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PAGE 431

 

speakers engaged in the conversation, is that correct?

MR. MANDEL: Yes, Your Honor.

THE COURT: You are permitted to have the transcript

for the limited purposes of helping you to follow the

conversation as you listen to the recording, and also to help

you keep track of the speakers. The transcript, however, is

not evidence, the tape recording itself is the primary

evidence of its own contents. So any script that has been put

on the bottom of the tape itself is not evidence even though

it may now be a part of the tape because it was added later as

an aid to you. You are specifically instructed that whether

the transcript correctly or incorrectly reflects the

conversation or the identity of the speakers, it is entirely

for you to decide based upon what you have heard about the

preparation of the transcript and upon your own examination of

the transcript in relation to what you hear on the tape

recording. If you decide that the transcript is in any

respect incorrect or unreliable, you should disregard it to

that extent. Differences in meaning between what you hear in

the recording and reading the transcript may be caused by such

things as the inflection in the speakers voice. You should,

therefore, rely on what you hear rather than what you read

when there is a difference, and so you won't have a transcript

that you will hold in your hand and read, but instead the

transcript will be superimposed on the bottom of the tape.

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

PAGE 432


You may proceed.

MR. MANDEL: Just to clarify the record, I guess we

have the tape that is marked Exhibit 45 actually loaded onto

the compute and that is how it is going to be played rather

than the physical tape itself.

THE COURT: I see.

(Videotape Played).

BY MR. MANDEL:

Q. Is what you saw on the screen here now the same as what

is on the video we put in evidence?

A. Yes.

MR. MANDEL: No further questions, Your Honor.

THE COURT: You may cross examine.

CROSS EXAMINATION BY MR. RENSCH:

Q. Sir, if I ask a question that seems confusing, would you

stop me so we are understanding each other?

A. Yes, I will.

Q. Words can be pretty important in law enforcement, can't

they, sir?

A. Yes.

Q. Because we use words to describe things that have

happened, true?

A. That's true.

Q. And when you write the reports that you write, you use

words to write them, don't you, sir?

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

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A. That's correct.

Q. And you record the things that happen throughout your

law enforcement career in police reports, don't you, sir?

A. Yes.

Q. Now you have filed many numbers of investigative reports

or reports in this case, have you not?

A. Yes, I have.

Q. And each time you had some dealing with this case you

would prepare a report, wouldn't you?

A. Many more cases.

Q. As it relates to this case, Anna Mae Aquash case, you

certainly would be filing reports, would you not?

A. Yes.

Q. On July 25th, 1995 you were with Arlo Looking Cloud when

he willingly went out to the scene of this killing and he

showed you what happened, didn't he, sir?

A. Yes.

Q. And what he showed you happened was essentially the same

thing that he just talked about on this video that we have

seen, is that correct, sir?

A. In the video there he did not mention that when they, at

the scene on the 25th, when they took him out there he said

that Anna Mae wanted to pray first and then Arlo, then John

Boy took the gun and put it in the back of her head an shot

her.

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

PAGE 434


Q. Other than that, though, his statements at the scene

were consistent with what he said on this video that we have

just watched?

A. Fairly consistent.

Q. Do you have any specific inconsistencies that you have

noted?

A. No.

Q. Can you think of any specific instances as you are

sitting there?

A. Just that he added more in the video. The one occasion

there when he said when they crossed to the fence, he said

when we crossed the fence, he said I think she knew then what

was going to happen.

Q. Incidentally, on July 25, 1995, you were the United

States Marshal for this district, is that right?

A. That's correct.

Q. In your capacity as the United States Marshal there is

equipment available to you that is known as a wire, would you

agree?

A. Yes.

Q. Meaning you could have had a recording device on your

body to record just exactly what he said out there as he was

standing on that embankment, isn't that true?

A. That's true.

Q. Did you choose not to use such a recording device?

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

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A. I chose not to.

Q. So before you met with him you thought about using a

recording device, is that right?

A. No.

Q. Well, you just said you chose not to use one. Did you

choose not to use the recording device?

A. I never thought about using a recording device. I had

witnesses there with me that stood there at the scene.

Q. If you don't use a recording device -- well, you correct

me if I am wrong, but it is easier for you to put your slant

on what was said, isn't it, sir?

A. I am not putting any slant on what was said.

Q. If you wanted to put a slant on it, it would be easier

for you to do so if there was no tape recording of his

statement, is that not so?

A. If I choose to put a slant, that's true.

Q. Did you ask any of the other agents that were in your

employ on July 25th to tape record anything that Arlo Looking

Cloud had said?

A. No, we didn't.

Q. You have told this jury that Arlo said to you that day

we got her out of the car, we took her, and this is where we

walked, is that correct?

A. That's correct.

Q. When you prepare a report, though, of your conversation

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

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with Arlo on that day, you note that he says that John Boy

took her out of the car, don't you, sir?

A. He said John Boy took her out and then I got out and

went with them.

Q. And that John Boy told Looking Cloud to come along, is

that correct?

A. That's correct.

Q. And that Looking Cloud then reenacted what had occurred,

correct?

A. That's correct.

Q. So Arlo did not say to you we got her out of the car,

did he, sir?

A. Yes, he did.

Q. He said that we got her out of the car?

A. At one point in time he said, in his conversation with

him, he said we stopped, John Boy got out, I got out, and we

got her out of the car. And then he said I will take you, I

will show you where we went with her, and we went walking in

to the ditch.

Q. If Arlo Looking Cloud is saying we got her out of the

car, using the word we, that is pretty important, isn't it,

sir?

A. Yes.

Q. Because that would show that he was helping if he used

the word we, right?

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

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A. That's correct.

Q. So if you were to have heard something like that, your

practice is to note important matters in your report, isn't

that true?

A. It is. If you are referring to the report I wrote on

the 25th, that wasn't a verbatim report of everything that was

said, that was only a report to detail the locations that he

took us.

Q. Well, when you write a report you want to note the

important facts, don't you?

A. Yes.

Q. You would agree that it is an important fact that

Mr. Looking Cloud said we took her out of the car, right?

A. All I remember is that that is what he said.

Q. Would you agree that that is an important fact that he

said we took her out of the car?

A. That is an important fact.

Q. Yet in your report you did not note that he said we took

her out of the car?

A. No, I didn't.

Q. You in fact say John Boy got out of the front of the

vehicle and then took Anna Mae out of the back, isn't that

what you put in your report.

A. That's what I put in my report.

Q. You wrote this report on what date?

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

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A. I think it was probably the next day.

Q. So that was when these events were much fresher in your

mind than they are now if it is the next day, can we agree

upon that?

A. Yes.

Q. You also indicated that you had some people go out to

the scene and use a metal detector to try to find some

bullets, is that correct?

A. That's correct.

Q. What year did that occur?

A. That occurred in 2003.

Q. 2003. How many years after this killing was that?

A. Twenty-seven years.

Q. Twenty-seven years. Now you were aware, I mean you grew

up in this region, didn't you, sir?

A. Yes, I did.

Q. The Bad Lands have become the Bad Lands because of

erosion, haven't they?

A. Yes.

Q. And if we had testimony in this record from Roger

Amiotte that these cliffs have eroded through time, would you

be in any position to disagree with that?

A. No, I wouldn't.

Q. You don't know how similar the top of that bank is to

the way it was back in 1975, do you, sir?

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

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A. No, I don't.

Q. You don't know if three feet have eroded off of that, do

you, sir?

A. No, I don't.

Q. So if he had shot into the ground at the top of the base

of that cliff, we will call it, it is possible that that could

have eroded and fallen down through the years, is that not so?

A. That's correct.

Q. You, sir, you are not claiming to be any medical expert,

are you?

A. No, I am not a medical expert.

Q. You don't have any training in medicine, do you?

A. No, I don't.

Q. You don't have any training in the functions of the

human body, do you?

A. No, I don't.

Q. You don't have any training in the chemical processes

that occur in the human body, do you, sir?

A. No, I don't.

Q. You don't have any training in what happens to a body

after a person has passed away, do you, sir?

A. Yes, I do.

Q. What is that training?

A. That training is from forensic training that I have

received from crime, sexual crime investigation, from dealing

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

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with hundreds of homicides that I have dealt with, hangings

that I have seen during my 28 years to see what effects that

are on the body after a crime like this.

Q. You have told us as we looked at the picture of her left

hand that had the bracelet on it that the black marks that

appear in one of the Polaroid photographs in your estimation

could be ligature marks, is that correct, sir?

A. That's correct.

Q. But you don't know for sure whether those are ligature

marks, do you?

A. I would say that it is.

Q. You would, okay. Well, let's test your knowledge of the

human body after it dies. Do you know what livor mortise is?

A. No, I don't.

Q. Well, if we had a pathologist come in here and talk to

us about viewing Ms. Pictou-Aquash's body, do you think that

the pathologist would know more about the human body than you?

A. Yes.

Q. Are you aware of the fact that the pathologist who

reviewed this body found no other indication of injuries other

than one bullet hole?

A. What pathologist are you talking about?

Q. Talking about Dr. Garry Peterson?

A. Yes.

Q. Well, would you say that Dr. Garry Peterson is in a

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

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better position to, since he actually viewed the body, to

determine what would be an injury and what would not?

A. The fact that the hands were not with the body when he

did the second post mortem he couldn't tell whether the

ligature markings were there or not.

Q. Well, he's never told us that, do you know that, sir?

A. I don't know that.

Q. When they cut the wrists and hands off of a body it

leaves what is not cut, would you agree?

A. That's correct.

Q. Sure, and those black marks that you talked of go up the

arm, don't they, sir?

A. The black marks, I think if you put the photo back up,

you are talking about some scratch marks which are post mortem

down below the bracelet, which is probably scratches from

either being drug in the weeds, and then above the bracelet

you can see the ligature markings.

Q. You say probably scratches from being drug in the weeds,

is that what you are telling us?

A. That's correct.

Q. You don't know one way or another whether those are

scratches from being drug in the weeds, do you, sir?

A. I believe she was shot at the top of the bank, she was

untied and pushed over the edge.

Q. We know what you believe, and you have told us that you

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

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looked at some photographs that were 25 years old and you have

come to conclusions. But you don't have any other evidence

that indicates that those, where those scratches came from, do

you, sir.

A. No, I don't.

Q. Likewise, you don't have any other evidence that

indicates where the black markings came from, do you, sir?

A. I believe they are consistent with the fact that we have

testimony that she was tied up, and that that was from the

rope marks, or what ever they used to tie her up with.

Q. So that is your belief that you have arrived at through

your years of experience and things of that nature?

A. That's correct.

Q. If livor mortis has been testified to in front of this

jury as being the settling of blood at a low point on the

body, if that wrist were at a low point when this body was

laying there, would you agree that that could have been from

the settling of blood?

A. No, not at all.

Q. You don't have any medical background to say otherwise,

though, do you, sir?

A. No, I don't.

Q. When you spoke with Arlo Looking Cloud on this videotape

that we just watched, did you ever lie to him?

A. No, I didn't.

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

PAGE 443


Q. Is it your practice to lie during an interrogation?

A. No, it isn't.

Q. You thanked him at the end for his cooperation, didn't

you, sir?

A. Yes, I did.

Q. And you meant it, didn't you?

A. Yes, I did.

Q. Now not only did he speak to you on July 25th of 1995,

and on the time in 2003 when we just watched up here on the

screen, but you in fact had spoken to Mr. Looking Cloud about

these events in November of 1994, is that not so?

A. I am not sure whether I can mention that.

Q. I am asking you?

MR. MANDEL: I ask that we approach on this matter.

THE COURT: Very well.

(Bench Conference)

MR. MANDEL: Your Honor, this refers to an interview

that took place pursuant to a proffer that was made. We

agreed it would not be used against the defendant. We did not

use it. For the defendant to seek to put this in, it is

hearsay evidence, it is not admissible under any exception to

the hearsay rule. We have steered clear of it, because it

wasn't usable, we agreed not to use kind of a queen for a day

thing, we agreed not to use it, but I don't think we can have

that turned back on us. And as I say, this at this point is

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

 

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straight hearsay testimony. He is seeking to offer it, we

didn't offer that and it doesn't fall under any of the

exceptions to the hearsay rule.

MR. RENSCH: It's my client's statement, the hearsay

rule does not apply to it, and it is exculpatory.

THE COURT: We are going to have a hearing out of

the presence of the jury on this one.

(End Bench Conference).

THE COURT: We are going to have a hearing out of

the presence of the jury, it is time for an afternoon recess

anyway. So don't talk to each other about the case, we will

be in recess maybe a little over fifteen minutes, I have to

deal with an evidentiary matter. Please stand for the jury.

(Jury Leaves).

THE COURT: Please be seated. Alright. Does

Mr. Ecoffey need to remain on the stand for this hearing.

MR. MANDEL: I guess that all depends what comes up,

Your Honor.

THE COURT: Well, okay, sit tight then. The

government asked for the side bar so the government may

proceed.

MR. MANDEL: Your Honor, under the rules of evidence

the United States has the ability to bring in the defendant's

statement as admissions against interest. The defense does

not have the right to bring in other statements, and in fact

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

 

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these aren't admissions against interest. The defense claims

the statement it wishes to bring in is exculpatory. What

happened was in 1994, the defendant, represented by counsel,

came in and agreed to use a proffer. The terms of that

agreement were that we would not use the statement against

him, we would not do so, we didn't proceed on the basis of

that statement. As part of that agreement at that time he

also took a polygraph test, and frankly that polygraph test

came back showing deception on the issue of whether or not he

fired the shot. Now this is stuff that we didn't go in, we

couldn't go in, isn't properly admissible before the Court.

Now the defense wants to go in to it and offer it. Our

position is very simple, as to the statement there is not the,

any basis for the defense to bring it in. Doesn't fall under

any exception to the hearsay rule, and the fact that it is the

defendant's statement as he asserted doesn't make it

admissible, and the fact it is an exculpatory statement by the

defendant doesn't make it admissible. What the difference

between the government bringing it in and the defendant

bringing it in, the answer is simply this. For us it becomes

a hearsay statement that suffers the same problem as all

hearsay statements, and why they don't get in, not subject to

cross examination. Stuff we choose to bring in that is

inculpatory, or exculpatory for that matter, that's our right,

but not the defense's right to enter those hearsay statements

JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
Sioux Falls, South Dakota 57104 (605) 330-4877

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