The United States of America vs. Fritz Arlo Looking Cloud Court Trial Transcripts February 2004 Rapid City, South Dakota DISCLAIMER: The original document was automatically scanned and then automatically formatted. It has been carefully proofread. Any errors or misspellings occurring in content from the original document are unintentional and mechanically produced, and no liability will be assumed. Other apparent errors are in the actual original document; for instance, on page 3 it is noted that "Kamook finished high school in 1927 at seventeen years old," and, on page 384, Nilak Butler is referred to as "Miwak" Butler. These entries are either courtroom misstatements, court stenographer errors, or other court-related clerical errors. INDEX OF COURT TRIAL TRANSCRIPTS: Pages 1-15 Pages 16-30 Testimony: Roger Amiotte pg 22 Pages 31-45 Pages 46-60 Testimony: Don Dealing, FBI, pg 54 Pages 61-75 Testimony: John Munis, FBI, pg 62; Dr. Garry Peterson, pathologist, pg 67 Pages 76-90 Testimony: William Wood, FBI, pg 80 Pages 91-105 Testimony: Evan Hodge, retired FBI, pg 95 Pages 106-115 Testimony: Darlene Nichols (Kamook), pg 112 Pages 116-130 Pages 131-145 Pages 146-160 Pages 161-175 Pages 176-190 Testimony: Mathalene White Bear, pg 180; Bob Riter, atty, pg 190 Pages 191-205 Testimony: Raymond Handboy, pg 198 Pages 206-220 Testimony: Joann Decker, pg 207; Angie Janis, pg 209 Pages 221-235 Testimony: Troy Lynn Yellow Wood, pg 235 Pages 236-250 Pages 251-265 Pages 266-280 Pages 281-295 Testimony: Denise Maloney Pictou, pg 292 Pages 296-310 Testimony: Candy Hamiltion, pg 299 Pages 311-325 Pages 326-340 Testimony: Jeanette Eagle Hawk, pg 326; Cleo Gates, pg 333 Pages 341-355 Testimony: Richard Two Elk, pg 343 Pages 356-370 Pages 371-385 Testimony: John Trudell, pg 380 Pages 386-400 Pages 401-415 Testimony: Robert Ecoffey, Deputy Director, BIA, pg 408 Pages 416-430 Pages 431-445 Pages 446-460 2nd Testimony: Robert Ecoffey, Deputy Director, BIA, pg 456 Pages 461-476 Testimony: David Price, FBI, pg 465 PAGES 1 to 15 PAGE 1 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION ******************* * UNITED STATES OF AMERICA, Plaintiff, * * -vs- FRITZ ARLO LOOKING CLOUD, Defendant. * * CR. 03-50020 * JURY TRIAL * VOLUME I * ******************* BEFORE: The Honorable Lawrence L. Piersol Chief United States District Judge For the District of South Dakota Sioux Falls, South Dakota APPEARANCES: Mr. James McMahon Mr. Robert Mandel United States Attorney Sioux Falls, South Dakota Attorneys for the Plaintiff. Mr. Timothy Rensch Attorney at Law Rapid City, South Dakota Attorney for the Defendant. PROCEEDINGS: The above-entitled matter came on for hearing on the 3rd day of February, 2004 commencing at the hour of 9:00 a.m. in the courtroom of the Federal Building, Rapid City, South Dakota. Proceedings recorded by mechanical stenography, transcript produced by computer. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 2 (A jury was duly selected.) (Court Reads Preliminary Instructions.) THE COURT: That completes my preliminary instructions, and counsel for the government may give opening statements. MR. McMAHON: Ladies and gentlemen. On a December morning in 1975 a little red Pinto wagon pulled up to the edge of a road about three miles north of the junction between Highway 73 and 44. The driver of that little red car was Theda Clark, there were three passengers in the car; the defendant, Arlo Looking Cloud, fellow by the name of John Graham, and Anna Mae Aquash. After Anna Mae was taken out of the car, she was walked by the defendant and by Mr. Graham from the edge of the road out to the edge of that cliff. All the way out there she was begging them not to kill her. When they got to the edge of the cliff and she realized that her pleas were to no avail, she asked to have time to pray. While she was praying on the edge of that cliff she was shot in the back of the head. Her body was either thrown or fell over the cliff, came to rest right there where that white mark is. Stayed there for about two and a half months until a rancher riding fence found it. After Anna Mae was killed, the defendant, Mr. Graham, walked back to the car and three people drove back to Denver. So who was Anna Mae Aquash, why was she taken to that cliff to be killed, and how did she get there? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 3 This is Anna Mae Aquash. Anna Mae was a member of the Mik'maq Tribe from Canada. She was a mother of two young daughters. She came to the United States to support the American Indian Movement. She came down at a time that AIM was occupying Wounded Knee. She joined the occupation and she stayed. She spent the next two years attending AIM events, making friends within the AIM organization. When she wasn't attending events somewhere else around the country, she was often times on the Pine Ridge Indian reservation. But at the same time she was making friends. As we approached the year 1975 there started to be rumors all through the AIM movement that Anna Mae Aquash was a government informant. Portions of the AIM movement within South Dakota had turned somewhat violent. There had been riots at the Custer courthouse, Minnehaha courthouse in Sioux Falls, the occupation of Wounded Knee when there was gun fire exchanged between the occupants and federal authorities, and there were rumors of many people possibly being informants. But particularly Anna Mae. We are going to pick up our story in June of 1975. There was an AIM national convention held in Farmington, New Mexico. Hundreds of people gathered from around the country, some of the leaders of the AIM movement were there, Anna Mae was there, Dennis Banks, one of the leaders, was there. There were many people there. Along with Dennis Banks was a young lady by the name of Kamook Nichols. Kamook finished high school in 1927 at seventeen JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 4 years old and following that she entered in to a relationship with Mr. Banks, and she traveled with him and the two of them eventually had four children together. They were together in Farmington. During this national convention there was a general topic of conversation that Anna Mae was a government informant. She was confronted down there with the possibility that she was an informant, she was actually threatened down there. She denied it. And she was not. After the convention ended, the participants went back to their various homes. There were a number of them that came back to South Dakota to the Pine Ridge Indian reservation, and there was encampment at a place called Jumping Bull on the Pine Ridge Indian reservation. On June 26, 1975, two FBI agents by the name of Coler and Williams were following someone they believed to be a fugitive, and they found themselves at that encampment. They came under fire and they were shot and killed. This escalated the tension immensely between law enforcement and members of the AIM movement. In the next month, July of 1975 there was a trial in Custer, South Dakota. Dennis Banks was on trial for his participation in the courthouse riots down there. Mr. Banks was convicted during that trial, he was let out on bond pending his sentencing. He went back to the Pine Ridge Reservation and was waiting around there. He was supposed to be sentenced approximately four to six weeks later, something like that. When it was time for him to go JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 5 back for his sentencing he made a decision that he was not going to go back to be sentenced, he decided to run. Kamook went with him. On September 5, 1975, law enforcement conducted a raid at a place called Crow Dog's Paradise which is on the Rosebud reservation. There were a number of people arrested during that raid and charged with weapons and explosives violations. Anna Mae Aquash was one of those people. The people arrested were taken to Federal Court in Pierre, South Dakota for an appearance. Anna Mae appeared, she had a court appointed lawyer by the name of Bob Riter from Pierre. The Judge let Anna Mae out on bond, and she was supposed to come back on November 10th. After Anna Mae was out on bond she traveled to California. She stayed with a friend of her's by the name of Mathalene White Bear. She and Mathalene had become acquainted through being together at different AIM organizational events. Mathalene was a young woman at the time, twenty years old, she was still living at home with her parents, and Anna Mae stayed with them for a week or two. During that time Anna Mae shared with Mathalene that she was - - MR. RENSCH: At this point I object, getting in to argument that is inadmissible evidence. THE COURT: We will see if it is admissible. It is the attorney's expectation that the evidence will be admitted, I can't rule on it yet because the evidence hasn't been JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 6 presented. So I am not going to sustain the objection, because I don't know at this point, but it is supposed to be. If it isn't, I'm sure we will hear about it if it isn't admitted, proceed. MR. McMAHON: Thank you. Your Honor. Anna Mae confided in Mathalene that she had been confronted about being an informant. She was very fearful for her life. She was afraid of the FBI, and she was afraid of different factions within AIM. She told Mathalene that she was concerned about she may be killed. She received a telephone call while she was there, she told Mathalene she was leaving. Mathalene tried to talk her out of it, but Anna Mae said she was going to go. She met up with a man by the name of David Hill, and they drove a motor home from Los Angeles back to Chadron, Nebraska. They parked the motor home there and made their way up to the Pine Ridge Indian reservation. We are now approaching Columbus Day, 1975, October 12. There was a get-together on the Pine Ridge. Mr. Banks was back for the meeting, Leonard Peltier was there, David Hill was there, Anna Mae was at this meeting, and Kamook Nichols was at the meeting. And there may have been others. A plan was hatched whereby they were going to make some home made bombs and plant them at utilities in Pine Ridge. Leonard Peltier and David Hill made Anna Mae participate in that so her fingerprints would be on the bombs. So the next day when they were planted JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 7 they made her participate in that. They then made their way back to Chadron and picked up the motor home, Mr. Banks, Leonard Peltier, Anna Mae, and Kamook Nichols, Kamook's sister, and one or two others were in the motor home. They were taking Anna Mae with them because they wanted to keep an eye on her. They traveled from Chadron, Nebraska to the state of Washington where they camped for two or three weeks. During that time there were more accusations, more conversation about Anna Mae being an informant. She was not allowed to go anywhere alone. When they left that spot they started on the road, they were traveling down a highway in Oregon, a Highway Patrolman saw the motor home, he knew who was in the motor home, and he stopped it. He ordered the occupants of the motor home out. All of the occupants got out of the motor home except Mr. Banks. Mr. Banks decided to take off in the motor home and an exchange of gun fire followed between the gun fire and the motor home. Mr. Banks got away during the gun fire, Mr. Peltier got away. Anna Mae was re-arrested, Kamook Nichols was arrested, there were a couple other people there that were following in a car that were arrested. Anna Mae and Kamook Nichols were put in a jail cell together. Now they hadn't been spending much time together. They were friends from 1973 when Anna Mae showed up until June of '75 in Farmington, New Mexico, they became friends and spent quite a bit of time together. While they were in JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 8 Farmington, New Mexico, Kamook learned that Anna Mae Aquash had also fallen in love and entered in to a relationship with Mr. Banks. So during the summer months and through that fall there was not much contact between the two of them. But now when they were alone together in the jail cell they began visiting again. And Anna Mae also shared with Kamook that she was scared. They were in jail up there for about two weeks, and then they were brought back to this part of the country. Kamook was taken to Kansas where she was wanted because she had missed a court date while they were traveling in the motor home. Anna Mae was taken to Pierre, South Dakota, because she had missed her November ten court date. She appeared in court on November 24. This was the day before her trial on the weapons and explosive charges was set to begin. She met with her court appointed attorney. When she appeared in court, even though she had just missed a court appearance, the Judge let her out on bond again. During the night she was picked up by two people within the American Indian Movement, Evelyn Bordeau and her husband Ray Handboy. They transported her to Denver. She was taken by Theda Clark to the home of Troy Lynn Yellow Wood. Ms. Yellow Wood had an apartment there and it was used for members of AIM as more or less of a safe house when they were on the run. She was dropped off there with Theda Clark and Michelle Wood to keep her there safe. She was not initially being held against her will. She spent JERRY J, MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 9 Thanksgiving there. She spent in to December there, but she was very scared while she was there. The first part of December a call came from South Dakota down to Denver, by Angie Janis. Said that Anna Mae was an informant, she was wanted back in South Dakota. A meeting was convened at the home of Troy Lynn Yellow Wood. Theda Clark was there, and of course Troy Lynn Yellow Wood was there. Angie Janis was there, there were some members of the Crusade for Justice there, which was I believe it was a Chicano organization out of Denver that had close ties with the AIM people. And there were other people there who have not yet been identified. The defendant Arlo Looking Cloud was there, and John Graham was there, and their job during this meeting was they kept Anna Mae Aquash in a separate room under guard. When the meeting ended, Theda Clark came to the room and said let's go. They got Anna Mae up and they tied her wrists together. They started escorting her out of the house, they ran in to Troy Lynn Yellow Wood. Anna Mae was crying, she said I don't want to go. If I go back to South Dakota you will never see me alive again. Troy Lynn Yellow Wood had a conversation with Theda Clark, Theda Clark said she is going one way or the other. The defendant, Mr. Looking Cloud, and John Graham marched her out of the apartment, put her in the back, the hatch end of that little red Pinto car that was owned by Theda Clark, tied up, then the two of them got in the car along with JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 10 Theda Clark. They drove all night to Rapid City. Early in the morning they arrived and they went to an empty apartment that was owned by Thelma Rios, another AIM member in Rapid. The defendant, Mr. Looking Cloud, and John Graham kept Anna Mae Aquash under guard all day. Theda Clark was in and out of the house. Some point late in the afternoon Anna Mae was taken to a house that had been set up for what was called the Wounded Knee Legal Defense-Offense Committee. They used it to coordinate the defense of people that had been charged with criminal cases, or AIM members. There was another meeting at that time involving Anna Mae, she was seen to be visibly upset. When they left that house, the defendant, Mr. Graham, Theda Clark again took Anna Mae, they put her back in the little red Pinto, again bound up, tied up. The defendant was now driving and they headed south toward the Pine Ridge Indian reservation. They first went to a small town, Allen, South Dakota, on the Pine Ridge reservation. About three or four hundred people live there, it was late at night by now, about eleven o'clock at night. They showed up at the house of Cleo and Dick Marshal. The Marshals were in bed already, they woke them up, went into the house. They left Anna Mae at the kitchen table with Cleo. The defendant, John Graham, Theda Clark and Dick Marshal walked into the next room and shut the door. A few minutes later they came out. Dick Marshal said to his wife they want us to keep her here for a while. Cleo JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 11 said I don't like the looks of this, no way. So the defendant, Mr. Graham, Theda Clark take Anna Mae, put her back in the car again and now they are on their way to Rosebud. They stop at a house in Rosebud in the wee hours of the morning. This time just Theda Clark and John Graham go in the house, and the defendant stays in the car and guards Anna Mae. While they are in that car, she begs him to let her go. She tells him she knows she is going to be killed, and she begs to be set free. The defendant refuses. Theda Clark and John Graham come out of the house, they get into the car, they start driving north. North toward Wanblee. Soon they cross the intersection of Highway 44, they are going north on Highway 73. Three miles approximately north of that intersection is where they pulled over. Now as I said to you, Anna Mae's body laid at the bottom of that cliff until late in February. Roger Amiotte, a rancher was out riding fence, found the body and reported it immediately. The body had been there long enough that it wasn't in very good shape. An autopsy was done by a doctor by the name of Dr. Brown out of Scotts Bluff, Nebraska. In a nutshell, that autopsy was botched. Dr. Brown found that the cause of death was exposure. Didn't even find the bullet hole in her head. Commented about the weight of the kidneys, but it turns out later that the kidneys hadn't ever been removed from the body to be weighed. Because of the condition of the body, they JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 12 couldn't take fingerprints there, so they severed the hands and sent them back to the lab in Washington, D.C., the FBI lab. Approximately two weeks later the report came back Anna Mae Aquash. At that time the FBI and the family of Anna Mae both started down the same road to obtain a Court order to have the body exhumed and another autopsy done. That was done. There was discussions about having two pathologists at the autopsy, what ended up happening is the pathologist that was obtained by the Aquash family is the one that did the second autopsy because the FBI said we are fine with that. Dr. Garry Peterson from Minneapolis came and did that second autopsy. He didn't realize even when he arrived that he was going to do the autopsy. On initial examination of the body he noticed right away there was what he believed to be a gun shot wound to the back of the head. He ordered X-rays of the skull which clearly slowed there was a bullet lodged in the upper left part of her skull. He completed the autopsy and found that she had been shot in the head and killed. An investigation pursued, hundreds and thousands of hours spent, but because of the tensions of the time between law enforcement and AIM, there wasn't much cooperation going on. So the case was not being solved. Years later as the years went on bits and pieces came in, and finally people started tc be willing to talk about this. Starting in approximately 1988 the defendant, Mr. Looking Cloud, started to talk to some JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 13 people about his involvement in Anna Mae's murder. He made statements to a number of people. We are going to bring those statements to you. You are going to hear that the statements are inconsistent in various areas depending on who he is talking to. You are going to hear Mr. Looking Cloud profess his ignorance that he didn't know what was going on. After you compile and listen to all those statements and the other evidence, it is going to show you through his own words from the time in Denver when Anna Mae Aquash was taken, bound and put in to that little red Pinto, when she was hauled bound and tied up to Rapid City, when she was hauled bound and tied up down to the Pine Ridge Reservation, to the Rosebud reservation and out to that cliff on the south edge of the Bad Lands where she was killed, Mr. Looking Cloud was there every step of the way. And when we are done with the evidence, ladies and gentlemen, we are going to ask you to find him guilty. Thank you. THE COURT: Counsel. MR. RENSCH: Thank you, Your Honor. Arlo Looking Cloud didn't kill anybody. Arlo Looking Cloud the evidence in this case will show didn't help kill Mrs. Pictou-Aquash. Arlo Looking Cloud today, this year, is a fifty year old man. In 1975 he was a 22 year old young adult. He was born in South Dakota, he lived on the reservation for a period of time, he lived in Denver for a period of time, and he spent his young JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 14 adult years in Sante Fe at an art school. You will find that this is a case of fate. You will find through the evidence in this case that what Arlo Looking Cloud became embroiled in was simply being in the wrong place at the wrong time. You see in December of 1975 Arlo lived in a place near the projects down in Denver. He lived with a woman by the name of Charlotte Zephier. He had a job selling art, making paintings, things of that nature. He had a little boy. Up to that point in his life he had had some problems with alcohol and with drugs, but he was doing well. And this weekend in early December of 1975 his path would change. You see, the woman who lived with him, Charlotte Zephier, was going on a trip that weekend, she was going to Nebraska and taking his son to Nebraska to visit some relatives. And what does Arlo do, the 22 year old young man that he is, he goes out on the town. He goes out on the town with a friend who was named Joe Morgan, and he goes drinking with this other young adult down in the streets of Denver, down in the bars of Denver, down in the haunts of Denver, and he drinks all night. And he comes home to his empty house, his woman is not there, his live-in girlfriend is not there with their child, and he sleeps off his hangover. And he sleeps all day. He sleeps all day, and he wakes up in the afternoon with a splitting headache, and little did he know his path was going to change. You see he gets out of his bed and he puts his clothes on and he decides to go downtown again JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 15 and try to find his friend Joe Morgan, and that's what changed his fate. When he dressed that evening, little did he know that Joe Morgan wouldn't be over at Yellow Wood's house. Troy Lynn was a friend of Arlo's, Troy Lynn was a friend of many people. Troy Lynn lived close to Arlo, so when he walked over to his house that night in late December, his intent was not to kill somebody or help premeditate the end of a human being, his intent was to go down drinking that day because he had a hangover, he appeared on the steps and knocked on the door to see if his friend Joe Morgan is there and Troy Lynn doesn't answer. Theda Clark is there. Theda Clark is a fifty'ish Indian woman at this point in her life who owns a bar in Colorado, Arlo had known her from before. He had driven for her from time to time, she would give him some drinks, let him drink in her bar, things of this nature. Theda on this night says to young Arlo, hey, we want you to drive up to Rapid City for us. Arlo doesn't really want to drive up to Rapid City for her. You will find evidence in this case that Theda Clark, well, she was older, she was pushy, and when she asked Arlo to drive to Rapid City, Arlo said okay, I will do it. His friend Joe Morgan wasn't there, and he was would just drive to Rapid City for Theda. As he steps in to the house of Yellow Wood's they don't really let him go many places in the house, they shoo him right down to the basement. And as he is walking down those basement steps little does he know he is JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 16 to 30 PAGE 16 about to meet two people that will change his fate for ever. As he is walking down those steps he doesn't know what is about to occur because no one has ever asked him or said anything was going to happen there, or asked him to come over there for any specific purpose, and as he is walking down those steps he sees an individual he had never met before by the name of John Graham. The evidence in this case will show that John Graham was known also as John Boy Patton and was a friend of Theda Clark's. There was a young woman laying on the couch under a blanket and they don't introduce her to Arlo. Arlo meets John Graham, also known as John Boy, they converse, don't talk really about much, and suddenly this John Graham is talking about a rope, and Theda is talking about a rope, and John Graham takes this young woman off of the couch, has her get up, and ties her hands behind her back. Arlo Looking Cloud doesn't know if they are together, doesn't know what their relationship is, doesn't really know what is going on, but he knows enough not to ask questions and not to talk to them about it. Well, John Boy leads this young woman, who turns out to be Anna Mae Pictou-Aquash, up these steps on this night in December of 1975. Arlo through the years has made statements about this, and you will find in this case that for thirty years approximately Arlo has been, well, not a productive member of society, he's lived on the streets, he has been drunk, he has used drugs, he has abused his body, and JERRY J. MAY, RPR. CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 17 he has done many things, I think that the evidence will bear out, that affect his memory and his ability to recall events and his ability to communicate about events, but that night this 22 year old boy who was there walked up those stairs and yes, he thought something was amiss, and he didn't do anything to stop it. And as they go out into the car this poor lady is put into the back of the car and Arlo drives. And he doesn't make any excuses about driving. But he thought that they were just going to Rapid City. Theda mentioned something about this girl talking too much. Nothing about we are going to take her to Rapid and she is going to be interrogated, nothing about we are going to take her to Rapid and she is going to be killed, nothing about please help us kill this woman in furtherance of the movement. So they drove all night to Rapid City. Arlo drives some of the time, he sleeps some of the time. There isn't much conversation in this car on the way up, and Arlo knows something isn't fitting right here, but he is not asking questions, and Theda and John Boy act as though they know what is going on, act as though they heard something about what might happen, but they don't talk to Arlo about it. They get to Rapid City in the early morning hours and they drive to an apartment that is up by the Mall out by the highway, Knollwood Heights. This apartment is rented by a woman that we find out later is named Thelma Rios. At the time Arlo did not know whose apartment it was, they get in to JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 18 the apartment, there is no furniture in the apartment, someone is either moving in or moving out of the apartment. John Graham sleeps in a room with Ms. Pictou-Aquash, Arlo sleeps on the floor, there is no furniture in there, they sleep for a period of time. Theda Clark, the fifty'ish Indian woman who asked Arlo to drive up there in the first place does not stay in this apartment, and they just sleep there. Arlo wakes up at some point in the day, we don't know just exactly what time of the day, and he takes the car down to put gas in it. And as Arlo is at the gas station he runs in to a person that he knew from living on the reservation by the name of Tony Red Cloud. And this Tony Red Cloud asks Arlo to come over to his house. Arlo goes over to his house, spends some time with him, eats with him, don't know whether they drink or not, but they spend a period of time together. Arlo goes back to the Knollwood Heights apartment, and Theda and John Boy are mad at him because he is gone with the car. As he gets back they say we have to go to the reservation. And everybody gets in the car, they drive down to the reservation, Arlo drives for a period of time, doesn't drive all the way, remembers stopping, remembers sleeping a period of time, remembers switching drivers, ultimately ends up out in front of a house in Rosebud near the hospital. And at this time he is with Anna Mae, he is with Ms. Pictou-Aquash, and John Boy Patton and Theda Clark go in to this house, they don't tell Arlo what they are going JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 19 in for, Arlo doesn't know what they are going in for. At this point he doesn't remember Ms. Pictou-Aquash saying anything about begging to be let go at that point. I guess the evidence will have to bear itself out on that. But none-the-less there's never been any discussion about anybody killing anybody up to that point in time. Up to this point in time they stopped several places in Rapid City, stopped on the side of the road and places to get gas and things like that. And John Boy and Theda come out of this house and Arlo is thinking, well, maybe I can finally get back to Denver. They come out, they get in this Pinto, they drive toward Kadoka. Arlo doesn't know what they are driving toward Kadoka for. He is wanting to go back to Denver, he is not driving the car, Theda is driving the car. John Boy is there, and they act as though they know what is going to happen, but nobody talks about it. The car pulls on that lonely highway going north toward Kadoka, straight up on the map to Kadoka, and Theda Clark pulls a U-turn and goes back and forth several times and stops on the side of the road. As she stops on the side of the road there is no conversation about what is going to occur. As she stops on the side of the road John Boy Patton gets out of that car, John Boy Patton who is bigger than Arlo, John Boy Patton tells Ms. Pictou-Aquash to get out of the car and begins leading her off in to the ditch. At this point it is either John Boy or Theda say to Arlo come on, get out here. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 20 Arlo gets out of that car, he does not know what is going to happen, he starts to walk up there, he doesn't march her up to the side of the cliff, he doesn't grab her arm. He doesn't help take her to the cliff. He is following along not knowing what is going to happen, and he is thinking they are going to let her go way out here. Then he hears her start to pray, and in his mind he starts to think we are going to pray. Bam, at that point John Boy Patton pulls out a gun and shoots this woman in the back of the head. Arlo reels from it, Arlo did not know that was going to happen. Arlo has never met this man before. She falls over this cliff, the white shale cliff of the Bad Lands, she falls 25 feet down into the bottom of this ravine. The photo you see here was taken years later, but in the pictures you see in the evidence in this case it is white shale, it is clear, free of vegetation. And Arlo standing there on this edge of this ravine, and John Boy Patton turns around and he looks at him and he has a gun, and what does this young 22 year old man think of? What does he do? He doesn't know what is about to happen. He says to Graham give me the gun. Graham reaches out, hands him the gun. And Arlo fires the gun over the ravine until the gun is empty, and he did it because he was afraid this man who just put a bullet in this woman's head would do the same to him. And he hands the gun back to him, relieved that the gun is empty. As he hands the gun back, they walk back to the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 21 vehicle. They get in the vehicle. They start going back to Denver. They stop at a bridge and John Boy Patton, John Graham wants to bury the pistol. Arlo wants to help bury the pistol, because if John Graham doesn't have a pistol, then no one else will get shot. They go down below the bridge and Arlo helps dig that hole and they bury that pistol, and they drive to Denver. When they get to Denver Arlo Looking Cloud falls off the face of the earth as it relates to the American Indian Movement. When they get to Denver he stays away from the American Indian Movement. While he lived close to Troy Lynn, and we will see her, and she is a friend of his and had been a friend of his prior to that time, and while he may see Theda from time to time because they live in the same town, he stays away from the American Indian Movement. You will hear evidence in this case that on the other hand, Mr. Graham, John Boy Patton had a meteoric rise in the American Indian Movement, and you will hear evidence in this case he was sun dancing with the National AIM president, and you will hear evidence in this case that he actually, well, he stayed with the Movement. The story doesn't end there. The story doesn't end there. The story also picks up in 1994. In 1994 when Arlo Looking Cloud sits down with the FBI, sits down with the BIA, sits down with a lawyer, and tells them what happened, and at the end of this long interview when Arlo Looking Cloud told the authorities how John Graham executed Anna Mae, Arlo JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 22 is released just to go right back out on the streets and be a street person. You will hear evidence again that the following year, the following year in the summer of 1995 this man, Arlo, five foot six and a hundred fifty pounds is approached again by the authorities, and they asked to take him out to the scene near Kadoka and to the various places that he traveled in this ever changing day of fate, and this crossroads of his life, this December, 1975 that changed his existence for ever. And what does Arlo Looking Cloud do, he goes with them and he explains to them just exactly how John Graham executed this woman that Arlo had never met before. At the close of this case I will be asking you to decide the main issue in this case. Which is whether or not the government can prove beyond a reasonable doubt that Arlo Looking Cloud aided and abetted a murder and had the intent for somebody to die. I will ask you, too, to look at his words and understand that a young man who was merely present at something so horrible as a murder is not responsible in the way the shooter is. Thank you. THE COURT: Call your first witness. MR. McMAHON: Call Roger Amiotte. ROGER AMIOTTE, called as a witness, being first duly sworn, testified and said as follows: JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 23 DIRECT EXAMINATION BY MR. McMAHON: Q. Roger, would you tell the jury your name, please? A. Roger Amiotte. Q. You can sit back a ways from that mic. Where do you live, Roger? A. I live eighteen miles south of Kadoka, or ten miles east of Wanblee. Q. What is your occupation? A. Pardon? Q. What do you do for a living? A. I am a rancher. Q. How long have you ranched? A. Since I was seventeen. Q. Did you ranch in that area during February of 1976? A. Yes, I did. Q. During the February of 1976, did you have an occasion to discover a body on your land? A. Yes, I did. Q. Would you tell the jury how that happened? A. Oh, I was getting livestock out on the highway which adjoined my pasture, and I was checking fences, and with a plan of extending a fence in to a Bad Land wall. When I rounded the curve, rounded the curve in a draw or a gully, and discovered a body. 25 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 24 Q. Was that body laying at the bottom of a cliff? A. Yes, it was. Q. What did you do when you discovered the body? A. I immediately returned to my house, which is a mile away, and called the Tribal police. Q. Then did they come to your house? A. Yes, they did. Q. Did you take them out to where the body was? A. Yes, I did. MR. McMAHON: Your Honor, do you want me to ask permission to approach each time? THE COURT: No, you can approach. (Exhibit 4 marked For identification.) BY MR. McMAHON:. Q. Mr. Amiotte, I hand you what's been marked Exhibit 4, Can you tell me what that is? A. That would be the body that I discovered. Q. Is that a picture of the body as you actually saw it there that day when you first found it? A. Yes, it is. As near as I can tell that would be. MR. McMAHON: Offer Exhibit 4, Your Honor. MR. RENSCH: No objection. THE COURT: Exhibit 4 is received. 25 JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 25 MR. McMAHON: May I put this on the screen, Your Honor? THE COURT: You may. BY MR. McMAHON: Q. Mr. Amiotte, can you see the picture on the computer next to you? A. Yes, I can. Q. Is that the same picture you just identified as Exhibit 4? A. Yes, it is. Q. Last year did you have an occasion to show Mr. Bob Ecoffey where that body was located when you found it? A. Yes, I did. (Exhibit 8 marked For identification.) BY MR. McMAHON: Q. I am going to hand you Exhibit 8. Is that a picture that shows part of the land that you ranch? A. Yes, it does. Q. Does it also show where the body was located? A. Yes, it is accurate. Q. Did you in fact take Mr. Ecoffey out there to show him where the body had been located? A. Yes, I did. JERRY J. MAY, RPR. CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 26 Q. And you see a little white area in that photograph? A. Yes, sir. Q. Is that where the body was located? A. Yes, it is. Q. Let me ask you, Mr. Amiotte, is that land within the confines of the Pine Ridge Indian Reservation? A. Yes, it is. Q. Is it land that is held in trust? A. Yes. Q. One more thing. In that picture I think if you look at the back of it, it was taken in August of 2003? A. Yes, sir. Q. Does that picture accurately depict the land as it looked back in 1975? A. Well, not exactly, because owing to erosion, natural erosion will, the cliff or the bank at the bottom where she was laying is now, or is now less vertical than it was at that time. Q. So that cliff isn't quite as steep now? A. Pardon? Q. The cliff isn't quite as steep now as it was? A. No, it isn't, it is more of a gradual. Q. Other than that, is it a pretty accurate depiction of what the land looked like in 1975? A. Yes, it is. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 27 Q. In that picture between the highway and that cliff, it is hard to see, but it looks like there is a fence along there. Let me just ask you, was there any fence located between the highway and that cliff where you found the body in 1975? A. No, there wasn't. This is basically, it was unfenced for probably a stretch of a half to three quarter mile. MR. McMAHON: Offer Exhibit 8, Your Honor. MR. RENSCH: No objection. THE COURT: Exhibit 8 is received. MR. McMAHON: May I publish that, Your Honor? THE COURT: You may. BY MR. McMAHON: Q. Mr. Amiotte, would you draw a circle around the white area where the body was located. Just put your finger on the screen and draw a little circle around it. A. (Witness marks exhibit). Q. The fence that I was talking about, is this the fence that is there now that runs right along there? A. Yes, it is. Q. That wasn't there back in '75? A. No, that was entirely open to the highway at that time. (Exhibit 6 marked For identification.) JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 28 BY MR. McMAHON: Q. Mr. Amiotte, I am going to hand you what's been marked Exhibit 6. I would like you to take a look at that and tell us if you recognize that? A. Yes, I do. Q. What is it? A. It is a picture of the body that I discovered, and it appears to be a picture of myself setting at the top of this. Q. Was that taken back when you first discovered the body? A. Yes, I am sure it was. MR. McMAHON: Offer Exhibit 6, Your Honor. MR. RENSCH: No objection. THE COURT: Exhibit 6 is received. MR. McMAHON: May I publish this? THE COURT: You may. BY MR. McMAHON: Q. Should be on your computer screen now, Mr. Amiotte. Is that the picture that you just identified as Exhibit 6? A. Yes, it is. Q. How far is that from the top to the bottom of that cliff approximately? A. Approximately thirty foot. MR. McMAHON: Thank you, I have no further questions, Your Honor. THE COURT: Cross examine. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 29 MR. RENSCH: Thank you. CROSS EXAMINATION BY MR. RENSCH: Q. Afternoon, sir. A. Good afternoon. Q. How far is it from the edge of the road to the tip of the cliff? A. Approximately a hundred foot. Q. Do you call it a cliff, or do you call it a ravine, what do you refer to it as? A. Well, actually it was a natural barrier for livestock at that time. The east side of it was pretty much a cliff situation. Q. How close did you get to the body, sir? A. Somewhere between thirty and fifteen feet. Q. Did you see any bullet holes in the ground? A. No, I didn't. Q. Did you find any rope or anything up on top of the cliff? A. No, sir. Q. Other than the body being present, did you see anything that was out of the ordinary about the ground around the body? A. No, sir. MR. RENSCH: Thank you, nothing further. THE COURT: Any redirect? MR. McMAHON: No, Your Honor. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 30 THE COURT: Very well, thank you Mr. Amiotte, you may step down. Call your next witness. MR. MANDEL: United States would call Nate Merrick, Your Honor. NATE MERRICK, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Good afternoon, sir, could you state your name, please? A. My name is Nathan Merrick. Q. Mr. Merrick, where do you live these days? A. I live in Walthill, Nebraska. Q. What do you do down there? A. I work for the Tribal Court, Omaha Tribal Court, I am a public defender, paralegal. Q. Back in 1975 were you employed on the Pine Ridge Indian Reservation? A. Yes, sir, I was. Q. When did you start working there? A. I arrived at Pine Ridge in 1973 just during the Wounded Knee occupation. I was a police officer assigned there for the Bureau of Indian Affairs. Q. Was that your first assignment? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 31 to 45 PAGE 31 A. No, just prior to that I was in Crow Creek at Fort Thompson, South Dakota in 1972. Q. Was that your first law enforcement job? A. No. In 1969 I was a Tribal police officer for the Omaha Tribe in Nebraska, so I kind of moved into the Dakotas in the early seventies. Q. In February of 1976 were you still there working for the BIA on Pine Ridge? A. Yes, I was. Q. Did there come a time when you became involved in a death investigation that occurred out on the Roger Amiotte ranch south of Kadoka and east of Wanblee? A. Yes, I was a criminal investigator for the BIA. Q. Can you tell us how you got the call on that, what happened, how you got involved in it, sir? A. On, I can't recall exactly the day, but I remember that it was a very sort of a warm day in February, and I was notified by the police department through the radio dispatch that investigators were needed, and the FBI was needed out near the Amiotte ranch toward Wanblee and Kadoka, in that area. Q. How come both the criminal investigators and FBI would respond to something of that nature? A. Any time a body was found or there was a need to, for an investigation, they always send for BIA criminal investigators JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 32 and the FBI to conduct the investigation. Q. Do you recall what you observed when you arrived there? A. Yes, it was, like I said, kind of a warm day for February, and about sixty to seventy yards west of the highway between Kadoka and Wanblee we were told that there was a body down in a ravine, laying down in a ravine, and it appeared to be a female. Q. What did you do then, sir? A. We went, walked to the scene and we conducted a crime scene investigation, but I went and took some pictures and observed the area, and we picked up a little evidence. Q. Can you tell us what evidence you collected there at the scene that you recall? A. I specifically remember we were picking up pieces of hair strands off of the bank of the ravine. It was about like an eighteen foot ravine, it was kind of high, but along the edge of the bank there was strands of hair, I remember collecting that. Also taking a picture. Q. Pictures you said, did you take 35 millimeter pictures, or Polaroids, or what? A. Yes, I took 35 millimeter pictures and I also took Polaroids together. (Exhibit 5 marked For identification.) JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 33 BY MR. MANDEL: Q. Sir, I am going to draw your attention first to what has been marked Exhibit No. 5, do you recognize that photograph? A. Yes, I recognize it. Q. Can you tell us what is shown in that photograph? A. This is a picture of a arm with a bracelet, an Indian type silver bracelet with a turquoise stone in the middle of it, and appears to be the right arm of the body of an unknown female person. Q. Is that a photograph that was taken at the crime scene that day? A. Yes, it was. Q. Do you recall you are the individual that took that photograph? A. Yes. Q. Does that accurately show that as you saw it? A. Yes. Q. And that one is a Polaroid photograph you said? A. Yes, it's a Polaroid. (Exhibit 23 marked For identification.) Q. I ask you also to look at Exhibit No. 23 if you could. Do you recognize that photograph, Mr. Merrick? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 34 Q. Can you tell us about that photograph and how, when and how that was taken? A. It is the same picture of the same individual, same person, same bracelet, same hand, same arm that I just described in the other picture. Q. Was that a photograph that you also took on that day? A. Yes. Q. Does that accurately show things as they appeared at that time? A. Yes, they do. (Exhibit 28 marked For identification.) Q. Finally, sir, I am going to ask you to look at what has been marked Exhibit No. 28. Do you recognize that photograph? A. Yes. Q. Can you tell us what is shown in that photograph? A. It is a photograph of a decomposed body of an Indian, appears to be a female with black hair with sort of a red light jacket with a white colored blouse, bluejeans, lady wearing bluejeans. Q. Is that also a photograph that you took on that date? A. Yes, it is. Q. Does that accurately show things as they were at that time, sir? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 35 A. Yes. MR. MANDEL: Your Honor, at this time I would offer Exhibits number 5 and 23. I am going to reserve my offer on 28. MR. RENSCH: No objection. THE COURT: Exhibits 5 and 23 are received. MR. MANDEL: May I publish those, Your Honor? THE COURT: You may. BY MR. MANDEL: Q. Mr. Merrick, can you see that on the screen just to your right? A. Yes, I do. Q. Can you tell me why you particularly took that photograph on that date? A. The reason was because the bracelet was something that I thought that somebody might be able to recognize, because we obviously had a person who wasn't identified. That's the reason I took the picture of that bracelet. Q. When you were there at the scene, can you describe generally what the condition of the body was? A. It was dark in color, and decomposed, and like the body had been there for some time, that's how I can describe it best. Q. Did you feel from what you saw at that time that the face was recognizable? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 36 A. No. I couldn't recognize the face. It was all dark and disfigured, so it was deteriorating. Q. What action was taken at the scene then in terms of removing the evidence and removing the body? A. At that time the body was taken out of the ravine and I believe transported by the ambulance service. We didn't take any of the clothing at that time, all that was taken to Pine Ridge to the hospital where the morgue was. We didn't take anything at that time, just except the pictures, and then did a crime scene. Q. By doing a crime scene, what would that entail? A. Well, mostly photographs, and then at that time just trying to collect any evidence, or see if there was any evidence on the area above the ravine. And the only thing we found was that hair, and was looking for tracks, but we couldn't find any tracks because of the condition of the ground and everything, and probably been there for some time. So we were not able to. And I did take some measurements from the highway to the location of the body, and I did a small sketch. Q. Mr. Merrick, as criminal investigator on the scene did you have any idea what the cause of death was at that time? A. At that time looking at the body and the way the condition was, general consensus was that she probably was murdered or killed by someone. There was blood underneath of JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 37 her head. The hair coming from the side of the ravine. And I just felt that somebody threw her down in the ditch, down into the ravine. Q. Was there any evidence collected at the scene other than the hair that supported that? A. Not that I can recollect. Q. Was there any evidence of any guns being discharged there? A. We couldn't find any evidence of that. Q. Did you search for such evidence? A. We looked around the area as thoroughly as I thought we could, but I couldn't see any evidence of that, any guns, no. Q. So what was the next action that was taken in order to further this investigation? A. The body was transported back to Pine Ridge, and then we met with our, my supervisors, and then there was plans being made for an autopsy. That was the next thing that I remember being involved with. Q. Was there a pathologist there in Pine Ridge? A. At that time the Bureau of Indian Affairs law enforcement, I believe we had the services of a Dr. Brown from Scotts Bluff, a pathologist who came regularly to conduct autopsies for us. Q. Was he summoned to come up there and perform that autopsy? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 38 A. Yes, he was. Q. Were you present during any part of that autopsy? A. When the autopsy began I was present. When Dr. Brown arrived and went into the autopsy room, I was present in there then. Q. Sir, can you describe as best you remember who else was present? A. It's been a lot of years ago, and the best I can remember, it was an FBI agent and I think maybe two FBI agents and myself. I can't remember any more than that. Q. Were you there then when the autopsy proceeded, sir? A. When the autopsy first started I was in the room, yes. Q. Did you leave the room at some point? A. Yes, after we got into the room and the smell and the stench of everything was overcoming to me, and I didn't stay in there very long. I walked out of the autopsy room. Q. Do you recall did anybody staying there other than the doctor? A. I recall that when I walked out, others walked out with me, the other FBI agents. We just walked out in the hall because the stench and everything was really overcoming to me. Q. Was there some problem with the equipment that day in terms of doing everything that needed to be done at the autopsy? A. Just prior to the autopsy I spoke with, I don't recall JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 39 names, but there was a young lady, a white lady who worked as like an X-ray technician that worked there at the IHS hospital, and I specifically asked if they could do an X-ray. MR. RENSCH: Objection, hearsay. THE COURT: No hearsay yet, but I suspect we are getting to hearsay. So we will see. But not yet. So the objection is overruled at this point. Go ahead. BY MR. MANDEL: Q. Was it possible to do an X-ray that day? A. No. Q. Why was that? A. I was told the machine was broke. X-ray machine. Q. So no X-ray was performed at that initial autopsy? A. No. Q. What took place after the autopsy, sir? A. Right after the autopsy there was discussion about the identification and what could be done to determine identification, what could we do at that time. We talked about that. Q. Do you remember who was involved in that discussion? A. Another FBI agent, maybe two FBI agents and myself. Q. Was the doctor involved in that at all, sir? A. I think the doctor was standing by waiting for instructions from us. Q. Was some decision reached as to an action to take to JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 40 effect the identification? A. Yes. Q. Do you know who made that decision? A. The actual decision to do that was kind of a joint agreement between all of the investigators that were there, the FBI and myself. We decided that we should take the hands from the corpse so that we can try to get some identification. Q. Was that a procedure you were familiar with? A. Yes. At that time that was probably the only way that we were going to be able to find some identification through the fingerprints. Q. Was there some reason that the hands couldn't be fingerprinted there? A. Yes, that was part of the discussion. The hands were so shriveled up, black, they were like shriveled up, dried up, no possible way we could take fingerprints then, they would have to be done in a laboratory or something. Q. Did the doctor then remove the hands from the body? A. At our request he did. Q. Then what was done with them? A. They were placed in a jar with like I believe it was formaldehyde or something, and I took the jar. Q. What did you do with them then? A. He gave the jar to me, and then I in turn handed it off to an FBI agent, and that was their person there that day for JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 41 him to see if he could get it to a laboratory for identification purposes. Q. After the, you know that agent's name, sir? A. Yes, I believe. Q. Who would that have been? A. It was Don Dealing. Q. After that action was taken, then what happened regarding the body, sir? A. Repeat that question again? Q. What did they do with the body after the autopsy, if you know? A. That day after the autopsy was over I had an emergency back in Nebraska, so I left the next day. As far as I knew from my recollection was when I left that day that body was still there at the hospital. Q. It was with the intentions to keep it there until the identification was made? A. Yes. Q. Is that what in fact happened, if you know? A. I left for several days for an emergency home visit. I live in Nebraska down about five hundred miles away. And then I came back to the reservation at Pine Ridge about a week later, so a lot of things did transpire while I was gone that I wasn't aware of. Q. Were you involved with the investigation of this case JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 42 further on after the body had been identified? A. After that I believe the FBI took the major role in conducting further investigation in to it, but that was all of it, I did that time. Q. That pretty much the end of it for you? A. Yes. MR. MANDEL: No further questions, thank you. THE COURT: Cross examination. MR. RENSCH: Thank you, Your Honor. CROSS EXAMINATION BY MR. RENSCH: Q. Good afternoon, sir. A. Yes, sir. Q. You have a pretty good recollection of all this? A. It's been a lot of years, I have some recollection of it, yes. Q. You find that through the years you forget some of it? A. That's possible. Q. What does it mean when you process a crime scene? A. It means we look for evidence and we document everything that we see. Q. You look for clues to try to figure out what happened, don't you, sir? A. Yes. Q. And you looked for clues to try to figure out what happened in the immediate vicinity of this body, didn't you, JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 43 sir? A. Yes. Q. You actually, did you actually help move the body, turn it over to take the photograph of the hand? A. Did I actually move the body? Q. Yes? A. No, I didn't. Q. Who moved the body so that the photograph of the hand could be taken? A. I believe it was -- see there were police officers at the scene, too. I believe that they are the ones that sort of moved the body over so I could get the picture. Q. You didn't just let anybody who wanted to come in to that area where the body was, did you, sir? A. No. Q. Why not? A. Because it was basically a crime scene. Q. Why would it be important to keep people out of a crime scene? A. So that we can retain, or find evidence and keep it. Q. You wouldn't want people walking around that body because they might step on something, or cover it up, or change it so that the evidence wouldn't be preserved, would you agree? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 44 Q. Did you examine the area, the immediate ground around the body? A. Yes. Q. Did you note anything unusual about the ground around the body? A. Nothing unusual, no. Q. You didn't find any bullet holes? A. No. Q. You didn't find any ricochet marks or anything like that, did you, sir? A. No. Q. You didn't find any rope any place? A. No. Q. These strands of hair, where did you find the strands of hair? A. As I said, right off the embankment, coming off the embankment, about halfway down the embankment. Q. So they were about halfway down the embankment laying on the dirt there? A. They were like hanging down, you know, they were just. (indicating). Q. Did you ever try to get a metal detector out there to see if you could detect any metal? A. I never had a metal detector. Q. You didn't find anything up above because it was grassy JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 45 up there, isn't that so, sir? A. Well, how do you describe grassy, what do you mean? Q. Well, there was grass up there, so there weren't foot prints up there? A. Well, there was sort of grass up there, but there was ground. I don't know what you describe the ground like unless you have been out there. It wasn't all full of grass, it was dirt there. Dirt ground. Q. And the ravine that this poor woman fell in to, that wasn't full of vegetation, was it, sir? A. No. Q. It was dry dirt down there, wasn't it? A. Yes, appeared to be. Q. What color was the dirt? A. Sort of brownish. Brownish colors, you know, different shades of brown. Q. Would you say light colored dirt? A. It's possible it could have been light, different just colors of dirt. (Exhibits A - E marked For identification.) Q. I show you Defendant Exhibits A through E, these are blow ups of photographs you took. Look at them and tell us if they are? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 46 to 60 PAGE 46 A. Are these Polaroid pictures? Q. I don't know. A. I can't tell if they are Polaroid or not. I know I took Polaroid and 35 millimeter, but I did take pictures of the body like this, yes. Q. So that would fairly and accurately depict the scene that were you attempting to preserve by taking those photographs, would you agree, sir? A. Yes. MR. RENSCH: I move admission of Defendant's Exhibits A through E, Your Honor. MR. MANDEL: May I see them? MR. RENSCH: Yes. MR. MANDEL: No objection. THE COURT: Exhibits A through E are received. BY MR. RENSCH: Q. How far out from around the body did you look for evidence? A. Probably maybe around the entire area. Quite a ways. We went, if I remember, it was like we did a kind of a walking grid search all around on the upper part, about from there to the highway back and forth numerous times like in a pathway trying to find something that might be evidence from the highway to where the edge of the ravine was. Q. How about down in the ravine itself, did you likewise JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 47 search the area of the ravine? A. Yes, I think I and some investigators looked around that entire area, around the body, and trying to find anything that we could. MR. RENSCH: Nothing further, thank you. THE COURT: Redirect. REDIRECT EXAMINATION BY MR. MANDEL: Q. Just so I am clear, Mr. Merrick. You examined the scene both at the top of that Bad Lands wall there and at the bottom where the body was found, correct? A. Yes, I went up to the top and I looked down and I looked down, I looked up, I looked as much as I could. Q. The body wasn't discovered until February 24th, is that correct, sir? A. Yes. Right in that neighborhood, yes. Q. Here is my question. Is it possible as you are up on the road there on Highway 73 to see that body from the road anywhere? A. No. Q. Where would you have to be to see it? A. You would have to be on the opposite side of the ravine or up in a high upper area to be able to look down toward it. You wouldn't be able to see it from the highway, no. Q. Is it a fairly remote location? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 48 MR. MANDEL: Nothing further, Your Honor. THE COURT: Anything further? MR. RENSCH: Nothing further. THE COURT: Thank you, you may step down. Well, is your next witness a shorted one or a long one. MR. MANDEL: I have one that is, be pretty short, Your Honor. THE COURT: Call your next witness. MR. MANDEL: United States would call Jim Glade, Your Honor. (Bench Conference) MR. McMAHON: Your Honor, may we approach? THE COURT: You may. MR. McMAHON: We forgot to visit with you about a sequestration order, but we are agreed. None of our witnesses have been in here, I don't know about his. MR. RENSCH: I don't even know what mine look like, but I don't think they are here. And I meant to move for that as well. THE COURT: I meant to ask you and I forgot. It is granted as to each. MR. McMAHON: Are you going to announce that if there are any in here they should leave? THE COURT: Yes. (End Bench Conference). JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 49 THE COURT: I am going to enter a sequestration order. What that means is that if there are any people in the audience that are going to be witnesses or might be witnesses in the case, then you have to step out. You can't stay during any proceedings. If anybody is in the audience that is going to be a witness, because if you don't step out and you become a witness, you might not become a witness, because I might not let you testify. That's what a sequestration order does. Alright, proceed. JAMES GLADE, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Sir, could you state your name, please? A. James Glade. Q. What is your occupation, Mr. Glade? A. I am a range land management specialist with the Bureau of Indian Affairs at Pine Ridge. Q. What is the spelling on your last name, sir? A. G-L-A-D-E. Q. What are your duties there in that capacity, Mr. Glade, what kind of things do you normally do? A. Well, I take care of the grazing permits, the land JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 50 schedules that go with the permits, contracts. Q. As such are you familiar with the land status of various lands located on the Pine Ridge Indian Reservation? A. Yes. Q. Sir, I am going to show you a photograph, if you could look at. It will come up on that screen to your right there. Sir, I am going to ask you if you have seen that before and if you are familiar with that particular area? A. Yes. Q. Sir, I am showing you what's been marked as Exhibit 8 already and admitted into evidence. Now can you tell us first of all what the location of that particular piece of land is generally speaking? A. It is on the reservation on the highway between Martin and Kadoka. Q. Is that highway state Highway 73? A. Yes. Q. How far is that from the junction of Highway 44 and Highway 73, if you follow the road? A. About 3.3 miles. Q. Sir, would that be to the north of Highway 44? A. Yes. Q. You see in about the center of that photograph, sir, there is a white rectangular area? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 51 Q. Have you been out to this particular scene to view this area? A. Yes. Q. As part of your duties did you check on the land status of this particular location, sir? A. Yes. Q. Can you tell us what the status of the land is there? First of all, is that land located within the confines of the Pine Ridge Indian Reservation? A. Yes. Q. And is that land that is held in trust? A. Yes. Q. When we say land that is held in trust, sir, what does that mean? A. That means that it is held in trust by the United States for an individual or a tribe. Q. For an individual Indian person or a tribe? A. Yes. Q. Is that land ranched by a particular individual that you are familiar with? A. Yes. Q. Who would that individual be, sir? A. Roger Amiotte. MR. MANDEL: No further questions, Your Honor. THE COURT: Cross. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 52 MR. RENSCH: No questions, Your Honor. THE COURT: Thank you. Thank you, you may step down Mr. Glade. Now we will go in to recess unless you have another short witness. MR. MANDEL: Not that short, Your Honor. THE COURT: Now I want to give the jury some oral instructions. This is the end of the first day of trial, and you are going to go home and your neighbor or your significant other, or your spouse, your children, parents, your friends, whomever you have contact with is going to know you came here to jury duty. Naturally the first question they are going to ask you is well did you get picked? The answer is yes. But then the next natural thing they are going to say, well, what is it about, they are going to want to talk to you about it. Well, you can't talk to them about it. The problem is that you start talking about it at all and you are on kind of a slippery slope. You know, they haven't heard any of the evidence, they might have read something in the paper, they might have heard something on the news. But remember we don't decide these cases based on that, we decide the cases based upon what you hear from the witness stand, the Exhibits that are received into evidence, and also the instructions on the law that I give you, and all of the rest of it is not material. That's part of your oath as judges of the facts. So you can't talk to anybody at all about the case. You can't JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 53 talk to each other about it either, because the only time you can talk to each other about the case is when all the evidence is in, the lawyers have argued at the end of the case. That's not evidence, only to help you in looking at the evidence. And you have heard my instructions on the law, which are much more detailed than I have given you already, it's only then you can deliberate on the case. Don't dig out an old law book or anything, do any independent research, do any factual reading and going back and looking at the newspaper or anything like that. Likewise don't make up your mind about the case. Wait until you have heard all of the evidence and you have deliberated, that's when you should make up your mind, not until. So thank you very much for your service, we will start again at nine o'clock tomorrow morning. Thank you, please stand for the jury. ( Jury Leaves at 5:00 ). THE COURT: Counsel to stay. Please be seated. I am not shopping for bringing anything up, but my only point is if there is something, anything that is brought up, I would like to have it brought up now rather than tomorrow morning, because, as you know, Judges like to be able to think about things. I am not aware of anything, I am just telling you that. That doesn't mean if something comes up you can't bring it in in the morning, it's just that I have a strong preference for getting it now. If there is anything, I would JERRY J. MAY, RPR/ CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 54 like to hear about it. MR. McMAHON: I am not aware of anything. MR. RENSCH: I am not either. THE COURT: That's great, see you in the morning. We are in recess. (9:00 a.m., 2-4-04.) THE COURT: Bring in the jury, please. Good morning. Call your next witness. MR. MANDEL: United States would call Don Dealing, Your Honor. DON DEALING, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Sir, could you state your name, please? A. Donald A. Dealing. Q. What is your current occupation? A. I am retired. Q. Where are you retired from? A. The FBI. Q. What years of service did you put in with the FBI? A. From October of 1970 through April of 1996. Q. Was all that time spent as a Special Agent for the FBI? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 55 A. Yes, it was. Q. As part of your duties did you at some point become assigned to work out of Rapid City on the Pine Ridge Indian Reservation? A. Yes, I did. Q. When did you first begin your assignment there, sir? A. In July of 1975. Q. While you were there at Pine Ridge did you become involved in the investigation of a murder that, where the body was found on February 24, 1976? A. Yes, I did. Q. Was that an individual ultimately determined to be Anna Mae Pictou-Aquash? A. Yes. Q. Sir, can you tell us what your first involvement in that matter was? A. Well, I actually was the first agent that was present at the scene of the crime, or the scene where the body was found. Q. When you were notified where were you, sir? A. At the police station in Pine Ridge, the BIA police station. Q. About how far is it from there to the scene? A. I really, mileages are not my strong suit. It takes a while to get there, I don't recall how long it was. Q. When you arrived at the scene what did you observe, sir? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 56 A. There were people there already, and we went to where the people were gathered, and there was a body laying at the base of a cliff, if you will. Q. Did you observe the condition of the body? A. Yes, I did. Q. Can you describe to us what the condition was? A. The skin was black, badly deteriorated. The body was clothed, but the body itself was in I would say an advanced stage of deterioration. Q. In terms of the ability to identify that body, how would you describe her? A. I would have to say unidentifiable. Q. What decision was made then in terms of dealing with the crime scene and the body, sir? A. Well, the clothes were gone through, the pockets and that sort of a thing, to try to find some identification. There was some jewelry on the body, and we checked to see if we could remove the jewelry to see if there was a name inscribed on the back or something like that, and the skin came off with it, so we left that alone. Took photographs, and inspected the crime, or inspected the scene. Q. Was that piece of jewelry a bracelet on one of the hands? A. Yes, it was. Q. Did you then seek to have an autopsy performed in this JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 57 case? A. Yes, we did. Q. Can you tell us what occurred in that regard, sir? A. There was an examiner from Nebraska that was the person who was used for that type of activity, and we notified him. The body was transported to the hospital at Pine Ridge, and Dr. Brown is his name, he came up and performed the autopsy. Q. Were you present at the autopsy, sir? A. No, I was not. Q. Were you initially assigned this matter as the case agent? A. Yes, I was. Q. What does that mean in FBI terminology? A. As a case agent, you direct the investigation. Information comes to the case agent, and you analyze it, decide what to do next. If you need help, you ask for help, and that sort of a thing. Q. Were steps taken to identify the individual whose body was found? A. Yes. Q. Can you tell me what steps were taken, sir? A. Oh, we did things including contacting other agencies to see if there was any missing person report filed. We did take that piece of jewelry and went to stores that handled jewelry to see if they would recognize it, for instance, and be able JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 58 to say who, remember who had purchased it. Circulated a description that we could get from the body, and just tried to find out who the missing person was. Q. Were other steps taken to identify the body through fingerprints? A. Yes, indeed. During the autopsy we had the coroner remove the hands so that they could be sent into the FBI laboratory where they are able to take fingerprint impressions from dead skin and deteriorated skin. Q. Did an FBI agent ultimately take custody of those hands and send them in? A. Yes. Q. Who would that have been, sir? A. That was John Munis. Q. Did you retain this case, or was the case reassigned at some point? A. The case was reassigned fairly quickly. Q. Who received the assignment then? A. I can only give you my best recollection, I am not sure of that. I think it was Bill Wood. Q. After that did that pretty much end your involvement with it? A. Yes. MR. MANDEL: I have no further questions, Your Honor. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 59 THE COURT: Cross exam. CROSS EXAMINATION BY MR. RENSCH: Q. Morning, sir. A. Good morning. Q. In 1975 were you a Special Agent for the FBI? A. Yes. Q. What did your duties include? A. As of when I arrived in Rapid City? Q. Yes, in 1975? A. General case work. Most of our case work at that time was down at the Pine Ridge Reservation. I was assigned cases just routinely for whatever felony types of things, complaints came in. Q. Were you in any way involved in the cultivation of informants? A. Yes. Q. How so? A. As a Special Agent that's one of your duties is to cultivate informants, try to find places, sources of information. Q. Was there any particular program that you were following in 1975 concerning the cultivation of informants? A. My answer is no, other than the FBI program. Q. What is the name of the FBI program? A. Well, it is just part of a job description. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 60 Q. Have you ever heard of COINTELPRO? A. Yes. Q. Is that what it is? A. I frankly don't, I have heard about COINTELPRO through media and that sort of a thing, but I frankly have never been involved in whatever that was. So I don't know what that is, I am sorry. Q. In 1975 then you had no special training in anything to do with COINTELPRO, is that your testimony, sir? A. That's correct. Q. Were you aware of any other Special Agent or field officer in this district or in this area, the area of Western South Dakota, who was involved in that program? A. No, sir. Q. Were you aware of the individual named Anna Mae Pictou-Aquash before her body was discovered? A. I believe that I knew that there was a fugitive by that name. It is hard to say when I first heard about that name. So I would say probably at that date I was aware that such an individual existed. Q. Prior to that time how many other cases had you been involved in where someone's hands were cut off to identify them? A. None that I recall. Q. Since that time how many cases have you been involved JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 61 to 75 PAGE 61 with where someone's hands were cut off for identification? A. None that I recall. Q. When you send in fingerprints with the FBI back in 1975, a person has to look at the fingerprints and compare them with other fingerprints to see if they are the same, isn't that correct? A. Would you mind restating that question? Q. I would be happy to. When you sent in fingerprints back in 1975, with the technology that was available in 1975, you had to know of a set of fingerprints that they could be compared to to see if they were a person's fingerprints, did you not? MR. MANDEL: I object to this as beyond the scope and not within this witness's expertise. THE COURT: Sustained. BY MR. RENSCH: Q. When these hands were sent in to determine the identification, do you know if any information was forwarded along that they might be Ms. Anna Mae Pictou-Aquash's hands? A. Well, I did not prepare a communication, but in my own mind I am certain there was no information like that sent in. Q. Incidentally, were you involved in taking a metal detector out to the scene to try to see if there were any bullets or anything like that? A. No, sir. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 62 MR. RENSCH: Thank you, nothing further. THE COURT: Redirect. MR. MANDEL: No, Your Honor. THE COURT: Thank you, Mr. Dealing, you may step down. Call your next witness. MR. MANDEL: United States would call John Munis, Your Honor. JOHN MUNIS, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Sir, could you state your name, please? A. John Munis. THE COURT: How do you spell it? A. M-U-N-I-S. THE COURT: Thank you. BY MR. MANDEL: Q. What's your current occupation? A. I am retired. Q. What are you retired from, sir? A. From the Federal Bureau of Investigation. Q. Were you a Special Agent with the bureau? A. Yes, I was. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 63 Q. What years did you serve in that capacity, sir? A. From 1968 to 1996. Q. As part of your duties were you at any time assigned to work out of the Rapid City resident agency? A. Yes, from 1975 until 1978. Q. As part of your duties during that time period, sir, did you become involved in the investigation of the death of an individual later determined to be Anna Mae Pictou-Aquash? A. I did. Q. Can you tell us, sir, how you first became involved in that? A. February 25 of 1976 I was on the reservation. I was at the Bureau of Indian Affairs law enforcement office and was notified that an autopsy was being conducted at the Pine Ridge hospital. I conferred with the resident agency in Rapid City, South Dakota of the FBI, and was instructed to go over to the autopsy and retrieve any items of evidence that may be available. Q. Did you do so then? A. I did. I went to the autopsy momentarily. I met there with a Dr. Brown who was doing the pathology, and also with Nate Merrick, a criminal investigator for the Bureau of Indian Affairs. Q. Can you tell us what took place then at that autopsy? A. I was only in the autopsy a very short time. After JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 64 seeing the condition of the deceased, I left the autopsy, went back and made a call to Rapid City and also to the FBI laboratory in Washington, D.C. conferring with these people concerning the condition of the body, and what the best method would be to obtain fingerprints from the deceased. Q. As you observed it, sir, what was the condition of the body? A. It was in a very decomposed state. Q. Particularly what did you observe regarding the hands, sir? A. The hands were in a shriveled manner so that the fingers were more or less closed. Q. After conferring with the lab, did they give you an indication of what course of action you needed to take to obtain fingerprints? A. They did. They said to request from the pathologist that the hands be removed and submitted to the lab so that they could do an analysis and attempt to get fingerprints. Q. Did the pathologist then remove the hands? A. He did. Q. Did you ultimately end up with custody of those hands? A. I did. I took, custody of the hands went from the pathologist to the criminal investigator, Mr. Merrick, and from Mr. Merrick to me, and I took them back to Rapid City the following day and they were submitted to the FBI laboratory. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 65 Q. What fashion were they submitted, how were they handled, were they treated in any particular way? A. Yes, I was instructed to put each hand in an individual container and add a ten percent formaldehyde solution. Q. How did you obtain that solution, if you recall? A. Pardon? Q. How did you obtain the solution? A. I don't have specific recollection. I believe I got it from one of the hospitals in Rapid City, but I don't recall specifically where I got it. Q. In any case, then you packed the hands in that and transmitted them to the laboratory? A. That is correct. Q. Sir, did you have any other involvement in the investigation of this case? A. No, I did not. MR. MANDEL: Thank you very much. THE COURT: Cross examine. CROSS EXAMINATION BY MR. RENSCH: Q. Who was responsible for the clothing that was on Ms. Pictou-Aquash? A. Who was responsible for the killing? Q. The clothing? A. Oh, for the clothing. The clothing was also removed, and I received the clothing and hair samples at the same time JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 66 I received the hands. Q. What clothing did you take into custody as evidence? A. There was a dress, a pair of moccasins, a bra, a pair of underpants, I believe that was all. MR. RENSCH: Nothing further, thank you. THE COURT: Any redirect? MR. MANDEL: Yes, Your Honor. REDIRECT EXAMINATION BY MR. MANDEL: Q. Agent Munis, I have handed you an FBI report, I am going to ask you if you recognize that document? A. I do. Q. Is that a report that you prepared? A. Yes, it is. Q. Is that the transmittal report that went with the clothing you sent in to the FBI laboratory? A. Yes, it is. Q. Does viewing that refresh your recollection as to what was sent in on that date? A. This does refresh my recollection, yes. Q. Can you tell us what was sent in then, sir? A. A jacket, blouse, blue jeans, pair of shoes, pair of socks, panties, hair, and it doesn't mention the hands. Q. The hands would have been a separate transmittal? A. Yes. MR. MANDEL: No further questions. Your Honor. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 67 RECROSS EXAMINATION BY MR. RENSCH: Q. Agent, I am going to hand you another report from the Federal Bureau of Investigation dated March 1st of 1976 and ask you to look at the paragraph concerning the clothing that was taken from Ms. Pictou-Aquash. Tell us what, if that refreshes your recollection about the clothing that was taken? A. This is a document that you provided to me referred to as an FB302, and this is my notes concerning the items that I obtained at the time that the autopsy was being conducted. And on my notes I listed that there was one pair of hands removed from the body of an unidentified female Indian during the autopsy that was being performed by Dr. Brown. There was clothing that had been removed from the deceased which consisted of one pair of Indian moccasins, bra, panties, overalls, shirt, overcoat and also hair samples. MR. RENSCH: Nothing further. MR. MANDEL: Nothing further. THE COURT: You may step down. Call your next witness. MR. McMAHON: Dr. Garry Peterson. DR. GARRY PETERSON, called as a witness, being first duly sworn, testified and said as follows: JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 68 DIRECT EXAMINATION BY MR. McMAHON: Q. Would you state your name, please? A. Garry, G-A-R-R-Y, Peterson, P-E-T-E-R-S-0-N. Q. Where do you live, Mr. Peterson? A. I live in Minneapolis, Minnesota. Q. Your occupation is what? A. I am a physician, I am a doctor of medicine. Q. Dr. Peterson, do you have a particular specialty? A. I am a pathologist, and within that specialty I practice forensic pathology. Q. Could you just give us a brief description of what forensic pathology is? A. I can. Pathology, the larger field, is one of the medical specialties, and it has basically two subcategories; anatomic pathology and clinical pathology. Anatomic pathology deals with the study of disease, that's really what the word means, from actual anatomic inspection. So it involves areas such as performing autopsies, looking at surgical specimens under a microscope, those sorts of things where there is an actual anatomic either naked eye or microscopic examination for the most part. Clinical pathology is the laboratory area, and clinical pathologists usually head a hospital laboratory and serve as consultant to hospital physicians in ordering and interpretation of tests. Forensic pathology is a special area in pathology. The word forensic comes from the Latin word JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 69 forum, which was the Roman courtroom. And the term is applied because forensic pathologists are often involved in clarifying medical or scientific questions that come up in the courtroom. Most pathologists work in a coroner's office or medical examiner's office and investigate sudden or unexpected death. Q. Would you give the jury a brief review of your medical education? A. I grew up in Minneapolis and went to Minneapolis public schools, and went to college at Hamlin University in St. Paul and University of Minnesota. After college I went to medical school at the University of Minnesota Medical School from 1965 to 1969. Following that I had a year as a rotating intern at St. Paul Ramsey Hospital, now called Regents Hospital, but it is the city-county hospital in St. Paul. Then I took three years of my five year pathology training at that hospital in clinical and anatomic pathology. The fourth year I took a year of forensic pathology at the Hennepin County medical examiners office in Minneapolis. That's the office that covers Minneapolis and the surrounding suburban areas. Then following that I had one more year of clinical and anatomic pathology at Hennepin County Medical Center, that's the city county medical center in Minneapolis. So I finished that training in 1975 and went in to practice in pathology in St. Paul. And for the first four years I was in practice I went to night law school at William Mitchell College of Law in JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 70 St. Paul and finished that in 1979, and after that stopped taking formal college courses. Q. Are you board certified? A. I am board certified in clinical, anatomic, and forensic pathology, all three areas. Q. Do you currently work? A. I am the Hennepin County Medical Examiner, chief medical examiner of the county, and I am finishing what will be my fifth term, my fifth four year term. At the moment I am on leave without pay, but I still am the medical examiner and still administer the office, but in a budget solving movement I forwent my pay. So I am working, but not working full time as I was a few months ago. Q. What is the medical examiner? A. The medical examiner heads the office that is the successor to the coroner's office, Hennepin County once had a coroner's office. The office is charged with two major types of death investigations. Non-natural deaths, the accidents, suicides and homicides that take place in a community. And then the sudden unexpected deaths, or deaths where there is not a doctor in attendance who might be in a position to sign a death certificate. Just by way of example, in Hennepin County we have something in the range of 32 or 33 hundred cases reported to us. So investigating those cases, working with and supervising a team of doctors who work in the office JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 71 and investigative personnel is basically what my career has become. Q. Is one of the things that you do is to conduct autopsies? A. Yes, it is. Q. I am going to refer you back to 1976. Were you contacted to come to South Dakota to observe an autopsy? A. I was, yes. Q. Would you explain how that contact took place? A. There is an attorney in St. Paul by the name of Kenneth Tilsen, and I had been involved in a case with him, I don't remember the specifics of it, and I suppose he knew me from that. But he called at one point and said would you be available to go to South Dakota and basically serve as an observer, there is going to be a second autopsy performed in a very significant or important case, and there would be an interest in having somebody just be there to observe and be able to comment on things. And I thought to myself it would be a very worthwhile thing to do. I was just done with my training and I thought, I didn't know who would be doing the second autopsy, but I assumed it would be someone, maybe someone even I knew, because it is a fairly small specialty nationally, a chance to observe and see how someone else did it, and to keep my eyes open and mouth shut was the way I was approaching it. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 72 Q. Did you end up coming to South Dakota? A. I did. I got a call I think on March 10th of that year from Mr. Tilsen who said can you be on an airplane, it was just a matter of hours I had to get ready. So I got I guess some coverage at the hospital where I was working at the time, and came out here that evening. Q. Did you go to the Pine Ridge hospital? A. I did the following morning, yes, and went down to the hospital there. Q. Instead of observing did you end up conducting the autopsy? A. I did. I kept asking who was going to be arriving to do it, and after a short time I guess you are it, so I was the one who did it. I came expecting to observe, I ended up being the person doing the case. Q. Tell me, that would have been on March 11, is that correct? A. That's right. Q. 1976? A. Yes. Q. What did you find on your initial exam of the body? A. The body was fairly poorly preserved, there was a great deal of powdered preservative that was on the body. The deterioration was fairly substantial, and as I examined the body I asked to have some X-rays taken. In examining the body JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 73 I noticed there was some seepage from the back of the head. Q. What portion of the head? A. Excuse me? Q. What portion of the head was this? A. It was showing in the back of the head, and I felt with my fingers on the side of the head, I felt something firm on the left temple area, and about that time the person I had do the X-rays came in and so X-rays were taken at that point. Q. Were there any X-rays available from the first autopsy? A. No, there were none. Q. What did the X-rays reveal? A. The X-rays revealed a metal projectile in the head area where I felt something. (Exhibit 31 & 32 marked For identification.) BY MR. McMAHON: Q. Dr. Peterson, I have handed you Exhibits 31 and 32. Can you identify those, please? A. These appear to be the X-rays that were taken that day, or reproductions of them, and they do show the projectile. MR. McMAHON: I offer Exhibit 31, Your Honor. MR. RENSCH: No objection. THE COURT: Exhibit 31 is received. MR. McMAHON: And 32. JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 74 MR. RENSCH: No objection. THE COURT: Exhibits 31 and 32 are received. BY MR. McMAHON: Q. Now Doctor, I have Exhibit 31 on the screen. Can you explain what we are looking at there? A. This is a front view of the head, it shows basically the bones of the skull. On the right side of the X-ray, actually it's turned on its side, but would appear to be the right, actually the left side of the individual, is a bright white area, that is a projectile. It is lead, and as a result it doesn't allow X-ray beams to go through it so the film doesn't get exposed there, that's why it is white as opposed to being dark. Q. I have drawn a circle around it, is that what you are talking about? A. That's the item, yes. Q. Was that a bullet? A. Yes, it was. Q. So that would have been located in the front left? A. Right in the left temple area. Q. Now I have put Exhibit 32? A. And that is a side view. There is some jogging of the top of the skull, that's because it had been opened at the first autopsy. In the left temple area is another view, a side view of that same intense white object which is again the JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 75 bullet. Q. Is that the bullet? A. That's it right there. You have to look carefully, because there is some white there from the bone, but the bullet is there. It gives I think a good depiction of where the bullet lay. Q. Did you remove the bullet? A. Yes, I did. Q. What did do you with the bullet? A. I gave it to an FBI agent, Mr. Wood. (Exhibit 30 marked For identification.) BY MR. McMAHON: Q. Doctor, I have handed you what has been marked Exhibit 30, can you identify that, please? A. That is a picture of the bullet that has the sequential number I used on my cases at that time, and of the scale that I used. So this is the, a photograph of that projectile. Q. Is that a photograph that you took during the autopsy? A. Yes, it is. MR. McMAHON: Offer Exhibit 30, Your Honor. MR. RENSCH: No objection, Your Honor. THE COURT: Exhibit 30 is received. BY MR. McMAHON: JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 76 to 90 PAGE 76 Q. Doctor, when the X-rays were reviewed, is that the first time that you are aware that there was actually a bullet in the skull? A. Well, I guess so. I felt something there, I didn't know what it was. I waited for the X-rays before I came to the conclusion that it was a bullet, I think. Q. Were there any FBI agents present at that time? A. There were two. Q. Do you remember who they were? A. It was Mr. Wood and I think it was Adams. I could check my. Yes, Mr. Adams. Q. What was their reaction? A. They were astounded, and surprised, and very angry that that was, that it had taken a second autopsy to find that. Q. Had you reviewed Dr. Brown's autopsy? A. It was not available at that time. I didn't see it until later. Q. Have you since reviewed it? A. I have, I have not seen it lately, or reviewed it lately. Q. Did you notice what Dr. Brown had said about the cause of death? A. Yes, I am aware of that. Q. What was that? A. He concluded the death was a result of exposure. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 77 Q. Did you agree with that? A. No, I did not. Q. What was your conclusion as to the cause of death? A. It was my conclusion that the cause of death was a gunshot wound to the head. Q. Did you also in reviewing Dr. Brown's report notice what he said about the kidneys from the body? A. Yes, he had given a weight to describe them. When I examined the body, the kidneys were still in place, had not been removed from the body. Q. To weigh the kidneys you have to remove them? A. Yes. Q. So they had not been weighed? A. They had not been weighed. Q. You talked about the condition of the body. You are aware, of course, that the hands had been severed at the first autopsy? A. Yes, they were actually returned to me. I examined them, and then they were basically rejoined with the body. Q. Is removing the hands in a situation like this, was it a recognized protocol back at that point in time? A. It was. I think it was kind of the minority approach to things, but it was done and I had seen it mentioned as a technique in the teaching I had had at that time. It wasn't a practiced I used, but it was recommended by some authorities JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 78 at that time. Q. You mentioned that you had removed the bullet from the skull, what did you do with the bullet? A. I gave that to Investigator Wood. Q. From your examination of the body, and I recognize that it was quite some time before you actually examined it, but can you give us any opinion as to how far away the gun would have been from the head when the bullet was fired? A. In a general way I can. Q. What is your opinion? A. It was very close. There was black gunshot residue that surrounded the perforation that was in the back of the head. Basically that point on the back of the head and a little bit left of the center line there was gunshot residue. That only travels a short distance from the gun barrel and was very intensely deposited, so I would say the weapon was very, very close, maybe touching the hair just a very short distance. To know the specific distance you would have to test with that weapon and similar ammunition, but we are talking just a very short distance from the skin surface. MR. McMAHON: Thank you, that's all I have, Your Honor. THE COURT: Cross examine. CROSS EXAMINATION BY MR. RENSCH: Q. Morning, Doctor. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 79 A. Good morning. Q. What is livor mortise. A. Livor mortise is the settling of blood that takes place after circulation ceases and gravity will pull the blood to one of the body surfaces, and it will settle and deposit there. Q. You have looked at the bullet that you took out of Ms. Pictou-Aquash's skull, did you not, sir? A. I did look at it, yes. Q. It had copper on it, didn't it? A. It had a copper coloring, they call a flash. Wasn't really a jacket around, but had some copper coloration to it. Q. In the course of the autopsy you also examined the vagina of Ms. Pictou-Aquash to take a look at it, did you not, sir? A. I did look at the genitalia, yes. Q. You noted the genitalia appeared normal? A. They did to me, yes. Q. You didn't find any other bullet holes or bullet wounds on this body, did you, sir? A. No, that was the only one. MR. RENSCH: Nothing further, thank you. THE COURT: Redirect. MR. McMAHON: No further questions. THE COURT: Thank you. Doctor, you may step down. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 80 Call your next witness. MR. MANDEL: The United States would call William Wood. WILLIAM WOOD, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Sir, would you state your name, please? A. William B. Wood. Q. What is your current occupation? A. I am retired. Q. And what are you retired from, sir? A. Federal Bureau of Investigation. Q. Were you a Special Agent with the FBI? A. Yes, sir, I was. Q. How long were you employed in that capacity? A. Thirty-one years. Q. What years was that, sir? A. From 1966 to 1997. Q. Sir, did you spend some of those years operating out of, in Rapid City, South Dakota? A. Yes, sir, I did. Q. Can you tell me what years you were in Rapid City? JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 81 A. From 1975 to 1992. Q. As part of your duties did you investigate federal crimes occurring on the Pine Ridge Indian Reservation? A. Yes, sir. Q. Did you become involved in the investigation of the death of Anna Mae Pictou-Aquash? A. Yes, sir, I did. Q. Can you tell me when you first became involved in that, sir, if you recall? A. In, it was in February of 1976. Q. How did you become involved? A. I was assigned the case, and the original case agent was Agent Dealing, and I was assigned the case after him, and was assigned to conduct the investigation concerning her death. Q. At the time you originally were assigned to the case, had there been an identification made? A. Not at that time, no. Q. Can you tell us then the sequence of events as to what happened in terms of how the identification was made? A. The identification was made from the hands that, of the victim after they had been removed at the first autopsy by Dr. Brown. And turned over to Agent Munis, and the identification division, through fingerprints obtained, that the identification division identified the remains as those of Anna Mae Pictou-Aquash. And when we found that identity out, JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 82 then I was assigned to get a Court Order for the exhumation of the body. Q. Why was that, sir? A. Because the, for one thing, I did not believe that, the original cause of death being given as exposure, I didn't believe that that would be the truth, and I wanted to have the body re-examined, and applied for the Court Order and was granted that by Judge Bogue, and the body was exhumed, and the second autopsy was performed. Q. Now had you had previous experience with Dr. Brown as a pathologist? A. Not personally, no. I know that he had been conducting autopsies for cases on the Pine Ridge Indian Reservation for a number of years, and I was not personally acquainted with the man. Q. After the exhumation order was received from Judge Bogue, what steps took place next? A. I went down to the reservation with two other agents, and on March the 11th of 1976, and the BIA was using a backhoe to dig for remains that they had been buried at a cemetery across from Holy Rosary Mission. Q. Can I ask you if you know, sir, why were the remains buried before the body was identified, or that all effort had been exhausted? A. That I do not know. We requested that the body not be JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 83 interred, but it was. Q. What took place at Holy Rosary then, sir? A. At the exhumation, after the body was exhumed it was placed on a flat bed truck of the Bureau of Indian Affairs and taken to the Pine Ridge hospital and then taken into the morgue, and Dr. Peterson was present, and myself and Special Agent Gary Adams were present during the autopsy. Q. How was it that Dr. Peterson was selected as the individual to perform the autopsy? A. To the best of my recollection I believe that we had been contacted by Bruce Ellison, and he had wanted to have an independent pathologist examine the body. And I don't recall if we had selected or if Mr. Ellison and his office had selected Dr. Peterson, but Dr. Peterson was acceptable to us, because I knew that he was the medical examiner in Hennepin County, and has a good reputation as a good and thorough pathologist. Q. What took place then when the second autopsy was conducted, sir? A. The first thing that was done was Dr. Peterson had X-rays taken, and I was not in the room when the X-rays were taken, of course, but after the X-rays were taken and the film was developed, then he determined that there was a piece of metal in her head around the left eye socket. Q. Was he able to extract that piece of metal? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 84 A. Yes, he was. Q. Did he provide it to you? A. Yes, sir, provided it to me, and I gave him a receipt for it. Q. Were you able to visually identify that item? A. Yes, sir. Q. Could you generally tell what it was looking at it? A. Yes, sir. (Exhibit 33 marked For identification.) BY MR. MANDEL: Q. Sir, I have provided you with what has been marked Exhibit 33, I will ask you if you can identify that item? A. Yes, sir, that appears to be the piece of metal that was taken out of the head of Anna Mae Pictou-Aquash, her remains. Q. Sir, what did you do with that item? A. After giving him a receipt, then I placed it in this box. Q. Did you place your initials on the box? A. Yes, sir, I did. Q. Are they still there? A. Yes, sir, they are. Q. Other than that Exhibit sticker that I put inside the box that shows Exhibit 33, does that appear to be in pretty JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 85 much the same condition as when you did it? A. Yes, sir, it does. Q. After obtaining that bullet, what action did you take next? A. I had taken the hands with me down to the autopsy, and the hands were turned over to Dr. Peterson for inclusion back with the body at the conclusion of the autopsy, and I also, the body was turned over to Bruce Ellison, and then I gave Mr. Ellison a receipt, or he gave me a receipt for that. MR. MANDEL: Your Honor, I offer Exhibit 33 at this time. MR. RENSCH: No objection. THE COURT: Exhibit 33 is received. BY MR. MANDEL: Q. Was the body re-interred after that to your knowledge? A. Yes, sir, it was. Q. Where was that, if you know? A. I do not know. Q. In terms of the investigation of this case, can you tell us what actions you took initially at that time to pursue the investigation? A. Well, just we contacted as many people as we could find that, attempting to interview various people that we knew that Ms. Aquash had associated with. And many of those people were not interested in speaking with us, and we just kept running JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 86 in to many, many different blind alleys, if you will, where we couldn't get very many people to talk to us. And we could not, we had a very difficult time tracing her activities from the last time that she had been known to be alive by us. Q. Was this kind of running in to a brick wall a common problem in investigations down on Pine Ridge back at that time? MR. RENSCH: That's a leading question, Your Honor. THE COURT: Sustained. BY MR. MANDEL: Q. Was it unusual to have difficulty getting cooperation in an investigation down there? A. It was very common at that time, specially in connection with a matter such as this where she had ties to the American Indian Movement, and also to the Wounded Knee Legal Defense-Offense Committee. Q. Sir, did you conduct a further investigation at the crime scene at any point? A. Yes, sir, I did. Q. Were you out there initially when the body was found? A. No, I was not. Q. But were you, how were you able first of all to determine that you were at the correct scene when you went back to look at it? A. Well, for one thing I think probably Nate Merrick may JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 87 have pointed it out to me, and some, probably Agent Dealing may have pointed it out to me. I don't remember exactly who had shown us exactly where it was, but it would have been some of the law enforcement personnel that were involved in the initial crime scene. Q. Can you tell us what further efforts you made at the crime scene itself, sir? A. Myself and three other agents went out with, and did a re-examination of the crime scene. That was on March the 15th, four days after the second autopsy. And at that time once we had found that she had been shot, then we took a metal detector with us and examined the crime scene up on top of the ravine and then down below where her body had been found. Examined the entire area with the metal detector, and also visually looking for other items of evidence. Q. With the use of the metal detector were you able to locate either any expended cartridges or any other bullets that had been fired? A. We found nothing, no form of metal at all anywhere in the area. Q. Based on the investigation did you have any conclusion as to where the shooting had taken place? A. Would you repeat that again, sir? Q. I guess what I am asking is did you believe the shooting had taken place where the body was found ultimately, or at JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 88 some other location? A. It was our theory she had probably been shot above and pushed over the edge of the ravine. Q. But I guess at that point that was just a theory? A. Yes, sir, it was, because there was no way for us to tell, because the body was very badly decomposed when found, and mummification had set in. And the length of time that it takes for that to occur, we wouldn't, I mean many times drag marks or any blood stains or anything that would have been in the area would have been gone due to weathering. Q. Did you take other actions after that in this investigation, sir? A. Just the normal investigative routines. Q. During the course of the time you were assigned to the case did you ever get it to the point where there was enough evidence to bring charges against any individual? A. No, sir. MR. MANDEL: I have no further questions. Your Honor. THE COURT: You may cross examine. MR. RENSCH: Thank you. Your Honor. CROSS EXAMINATION BY MR. RENSCH: Q. What day did you folks take out the metal detector to where this body was found and examine the area? A. It was March the 15th. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 89 Q. How long did it take for you to examine the area with the metal detector? A. I don't recall the exact amount of time that we were out there. Q. Roughly? A. I am guessing we probably spent three or four hours out there at least. Q. Who were you with? A. I was with Special Agent John McCarty, George Haffner and Edman Bean. Q. Who was operating the metal detector? A. I do not recall who operated that, it was not me. Q. What area was searched? A. The area immediately above where the body was found, and probably as best I can recall we probably would have gone 25 to 50 feet out, and all the way back to the road. And then the area down where her body was found and the adjacent area to that going up. I don't recall how far. Q. So you searched the area immediately around her body to see if you could find any metal, is that right? A. Yes, sir, and extending out a ways, yes, sir. Q. Do you have any notes or reports concerning how far out you went? A. I have a, just my report notes. Not that says how far we went out, no. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 90 Q. Who is Bruce Ellison? A. Bruce Ellison is an attorney that was representing the Wounded Knee legal Defense-Offense Committee. Q. When he was talking to your office about getting Ms. Pictou-Aquash's body exhumed, did he make any representations about being a lawyer for the family? A. At some point he did make mention that he was. When I gave him the remains, he said that he represented the family at that time. Q. Isn't it true, sir, that he initiated efforts to get this body exhumed? A. No, sir, it is not. Q. When did you initiate efforts to get the body exhumed? A. I don't recall the exact date. It was when we found out, when we received information from the identification division, from that moment on is when we started our efforts to get the Court Order. Q. Your duties as a Special Agent in 1975 in this area included what, sir? A. Just investigating crimes on an Indian Reservation, on Pine Ridge Indian Reservation specifically. Q. Did you also include among your duties the cultivation of informants within the American Indian Movement? A. Within my duties as a Special Agent of the FBI, as with any law enforcement agency, is to gather information in any JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 Index PAGES 91 to 105 PAGE 91 way you can, and development of informants is one tool that is utilized by law enforcement, yes, sir. Q. Now in December of 1975 there were informants within the American Indian Movement, were there not, sir? A. I don't personally know that, no. Q. You didn't receive any information in December of 1975 from any informant of the FBI about the circumstances surrounding Ms. Aquash's death, did you? A. No, sir, I did not. Q. Did you personally handle any informants in December of 1975? A. Yes, sir, I think I probably had some informants at that time. Q. Did any of your informants include an individual by the name of David Hill? A. No, sir, that name is not -- no. Q. Are there different levels of labels given to people who give information to the FBI? A. Different levels? Q. Of labels, is there a difference say between an informant and a cooperating witness? A. Yes, sir. Q. Is there a term given to a person who might provide a small tip about something to the FBI? A. Yes. JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 92 Q. What is that, what term is it? A. Well, it could be considered an informant. Q. What is an operative? A. I don't know how you are using the term, sir. Q. Well, I want to talk about how the FBI would have used the term in 1975? A. That term was not a commonly used term at that era as far as I recall. Q. In December of 1975 were you personally in contact with or receiving information from any known operative of the FBI within the American Indian Movement? A. No, sir. Q. Do you know what COINTELPRO is, sir? A. I have heard the term. Q. Did you receive any special training while were you a Special Agent with the FBI? A. Special training in what? Q. COINTELPRO? A. No, sir. Q. Did you ever take active efforts to snitch jacket a person? A. To do what? Q. Snitch jacket a person? A. I don't know how you are using that term, sir. Q. Did you ever take active efforts to start rumors that JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 93 people who were not informants were informants? A. Absolutely not, no. Q. Were you ever trained in any way to have informants or operatives say that people who weren't really informants were informants to create dissension within the American Indian Movement? A. As far as I know that wasn't a technique that was used. Q. Did you ever do that? A. No, sir. Q. Now you knew that Ms. Aquash was approached by the FBI and they wanted her to be an informant, did you not know that, sir? A. No, sir, I did not. Q. You were not involved in that at all? A. No, sir, I was not. Q. Did you have a partner in the FBI? A. We would partner up from time-to-time. We would ride with various individuals, but to have an assigned partner at that time, no. Q. Was David Price a person you would ride with from time-to-time? A. Yes, sir. Q. He is also an FBI agent? A. Yes, sir. Q. Were you ever present when he attempted to have JERRY J. MAY. RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 94 Ms. Aquash become an informant? A. No, sir, I was not. Q. Were you ever instructed by him to try to recruit Ms. Pictou-Aquash to be an informant? A. No, sir, I was not. Q. Did you ever take part in steps to damage the reputation of people who refused to become informants? A. No, sir. I mean that wasn't a part of what we did. Q. So back in 1975, as far as you know, there was no effort by the Federal Bureau of Investigation to plant rumors and create dissension within the American Indian Movement, is that your testimony? A. I never did that, and I don't know of anyone else that was doing that. Q. Were you ever a party to that being done to the Black Panthers? MR. MANDEL: Objection, relevance. THE COURT: Sustained. BY MR. RENSCH: Q. What was it you were looking for with the metal detector, sir? A. Any metal, any other bullets or shell casings, just a routine. Q. Why would it be important to find bullets if they were in the ground near a person's body? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 95 A. Well, it could indicate a struggle, or it could indicate a number of different things, but we wouldn't know that until we had solved the case. I mean it is just an investigative tool to find anything that might, specially in a situation like that where it had been some time since the incident had occurred, at least a month or two, and not knowing exactly how long it had happened. It would also be to find any other pieces of evidence. There could be bracelets, or jewelry, or something like that. There could be all kinds of things, metal things out there that could be beneficial to the solving of the case. Q. Other than the body, and what was inside the body, and some hair strands that were found on the embankment, did you find any other physical evidence whatsoever which told you what happened at the scene when this poor woman was killed? A. No, sir. MR. RENSCH: Thank you, sir, nothing further. THE COURT: Redirect? MR. MANDEL: No further questions, Your Honor. THE COURT: Thank you Mr. Wood, you may step down. Call your next witness. MR. MANDEL: United States would call Evan Hodge, Your Honor. EVAN HODGE, JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 96 called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Sir, could you state your name, please? A. My name is Evan Hodge, E-V-A-N, H-O-D-G-E. Q. What is your current occupation, sir? A. I am retired. Q. Can you tell us what your previous work background is? A. I retired earlier this, earlier last year from the Vermont State Police Forensic Laboratory where I worked for approximately fourteen years after my retirement from the FBI laboratory in 1988. Q. How long were you with the FBI laboratory, sir? A. Approximately 26 years. Q. Can you tell us what your duties were there at the FBI laboratory? A. I retired as the chief of the firearms and tool mark identification unit. I was prior to that a firearm and tool mark examiner. Q. That would have been for the entire time you were there at the lab? A. Well, from 1970. I spent a short period of time in the field in 1969 and 1968. Prior to that I was a technician in the FBI laboratory prior to becoming an FBI agent. I returned JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 97 to the laboratory in late 1969. Stayed there until 1988 when I retired. Q. Was one of your duties to perform ballistic examinations, sir? A. Yes, sir. Q. Can you tell us, did you have specialized training in order to be able to do that? A. Yes, I did. Q. What was that? A. Well, as I said a moment ago, I did have approximately five years in the firearms and tool marks unit as a support technician, which pretty well taught me the expertise of firearms and tool marks identification. When I returned as an agent I went through the formal aspect of training which would include reading whatever literature that I didn't read, and going through a series of moot courts, and visiting various firearms manufacturing facilities to see exactly how guns were made. Q. Was there also educational background regarding this, sir? A. Well, I did, I have a Bachelors Degree and my undergraduate studies were engineering and business administration. I also have a Masters Degree in forensic science, but I earned that degree after I returned to the laboratory. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 98 Q. Sir, can you tell us generally what types of things you are able to determine through ballistic examination? A. Well, if we are talking about strictly a bullet, you look at the bullet, you can determine its caliber, you can perhaps determine who made the bullet. You can determine the type of rifling in the gun barrel from which it was fired, and if the rifling impressions in that bullet are sufficiently detailed, you can identify it with the gun from which it was fired if you have that gun. Q. So did you conduct an investigation as to some ballistic evidence in a case that involved the death of Anna Mae Pictou-Aquash? A. Yes, sir, I did. Q. Sir, I have handed you what's been marked Exhibit No. 33. I will ask you if you recognize that item? A. Yes, sir, I do. Q. Can you tell us what that is? A. This is a lead bullet which I designated as Q 11. It was received by me from Rapid City, South Dakota in March of 1976. Q. Did you conduct an examination of that item? A. I did. Q. Can you tell us what you were able to determine from that examination, sir? A. Very little. Only that it is a 32 caliber lead bullet JERRY J. MAY, RPR, CM 400 South Phillips Avenue, tt305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 99 of the type used in revolvers, and that is basically it. There are no remaining rifling impressions so I could determine the type of rifling in the gun barrel from which it was fired. And that's basically all I could tell was that it was a 32 caliber lead bullet. Q. Were you able to tell anything as to the probable manufacturer of the bullet? A. It looks to me it is most likely of Winchester manufacture. Q. Is it unusual to have that little identifying material or markings on a bullet? A. Not at all. Q. Why not? A. Well, it is soft lead, so that anything that comes, it comes in contact with it will distort the bullet. The other very good reason for not having those marks is the condition of the gun barrel. If the gun barrel was badly rusted, then the bullet may never actually get involved with the lands and grooves in the gun barrel. Or if the barrel was heavily leaded, that could also preclude any markings from the barrel being put on the bullet itself. Q. So beyond the probable manufacturer and the fact that it was 32 caliber, and probably from a handgun, is there anything else you are able to determine, sir? A. No, sir. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 100 Q. And you had no weapon to do any kind of comparison on, correct? A. No, I didn't. Q. If you had a weapon available, would it have been possible to do a comparison based on the condition of this bullet? A. No, it would not. MR. MANDEL: I have no further questions, Your Honor. THE COURT: Cross examine. CROSS EXAMINATION BY MR. RENSCH: Q. The bullet was copper coated, is that right? A. Yes. It is one of the reasons why I would think it is a Winchester. There was copper coating on it. Q. Would a bullet of that type be accurate for thirty feet? A. At thirty feet? Q. Urn-hum? A. That's problematical, I don't know. MR. RENSCH: Thank you. THE COURT: I have a question. Sir, you mentioned revolver, with that were you being specific as to revolver or within that did you mean to include pistol also. THE WITNESS: Normally, Your Honor, I am only going by probabilities here, normally this type of bullet is found in revolver cartridges, which is why I would say revolver. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 101 THE COURT: Thank you, the Court's question give rise to questions by either side? MR. MANDEL: No, Your Honor. MR. RENSCH: No, Your Honor. THE COURT: Thank you, you may step down. Call your next witness. MR. MANDEL: United States would call Kimberly Edwards, Your Honor. KIMBERLY EDWARDS, called as a witness, being first duly sworn, testified and said as follows: DIRECT EXAMINATION BY MR. MANDEL: Q. Would you state your name, please? A. My name is Kimberly Edwards. Q. Where are you employed? A. I am employed by the latent fingerprint unit of the FBI. Q. Where is that located? A. In Quantico, Virginia. Q. Do you have a specific title there? A. My title is physical scientist forensic examiner. Q. And do you specifically do fingerprint work among other things? A. That's correct. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #30 5A Sioux Falls, South Dakota 57104 (605) 330-4877 PAGE 102 Q. How long have you been employed doing fingerprint work? A. Just about four years. Q. Can you tell us what your duties are in that regard? A. I receive and inventory evidence, process the evidence for presence and development of latent prints. I can then compare those prints to the known prints of individuals. Additionally I work with the hands and fingers of unknown deceased in an attempt to effect their identification. Q. How long have you been employed -- excuse me. Give us your educational background, please? A. I received an undergraduate degree in mathematics and biology from the University of Virginia, Masters Degree from University of Maryland at College Park in biological resources and engineering. Q. Did you also receive specific training regarding fingerprints?