now, all I wanted to make absolutely certain is one, that the threshold issue be determined by counsel with the witness as to one, whether or not they wish and consent to an interview, or whether they don't. And then secondly, we don't get into matters of this kind that are certainly highly prejudicial and a misstatement of law.

THE COURT: How do you propose that that would be accomplished?

MR. HULTMAN: Well, I have them, Your Honor, in those rooms available, and all I'm concerned about is that the threshold question be asked and determined.

I would have no objection, and I think it would only be fair for example if the Court made that determination as to whether they do or they don't, because that certainly would be in all fairness without any influence of any kind, any possibility of any misleading statement.

{710}

I don't think the Government has the right to put somebody in the room to counsel, because counsel has the right to discuss with the witness. That's the only alternative I see to protect all the rights that are involved. For the Government to be present I can see the reason, and I feel without any question that's a legitimate request on the part of counsel.

But at the same time I feel that the Government has a right that that witness's rights be protected the same as practically every other witness out here has told me either directly or indirectly in the open court that one, not only do I have any right to go to talk to anybody, and particularly I could name certain witnesses, and some of them have in the open courtroom but I'm not going to be able to talk to them without their lawyer being present. And, in addition they're not going to tell me anything if I do ask.

And now I just merely say, and if, witnesses have those rights and have already exercised them in this courtroom I think these witnesses have some rights also.

MR. LOWE: Well, Judge, I think Mr. Hultman has changed his tune substantially since several days when the shoe was on the other foot and he had some witness who ostensibly, and he argued fervently, that he had the right to try to persuade them by any reasonable and ethical means to talk with him. It wasn't just a matter to have the Court talk to the witness and {711} then announced to the U.S. Attorney. And I'm afraid Mr Hultman is using a double standard here.

We have the right to confront the witnesses in a proper way. We already indicated that we desire to have the protection for the witnesses and the Court and us having the court reporter present so that the plan -- we did this last year, what we did in the last year, and it is entirely proper and I would add as a footnote it was a capital case. The statute called for capital punishment and Judge McManus has declined to rule that there was no constitutional basis. At this point we were dealing with a capital crime and it's entirely proper for us to suggest to the witness that the matter is an extremely serious case and that is another reason why he ought to in fairness talk with the defense counsel. There's not anything improper in that.

Mr. Hultman is just trying to justify his position. Now, the double standard is just not fair here. All we ask is an opportunity to have a room. We're willing to use a witness room, we don't even have to do it in our offices, where we can sit down with the court reporter in a proper and ethical setting talk to the witness.

Now, if we tell them that it's a consent interview and they say we don't want to talk with you, that's fine, and we stop. And that's no problem. But we don't have to just ask them one bald question, have them show reluctance and then pack our {712} tents and move away. It's certainly proper for us in a proper and noncoercive way to try to explain how important it is for us to prepare a defense in an important case like this. And to try to use some persuasion to have them talk with us. It will all be on the record.

I think Your Honor knows from dealing with Mr. Taikeff and me that we're not going to overreach ourselves in any unethical means. That's all we ask, and I think we're entitled to that.

THE COURT: Would they be advised that the decision as to whether or not they wish to talk to you is theirs to make?

MR. LOWE: Absolutely.

In addition if they want to have counsel, I think one or two of them last year did, that's perfectly proper I think Norman Brown had his mother with him last. We have no problem with that.

Mr. Hultman is acting like we're trying to closet ourselves and coerce them into relying --

MR. HULTMAN: I was just asking for procedure and or the record, John, I take total issue with your statement with reference to what the record will show from the last trial as to the status of the case, whether it was or wasn't a capital case, whether or not capital punishment was involved. I don't want to argue it.

MR. TAIKEFF: I'm glad because I'd like to be finished {713} with the last trial finally and try this case only.

MR. HULTMAN: Well, on the record, Your Honor, could I make a request. there. That I think it has been ruled that in the courtroom we're not going to be referring to the last trial, and I would request of counsel henceforth that we talk about testimony under oath and not testimony under oath at the last trial to bring it to the Court's record.

I think in all fairness that that is something that by the Court's ruling is the posture that it's in and I would make that formal request at this time on the record. And the use of transcripts from the last trial.

MR. TAIKEFF: I think that has to await the occasion for a ruling by the Court. But I will, as far as I'm concerned. I will not make any reference to there having been a separate trial without first approaching the bench and pointing out where I think it's appropriate to do so.

THE COURT: At this time there have been at least two or three references to another trial, and it is the ruling of the Court that in references to prior testimony counsel should not refer to the prior trial, refer to prior testimony under oath on or about such and such a date.

MR. LOWE: I think that what we're talking about is, I mean we're kidding ourselves because at least one of the jurors during voir dire mentioned it, there were no objections from counsel in front of the other jurors, and if we think that {714} there's a juror that doesn't know there wasn't a trial last summer and doesn't know what the result is, we're just kidding ourselves.

THE COURT: One of the jurors mentioned it. Of course, obviously, he had no opportunity to object. The juror simply --

MR. LOWE: He could have objected to the whole panel, but it's obvious that there was a trial.

MR. HULTMAN: I don't accept that either, John.

THE COURT: Well, I think to refer to prior testimony as having been at the last trial just places undue emphasis on that and as Mr. Taikeff says I think we should get away from that.

MR. LOWE: As happened in other proceedings in any event, I usually say that.

THE COURT: That would be the proper approach on the question. The witness should be interviewed with the court reporter present.

MR. LOWE: Thank you, Judge.

THE COURT: Should be advised that they have the right to decline to the interview, and I would permit you to, when I say you, counsel for either side in interviewing witnesses, make a statement that, some general statement the effect that because of the importance of the case it is your desire to interview him; and I think with that foundation, or with those preliminary remarks, that the witness should then be {715} asked to state specifically whether they do or do not consent to an interview.

MR. HULTMAN: Your Honor, the Government certainly would accede to that. The Government's witnesses are available now, they are in, as I say, in the area that I referred to. There is a separate room in which that could take place and it would be the request of the Government, Your Honor. I know this is unusual, but the proceeding is unusual to start with. The posture that we are in, I would request of the Court that that determination at least at the threshold be made now, and that they be given an opportunity, because I would like to proceed with the calling of these particular witnesses, and I intend to proceed with the calling of these particular witnesses.

MR. TAIKEFF: We have no objection to proceeding that way. Your Honor.

THE COURT: Well, what do you mean by "now"?

MR. HULTMAN: I would like to at least establish that now, Your Honor, because --

THE COURT: All right. Let's say that they consent to an interview. Are you suggesting that we should hold up court for the forenoon to allow these interviews?

MR. HULTMAN: Well --

MR. LOWE: I think we ought to try and interview then this evening, Judge.

MR. HULTMAN: I am prepared to go forward now with the {716} testimony and I think that the Government's got a right to present its case in the order and the method. And I think that once that issue is established I think I have a right to go forward with the testimony.

I don't want to leave these individuals, Your Honor, and on the record again I'll make it very clear that these individuals are under extreme pressures and to the extent that they are left in the area with other people around to attempt to influence them in any way, I think is not in the interests of justice as far as this case is concerned. And that is why I would like to proceed with these witnesses.

I saw them last evening, the first time I've seen them. In fact, one of them I've never ever seen before, and I think that from the orderliness of a trial standpoint, that ought to be established right now. They are available, they're all here. Otherwise I think, Your Honor, that we're going to run into --

THE COURT: Did these witnesses testify in the last trial?

MR. HULTMAN: One of them did. Two of them did not, Your Honor. Two of them did not.

You see, my problem is they are not under protective custody and they could walk out of this courthouse this afternoon or this morning and I never see them again. And that I've had extreme difficulty to get witnesses, and I think it's imperative, {717} Your Honor, that I be given every opportunity to make sure that I continue to have certain witnesses available and that this jury have an opportunity to hear their testimony.

THE COURT: Well, we are still on the cross-examination of Robert Ecoffey.

MR. HULTMAN: Yes.

THE COURT: Which witness do you intend to call? Do you intend to call one of these witnesses?

MR. HULTMAN: I intend to proceed with the calling of these witnesses, that's exactly right, Your Honor. Because I run the risk in another day that one or more might not even be here.

THE COURT: How much time do you feel that defendants should have, the defendant should have to interview, counsel should have to interview?

MR. LOWE: Well, Judge, that's very difficult to say. We've got three witnesses. I certainly want to go down and make the witnesses comfortable and get the court reporter set up. Give him a little bit of preamble about who we are and what we are doing and why it's important to have an interview. Then explain to them that they have the right not to interview if they choose, if they object, and then attempt to have them interview and get the information that we want. And they're both witnesses that were eye witnesses. It's difficult to say to find out.

{718}

THE COURT: Is this going to be done individually or with the three?

MR. LOWE: Individually, yes, sir, individually.

I also feel, Your Honor, that we, when we say no interview, presumably we're talking about the merits of the case, or the substance of their testimony.

I do feel that we ought to be able to, through proper questioning, not through overreaching with the court reporter present, make some inquiry whether any one of these are hesitant to talk with us to inquiry whether any one has suggested to them that they ought not to talk with us. I think that's reasonable inquiry for us to make and it does not get into what would be called an interview. And I would propose to do that on the record also so that we have some indication because if there has been some attempt by somebody to influence them not to talk with us I think that makes it a different situation, and I think that Your Honor would want to take some action to secure interview for us, or at least to purge the witness of the taint of such coercion.

MR. TAIKEFF: Your Honor, assuming that Your Honor is fully aware of how inept lawyers are in estimating time accurately I would say that we need about ten minutes for each of them in order to determine what their position is, and whether any further application to the Court is appropriate. If any one of them should agree to an interview, of {719} course that raises a separate time problem. But just to ascertain I think a fair statement would be ten minutes per prospective witness.

MR. LOWE: I would think that would get us into that point.

Now, we're geared up for today. The Government has given us material for a whole string of witnesses. We have scheduled our day and we would prefer to make this this evening when there is no pressure of time on the witnesses or on us or on the Court. And that's what we would propose.

God knows the Government has enough witnesses to take us through this day, and I can't examine that one day will make that much difference. We will yield to what you want to do, Judge. But Mr. Taikeff and I cannot of course conduct court proceedings and interview witnesses at the same time.

MR. HULTMAN: Your Honor, could I make a suggestion pursuant to what Mr. Taikeff has said? One, I think the threshold determination could be made, and that might save us all problems from that point on to the extent then that the threshold issue is determined that the individual was willing to have a consent interview and to go into any and all the matters that counsel wants. That would take additional time, and no question about it. And I certainly would agree with counsel. I think what we could do if we had the original proceeding we would, one, they would be able to make that deter{720}mination and could so indicate to the Court. And as it's been indicated there would be a record of it as to what that determination is. To the extent then that an interview has been determined, that the witness is willing and does want to have an interview, then I think that could be scheduled as counsel has indicated here in such a way that it would give them a proper amount of time in order to handle that interview.

On the other hand if one or more of them would indicate there is none, I see no reason why then at that point I should not be able to accomplish using that witness in going forward to meet the ends, the needs of the Government as well as the needs of the defendant.

{721}

The ultimate issue is confrontation in the courtroom, and that's what I would hope I get an opportunity to do, and at the soonest time possible to make sure I do have witnesses in the courtroom that I know who are available.

MR. TAIKEFF: That sounds reasonable, your Honor.

THE COURT: I will delay convening court in order to give counsel an opportunity in the presence of the court reporter to interview those witnesses, and then report back to the Court as to the results of that interview.

Now, if you interview them on the question as to whether or not they will consent to an interview --

MR. LOWE: (Interrupting) If they consented, we could do that this evening after court.

THE COURT: Well, we will see what the situation is. The report should be brought back here and I will decide from that point.

MR. LOWE: With regard to that, we have an application. We are apparently not able to work something, out with the Government. I would like to make it now.

The Government advised us yesterday for the first time they have in protective custody -- I believe it was the first time, we knew it anyway -- one of the witnesses named Myrtle Poorbear -- we have desired to have consent interview with Myrtle Poorbear. Since she is in the control and custody of the Government, we asked she be {722} produced here so that we might have the opportunity to have a consent interview. She was one of the witnesses last summer and --

MR. HULTMAN: (Interrupting) She was not a witness last summer.

MR. LOWE: She was on the witness list.

MR. HULTMAN: That's different.

MR. LOWE: She did not testify. I did not mean to imply that.

She was brought to Cedar Rapids by order of Judge McManus, and we had an opportunity to confront her and ask for a consent interview. At that time she did not want to. I think she would be willing to give an interview but we won't know until we ask.

The Government has her, I guess, hidden away somewhere. That's the way it was last year. We have no way to even approach her except through the Government.

We would ask that she be brought here for the purpose of a consent interview.

MR. HULTMAN: The Government would meet any such request.

THE COURT: What is the name of that person?

MR. LOWE: Myrtle Poorbear. There are two State Troopers. We have worked that out. When they come in, we will have a chance to talk to them, so I don't think {723} we will have any problem.

MR. CROOKS: I might state, Your Honor, we have been informed through the Marshal's Service that Myrtle Poorbear is far from being hidden away. As a matter of fact, we were informed that the father, in the company of a member of the Wounded Knee Legal Offense-Defense Committee, did proceed to California where she is at and did conduct an interview of her within a few days ago.

MR. ELLISON: May I inquire as to the name of the person who was on the Offense-Defense Committee who interviewed her?

MR. CROOKS: I am not familiar with the name, but the Marshal has it.

MR. LOWE: Which Marshal?

THE COURT: Well, without getting into that at this point, Myrtle Poor Bear apparently is not here now.

MR. HULTMAN: No, no, no.

THE COURT: All right. You do intend that she will be brought here for trial?

MR. HULTMAN: Your Honor, a determination has not been made by the Government on that at this particular time.

THE COURT: If she is brought in, it would seem that the Defendant should have an opportunity to have his interview.

{724}

MR. LOWE: Judge, we may want to call her, No. 1, and No. 2, I think it is unfair for the Government to bring her up the night before and throw her on the witness stand. One of the purposes of interviewing is so you can go out and investigate the information you get in time to use it when she is on the witness stand.

THE COURT: When do you intend to make the determination as to whether she will be brought in?

MR. HULTMAN: We would know in plenty of time so that there would be an opportunity --

MR. LOWE: (Interrupting) A week?

MR. HULTMAN: I wouldn't say a week, John. I hope the trial is -- certainly two or three days would be sufficient for you, would it not? You have known her, you have known her, you have interviewed her.

MR. TAIKEFF: Not interviewed her.

MR. HULTMAN: You tried, you had an opportunity to.

MR. TAIKEFF: Your Honor, I think the point is not whether the Government chooses to call her. I think the point is the Government has her in custody, and we may call her.

THE COURT: I understand the point, and the point I am making is that the Government should make a determination as to whether or not they are going to call her. If they are going to call her, then she should be brought {725} here in sufficient time so that the Defendant's counsel will have an opportunity to see whether she will consent to an interview. If the Government is not going to call her, then that should be made known, and then the Defendant's counsel can make the determination as to whether she should be called.

MR. TAIKEFF: Which, I assume, would include bringing her so we could attempt to interview her before we decide whether we are going to put her on the stand or not.

MR. LOWE: We are going to need her in any event, Judge. We have to talk with her in order to make our determination.

THE COURT: That's no different than any other witness.

MR. LOWE: Exactly. That's why we ask she simply be brought here now. In either event, we will have to talk with her. That will give us more time to prepare and make our judgment on the matter.

THE COURT: You know my attitude, counsel can work it out.

MR. HULTMAN: I understand, yes.

THE COURT: Why don't you make the contact with these three witnesses, do it individually?

MR. LOWE: Which court reporter do you want us to use?

THE COURT: There's the handiest one.

MR. LOWE: The room we are talking about is at the {726} far end?

MR. HULTMAN: It is on the far end. We started to walk down there one day, the second floor on the far end, if you go down the hall, on the Marshal's end.

MR LOWE: I don't know the three men.

Mr. HULTMAN: I will walk down with you, just to walk down and I will leave.

(Thereupon, at 9:18, the proceedings in chambers were concluded.)

INTERROGATIONS OF WITNESSES

Pages 727-743

{744}

(Whereupon, the following proceedings were had in the courtroom at 9:55 o'clock, A.M. without the hearing and presence of the jury:)

THE COURT: It has been reported to me that two of the witnesses that were mentioned in conference in chambers decline to be interviewed, one is willing to be interviewed and the problem is working out a time when that can be done. We'll not further delay court proceedings.

MR. HULTMAN: Your Honor, I think maybe we could agree with Counsel, visit about that and report a little later in the day.

THE COURT: The intention, as I understand it from defendant's point of view, is they would like to make arrangements for that interview sometime this evening.

MR. HULTMAN: We'll work with that, with the defendants, and report back to the Court on those guidelines, Your Honor.

THE COURT: Very well. May we bring the jury in?

Mr. TAIKEFF: Yes, Your Honor.

MR. HULTMAN: Yes, Your Honor.

(Whereupon, the following proceedings were had in the courtroom in the hearing and presence of the jury:)

THE COURT: Are you ready to proceed?

MR. TAIKEFF: I am, Your Honor.

{745}

I believe we need a witness.

THE COURT: Maybe we're not ready to proceed.

MR. TAIKEFF: I'll get ready over there.

MR. HULTMAN: Mr. Ecoffey was still on the stand, I believe.

MR. TAIKEFF: May I proceed, Your Honor?

THE COURT: You may.

CROSS-EXAMINATION CONTINUED

BY MR. TAIKEFF:

Q Good morning, Mr. Ecoffey.

A Good morning.

Q Could you pull the microphone a little closer to yourself so we don't have any trouble hearing you. Thank you.

Do you recall last night I asked you a question about the distance between the place where you confronted the three young men and the BIA jail?

A Yes, I do.

Q And I believe your answer was that the distance, it was 13 miles, is that correct?

A That's correct.

Q Mow you're a police officer, are you not?

A Yes, I am.

Q And could you tell us whether possession of a clip with bullets in it is a crime on the reservation?

A I'm not sure. But in a tribal statute I believe they have something concerning --

{746}

Q You say you think they have something. You mean the near possession of bullets or a clip with bullets in it, is that your position?

A With a person under the age of 18. That's the tribal

Q I thought you told us yesterday you thought they were 19 or 20 years old.

A Late teens. I'm not positive.

Q Did you place any of those young individuals under arrest?

A No, I didn't.

Q Do you know that you share in a certain sense the law enforcement responsibility on the reservation with the FBI, right?

A That's correct.

Q You take care of certain crimes, they take care of other crimes, right?

A That's correct.

Q Is it your understanding that the FBI is authorized under the law to arrest somebody for possessing a clip with bullets in it on the reservation? I asked what your understanding is.

A Well, at this time I don't, I don't believe the three persons were under arrest.

Q I see.

Did they ask to go with you to the BIA jail?

A No. They were asked if they would.

{747}

Q What did they say?

A Said "Sure."

Q And as far as you could tell they seemed perfectly happy to go along for the ride?

A Yeah.

Q They didn't seem angry?

A No.

Q Or annoyed in any way?

A Not as far as I could tell.

Q Were they searched before they were taken to the jail?

A No. I don't believe so.

Q Were they treated in a polite way?

A Yes. As far as --

Q As far as you could tell they were treated in a respectful way?

A Yes.

Q Now when you went to Wanda Sear's House, did you enter the house before you saw Wanda Sears or the person you were told was Wanda Sears?

A No, we didn't.

Q You knocked on the door?

A Yes.

Q And she was asked whether you, meaning you and the three officers with you, could come in, right?

A Yes.

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Q They didn't push her around in any way, did they?

A No.

Q They didn't yell at her?

A No.

Q They didn't treat her in a disrespectful manner?

A No, they didn't.

Q As far as you're concerned they treated her politely and properly?

A Yes.

Q And she invited them into her house?

A Uh-huh.

Q They didn't push their way in?

A No.

Q They didn't threaten her with anything?

A No, they didn't.

Q I show you what has been marked Defendant's Exhibit 78A for identification and ask you to look on the several pages where you will see 12 photographs per page and tell me whether you see the photograph of any of the young people that you encountered that evening, the 25th.

A Photograph No. 11 on the first page.

Q And who was that?

A This is John Nelson. We call him Dusty Nelson.

Q Anybody else? Would you continue looking, please.

Anything else, sir?

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A No.

Q Look at page 3. Look over all of those photographs again, please.

Do you see anyone you recognize?

A You mean that I seen on the 25th?

Q On the evening of the 25th.

A No, I don't.

Q Look at photograph No. 3.

Anything?

A No.

Q Okay.

May I have that back, please.

MR. TAIKEFF: May I confer with Counsel for a moment, Your Honor?

THE COURT: You may.

Q (By Mr. Taikeff) Mr. Ecoffey, did you write a report of your activities of the day, June 26th, 1975?

A Yes, I did.

Q And it was a special report, was it not?

A Yes, it was.

Q And it ran on for several pages, didn't it?

A Yes, it did.

Q I want to show you Defendant's Exhibit 87 for identification and ask you to look at it for as long as necessary so that you could answer the following question: does that document contain {750} a verbatim reproduction of the report you wrote concerning your activities of June 26th, 1975?

MR. HULTMAN: Counsel, could I just see the report? I would just like a chance each time to see which exhibit it is you're referring to. Could I see it?

MR. TAIKEFF: All right. I don't mind in this particular instance showing it to Counsel, Your Honor.

MR. HULTMAN: Without that knowledge, Your Honor, I'm in no position to offer any objections.

MR. TAIKEFF: Your Honor, I haven't offered it in evidence.

MR. HULTMAN: Even ask questions.

MR. TAIKEFF: I'm not questioning Mr. Hultman.

MR. HULTMAN: Thank you, Counsel.

Q (By Mr. Taikeff) I'm returning to you, sir, Defendant's Exhibit 87 for identification. I want to repeat my question in the event that I misspoke before. I'm asking you whether that document contains a reproduction of the special report you said you wrote concerning your activities on June 26, 1975. Yes or no?

A Yes, it does.

Q At the time you wrote the report, were those events fresh in your memory?

A Yes, they were.

Q And did you write the report with the intention of {751} recording your actual recollections truthfully?

A To the best of my knowledge; yes.

Q And did you write this report in the course of your official duties as a police officer?

A Yes, sir.

Q And in connection with your activities relating to the incident which is the subject matter of this lawsuit?

A Yes, sir.

MR. TAIKEFF: I have no further questions.

REDIRECT EXAMINATION

BY MR. HULTMAN:

Q I just have one question, Mr. Ecoffey. The various photos that were shown to you, you did not recognize them at the time, is that correct?

A That's correct.

Q And that was your testimony to Counsel?

A Yes, sir.

MR. HULTMAN: No further questions.

MR. TAIKEFF: Nothing further, Your Honor.

THE COURT: You may step down.

MR. HULTMAN: Government calls Michael Anderson.

{752}

MICHAEL ERWIN ANDERSON,

being first duly sworn, testified as follows:

DIRECT EXAMINATION

BY MR. HULTMAN:

Q Would you state to the jury your name?

A Michael Erwin Anderson.

Q Where do you live, Mr. Anderson?

A Fort Defiance, Arizona.

Q And how long nave you lived there?

A All my life.

Q And what is your birthday, Mike?

A 9-19-58.

Q 1958? So how old are you are the present time?

A 18.

Q How old would you have been in June of 1975?

A 16.

Q All right, and who do you live with there?

A Where?

Q Where your present home is.

A My mom.

Q And where did you indicate that was located?

A In Fort Defiance, Arizona.

Q All right. Now, I want to ask you some questions beginning, Mike, with the year, 1975, and with reference to an event in New Mexico.

{753}

Did you have an occasion in May or June of that year to go from Fort Defiance to somewhere in New Mexico?

A Yes.

Q And where did you go?

A Farmington.

Q And why did you go to Farmington?

A I went to the AIM convention.

Q All right, and did you meet some people there at the convention?

A Yes.

Q And did you stay there at the convention?

A Yes.

Q And would you tell the jury who it was that you stayed with while you were there at the convention?

A I stayed there with Peltier, and I don't know -- there was a lot of people, all kinds.

Q Do you remember any others that you can recall at this part particular time?

A See, there was Butler and Robideau, and Arline Nichols and Bernie, Bernadine Nichols.

MR. TAIKEFF: We are not able to hear.

THE COURT: Would you turn the microphone towards you and then try to speak fairly close to it? Speak up to, please.

Q (By Mr. Hultman) were there any others that come to mind {754} at this time?

A Nilak, and I think that was all.

Q All right. When you referred to Peltier, do you see him here in the courtroom today?

A Yes.

Q And what is his first name?

A Leonard.

Q And would you point him out to the jury, please?

A Over there (indicating).

MR. TAIKEFF: The identification is conceded, your Honor.

MR. HULTMAN: Let the record show.

THE COURT: Very well.

Q (By Mr. Hultman) Now, did you have occasion then to leave Farmington and go somewhere early, either late in May or the early part of June?

A Yes.

Q And where did you go?

A South Dakota,

Q And where in South Dakota did you first go?

A Leonard Crow Dog.

Q Did you leave Farmington to go to Leonard Crow Dog's with some other people?

Q And who was it that you left with and in whose car?

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A Leonard Peltier's green pickup, camper on it.

Q And was Leonard with you?

A Yes.

Q And who else left with you?

A Bernie and Darlene and Dino.

Q And when you referred to "Dino", is his name Butler, Dino Butler?

A Yes.

Q All right.

A And Nilak. I can't remember the other names.

Q Was Bob Robideau with you?

A Yes.

Q Did he leave with you?

A Yes.

Q Did Mike Anderson leave with you?

A Yes.

MR. LOWE: He is Mike Anderson, your Honor.

THE COURT: I beg your pardon?

MR. HULTMAN: Mike, I am sorry. I referred back to who was with Mike Anderson.

MR. LOWE: Excuse me. If counsel would not ask leading questions, we wouldn't have that problem. I would like to object to the form of the previous question about Mr. Robideau. I ask he ask an interrogative type question and not a leading question.

{756}

MR. HULTMAN: Your Honor, will the record show I think the rules of these proceedings there is one counsel handling one witness.

MR. LOWE: This is my witness, your Honor, Mr. Hultman can deal with me.

THE COURT: The leading question that was asked will be allowed. It was preliminary.

Q (By Mr. Hultman) Mike, was Wilford Draper with you when you left?

A Yes.

Q Was Norman Brown with you when you left?

A Yes.

MR. LOWE: Your Honor, I am objecting to these leading questions. He is putting the words in the witness' mouth. He can ask who was there, and the witness can depend on his own recollection. The witness knows very well when he asked that question he wants an affirmative answer.

THE COURT: The objection is sustained.

MR. HULTMAN: All right, your Honor.

Q (By Mr. Hultman) Do you recall any other individuals that left with you?

A Norman Brown and Wilford Draper.

Q All right, and do you remember what women there were -- you mentioned, I believe, one woman. Was there any other {757} woman besides the ones that you mentioned?

A Darlene and Bernadine.

Q All right, so that's a total of three women, is that correct?

A Yes.

Q Who is Darlene and Bernadine, do you know them by any other name or any relationship?

A No.

Q All right. Now, you went to Crow Dog's, you say, and where did you go from Crow Dog's?

A Pine Ridge.

Q And where did you go at Pine Ridge?

A Ted Lame.

Q And where did you go from Ted Lame?

A Jumping Bull's.

Q All right, and where did you go when you went to Jumping Bull's, what part of Jumping Bull's?

A Down the wooded area.

Q And who was it that was down in the wooded area with you, if there were any other people?

A Me, Norman Brown, Wish Draper, Leonard Peltier, Dino Butler, Rob Robideau, Jeannie Bordeau, Jeannie Zimmerman and Jean Day, Anna Mae, and that's about all.

Q Was Joe Stuntz at any time in the tent area?

A Yes.

{758}

Q Was he also one of them.

A Yes.

Q All right. Now, would you turn around and look at what has been marked as Government's Exhibit 71, and you will notice at the top of that exhibit is a drawing of where it shows a highway, 18, U.S. Highway 18; and then there is some residences, and there is some plowed fields and some woods, and some objects there; and then there is an area up in the upper right-hand corner that refers to tents; and I ask you whether or not yo recognize the general area that's portrayed there?

A Yes.

Q And what is it?

A Tent area.

Q All right, what is the entire, the general area that's presented by all of 71, do you know whose property that is?

A Jumping Bull.

Q And when you referred to going to Jumping Bull, is it to that area that you went?

A Yes.

Q And when you referred to the tent area, is it the area which is located on Government's Exhibit 71 which has got some sort of wording, "Tents", is that the area you are referring to?

MR. LOWE: Your Honor, the leading questions have got to be stopped.

THE COURT: Sustained.

{759}

Q (By Mr. Hultman) Mr. Anderson, would you just point out to the jury where the tent area is?

A In that dark part right there (indicating).

Q All right. Now, I wish to take you to the night of June 25th, 1975, and ask you whether or not you went to town that particular afternoon or evening?

A Yes.

Q And did you go with anybody?

A Wish Draper and Norman Charles.

Q And where did you leave from?

A From the houses.

Q All right, and when you say the "houses", are you referring to the Jumping Bull area?

A Yes.

Q Were all of you, the three of you living in the tent area or in the general area at that time?

A Yes.

Q And where did you and Norman Charles and Wish Draper that particular evening?

A Oglala.

Q If you were to turn around again and look at Government's Exhibit 71 and use the pointer, would you show the jury the route that you took, how you went there, where you started, ar at least as far as the map, where you went?

A We went out this way (indicating).

{760}

Q And then you went out to 18, is that correct?

A Yes.

Q To Highway 18. Then where did you go from Highway 18?

A To Oglala.

Q About how far away was Oglala?

A I don't know, about three miles.

Q All right. Now, what, if anything, did the three of you do in Oglala?

A Went there to take a shower.

Q All right. Did you take a shower?

A Yes.

Q And did you, after taking a shower, start to return to the Jumping Bull area?

A Yes.

Q Would you tell the jury what, if anything, happened on the way back from taking a shower?

A On the way back we got stopped by two FBI Agents.

Q All right, and do you remember about where that was that you were stopped?

A Well, by a store.

Q By a store?

A Yes.

Q Do you know what the name of that store is?

A No.

Q All right. Is it a store in the general vicinity of {761} Oglala?

A Yes.

Q All right. Now, would you tell the jury in your own words what it was that happened at that particular time, just tell us in your own words?

A Well, they pulled over and stopped us, and they asked us if any of us were Jimmy Eagle. We said "no". They asked us for our names so we gave them an alias.

Q How many agents were there at that particular time?

A Two.

Q Two, and they asked you if any of you were Jimmy Eagle, is that right?

A Yes.

Q And none of you were Jimmy Eagle, is that correct?

A No.

Q Jimmy Eagle was not one of the three there?

A No.

Q They then asked you for your names, you indicated?

A Yes.

Q Do you remember whether or not the person who asked for names did anything as far as any action at that time?

A No.

Q At the time that you gave the names, you indicated that each of you gave specific names, is that correct?

A Yes.

{762}

Q Do you remember what the names were that you gave that you gave at that time?

A No.

Q Did you give a name at that time?

A Yes.

Q And what name did you give?

A I don't know, I forgot.

Q Pardon?

A I forgot.

Q All right. You forgot.

Did the agent do anything at the time that you gave him the names?

A Yes.

Q What did he do?

A He write them down.

MR. TAIKEFF: I didn't hear the answer.

THE COURT: Repeat your answer.

THE WITNESS: He wrote them down.

Q (By Mr. Hultman) What did he write them down on?

A A piece of paper.