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into evidence. MR. RENSCH: First of all, they are claiming that the statements that they have admitted thus far of my client are admissible as admissions against interest. They have said in part that the statements that are admissions against interest are consistent with the statement that was given in 1994. THE COURT: Wait a minute. MR. RENSCH: Hold on. THE COURT: I want to ask you a question, so just a minute. That's the only way I can learn things, Counsel. Hold tight, I want to ask you questions. How is he saying that because the '94 statement isn't in evidence, how are they saying it was consistent. MR. RENSCH: The reason I tried to interrupt is they have taken the position in the extradition proceedings in Canada against John Boy Patton that Arlo Looking Cloud has made statements about this matter involving John Graham, and I believe the extradition matter refers to three statements and says those statements are consistent. Now the point I was going to make was that they are saying that what they are introducing now would constitute an admission against interest, and that would be an exception to the hearsay rule. To the extent the '94 statements are consistent to these admissions against interest that the government is now placing JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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rule. Even separately and apart from that, separately and apart from that, while they try to say that the statements are generally consistent, I am talking about the 2003 statement and the statement in July of 1995 where he went out there to the scene. They have talked also about some minor in inconsistencies and he has testified about some minor inconsistencies, so to the extent the 1994 statement would buttress the consistencies with these statements, it should be allowed in to support the statements from '95 and 2003. The same way if he were on the stand and they were to come in and say, well, you have made this statement and it is inconsistent at such and such a time, and I could then bring in a previous or a prior consistent statement to buttress it, it's the same theory, even though he is not taking the stand. When they put his statement on the stand in evidence, and there is a prior consistent statement in certain respects, inconsistent in others to the extent that it would be against interest, it should come in through the hearsay rule, it should come in through buttressing the existence of these statements. THE COURT: Just a minute. I am not familiar with anything coming in through the hearsay rule. It comes in either because it isn't in the hearsay rule or an exception to the hearsay rule, the hearsay rule keeps things out. MR. RENSCH: I meant to say through the exceptions. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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THE COURT: Go ahead. MR. RENSCH: That's my position. He made this statement with the government asking him a series of long questions back in 1994. It would be our position that to the extent they have attacked the statements of Mr. Looking Cloud that are in the record now, we are allowed to bring this up so that we can show that there is consistency. And to the extent that there is not consistency, so they are trying to say the statements are against interest, it shouldn't be admissible for that reason as well. If they talked to him in 1994 with this proffer agreement against him, but they won't use it, it doesn't mean he can't use it. THE COURT: It might. What about the counsel for the government has represented that part of the proffer was taking a polygraph, and the polygraph indicated deception with regard to whether or not apparently Mr. Looking Cloud was the one who had used the gun. Well, my question is not wanting to complicate this any further than necessary, but you know the Eighth Circuit there is no per se rule as to the exclusion of hearsay. There is in some Circuits, but there is not in the Eighth Circuit. I just wrote an opinion that dealt with that that I released last week, so I am really fresh on the law on that point. If the proffer comes in, then, and maybe the government wouldn't try to put that legal issue in the case, but if the proffer comes in then, does at least then do we JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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that is in the Eighth Circuit what the law is, that you have a Daubert. I excluded one. I don't have any idea what the procedures were or anything about this one, I don't know anything about Daubert, which is impossible to get in to, what's your position on that? MR. RENSCH: First of all, the first polygraph that he took was inconsistent, that was administered by an FBI agent who was present in Rapid City. Second polygraph he took indicated a fail. This was a polygraph in Denver. It would be.our position that, you know, we are not trying to bring in the polygraphs. We are trying to bring in the contents of the statement to buttress what they claim now would be inconsistent, and to provide for exculpatory information to the extent that it is consistent with the theory of our defense. As far as getting in to polygraphs, you know, I have tried in a murder case in Pierre to get in an exculpatory polygraph that showed that he passed the polygraph saying that he didn't help with the killing. Not in this particular case. I am not fresh on the law on that right now, but I will tell you this, I have spent over nine weeks of Sunday trying to figure out how to get that in. I don't know if even if we get in to the contents of his statement somehow a polygraph administered back in 1994 or 1995 somehow miraculously becomes admissible. I don't see how it would become admissible simply JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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what he said back then, not to show that the government has violated some agreement or anything like that. THE COURT: I am not keen to get in to the polygraph issue, but since it was brought up, I want to talk about it. MR. RENSCH: An inconclusive on a polygraph is one thing, one polygraph examiner can read an inconclusive and say that's bad, another polygraph examiner can read an inconclusive and say that's a fail. If I wanted to dig in to that, there is a possibility one could look at his first chart and say he passed that and thus, you know, he should have obtained some benefit from this matter back in 1994. But it seems that we would be hiding reality if we, he could not get into the fact that he told them what his position was back in 1994. THE COURT: Do you have any authority, getting away from polygraphs, because that is something that I don't want to get in to. I just wanted to explore what does it mean, because I heard about it for the first time, but with regard to the statement position, do you have any authority you are urging. MR. RENSCH: I don't have any with me, I would request an opportunity to look it up. My thinking is simply this, if it is a statement made by the defendant after being advised of his rights, then to that extent it would be JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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government, if -- oh, and another part of the proffer agreement was if he were to take the stand and testify, they would be able to utilize that for impeaching information. If they would be able to utilize it for impeaching information, and if they now bring statements that he has, they are going to claim in front of this jury they are inconsistent in certain respects, he should have the right to buttress his position with what was said to them back in 1994, but I do not have a case at my fingertips right now. THE COURT: Thank you. I take it counsel for the government wants to say something before I rule. MR. MANDEL: Start off with this, this is no surprise the defendant wants to use it, he knew it a long time ago, and he knew we weren't going to bring it in, that we couldn't use it because it was pursuant to that proffer. So it is not some big shock as we stand here today, and the rules of evidence as to hearsay are not because the defendant want's to put it in, or because it is helpful, or because the statement was given to a law enforcement officer that it then becomes admissible. Under rule 801 sub B sub 2, admission of a party opponent, the statement has to be offered against the party. Got to be offered by the opponents, he can't offer it himself. This is inadmissible hearsay. Thank you, Your Honor. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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THE COURT: Let me see the proffer agreement and the, I assume there was a proffer statement that was reduced to writing. MR. RENSCH: I do have one, it is in a blue notebook. I have lost an entire notebook. I don't have it with me, I took it back to my office to work on it over lunch. THE COURT: Well, the government would have copies. MR. McMAHON: You want the transcript, the letter and this transcript? THE COURT: Yes, both, please. Well, instead of looking at the top of my head, you as well as the people in the audience might as well have a.break. So we will be in recess for fifteen minutes until I read this. Thank you. MR. McMAHON: Your Honor, can we approach? THE COURT: Yes. MR. McMAHON: I just wanted Tim to be aware that the only copy I have is one I have highlighted. MR. RENSCH: I have copies that are blank. THE COURT: Doesn't make any difference to me. I have got one, I will just read it. ( Recess at 3:35 to 4:00. THE COURT: During the recess the government, counsel and counsel for the defense both came back together to chambers to urge their respective authorities. The defense urged rule 806, the government cited United States versus JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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along with some other cases. The ruling is as follows: 806 is not applicable, because it starts off saying when a hearsay statement, which this isn't, or a statement defined in 801(d)(2)(C), (D) or (E) has been admitted in evidence. Well, which it hasn't, because 801(d)(2) (C), (D) and (E) are things that we aren't really talking about here, authorized agents and so on. (d)(2)(A) talking about hear the party's own statement, and that isn't included within the rubric of 806, so 806 doesn't apply. 801(d)(2)(A), as I mentioned, does apply, and under that in both the Waters case, which is a case interestingly coming from the District of South Dakota at 194 F.3rd 926, a 1999 decision, re-hearing denied in 2000. The Court said Rothgeb did not, and could not, overrule the rules of evidence. Federal Rules of Evidence 801(d)(2) provides an out-of-court statement offered quote against a party end quote is not hearsay. In contrast here, Waters, who is the defendant, not the government, sought to introduce a prior statement consistent with his plea of not guilty. And the Court goes on to say such statements when offered by the defendant are hearsay, except in narrow circumstances not present here, and not present here in this case either. Then also I would cite in support of my ruling to not allow going into the proffer United States versus Sadler, 234 F.3rd, 368 at 2000, Eighth Circuit decision. So the objection is JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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proffer agreement. The proffer agreement as well as the proffer itself in preparation for the ruling. Alright. MR. RENSCH: At this point can I make an offer of proof? At this point if allowed we would have sought to introduce the transcript, and ask that it be marked and placed into the record as an offer of proof, and that I would have used it to try to fight the fact that the government is going to say and has said through their testimony that in 1994 when Mr. Looking Cloud was approached he denied being there, and then they brought in statements where he later said he was there and reenacted the events. And we would just request the Court utilize that as exculpatory hearsay, and that given the fact that that statement was made with the full knowledge and participation of the government, and with this man being subjected to questioning, and the fact it is consistent in a very good sense with the statements that have been offered by the government, that it would fall within the residual exception to the hearsay rule and would just request the Court reconsider its ruling. THE COURT: So you want to have the proffer letter as well as the proffer made an Exhibit in the Court file? MR. RENSCH: Just the transcript of the contents of the tape interview in 1994 when Mr. Looking Cloud told them essentially what he told them in 2003 so that there is some reference and JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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Not the proffer letter itself, the actual transcript of the event. THE COURT: That's what I am talking about, because the proffer letter which is just two pages, that's the agreement, but then I read a cover sheet, and then I read 24 pages of transcript. MR. RENSCH: Very well, I want to make sure that statement was included. THE COURT: Yes, let's get a clean copy, because the one I have is marked up now. MR. RENSCH: I have one here, I will give it to you so that you have it. THE COURT: This doesn't have the proffer agreement. MR. RENSCH: No, the Exhibit. MR. McMAHON: Why don't you keep my letter of the proffer agreement. If I can just have my transcript. THE COURT: I will attach the proffer agreement letter and then there is a cover sheet, so then this will become the Exhibit and you get your marked one back. MR. McMAHON: Thank you. THE COURT: Then I will give this to the clerk ultimately. This will be a defense hearing Exhibit, and of course one we don't send back to the jury. Alright, are we ready to proceed? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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MR. RENSCH: Yes, Your Honor. MR. MANDEL: Yes, Your Honor. THE COURT: Alright. Bring in the jury, please. (Jury Enters) THE COURT: Mr. Ecoffey, if you could come back up to the stand. BY MR. RENSCH: Q. Sir, you met with Arlo Looking Cloud out at the scene of this killing in July of 1995, is that not so? A. That's correct. Q. After he told you what happened out there, you sent him back to Denver to do whatever it was he was going to do, isn't that correct? A. That's correct. Q. And between 1995 and 2003 did you in any way monitor the whereabouts of Mr. Arlo Looking Cloud? A. No, I did not. Q. Did you send someone to follow him to see what he did? A. No, I did not. Q. Did you do anything to try to determine where this man would be staying or living in society during that period of time? JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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Q. You, sir, take an oath when you become a law enforcement officer, don't you? A. Yes, I do. Q. What is that oath? A. An oath to serve and protect the public, to tell the truth, and safeguard the community. Q. So when you take an oath to serve and protect the public, that's something you take very seriously, is that not so? A. That's correct. Q. When you are the United States Marshal for the District of South Dakota do you take an additional oath? A. Yes, you do. Q. Does that include within its makeup to serve and protect? A. Yes. Q. To protect the citizens across this land? A. That's correct. Q. From danger? A. Yes. Q. You have given testimony before a grand jury in relation to this matter, have you not? A. Yes. Q. You testified before a grand jury that at the first JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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correct? A. I would have to take a look at the transcript. MR. RENSCH: Page 11, counsel. See if this refreshes your recollection. BY MR. RENSCH: Q. Look at line 7. A. Line 7 you say? Q. Yes. A. Okay. What, you want me to read. Q. You testified there was evidence of trauma found on this body at the first autopsy? A. I testified that he didn't. Q. That what? A. That, the question was, the question in the report said they talked about the question was did he find any evidence of trauma on the body that he could test. I said no, he didn't. Q. You didn't receive any information from any pathologist that other than the hands being severed from the body there was any evidence of trauma, isn't that so, sir? A. That's correct. Q. Arlo told you that he went over to Troy Lynn Yellow Wood's house to meet a man by the name of Joe Morgan, didn't he, sir? A. Yes. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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A. He met Theda and Troy Lynn at the door. Q. And Theda asked him to drive to Rapid City, isn't that true? A. That's true. Q. And that he went down in the basement, correct? A. First he said he went to the kitchen and then down in the basement. Q. And that John Boy tied her up? A. Yes, that's correct. Q. And John Boy then walked her up the stairs and out of the house? A. That's correct. Q. And that they then drove to Rapid City? A. That's correct. Q. That when they got to Rapid City they went to a vacant apartment and slept there? A. That's correct. Q. He also told you that during the day at some period of time he went and he met a friend by the name of Tony Red Cloud, didn't he, sir? A. That's correct. Q. And that he stayed away so long at this friend's house that when he got back Theda Clark was mad at him? A. That's correct. JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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Rosebud, correct? A. He said he got back, Theda got mad at him, chewed him out, it got dark, then they went toward Rosebud. Q. And when they went do Rosebud Theda and John Boy went in to a house that was in Rosebud? A. That's correct. Q. And he didn't know whose house it was? A. That's correct. Q. And that they stayed in there for a while and then they came outside? A. He said, I remember right, that Theda went in first, and she came out and got John Boy, and then John Boy went in and they stayed in there for a while and then they both came out. Q. And they then drove on this road that goes north toward Kadoka? A. He said they took the back road, and I believe on the tape where it says inaudible it was Wanblee he said on the tape. Q. In any event, Theda pulls the car out there on that lonely road, correct? A. On the what? Q. On the lonely road that night, that's what he tells you? A. That's correct. Q. And that John Boy gets Ms. Pictou-Aquash out of the JERRY J. MAY, RPR, CM 400 South Phillips Avenue, #305A
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