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PAGES 446 to 460

 

 

PAGE 446

 

into evidence.

MR. RENSCH: First of all, they are claiming that

the statements that they have admitted thus far of my client

are admissible as admissions against interest. They have said

in part that the statements that are admissions against

interest are consistent with the statement that was given in

1994.

THE COURT: Wait a minute.

MR. RENSCH: Hold on.

THE COURT: I want to ask you a question, so just a

minute. That's the only way I can learn things, Counsel.

Hold tight, I want to ask you questions. How is he saying

that because the '94 statement isn't in evidence, how are they

saying it was consistent.

MR. RENSCH: The reason I tried to interrupt is they

have taken the position in the extradition proceedings in

Canada against John Boy Patton that Arlo Looking Cloud has

made statements about this matter involving John Graham, and I

believe the extradition matter refers to three statements and

says those statements are consistent. Now the point I was

going to make was that they are saying that what they are

introducing now would constitute an admission against

interest, and that would be an exception to the hearsay rule.

To the extent the '94 statements are consistent to these

admissions against interest that the government is now placing

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

 

PAGE 447


before the jury, they are likewise an exception to the hearsay

rule. Even separately and apart from that, separately and

apart from that, while they try to say that the statements are

generally consistent, I am talking about the 2003 statement

and the statement in July of 1995 where he went out there to

the scene. They have talked also about some minor in

inconsistencies and he has testified about some minor

inconsistencies, so to the extent the 1994 statement would

buttress the consistencies with these statements, it should be

allowed in to support the statements from '95 and 2003. The

same way if he were on the stand and they were to come in and

say, well, you have made this statement and it is inconsistent

at such and such a time, and I could then bring in a previous

or a prior consistent statement to buttress it, it's the same

theory, even though he is not taking the stand. When they put

his statement on the stand in evidence, and there is a prior

consistent statement in certain respects, inconsistent in

others to the extent that it would be against interest, it

should come in through the hearsay rule, it should come in

through buttressing the existence of these statements.

THE COURT: Just a minute. I am not familiar with

anything coming in through the hearsay rule. It comes in

either because it isn't in the hearsay rule or an exception to

the hearsay rule, the hearsay rule keeps things out.

MR. RENSCH: I meant to say through the exceptions.

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


 

PAGE 448

 

THE COURT: Go ahead.

MR. RENSCH: That's my position. He made this

statement with the government asking him a series of long

questions back in 1994. It would be our position that to the

extent they have attacked the statements of Mr. Looking Cloud

that are in the record now, we are allowed to bring this up so

that we can show that there is consistency. And to the extent

that there is not consistency, so they are trying to say the

statements are against interest, it shouldn't be admissible

for that reason as well. If they talked to him in 1994 with

this proffer agreement against him, but they won't use it, it

doesn't mean he can't use it.

THE COURT: It might. What about the counsel for

the government has represented that part of the proffer was

taking a polygraph, and the polygraph indicated deception with

regard to whether or not apparently Mr. Looking Cloud was the

one who had used the gun. Well, my question is not wanting to

complicate this any further than necessary, but you know the

Eighth Circuit there is no per se rule as to the exclusion of

hearsay. There is in some Circuits, but there is not in the

Eighth Circuit. I just wrote an opinion that dealt with that

that I released last week, so I am really fresh on the law on

that point. If the proffer comes in, then, and maybe the

government wouldn't try to put that legal issue in the case,

but if the proffer comes in then, does at least then do we

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

 

PAGE 449


have a Daubert question with regard to the polygraph, because

that is in the Eighth Circuit what the law is, that you have a

Daubert. I excluded one. I don't have any idea what the

procedures were or anything about this one, I don't know

anything about Daubert, which is impossible to get in to,

what's your position on that?

MR. RENSCH: First of all, the first polygraph that

he took was inconsistent, that was administered by an FBI

agent who was present in Rapid City. Second polygraph he took

indicated a fail. This was a polygraph in Denver. It would

be.our position that, you know, we are not trying to bring in

the polygraphs. We are trying to bring in the contents of the

statement to buttress what they claim now would be

inconsistent, and to provide for exculpatory information to

the extent that it is consistent with the theory of our

defense. As far as getting in to polygraphs, you know, I have

tried in a murder case in Pierre to get in an exculpatory

polygraph that showed that he passed the polygraph saying that

he didn't help with the killing. Not in this particular case.

I am not fresh on the law on that right now, but I will tell

you this, I have spent over nine weeks of Sunday trying to

figure out how to get that in. I don't know if even if we get

in to the contents of his statement somehow a polygraph

administered back in 1994 or 1995 somehow miraculously becomes

admissible. I don't see how it would become admissible simply

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

 

PAGE 450


because he made a proffer. I am trying to get this in to show

what he said back then, not to show that the government has

violated some agreement or anything like that.

THE COURT: I am not keen to get in to the polygraph

issue, but since it was brought up, I want to talk about it.

MR. RENSCH: An inconclusive on a polygraph is one

thing, one polygraph examiner can read an inconclusive and say

that's bad, another polygraph examiner can read an

inconclusive and say that's a fail. If I wanted to dig in to

that, there is a possibility one could look at his first chart

and say he passed that and thus, you know, he should have

obtained some benefit from this matter back in 1994. But it

seems that we would be hiding reality if we, he could not get

into the fact that he told them what his position was back in

1994.

THE COURT: Do you have any authority, getting away

from polygraphs, because that is something that I don't want

to get in to. I just wanted to explore what does it mean,

because I heard about it for the first time, but with regard

to the statement position, do you have any authority you are

urging.

MR. RENSCH: I don't have any with me, I would

request an opportunity to look it up. My thinking is simply

this, if it is a statement made by the defendant after being

advised of his rights, then to that extent it would be

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

 

PAGE 451


admissible because of the statement of the government. The

government, if -- oh, and another part of the proffer

agreement was if he were to take the stand and testify, they

would be able to utilize that for impeaching information. If

they would be able to utilize it for impeaching information,

and if they now bring statements that he has, they are going

to claim in front of this jury they are inconsistent in

certain respects, he should have the right to buttress his

position with what was said to them back in 1994, but I do not

have a case at my fingertips right now.

THE COURT: Thank you. I take it counsel for the

government wants to say something before I rule.

MR. MANDEL: Start off with this, this is no

surprise the defendant wants to use it, he knew it a long time

ago, and he knew we weren't going to bring it in, that we

couldn't use it because it was pursuant to that proffer. So

it is not some big shock as we stand here today, and the rules

of evidence as to hearsay are not because the defendant want's

to put it in, or because it is helpful, or because the

statement was given to a law enforcement officer that it then

becomes admissible. Under rule 801 sub B sub 2, admission of

a party opponent, the statement has to be offered against the

party. Got to be offered by the opponents, he can't offer it

himself. This is inadmissible hearsay. Thank you, Your

Honor.

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


 

PAGE 452

 

THE COURT: Let me see the proffer agreement and

the, I assume there was a proffer statement that was reduced

to writing.

MR. RENSCH: I do have one, it is in a blue

notebook. I have lost an entire notebook. I don't have it

with me, I took it back to my office to work on it over lunch.

THE COURT: Well, the government would have copies.

MR. McMAHON: You want the transcript, the letter

and this transcript?

THE COURT: Yes, both, please. Well, instead of

looking at the top of my head, you as well as the people in

the audience might as well have a.break. So we will be in

recess for fifteen minutes until I read this. Thank you.

MR. McMAHON: Your Honor, can we approach?

THE COURT: Yes.

MR. McMAHON: I just wanted Tim to be aware that the

only copy I have is one I have highlighted.

MR. RENSCH: I have copies that are blank.

THE COURT: Doesn't make any difference to me. I

have got one, I will just read it.

( Recess at 3:35 to 4:00.

THE COURT: During the recess the government,

counsel and counsel for the defense both came back together to

chambers to urge their respective authorities. The defense

urged rule 806, the government cited United States versus

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

 

PAGE 453


Waters, which my lawyer had already made a copy of for me, and

along with some other cases. The ruling is as follows: 806

is not applicable, because it starts off saying when a hearsay

statement, which this isn't, or a statement defined in

801(d)(2)(C), (D) or (E) has been admitted in evidence. Well,

which it hasn't, because 801(d)(2) (C), (D) and (E) are things

that we aren't really talking about here, authorized agents

and so on. (d)(2)(A) talking about hear the party's own

statement, and that isn't included within the rubric of 806,

so 806 doesn't apply. 801(d)(2)(A), as I mentioned, does

apply, and under that in both the Waters case, which is a case

interestingly coming from the District of South Dakota at 194

F.3rd 926, a 1999 decision, re-hearing denied in 2000. The

Court said Rothgeb did not, and could not, overrule the rules

of evidence. Federal Rules of Evidence 801(d)(2) provides an

out-of-court statement offered quote against a party end quote

is not hearsay. In contrast here, Waters, who is the

defendant, not the government, sought to introduce a prior

statement consistent with his plea of not guilty. And the

Court goes on to say such statements when offered by the

defendant are hearsay, except in narrow circumstances not

present here, and not present here in this case either. Then

also I would cite in support of my ruling to not allow going

into the proffer United States versus Sadler, 234 F.3rd, 368

at 2000, Eighth Circuit decision. So the objection is

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

 

PAGE 454


sustained, and I want to state for the record I reviewed the

proffer agreement. The proffer agreement as well as the

proffer itself in preparation for the ruling. Alright.

MR. RENSCH: At this point can I make an offer of

proof? At this point if allowed we would have sought to

introduce the transcript, and ask that it be marked and placed

into the record as an offer of proof, and that I would have

used it to try to fight the fact that the government is going

to say and has said through their testimony that in 1994 when

Mr. Looking Cloud was approached he denied being there, and

then they brought in statements where he later said he was

there and reenacted the events. And we would just request the

Court utilize that as exculpatory hearsay, and that given the

fact that that statement was made with the full knowledge and

participation of the government, and with this man being

subjected to questioning, and the fact it is consistent in a

very good sense with the statements that have been offered by

the government, that it would fall within the residual

exception to the hearsay rule and would just request the Court

reconsider its ruling.

THE COURT: So you want to have the proffer letter

as well as the proffer made an Exhibit in the Court file?

MR. RENSCH: Just the transcript of the contents of the tape

interview in 1994 when Mr. Looking Cloud told them essentially

what he told them in 2003 so that there is some reference and

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

 

PAGE 455


I don't need to go through it all by way of an offer of proof.

Not the proffer letter itself, the actual transcript of the

event.

THE COURT: That's what I am talking about, because

the proffer letter which is just two pages, that's the

agreement, but then I read a cover sheet, and then I read 24

pages of transcript.

MR. RENSCH: Very well, I want to make sure that

statement was included.

THE COURT: Yes, let's get a clean copy, because the

one I have is marked up now.

MR. RENSCH: I have one here, I will give it to you

so that you have it.

THE COURT: This doesn't have the proffer agreement.

MR. RENSCH: No, the Exhibit.

MR. McMAHON: Why don't you keep my letter of the

proffer agreement. If I can just have my transcript.

THE COURT: I will attach the proffer agreement

letter and then there is a cover sheet, so then this will

become the Exhibit and you get your marked one back.

MR. McMAHON: Thank you.

THE COURT: Then I will give this to the clerk

ultimately. This will be a defense hearing Exhibit, and of

course one we don't send back to the jury. Alright, are we

ready to proceed?

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

 

PAGE 456


(Exhibit F marked For identification.)

MR. RENSCH: Yes, Your Honor.

MR. MANDEL: Yes, Your Honor.

THE COURT: Alright. Bring in the jury, please.

(Jury Enters)

THE COURT: Mr. Ecoffey, if you could come back up

to the stand.

BY MR. RENSCH:

Q. Sir, you met with Arlo Looking Cloud out at the scene of

this killing in July of 1995, is that not so?

A. That's correct.

Q. After he told you what happened out there, you sent him

back to Denver to do whatever it was he was going to do, isn't

that correct?

A. That's correct.

Q. And between 1995 and 2003 did you in any way monitor the

whereabouts of Mr. Arlo Looking Cloud?

A. No, I did not.

Q. Did you send someone to follow him to see what he did?

A. No, I did not.

Q. Did you do anything to try to determine where this man

would be staying or living in society during that period of

time?

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

 

PAGE 457


A. I did not.

Q. You, sir, take an oath when you become a law enforcement

officer, don't you?

A. Yes, I do.

Q. What is that oath?

A. An oath to serve and protect the public, to tell the

truth, and safeguard the community.

Q. So when you take an oath to serve and protect the

public, that's something you take very seriously, is that not

so?

A. That's correct.

Q. When you are the United States Marshal for the District

of South Dakota do you take an additional oath?

A. Yes, you do.

Q. Does that include within its makeup to serve and

protect?

A. Yes.

Q. To protect the citizens across this land?

A. That's correct.

Q. From danger?

A. Yes.

Q. You have given testimony before a grand jury in relation

to this matter, have you not?

A. Yes.

Q. You testified before a grand jury that at the first

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

 

PAGE 458


autopsy there was no evidence of trauma on the body, is that

correct?

A. I would have to take a look at the transcript.

MR. RENSCH: Page 11, counsel. See if this

refreshes your recollection.

BY MR. RENSCH:

Q. Look at line 7.

A. Line 7 you say?

Q. Yes.

A. Okay. What, you want me to read.

Q. You testified there was evidence of trauma found on this

body at the first autopsy?

A. I testified that he didn't.

Q. That what?

A. That, the question was, the question in the report said

they talked about the question was did he find any evidence of

trauma on the body that he could test. I said no, he didn't.

Q. You didn't receive any information from any pathologist

that other than the hands being severed from the body there

was any evidence of trauma, isn't that so, sir?

A. That's correct.

Q. Arlo told you that he went over to Troy Lynn Yellow

Wood's house to meet a man by the name of Joe Morgan, didn't

he, sir?

A. Yes.

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

 

PAGE 459


Q. When he got there he met Theda, right?

A. He met Theda and Troy Lynn at the door.

Q. And Theda asked him to drive to Rapid City, isn't that

true?

A. That's true.

Q. And that he went down in the basement, correct?

A. First he said he went to the kitchen and then down in

the basement.

Q. And that John Boy tied her up?

A. Yes, that's correct.

Q. And John Boy then walked her up the stairs and out of

the house?

A. That's correct.

Q. And that they then drove to Rapid City?

A. That's correct.

Q. That when they got to Rapid City they went to a vacant

apartment and slept there?

A. That's correct.

Q. He also told you that during the day at some period of

time he went and he met a friend by the name of Tony Red

Cloud, didn't he, sir?

A. That's correct.

Q. And that he stayed away so long at this friend's house

that when he got back Theda Clark was mad at him?

A. That's correct.

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

 

PAGE 460


Q. And he told you then after that they went down to

Rosebud, correct?

A. He said he got back, Theda got mad at him, chewed him

out, it got dark, then they went toward Rosebud.

Q. And when they went do Rosebud Theda and John Boy went in

to a house that was in Rosebud?

A. That's correct.

Q. And he didn't know whose house it was?

A. That's correct.

Q. And that they stayed in there for a while and then they

came outside?

A. He said, I remember right, that Theda went in first, and

she came out and got John Boy, and then John Boy went in and

they stayed in there for a while and then they both came out.

Q. And they then drove on this road that goes north toward

Kadoka?

A. He said they took the back road, and I believe on the

tape where it says inaudible it was Wanblee he said on the

tape.

Q. In any event, Theda pulls the car out there on that

lonely road, correct?

A. On the what?

Q. On the lonely road that night, that's what he tells you?

A. That's correct.

Q. And that John Boy gets Ms. Pictou-Aquash out of the

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

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